S.A.No.822 of 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: ....09.2023

CORAM:

THE HONOURABLE MR.JUSTICE P.B.BALAJI

S.A.No.822 of 2010

1. Kaliammal W/o. Subramani

2. Subramani S/o. Sellan

... Appellants

Vs.

1.Kaliyan S/o. Ayyakannu

2. Sellan S/o. Vinayathan

... Respondents

PRAYER: The Second Appeal has been filed under Section 100 of the Civil

Procedure Code to set aside the decree and judgment in A.S.No.48 of 2002

passed by the Principal District Judge, Villupuram dated 04.02.2003

confirming the judgment and decree in O.S.No.191 of 1999 dated 09.10.2001

on the file of the learned II Additional District Munsif, Ulundurpet.

For Appellant

: Mrs. R. Meenal

For Respondents : Mr. T. Gandhi [R1]

R2-Given up.

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S.A.No.822 of 2010

J U D G M E N T

1. The unsuccessful defendants are the appellants.

2. The plaintiff, the first respondent herein filed the suit seeking

relief of declaration of title to the suit property and for consequential injunction

to restrain the defendants ie., the appellants herein from interferring with his

peaceful possession of the suit property.

3. The parties are referred as per rank in the original suit for the sake

of convenience.

4. The plaintiff, claiming that the suit property originally belonged to

Venkatesa Naidu and his brother Kannusamy Naidu and that on 12.06.1951,

they divided the same in and by means of an unregistered partition list, under

which the suit property was alloted to the share of Venkatesa Naidu and that

subsequently the said Venkatesa Naidu and his sons, in and by a registered

Partitition Deed dated 23.03.1970 divided the family properties, in which the

subject suit property was listed in Serial No.17 of Scheduel 'A' was alloted to

Venkatesa Naidu; subsequently there was an oral partition under which the suit

property was alloted to one of the sons of Venkatesa Naidu, by name

Narayanasamy; from him, the plaintiff purchased the same on 05.10.1989; the

plaintiff obtained Patta No.587 and that he has been in peaceful possession and

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S.A.No.822 of 2010

enjoyment of the suit property ever since. It is the case of the plaintiff that the

1^st defendant issued a notice on 07.05.1995 claiming rights over the suit

property. The plaintiff sent a reply notice on 02.04.1996. Thereafter on

25.07.1999, the defendants attempted to trespass into the suit property and

under the said circumstances, the plaintiff approached the Court with the above

mentioned reliefs.

5. The contention of the third defendant in his Written statement

which was adopted by the 2^nd defendant was that Narayanasamy had no right to

sell the suit property to the plaintiff and that the suit property was the ancestral

property of the 1^st defendant who had obtained Patta No.19, who was also

paying kist for the suit property and that the patta obtained by Narayanasamy

was fraudulent and Narayansamy and his sons were not in enjoyment of the suit

property. According to the defendants, the 1^st defendant had executed a Power

of Attorney in favour of his father on 25.01.1996 and the 2^nd defendant alone is

in enjoyment of the suit property with the assistance of the 3^rd defendant.

6. Before the Trial Court, the plaintiff examined 3 witnesses and

exhibits A1 to A10 were marked. On the side of the defendants, two witnesses

were examined and Ex.B1 to Ex.B6 were marked. The trial Court decreed the

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S.A.No.822 of 2010

suit as prayed for, as against which, the defendants preferred a 1^st appeal in A.S.

No.48 of 2002 before the Principal District Judge, Villupuram. The 1^st

Appellate Court, after scrutinising the available documents, pleadings and oral

evidence of the parties, held that Narayanasamy had legal right and title to

convey the suit property effectively to the plaintiff and that the plaintiff was

entitled to get the r