IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.11.2023 CORAM THE HONOURABLE MR. JUSTICE S.SOUNTHAR S.A.No.298 of 2017 and CMP.No.7077 of 2017 V.M.C.Sivashanmuganathan ... Appellant Vs.

1.Dhanalakshmi

2.Murugaiyan 3.Jeevanantam

4.Rajkumar

5.Saminathan

6.Balu

7.Mohan

8.Rani ... Respondents Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 14.03.2016 in A.S.No.1 of 2013 on the file of the learned District Judge, Karaikal, confirming the judgment and decree dated 28.11.2011 in OS.No.21 of 2002 on the file of the learned Principal District Munsif, Karaikal.

For Appellant : Mr.R.Sunil Kumar For Respondents : Ms.A.Dipthi Munnoth for Mr.K.V.Babu for R1 to R8

JUDGMENT

The unsuccessful plaintiff in the suit for recovery of possession is the appellant. He filed a suit seeking for recovery of possession based on landlord and tenant relationship. The suit was dismissed by the trial Court and aggrieved by the same, he filed an appeal, which was also dismissed by the first Appellate Court. Challenging the concurrent findings against him, the plaintiff has come up with this Second Appeal.

2. According to the appellant/plaintiff, the suit property was allotted to his share in a family partition dated 03.01.1970. The first defendant Dhamodharan Raja was inducted by him as a tenant of the suit property under oral lease arrangement. It was pleaded that the original rent was Rs.20/- per month and the same was subsequently enhanced to Rs.50/- per month. The first defendant failed to pay rent from January 2000 and hence, notice was issued to him on 12.10.2000 terminating the tenancy by 31^st October 2000. He was called upon to vacate the premises and hand over the possession by 1^st November 2000. In spite of service of notice, the first defendant in the suit failed to vacate the premises and hence, the appellant was constrained to file a suit for recovery of possession based on the jural relationship of landlord and tenant. Pending suit, the first defendant died and his legal representatives were recorded as defendants 2 to 9.

3. The legal representatives of the deceased first defendant filed a written statement denying the jural relationship of landlord and tenant between the appellant and the deceased first defendant. The respondents/defendants 2 to 9 also had taken a plea that the suit property was sold by the plaintiff to third party and hence, he had no title over the suit property on the date of filing of the suit.

4. Before the trial Court, the appellant was examined as PW1 and his power agent was examined as PW2. Five documents were marked on behalf of the appellant as Ex.A1 to Ex.A5. The third defendant and 8^th defendant were examined as DW1 and DW2. Two other witnesses were examined as DW3 and DW4. On behalf of the respondents, 3 documents were marked as Ex.B1 to Ex.B3.

5. The trial Court on appreciation of oral and documentary evidence available on record, came to the conclusion that the appellant/plaintiff failed to establish oral tenancy as pleaded by him and consequently, dismissed the suit. Aggrieved by the same, the appellant preferred an appeal in A.S.No.1 of 2013 on the file of the District Judge, Karaikal. The first Appellate Court also concurred with the findings of the trial Court. Hence, the appellant has come up with this Second Appeal. 6. At the time of admission, this Court formulated the following substantial questions of law:

“1.Whether the Courts below did not err in overlooking the presumption of valid execution attached to the partition deed of the year 1970 an ancient document as per Section 90 of Evidence Act and misdirected itself by dismissing the suit?

2. Whether the Courts below did not err in holding that the suit filed by giving four boundaries without measurement is fatal inspite of the finding of this Hon'ble Court and Supreme Court that boundaries will prevail over extent?”

7. The learned counsel for the appellant submitted that the properties covered und