S.A.No.1054 of 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on:28.07.2023

Delivered on: 04.08.2023

CORAM:

THE HONOURABLE MR.JUSTICE P.B.BALAJI

S.A.No.1054 of 2010

Ramasamy Gounder (died)

1.Saraswathi

2.Venkatesan

3.Srinivasan

... Appellants

(Appellants 1-4

bought on record as

LR's of the deceased

plaintiff)

Vs.

1.Kandasamy

2.Malarkodi

... Respondents

PRAYER: Second Appeal filed under Section 100 of C.P.C against the

judgment and decree passed dated 28.11.2008 passed in A.S.No.47 of 2004

on the file of Additional Sub-Court Vriddhachalam, in confirming the

judgment and decree dated 06.04.2004 passed in O.S.No.284 of 1996 on the

1/14

https://www.mhc.tn.gov.in/judis

S.A.No.1054 of 2010

file of the District Munsiff cum Judicial Magisgtrate Court at Thittakudi. ]

For Appellants

: Mr.V.Anand

For Respondents

: Mr.S.Senthil Nathan

JUDGMENT

The legal heirs of the deceased plaintiff are before this Court as

appellants in the Second Appeal. Originally, the sole plaintiff, one

Mr.Ramaswamy Gounder filed the suit seeking declaration of his possessory

rights over the suit schedule property. His case before the Trial Court was

that he was in possession of 4 items of suit property and he was carrying on

cultivation and that the defendants had no right, title or interest over the suit

items and that the defendants were openly claiming to encroach into the suit

items by using violence. Under such circumstances, the suit for Declaration

with a consequential relief of Permanent Injunction, as well as an alternate

Relief of Recovery of Possession was filed.

2. The 1^st defendant filed his Written Statement and the same was

adopted by the 2^nd defendant. The defendants contended that they were not

2/14

https://www.mhc.tn.gov.in/judis

S.A.No.1054 of 2010

concerned with items 1,2 and 4. However, insofar as Item-3 of the suit

property was concerned, the defendants set up a plea of an unregistered sale

in favour of the 2^nd defendant, consequent to which possession was also

delivered to the 2^nd defendant. It was the further case of the defendants that

the 2^nd defendant has been in enjoyment and possession of the said Item No.3

of the suit schedule property, and even the Government, recognizing the

possession of the 2^nd defendant had issued a ‘B’ Memo. The plaintiff’s claim

that the plaintiff has been in possession of Item No.3 of the suit scheduled

property had been stoutly denied. The suit was therefore sought to be

dismissed.

3. Before the Trial Court, the plaintiff examined himself as PW-1,

besides examining two independent witnesses as PW-2 and PW-3. On the

side of the plaintiff, exhibits A-1 to A-9 were marked. On the side of the

defendants, the 1^st defendant examined himself as DW-1, 2^nd defendant

examined herself as DW-2 and two other witnesses were examined as DW-3

and DW-4. On the side of the defendants exhibits B1 to B4 were marked.

3/14

https://www.mhc.tn.gov.in/judis

S.A.No.1054 of 2010

4. The Trial Court decreed the suit as prayed for, granting a decree for

Declaration and Permanent Injunction.

5. Aggrieved by the same, the defendants filed A.S.No.47 of 2004

before the Additional Sub-Court, Viruthachalam. The said Appeal came to be

allowed in so far as Item-3 of the Suit Schedule Properties alone. As against

the First Appeal being partly allowed, the legal heirs of the sole plaintiff,

since deceased, have filed the present Second Appeal.

6. At the time of admission of this second appeal the following

substantial questions of law have been framed.

1. Whether the First Appellate Court was

right in reversing the Judgement of the Trial Court

without upsetting the findings of the Trial Court

with respect to the possession of 3^rd Item of suit

property?

2. Whether the First Appellate Court is right

in accepting the plea of the defendants based on

the Unregistered Sale Deed Ex.B1 for Rs.10,000/-?

3. Whether the