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2025 Supreme(Online)(Mad) 67472
2025:MHC:2209 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12.09.2025 CORAM THE HON'BLE MS.JUSTICE R.POORNIMA, S.A(MD)No.202 of 2008 Subbulakshmi @ Chellathai ... Appellant/Appellant/
1st Defendant Vs.
1.Smt.Chellathayammal(Died)
2.Subbulakshmi
3.Jaishankar
4.Rajaguru (Memo dated 18.06.2025 presented before this Court on 10.07.2025 is recorded as R1 died and RR2 to RR4, who are already on record)
... Respondents 1 to 4/ Respondents 1 to 4/
Plaintiffs 1 to 4
5.Subburaj ...5th respondent/5th Respondent/
2nd Defendant PRAYER : Second Appeal is filed under Section 100 Cr.P.C., as against the judgment and decree made in A.S.No.35/07 dated 03.10.2007 on the file of the Sub-Court, Kovilpatti, confirming the judgment and decree made in O.S.No.177 of 2005 dated 10.01.2007 on the file of the District Munsif Court, Kovilpatti.
For Appellant : Mr.M.Thirunavukkarasu For R2 to R4 : Mr.S.Pon Senthil Kumaran For R1 : Died(Memo Recorded)
For R5 : Dispense with Memo filed USR No.430451
Possession and lawful ownership are established through continuous occupation and relevant documentation, overriding contested claims lacking substantive proof.
Headnote:(A) Civil Procedure Code - Section 100 - Second Appeal filed challenging concurrent findings of lower courts regarding ownership and possession of property through a suit for permanent injunction - The plaintiffs established lawful possession of property based on long-term occupation and relevant documents. The first defendant's claims regarding oral partition and subsequent Will were dismissed due to lack of supporting evidence. (Paras 1-17)
(B) Evidence Act - Sections 63 and 68 - The validity of the Will produced by the first defendant was questioned as improper execution and lack of proof was identified.
Facts of the case:
The dispute arose from a suit filed by the plaintiffs claiming ownership of the property based on possession and tax receipts, countered by the first defendant's claims of ownership through oral partition and a subsequently executed Will.
Findings of Court:
The court upheld the trial court's finding that the plaintiff's evidence of long possession outweighed the defendant's claims, noting the lack of corroborative evidence from the defendant's side.
Issues: The main issues included whether the courts below misconstrued documents and whether the plaintiffs established their lawful possession.
Ratio Decidendi: The courts concluded that the burden of proof rests with the plaintiffs to demonstrate continuous possession, confirming degrees of previous judgments since the evidence favored the plaintiffs' established rights.
Result: The Second Appeal is dismissed.
JUDGMENT
This Second Appeal is filed against the judgment and decree dated 03.10.2007 made in A.S.No.35/07 by the Sub-Court, Kovilpatti, confirming the judgment and decree dated 10.01.2007 made in O.S.No.177 of 2005 by the District Munsif Court, Kovilpatti.
2. The plaintiff's case in O.S.No.177 of 2005 in brief, is as follows:
(a) The suit properties has been in possession and enjoyment of the plaintiffs and their ancestors for over 50 years. The father of plaintiffs 2 to 4, 2nd defendant and the husband of the first plaintff viz., Late. Kondusamy Naicker constructed a house on the suit property about 50 years ago, where he resided with his wife and children. In the the year 1981, he also obtained a patta from the Special Tahsildar, Kovilpatti.
(b) On 03.12.1995 the said Kondusamy Naicker died. Upon his demise, the plaintiffs and the second defendant succeeded to the suit property. Thiru.Kondusamy Naicker obtained electricity connection and paid taxes to the Chathirapatti Panchayat. After his death, the plaintiffs have been paying taxes for the land and building and have been in possession and enjoyment of the suit property.
(c) Presently, the plaintiffs are residing in Kovilpatti for their livelihood. Taking advantage of their absence and with an intention to unlawfully grab the suit property, the first defendant who is the daughter of one Gurusamy, brother of Kondusamy Naicker, attempted to interfere with the peaceful possession and enjoyment of the plaintiffs and approach upon the suit property. The first defendant has further proclaimed herself to be the owner of the suit property. Hence, the suit was filed seeking decree of permanent injunction, restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property.
3. Brief averments contained in the Written Statement filed by the 1st Defendant are as follows:
(a) The suit property along with other properties originally belonged to one Gurusamy, who had two sons viz., Gurusamy and Kondusamy. The original owner died long ago. After his demise, both of his sons had partitioned the properties under a registered partition deed dated 01.07.1959. They had orally partitioned the suit property. As per terms of the said oral partition, the western side of the suit property was allotted to Gurusway and the eastern side was allotted to Kondusamy. Subsequently Gurusway constructed a mud house with zing sheet roof and has been residing there, paying all the taxes and other payments to the Government. The said Guruswamy died 40 years back, leaving behind his wife Yengammal, three daughters as his sole surviving legal heirs. The first defendant, one among the daughters was married to one Perumal Samy, of Chathirapatti. The house earlier constructed by Gurusamy was subsequently, demolished due to heavy rains and at present there is no structure remains to evidence the existence of said building.
(b) Smt.Yengammal, wife of Gurusamy executed a Will on 20.02.1995, in respect of the suit property and other properties in favour of the first defendant. She also handed over possession of the house property measuring 22 x 20 feet of land. Subsequently, she passed away and after her demise, the first defendant alone is in possession and enjoyment of the said property. The said fact was within the knowledge of the plaintiffs and the second defendant.
(c) In the mean time, the first defendant came to know that Thiru.Kondusamy Naicker had fraudulently obtained patta in his name covering the entire suit property including the western portion of the suit property belonging to the first respondent. On coming to know about this, the first defendant filed a petition before the Tahsildar, Kovilpatti for inclusion of her name also in the patta. The said petition was allowed and the name of the first defendant was accordingly included in the patta No.546, on 21.03.2000. Challenging the said order, the plaintiffs have filed this suit. Hence, the first defendant prayed for dismissa
