S.A No.126 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 25.07.2023

CORAM:

THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI

S.A No.126 of 2013

M.P No. 1 of 2013

Indirani

... Appellant

Vs.

1.Ameer Sayabu (Deceased)

2.Munna

3.Noorunna.

4.Riyana

5.Mushtaq Ahmed

(Respondents 4 and 5 are brought as Legal heirs of the deceased first

respondent vide Court order dated 23.06.2016 made in CMP No. 4367 of

2016 in S.A No. 126 of 2013 by KRCBJ.)

...Respondents

PRAYER: This Second appeal filed under Section 100 of the Code of Civil

Procedure against the judgment and decree dated 28.02.2011 passed in A.S

No. 22 of 2010 on the file of learned Subordinate Judge, Vaniyambadi,

Vellore District, confirming the judgment and decree dated 12.12.2007

passed in O.S No. 164 of 2005 on the file of the learned Principal District

Munsiff, Ambur, Vellore District.

For Appellants: Mr.J.R.K.Bhavanantham

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S.A No.126 of 2013

R1 died

For R2 to R5 : Mr.P.A.Sudesh Kumar

JUDGMENT

The appellants herein/plaintiff filed suit O.S No. 164 of 2005

on the file of the learned Principal District Munsiff, Ambur, Vellore District,

for the relief of declaration and permanent injunction against the

defendants/respondent herein.

2. The contention of the plaintiffs is that she purchased 1,413

square feet with Wall in Natham survey No. 234/7 at Pallur Village, Vellore

District, through sale deed dated 27.06.2005 from one Kumaravel before

that said Kumarvel acquired the suit property through sale agreement dated

06.05.1999 from one Appai Naidu. From the date of sale agreement dated

27.06.2005 till the plaintiff was in possession and enjoyment of the property

which described as suit property in the schedule with four boundaries, on

the Souther side of the suit property an extent of 4X45 square feet with Wall

was given to one Kanniappan to run Palkova business in a thatched shed.

Thereafter, he stopped his business and vacated the premise subsequently

when the plaintiff was trying to remove the 2X45 square feet in that place

the defendant raised objection and attacked her besides he unlawfully

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S.A No.126 of 2013

removed 4X45 square feet situated near defendant's house thereafter the

complaint also lodged even then the defendant claimed that an extent of

2X45 square feet on the plaintiff's Southern side portion which is adjacent to

the defendant's property. Hence the suit for declaration and permanent

injunction with regard to disputed A,B,C,D portion.

3. On the other side the defendant denied the plaintiff's claim

over the said A,B,C,D portion submitted that neither the plaintiff nor her

predecessors in title having right over the said property and also denied that

it was not enjoyed by one Kanniappan by doing Palkova business. In fact

the suit property is a Natham vacant site on the North of the defendant's

property and plaintiff is not their neighbour but she claimed right over the

property without any valid title. In fact nature of the property is vacant site,

house plot with Wall but it was not properly described. Hence the defendant

prayed to dismiss the suit as no merits.

4. Before the Trial Court both side parties adduced their oral

and documentary evidence. Besides, the advocate commissioner was

appointed and his report was marked as Ex.C1, Ex.C2. On the side of the

plaintiff Ex.A1 to Ex.A4 documents were marked and on the side of the

defendant Ex.B1 to Ex.B2 was marked.

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S.A No.126 of 2013

5. On considering the oral and documentary evidence the Trial

Court held that as per the advocate commissioner's report the plaintiff is

claiming more extent than in her document besides she has not produced

any evidence to prove the title over the property and also non production of

copy of the document is fatal to the suit accor