S.A.No.446 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25.09.2023

CORAM

THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA

S.A.No.446 of 2023

and

C.M.P.Nos.13405 & 13406 of 2023

M.Jeganathan

... Appellant

Vs.

1.Senthil Kumar

2. Sakthivel (Minor)

Represented by his Mother

and natural Guardian Suguna

... Respondents

PRAYER : Second Appeal filed under Section 100 of C.P.C., pleased to set

aside the decree and judgment made in A.S.No.124 of 2018 dated

09.08.2021 on the file of the Additional Sub Court, Mayiladuthurai,

confirming the judgment and decree made in O.S.No.95 of 2013 dated

07.09.2018 on the file of the District Munsif Court, Sirkazhi.

For Appellant : Mr.S.Sadasharam

For R1

: Mr.B.Jawahar

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S.A.No.446 of 2023

JUDGMENT

The Second Appeal has been filed by the appellant/defendant, who

lost his case before both the Courts below.

2. The respondents herein/plaintiffs, filed the Suit seeking to

declare them as owners of the suit 'B' schedule property and consequential

relief to remove the fence and roof put up by the defendant in the suit 'B'

schedule property and to hand over the possession to the plaintiffs. The suit

was decreed in favour of the plaintiffs, against which, the appellant/defendant

has filed the Appeal Suit. The judgment and decree of the trial Court was

confirmed by the appellate Court. Challenging the same, the present Second

Appeal has been filed by the defendant.

3. For the sake of convenience, the parties are referred to as they

are arrayed in the original suit.

4. The case of the plaintiff is as under:-

4.1. The suit 'A' schedule property, which is a punja land

comprised in Survey No.281/3 ad measuring 68 cents originally belonged to

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S.A.No.446 of 2023

one Bakkiyathammal, who had purchased the same through a registered sale

deed dated 14.11.1935.

4.2. The said Bakkiyathammal and her husband passed away

leaving behind them two daughters named Govindammal, Alamelu and one

son Chandrakasu. Among them, the two daughters are no more. One

Amirthavalli, the daughter of Govindammal and her husband Natesan also

died. They had no children. The second daughter Alamelu has got a daughter

by name Virudhambal. The said Virudhambal was given in marriage to

Chandrakasu, the son of Bakkiyathammal. They have a daughter by name

Suguna, who is the mother of the plaintiffs

4.3. The parents of Suguna viz., Chandrakasu and Virudhambal

had passed away. Prior to her death, the said Virudhambal, daughter of

Alamelu and granddaughter of Bakkiyathammal had executed a Will dated

23.6.2009 in favour of her daughter Suguna, After the death of the said

Virudhambal on 4.7.2009, Suguna, being the only legal heir, had been in

enjoyment of the suit property by acquiring the same.

4.4. The said Suguna, who is the mother of the plaintiffs, out

of love and affection, has executed a settlement deed dated 21.12.2011 in

favour of the plaintiffs, which was registered in the Sub Registrar Office,

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S.A.No.446 of 2023

Sirkazhi, in Doc.No.4509/2011.

4.5. Whileso, during the month of December 2011, the

defendant encroached upon the suit 'A' schedule property by fencing the same

and the encroached portion of the property is mentioned as 'B' schedule

property.

4.6. The plaintiffs had sent a notice to the defendant on

27.03.2013 seeking to vacate their property and hand over the possession to

them. The defendant sent a reply through his counsel on 10.04.2013 claiming

that one Amirthavalli and Virudhambal, the grandmother of the plaintiffs, by

an unregistered sale deed dated 18.07.1990, had sold the 'B' schedule

property to the defendant and refused to vacate the 'B' schedule property.

4.7. The plaintiffs have denied the contention of the defendant

with regard to the execution of the s