IN THE HIGH COURT OF JUDICATURE OF MADRAS

Reserved on: 29.01.2020

Delivered on: 31.01.2020

Coram:

THE HONOURABLE MR. JUSTICE V.PARTHIBAN

S.A.No.613 of 2012

and

M.P.No.1 of 2012

Sekar

... Appellant/Respondent/Defendant

vs.

1.Mullaiammal

2.Suresh Kumar

3.Ramesh

4.Lalitha

... Respondents/Appellants/Plaintiffs

Second Appeal filed under Section 100 of CPC against the

judgement and decree dated 09.02.2012 passed by the Subordinate

Judge, Tiruvarur, in A.S.No.41 of 2011 reversing the judgement

and decree dated 03.08.2011, passed by the District Munsif

Court, Tiruvarur, in O.S.No.101 of 2011.

For appellant :: Mr.T.Girish for

M/s.Srinath Sridevan

For Respondents :: Ms.S.T.P.Kuilmozhi

JUDGEMENT

This second appeal is filed by the defendant in the suit as

against the judgement and decree dated 09.02.2012 passed by the

Subordinate Judge, Tiruvarur, in A.S.No.41 of 2011, reversing

the judgement and decree, dated 03.08.2011, passed by the

District Munsif Court, Tiruvarur, in O.S.No.101 of 2011, which

was one for permanent injunction and recovery of possession.

2.The parties, for the sake of convenience, are referred to

hereunder according to their litigative status and ranking

before the trial Court.

https://hcservices.ecourts.gov.in/hcservices/

3.The appellant herein is the defendant and the respondents

are the plaintiffs in the suit. The plaintiffs approached the

trial Court, by filing O.S.No.101 of 2011, for permanent

injunction and recovery of possession. According to the

plaintiffs, the father of plaintiffs 2 to 4 and husband of the

first plaintiff one Chinnaiyan had purchased the suit property

on 12.08.1989. After the death of Chinnaiyan, the suit property

was in the joint possession and enjoyment of all the plaintiffs.

According to them, the defendant tried to encroach upon the suit

property, on 02.08.2009, by putting up thatched hut measuring

about 360 sq.ft. on the North-West of the suit property.

4.On behalf of the appellant/defendant the suit was resisted

on the ground that he had been residing in the thatched hut for

a considerable time during his father's life time. According to

the defendant, he was paying the tax for his house and the

Tahsildar, Kudavasal, had issued 'Kudiyiruppu Certificate' to

him. According to him, one of the plaintiffs had constructed a

new house on the Eastern side of his house and in order to grab

the property occupied by him, the suit had been filed.

According to the defendant, he never encroached upon the

property belonging to the plaintiffs.

5.The trial Court, which went into the issues and the

evidence let in by the parties, had dismissed the suit holding

that the plaintiffs were not entitled to any relief prayed for

by them. The trial Court, while dismissing the suit, had in

extenso referred to various materials placed on record,

particularly Ex.A1, which was the Sale Deed, dated 12.08.1989,

which conferred title on Chinnaiyan, the father of the

plaintiffs 2 to 4 and the husband of the first plaintiff and

found that there were factual errors in the description of

Survey Numbers as mentioned in Ex.A1 and the Patta, which was

marked as Ex.A2, dated 05.08.2009. The trial Court had also,

while dismissing the suit, held that the contention of the

defendant that there was no valid transfer of title to the

plaintiffs was not to be sustained, since through Ex.A1 title

had clearly passed on to the plaintiffs. However, the trial

Court noticed material discrepancies in the description of

Survey Numbers and therefore, held that the plaintiffs were not

entitled to the reliefs. As against the dismissal of the suit,

the plaintiffs filed appeal in A.S.No.41 of 2011, on the file of

the Subordinate Judge, Tiruvarur.

6.The lower Appellate Court, which dealt with the appeal

filed by the plaintiffs, had re