IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08.07.2025 CORAM :

THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP Second Appeal No.932 of 2008 ---

S.Rajakumari .. Appellant Versus

1. R.Jayabalan

2. Annamalai Padayachi

3. Ramalinga Padayachi .. Respondents Second Appeal filed under Section 100 of C.P.C against the Judgment and decree dated 29.12.2006 made in A.S.No.27 of 2004 on the file of the learned Principal Subordinate Judge, Cuddalore and restore the judgment and decree in O.S.No.414 of 2002, dated 27.02.2004 on the file of Additional District Munsif, Cuddalore.

For Appellant : Mr.M.Arun Kumar for M/s.Sampathkumar and Associates For R1 : Mr.M.C.Swamy For R2 and R3 : No appearance

J U D G M E N T

This Second Appeal is filed against the Judgment and decree dated

29.12.2006 made in A.S.No.27 of 2004 by the learned Principal Subordinate Judge, Cuddalore and to restore the judgment and decree dated 27.02.2004 passed in O.S.No.414 of 2002 by the learned Additional District Munsif, Cuddalore.

2. The submission of the learned Counsel for the Appellant is that the Plaintiff in O.S.No.414 of 2002 before the learned Additional District Munsif, Cuddalore is the Appellant in the Second Appeal.

3. Originally, the suit in O.S.No.414 of 2002 was filed by the Plaintiff against the Defendants 1 to 3 before the learned Additional District Munsif, Cuddalore, seeking declaration of the Plaintiff's title to the suit property, recovery of vacant possession of the suit property from the obstructions, mesne profits under Order XX, Rule 12 of C.P.C and seeking cost from the Defendants and also to grant any other relief as deemed fit.

4. The averments in the plaint are as follows:

The 3rd Defendant and one Dhanapal Padayachi are brothers. Being sons of Ekambaram Padayachi, they owned properties of 6 Acres 57 Cents viz., 0.78 Cents in Survey No. 91/4; 1 Acre 34 Cents in Survey No.92; 40 Cents in Survey No.99/5; 3 Acres 66 Cents in Survey No.99/8A and 39 Cents in Survey No.99/8B. The Plaintiff purchased 3 Acres 28½ Cents on the Western half from Dhanapal Padayachi under a registered sale deed dated 16.05.1981. Though it is recited as undivided half share of Dhanapal Padayachi, what was actually conveyed is Western half which was in the possession of Dhanapal Padayachi. The Eastern half of 3 Acres 28½ Cents rd was in the possession of the 3 Defendant Ramalinga Padayachi, who is the rd brother of Dhanapal Padayachi. The 3 Defendant sold 2 Acres of Eastern half nd out of 3 Acres 28½ Cents to one Annamalai Padayachi, the 2 Defendant.

rd The 3 Defendant again sold 1 Acres 54 Cents of Eastern half out of 3 Acres st

28½ Cents to one Jayabalan, the 1 Defendant herein. Therefore, Ramalingam who was entitled to only 3 Acres 28½ Cents sold more extent of 3 Acres 54 Cents on the Eastern side. He had no right to sell the additional extent of 25½ Cents. Armed with the sale deeds, the Defendants 1 and 2 trespassed into the Plaintiff's Property to an extent of 25½ Cents and are in unlawful occupation. The Plaintiff issued legal notice but there was no response. Hence, the suit is filed for declaration of title and recovery of possession.

5. The contentions in the written statement filed by the first Defendant and adopted by the 2nd Defendant are as follows:-

The suit is vexatious and liable to be dismissed. It is true that Ramalinga Padayachi and Dhanapal are brothers possessing 6.57 Acres of land which was divided between them. Since the Eastern half was lower in level and not equal with the Western half, an extent of 3.03 Acres on the West was allotted to the share of Dhanapal and Ac. 3.54 on the East was allotted to the share of Ramalinga Padayachi to equalise the value. Accordingly, they also enjoyed the properties. In such circumstances, the Plaintiff while purchasing the share of Dhanapal wantonly wrote the extent as 3 Acres 28½ Cents. Dhanapal had title only to 3.03 Acres. Ramalinga Padayachi has also mortgaged the land to an nd extent of 3 Acres 54 Cents in favour of