S.A.(MD)No.624 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 10.11.2021

CORAM:

THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN

S.A.(MD)No.624 of 2021

and

C.M.P.(MD)No.8315 of 2021

Antony @ Manickam

... Appellant/ Appellant / 1^stDefendant

Vs.

1.Amalorpavam

... 1^st Respondent/Respondent/Plaintiff

2.Savarinadhan @

Robert Savarinathan

3.Aacharyam

... Respondents 2&3 / Respondents 2&3

Defendants 2 and 3

PRAYER : Second Appeal filed under Section 100 of Civil Procedure

Code, against the judgment and decree, dated 22.11.2019 passed in

A.S.No.28 of 2018, on the file of the Sub Court, Sivagangai,

confirming the Judgment and Decree, dated 12.01.2018, passed in

O.S.No.117 of 2011, on the file of the District Munsif Court,

Sivagangai.

For Appellant

: Mr.P.Santhanakrishnan

For Respondent No.1

: Mr.N.Tamilmani

J U D G M E N T

The Second Appeal is directed against the judgment and decree,

dated 22.11.2019 made in A.S.No.28 of 2018, on the file of the Sub

Court, Sivagangai, confirming the Judgment and Decree, dated

12.01.2018, passed in O.S.No.117 of 2011, on the file of the

District Munsif Court, Sivagangai.

2.For the sake of convenience, the parties are referred to

as, as described before the trial Court.

3.The case of the plaintiff, as per the averments made in the

plaint, in brief, is that the suit property, initially belonged

to one Vedhamuthu S/o.Mariyarose and Marikulanthai Udaiyar

S/o.Gnanaprakasam of Pulikanmai Village. On 10.04.1978, the

plaintiff purchased the 'A' suit schedule property from the said

Vedhamuthu

S/o.Mariyarose

and

Marikulanthai

Udaiyar

S/o.Gnanaprakasam and he is in exclusive possession and enjoyment

of the same from the date of purchase. The suit property is an

1

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S.A.(MD)No.624 of 2021

extent of 38 cents. The defendants 1 and 2 have no right,

whatsoever, in the suit 'A' schedule property. Taking advantage

of old age of the plaintiff, the 1^st defendant constructed a house,

to an extent of 642.24 sq.ft, in suit 'A' schedule property,

belonged to the plaintiff. Further, the 1^st defendant colluded

with the 2^nd defendant sold part of the property of the plaintiff,

to an extent of 870 sq.ft., to the 3^rd defendant, and executed a

registered sale deed, on 01.07.2004. The four boundaries

mentioned in the sale deed is a false one. The entire suit

property is absolute and self acquired property of the plaintiff.

Since, the defendants have denied the title of the plaintiff in

respect of part of the property, the suit is filed for the relief

of declaration that the suit property exclusively belonged to the

plaintiff and to remove the illegal construction made in schedule

'A' and 'E' property by the defendants 1 and 3 and hand over the

possession to the plaintiff and for mandatory injunction.

4. The suit was resisted by the 1^st defendant by filing a

counter affidavit contending among other things that the

plaintiff has not approached the court with clean hands and with

an ill-intention, he has filed the suit. The part of suit

schedule property is belonged to the 1^st defendant and the suit

schedule property is the ancestral property and the 1^st defendant

is in possession and enjoyment of the property. A part of suit

property, to an extent of 870 sq.ft., was sold to the 3^rd

defendant, through the registered sale deed, dated 01.07.2004 and

the 3^rd defendant, in the same year, constructed a house in the

purchased property and it was well known to the plaintiff. The 1^st

defendant constructed a house and obtained an electricity service

connection, in the property and living there more than 50 years.

Suppressing the fact that there was a house already existed, the

suit has been filed by the plaintiff. There was a house in the

suit property, before the date on which the plaintiff said to have

purchase