IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.08.2021

CORAM

THE HONOURABLE MRS.JUSTICE R.HEMALATHA

S.A.No.850 of 2008

H. Chand Basha

...Appellant/Appellant/Plaintiff

Vs.

1. Abdul Wahid

2. The Tahsildar

Vaniyambadi

3. The Collector

Vellore District

Vellore

...Respondents/Respondents/Defendants

Prayer: Second Appeal filed under Section 100 of CPC, 1908

against the decree and judgment dated 24.09.2007 on the file of

the Sub-ordinate Court, Thirupattur, in A.S.No.58/06, confirming

the decree and judgment dated 25.02.2005, on the file of the

District Munsif-cum Judicial Magistrate Court, Ambur, in O.S.

No.206/04.

For Appellant

: Mr.L. Prabakar

For R1

: No appearance

For R2 & R3

: Mr.M.R.Gokul Krishnan

Government Advocate.

JUDGMENT

The unsuccessful plaintiff before both the courts below, has

filed the present Second Appeal.

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

as per their ranking before the trial court.

3. The brief facts of the case of the appellant/plaintiff

are as follows:

The suit property is the property of the appellant/

plaintiff and the first respondent/defendant and their father

executed a gift settlement deed (Hiba) dated 20.02.1986, through

the original of Ex.A1 in favour of the appellant and his sister

Dowlath Bi. The possession of the suit property was also handed

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over to them. However, the first defendant, in order to grab

the suit property, created a cancellation deed dated 26.11.1986

cancelling the gift deed dated 20.02.1986. According to the

appellant/plaintiff, the first respondent is attempting to get

the mutation of records in his name and that as per Mohammedan

law, the first defendant does not have any right over the suit

property. He, therefore, prayed for the following reliefs.

1) a decree of declaration that the plaintiff

and his sister Dowlath Bi are the absolute

owners of the suit property by means of the

gift settlement deed dated 20.02.1986.

2) for a mandatory injunction directing the

respondents 2 and 3 to include the names of

the plaintiff and his sister Dowlath Bi in

the revenue records and

3) for costs.

4.The suit was resisted by the first respondent/

defendant on the following grounds.

1) The appellant has filed the suit without

disclosing the actual facts.

2) The settlement deed dated 20.02.1986 was

cancelled

on

26.11.1986

through

a

registered Cancellation deed. The father

of the plaintiff and the first defendant

earlier executed a settlement deed in

favour of his first wife Bibijohn during

the year 1981, who in turn executed a

settlement deed in favour of the first

defendant on 24.04.1997. By virtue of the

said settlement deed executed by Bibijohn

in favour of the first defendant, the first

defendant became entitled to the suit

property and patta was also issued in

favour of the first defendant. The

plaintiff did not raise any objection at

the time of issuance of patta in favour of

the defendant.

3) Neither the plaintiff nor his sister was in

the possession of the suit property.

4) Since Dowlath Bi has not been impleaded as

a party to the suit, the suit is bad for

non joinder of necessary parties.

The first defendant, therefore, prayed for dismissal of the

suit.

5. In the written statement filed by the second

respondent/second defendant and which was adopted by the third

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respondent/third defendant, it is averred that they granted

patta to the first defendant after perusing the various

documents provided by the first respondent/appellant including

the settlement deed dated 24.04.1997 executed in his favour and

that the appellant/plaintiff did not raise any objection at the

time of issuance of patta, They had, therefore, pra