1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 09.01.2019

PRONOUNCED ON : 22.01.2019

CORAM

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

Second Appeal No.1607 of 2004

Ramakrishnan

...Appellant

Vs

Sathyanathan

... Respondent

Prayer:-

Second Appeal has been filed under Section 100 of C.P.C.,

against the judgment and decree of the learned Subordinate Judge, Ariyalur,

passed in A.S.No.88 of 1998 dated 23.02.2004 reversing the judgment and

decree of the learned District Munsif, Jayamkondam passed in O.S.No.359 of

1996 dated 10.02.1998.

For Appellant

:

Mr.T.Kalaimani

For Respondent

:

Mr.S.Subbaiah, Senior Counsel

for Mrs.Elizabeth Ravi

JUDGMENT

The appellant herein is the sole defendant before the trial Court in

O.S.No.359 of 1996. The suit for declaration and permanent injunction was

filed by the plaintiff in respect of the suit property to an extent of 17 cents in

http://www.judis.nic.in

2

New S.No.285/7 at Udayarpalayam Taluk, Andimadam, Periyakrishnapuram

Village.

2.The case of the plaintiff is that, the above mentioned suit property

was purchased by him from one Sundaramurthy for Rs.6,200/- on

15.10.1993. Since then, he is in possession and enjoyment of the property.

His vendor, Sundaramurthy along with his brother Narayanasamy were

jointly in possession of 62 cents of land in the above survey number

inclusive of the suit property. They both got the property under the

settlement deed executed by their brother Pakirisamy on 16.09.1971. At the

time of settlement, the plaintiff's vendor, Sundaramurthy and Narayanasamy

were minors. Their mother Kanagayalai was appointed as guardian. Though

62 cents of land was settled in favour of Sundaramurthy and Narayanasamy,

the actual extent in the field was 67 cents. At the instance of Narayanasamy,

Sundaramurthy sold his portion of the share in the property to the

defendant. After selling 17 cents of the land to the defendant, the remaining

17 cents was sold to the plaintiff.

3.The defendant, with an intention to grab the plaintiff's property,

trying to encroach upon it. On 24.07.1975, the defendant tried to trespass

into the plaint schedule property but, was prevented by the plaintiff with the

http://www.judis.nic.in

3

help of the villagers. Hence, the suit has been laid for declaration and

permanent injunction.

4.The appellant herein has filed a written statement wherein, he has

denied the averments made in the plaint. The sale deed dated 15.10.1993

alleged to have been executed by Sundaramurthy through which the plaintiff

claims title and possession is denied as false document. Similarly, the

settlement deed dated 16.09.1971 alleged to have been executed by

Pakkirisamy also denied. The said settlement is questioned on the ground

that, in a joint Hindu family, the property cannot be settled by one sharer

without effecting division. So, the said settlement deed is a sham and

nominal document.

5.In S.No.285/7, out of 50 cents, Pakkirisamy was in enjoyment of 18

½ cents on the Western side. After his demise, his wife Thaiyalnayagi and

his sons were inherited and enjoying the same. They have alienated their

share jointly in favour of one Balaiah and the siad Balaiah is in possession of

the said portion of the land. The division among the three brothers were

effected in the year 1983. Out of 50 cents, Pakkirisamy was allotted 18 ½

cents on the Western side. Sundaramurthy was allotted 16 ½ cents on the

Eastern side and the middle portion of 15 cents was allotted to

http://www.judis.nic.in

4

Narayanasamy. All the three brothers have fixed their boundaries with ridges

and enjoying the same separately. On 22.12.1988, Sundaramurthy sold his

share of 16 ½ cents to the defendant. On 13.09.1993, Narayanasamy sold

his share of 15 cents to the defendant. After the demise of Pakkirisamy, his

share of 18 ½ cents was sold