S.A.(MD)No.204 of 2007

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 20.10.2021

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

S.A.(MD)No.204 of 2007

K.SUBRAMANIAN (DIED),

1 KRISHNALEELA

2 S.UMARANI

3 S.SARAVANAN

4 SURESH KUMAR ... Appellants / Respondents / Plaintiffs

Vs

1 KALAVATHY

... 1^st Respondent / Appellant / 1^st Defendant

SELVARAJ (DIED)

... 2^nd Defendant

2 SUBRAMANIAN(DIED)

... 2^nd Respondent / Respondent / 3^rd Defendant

(This Second Appeal is dismissed as abated as

against the second respondent herein as perusing

the order dated 20.10.2021

Prayer : Second Appeal filed under Section 100 of Civil Procedure

Code, against the judgment and decree of the learned Principal

Subordinate Judge, Madurai, in A.S.No.149 of 2005 dated 01.06.2006

reversing the judgment and decree of the learned District Munsif,

Madurai, in O.S.No.21 of 2002 dated 05.04.2005.

For Appellants : Mr.S.Alagarsamy

For Respondents : Mr.S.Madhavan for R1

Mr.P.T.S.Narendravasan for R2

JUDGEMENT

The plaintiffs in O.S.No.21 of 2002 on the file of the Court

of the District Munsif of Madurai Taluk are the appellants in this

second appeal. The suit was for permanent injunction. The trial

Court decreed the suit. On appeal by the contesting defendants,

the first appellate Court reversed the decision of the trial Court

and dismissed the suit by allowing the appeal. This second appeal

was admitted on the following substantial questions of law:-

“1.Has not the learned Subordinate Judge erred in

holding that the plaintiffs have not proved with

sufficient evidence that they are in possession of the

suit land though the same were admitted by the

defendants under Exs.B3 and B4?

2.Has not the learned Judge erred in admitting and

receiving in evidence documents B3 and B4 which are

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S.A.(MD)No.204 of 2007

unregistered sale deed? and

3.Has not the learned Judge erred in holding that

the unregistered sale deed can be marked as documents

because the same was not objected to at the time of

their marking by the plaintiffs?”

2.The learned counsel appearing for the appellants reiterated

all the contentions set out in the memorandum of grounds. He

submitted that the suit property belonged to the third

defendant/P.R.Subramanian. However, one Koolu @ Karuppannan was

the cultivating tenant. He had three sons namely, K.Subramaniam,

Selvaraj and Alagumuthu. In a partition that took place among the

family members, the suit property was allotted to the share of the

plaintiff/K.Subramaniam. The plaintiff was in possession of the

suit property and his name was also entered in the record of

tenancy rights. Selvaraj was the plaintiff's brother and

Kalavathy was the daughter of Selvaraj. Kalavathy attempted to

enter her name in the record of tenancy rights in respect of the

suit

property

by

substituting

the

name

of

the

plaintiff/K.Subramaniam. Her application was dismissed and the

appellate authority only remanded the matter. As on the date of

filing of the suit, the name of the plaintiff alone was reflected

in the tenancy register. After filing the suit, K.Subramaniam

passed away and his legal representatives were brought on record.

His wife examined herself as P.W.1. Three other witnesses were

examined on the side of the plaintiffs. Exs.A1 to A12 were

marked. The trial Court after a consideration of all the exhibits

marked by the plaintiffs rightly decreed the suit. The specific

finding of the trial Court was that the plaintiffs have proved

their possession over the suit property. The learned counsel for

the appellants pointed out that the first appellate Court erred in

relying on Exs.B3 and B4. According to the contesting defendants,

under these two documents, the original plaintiff had conveyed his

tenancy rights over the sui