BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 05.10.2023

CORAM:

THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

S.A.(MD) No.572 of 2023

1.M.Nagaraj

2.N.Padma

..Appellants

Vs.

T.Manivasagam

...Respondent

PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the

judgment and decree passed by the Additional Sub Court, Srivilliputtur in A.S.No.

34 of 2015 on 27.06.2022 in confirming the judgment and decree passed by the

Additional District Munsif Court, Srivilliputtur in O.S.No.389 of 2012 on

05.01.2015.

For Appellants

: Mr.M.Jothi Basu

JUDGMENT

This second appeal is directed against the judgment and decree of the

first appellate Court, Srivilliputtur in A.S.No.34 of 2015, which confirmed the

judgment of Additional Sub Court, Srivilliputtur in O.S.No.389 of 2012.

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2.The appellants in this case filed a suit in O.S.No.389 of 2012 against

the respondent seeking

a) a relief of declaration of title in respect of item No.2 of the suit

properties; mandatory injunction to remove the construction made by the

respondent in item No.2 of the suit properties;

b) to direct the respondent to pay the market value of the land, on which

the defendant constructed a building;

c) cost and other reliefs;

3.The case of the appellants, as seen from the plaint, in brief, is that the

suit properties and other properties originally belonged to one Innasi Nadar. The

said Innasi Nadar and his son, Mudiappan had executed an unregistered sale deed

in respect of the suit properties to the first plaintiff. Thereafter, the first plaintiff

had executed a settlement deed in respect of the suit properties on 15.10.2009.

Since then, they have been enjoying the suit properties. The defendant had

constructed a building and during the course of construction, he encroached item

No.2 of the suit properties and put up construction. On this pleadings, the suit was

filed for the aforesaid reliefs.

4.The said suit was resisted by the defendant claiming that the

description of the suit properties as given in the plaint is not correct. The suit

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property was originally belonged to Innasi Nadar through a partition deed dated

20.01.1972. The defendant had purchased the property on 02.04.1993 and had put

up the construction. During the course of construction, the appellants have not

made any objection for the construction. The settlement deed had been executed

by the appellants to suit their convenience. The defendant had given a complaint

to the District Superintendent of Police, Virudhunagar on 03.10.2022 against the

creation of the settlement deed. The claim made on the basis of the unregistered

sale deed is not correct and legal.

5.On the basis of the said pleadings, the trial Court had framed the

following issues:-

i) Whether the item No.2 of the suit property belonged to the

plaintiffs independently?

ii) Whether the defendant had encroached item No.2 of the

suit properties and constructed a building?

iii) Whether the plaintiffs are entitled for the relief of

declaration as prayed for?

iv) Whether the plaintiffs are entitled for the relief of

recovery of possession?

v) Whether the plaintiffs are entitled for the relief of market

value of the item No.2 of the suit properties?

vi) To what relief, if any, the plaintiffs are entitled to?

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6.During the course of trial, P.W1 and P.W2 were examined on the side

of the plaintiffs/appellants and D.W1 and D.W2 were examined on the side of the

defendant/respondent. Ex.A1 to Ex.A7 and Ex.B1 to Ex.B7 were marked.

7.On considering the oral and documentary evidence, the learned trial

Judge had dismissed the suit, among other grounds, on the ground that the

appellants had failed to prove the title claim in respect of the suit properties. There

was also finding to the effect that though the appellants have claimed