1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.187 of 2011 and MISCELLANEOUS PETITION Nos.1 and 2 of 2011 R.Pitchai Pillai .. Appellant/Defendant Vs. Chinnathambi .. Respondent/Plaintiff Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 30.10.2010 passed in Appeal Suit No.2 of 2010 by the Sub Court, Pattukkottai confirming the Judgment and decree dated 12.11.2009 passed in Original Suit No.25 of 2007 by the District Munsif cum Judicial Magistrate's Court, Orathanadu. For Appellant : Mr.V.Ramamoorthy For Respondent : No appearance JUDGMENT This second appeal has been directed against the concurrent Judgments and decrees passed in Original Suit No.25 of 2007 by the District Munsif cum Judicial Magistrate's Court, Orathanadu and in Appeal Suit No.2 of 2010 by the Sub Court, Pattukkottai. 2. The respondent herein as plaintiff has instituted Original Suit No.25 of 2007 on the file of the trial Court for the reliefs of declaration and recovery of possession, wherein the present appellant has been shown as sole defendant. 3. The material averments made in the plaint are that the suit property is comprised in Survey No.146/4 measuring 0.03.5 Ares. The suit property has been given to the paternal grandfather of the plaintiff viz., Periyathambi @ Parama Pillai under T.D.No.666. The suit property has been enjoyed by the family of the plaintiff continuously. Prior to thirty years, a partition has been effected, wherein the suit property has been allotted to the share of the plaintiff and his brother and in the year 1990 another partition has been taken place in between the plaintiff and his brother, wherein the suit property has been allotted to him. For the purpose of convenient enjoyment an oral exchange has come into existence between the plaintiff and defendant, wherein the suit property and some other properties have been given to him. After some time, a despair has occurred in between the plaintiff and defendant and consequently the defendant has cancelled the oral exchange. But he fails to surrender possession of the suit property, which is comprised in Survey No.146/4. Except the plaintiff nobody is having any right, title and interest over the same. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant, it is averred that in the year 1974, the suit property has been given to the defendant by the Government and since then patta stands in his name. The defendant has been enjoying the same as its rightful owner. The https://hcservices.ecourts.gov.in/hcservices/ 2 defendant has spent Rs.20,000/- so as to reclaim the suit property. There is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the claims and counter-claims made on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.2 of 2010 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendant as appellant. 7. Even though the respondent/plaintiff has been served with the summons, appearance has not been made. Under the said circumstances, the present second appeal is disposed of on merits at the stage of admission on the basis of the contention urged on the side of the appellant/ defendant. 8. Before considering the submission made on the side of the appellant/defendant, the Court has to narrate the material averments made in the pleadings. 9. It is stated in the plaint that the suit property has been given to the paternal grandfather of the plaintiff under T.D.No.666 and subsequently a partition has been effected, wherein the suit property and some other properties have been allotted to the share of the plaintiff and his brother and in the year 1990 another partition has been effected, wherein the suit property has been allotted to the share of the plaintiff and since then the plaintiff has had enjoyed the suit property and thereafter an oral exchange has come into existence in between the plaintiff and defendant, wherein the suit survey number and some other survey numbers have been given to the defendant and due to despair between the plaintiff and defendant, the defendant has cancelled the oral exchange and subsequently refused to hand over vacant possession of the suit property by way of denying the title of the plaintiff and therefore the present suit has been instituted for the reliefs sought for in the plaint. 10. It is contended in the written statement that in the year 1974, the suit property has been given to the defendant by an order of the Government and subsequently he reclaimed the same by way of spending Rs.20,000/- and therefore the defendant is the absolute owner of the suit property and the plaintiff is not entitled to get the reliefs sought for in the plaint. 11. The Courts below have concurrently rejected the defence taken on the side of the appellant/defendant. Under the said circumstances, apart from the substantial questions of law raised in the present second appeal, the main point that has to be decided in the present second appeal is as to whether the plaintiff is having title to the suit https://hcservices.ecourts.gov.in/hcservices/ 3 property or the defendant is having title to the same? 12. On the side of the appellant/ defendant, the following substantial questions of law have been raised for consideration: a) Whether Courts below are right in granting decree in favour of the plaintiff who alleged oral exchange and put the possession of the defendant in the year 1990 is acceptable in the light of Ex.B.1, B.2 and B.3 the documents are much earlier stand in the name of the defendant, who claims independent title? b) Who has the better title plaintiff or defendant? Whether the Courts below analysed and find out the real truth? c) Whether the Courts below granted decree in favour of plaintiff is sustainable, in view of law of limitation admittedly defendant is in continuous possession much earlier than 1990? 13. The learned counsel appearing for the appellant/defendant has strenuously contended that even though a T.D. has been issued under Ex.A.1 in favour of the paternal grandfather of the plaintiff, the same has subsequently been cancelled and thereafter the suit survey number has been assigned in the name of the defendant and under the said circumstances Exs.B.1 to B.3 have been filed and the Courts below without considering the defence taken on the side of the appellant/defendant and also the documents filed on his side have erroneously accepted the contention urged on the side of the plaintiff and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 14. Exs.B.1 and B.2 are notices issued to the defendant, wherein suit survey number is found place. Ex.B.3 is nothing, but a patta passbook, wherein also the suit survey number is found place. 15. During pendency of this second appeal, on the side of the appellant/defendant, M.P(MD)No.2 of 2011 has been filed on the file of this Court under Order XVI, Rule 27 of the Code of Civil Procedure, 1908, wherein a document has been filed so as to admit the same as additional evidence on the side of the appellant/defendant. Considering the rival claims putforth on either side with regard to the suit property, M.P(MD) No.2 of 2011 can be allowed and the document filed therein can be marked as additional evidence and therefore M.P(MD)No.2 of 2001 is allowed and the document filed therein is marked as Ex.B.4. 16. Except Exs.B.1 to B.4, on the side of the appellant/defendant, two vital documents alleged to have been putforth on his side, are not marked. The first and foremost document is the alleged cancellation of T.D. issued in favour of the paternal grandfather of the plaintiff. The second document is the alleged assignment order given in favour of the defendant. Since the aforesaid documents have not been marked on the side of the appellant/ defendant, the Court cannot accept the contention putforth on his side and further on the basis of Exs.B.1 to B.4, the Court cannot come to a conclusion that the appellant/ defendant is having right, title and interest over the suit property. https://hcservices.ecourts.gov.in/hcservices/ 4 17. The sheet anchor of the case of the plaintiff is Ex.A.1. Ex.A.1 is nothing, but an extract of Resettlement Register, wherein suit Survey No.146/4 is found place in the name of the paternal grandfather of the plaintiff in T.D.No.666. Since Ex.A.1 is nothing, but an extract of Resettlement Register and since a T.D. has been issued in the name of the paternal grandfather of the plaintiff, the Court can very well come to a conclusion that on the basis of Ex.A.1 the plaintiff is having title to the suit property. 18. The present suit has been instituted for the reliefs of declaration and recovery of possession. Since the plaintiff is having right, title and interest over the suit property by virtue of Ex.A.1, it is needless to say that the plaintiff is entitled to get the reliefs sought for in the plaint. 19. The Courts below after considering the rival contentions raised on either side have rightly rejected the defence taken on the side of the appellant/defendant. In view of the discussion made earlier, this Court has not found any error in the concurrent Judgments and decrees passed by the Courts below and further the substantial questions of law raised on the side of the appellant/defendant are not having substance at all and altogether the present second appeal deserves to be dismissed. 20. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission and the concurrent Judgments and decrees passed by the Courts below are confirmed. Consequently, connected M.P(MD)No.1 of 2011 is dismissed. Documents marked in this second appeal on the side of the appellant/defendant: Ex.B.4 – 28.01.2011 – Certified copy of Adangal Extract for Survey No.146/4 for Fasli 1392 of Vettuvakkottai Village, Orathanadu Taluk, Thanjavur District. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To 1.The Sub Court,Pattukkottai. 2.The District Munsif cum Judicial Magistrate's Court,Orathanadu. Copy to : The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai +1cc to Mr.V.Ramamorrthy, Advocate, SR.NO.20385 smn : : GH : 22.08.2011 : 4p/5c S.A(MD)No.187 of 2011 and M.P(MD)Nos.1 and 2 of 2011 27.06.2011 https://hcservices.ecourts.gov.in/hcservices/