1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.191 of 2011 and MP(MD)No.1 of 2011 1.Ramaraj 2.Murugammal :Appellants/Defendants -Vs- Chinnammal :Respondent/Plaintiff Second Appeal filed under section 100 of CPC against the Judgment and decree dated 22.01.2011 passed in Appeal Suit No.109 of 2007 by the Principal Sub Court, Dindigul reversing the Judgment and decree dated 28.06.2007 passed in Original Suit No.1691 of 2004 by the Second Additional District Munsif Court, Dindigul. For Appellants:Mr.R.Nandakumar For Respondent:Mr.A.Hariharan JUDGMENT This second appeal has been directed against the Judgment and decree dated 22.01.2011 passed in Appeal Suit No.109 of 2007 by the Principal Sub Court, Dindigul, wherein the Judgment and decree passed in Original Suit No.1691 of 2004 by the Second Additional District Munsif Court, Dindigul are reversed. 2.The respondent herein as plaintiff has instituted Original Suit No.1691 of 2004 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein the present appellants have been shown as defendants. 3.In the plaint it is averred that the suit property and some other properties are originally belonged to one Alagiri Goundar. The father-in-law of the plaintiff by name Alagiri Goundar and his father by name Thammi Goundar have purchased the same under a registered dated deed dated 22.10.1926 and subsequently they sold Survey No.731/4 admeasuring 61 cents of land in favour of a third person and they retained the suit property which is comprised in Survey No.728/1 measuring 0.44 cents. The father-in- law of the plaintiff viz. Alagiri Goundar has passed away leaving behind him his sons Kathiriappan and Ramasamy. The said Ramasamy has passed away leaving behind him his son Venkatachalam and subsequently an oral partition has been effected, wherein western 20 cents of land has been given to Venkatachalam and eastern 20 cents of land has been given to the husband of the plaintiff by name Kathiriappan. The husband of the plaintiff has executed a settlement deed on 05.07.2002, wherein he bequeathed the entire suit property in favour of the plaintiff, and thus the plaintiff is having absolute right, title and interest over the suit property and since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff in the suit property by way of denying her title, 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 defendants it is averred that the suit property is not the property of the plaintiff. The suit property for the part 84 years has been enjoyed by the defendants and their forefathers. The defendants have filed a genealogy in I.A.No.922 of 2004. It is false to say that the suit property and some other properties https://hcservices.ecourts.gov.in/hcservices/ 2 are originally belonged to one Alagiri Goundar. It is also equally false to say that the father-in-law of the plaintiff and his father have purchased the suit property and some other properties under a registered sale deed dated 22.10.1926. The suit property has been purchased by the forefathers of the defendants viz., Alagiri Goundar and Thammi Goundar and subsequently the same has been given to the paternal grandfather of the defendants viz., Kathiri Goundar. The defendants 1 and 2 are the children born through Subbiah who is none other than the son of Kathiri Goundar. It is false to say that the plaintiff has been enjoying the suit property and there is no merit in the suit and the same deserves to be dismissed. 5.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.109 of 2007 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 allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court and ultimately decreed the suit as prayed for. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the defendants as appellants. 7.As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8.On the side of the appellants/defendants, the following substantial questions of law have been raised for consideration: (a)Whether the lower appellate Court is right in decreeing the suit on the weakness of the defence and is it not the duty of the plaintiff to prove her case and succeed on her strength? (b)Whether the lower appellate Court is right in pleading on behalf of the plaintiff and thereby explaining her admission? 9.The sum and substance of the case of the plaintiff is that the suit property and some other properties are originally belonged to Alagiri Goundar and the father-in-law of the plaintiff viz., Alagiri Goundar and his father by name Thammi Goundar have jointly purchased the same under a registered sale deed dated 22.10.1926 and the father-in-law of the plaintiff viz., Alagiri Goundar has passed away leaving behind him his two sons viz., Kathiriappan (husband of the plaintiff) and Ramasamy and the said Ramasamy has passed away leaving behind his son Venkatachalam and subsequently an oral partition has been effected, wherein the suit property has been given to the husband of the plaintiff and the husband of the plaintiff has voluntarily executed the settlement deed dated 05.07.2002 in favour of the plaintiff and thus, the plaintiff is having right, title and interest over the suit property and since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying her title, the present suit has been instituted for the reliefs sought for in the plaint. 10.On the side of the defendants it has been contended that the suit property has been purchased by Alagiri Goundar and his father by name Thammi Goundar and subsequently the same has been given to one of the sons of Thammi Goundar by name Kathiri Goundar and the present defendants are the grandsons of the said Kathiri Goundar and they are enjoying the suit https://hcservices.ecourts.gov.in/hcservices/ 3 property and in which the plaintiff is not having any manner or right, title and interest and therefore, the present suit deserves to be dismissed. 11.As stated earlier, the trial Court has dismissed the suit. But the first appellate Court has decreed the suit on the basis that no pleading is available in the written statement with regard to the materials found in Ex.B3 and in Ex.B3 without permission of the Court, name of one Perumal Goundar has been included and further in Ex.B5 only 1 acre 59 cents of land has been dealt with and the same does not refer to the suit property and therefore, the claim made on the side of the defendants cannot be accepted Under the said circumstances, the plaintiff is entitled to get the reliefs sought for in the plaint. 12.The learned counsel appearing for the appellants/defendants has repeatedly contended that the first appellate Court has failed to appreciate the documents filed on the side of the defendants and also the genealogy put forth on their side. Under the said circumstances, the Judgment and decree passed by the first appellate Court are liable to be interfered with. 13.The learned counsel appearing for the respondent/plaintiff has advanced his argument mainly on the basis of the infirmities pointed out by the first appellate Court on the side of the appellants/defendants. 14.It is an admitted fact that the suit property is originally comprised in Survey No.728/1. Now the suit property is comprised in new Survey No.728/11. 15.The plaintiff has claimed title to the suit property by virtue of Ex.A1. The defendants have claimed title to the suit property by virtue of Exs.B1, B2 and B5. Admittedly neither the plaintiff nor the defendants has had filed the original sale deed dated 22.10.1926. Under the said circumstances, the Court has to analyse the case of rival parties only on the basis of available documents. 16.In Ex.A1, the southern 44 cents of land has been dealt with. In Ex.B1, partition deed dated 02.03.1920 it has been clearly stated that the total extent available in suit Survey No.728/1 is 3 acre 18 cents of land Under Ex.B2 only 44 cents of land has been dealt with. But in Ex.B5, settlement deed alleged to have been executed by Kathiri Goundar in favour of the defendants it has been clearly stated that in suit Survey No.728/1, total extent is 3 acre 18 cents of land and its half comes to 1 acre 59 cents of land and the same has been settled in favour of the defendants. 17.From the documents mentioned supra, the Court can easily discern the following facts: (a)In suit survey No.728/1 total extent is 3 acre 18 cents of land. (b)Under Ex.A1 as well as under Ex.B2 southern 44 cents of land has been purchased. (c)Under Ex.B5 1 acre 59 cents of land has been dealt with. 18.On the basis of the aforesaid factual aspects, the Court has to find out as to whether the suit property comes within the limit of 1 acre 59 cents of land which has been dealt with under Ex.B1 and also under Ex.B5 and further the Court has to find out as to where the suit property is situate. 19.In the instant case, the above aspects are totally lacking Without having sufficient materials to know about the aspects mentioned supra, it is highly impossible on the part of the Court to settle the lis between the parties. https://hcservices.ecourts.gov.in/hcservices/ 4 20.The trial Court has simply dismissed the suit. But the first appellate Court has decreed the suit on the basis of the infirmities found on the side of the defendants and therefore, the Judgments and decrees passed by the Courts below are liable to be set aside and the suit is liable to be remitted to the file of the trial Court. Since the suit is liable to be remitted to the file of the trial Court, the substantial questions of law raised on the side of the appellants/defendants need not be decided. 21.In fine, this second appeal is allowed without cost at the stage of admission. Connected Miscellaneous Petition is closed and the Judgments and decrees passed by the Courts below are set aside and Original Suit No.1691 of 2004 is remitted to the file of the trial Court. The plaintiff is directed to take steps so as to prove as to where the entire extent of 3 acre 18 cents of land is situate in suit Survey No.728/1 and also directed to take steps to locate the suit property and the remaining property comprised in suit Survey No.728/1. The plaintiff is at liberty to take out commission for the purpose of locating the suit property and the remaining property comprised in Survey No.728/1. Further the plaintiff is directed to produce relevant document for the purpose of showing the entire extent of suit Survey No.728/1. Both parties are at liberty to adduce additional evidence. The Court fee paid on the appeal memorandum is ordered to be refunded forthwith. The Registry is directed to send all records immediately. Both parties are directed to make appearance in the trial Court by 20.07.2011. Sd/- Assistant Registrar (CO) / TRUE COPY / Sub Assistant Registrar To: 1.The Principal Sub Judge, Dindigul. 2.The Second Additional District Munsif, Dindigul. +1CC to M/s.R.Nandakumar, Advocate. SR.No.20501. +1CC to Mr.A.Hariharan, Advocate. SR.No.20490. Mj RP/12.07.2011/4P/5C. SA(MD)No.191 of 2011 28.06.2011 https://hcservices.ecourts.gov.in/hcservices/