1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.04.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM S.A.(md).No.96 of 2011 Kottai ... Appellant/Plaintiff Vs. 1.Ganesan 2.Saratha 3.Sundari 4.Ulagi ... Respondents/Defendants Prayer: Appeal filed under Section 100 of the Civil Procedure Code, 1908 against the judgment and decree passed in A.S.No.26 of 2008 on the file of Subordinate Court, Sivagangai dated 09.12.2009 confirming the judgment and decree passed in O.S.No.129 of 2006 on the file of the District Munsif Court, Sivagangai dated 12.10.2007. For Appellant : Mr.G.Prabhu Rajadurai For Respondents : Mr.S.Srinivasa Raghavan for R-1 RR-2 & 3 No appearance J U D G M E N T The concurrent judgments and decrees passed in O.S.No.129 of 2006 by the District Munsif Court, Sivagangai and in A.S.No.26 of 2008 by the Sub-Court, Sivagangai are being challenged in the present second appeal. 2.The appellant as plaintiff has instituted O.S.No.129 of 2006 on the file of the trial Court for the reliefs of declaration and injunction, wherein, the present respondents have been shown as defendants. 3.It is averred in the plaint that the suit property is originally comprised in S.No.146/2 and its extent is 1 acre 75 cents and the same is originally belonged to the father of the plaintiff by name Andiyappan. Out of 1 acre 75 cents, 75 cents of land is alone originally belonged to one Aayipillai. Now the original S.No.146/2 has been subdivided as 146/2A and 146/2B. The sister of the mother of the plaintiff by name Sihappi has instituted O.S.No.401/1971 for the reliefs of partition and separate possession in respect of 75 cents of land in S.No.146/2. The suit property is the absolute property of the plaintiff and in which the defendants are not having any manner of right, title and interest and now the defendants have been making arrangements to disturb the peaceful possession and https://hcservices.ecourts.gov.in/hcservices/ 2 enjoyment of the plaintiff by way of denying the title to the suit property. 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 first defendant it is averred that with regard to suit survey number already O.S.No.401 of 1971 has been instituted, wherein, the suit survey number has been shown as 5th item in B schedule. In O.S.No.401 of 1971, a preliminary decree has been passed on 07.11.1973 and subsequently A.S.No.7 of 1974 has been preferred and the same has been dismissed and thereafter S.A.No.2334 of 1975 has been preferred and the same has also been dismissed. In O.S.No.401 of 1971, a final decree has also been passed. It is false to say that the suit property is originally belonged to the father of the plaintiff viz., Andiyappan. The plaintiff is not having any manner of right, title and interest over the suit property. 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 A.S.No.26 of 2008 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 same, 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 plaintiff as appellant. 7.As agreed by the learned counsel appearing on either side, this second appeal is disposed of on merits at the stage of admission. 8.On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: “1.Whether the courts below are correct in law in holding that in a suit for declaration of title, the plaintiff is to prove the title beyond reasonable doubt and not on the basis of better title? 2.Whether the courts below erred in dismissing the suit in toto overlooking the admission of the defendant that the plaintiff's mother was allotted 31 cents of land in S.No.146/2? 3.Whether the lower appellate court is correct in law marking or referring to the additional document, having allowed the application to receive the same and particularly when the predecessors was entitled to only 75 cents in S.No.146/2?” https://hcservices.ecourts.gov.in/hcservices/ 3 9.The crux of the case of the plaintiff is that the suit property is comprised in S.No.146/2B admeasuring 0.47.5 hectares and the suit property is originally belonged to the father of the plaintiff viz., Andiyappan and after his demise, the plaintiff has become its absolute owner and in the suit property, the defendants are not having any manner of right, title and interest. Since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title, the present suit has been instituted for the reliefs sought for in the plaint. 10.The main defence taken on the side of the defendants is that the father of the plaintiff is not owner of the suit property. The suit property is originally belonged to one Aayipillai and she passed away leaving behind her three daughters viz., Ulagi, Sihappi and Pottachi and one son viz., Veerayya and the said Sihappi has instituted O.S.No.401 of 1971, wherein both preliminary and final decrees have been passed and it is false to say that S.No.146/2 has been subsequently divided as 146/2A and 146/2B and the suit property is in S.No.146/2B and therefore the present suit deserves to be dismissed. 11.The courts below, after considering the available evidence available on record, have non-suited the plaintiff. Under the said circumstances, the only point that comes up for consideration in the present second appeal apart from the substantial questions of law raised on the side of the appellant/plaintiff is as to “Whether the concurrent judgments and decrees passed by the courts below are perfectly correct or the same require interference?” 12.In the plaint, it has been specifically averred that the suit property is comprised in S.No.146/2B measuring 0.47.5 hectares. The plaintiff has traced title to the suit property by saying that the same is ancestrally belonged to her father by name Andiyappan. But the definite stand taken on the side of the defendants is that the suit survey number is originally belonged to one Aayipillai. After her demise, one of her daughters by name Sihappi has instituted O.S.No.401 of 1971 for the reliefs of partition and separate possession, wherein, S.No.146/2 has been dealt with and further it has been specifically denied on the side of the defendants to the effect that the father of the plaintiff has had no right, title and interest over the suit property. Since a specific denial has been made on the side of the defendants with regard to source of title traced out on the side of the plaintiff, the entire burden lies upon the plaintiff to prove that the suit property is originally belonged to his father by name Andiyappan. 13.The learned counsel appearing for the appellant/plaintiff has repeatedly contended that the suit property is originally belonged to the father of the plaintiff viz., Andiyappan. But erroneously a patta has been granted in the name of Aayipillai, who is none other than the maternal grandmother of the plaintiff in respect of 1 acre 75 cents of land and subsequently a patta has been https://hcservices.ecourts.gov.in/hcservices/ 4 granted in the name of the plaintiff with regard to suit S.No.146/2B admeasuring 0.47.5 hectares and the courts below without considering the stand taken on the side of the plaintiff as well as the documents filed on his side, have erroneously non-suited him. Under the said circumstances, the concurrent judgments and decrees passed by the courts below are liable to be interfered with. 14.In order to remonstrate the argument advanced by the learned counsel appearing for the appellant/plaintiff, the learned counsel appearing for the first respondent/first defendant has laconically contended that the suit property is comprised in S.No.146/2 and there is no sub-division as S.Nos.146/2A and 146/2B and S.No.146/2 is originally belonged to one Aayipillai and she passed away leaving behind her three daughters and one son and one of her daughters has instituted O.S.No.401 of 1971 for the reliefs of partition and separate possession, wherein the mother of the plaintiff has been shown as one of the defendants. In O.S.No.401 of 1971, both preliminary and final decrees have been passed and in order to deter the right of the first respondent/first defendant, the present suit has been instituted and the courts below, after considering the malafide intention of the plaintiff, have rightly non-suited her. Under the said circumstances, the concurrent judgments and decrees passed by the courts below do not warrant interference. 15.On the basis of the divergent submissions made by either counsel, as pointed out earlier, the only point that comes up for consideration in the present second appeal is as to “Whether the concurrent judgments and decrees passed by the courts below are perfectly correct or the same require interference?” 16.The plaintiff has traced title to the suit property by saying that the suit property is ancestrally belonged to her father viz., Andiyappan. The present suit has been instituted stating that the suit property is comprised in S.No.146/2B admeasuring 0.47.5 hectares. In the plaint, it has been specifically stated that the suit survey number is ancestrally belonged to the father of the plaintiff viz., Andiyappan. On the side of the plaintiff, Exs.A.1 to A.5 have been filed. Except Exs.A.1 to A.5, no documents have been filed so as to prove that the suit property is ancestrally belonged to the father of the plaintiff viz., Andiyappan. Ex.A.1 is nothing but a patta stands in the name of Aayipillai, wherein, it has been clearly mentioned that S.No.146/2, measuring 1 acre 75 cents of land is ancestrally belonged to the person mentioned therein. The plaintiff has put forth her claim only on the basis of Ex.A.3. Ex.A.3 is nothing but a patta transfer order issued in the name of the plaintiff on 17.07.1997, wherein, it has been mentioned that the suit property is comprised in S.No.146/2B measuring 0.47.5 hectares of land. It has already been pointed out that no document has been filed so as to prove that the suit property is ancestrally belonged to the father of the plaintiff viz., Andiyappan. Further in Ex.A.1, it has been clearly stated that S.No.146/2, admeasuring 0.47.5 hectares is ancestrally belonged to the said Aayipillai. Since no https://hcservices.ecourts.gov.in/hcservices/ 5 document has been filed on the side of the plaintiff so as to prove that the suit property is ancestrally belonged to her father viz., Andiyappan and since in Ex.A.1, it has been clearly mentioned that S.No.146/2 measuring 1 acre 75 cents is ancestrally belonged to the said Aayipillai, the plaintiff has virtually failed to prove her alleged title to the suit property. Further it is an admitted fact that S.No.146/2 has already been dealt with in O.S.No.401/1971 and the same has been filed by one of the daughters of Aayipillai, wherein, the mother of the plaintiff has also been arrayed as one of the defendants. 17.It has already been taunted that no document has been filed on the side of the plaintiff so as to prove that the suit property is ancestrally belonged to his father viz., Andiyappan. In Ex.A.1, it has been specifically stated that S.No.146/2 is ancestrally belonged to the said Aayipillai and since the said Aayipillai is the maternal grandmother of the plaintiff and since the sister of the mother of the plaintiff has already instituted O.S.No.401 of 1971 for the reliefs of partition and separate possession, wherein, the mother of the plaintiff has also been arrayed as one of the defendants, it is needless to say that whatever the decrees passed in O.S.No.401 of 1971 is binding upon the plaintiff. However even at the risk of repetition, this court would like to point out that even a scrap of paper has not been filed on the side of the plaintiff for the purpose of showing that the suit property is ancestrally belonged to the father of the plaintiff viz., Andiyappan. Under the said circumstances, the plaintiff can easily be non-suited. 18.The courts below, after considering all the documents filed on either side, have rightly non-suited the plaintiff. In view of the discussion made earlier, this Court has not found any error nor illegality 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/plaintiff are not having substance at all and altogether the present second appeal deserves to be dismissed. 19.In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission. Consequently, connected M.P.No.1 of 2011 is also dismissed. The concurrent judgments and decrees passed in O.S.No.129 of 2006 and in A.S.No.26 of 2008 by the Courts below are confirmed. Sd/- Assistant Registrar(Crl.Side) /True Copy/ Sub Assistant Registrar To 1.The Sub Judge, Sivagangai 2.The District Munsif, Sivagangai. +1cc to Mr.G.Prabhu Rajadurai, Advocate, Sr.No. 14474 +1cc to Mr.S.Srinivasa Raghavan, Advocate, Sr.No. 14250 vs ssk/17.05.2011 /5c -5p/- SA.(MD).No.96 of 2011 https://hcservices.ecourts.gov.in/hcservices/