Research › Search › Judgment

Madras High Court · body

2024 DIGILAW 2818 (MAD)

Lucas(died) v. Sivalingam(died)

2024-12-17

V.SIVAGNANAM

body2024
JUDGMENT : V.Sivagnanam, J. PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.93 of 1997, dated 23.7.2002, on the file of First Additional Subordinate Judge, Padmanabhapuram(Camp), confirming the judgment and decree made in O.S.No.265 of 1993, dated 28.1.1997, on the file of Additional District Munsif, Padmanabhapuram. The Second Appeal is directed against judgment and decree made in A.S.No.93 of 1997, dated 23.7.2002, on the file of First Additional Subordinate Judge, Padmanabhapuram(Camp), confirming the judgment and decree made in O.S.No.265 of 1993, dated 28.01.1997, on the file of Additional District Munsif, Padmanabhapuram. 2. The Plaintiffs in O.S.No.265 of 1993, on the file of the Additional District Munsif, Padmanabhapuram(Camp) are the appellants in the Second Appeal. The respondents are the defendants. 3. The Plaintiffs filed a suit for declaration of their title, possession of plaint schedule properties and for an order of injunction from interfering and disturbing the peaceful possession and enjoyment of the plaint schedule properties. The defendants filed the Written Statement and contested the suit. 4. The Plaintiffs’ case in brief is as follows: The plaintiffs vendor Nagamony Nadar, son of Velayudhan Nadar, Alenchy Oor, purchased 39 cents including the plaint schedule property from one Chellayan Nadar as per sale deed No. 11928 of 1953 of the Colachel Sub-Registrar Office for valid consideration with a recital to redeem 1109 ME mortgage. On the date of sale, by change of hand, the above mortgage right came to the hand of Selvathas, son of Innasi. So Nagamony Nadar had filed O.S.No.197 of 1959 of the District Munsif, Padmamabhapuram for redemption and recovery of the plaint schedule property from the mortgage. In the above suit, he impleaded the original mortgage Savariaradimai, son of Meeyal Nadar and the assignee mortgage Selvadas. Thus Nagamony got delivery of the plaint schedule property from the mortgagees as per delivery list, dated 12.11.1960. Since then, Nagamony Nadar had been in physical possession and enjoyment of the entire 39 cents property as absolute owner. He effected improvements by planting coconut trees therein. Whileso, he gave ‘otti’ of 30 cents to one Soosammal, daughter of Marriammai as per Deed No.1093 of 1963 of the Colachel Sub-Registrar Office. Since then, Nagamony Nadar had been in physical possession and enjoyment of the entire 39 cents property as absolute owner. He effected improvements by planting coconut trees therein. Whileso, he gave ‘otti’ of 30 cents to one Soosammal, daughter of Marriammai as per Deed No.1093 of 1963 of the Colachel Sub-Registrar Office. As per the Deed No.216 of 1970, Soosai Ammal gave assignment of the above mortgage right to Joseph Nadar, son of Manuvel Nadar got possession of 39 cents in the suit survey number and by change of hand, it came to one Mercy, wife of Thankappan of Alenchy Oor. In the meantime, a road was formed on the eastern side of the above 39 cents plot with the consent of Nagamony Nadar and the same occupied some area from three cents. He also gave a cent on the north eastern corner of the above plot to Killioor Union so as to dig a well. Thus after excluding area left for road, the well etc., the available area is only 31 cents and the same is the suit property in the plaint. 4(1).The Jenmi Nagamony Nadar sold the equity of redemption in respect of the plaint schedule property in favour of plainiff as per Deed No.867 of 1976 of the Colachel Sub-Registrar Office with a recital to redeem the otti from the hand of assignee mortgage, Mercy. Accordingly, the plaintiff got release of the mortgage right as per release deed No.388 of 1978 of the Colachel Sub-Registrar Office and entered into physical possession of the plaint schedule property. Since then, she has been in physical possession and enjoyment of the same as absolute owner without any interruption from anybody. Her possession is in continuation of her predecessors- in-interest is peaceful, absolute and uninterrupted. 4(2).In the plaintiffs sale deed, by wrong assumption the Resurvey Number was given by mistake as 86/1 of Keezhamidalam Village. Along with the plaint, the sale deed, the plan of the suit property is attached. It has clearly located Resurvey No.88/3 of Keezhamidalam Village. The Resurvey correlates stated for plaint schedule property is only an oversight mistake. Subsequent to the sale deed, the Revenue Authorities effected mutation after plot verification and found the correct correlation is 88/3 of Keezhamidalam. They issued patta and tax was collected for Resurvey No.88/3. Nagamony Nadar’s 39 cents in old S.No.3014 of Keezhmidalam is correlated to Resurvey No.88/3 with 16 acres. Subsequent to the sale deed, the Revenue Authorities effected mutation after plot verification and found the correct correlation is 88/3 of Keezhamidalam. They issued patta and tax was collected for Resurvey No.88/3. Nagamony Nadar’s 39 cents in old S.No.3014 of Keezhmidalam is correlated to Resurvey No.88/3 with 16 acres. No other person has any manner of right over it. Resurvey No.88/3 of Keezhmidalam is purely plaintiffs’ patta land. The Plaintiffs got patta and is paying tax regularly in his name. 5.The contention of the defendants in the Written statement in brief is as follows: The description of the plaint schedule property is not correct and it is so, it is described with an ulterior motive. It is not even in consonance with the alleged prior title deeds. Old S.No.3014/1 has 9 sub-letters. The specific sub-letter for the plaint property is wilfully omitted. The Resurvey correlation stated in the plaint is erroneous. Old S.No.3014/1 sub-letters 1 to 3 forms part of Resurvey No.86/1. 5(1).The averments contained in paragraph 1 of the plaint are denied in toto. Neither the plaintiff nor her predecessor-in-title had any right or possession over the suit property. This defendant is the owner in possession of the northern half of the suit property. The second defendant is the owner of the southern half. Before them, the mother of this defednant and her predecessor in title were enjoying the suit property as absolute owners. 5(2).The suit property is old S.No.3014/1 sub-letter 4. Correlating to R.S.No.88/3 whereas the property purchased by Nagamony was old S.No.3014/1 sub letter 3 correlating to R.S.No. 86/1 Pt. The suit property old S.No. 3014/1 sub-letter 4 was originally assigned to the grand-father of this defendant by the sirkam as Puthuval Pathivu. Subsequently, the mother of this defendant was given this property at the time of her marriage as an oral gift as the value of this property then was lost than Rs.100/- and she was in peaceful possession and in personance of that possession she was given resettlement patta. 6.The trial Court had framed the following issues: 1.Whether the plaint schedule property 1 and 2 absolutely belongs to the defendants and whether they are in possession of the same? 2.Whether the property obtained by Nagamony on 12.11.1960 in O.S.No.197 of 1959 is plaint schedule property or not? 3.whether the plaintiffs are entitled to get the relief of declaration as sought for? 2.Whether the property obtained by Nagamony on 12.11.1960 in O.S.No.197 of 1959 is plaint schedule property or not? 3.whether the plaintiffs are entitled to get the relief of declaration as sought for? 4.Whether the plaintiffs are entitled to get an order of injunction as sought for in the plaint? 5.To what other relief, the plaintiffs are entitled to? 7.In trial, On the plaintiffs side, two witness were examined as P.W.1 and P.W2 and 25 documents were marked as Ex.A1 to Ex.A25. On the side of the defendants, two witnesses were examined as R.W.1 and R.W.2 and 39 documents were marked as Ex.B1 to Ex.B39. 8.The trial Court, on considering the evidence on record found that resurvey number of the plaint schedule property ie. 88/3 is incorrect and as per the sale deed Ex.A1 the resurvey number is R.S.No.86/1 as mentioned in the plaintiffs title deed.Therefore they cannot claim title over the property in R.S.No.88/3 and thus concluded that the plaintiffs have not proved their title over the plaint schedule properties and dismissed the suit filed by the plaintiffs. Aggrieved by this, the plaintiffs filed an appeal in A.S.No. 93 of 1997 on the file of First Additional Subordinate Judge, Padmanabhapuram.The learned appellate Judge, upon considering the arguments of the learned counsels appearing on either side and upon considering the materials on record, found that the judgment and decree of the trial Court is correct and confirmed the judgment and decree of the trial Court and dismissed the appeal filed by the plaintiffs. Aggrieved by this, the Plaintiffs filed the present Second Appeal before this Court. 9. This Court while admitting the Second Appeal, framed the following substantial questions of law: ‘Whether the judgments and decrees of the Courts below are correct in view of the legal position that when there is a conflict between the survey number of a property on the one hand and its boundaries on the other, the boundaries will prevail over the survey number for the purpose of identification of the property?’’ 10. The learned counsel for the appellants submitted that the judgment and decree of the trial Court and the First Appellate Court is against the law and on facts. The learned counsel for the appellants submitted that the judgment and decree of the trial Court and the First Appellate Court is against the law and on facts. Both the Courts failed to appreciate the materials on record and also fails to appreciate the legal position that when there is conflict between the survey number of the property on one hand and boundaries on the other hand, boundaries will prevail over the survey number for the purpose of identification of properties. Therefore the judgment of the trial Court as well as the First Appellate Court is unsustainable in law and in support of his argument, he relied on the judgment of this Court in the case of Roohinisha Beevi and others .vs. A.M.M.Mahudu Mohamed and others reported in 1998-1-LW 244 and thus pleaded to allow the Second Appeal. 11. The learned counsel appearing for the respondents 2 and 3 support the judgment of the trial Court and the First Appellate Court and further contended that the old S.No.3014/1 corresponding R.S.No. Is 86/1 and not 88/3. The Plaintiffs purchased the property from one Nagamony in Old.S.No.3014/1 corresponding R.S.No. Mentioned is 86/1 in the sale deed itself. Therefore in the plaint schedule property by putting the R.S.No.88/3 the plaintiffs are not entitled to claim title over the plaint schedule property and is not having title over the property and therefore pleaded to dismiss the second Appeal as it has no merits. 12. I have considered the submissions made by the learned counsel for the parties and perused the records. 13. On a perusal of the records, the fact reveals that the old survey number of the plainif schedule property is 3014/1 and its extent is 31 cents. According to the plaintiffs, the correct survey number is 88/3 and not 86/1. Further according to the plaintiffs, they had purchased the property as per the sale deed, dated 28.06.1976 from one Nagamony Nadar. On a perusal of Ex.A1-Sale Deed, dated 28.06.1976, it reveals that in old S.No.101/4, the Resurvey Number is mentioned as 86/1. 14. According to the plaintiffs, the correct survey number is 88/3 and not 86/1. Further according to the plaintiffs, they had purchased the property as per the sale deed, dated 28.06.1976 from one Nagamony Nadar. On a perusal of Ex.A1-Sale Deed, dated 28.06.1976, it reveals that in old S.No.101/4, the Resurvey Number is mentioned as 86/1. 14. Therefore, it is clear that as per Ex.A1 the plaintiffs have purchased the property in R.S.No.86/1.If the Resurvey Number is mentioned in the sale deed, Ex.A1 is mistakenly mentioned as 86/1 instead of 88/3 and the plaintiffs ought to have approached the Revenue Authorities to decide the correct resurvey number and rectify the title deed, but had filed the suit by mentioning the Resurvey Number as 88/3 and seeks to declare the right over the plaint schedule property. Under these circumstances, the arguments of the learned counsel for the appellants that boundaries predominate the survey number is not acceptable one. If all the factors are harmonious, there is little difficulty to identify the property in dispute and it may be accepted. But in the case on hand, it is not so. Therefore the judgment relied on by the learned counsel fo the appellants is not helpful to the case in our hand. The trial Court in its judgment in para 19 liberally discussed this fact and for better appreciation, it is extracted hereunder: 15. The first appellate Court, taking note of the same, confirmed the judgment and decree of the trial Court and this Court finds no illegality or perversity in confirming the judgment and decree of the trial Court, on facts. This Court answered the substantial question of law accordingly. I find no merit in the Second Appeal and the same deserves to be dismissed. C.M.P(MD)No.1 of 2007 in this Second Appeal for appointment of an Advocate Commissioner to identify and locate the property in the concerned document is unwarranted in the second appeal. Further, C.M.P(MD)No.2 of 2007 in this second appeal for directing scientific investigations by an expert by comparison of different handwritings in Ex.B16 postal receipt, and comparison of the disputed signature in Ex.B14 alleged to be the signature of Nagamony Nadar with his admitted signature in Ex.A1 i also unwarranted in the second appeal. Hence they are liable to be dismissed. 16. Accordingly, the Second Appeal stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are dismissed.