IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.09.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.224 of 1999 1.Padmavathi 2.Gopalappa 3.Chinna Krishnappa 4.Chandrappa 5.Krishnappa 6.Seenappa 7.N.Ramachandran .. Appellants / D1 & D3 to D8 -vs- 1.P.M.Muni Reddy 2.Maragam Munireddy 3.A.Munireddy .. Respondents / Plaintiffs Prayer:- This Second Appeal has been filed under Section 100 of CPC against the decree and judgment dated 23.09.1997 in A.S.No.1 of 1997 on the file of the Subordinate Judge, Hosur, reversing the judgment and decree dated 14.10.1996 in O.S.No.5 of 1988 on the file of the District Munsif, Hosur. For appellants : Mr.C.R.Muralidharan, Advocate For respondents : Mr.R.Poornima, Advocate JUDGMENT
This second appeal has been directed against the decree and judgment in A.S.No.1 of 1997 on the file of the Court of Subordinate Judge, Hosur, which had arisen out of the decree and judgment in O.S.No.5 of 1988 on the file of the Court of District Munsif, Hosur. The plaintiff has filed the suit for declaration of his title and also for possession in respect of the plaint schedule property which is 0.10.5 Ares = 26 = cents in S.No.373/8 in Nanthimangalam Village, Hosur Taluk, Dharmapuri District.
2.The case of the plaintiff was totally dismissed by the learned Trial Judge. Aggrieved by the findings of the learned Trial Judge, the plaintiffs had preferred an appeal in A.S.No.1 of 1997 before the learned Subordinate Judge, Hosur, who had partly allowed the appeal and granted the relief of declaration and injunction in respect of 20 cents in Plot NO.1, 2, 3 & 4 as shown in Ex.C.3-Commissioner’s plan and has dismissed the suit in respect of other reliefs (recovery of possession). Aggrieved by the findings of the learned first appellate Judge in A.S.No.1 of 1997, the defendants 1 & 3 to 8 have preferred this second appeal.
3.The short facts of the amended plaint sans irrelevant particulars are as follows:-
The plaint schedule property is comprised in S.No.373/8 with an extent of 30 cents in the larger area of 7 acres 60 cents in Perumalpalli Village, Hosur Taluk. The great grand-father of plaintiffs 1 to 3 was Muniyappa @ Gounevari Muniyappa, who died leaving behind only one son Munegowdu @ Gounevari Muniyappa @ Gowdu Munipayya. The said Gounevari Muniyappa also died leaving behind two sons viz. Abbaiah Reddy and Jagganna @ J.M.Muniyappa. The said Abbaiah Reddy also died leaving behind two sons viz. Marga Munireddy and A.Muni Reddy, who are plaintiffs 2 & 3. The said Jaganna @ J.Muniyappa died leaving behind only one son by name P.M.Muni Reddy, who is plaintiff No.1. Muniyappa is the great grand-father of the plaintiffs 1 to 3. He Had purchased various extents covered in S.No.373 under 4 registered sale deeds viz., sale deed dated 09.06.1910, 22.09.1910, 17.03.1926 and 08.08.1928. The said Muniyappa, after the purchase of the properties under the above said four sale deeds, was in possession and enjoyment of the same till his death. After this death, his successors in interest including the plaintiffs were/are in possession and enjoyment of the same. To confirm the title of the plaintiffs, the plaintiffs also relied on the sale deed dated 05.10.1917 executed by Anumaiah in favour of Muniswamy and Munivenkatadu, gift deed dated 02.03.1917 executed by Anumapa in favour of Meeyasaheb and sale deed dated 03.02.1934 executed by Munivenkatadu in favour of Muniyamma. The plaintiffs 2 and 3 are the brothers being the sons of one Abbaiah Reddy. The 1st plaintiff is the cousin of the plaintiffs 2 and 3. The total extent of S.No.373 is 7 acres 60 cents. The said land was originally classified as ‘Brahmodayam Land’, which is covered under T.D.No.62. The entire Survey No.373 has been under the possession of the plaintiffs and their ancestors and also some other co-owners from a very long time and the same has been enjoyed by the family members of the plaintiffs from generation to generation. The plaintiffs are entitled to an extend of 30 cents in S.No.373 and the rest of the area was being enjoyed by the other co-owners by seperating their lands by putting ridges and fences for a very long time. The original suit S.No.373 being ‘Brahmodayam Land’ survey settlement was conducted in respect of the suit land under the provisions of the Tamil Nadu Minor Inams (Abolition and conversion) into Ryotwari Act of 1963, and under the provisions of the said Act, enquiries were conducted by the settlement Tahsildar, Salem under Section 11(2) of the above said Act and after enquiry as it was found that the suit land S.No.373 was being enjoyed by the plaintiffs and other co-owners with ‘Iruvaram rights’ and that as they were in possession and enjoyment of the said land before the appointed date viz. 15.2.1968 and as the said land was not required for any public purpose and that there was no other objections for the grant of patta the settlement Tahsildar in his enquiry conducted in the case in SR.No.958/68/M1 Act 30/63 Hosur accepting the long enjoyment and possession of the plaintiffs and other co-owners, directed that the patta should be granted to the plaintiffs 1 to 3 along with other co-owners who have been enjoying the said land and this order of the settlement Tahsildar is dated 31.7.1968 and the said order has now become final and absolute. Therefore, the plaintiffs have become the absolute owners of their portion of 0.30 cents of land in the said survey No.373. Apart from the suit land, the plaintiffs also have got some more extent of land in the same survey number about which there is no dispute. The suit is in respect of only an extent of 0.30 cents in the suit survey No.373. In respect of the suit land S.No.373, recently in the year 1985, updating survey was also conducted by the concerned authorities and as per the enjoyment of the plaintiffs, the suit land has been sub-divided in survey number 373/8 with an extent of 0.30 cents and patta has also been directed to be issued to the plaintiffs in patta No.641 of Mandhimangalam Village under the updating survey scheme. IN the year 1977 there was also a family partition between the plaintiffs in respect of their family properties and they have also got a partition deed to evidence partition and this partition is dated 30.05.1977 and in the said partition deed in the present suit Survey No.373/8 the first plaintiff is enjoying an extent of 0.12 cents which is eastern portion and the third plaintiff is enjoying an extent of 0.12 cents of land which is the western portion and the second plaintiff is enjoying another 0.12 cents of land in the same survey No.373/8 which is the central portion. The plaintiffs are enjoying their respective plots separately under sub-division No.373/8. The plaintiffs have put up fences around S.N.373/8 and they are using the plaint suit property as menure pits and there are stocking their heyricks in the suit property. The plaintiffs have also put up foundation in the suit property in order to construct a house therein. The first defendant is the grand-daughter of one S.Venkataramanaiah who was the Ex-village Munsiff of the Nandimangalam village. The defendant No.2 is the father-in-law of the first defendant, and defendants 3, 5 and 7 are the brother-in-law of the first defendant and sons of the second defendant, and defendant No.8 is the father of the first defendant. None of the defendants have any right, title or interest in respect of the suit property ie., 373/8 which absolutely belongs to plaintiffs only. The suit survey No.373/8 is carved out of the original S.No.373 and the grand father of the first defendant also has got some land in the same survey number which is situated on the east of the suit land of the plaintiffs and the plaintiffs are not claiming any right or title in respect of the property belonging to the grand-father of the 1st defendant. To show the separate plots of the plaintiffs and the grand father of the first defendant, there is also a wall and fence between the land of the plaintiffs and land of S.Venkataramanaiah the grand-father of the 1st defendant, the plaintiffs understand that the grand-father of the 1st defendant appears to have executed some documents in favour of the first defendant for an extent of about 0.30 cents in his portion of the land in survey No.373 and the plaintiffs are not parties to it and whatever may be the recitals of the document, it will not bind the plaintiffs of the suit property S.No.373/8. The defendants 1 to 8, who are close relations, are now on inimical terms with the plaintiffs for the last 2 to 3 years and they are also influenced in the village, and with their influence the defendants even though they have absolutely no right, title or interest muchless any possession of the suit survey No.373/8 during the updating survey, surreptitiously got name of the first defendant introduced in the updating survey patta as though she has got some claim in respect of the suit survey No.373/8. Even if she has got any land personally to the further east to the survey No.373/8 and not within Survey No.373/8. The plaintiffs also have taken steps to get the name of the first defendant deleted from the undating survey patta by preferring an appeal to the Sub-Collector, Hosur, and the matter is still pending before the Sub-Collector, Hosur. Arming themselves with the wrong patta issued by the updating survey authority in the name of the first defendant alongwith the name of the plaintiffs, the 1st defendant supported the other defendants 2 to 8 to make imaginary and untenable claims over the suit property and to give trouble to the plaintiffs in the matter of enjoyment of the land though they are fully aware that they have nothing to do with the suit survey No.373/8. On 27.12.1987 about 12.00 noon all the defendants forming themselves into an unlawful assembly and arming themselves with deadly weapons with the illegal object of committing trespass upon the suit property of the plaintiffs, attempted to cut the demarcating fences between the land of the first defendant and the plaintiffs and tried to occupy the land by force. But the said attempt was fortunately prevented by some neighbours and the defendants have been kept under check. Since the defendants are numerically large in number they are still asserting that they will come once again and destroy the fences and forcibly occupy the suit land of the plaintiffs. Since the cloud is cast upon the title of the plaintiffs, the plaintiffs have comeforward with this suit for the declaration of their title over the suit property and for permanent injunction against the defendants. The plaintiff had filed an application under Order 39 Rule 1 of CPC for grant of temporary injunction. I.A.No.11 of 1988 in O.S.No.5 of 1988 was dismissed by the trial Court. The plaintiffs had filed CMA.No.18 of 1989 before the District Court. The District Court was pleased to confirm the order of the Trial Court as far as I.A.No.11 of 1988 is concerned. As against the above said CMA the plaintiffs filed revision before this High Court. This Court also confirmed the order of the trial Court and also the first appellate Court. In lieu of the orders passed by the Court in respect of the injunction, it has become just and necessary to amend the prayer from declaration of title and injunction to that of declaration of title and possession. The defendants after the order of injunction have been asserting hostile title in themselves. Even though the 1st appellate Court and the High Court not clearly held that the defendants are in possession, by way of partition in lieu of the order passed, this relief for declaration of title and possession is sought for as an alternative relief. Hence, the suit.
4.The defendants have filed their written statement contending as follows:-
The relationship between the plaintiffs is not known to these defendants. S.No.373 of Nandimangalam Village covered under T.D.No.63 was originally classified as ‘Bramodayam’ land. The plaintiffs’ ancestors and other co-owners were in possession and enjoyment of the properties. Survey settlement was conducted in respect of S.No.373 under the provisions of the Tamil Nadu Minor Inams Abolition and Conversion in the Ryotwari Act of 1963 and the Settlement Tahsildar of Salem under Section 11(2) of the above Act held enquiry and found that S.No.373 was being enjoyed by the owners and there was no objection for grant of settlement patta as it was not required for the public purpose. The settlement Tahsildar conducted an enquiry in S.R.No.958/68/MI Act 30/63 and accepted the long enjoyment and possession of the owners and orders have been passed on 31.07.1968. The plaintiffs are not the owners of the suit property. The Settlement Tahsildar in his order dated 31.7.1968 has granted patta to eight persons to S.No.373. A portion of the land in S.No.373 was allotted to the plaintiffs. S.Venkatramanaiah S/o.Venkatramappa has got three portions of land in S.No.373, viz., an extent of 2.60 acres in one plot, an extent of 0.32 cents in another plot and another extent of 1.00 acre. Thus the suit land is in respect of 0.32 cents only which belonged to S.Venkatramanaiah. It is not correct to say that the suit property belongs to the plaintiffs. The said S.Venkataramanaiah purchased the suit lands to an extent of 0.32 cents under a registered sale deed dated 11.04.1938. The said Venkataramaiah was in continuous uninterrupted possession of the suit properties till he sold the same under a registered sale deed dated 23.11.1986 for a value and binding consideration. The first defendant is in possession and enjoyment of the suit properties to the knowledge of one and all. The first defendant is paying kist to the Government. The very recitals of the document dated 11.04.1938 clearly shows the boundaries of the suit land and the possession of the defendants’ vendor. The defendants are not aware of the family partition between the plaintiffs in the year 1977. The defendants are also not aware that the suit Survey Number was allotted to the plaintiffs. The division itself as per the plaint is imaginary. The plaintiffs allege that each member was entitled to 12 cents totaling 36 cents. It is false to say that the first plaintiff is enjoying eastern portion, the second plaintiff western portion and the third plaintiff central portion. It is false to say that the suit land has been divided into 3 plots and is in separate possession of the plaintiff. At no point of time the plaintiffs held possession of the suit properties. It is false to say that the plaintiffs have put up fences of the 3 sides of the suit land. It is also not correct to say that the plaintiff is having manure pits and hayrick. The plaintiffs have not put up foundation in the suit property. It is true that all the defendant are relatives with each other. It is not correct to say that the defendants have no right to suit property. It is false to say that the land of S.Venktaramaiah was situated to the east of the suit land. The boundaries stated in the old document dated 11.04.1938 reveals that the land north to the suit land was garden Muniappa’s land (the grand father of the first plaintiff). The grand father of the first plaintiff Muniappa’s land was on the north to the suit land as revealed by the old document dated 11.04.1938. This land was purchased by S.Venkataramiah in the year 1938 was sold to the first defendant under the sale deed in 1981 and the plaintiff was never in possession at any time. The plaintiffs and the predecessors in title are fully aware of the sale in favour of the first defendant’s vendor. The plaintiffs and their predecessors are also fully aware of the continuous uninterrupted possession of the first defendant’s vendor and the first defendant. The first defendant is paying kist to the suit land and raising crops and exercising all rights of ownership to the suit property. At the time of the purchase of the suit land by the first defendant there was a dilapidated wall with foundations which was faded gradually. To the north of this wall, the defendants are having hayricks and to the south of this, the first defendant has put up foundation in order to construct a building. There was a fence separating the suit proeprty with that of the plaintiffs’ property. The plaintiffs are in no way had any interest in the suit property at any time. During the updating survey, the defendants influenced the authorities and included their names in the updating patta. The first defendant has filed a petition before the revenue authorities to delete the names of the plaintiffs in the updating patta and exclusively grant patta in favour of the first defendant. Meanwhile the plaintiffs have filed this vexatious suit in order to harass the first defendant. These defendants never formed into unlawful assembly with deadly weapons to trespass upon the properties, there is no necessity for the defendants to trespass since the suit properties are in possession and enjoyment of the defendants alone. The other allegations of trespass is imaginary. There is no cause of action to file the suit. The defendants are in possession and enjoyment of the suit property. Hence, the suit is liable to be dismissed.
5.In their additional written statement the defendants would contend that the suit property was not in possession of the plaintiffs nor their predecessor in title. The sale deeds already filed are nothing to do with the suit property and not admissible. It is false to allege that the sale deed dated 03.02.1934 confirm the title of the plaintiffs to the suit property. It is false to allege that the sale deed dated 05.10.1917 and the gift deed dated 02.03.1917 and sale deed dated 03.02.1934 covers the suit land. The averments made in para 3(a), (b), (c) are invented for the purpose of pleadings and the sale deeds mentioned in the above paras are not with respect to the suit property. It is false to say that the suit land has been passed to the plaintiff from generation to generation. It is false to say that the plaintiffs put up fence to the suit land. It is not true that the Settlement Tahsildar has accepted the plaintiffs possession. The order of Tahsildar dated 31.07.1968 does not cover the suit schedule property and it is false to allege that the defendants influenced the Tahsildar and got included her name in the UDR patta. The suit property does not belong to the plaintiffs family at all. It is not true to say that the suit property was divided in between the plaintiffs, each 0.12 cents as alleged. It is false to say that fence has been put up on three sides of the suit property by plaintiffs. It is false to say that the plaintiffs put up foundation in the suit property. It is the defendants who put up foundation to put up a house. Recognising the possession and enjoyment of the defendants, UDR patta was rightly given in favour of the defendants who all enjoying the property. It is not true to say that the right, title and possession of the defendants are untenable. It is false to say that the rights of the defendants are imaginary. The alleged cause of action for the suit is false. The defendants are in possession and enjoyment of the property and there is no necessity for the defendants to trespass upon their own lands. The plaintiffs have no legal right, possession or enjoyment of the property. Hence, the suit si liable to be dismissed.
6.On the above pleadings the learned trial Judge has framed four issues for trial. On the side of the plaintiffs, 1st and 2nd plaintiffs have deposed as P.W.1 and P.W.3 respectively besides examining P.W.2 and P.W.4 to P.W.7, and Ex.A.1 to Ex.A.16 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.3 were marked. The Commissioner’s reports filed before the Trial Court have been marked as Ex.C.1 & Ex.C.2, and the Commissioner’s plan was marked as Ex.C.3. After meticulously going through the evidence both oral and documentary the learned trial Judge has come to the conclusion that the plaintiffs are not entitled to any relief asked for in the plaint and accordingly dismissed the suit with costs. Aggrieved by the findings of the learned trial Judge the plaintiffs have preferred an appeal in A.S.No.1 of 1997 on the file of the Subordinate Judge, Hosur. The learned first appellate Judge after taking into consideration Ex.C.1 and Ex.C.2, wherein 20 cents were held to be in possession of the plaintiffs in the portion marked as 1, 2, 3 & 4 to Ex.C.3-plan, has allowed the appeal in part, thereby granting the relief of declaration of title and also permanent injunction, dismissed the appeal in other respects, which necessitated the defendants 1 & 3 to 8 to prefer this appeal.
7.The following substantial questions of law are involved in this second appeal:-
1)Whether the lower appellate Court is correct in decreeing the suit, particularly when the plaintiffs have miserably faield to discharge their burden of identifying the suit property and of establishing their title and possession to the same?
2)Whether the lower appellate Court had erred in decreeing the suit of the plaintiffs on the basis of the report of an ex-parte commission, which is clearly inadmissible in evidence?
8.Substantial Question of law No.1:- The plaint schedule property is in S.No.373/8 with an extend of 0.10.5 hectares (26 = cents). Even though the plaintiffs have filed Ex.A.1 to Ex.A.3-sale deeds, they have not based their reliance on them. On the basis of Ex.A.7 partition deed entered into between the plaintiffs, the plaintiffs have scheduled the plaint schedule property as per the schedule given in Ex.A.7. Under Ex.A.7 plaintiffs 1 to 3 have entered into a partition in respect of their family property on 30.5.1977. The 1st plaintiff is party No.3 and 2nd plaintifs is party No.1 and 3rd plaintiff is party No.1 to Ex.A.7. In the suit S.No.373 out of 7 acres 60 cents each plaintiff were allotted 12 cents. Ex.A.7 is a self-serving document. Even though under Ex.A.7-sale deed, the plaintiff have been allotted each 12 cents in the suit survey number property, the plaintiffs have scheduled to the plaint only 26 = cents ie., 0.10.5 ares. The survey number stated in the plaint schedule property is S.No.373/8. A perusal of Ex.A.6 order of the Settlement Tahsildar in respect of S.No.373, 384, 388 and 452/1 will go to show that settlement patta was issued in respect of S.No.373 in favour of 8 persons viz., 1)A.Panuma Reddy, 2) P.M.Muni Reddy, 3)Mangamuni Reddy, 4)A.Muni Reddy, 5)A.Veerathinmaiah, 6)Margamma, 7)Chinnappa, and 8)Venkataramaiah. But after sub-division as per Ex.A.8 patta was granted in the name of A.Muni Reddy, Margamuni Reddy, Muni Reddy, Padmavathi Amma W/o.Krishnappa. There is no material placed before the trial Court to show that Ex.A.8-patta was set aside by the Revenue authorities or there was no evidence let in before the trial Corut either oral or documentary to show that Ex.A.8 was not a correct one. But the revenue authorities have issued Ex.A.8 patta in the name of four persons in stead of the plaintiffs alone. Ex.A.8 was produced by the first plaintiff. In the cross-examination P.W.1 would depose that the plaintiffs are in no way concerned with the property purchased by Padmavathi, the joint pattadar under Ex.A.8 alongwith the plaintiffs. Even though P.W.1 would depose in the cross-examination that Defendants have filed objection before the Sub-Collector in respect of the UDR patta granted in favour of others persons in respect of S.No.373, and even though P.W.1 would state that the plaintiffs are not concerned with the property in possession of Padmavathi Ex.A.8 cuts at the root of the case of the plaintiff to show that Padmavathi, D1, is also a joint-pattadar in respect of suit S.No.373/8 measuring 0.10.5 hectares = 26 = cents. Neither the trial Court nor the first appellate Court has considered Ex.A.8. As far as Ex.A.8 is in existence the plaintiffs cannot ask for a declaration of title in respect of 0.10.5 hectares ie., 26 = cents in S.No.373/8 claiming that they have derived title under Ex.A.7-partition deed in which Padmavathi, one of the joint-pattadar alongwith the plaintiffs under Ex.A.8 was not a party. The learned first appellate Judge on the basis of Ex.A.2 Commissioner’s plan and also on the basis of the observation made by the learned Advocate Commissioner in Ex.C.1 has held to the effect that in the 4 cents which has been earmarked as plot No.1, there was a bamboo gate in existence and as far as the plot No.2 measuring 7 cents is concerned there was a compound around the said plot No.2 put up with bamboo sticks and there were two gates on the eastern side as shown in Ex.C.2 and that the plaintiff No.2 has locked the gate with a lock and key and in the presence of the Advocate Commissioner, Plaintiff-2 had opened the said lock and in respect of plot No.3 measuring 5 cents there was no fence and only menure pits were found in the said area, which is identified as ” L, M, F, H” and in plot No.4, which was earmarked as ‘L, M, N, O’ in Ex.C.2 by the Commissioner measuring 4 cents, also there was a gate which was under the lock and key and the said lock was opened in the presence of the Commissioner by Plaintiff -3. So on the basis of the said observation in the Commissioner’s report Ex.C.2, the learned first appellate Judge has come to the conclusion that about 20 cents in plot No.1, 2, 3 & 4 marked in Ex.C.3-plan, the plaintiffs were in possession and accordingly, granted the relief asked for by the plaintiffs in the plaint, thereby allowed the appeal preferred by the plaintiffs in part. If the first appellate Judge would have considered Ex.A.8, then he would not have granted the said relief in respect of 20 cents on the basis of the observations made by the learned Advocate Commissioner in Ex.C.2 final report. As per Ex.A.8 UDR patta, certainly the first defendant Padmavathi was also entitled to a share in S.No.373/8 measuring 0.10.5 hectares, which is the plaint schedule property. While giving description to four boundaries to the plaint schedule property in the plaint, the plaintiffs have shown the eastern boundary as that of the land belonging to the first defendant and also Mangam Muniyamma’s house. As per Ex.C.3-plan east of the plaint S.No.373/8 on the eastern side lies the property in S.No.373/7, which belongs to Mangam Muniyamma. But in Ex.C.3 or in Ex.C.2, no where the Advocate Commissioner has stated that east of S.No.373/8 lies the property of the first defendant. But as per Ex.A.8, D1-Padmavathi is also entitled to a share in S.No.373/8 measuring 0.10.5 hectares. The plaintiffs in the plaint would state that updating survey for S.No.373 was conducted in the year 1985 and the suit land was sub-divided into S.No.373/8 with an extent of 30 cents and patta No.641 (Ex.A.8) was issued in their favour. Ex.A.8 shows that it was not only issued in favour of the plaintiffs, but also in favour of D1-Padmavathi. Under such circumstances, on the basis of Ex.A.7 the plaintiffs are not entitled to the declaration of the title or for grant of injunction in respect of the entire 0.10.5 hectares in S.No.373/8. Further the plaintiffs would allege in their plaint that they have taken steps to get the name of the first defendant deleted from the updating plaint patta (Ex.A.8) by preferring an appeal to the Sub-Collector, Hosur and the matter is still pending before the Sub-Collector. The learned counsel for the respondents / plaintiffs would state that the Sub-Collector has disposed of the said appeal preferred by the plaintiffs for deleting the name of the first defendant from Ex.A.8-patta. But in support of this contention there was no material placed either before the trial Court or before the first appellate Court. Under such circumstances, I find that the judgment of the learned first appellate Judge in decreeing the suit in part is liable to be interfered with. Substantial Question No.1 is answered accordingly.
9.Substantial Question of law No.2:- Even though the learned first appellate Judge has relied on Ex.C.2 & Ex.C.3 in decreeing the suit in respect of 20 cents, so far Ex.C.2 or Ex.C.3 are not set aside either by the trial Court or by the first appellate Court in spite of the objections filed by the defendants. But the first appellate Court without considering Ex.A.8-patta, which also stands in the name of the 1st defendant has decreed the suit in part, which is liable to be set aside. Substantial Question of law No.2 is answered accordingly.
10.In fine, the appeal is allowed and the decree and judgment of the learned first appellate Judge in A.S.No.1 of 1997 on the file fo the Court of Subordinate Judge, Hosur, is set aside and the matter is
A.C.ARUMUGAPERUMAL ADITYAN, J.
remanded to the lower appellate Court for fresh disposal in accordance with law. Both the parties are entitled to adduce furtehr evidence, particularly the plaintiffs have to produce the orders passed by the revenue authorities in respect of the deletion of the first defendant’s name from Ex.A.8 patta. The learned first appellate Judge is directed to dispose of the appeal within three months from the date of receipt of copy of this order.
06.09.2008
Index:yes/No
Internet:yes/No
ssv
To
1.The Subordinate Judge, Hosur.
2.The District Munsif, Hosur.
3.The Record Keepar,
V.R. Section, High Court,
Madras.
NOTE: Registry is directed to despatch
the records immediately.
S.A.No.224 of 1999