BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/01/2009 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN S.A.No.1011 of 2000 1. Kabulath Beevi (Deceased) 2. Idayadullah 3. Eassak 4. Inool Jariya 5. Jafer Nisha .. Appellants (Appellants 2 to 5 are brought on record as LRs of the deceased sole appellant vide order of the Court, dated 14.02.2008 made in M.P.No.1 of 2008 in S.A.No.1011 of 2000 by GRJ) vs 1. Muthathal 2. Raju 3. Samy 4. Panchavarnam 5. Kannan 6. Mani 7. Papammal .. Respondents Appeal filed under Section 100 C.P.C against the Judgment and Decree, dated 28.01.2000 made in A.S.No.181 of 1996 on the file of the Principal District Judge, Ramanathapuram, confirming the Judgment and Decree, dated 26.09.1996 made in O.S.No.111 of 1990 on the file of the Principal District Munsif, Ramanathapuram. !For Appellant ... Mr.P.Chenthurpandian ^For Respondents ... Mr.V.Sitharanjandas for R1 to R6 :JUDGMENT
This Second Appeal has been preferred against the Judgment and Decree,
dated 28.01.2000 made in A.S.No.181 of 1996 on the file of the Principal
District Judge, Ramanathapuram, confirming the Judgment and Decree, dated
26.09.1996 made in O.S.No.111 of 1990 on the file of the Principal District
Munsif, Ramanathapuram.
2. It is an admitted fact that the plaintiff had filed the suit, seeking
the relief of declaration of title and permanent injunction. The trial court,
considering the oral and documentary evidence and the arguments advanced by both
sides, decreed the suit as prayed for without costs. Aggrieved by which, the
defendant preferred appeal against the legal representatives of the plaintiff.
The first appellate court, by Judgment and Decree, dated 28.01.2000 confirmed
the Judgment and Decree passed by the trial court and dismissed the appeal.
Aggrieved by which, this Second Appeal has been preferred by the legal
representatives of the defendant.
3. It is not in dispute that the defendant in the suit had purchased 15
cents of land in S.No.241/10 in Valudoor Village, Ramanathapuram District,
Velipatnam Sub District. Ex.B.1 is the original sale deed executed by the
plaintiff in favour of the defendant Kabulath Beevi. As per the schedule of
property, the properties described in Patta No.1042 of the aforesaid village in
S.No.241/10, a total extent of 1 acre 47 cents on the western side, southern
portion has been purchased. In the document, specific four boundaries are given.
In the evidence both the parties have not disputed the aforesaid sale deed
executed by the plaintiff on 22.10.1981 in favour of the defendant. In the
plaint, the plaintiff, who was the vendor in Ex.B.1 has specifically stated that
the schedule of property which is in S.No.241/10, Valudoor Village consisting of
24 . cents, out of which, after deducting 15 cents, that had been sold in favour
of the defendant. However, he has stated the balance in his possession on the
northern side was 9 . cents, only the extent of the balance land stated as 9 .
cents by the plaintiff, is not admitted by the defendant.
4. As the plaintiff has filed the suit for declaration and injunction in
respect of the land, leaving the portion, that was sold by him in favour of the
defendant, under Ex.B.1, the trial court considering the admitted fact, by both
the parties, has decreed the suit as prayed for, which was confirmed by the
first appellate court. Aggrieved by which, this Second Appeal has been
preferred.
5. In this Second Appeal, the following Substantial Questions of Law have
been framed for consideration :
“1. Whether the Courts below are correct in holding that the plaintiffs have
title of 9 1/2 cents instead of 2 cents out of 24 1/2 cents in Survey No.241/10,
as per Ex.A.1, when there is no such recital in Ex.A.1 itself and it was
admitted by P.W.1 himself in his evidence ?
2. Whether the Courts below are correct in holding that the suit property
belong to the plaintiffs even though in Ex.C.4, Exs.B.12 to B.14, it appears
that only 2 cents are available, the sub division does not reflect the real
enjoyment of parties.
3. Whether the Courts below are correct in holding that there was no
evidence on record to show that the sub division was brought to be knowledge of
the deceased plaintiff while it was categorically admitted by P.W.1 in his
evidence ?”
6. Mr.P.Chenthurpandian, learned counsel appearing for the appellants,
legal representatives of the defendant, submitted that subsequently, the land
was sub-divided as S.No.241/10A and 10B. S.No.241/10A is only two cents of land,
as per Ex.C.4. As per the Commissioner’s plan, it was only an extent of 2 cents
and S.No.241/10B is the land sold in favour of the defendant, which is being
enjoyed by the appellant herein as legal representatives of the defendant.
7. Mr.V.Sitharanjandas, learned counsel appearing for R1 to R6 fairly
conceded that the appellants are entitled to claim 15 cents in view of Ex.B.1,
sale deed, executed in favour of the defendant, Kabulath Beevi by the plaintiff.
8. In the plaint, in paragraph number 5, the plaintiff has specifically
stated that though the land sold under Ex.B.1 is on the southern side, it was
brought to the notice that the patta is being given for the property on the
north and with regard to the same, he has raised objection before the Revenue
Divisional Officer, Ramanathapuram. Even in the cause of action, the plaintiff
has stated that instead of issuing patta for the land purchased by the defendant
under Ex.B.1, which is lying on the south, the other part of the land on the
north belongs to the plaintiff, patta was wrongly given. However, there is no
supporting document available to show that the patta was issued wrongly for the
land available on the North in S.No.241/10 of the land.
9. The learned counsel appearing for the appellants submitted that by
filing the suit and getting a decree, the respondents are claiming 9 . cents of
land on the North, though they are entitled only to 2 cents of land. Per contra,
the learned counsel appearing for the respondents submitted that as per the sale
deed, Ex.B.1, copy of which has been marked as Ex.A.1, the appellants are
entitled to 15 cents of land on the southern side and therefore, they need not
bother about the balance of land, which is being enjoyed by the respondents,
legal representatives of the vendor of the defendant, so far as the property
sold under Ex.B.1 is concerned. Admittedly, the appellants are the legal
representatives of the defendant, who was only the purchaser of a portion of the
property, under Ex.B.1 and the respondents are the legal representatives of the
vendor, who was the original owner of the property.
10. It is not in dispute that the appellants can claim right only for an
extent 15 cents of land, as specified in the sale deed, Ex.B.1, which is on the
southern side with specific boundaries, as per the sale deed. In the schedule of
property of the plaint itself, the plaintiff had specifically stated that he was
seeking the relief in the land, leaving the 15 cents of land sold in favour of
the defendant and therefore, there is no legal grievance available to the
defendant or her legal representatives, the appellants herein. In such
circumstances, I am of the view that there is no error committed by the courts
below in the concurrent finding.
11. Admittedly, the appellants are entitled to claim right only for the 15
cents of land sold, as per the sale deed, Ex.B.1 and therefore, the first
substantial question of law is no way relevant to be decided, whether vendor had
balance of 2 cents or 9 . cents. Similarly, the second substantial question of
law is, as per Ex.C.4 and Exs.B.12 to B.14, the available land on the North
could be two cents and hence, the court below could not have decreed the suit.
12. It is clear that the appellants have not claimed title, by way of
adverse possession, therefore, the claim is based on the sale deed, Ex.B.1,
which is not in dispute. Since the respondents have admitted that the appellants
are entitled to 15 cents of land in S.No.241/10B, as per the sale deed, Ex.B.1,
the second substantial questions of law already framed has no significance in
the second appeal to be decided. The only substantial question is whether the
concurrent finding of the courts below is perverse, in respect of granting
declaration and injunction in favour of the respondents.
13. When the finding is against the evidence or without evidence, that can
be said to be a perverse finding. In the instant case, it has been clearly
admitted by both the parties that the defendant had purchased 15 cents of land
in S.No.241/10 on the southern side and for the balance on the north only, the
plaintiff was the owner. The prayer sought for in the plaint is relief of
declaration and consequential injunction, only for the land in S.No.241/10,
leaving 15 cents of land already sold to the defendant under Ex.B.1 and
therefore, the concurrent finding is based on the admitted facts and the
evidence available on record. Therefore, the finding cannot be construed as
perverse finding and accordingly, the third substantial question of law is
answered. Therefore, I am of the view that there is no illegality or
irregularity in the impugned Judgment to be interfered with by this Court in
this Second Appeal, accordingly, the Second Appeal fails.
14. In the result, confirming the Judgment and Decree of the courts below,
this Second Appeal is dismissed. However, there is no order as to costs.
tsvn
To
1. The Principal District Judge
Ramanathapuram.
2. The Principal District Munsif
Ramanathapuram.