IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27/09/2002
CORAM
THE HONOURABLE MR. JUSTICE P.SHANMUGAM
Second Appeal No.1307 of 2002
1. Karuthapandi
2. Kanagaraj
3. Minor Tirupathi
4. Valliammal
(3rd appellant rep. by
mother and guardian the
4th appellant) .. Appellants
-Vs-
1. Ramasubbu Naicker
2. Karuppiah .. Respondents
Second Appeal against the judgment and decree rendered by the
Subordinate Judge, Sankaran Koil in A.S.No.17 of 2000 dated 24.8.2001
confirming the judgment and decree of the learned Additional District Munsif,
Sankarankoil passed in O.S.No.480 of 1990 dated 28.10.1997.
!For Appellants : Mr.K.Srinivasan
^For Respondents: ---
:ORDER
The defendants in the suit for permanent injunction are the
appellants herein. The plaintiff filed a suit on the basis of the Court
auction purchase under Ex.B4 dated 23.6.1989, claiming that he had been in
possession of the same ever since and that the appellants should not interfere
with his enjoyment of the property. Both the Courts below found that the
plaintiff has obtained a decree against one Karuppiah and in execution of the
decree, with permission of the Court, he purchased the property in Court
auction and that Karuppiah is the absolute owner of the property and also that
the said sale has become final and therefore, granted a decree of permanent
injunction.
2. The contention of the appellants is that the property was
their ancestral property and therefore, they are entitled to share was found
against them. In both the courts below, no document in reference to this
claim has been filed by the appellants. Hence, the substantial question of
law raised by the appellants viz., failure to consider the evidence and
documents Exs.A3 and A5 does not arise. There cannot be a substantial
question of law on the basis of Ex.A6 patta proceedings since they are not
documents of title. The oral evide nce before the courts below was found in
support of the claim that the plaintiff is entitled for the decree on the
basis of the court auction purchase. The plaintiff after purchase by Court
sale Ex.A-4, has obtained transfer of name and was found in actual possession
ever since.
3. The second question as to the burden of proof on
possession does not arise since admittedly the plaintiff is the Court auction
purchaser as per Exs.A4 and A5. It is for the appellants/defendants to prove
that the property is the ancestral property and that the decree was not given
effect, and non est, which they have failed to establish. Hence, no
substantial question of law arise in the second appeal. Hence it is
dismissed. Consequently, C.M.P. No.10906 of 2002 is also dismissed.
27.09.2002
Index:Yes
Internet: Yes
raa
To
1. The Sub Judge, Sankarankoil
2. The Additional District Munsif, Sankarankoil.