SHANMUGAM, vs CHNDRASEAKRAN

SA No. 125 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27-07-2026
PRONOUNCED ON : 11-11-2026
CORAM
THE HON'BLE MR.JUSTICE V. LAKSHMINARAYANAN
SA No. 125 of 2018
CNR:{HCMA010140302018}
AND
CMP NO. 2784 OF 2018
1. Shanmugam,
S/o Murugeasan,
2. Karunakaran
S/o Kanjamalai
3. Pandian
S/o Chockalingam
4. Ganesan (died)
5. Palanivel
S/o Subramanian
(All Are Residing At East Street,
Allivillagam Village,
Sirkali Taluk
Nagapattianm District.)
6. Sarathambal
S/o.Late Ganesan
7. Narayanan
S/o.Late Ganesan
8. Seetha
D/o.Late Ganesan
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SA No. 125 of 2018
9. Lakshmi
D/o.Late Ganesan
(A4 died, A6 to A9 are brought on record as LRs
of the deceased A4 vide court order dated
20.08.2024 made in CMP.Nos.18140, 18139,
18141 of 2024 in S.No.125/2018 (RSVJ))
..Appellants
Vs
Chndrasekaran
S/o Raman,East Street,
Allivillagam Village,
Sirkali Taluk
Nagapattinam District.
..Respondent
To set aside the judgement and decree passed in AS.No.20 of 2017 dated
07/10/2017 on the file of the court Addl. Subordinate judge, Mayiladuthurai in
confirming the judgement and decree passed in OS.No.321 of 2004 dated
04/02/2017 on the file of the court of District Munsif, Sirkali.
For Appellants : Mr.A.Muthukumar
For Respondent : Mr.B.Jawahar
Judgment
The defendants are the appellants.
2. For the sake of convenience, the parties shall be referred to as per their
ranks in the suit.
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SA No. 125 of 2018
3. The plaintiff presented O.S.No.321 of 2004 on the file of the District
Munsif Court at Sirkali seeking permanent injunction. His claim was that he had
purchased the suit schedule mentioned property on 06.06.2000 from one
Kalimuthu Ammal and her son, Nagarajan. There was a minor mistake in the
boundary to the property. Hence, the vendor and vendee got a rectification deed
executed on 16.09.2004. He claimed that the defendants were attempting to
interfere with his possession. Therefore, he came forward with the suit.
4. According to the plaintiff, his vendors were the beneficiaries of the
settlement deed dated 04.04.1953. The settlors claimed the property through one
Mottai Padaiyatchi, who had purchased the same by way of a document dated
26.10.1928.
5. Summons were served on the defendants. The defendants filed a
written statement denying the title of the plaintiff. According to them, on the
basis of the partition deed dated 27.11.1947, the suit schedule mentioned
property fell to the share of their grandfather, one Narayanasamy and his five
sons, namely, Veerasamy, Subbu, Thiruvengadam, Chockalingam and
Arumugam. Subsequently, the sons of Veerasamy, Chockalingam and
Thiruvengadam entered into a partition deed on 10.08.1976 and the properties
fell to the share of the defendants. They claimed that they also had patta to the
suit property and therefore, the plaintiff is not entitled to the relief of injunction.
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6. The learned District Munsif, who tried the suit, decreed it as prayed for
on 16.06.2008. Aggrieved by the same, the defendants preferred a regular
appeal in A.S.No.70 of 2008 to the file of the learned Additional Subordinate
Judge at Mayiladuthurai. In and by way of a judgment dated 06.11.2008, the
regular appeal came to be dismissed.
7. Aggrieved by the same, the defendants preferred a second appeal to
this Court in S.A.No.678 of 2009. By way of judgment dated 02.11.2015, this
court came to a conclusion that as the defendants have questioned the title of the
plaintiff to an extent of 4 cents, the appropriate remedy for the plaintiff is to
seek for declaration of title. As the plaintiff had failed to do so, this court came
to a conclusion that the suit for permanent injunction is not maintainable
without a prayer for declaration of title. The substantial question of law was
answered in favour of the defendants. Instead of pushing the parties for separate
litigation, this court deemed it appropriate to remit the matter to the trial court to
enable the plaintiff to amend the suit seeking declaration of title along with the
relief of permanent injunction. Consequently, the judgment and decree of the
courts below were set aside. The plaintiff was permitted to amend the suit to
include the prayer for declaration of title. The trial court was directed to receive
the additional written statement from the defendants and to frame additional
issues and to permit additional evidences, if any and dispose of the suit.
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8. Post the remand, the plaintiff filed an application to amend the plaint
seeking declaration of title. This was in I.A.No.189 of 2016. This application
was opposed by the defendants. By an order dated 13.06.2016, the learned Trial
Judge allowed the amendment application. He received the additional
statements from the parties. Thereafter, the learned Trial Judge framed the
following issues:
“ 1.tof;F jhf;fy; nra;jnghOJ thjp jhth nrhj;jpd;
mDgtj;jpy; ,Ue;jhuh?
2. thjp tof;fpy; NfhhpAs;sthW epue;ju
cWj;Jf;fl;lisg; ghpfhuk; ngwj;jf;ftuh?
On 27.07.2016, the learned Trial Judge framed the following additional
issues:
“ 1.thjp tof;fpy; NfhhpAs;sthW jhth nrhj;Jf;F
thjp chpikahsh; vd;W tpsk;gy; ghpfhuk;
ngwj;jf;ftuh?
2. NtW vd;d ghpfhuk; jug;gpdh;fSf;F
fpilf;fj;jf;fJ? ”
On 20.09.2016, the learned Trial Judge framed the following additional
issues:
“ 3.vjphpil mDgtk; %yk; jhth nrhj;jpd; chpik
%yj;ij gpujpthjpfs; mile;Js;shh;fsh?
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SA No. 125 of 2018
4. thjp ,t;tof;if rhpahdgb kjpg;gPL
nra;Js;shuh? ”
On 06.01.2017, the learned Trial Judge framed the following additional issue:
“ 5.epue;ju cWj;Jf;fl;lis ghpfhuk;
Vw;fdNt ,Uf;fpd;w epiyapy; tpsk;Gif ghpfhuk;
NfhhpAs;sJ fhytiuaiwahy; ghjpf;fg;gl;Ls;sjh? ”
9. On the side of the plaintiff, he examined himself as PW1 and three
other witnesses as PW2 to PW4. On the side of the plaintiff, they marked Ex.A1
to Ex.A16. On the side of the defendants, the second defendant examined
himself as DW1 and also examined three other witnesses as DW2 to DW4. On
the side of the defendants, Ex.B1 to Ex.B16 were marked.
10. On consideration of the oral and documentary evidences, the learned
Trial Judge came to a conclusion that the suit for declaration of title is not
barred by limitation. The plaintiff’s title document precedes the title document
of the defendants and therefore, decreed the suit as prayed for.
11. Aggrieved by the same, the defendants preferred an appeal in
A.S.No.20 of 2017 to the file of the learned Additional Subordinate Judge at
Mayiladuthurai. He also received the additional document let in by the
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SA No. 125 of 2018
defendants. He concurred with the views of the learned Trial Judge and
dismissed the appeal.
12. Aggrieved by the same, the present second appeal.
13. This second appeal was admitted on the following substantial
questions of law on 19.02.2018:
“a) Whether the cause of action for the relief of
declaration arose when the defendants denied the plaintiff’s
title and set up title in them in their written statement filed
in 2004, whether the relief of declaration sought for after 12
years is not barred by limitation?
b) When the recitals in Ex.A14, the plaintiff’s parent title
deed, show that the executant had not title on that date as
no sale certificate was issued to him, whether the courts
below erred in law in ignoring the same by holding that the
plaintiff’s predecessor in interest had derived title under it?
c) Whether the Court auction purchaser gets title to the
property when no sale certificate was issued to him?
d) Whether the Courts below erred in law in holding that
the plaintiff has title to the suit property when Ex.B1 cannot
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SA No. 125 of 2018
be brushed aside and in the absence of sale certificate and
delivery accounts for Ex.A14?
e) When the defendants have produced Ex.B2 to Ex.B7
and Ex.B9 to Ex.B13, whether the Courts below erred in
law in ignoring the same.?”
14. I heard Mr.A.Muthukumar for the appellants and Mr.B.Jawahar for
the respondent.
15. After narrating the facts, Mr.A.Muthukumar urged that the plaintiff
relies upon a sale certificate which had not been produced before the court.
Consequently, he urged that this court must to come to a conclusion that
possession had not been taken in the execution proceedings. He added that no
revenue records stand in the name of the plaintiff and his predecessors and this
creates a serious doubt over the validity of the title document produced by the
plaintiff. He urged that unless and until the sale confirmation order is produced,
all the documents, on the basis of which the plaintiff claims, would have to go.
16. Mr.A.Muthukumar further points out that the defendants have
produced a partition deed whereunder the suit schedule mentioned property has
been shown in the schedule to the deed. He urged that this court should come to
the conclusion that the said property would not have been included in the
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partition deed if the defendants had not been in the possession thereof. He
invited my attention to Ex.B12, patta, to point out that it stands in the name of
the defendants 1 and 3.
17. Inviting my attention to the first substantial question of law,
Mr.A.Muthukumar pointed out that when the defendants had filed a written
statement as early as December 2004 denying the title of the plaintiff, the
amendment for declaration of title in the year 2016 is hopelessly barred by
limitation. He argues that no court can extend limitation. The scope of the order
passed in S.A.No.678 of 2009 was only permitting the plaintiff to amend the
plaint and since the claim was already barred by limitation, the plaintiff cannot
rely upon the same.
18. Mr.A.Muthukumar relies upon Section 105 of the Code of Civil
Procedure (hereinafter referred to as “CPC) to argue that he need not prefer an
appeal against the order allowing amendment in I.A.No.189 of 2016 and that he
can always urge the invalidity of the said order while preferring an appeal
against the decree. Relying upon the judgment of the Supreme Court in
Corporation of Madras and Another v. M.Parthasarathy and Others, (2018) 8
MLJ 208 (SC) , he argues that the learned Appellate Judge, having allowed the
application under Order XLI Rule 27, should have remanded the matter for
fresh disposal and failure to do so would vitiate the judgment. Hence, he urges
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that the substantial questions of law be answered in his favour and the appeal be
allowed. In support of his contention, he cites the following judgments:
(i) Pattam Khader Khan v. Pattam Sardar Khan, (1996) 5 SCC 48 ; and
(ii) United Finance Corpn. v. M.S.M. Haneefa, 2017 (2) CTC 223 (SC) ;
19. Per contra, Mr.B.Jawahar argues that the plaintiff has proved the title
to the properties right from 1928 till the date of presentation of the plaint.
Therefore, there is no question of interference by this court in second appeal. He
urges that all the factual aspects have been properly appreciated by the courts
below and no substantial questions of law, as urged by the appellants, arise for
the consideration.
20. Turning to the documents filed by the defendants, he points out the
discrepancies in the extent in each of the documents. He points out that the
boundaries in the documents also do not tally and therefore, the plea that
boundaries will prevail over extent cannot be pressed into service in this
particular case. He adds that under Ex.B1, it is claimed that the predecessors of
the defendants had purchased the property but the title deed had not been
produced.
21. Inviting my attention to the grounds of appeal before the lower
appellate court in A.S.No.20 of 2017 as well as the grounds of appeal in this
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second appeal, Mr.B.Jawahar points out that there are no grounds challenging
the order allowing the amendment. Therefore, he urges Section 105 does not
apply. Insofar as the plea of the suit being barred by limitation, he argues that
the plea of doctrine of relation back applies and by virtue of the amendment
being allowed by the court on 13.06.2016, the relief of declaration of title
relates back to the date of presentation of the plaint in October 2004 and
therefore, the suit is in time. He rejects the reliance placed upon Ex.B12, stating
that it is a mere revenue document and argues as to how 11 cents of land is
found therein, when there are no title deeds of the defendants to claim the said
extent. He submits that, being a suit with respect to the vacant land, possession
follows title. He states that this appeal is without merits and that the judgment
and decree of the courts below are unimpeachable and that the appeal be
dismissed.
22. By way of response, Mr.A.Muthukumar urges that as he has raised
the plea of limitation, that takes care of the challenge to amendment also.
23. I have carefully considered the submissions made on either side. I
have gone through the records.
24. Let me give the gist of the case of the plaintiff and the defendants.
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25. According to the plaintiff, the suit property was the subject matter of
sale in SC.1296/1926 on the file of the Sub Court, at Mayiladuthurai. One
Sabapathy Pillai participated in the court auction. He was the successful auction
purchaser. The said Sabapathy Pillai executed a sale deed in favour of one
Mottai Padayatchi on 26.10.1928. Mottai Padayatchi and his brother, Pavadai
Padayatchi entered into a document of release on 04.01.1951. The suit property
was released in favour of the Mottai Padayatchi. The sons of Mottai Padayatchi,
namely Somasekaran and Muthusamy, executed a deed of settlement giving life
estate to their mother, Pottu Ammal and their sister, Kalimuthu Ammal, with
the absolute estate vesting in the name of Nagarajan, the son of Kalimuthu
Ammal. This document was executed on 04.04.1953. Kalimuthu Ammal
accelerated her life interest and joined Nagarajan and executed a sale deed in
favour of the plaintiff on 06.06.2000. As the boundaries were not properly set
forth, a rectification deed was executed on 16.09.2004. The plaintiff claimed
that as the defendants attempted to interfere with the possession, he came forth
with the suit for permanent injunction. As pointed out earlier, he succeeded in
both the courts below but lost before this court in S.A.No.678 of 2009, albeit
with a liberty to amend the plaint into one for declaration of title.
26. It is the defendants’ case that the defendants’ grandfather
Narayanasamy Padayatchi and his five sons and other family members entered
into a deed of partition on 27.11.1947. The suit schedule mentioned property
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was allotted in favour of the branch of Narayanasamy Padayatchi. Thereafter,
by way of another document under Ex.B13 dated 10.08.1976, the property fell
to the share of Pandiyan. Pandiyan was in possession and enjoyment of the
property. They also claimed that they had mutated the revenue documents in
their favour and are in possession of the same.
27. Being a suit for declaration of title, the issue would have to be
decided by preponderance of probabilities. Before moving forward, I would like
to recollect the principles of preponderance of probabilities that applies to civil
proceedings. The principles are set forth hereunder:
(i) The requirement is which event or fact pleaded by a party is more
likely to be true than the other. It refers to a greater likelihood of one event or
fact over another.
(ii) The fact is considered proven when the evidence establishes that its
occurrence is more likely than not.
(iii) It is a test whereunder the court weighs evidence so as to see which
side presents a more probable case.
(iv) In civil disputes, the plaintiff, bearing the burden of proof, needs to
demonstrate before the court that his version is more plausible than that of the
defendants.
(v) It is the duty of the court in such cases, to evaluate the conflicting
probabilities and finally, choose the most probable scenario.
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28. Let me consider each and every point that has been raised by the
learned counsel.
29. If I agree with the plea of limitation, then the necessity to go into the
other pleas does not arise. Therefore, let me first consider the scope of Section
105 of CPC and the doctrine of relation back.
30. Section 105 of CPC holds that it is not necessary for a party to
challenge every single interlocutory order by way of a revision or an appeal.
The party, who is aggrieved by a decree, is entitled to challenge the
interlocutory order passed by the trial court, while preferring an appeal against
the decree, pointing out the error, defect or irregularity in the interlocutory order
as a ground of objection in the memorandum of appeal. The purpose of Section
105(1) is to prevent piecemeal revisions and appeals and thereby ensure that the
trial court proceeds without any interruption or delay. Section 105 directs that,
unless and until the CPC permits an order to be appealed, as found under
Section 104 or Order XLIII Rule 1, no independent appeal lies against an
interlocutory order. This basically reiterates the settled principles of civil law
that an appeal is a creature of the statute and there is no inherent right for a
party to prefer an appeal or an inherent right in a court to entertain an appeal.
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31. In case, an interlocutory order is passed and a party do not prefer an
appeal earlier against the said order, the Code provides a remedy even in such
situations. It holds that once a decree is passed, an aggrieved person can
challenge the interlocutory order by including it as a ground of objection in the
memorandum of appeal. Not every interlocutory order is capable of being
challenged under Section 105(1) of CPC. Error, defect or irregularity in the
interlocutory order must be of such a nature that it would be directly influence
the merits of the decree. A few examples are amendment of pleadings, belated
admission or rejection of a document or improper admission of additional
evidence. Purely procedural orders, such as granting or refusal of adjournment,
would not fall under the said category.
32. The exception to this rule is Section 105(2). This carves out an
exception to Section 105 (1). If an appellate court was to remand the matter to
the trial court for fresh disposal, and the party does not appeal against the order
of remission, then he or she is precluded from disputing the correctness of the
remand order in an appeal filed against the decree. As the amendment in this
case falls under the category specified under Section 105(1), it would have
certainly been open to the appellants to challenge the validity of the
amendment, while preferring an appeal to the learned Additional Subordinate
Judge, Mayiladuthurai.
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33. I have gone through the grounds of appeal in A.S.No.20 of 2017 as
well as the grounds of appeal in this second appeal. Nowhere have the
appellants challenged the validity of the order passed in I.A.No.189 of 2016
dated 13.06.2016 as a ground of objection. Unless and until the requirement of
Section 105(1) is specifically complied with, it is not open to
Mr.A.Muthukumar to argue that the order passed in an interlocutory application
ought to be interfered with while preferring an appeal against the decree. This is
because, the very Section that he relies upon demands that the error, defect or
irregularity in the order should be set forth as ground of objection in the
memorandum of appeal. The reason is not too far to see. When an appeal is
preferred against the decree and summons were served on the respondents, a
copy of the grounds are annexed along with the summons. If no objection is set
forth, the respondents would be under the impression that the appellants are not
challenging the validity of the interlocutory order so passed.
34. The provision under Section 105(1) of CPC is not a “hide and seek”
provision for the appellants to surprise their opponent by raising the plea which
had not been raised earlier at all. Therefore, the attempt of Mr.Muthukumar to
raise a plea invoking Section 105(1) is rejected.
35. Furthermore, the permission to file an amendment application was
granted by this court in SA.No.678 of 2009 dated 02.11.2015. In paragraphs 11
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and 12 of the said order, this court had specifically granted liberty to the
plaintiff to amend the plaint. The defendants did not challenge the liberty
granted by this Court before the Supreme Court. The learned Trial Judge, being
bound by an order passed by this court, granted the said relief of amendment.
36.This takes us to the plea of doctrine of relation back while dealing
with the amendment of pleadings. In simple terms, doctrine of relation back
means, when a court allows a party to amend the pleadings, the amendment is
treated as if it was filed on the date the plaint was originally presented rather
than the date on which the application for amendment came to be allowed. This
doctrine creates a legal fiction that the amendment to the pleadings act
retrospectively from the date of presentation of the pleadings, be it with the
plaint or the written statement. The purpose of this doctrine is to protect the
parties from the law of limitation.
37. If a suit had been originally presented within the period fixed for
limitation under the Limitation Act, the subsequent amendment should not be
thrown out for being time barred, even after the original period of limitation had
expired. This position of law has been explained by the Supreme Court in
Sampath Kumar v. Ayyakannu and Another, 2002 INSC 386 . The Supreme
Court pointed out that an amendment once incorporated relates back to the date
of the suit. It declared that it is open to the court allowing the amendment, in
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appropriate cases, to pass an order that the amendment will not relate back to
the date of the suit but to the extent permitted by it, by holding that the
application for amendment would apply only on the date on which the
application seeking amendment was filed. (Also see, Siddalingamma v.
Mamtha Shenoy, (2001) 8 SCC 561 ).
38. A perusal of the order passed by the trial court in I.A.No.189 of 2016
on 13.06.2016 indicates that the trial court permitted the amendment simpliciter.
It did not hold that the amendment will operate only from the date of filing of
the application. That being the situation, by applying the doctrine of relation
back, this court has to conclude that the amendment seeking declaration of title
relates back to the date of presentation of the plaint namely 04.10.2004 and not
as urged by Mr.A.Muthukumar that it should be made applicable only from
13.06.2016. If the defendants were aggrieved by the said order, they should
have either challenged it by way of a revision or as argued by Mr.B.Jawahar
should have set it forth as a ground of objection in the grounds of appeal. Not
having done that and having participated in the trial proceedings as well as in
the regular appeal, it will be travesty of justice to permit Mr.A.Muthukumar to
take up this plea at the second appellate stage.
39. I now turn to the argument of Mr.A.Muthukumar that raising a plea
that the suit is barred by limitation implies that he is challenging the amendment
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also. Yet again, I am not in a position to countenance the said argument. This is
for the reason that if the suit for declaration of title has been filed in the year
2004 and if it was so barred on that date, the suit would have to be dismissed as
barred by limitation. With the plaintiff having purchased the property in the
year 2000 and his possession having been interfered of in the year 2004, the
cause of action for him to approach the court arose only then. Therefore, the
presentation of the suit in October 2004 cannot be held to be barred by time.
40. Even keeping aside the rectification deed dated 16.09.2004 that has
been projected by the plaintiff, Ex.A1 had come into force on 06.06.2000 and
the suit filed on 04.10.2004 cannot be said to be beyond the period of 12 years,
the essential period for it to be held as barred by time. It is not necessary that
the plaintiff has to approach the court everyday to get a declaration. He needs to
do so only when there is a cause of action. The plaintiff alleges that the
defendants attempted to interfere with his possession on 17.08.2004 and
presented the suit soon thereafter. Hence, I am not in a position to conclude that
the suit is barred, by limitation.
41. Let me now turn to the next aspect.
42. The earliest title deed of the plaintiff is a registered document under
Ex.A14 dated 26.10.1928. Under the said document, one Sabapathy Pillai, who
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had purchased several items of the property in a court auction sale in
SC.1296/1926 on the file of the Subordinate Court at Mayavaram (presently,
known as Mayiladuthurai), alienated the same by way of a registered sale deed
in favour of one Mottai Padayatchi. The suit schedule mentioned property is
found in item No.4 of the sale deed.
43. It is the plea of Mr.Muthukumar that no sale certificate had been
issued to Sabapathy Pillai. Conceding to such an argument would be unfair. The
very unfairness of this argument is to expect a party to produce a document
which has come into effect nearly 100 years before in the present proceedings.
It would not have been in the imagination of either vendor or the purchaser
when they entered into a transaction on 26.10.1928 that 98 years later, a
stranger to the said transaction would demand the production of the sale
certificate. I do not want to rest my reasoning only on this aspect.
44. The hollowness in the argument of Mr.Muthukumar would be
immediately evident. He urges that, on the basis of the following statement,
there is an indicator that the sale certificate had not been issued to the vendor
Sabapathy Pillai. The words he relies upon are as follows:
“ ,jw;F Mjuthf Nfhh;l;L Vy rh;btpf;fl;
”
cd; rpytpd; Nghpy; ehd;thq;fpf;nfhLj;JtpLNtd;.
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A reading of this gives an impression that a sale certificate had in fact been
issued by the court but Sabapathy Pillai would have to get a copy of the same on
the expenses being incurred by the purchaser, Mottai Padayatchi. Nowhere the
document states that Sabapathy Pillai was not declared as a successful auction
purchaser. It merely states that the document is subject to a mortgage that had
been created in favour of one Rajagopalasami on 28.04.1918.
45. While the plaintiff had not produced the document dated 28.04.1918,
the defendants had taken efforts to produce the same before the court. This is
under Ex.B14. Ex.B14 produced by the defendants vouchsafe that one
Sivavadivelu Poosi, for the loans obtained by him, had executed a mortgage on
28.04.1918. Ex.B14 shows that several properties had been mortgaged under the
said document and the property situated in S.No.63/1 was one amongst them.
46. It is clear from Ex.A15 that Mottai Padayatchi and his brother,
Pavadai Padayatchi entered into a release deed on 04.01.1951, whereunder
Pavadai Padayatchi had released the suit property in favour of his brother. Soon
thereafter, under Ex.A2 dated 04.04.1953, the sons of Mottai Padayatchi
namely, Somasundaram and Muthusamy Padayatchi, settled the property in the
names of their mother, Pottu Ammal, their sister, Kalimuthu Ammal and
nephew, Nagarajan. Ex.A2 makes it clear that the life estate would be enjoyed
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by Pottu Ammal and Kalimuthu Ammal with the vested reminder in favour of
Nagarajan.
47. The next registered document after 04.04.1953 is the sale deed
executed in favour of the plaintiff on 06.06.2000. There is an evidence on
record to point out that the plaintiff, Chandrasekaran is a neighbour of his
vendors, namely, Nagarajan and Kalimuthu Ammal. Similarly, the defendants
also are the neighbours of the vendors.
48. This court is able to see a continuous chain of documents running for
more than 75 years in the family of Mottai Padayatchi, the descendants of
whom are the vendors of the plaintiff. As pointed out above, as this court has to
balance the probabilities in the case of the plaintiff and the defendants, let me
now turn to the documents projected by the defendants.
49. Ex.B1 is the document on which the defendants rely upon. This is a
partition deed entered between the family of Narayanasamy Padayatchi and his
sibling, Kumara Padayatchi. Insofar as the suit survey number is concerned, the
extent mentioned therein is 6 cents. According to the defendants, this property
was again dealt within their family under Ex.B13, namely, the partition deed
entered into by the legal heirs of Narayanasamy Padayatchi on 10.08.1976. In
the said document, the extent of property goes down to 4 cents.
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Mr.A.Muthukumar has been kind enough to produce the document produced by
the defendants before the lower appellate court. This does not, in my view,
assist the defendants for a simple reason that even as per the document, the
extent concerned with was only 3 cents.
50. I am in agreement with Mr.B.Jawahar that the defendants have
miserably failed to explain how from 3 cents from the document produced
before the lower appellate court, the share of the defendants increased to 6 cents
and thereafter, was reduced to 4 cents. Yet again, a perusal of Ex.B1 indicates
that the property, which was divided in 1947, had been purchased by
Narayanasamy Padayatchi. When the grandfather is said to have purchased a
property, it is the duty of the defendants to produce the said document before
the court. Unfortunately, the defendants have not produced the same. There are
no title deeds, either for Narayanasamy Padayatchi or his father, Muruga
Padayatchi, produced during the course of the proceedings in order to defeat the
claim of the plaintiff.
51. Furthermore, as rightly contended by Mr.B.Jawahar, the schedule of
property given under Ex.B13 does not tally with the rough sketch produced by
the defendants themselves, which is enclosed in page 23 of the typed set of
papers. If this court has to apply the principle of preponderance of probabilities,
on one hand this court has Ex.A14, Ex.A15, Ex.A2 and Ex.A1 showing that the
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plaintiff and his vendors have been in possession of 11 cents throughout and on
the other hand, this court has Ex.B1 and Ex.B13 and the document produced
before the lower appellate court showing varying extents thereby, casting a huge
doubt over the documents produced by the defendants.
52. I should now turn to the argument of Mr.A.Muthukumar that the
revenue document produced by the defendants indicates that they are in
possession of the property and therefore, at least the relief of permanent
injunction should not be granted in favour of the plaintiff. The above discussion
indicates that at no point of time, the defendants were in enjoyment of 11 cents.
Ex.B12 is a patta in which the names of the first and third defendants are found.
It is a joint patta. It has been granted for the entire 11 cents of the property.
When the title deeds of the defendants do not indicate that they have ever been
in possession of 11 cents of property, either in 1929, 1947, or 1976, it is beyond
one’s understanding as to how the defendants were able to secure a patta for an
extent more than the extent found in the registered documents. There is
absolutely no link between the documents produced by the defendants and the
revenue document. When all the other registered documents are all of a lesser
extent, it is surprising that the revenue department had parted with a certificate
that the defendants are in occupation of 11 cents.
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53. I merely have to recollect the principles settled by the Supreme Court
that mutation or inclusion of a name in a revenue record does not confer or take
away the title vested in a person (See, Prahlad Pradhan v. Sonu Kumhar,
(2019) 10 SCC 259 ). They merely reflect the person from whom the Revenue
Department is entitled to collect the dues of the State.
54. I now turn to the authorities cited by Mr.A.Muthukumar.
55. The first of the judgments relied upon by Mr.A.Muthukumar is
Pattam Khader Khan ’s case. The case arose under the following circumstances:
(i) One Pattam Rasool brought forth a suit for partition and separate
possession with respect to the property situated at Nellore. The preliminary
decree was passed on 07.01.1977. During the course of final decree
proceedings, an Advocate Commissioner, who visited the suit property,
submitted a report that the property is incapable of division. Consequently, the
final decree court ordered sale of property by way of a public auction. In the
auction held on 07.08.1984, Pattam Sardar Khan, the son of the plaintiff,
participated in the same and was successful. On 07.08.1984, the sale was
confirmed. A sale certificate was issued on 09.11.1989. Immediately, Pattam
Sardar Khan filed an application for delivery of possession.
(ii) The appellant before the Supreme Court, Pattam Khader Khan
objected that the application under Order XXI Rule 95 of the Code of Civil
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Procedure is barred by limitation as it had not been filed within one year from
the date of confirmation of the sale. The executing court sustained the objection.
Consequently, Pattam Sardar Khan preferred a revision to the High Court of
Andhra Pradesh. The High Court allowed the revision and held that the
application was in time. Aggrieved by the same, civil appeals were filed before
the Supreme Court.
(iii) The issue that the Supreme Court was called upon to decide was
whether an application under Order XXI Rule 95 of the Code should be filed
only when the sale certificate is issued or within one year from the date of
confirmation of the sale. The Supreme Court held that the issuance of sale
certificate is a ministerial act that evidences the already perfected title. Sale
certificate neither creates title nor affects the timeline fixed under Article 134.
In terms of the said Article, an application under Order XXI Rule 95 has to be
filed within one year when the sale becomes absolute and allowing limitation to
run from the date of sale certificate would undermine the legislative intent.
Consequently, the appeals were allowed and the application filed under Order
XXI Rule 95 was held barred by time.
56. This judgment is a precedent for the proposition that the limitation for
filing an application under Order XXI Rule 95 of the Code starts when the sale
is confirmed and made absolute and not from the date the sale certificate is
issued. It is also an authority for the proposition that a sale certificate is only a
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ministerial act and the sale gets confirmed on the occurring of events under
Order XXI Rule 92.
57. The reliance upon this judgment by Mr.A.Muthukumar for the
purpose of urging that, as the sale certificate on the basis of which Ex.A14 was
executed not having been produced, the sale itself cannot be treated as valid, is
entirely misconceived. Ex.A14 records that the sale had been held and that sale
certificate will be procured and given later. When the Supreme Court has held
that sale certificate is not a judicial act but a ministerial act, to argue that the
lack of production of the sale certificate vitiates the title of the auction
purchaser is a misreading of the said judgment.

58. To the same effect is the second judgment relied upon in Haneefa ’s
case. In that case too, an application was filed under Order XXI Rule 95 of the
Code after a period of one year from the date of confirmation of sale. The court
held that as the sale had not been made absolute till the proceedings challenging
the auction sale had concluded, the application for delivery of possession filed
on 30.08.2003, after the revision had been disposed of on 09.07.2003, was in
time. For this judgment too, the reason stated for the inapplicability of Pattam
Khader Khan ’s case to the facts of the present case applies.
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59. The last judgment relied upon is Parthasarathy ’s case. The dispute
arose from and out of the four civil suits presented by the respondent,
Parthasarathy and others against the Corporation of Chennai. The plaintiffs
sought permanent injunction against the Corporation asserting their title over
the land on the basis of sale deeds and patta. This suit was contested by the
Corporation claiming title to the properties and also urging that the patta, on the
basis of which the plaintiff had presented the suits, had been cancelled. The
learned Trial Judge clubbed all the suits together and dismissed the suits with
costs. Aggrieved by the same, the plaintiffs preferred regular appeals to the VIII
Additional City Civil Court, Chennai along with an application under Order
XLI Rule 27 of the Code of Civil Procedure. The learned First Appellate Judge
allowed the application under Order XLI Rule 27 and marked additional
documents as Ex.P16 to Ex.P20. Placing reliance upon the additional evidences
so tendered, the appeals were allowed. Aggrieved by the same, the Corporation
of Chennai preferred second appeals to this court. The second appeals were
dismissed on 09.10.2002. Hence, Civil Appeals before the Supreme Court.
60. The issue presented before the Supreme Court was whether the first
appellate court was right in allowing the application under Order XLI Rule 27
of the Code and immediately deciding the case on merits without giving an
opportunity to the respondents therein to rebut the evidence. The Supreme Court
held that the manner of disposal of the appeals and the applications were
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improper. It held that the opposing side must be given an opportunity to let in
rebuttal evidence. It found that the court had an option either to remand the
matter under Order XLI Rule 23-A or under Order XLI Rule 25 and that not
having been followed, the judgments were set aside and all the suits were
remanded to the trial court for fresh disposal.
61. This judgment is an authority for the proposition that a party cannot
be taken by surprise by the appellants by producing fresh evidence at the
appellate stage and the appellate court cannot decide the appeal on the basis of
the additional documents without giving an opportunity to challenge and rebut
the fresh evidence so tendered.
62. In the present case, it was the appellants herein, who had filed the
application under Order XLI Rule 27 of the Code. The learned Judge had
received the document and found that the additional evidence was not in any
way going to help the case of the appellants. It was not the case of the
respondent herein having filed an application under Order XLI Rule 27 and the
same having been relied upon to dismiss the appeal. On the contrary, the factual
situation indicates that the appellants herein had filed an application and had
obtained an order in their favour in the said application and the appellate court
came to the conclusion that the document filed does not assist their case. The
document having been received, if at all anyone would have a grievance, it
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would be the respondent herein. The appellants cannot have a grievance that the
procedure followed by the lower appellate court is erroneous.
63. I should add that the lower appellate court ought to have followed the
procedure under Order XLI Rule 28. Yet, it does not make a difference to the
result, as the court had found that the document is of no assistance to the case of
the appellants herein. This court too, has gone through the additional document
presented before the lower appellate court. It is of the year 1929 and as found
earlier, the extent of the property dealt with therein is only 3 cents. The extent
of the property involved in the present case is 11 cents. As to how the vendor,
under the additional document, came into possession of the property has not
been substantiated. In any event, Ex.A14 is of the year 1928, which is nothing
but a registered document executed much before the additional document
presented by the appellants. Hence, this judgment too, is of no assistance to the
case of the appellants.
64. In the light of the above discussions, the substantial questions of law
are answered against the appellants. The second appeal is dismissed. The
judgment and decree passed in A.S.No.20 of 2017 dated 07.10.2017 on the file
of the Additional Subordinate Court, Mayiladuthurai and the judgment and
decree passed in O.S.No.321 of 2004 dated 04.02.2017 on the file of the District
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Munsif Court, Sirkali are confirmed. The respondent will be entitled to the costs
in the appeal. Consequently, the connected miscellaneous petition is closed.
11-11-2026
nl
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
To
1. The District Munsif Court, Sirkali
2. The Additional Subordinate Court, Mayilduthurai
3. The Section Officer, VR Section, Madras High Court.
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SA No. 125 of 2018
V.LAKSHMINARAYANAN J.
nl
SA No. 125 of 2018
AND
CMP NO. 2784 OF 2018
11-11-2026
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