S.A(MD)No.178 of 2012

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 27.04.2026

Pronounced on : 28.07.2026

CORAM

THE HONOURABLE MR.JUSTICE P.VADAMALAI

S.A(MD)No.178 of 2012

1.Samydevar (Died)

2.Rajadevar,

S/o.Subramaniyadevar,

Melanarikudi, Narikudi Village,

Sankarankoil Taluk,

Tirunelveli District. ...Appellants/Respondents/Plaintiffs

(Memo dated 10.12.2024 in USR.No.46447 is recorded to

the effect that 1

st

appellant died issueless & 2

nd

appellant,

who is already on record, is recorded as LR of the deceased

1

st

appellant vide Court order dated 16.12.2024 made in

S.A(MD)No.178 of 2012by SSYJ)

Vs.

Ramarpandi,

S/o.Samydevar,

Melanarikudi, Narikudi Village,

Sankarankoil Taluk,

Tirunelveli District.

Now at No.2661,

Kanchamalai North,

Vellamalai (P.O). ...Respondent/Appellant/Defendant

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S.A(MD)No.178 of 2012

Prayer: This Second Appeal is filed under Section 100 of the Civil Procedure

Code, to set aside the judgment and decree, dated 29.01.2009 passed in

A.S.No.49 of 2006 on the file of the Sub-Court, Sankarankoil, reversing the

judgment and decree dated 25.01.2006 passed in O.S.No.239 of 2004 on the

file of the Additional District Munsif Court, Sankarankoil and dismiss the suit.

For Appellant: Mr.V.Meenakshi Sundaram

For Respondent : Mr.M.Saravanan

JUDGMENT

This Second Appeal is filed against the judgment and decree dated

29.01.2009 passed in A.S.No.49 of 2006 on the file of the Sub Court,

Sankarankoil, reversing the judgment and decree dated 25.01.2006 passed in

O.S.No.239 of 2004 on the file of the Additional District Munsif Court,

Sankarankoil.

2.The appellants are the plaintiffs and the respondent is the defendant in

O.S.No.239 of 2004 on the file of the Additional District Munsif Court,

Sankarankoil. The appellants/plaintiffs filed the suit for declaration and

consequential permanent injunction.

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S.A(MD)No.178 of 2012

3.For the sake of convenience, the parties are referred to as plaintiff and

defendants in O.S.No.239 of 2004 on the file of the Additional District Munsif

Court, Sankarankoil.

4.The case of the plaintiffs:

The suit property originally belonged to the plaintiffs’ father,

Subramania Thevar. The plaintiffs and one Sakthi are his legal heirs.

The plaintiffs’ brother Sakthi died during his childhood. The plaintiffs’ father

died six years after the death of the said Sakthi. The 1st plaintiff is a bachelor.

After the death of Subramania Thevar, the plaintiffs are in continuous

enjoyment and possession of the suit property. Patta was issued in the name of

the plaintiffs. While so, the name of the defendant was wrongly included in the

patta, so the plaintiffs gave an application before the revenue authority to

remove the name of the defendant from the patta. However, the defendant and

his men attempted to interfere with the plaintiffs’ enjoyment and possession of

the suit property. Hence, the plaintiffs issued a legal notice dated 18.12.2003,

but the defendant did not send any reply. But on 28.02.2004, the defendant and

his men attempted to encroach upon the property. Therefore, the plaintiffs have

filed the suit for a declaration that the suit property absolutely belonged to the

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S.A(MD)No.178 of 2012

plaintiffs and consequently permanent injunction restraining the defendant

from interfering with the possession and enjoyment of the plaintiffs over the

suit property.

5.The case of the defendant:

The suit property belonged to Subramania Thevar. He sold the suit

property to one Sankarapandi Thevar on 28.10.1964 by virtue of a sale deed.

The defendant purchased the suit property from Sankarapandi Thevar under a

registered sale deed dated 15.11.1977. From then onwards, the defendant has

been enjoying the suit property by paying proper kist and taxes for more than

25 years. Moreover, the defendant is the son of Sakthi @ Perumal @ Sami,

who is the brother of the plaintiffs. Since the defendant and his father were

called by different names, and by using the same, the plaintiffs have filed the

suit to grab the suit property from the defendant. The defendant sent a reply

notice to the legal notice of the plaintiffs stating the real facts. The plaintiffs

wantonly suppressed the reply sent by the defendant. Further, without

challenging the subsistence of the sale deed of the defendant dated 15.11.1977,

the plaintiffs are not entitled to any relief. Moreover, the suit is barred by

limitation. Hence, the suit is liable to be dismissed.

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S.A(MD)No.178 of 2012

6.The trial Court has framed the following issues:

(1)Whether suit property absolutely belonged

to the plaintiffs?

(2)Whether the plaintiffs are entitled to the

relief of declaration and injunction as prayed for?

(3)To what other relief, the plaintiffs are

entitled to?

7.During trial, on the plaintiffs side, two witnesses were examined as

P.W.1 and P.W.2 and marked 3 exhibits as Ex.A.1 to Ex.A.3. On the defendant's

side, three witnesses were examined as D.W.1 to D.W.3 and Ex.B.1 to Ex.B.8

were marked.

8.After hearing both sides and after considering the evidence, the

learned Additional District Munsif, Sankarankoil, concluded that the plaintiffs

are entitled to the suit property and thereby decreed the suit by passing

judgment and decree dated 25.01.2006.

9.Aggrieved by the judgment and decree dated 25.01.2006 passed in

O.S.No.239 of 2004 on the file of the Additional District Munsif Court,

Sankarankoil, the defendant preferred a civil appeal in A.S.No.49 of 2006

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S.A(MD)No.178 of 2012

before the Subordinate Court, Sankarankovil. The first Appellate Court, after

hearing both sides and after perusing the material records of the case, allowed

the appeal in A.S.No.49 of 2006 by passing judgment dated 29.01.2009 and

reversed the judgment and decree dated 25.01.2006 passed in O.S.No.239 of

2004 and dismissed the suit in O.S.No.239 of 2004.

10.Challenging the judgment and decree of the First Appellate Court,

the plaintiffs have preferred this second appeal and the same has been admitted

on 17.04.2012 on the following substantial questions of law:-

''1.Whether the approach of the First

Appellate Court in marking Ex.B.9 SRO copy of

the sale deed dated 28.10.1964 without any oral

evidence and without giving any opportunity to

these appellants/plaintiffs to rebut the genuiness of

the document is correct in law?

2. Whether the First Appellate Court is

correct in law in entertaining the application for

additional evidence separately and allowing the

same at the appellate stage?

3. Whether the First Appellate Court is right

in deciding the title of the defendant to the suit

property on production of the SRO copy of the sale

deed dated 28.10.1964 by the defendant at the

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S.A(MD)No.178 of 2012

appellate stage without any explanation for non

production of the original sale deed and without

explaining the reason for the non production of the

same before the trial stage?

11.During pendency of the second appeal, the 1st appellant/1st plaintiff

died on 23.03.2016 as unmarried and issueless. Hence, his brother, the

2nd appellant/2nd plaintiff, has been recorded as his legal heir.

12.The learned counsel for the 2

nd

appellant/2nd plaintiff has submitted

that the suit property is the ancestral property of the plaintiffs’ father

Subramania Thevar, who had three sons, Sami Thevar, Raja Thevar (plaintiffs

herein) and one Sakthi. Sakthi died in childhood. The plaintiffs inherited the

suit property on the death of Subramania Thevar. Ex.A.1 Patta was issued in

the name of the plaintiffs wrongly including the defendant's name. Then, the

defendant tried to encroach upon the property, so the plaintiffs issued an

Ex.A.2 legal notice and the same was received by him as per Ex.A.3

acknowledgement card. Since the defendant was attempting to disturb the

plaintiffs, the plaintiffs filed the suit. The defendant filed a written statement

stating that he purchased the suit property from Sankarapandia Thevar under

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S.A(MD)No.178 of 2012

Ex.B.1 sale deed dated 15.11.1977. The defendant further contended that he

claims adverse possession from 1977, so the suit is barred by limitation and

also the suit is bad as the plaintiff did not plead for recovery of possession.

The defendant has not produced the deed of the year 1964. Hence, Ex.B.1 sale

deed is not acceptable. Further, though the defendant claims he is the son of

Sakthi, there is no proof to show the same. The trial Court properly appreciated

the evidence and rightly decreed the suit. The defendant preferred the first

appeal and filed a petition in I.A.No.183 of 2008 under Order 41 Rule 27 of

CPC, for producing the 1964 sale deed. The first Appellate Court allowed that

petition and marked a certified copy of the 1964 sale deed issued from the

Sub Registrar's Office as Ex.B.9 and reversed the judgment passed by the trial

Court. Without any oral evidence, Ex.B.9 cannot be marked. But, the first

Appellate Court admitted and relied on the said deed. Further, the plaintiffs

were not given any opportunity to lead rebuttal evidence. Because the

defendant pleaded that Subramania Thevar sold the property to the said

Sankarapandia Thevar in 1964. Moreover, the defendant has not produced the

original sale deed of the year 1964 and there is no valid explanation offered by

the defendant for such non production of the original deed of Ex.B.9.

The plaintiffs have to be given an opportunity to lead evidence in rebuttal

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S.A(MD)No.178 of 2012

while admitting documentary evidence at the appellate stage and in such

circumstances, the case has to be remanded back. Hence, the second appeal

may be allowed and remitted back for leading evidence regarding Ex.B.9.

13.The learned counsel for the appellant further relied on the decision of

the Hon’ble Supreme Court in Akhilesh Singh @ Akhileshwar Singh vs. Lal

Babu Singh and Ors. case reported in 2018-3 Law Weekly 97, wherein it is

held in paragraph Nos.11 and 13 as follows:

“11.Order LXI Rule 27 of the CPC, which deals

with the provision of additional evidence in Appellate

Court provides for the grounds and circumstances on

which the Appellate Court may allow such evidence or

documents or witnesses to be examined. Order LXI

Rule 27 sub-rule(2) further provides that wherever

additional evidence is allowed to be produced by an

Appellate Court, the court shall record a reason for its

admission. Order LXI Rule 27 is silent as to the

procedure to be adopted by the High court after

admission of additional evidence. Whether after

admission of additional evidence, it is necessary for

the Appellate Court to grant opportunity to the other

party to lead evidence in rebuttal or to give any

opportunity is not expressly provided in Order LXI

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S.A(MD)No.178 of 2012

Rule 27.

13.Order LXI Rule 2 provides that the

appellant shall not, except by leave of the court, be

allowed to urge any ground in the appeal, which

is not set forth in the memorandum of appeal.

The proviso to Order LXI Rule 2 engrafts a rule,

which obliged the Court to grant a sufficient

opportunity to the contesting party, if any new

ground is allowed to be urged by another party,

which may affect the contesting party.

The provision engrafts rule of natural justice and

fair play that contesting party should be given

opportunity to meet any new ground sought to be

urged. When Appellate Court admits the

additional evidence under Order LXI Rule 27, we

fail to see any reason for not following the same

course of granting an opportunity to the contesting

party, which may be affected by acceptance of

additional evidence. In the present case,

additional evidence, which were brought on the

record were registered sale deeds, which were

executed by present appellant and his other

co-sharers and what was relied before the High

Court was that the appellant admitted in the sale

deeds that the partition has been taken place in the

family. The main issue in the First Appeal before

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S.A(MD)No.178 of 2012

the High Court was as to whether the finding of

the trial court that no partition by metes and

bounds taken place in the family is correct or not.

The additional evidence which was admitted has

been relied by the High Court while allowing the

appeal. It was in the interest of justice that High

Court ought to have allowed opportunity to the

plaintiffs, who were respondents to the First

Appeal to either lead an evidence in rebuttal or to

explain the alleged admissions as relied by the

defendants. The mere fact that no counter affidavit

was filed to the I.A.s was not decisive. Since I.A.s

having not been admitted, occasion for counter

affidavit did not arise at any earlier point of time.

The High Court on the same day, i.e. 08.03.2017

has allowed the I.A.s as well as the First Appeal.

The fact that contesting respondents to the First

Appeal, who are appellant before us were not

represented at the time of hearing of the First

Appeal, was not a reason for not giving

opportunity to them to lead evidence in rebuttal.”

14.Per contra, the learned counsel for the respondent/defendant

vehemently argued that the plaintiff, who approached the Court seeking the

relief of declaration of title over the suit property and injunction, has to prove

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S.A(MD)No.178 of 2012

their title on the suit property. They have only produced 10(1) Chitta, which is

a revenue record. The plaintiffs have not produced any document to prove title,

it is a settled position that a revenue record will not confer any title.

The defendant purchased the suit property under Ex.B.1 dated 15.11.1977 from

the lawful owner Sankarapandia Thevar, who purchased the same from

Subramania Thevar in 1964. The defendant produced Ex.B.2 patta and tax

receipts to prove his title from 1977. The trial Court has shifted the burden of

proof on the defendant to prove his case and he proved the same. The plaintiffs

have not proved their title. But, the trial Court decreed the suit based on

Ex.A.1 revenue record. The defendant preferred the appeal and produced a

certified copy of the parent deed of the year 1964 before the Appellate Court

and proved his better title. The first Appellate Court has not solely relied on

Ex.B.9, the sale deed but also discussed other aspects and reversed the finding

of the trial Court. The first Appellate Court has not allowed the first appeal

only on the basis of Ex.B.9, but it came to the conclusion that the defendant

proved his title over the suit property by producing title documents.

The plaintiffs have to prove their title first, and they cannot shift the burden on

the defendant and the plaintiffs have failed to prove their case U/s.101 of the

Indian Evidence Act. The first Appellate Court has properly made discussion

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S.A(MD)No.178 of 2012

about the case and there is no whisper about Ex.B.9 and there is no need for

remand. Hence, the questions of law could not be decided in favour of the

appellant as the suit was factually decided by the first Appellate Court.

Therefore, this second appeal may be dismissed.

15.Heard the arguments of both sides and perused the material records of

the case. The suit property is measuring 1 acre 94 cents in S.No.270/2 of

Narikudi Village, Mela Neelithanallur of Tenkasi Registration District. On

perusal of the records, it is clear that there is no dispute that the suit property

originally belonged to Subramania Thevar. The plaintiffs’ case is that they are

the sons of Subramania Thevar and they inherited the suit property after the

demise of their father. The defendant’s specific case is that the said Subramania

Thevar sold the suit property to one Sankarapandia Thevar on 28.10.1964 and

the defendant purchased the same from the said Sankarapandia Thevar by

virtue of Ex.B.1 sale deed dated 15.11.1977.

16.The plaintiffs have filed the suit for declaration of title of the suit

property in their favour. If so, it is for the plaintiffs to prove their title over the

suit property. The plaintiffs have produced Ex.A.1 patta 10(1) which stood in

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S.A(MD)No.178 of 2012

their name. There is no earlier document prior to Ex.A.1. The plaintiffs have

not produced any other documents. Ex.A.1 is only a revenue document.

Patta shall not be a document of title. Patta is a document showing the person

from whom the land revenue will be collected. It is a settled position of law

that a Revenue Record is not a document of title and does not confer any

ownership or title upon the person whose name appears in it and mutation does

not create or extinguish title and has absolutely no presumptive value regarding

title. The Hon’ble Supreme Court has repeatedly and continuously held in

various cases that the law is well settled that, through Revenue entries, the

claim to title is not proved and the same is once again insisted in its decision

reported in Vadiyala Prabhakar Rao and Ors. /v/ the Government of

Andhra Pradesh and Ors. in Special Leave Petition No.27590 of 2025 in

2026 INSC 450.

17.A careful perusal of the records of this case, shows that the plaintiffs

have not produced any title deed. They trace title only through Ex.A.1 patta.

Whereas, the defendant has produced title deed Ex.B.1 dated 15.11.1977 and

during first appellate stage they also produced Ex.B.9 sale deed i.e., parent

deed to Ex.B.1. So, the defendant has produced title deeds to prove his case.

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S.A(MD)No.178 of 2012

In no case will patta alone destroy the title of the other person who derived it

by a valid title deed.

18. Now, it is the only contention of the appellant/2nd plaintiff that the

defendant has produced a certified copy of sale deed as Ex.B.9 at the appeal

stage by filing a petition in I.A.No.183 of 2008 under Order 41 Rule 27 of

CPC and that the first Appellate Court has not given any opportunity to lead

rebuttal evidence under Order 41 Rule 28 of CPC, so he prayed for remand of

the case.

19.On perusal of the judgment of the first Appellate Court, it is clear that

the first Appellate Court has not solely considered Ex.B.9. Firstly, the plaintiffs

have not proved their case of title for the declaration that they are entitled to

the suit property. The plaintiffs have not produced any title deed.

The defendant has produced a title deed from the year 1977 and since then he

has been in possession and to substantiate the same, the defendant produced

the parent deed as Ex.B.9. Therefore, it is clear that the defendant is the

rightful owner from 1977. So, the plaintiffs have to seek for recovery of

possession, but failed to seek so. Of course, Ex.B.9 is a certified copy, but the

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S.A(MD)No.178 of 2012

plaintiffs have not pleaded specifically on what ground it could not be relied

on. It is for the plaintiffs to prove their case first, and they cannot shift the

burden of proof upon the defendant in the case of declaration of title over the

suit property. Further, the plaintiffs cannot take advantage of the weakness of

the defendant in title suits, because the initial burden is on the plaintiffs to

prove their title over the suit property.

20.However, in this case the defendant has clearly proved his title over

the suit property. The first Appellate Court has properly discussed the case and

rightly reversed the finding of the trial Court, which decreed the suit only

based on Ex.A.1 patta revenue record, which admittedly will not confer any

title to the plaintiffs. So, the trial Court erred in law and the same was

corrected by the first Appellate Court. Hence, there is no need to remand the

case as argued by the appellant and the citation relied on by them is not

applicable to the facts of this case. The said finding of the first Appellate Court

needs no interference by this Court by way of second appeal. Hence, the

questions of law framed in this appeal are answered against the

2

nd

appellant/2

nd

plaintiff. Thus, this second appeal fails.

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21. In the result, the Second Appeal is dismissed. The judgment and

decree dated 29.01.2009 passed in A.S.No.49 of 2006 on the file of the

Sub Court, Sankarankoil, reversing the judgment and decree dated 25.01.2006

passed in O.S.No.239 of 2004 on the file of the Additional District Munsif

Court, Sankarankoil, is confirmed. No costs.

28.07.2026

NCC : Yes / No

Internet : Yes / No

Index : Yes / No

VSD

To

1.The Sub Court,

Sankarankoil.

2.The Additional District Munsif Court,

Sankarankoil.

3.The Record Keeper,

Vernacular Records,

Madurai Bench of Madras High Court,

Madurai.

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S.A(MD)No.178 of 2012

P.VADAMALAI, J.

VSD

Pre-Delivery Judgment made in

S.A(MD)No.178 of 2012

28.07.2026

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