SA(MD). No.264 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 10.04.2026

Delivered on : .06.2026

CORAM:

THE HONOURABLE MR JUSTICE P.B. BALAJI

S.A. (MD). No.264 of 2017

and CMP (MD) No.5922 of 2017

1. S.Sebasthi Nadar (Died)

2.Baripooranam

3.Arockiya Mari

4.Palthasar

(Appellants 2 to 4 are brought on

record as LRs of the deceased sole appellant

vide Court order dated 21.03.2023 )

... Appellants

Vs.

1.A.Savariyappan

2.State of Tamil Nadu,

Through its District Collector,

Collector Campus,

Sivangagai Town,

Sivagangai District.

... Respondents

Prayer:- This Second Appeal filed under Section 100 of CPC, to set

aside the judgement and decree in A.S. No.73 of 2014 on the file of the

Sub Court, Sivagangai dated 15.12.2016, reversing the judgment and

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SA(MD). No.264 of 2017

decree in O.S. No.123 of 2012 on the file of the District Munsif Court,

Sivagangai, dated 21.07.2014.

For Appellant(s): Mrs.Vijayakumari Natarajan

For Respondents: Mr.M.Mohammed Ibrahim Saibu

for M/s.Ajmal Association

JUDGEMENT

The plaintiff, aggrieved by reversal findings rendered by the First

Appellate Court, is the appellant herein.

2. The Second Appeal was admitted by this Court on 30.06.2017

on the following four substantial questions of law:-

"(a) Having admitted the grant of UDR Patta

in his favour in survey No.352/9A is not the right to

the respondent to estop the plaintiff from claiming

right to the entire Survey field?

(b) Even assuming the defendant had any

right, whether his right is extinguished by virtue of

Section 27 of Limitation Act, as he has not taken any

steps against the plaintiff within the period of

Limitation?

(c) Whether the Lower Appellate Court has

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SA(MD). No.264 of 2017

properly appreciated the principle of admission

under Section 18 and 58 of Limitation Act?

(d) Whether the defendant who has not proved

that the Patta to plaintiff given in 1985 has been

cancelled, can deny the patta and plead contrary to

the same?"

3. Heard Mrs.Vijayakumari Natarajan, learned counsel for the

appellants and Mr.M.Mohammed Ibrahim Saibu, for M/s.Ajmal

Association, learned counsel for the respondents.

4. Brief facts that are necessary for adjudicating the substantial

questions of law are as follows:-

4.1. The plaintiff claiming that he is the owner of 64 cents of Nanja

lands comprised in Survey No.349/9B, Pahanjan Village filed a suit

seeking a relief of declaration and injunction. The case of the plaintiff is

that the first defendant own lands on the north of the plaintiff's lands in

S.No.352/9A measuring about 93 cents and the entitlements of both the

plaintiff and the first defendant were recognised at the time of UDR

survey and patta was issued to both the plaintiff and the first defendant.

After sub division of Survey No.352/9, the first defendant sold his extent

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of 93 cents to one Selvaraj under registered sale deed dated dated

28.10.1996, wherein also, he has recognised the right of the plaintiff. On

16.07.2012 according to the plaintiff, the first defendant attempted to

interfere with the plaintiff's cultivation of his lands, without any iota of

right. Hence the suit.

4.2. The first defendant filed a written statement stating that before

sub division Survey No.352/9 was comprised of an extent of 1 acre and

56 cents and the sub division under which the plaintiff's claim is contrary

to fact. Patta was incorrectly issued to the plaintiff under the UDR

scheme. Entire extent of S.No.352/9 belonged to the first defendant

family, the same being ancestral property and under a partition in the

family, the suit property was allotted to the first defendant.

4.3. Based on the pleadings and evidence adduced by the parties,

the Trial Court, decreed the suit, finding that the plaintiff was entitled to

the suit reliefs. The judgment and decree of the trial was challenged by

the first defendant in A.S. No.73 of 2014 on the file of the Sub Court,

Sivagangai. The First Appellate Court allowed the appeal and reversed

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the findings of the Trial Court, finding that the plaintiff has not proved

his entitlement and that the plaintiff cannot rely on the weakness of the

defendant to be entitled to the suit claim.

5. Mrs.Vijayakumari Natarajan, learned counsel for the appellants

would primordially contend that in Ex.A7, sale deed under which the

first defendant sold his entitlement to one Selvaraj has unequivocally

admitted to the plaintiff's ownership on the southern side of the first

defendant's property. Inviting my attention to the Section 58 of the

Indian Evidence Act, 1872, Mrs.Vijayakumari Natarajan, learned counsel

would contend that the recitals in the boundary to the schedule of the

property in a registered documents admittedly conveyed by the first

defendant himself was the best piece of evidence and the Trial Court had

rightly factored the same as required under law. She would however

state that the First Appellate Court without proper appreciation of the

evidence on record, especially, the admission of the first defendant has

invoked the settled principle of 'plaintiff cannot rely on the weakness in

the defence set up by the defendants' and has wrongly applied the same to

the facts of the present case and the same is wholly misconceived.

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6. She would further state that the first defendant had set up title

for the entire extent in S.No.352/9 and claimed that the suit property over

which the plaintiff was seeking declaratory relief was in fact allotted to

the first defendant in a family partition, has miserably failed to establish

such a plea. She would further state that the report and plan of the

Advocate Commissioner appointed by the Trial Court also clearly

established that the plaintiff was entitled to the suit property. She would

further contend that both the plaintiff as well as the first defendant

admittedly do not have any title documents to establish their right and

they were solely rest their respective cases only on the patta issued by

the Government at the time of UDR Survey and in such circumstances,

the Appellate Court's reasoning is totally unsustainable and the First

Appellate Court ought to have seen that the plaintiff had clearly

established his case and the admission of the first defendant only

fortified the entitlement of the plaintiff to the suit property.

7. The learned counsel has also relied on the following decisions:-

(i) Ahmedsaheb (Dead) by LRs and others Vs. Sayed Ismail,

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reported in, (2012) 8 SCC 516;

(ii) Avtar Singh and others Vs. Gurdial Singh and others, reported

in (2006) 12 SCC 552;

(iii) Nagindas Ramdas Vs. Dalpatram Iccharam alias Brijram and

others, reported in AIR 1974 SC 471;

(iv) Manicka Gounder and another Vs. Lakshmi Ammal rep. by

her Power Agent Mr.Kanagasundaram, reported in 2002-3-L.W.281;

and

(v) Sherwood Educational Society, No.3, XIII Avenue, Harrington

Road, Chetpet, Madras-31 Vs. Abid Namzie and two tohers, reported in

1997 1 MLJ 445.

8. Mrs.Vijayakumari Natarajan, would also state that when the first

defendant himself was issued patta under the UDR Scheme, Ex.B4 for

sub divided Survey No.352/9A and when the first defendant did not

choose to challenge the same as envisaged under the Tamil Nadu Survey

and Boundaries Act, 1923, it is not open to the first defendant to contend

that the patta was incorrectly issued to the plaintiff.

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9. Per contra, Mr.Mohammed Ibrahim Saibu, learned counsel

appearing for the first respondent/first defendant would contend that the

admission which is heavily relied upon by the plaintiff was not with

respect to the title or entitlement of the plaintiff but only to the northern

boundary of the first defendant's property. He would invite my attention

to the Schedule to contend that no Survey Number is mentioned and in

such circumstances, it is not open to the plaintiff to state that the first

defendant has admitted to the entitlement of the plaintiff.

10. Relying on Ex.B1 and Ex.B2, Mr.Mohammed Ibrahim Saibu,

learned counsel for the first respondent would contend that patta prior to

the UDR survey was admittedly in the name of the father of the

defendants and there is absolutely no justification shown by the plaintiff

as to how Ex.A2, patta was issued in the name of the plaintiff at the time

of UDR survey. He would therefore state that when the plaintiff has not

been able to demonstrate the same, then the defence raised by the first

defendant that the patta was issued by mistake has to be necessarily

accepted. He would further state that the First Appellate Court has

rightly found that the plaintiff has not proved his case and when the

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plaintiff approached the Court seeking the relief of declaration, it is for

the plaintiff to independently prove his entitlement and cannot rely upon

the weakness in the defendant's case.

11. He would further state that it is not the case of the first

defendant that he has admitted the plaintiff's entitlement to Survey No.

349/9B and therefore, the plaintiff does not gain any advantage, even

relying upon the fact that in Ex.A7, one of the boundaries shown for the

properties sold to one Selvaraj, belongs to the plaintiff. The learned

counsel would therefore state that the First Appellate Court has rightly

reversed the findings of the Trial Court and the same does not warrant

interference.

12. The learned counsel for the respondents has relied on the

following decisions:

(i) T.Rajagopal (died) and others Vs. Sundareshwari, in S.A.

(MD). No.249 of 2025, dated 01.07.2025;

(ii) Sivalingam and others Vs. Gunasekaran and others, in S.A.

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No.648 of 2011; and

(iii) K.Sithan Vs. District Revenue Officer and others, reported in

(2025) SCC Online Mad 9657.

13. I have carefully considered the submissions advanced by the

learned counsel on either side.

14. It is admitted on both sides that the original survey No.352/9

was an extent of 1 acre 56 cents. Ex.A2 is the patta issued to the plaintiff

for 64 cents and parent Survey No.352/9 has been sub divided and

Survey No.352/9B has been assigned/allotted to the plaintiff. The

adjoining lands measuring about 93 cents situate on the north of the

plaintiff's property have been assigned Survey No.352/9A and Ex.B4,

patta has been issued to the first defendant. These proceedings were way

back in the year 1985. Therefore, at that point of time, there was no

dispute with regard to either title or possession of their respective lands

by the plaintiff and the first defendant. In fact, on the plaintiff's side,

Ex.P3 to Ex.P6, receipts have been filed to show that the plaintiff has

been enjoying the subject suit lands in his own rights paying taxes as

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well. Ex.A1 is the survey notice issued to the plaintiff at the time of

UDR Survey. It is therefore clear that in 1996 when the first defendant

sold his entitlement of 93 cents to one Selvaraj under Ex.A7, the plaintiff

and the first defendant were not at issue with regard to the enjoyment of

their respective lands. Admittedly, in Ex.A7, the southern boundary in

the Schedule and the said sale deed, is reflected as the plaintiff’s land.

15. No doubt, as contended by the learned counsel for the first

respondent, Mr.Mohammed Ibrahim Saibu, the southern boundary does

not indicate the Survey No.352/9B. Even though no survey number is

mentioned, as rightly contended by the learned counsel for the first

defendant, it is the case of the first defendant that the entire survey

number belonged only to the family of the first defendant and that there

was a partition in the family, in which, the suit property being the

southern side of the first defendant's property covered by Ex.A7 was

allotted to him, then the boundary should not have mentioned the name

of the plaintiff, but ought to have only mentioned the remaining lands of

the first defendant. Therefore, I do not see how Ex.A7, cannot be taken

advantage of by the plaintiff. This is moreso, in the light of the fact that

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the first defendant sets up a case that entire 352/9 belonged to the first

defendant, in respect of which, there is absolutely no evidence

forthcoming on the side of the first defendant. The first defendant has

not been able to establish payment of taxes to show physical possession

of the suit property as well, leave alone, having miserably failed to prove

the partition, under which, he became entitled to the suit property.

16. On the other hand, the plaintiff has been able to demonstrate

that right from 1985, when UDR survey was conducted, the plaintiff's

possession and right have been recognised by the State Authorities.

There is also merit in the contention of the learned counsel for the

petitioner, Mrs.Vijayakumari Natarajan that admittedly, Ex.B4, patta has

been issued in respect of sub divided survey No.352/9A to the first

defendant and Ex.A2, Sub divided in Survey No.352/9B was allotted to

the plaintiff. If really, the first defendant was aggrieved by the same, the

first defendant ought to have taken appropriate steps under the Tamil

Nadu Survey and Boundaries Act, 1923. Section 14, permits such

challenge within a period of three years. Admittedly, the first defendant

has not chosen to question the UDR Survey and consequent issuance of

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patta to the plaintiff under Ex.A2 and on the contrary, the first defendant

himself has taken advantage of the said UDR proceedings and claimed

under Ex.B4, UDR patta. In fact, even in Ex.B4, Patta which has been

filed on behalf of the first defendant, leave alone the patta in Ex.A2,

issued in favour of the plaintiff, the southern boundary of the first

defendant's property has been clearly demarcated as Survey No.352/9B.

In fact, in Ex.A2, while showing the northern boundary of Survey No.

352/9B, it is not only mentioned as Survey No.352/9A, but also mentions

the name of the first defendant, A.Savriyappan, as well. The first

defendant has therefore accepted the UDR survey and the parties have

also acted upon the same. It is therefore not open to the first defendant to

merely claim that Ex.A2 patta was incorrectly issued, especially when he

had all opportunity to question the said issuance of patta within a period

of three years.

17. The argument of the first defendant that the first defendant was

not put on notice before issuance of patta to the plaintiff, though

attractive at first blush, cannot be countenanced for the simple fact that

atleast when Ex.B4 patta was issued to the first defendant, he was aware

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of the sub division. If really, the first defendant was the owner of the

entire extent of Survey No.352/9, there would have been no necessity for

any sub division in the first place in the year 1985 and the first defendant

was atleast put on notice at the time UDR Survey about the entitlement of

the plaintiff to the extent of 64 cents on the south of his property. The

first defendant having not taken any steps to challenge Ex.A2, patta

cannot belatedly turn around and contend that there has been no sub

division at all and that Ex.A2, patta was issued by mistake. The Trial

Court has rightly considered the effect of Ex.A7 as well as revenue

records filed on both sides and found that the plaintiff had established his

entitlement to the declaratory relief and consequential relief of

injunction. The First Appellate Court has reversed the said findings of

the Trial Court only on the ground that the plaintiff cannot rely on the

weakness in the defendant's case. I am unable to see how Ex.A7, which

is a registered Conveyance Deed can amount to a weakness in the case of

the defendant. It is a registered sale deed on which, the first defendant

has placed reliance upon to satisfy the Court that the first defendant is the

owner of the 93 cents in Survey No.352/9A. When the first defendant

has voluntarily produced the said document with a view to establish his

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defence, the same cannot be viewed as a weakness in the case projected

by the defendant.

18. In such circumstances, when the sale deed clearly

acknowledged the right of the plaintiff on the southern side of the first

defendant's property, in my considered opinion, it would certainly

amount to an admission of the plaintiff's right and cannot be viewed as

weakness in the defence. I have already dealt with the effect of the non

mentioning of the sub divided survey number in the boundary and

therefore, the mere fact that the boundary has mentioned only the

plaintiff's name and not the survey number is not in any manner affecting

the plaintiff's case.

19. Even though Ex.B1 and Ex.B2 have been relied on by the first

defendant for establishing that the first defendant's father and mother,

Arulandu and Mariyayee were possessing the entire 1 acre and 56 cents

in Survey No.352/9, these documents are admittedly before the UDR

Survey and sub division effected subsequently in the year 1985.

Therefore, re-survey only an extent of 93 cents has been reflected as the

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entitlement of the first defendant. Therefore, if aggrieved, he should

have been objected under Section 14. Admittedly the first defendant has

not taken any steps to question the same Ex.B1 and Ex.B2 get superseded

by Ex.B4 and Ex.A2 patta, subsequent to the UDR survey. Therefore he

should have questioned the same.

20. In fact, the Courts have consistently held that admissions

which can be culled out prior to the judicial proceedings stand on a much

higher footing, than evidentiary admission and such admissions can be

made the foundation of the rights of the parties also. On facts, Ex.A7 for

all the above discussion, would clinchingly amount to an admission of

the plaintiff's entitlement and the only manner in which, the first

defendant could have explained the same was by producing patta in his

favour or the partition deed under which she claimed right to establish

that the suit property also belonged to him.

21. Coming to the decisions on which, Mrs.Vijayakumari

Natarajan, learned counsel for the petitioner placed reliance upon, all the

five decisions have been relied on only for the proposition that an

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admission is a fresh piece of evidence. There is no quarrel with regard

to this legal position and having already held that when an admission is

made by the opposite party, then it would be the best evidence without

any further corroboration required.

22. In T.Rajagopal's case (referred herein supra), this Court held

that when the defendant's had proved title to the suit property and also

exclusive possession, then the plaintiffs had miserably failed to establish

title and consequently, were disentitled to the relief of declaration,

applying Section 101 of the Evidence Act. In the instant case, I have

already held that both parties do not claim under any registered

documents, but only under respective pattas issued by the Authorities and

it is not the case where the first defendant has established his title like in

case before this Court in Rajagopal's case.

23. In Sivalingam's case, (referred herein supra), this Court again

falling back on Section 101 of the Evidence Act, held that the burden of

proof lies on the plaintiff to prove his case, in terms of Sections 101 and

102 of the Evidence Act and that patta is not a document of title. There

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is no quarrel with regard to the proposition laid down in this case as well.

However, in view of the discussion regarding the admission of plaintiff's

right and entitlement, by the first defendant, I do not see why the plaintiff

should be disentitled to the relief of declaration, when admittedly both

parties do not have any registered conveyance documents in their

respective favour to establish title and their right, but only rely on UDR

proceedings conducted in the year 1985.

24. In K.Sithan's case (referred herein supra), this Court held that

in terms of Circular dated 13.03.2016, the officials under the Tamil Nadu

Patta Passbook Act, 1983, are required to examine UDR records and

compare the same with the UDR records and find out if there is a

legitimate link between the same and that such an exercise would not

amount to adjudication of title. Again, I do not have any quarrel with

regard to the proposition laid down in this case. I have already dealt with

the effect of silence on the part of the first defendant and also accepting

Ex.B4 issued to him, sub dividing Survey No.352/9 and allotting Survey

No.352/9A alone to the first defendant. The said UDR survey and

proceedings have been accepted by the first defendant without any

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protest or demur. In such circumstances, even assuming there is any

error in exercise of power, when the first defendant has not questioned

the sub division or Ex.A2 patta issued by the plaintiff for several decades

together, it is too late in the day for the first defendant to state that the

UDR Survey was incorrect and Ex.A2 patta, was issued by error/mistake

in favour of the plaintiff.

25. For all the above reasons and discussion, I am of the

considered opinion that the First Appellate Court has misapplied the

principle that the plaintiff in a suit for declaration has to prove his own

case and not rely on the weakness in the case of the defendant, to the

facts of the present case, ignoring the admission of the first defendant

even prior to the filing of the suit that the southern boundary adjoining

the first defendant's land in Survey No.352/9A of an extent of 92 cents

belonged to the plaintiff. The Trial Court has rightly appreciated the

effect of the said admission in Ex.A7, sale deed and granted relief to the

plaintiff, which has been overturned on a wholly misconceived and

misapplication of legal position.

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26. For all the above reasons, the appellant is entitled to succeed

and the Second Appeal is allowed. The substantial questions of law

answered in favour of the appellant and the judgment in A.S. No.73 of

2014 on the file of the Sub Court, Sivagangai is set aside and judgment

of the O.S. No.123 of 2012 on the file of the District Munsif Court is

restored. Consequently, connected Miscellaneous Petition is also closed.

No costs.

Internet: Yes .

06.2026

Index:Yes/No

Neutral Citation:Yes/No

rkp

To

1. The Sub Judge, Sivagangai.

2. The District Munsif, Sivagangai.

3. The District Collector,

Collector Campus,

Sivangagai Town,

Sivagangai District.

4. The Section Officer,

VR Section,

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Madras High Court,

Chennai.

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P.B.BALAJI,J.

rkp

Pre-delivery order in

S.A. (MD). No.264 of 2017

and CMP (MD) No.5922 of 2017

.06.2026

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