SA No. 436 of 2008

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON 28.08.2026

DELIVERED ON 28.09.2026

CORAM

THE HON'BLE MR.JUSTICE GK.MUTHUKUMAAR

SA No. 436 of 2008

Lingappan (died)

Rukmani (died)

1.Maheswari

2.Latha

3.Vijayalakshmi

..Appellant(s)

Vs

1.M.Krishnasamy (died)

2.Saraswathi

3.Shanthamani

4.Uma Maheswari

(R1 died, RR2 to 4 are brought on record as LRs of

the deceased R1 vide court order dated 17/02/2025

made in CMP.Nos.1368 to 1370 of 2017 in

S.A.No.436 of 2008 by SSRJ)

..Respondent(s)

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

Procedure, against the judgment and decree of the Appellate Authority & I

Additional Subordinate Judge, Coimbatore dated 9.10.2006 in A.S.No.110 of

2005, confirming the judgment and decree of the I Additional District Munsif

Court, Coimbatore, dated 5.7.2004 in O.S.No.248 of 1989. https://www.mhc.tn.gov.in/judis

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For Appellant(s): Mr.S.Mukunth, Senior Counsel for

Mr.N.Krishnakumar

For Respondent(s):No appearance despite being on vakalat

JUDGMENT

The unsuccessful plaintiff is the appellant herein. The appellant/plaintiff

has filed the suit in O.S.No.248 of 1989 for possession, damages and costs. The

first respondent/defendant has contested the same.

2.Prior to the filing of the suit in O.S.No.248 of 1989, the first

respondent had filed a suit in O.S.No.320 of 1999 (prior to renumbering the suit

was O.S.No.679 of 1988). This was a suit for specific performance based on an

unregistered sale agreement, Ex.A18. The suit was filed by the first respondent

herein against his vendors. After the filing of the suit in O.S.No.248 of 1989,

the appellant herein was subsequently impleaded as the third respondent in

O.S.No.320 of 1999.

3.Both the suits were tried together and a common judgment and

decree dated 5.7.2004 came to be passed, wherein the suit in O.S.No.248 of

1989 filed by the appellant herein against the first respondent, in which the

appellant prayed for possession of the suit property came to be dismissed. The

other suit in O.S.No.320 of 1999 for specific performance filed by the first https://www.mhc.tn.gov.in/judis

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respondent herein against his vendors wherein the appellant was subsequently

impleaded was decreed.

4.As regards the said common judgment and decree dated 5.7.2004,

three first appeals came to be filed. A.S.No.32 of 2005 was filed by the first

respondent’s vendor challenging the judgment and decree in O.S.No.320 of

1999 granting specific performance. A.S.No.110 of 2004 came to be filed by the

appellant’s legal heirs who are the present appellants in the second appeal

challenging the dismissal of the suit in O.S.No.248 of 1989, refusing to grant

possession. A.S.No.207 of 2005 came to be filed by the appellant’s Lrs i.e., the

present appellants, challenging the judgment and decree in O.S.No.320 of 1999

granting specific performance.

5.The first appeal in A.S.Nos.32 of 2005 and 207 of 2005 came to be

allowed whereby the judgment and decree in O.S.No.320 of 1999 dated

5.7.2004 granting specific performance was set aside and the suit was

dismissed. While, the first appeal in A.S.No.110 of 2004 preferred against the

judgment and decree dated 5.7.2004 dismissing the suit in O.S.No.248 of 1989

was dismissed.

6.However, this second appeal came to be filed only as against the

dismissal of the appeal in A.S.No.110 of 2004 confirming the dismissal of the https://www.mhc.tn.gov.in/judis

SA No. 436 of 2008

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suit in O.S.No.248 of 1989. No second appeals have been preferred as regards

the judgment and decree passed in A.S.No.32 of 2005 and A.S.No.207 of 2005

whereby the judgment and decree passed in O.S.No.320 of 1999 granting

specific performance to the first respondent herein was set aside and the suit

dismissed. Therefore, in this regard, the claim of the first respondent under

Ex.A18, the unregistered sale agreement stands dismissed and the same has

attained finality.

7.In this second appeal, the following substantial questions of law were

framed by this Court upon admission;

(i)Whether the Courts below are right in holding that the

identification of the property differs on account of the fact that the

Door No.6 is changed as Door No.5 overlooking boundaries

mentioned in the suit property as per Ex.B6 (title deed) of the

appellant when the settled principle of law that property description

would prevail over survey number as is also established in Exs.C1

and C2 (in this case door no)?

(ii) Whether the Courts below are correct in dismissing the

suit on the ground that the appellant had only filed the suit for

recovery of possession without praying for declaration of title on

the basis of his title deed (Ex.B6) overlooking the fact that the

respondent herein have admitted the title of the appellant’s father,

Lingappan when Ex.B6, Sale deed was not in challenge? https://www.mhc.tn.gov.in/judis

SA No. 436 of 2008

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8.The learned Senior Counsel appearing for the appellant made

submissions in this second appeal with regard to the substantial questions of law

so framed. There was no representation for the respondents, as their counsel was

consecutively absent for the last three hearings viz., on 12.08.2026, 21.08.2026,

and 28.08.2026, despite the name of the counsel being printed in the cause list.

Brief facts of the case:

9.The case of the appellant herein is that he had purchased the suit

property which is a dwelling house bearing door No.8/5 in Vellakinaru Village,

Coimbatore Taluk under Ex.B6 and that the first respondent who was the tenant

of his vendors was occupying the neighbouring premises bearing door No.8/6

situated on the northern side of the suit property bearing Door No.8/5 and that

the first respondent had illegally trespassed into the suit property of the

appellant which the appellant had directly purchased under Ex.B6 from his

vendors.

10.On the other hand, the case of the first respondent as evident from

his pleadings is that the vendors of the appellant had contracted to sell the suit

property to him under an unregistered sale agreement, Ex.A18 and that he is in

possession of the suit property for more than 20 years i.e., even prior to Ex.A18.

It is the further case of the first respondent that the appellant and his vendors https://www.mhc.tn.gov.in/judis

SA No. 436 of 2008

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changed the door number of the suit property from 5 to 6, so as to defraud the

first respondent. It is the further case of the first respondent that the suit in

O.S.No.248 of 1989 had been filed by the appellant as a counter blast to the

specific performance suit filed by him in O.S.No.679 of 1988 against the

vendors of the appellant.

11.From the material on record and the arguments advanced, this

Court proceeds to address the substantial questions of law so framed.

Submissions of Counsel:

12.The Learned Senior Counsel appearing for the appellants while

addressing the arguments on the substantial questions of law would submit that

both the Courts erred in law in not appreciating the evidence on record properly,

thus leading to perverse interpretation of the evidence which led to the incorrect

finding of fact and law. He would therefore contend that both the Courts below

have not considered the Commissioner’s report and plan, being Exs.C1 and C2

respectively in arriving at their findings. He would further submit that

considering Exs.A18 and B6 in the light of Exs.C1 and C2 would reveal that the

suit property bears Door No.5 while Door No.6 was the adjoining property of

which the first respondent was in possession, which is even evident from his

written statement. He would therefore submit that Door No.4 also adjoins Door

No.5. In other words, Door Nos.3, 4 and 5 are contiguous, being row houses. He https://www.mhc.tn.gov.in/judis

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would therefore contend that this has led to the Trial Court erroneously

dismissing the suit in O.S.No.248 of 1999 and the Appellate Court also

erroneously dismissed the appeal on the ground that the suit for mere possession

in the absence of a relief of declaration is not maintainable. The learned Senior

Counsel for the appellant would further contend that contradiction in the oral

evidence has been held againt the appellant ignoring the cogent documentary

evidence on record. This according to him has also led to the appellant’s suit

being erroneously dismissed. The Learned Senior Counsel relied upon the

judgment of the Hon’ble Supreme Court in Anathula Sudhakar Vs. P.Buchi

Reddy (dead) by Lrs and Others reported in 2008 (4) SCC 594, in support of his

contentions.

13.This Court finds that, in the present factual matrix, to address the

issue on hand, it is necessary for this Court to look into Exs.A18 and B6 and the

Commissioner’s report and plan in Exs.C1 and C2 in particular.

Findings:

14.An examination of Ex.B6 shows that it is a sale deed executed by

the appellant’s vendors, one of whom is the second defendant in O.S.No.320 of

1999 in favour of the appellant. The schedule of property in Ex.B6 shows that it

pertains to Door Nos.8/4, 5 Vellakinaru Village, Coimbatore Taluk, within the

following boundaries: https://www.mhc.tn.gov.in/judis

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West of North South – Mettupalayam Road

North of East West – Subramaniyampalayam Main Road

East of the property belonging to Ramasamy and

West of the property belonging to the appellant’s vendors

15.Upon a perusal of Ex.A18, the unregistered sale agreement claimed

to be executed by the vendors of the appellant in favour of the first respondent,

it is seen that the same appears to have been executed by the second defendant

in O.S.No.320 of 1999 who is also a vendor of the appellant in favour of the

first respondent herein for selling the dwelling house bearing Door No.6,

Vellakinaru Village. The fact of this property under Ex.A18 being a dwelling

house and the door number are also clearly mentioned in the recitals to this

document, Ex.A18. The description of property in Ex.A18 states that it is a

dwelling house at Vellakinaru Village within the following boundaries;

North of the appellant’s tea shop

South of lineman’s house

East of the remaining property of the vendors and

West of Mettupalayam Road

16.Upon a perusal of Exs.A18 and B6, it is clearly evident that Ex.B6,

sale deed pertains to the sale of Door Nos.4 and 5 to the appellants while https://www.mhc.tn.gov.in/judis

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Ex.A18 pertains to a sale agreement pertaining to Door No.6 in favour of the

first respondent. Further a perusal of the Commissioner’s report, Ex.C1, it is

seen that the properties bearing Door Nos.4, 5 and 6 are situated on the west of

Coimbatore to Mettupalayam Road and north of Subramaniyampalayam Main

Road. It is further evident from Ex.C1 that the entire premises with Door No.5

is the suit property. This has been so represented by the appellant and the first

respondent and their respective counsels to the Advocate commissioner. This

report will clearly establish that there was no difficulty for the Advocate

Commissioner in identifying the suit property bearing Door No.5. The

Commissioner’s report further clearly locates the dwelling houses at Door

Nos.4 and 6 also. Further, the Commissioner’s report states that Door No.5 is

painted at the top of the door wtihin a black circle with No.5 written in white

colour. The Commissioner’s report further clearly mentions that on the north of

the suit property bearing Door No.5, the counsels and the parties have both

represented and pointed out to the Commissioner to note the house property

with Door No.6, which the Commissioner did. The Commissioner also notes

that Door No.6 is closed. These facts are evident from paragraph Nos.9, 15, 17

and 23 of the Commissioner’s report, which are extracted hereunder;

“9.The entire properties of Door Nos.4, 5 and 6 are

situated on the West of the Coimbatore to Mettupalayam Main

Road and on the North of the Subramaniapalayam Road. https://www.mhc.tn.gov.in/judis

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15.The entire premises with Door No.5 is noted as, A, B,

C, D, E, F, G, H, I, J, K, L, M, N. The entire portion is the suit

property with D.No:5 , as represented by both the counsels and

the parties presented, at the time.

17.However, at the entrance to the centre room the door at

D.No:5 is painted with blue colour. And on the door, at the top

in black round, No:5 is written in white colour. The centre

room is covered with old walls on four sides and the roofing is

also with wooden, thickly wooden materials called vittam and

sattam and also with reapers and calicut tiles. The condition of

the roofing, the floorings and the walls are also not good.

There is also a wooden top fitted with the roofing, that is called

attaley. This is for the purpose of keeping some light materials

also.

23.On the north of the suit property with Door No:5, the

counsels and the parties represented on both the visits and

pointed to the Commissioner to note the house property with

Door No:6 is situated. At the time, of the visits of the

Commissioner on both occasions, the Commissioner found it

and observed, that Door No:6 is closed. And it seemed, that it

was not in proper use, as pointed out by the counsels and also

as observed by the Commissioner during his visits.”

17.A further identification of the house properties with Door Nos.5

and 6 can be found in paragraph No.27 of the Commissioner’s report where it is

stated that the roof starts from the house with Door No.5 and leads north https://www.mhc.tn.gov.in/judis

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through the house with Door No.6. Therefore, the Commissioner’s report

clearly identifies Door Nos.5 and 6 as specific and separate dwelling houses.

The Commissioner’s plan, Ex.C2 which also specifies the boundaries also

reinforces the above facts as found in the Commissioner’s report. The

Commissioner’s plan is reproduced herein;

18.A comparative analysis of the schedule of properties in Exs.B6,

A18 in the light of Exs.C1 and C2 would clearly reveal that Door Nos.4, 5 and 6

are adjacent properties in a row and there is no discrepancy or inconsistency as

regards the property description mentioned in the schedules under Ex.A18 and

B6 and the property descriptions in the Commissioner’s report and plan, Exs.C1 https://www.mhc.tn.gov.in/judis

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and C2 reinforce this. Therefore, it is clear that the property bearing door Nos.4

and 5 is covered under Ex.B6, while the property bearing door No.6 is covered

under Ex.A18. This establishes that the suit property is the one mentioned in

Ex.B6. So, the issue of changing in door numbers does not arise.

19.In such circumstances, I find that both the Courts below have

grossly erred in not considering the Commissioner’s Report and

Commissioner’s Plan, Exs.C1 & C2 at all and also in not considering Exs.A18,

B6, in the light of Exs.C1 and C2, i.e., in their proper perspective. This has led

to perverse consideration of the documents Ex.B6 and A18 in identifying the

properties with respect to door number and boundary description, warranting

interference in this second appeal. Further, both the Courts below have grossly

erred in ignoring Exs.C1 & C2 and not considering Exs.C1 and C2 particularly

with reference to Exs.B6 and A18. This has led to non-consideration of material

documents which has led to incorrect and perverse findings being rendered by

both the Courts below.

20.It is settled law that when clear and cogent documentary evidence

is available, the Court should prefer to go by it and ignore minor inconsistencies

in the oral testimony of the witnesses. In this instant case, both the Courts below

have proceeded only on the basis of the oral testimony of the witnesses

considering the discrepancies therein without appreciating the description of the https://www.mhc.tn.gov.in/judis

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property with boundary details as clearly mentioned in documentary evidence

under Exs.B6 and A18 in the light of the Commissioner’s report and plan in

Exs.C1 and C2. Thus, both the Courts below have grossly erred in law in

preferring oral evidence disregarding the valid documentary evidence and not

appreciating the documentary evidence, viz, Exs.B6, A18, C1 and C2 interse so

as to decide the issues on hand. All of these has lead to perverse appreciation of

evidence warranting interference in this second appeal.

21.Therefore, from Ex.B6, it is clear that it pertains to the suit property

bearing Door No.5 while Ex.A18 pertains to the adjacent property bearing Door

No.6. The Commissioner’s plan and report reinforce these facts. Therefore, the

first substantial question of law is answered in the affirmative holding that both

the courts below have erred in holding that the identification of the property

differs on account of a change in the door numbers whereby they have over

looked boundaries as mentioned in as Exs.B6 and A18 in the light of Exs.C1

and C2.

22.This Court also finds that Ex.B6, Sale deed in favour of the

appellant has not been challenged by the first respondent. On the contrary, its

execution is not in dispute. The only grievance of the first respondent as regards

Ex.B6 is that the same has been executed so as to by pass his right to the suit

property to which he is entitled under the unregistered sale agreement, Ex.A18. https://www.mhc.tn.gov.in/judis

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From the analysis in the proceeding paragraphs, it is evident that from Exs.B6

and A18 looked at in the light of the Commissioner’s report and plan in Exs.C1

and C2, Door Nos.4, 5 and 6 are separate dwelling houses. Ex.B6 pertains to

Door No.5 and Ex.A18 pertains to Door No.6. As already held, the

Commissioner’s plan and report only confirm these facts. In such

circumstances, it was totally unnecessary for the first respondent to lay any

claim over the suit property in O.S.No.248 of 1989. The Courts below erred in

law in rejecting the relief or possession on the ground that declaratory relief was

not sought for. In this instant case, it is seen that the execution of Ex.B6 is not in

dispute, only the reason for its execution was disputed as being to by pass

Ex.A18.

23.That apart, from the description of the properties already discussed

at length above, it is clear that the property mentioned in Ex.B6, is different

from that in Ex.A18. So, there was no necessity for the first respondent to seek

any claim over the suit property covered under Ex.B6. Further, in view of the

non-filing of the second appeal by the first respondent challenging the judgment

and decree in A.S.Nos.32 and 207 of 2005 whereby the decree for specific

performance granted in his favour was set aside, removes any remote challenge

to Ex.B6. In view of this, the doctrine of lis pendens which had effected under

Ex.B6 during the proceedings before the Courts below also ceases to apply.

Therefore, the title deed, Ex.B6 is an undisputed document which already https://www.mhc.tn.gov.in/judis

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conveys title to the appellants and hence the same can be safely relied on.

Furthermore, Exs.B6 and A18 pertain to different properties viz., Door Nos.5

and 6 respectively, so the first respondent can have no grievance over the same.

The law in this regard is also well settled that a prayer for declaration is

necessary only if there is a denial of title by the defendant or challenge to the

plaintiff’s title raises a cloud on the title of the plaintiff to the property. In this

instant case, there is no dispute as regards the execution of Ex.B6, the cloud if

any caused in view of the doctrine of lis pendens being attracted, as Ex.B6 was

executed during the pendency of the earlier suit in O.S.No.320 of 1999 also

stands removed in view of non challenge of the judgment and decree in

A.S.Nos.32 and 270 of 2005 by the first respondent herein by preferring a

second appeal. Whereby the dismissal and claim of the first respondent based of

Ex.A18 stands rejected. Furthermore, there can be no cloud cast on title as from

the above discussions and the proper interpretation of the description of the

properties as mentioned in the property schedule of Exs.B6 and A18 would only

reveal that the suit property in O.S.No.248 of 1989 is distinct and different from

the property mentioned in Ex.A18 which is the subject matter of the other suit

in O.S.No.320 of 1999. Exs.C1 and C2, the Commissioner’s report and plan

reinforce these facts. Therefore, in such circumstances, it cannot be said that

there is a denial of title by the first respondent over the suit schedule property of

the appellant claiming under Ex.B6 or that a cloud has been cast on its title. https://www.mhc.tn.gov.in/judis

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24.In the light of the above observations, the second substantial

question of law is also answered in the affirmative holding that both the Courts

below have erred in dismissing the suit on the ground that the appellant had

only filed the suit for recovery of possession without praying for the relief of

declaration of title on the basis of his title deed, Ex.B6. overlooking the fact that

Ex.B6 is an admitted document, not in dispute and the respondent having

admitted the same.

25.Therefore, in the facts and circumstances of this case, this Court

finds that though the appellants have sought for possession along with damages

and costs, this Court is granting relief only for possession and costs. As regards

the relief of damages, it is seen that no issue was framed for determination by

the Trial Court. Nor was this a subject of contest before the First Appellate

Court or before this Court. Further, there is no material evidence to establish

any actual damages suffered by the appellants. Hence, the relief of damages

alone is not granted.

26.In view of the above, the judgment and decree in O.S.No.248 of

1989 as confirmed in appeal in A.S.No.110 of 2004, dismissing the suit are set

aside and the suit is partly decreed with regard to the relief of possession and

costs alone. https://www.mhc.tn.gov.in/judis

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27. In the facts and circumstances of the case, for the reasons mentioned

above, the costs is to be awarded to the appellant throughout. Consequently,

connected Miscellaneous Petitions are closed.

28-09-2026

Index: Yes/No

Speaking/Non-speaking order

Neutral Citation: Yes/No

VKR

To

1.The Appellate Authority & I Additional Subordinate Judge,

Coimbatore.

2.The I Additional District Munsif,

Coimbatore. https://www.mhc.tn.gov.in/judis

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GK.MUTHUKUMAAR, J.

VKR

A Pre-delivery Judgment in

SA No. 436 of 2008

28.09.2026 https://www.mhc.tn.gov.in/judis