(Prayer: First Appeal filed under Section 96 read with Order XLI Rule 1 of Code of Civil Procedure, 1908, praying to set aside the Judgment and Decree dated August 8, 2016 made in O.S. No.54 of 2015 on the file of II Additional District Court, Chidambaram.)

R. Sakthivel, J.

1. Feeling aggrieved by the Judgment and Decree dated August 8, 2016, passed in O.S. No.54 of 2015 on the file of 'the II Additional District Court, Chidambaram' ('Trial Court' for short), the plaintiffs therein have filed this Appeal Suit under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908 praying to allow the Appeal, set aside the Judgment and Decree, and decree the Suit as prayed for in the plaint.

2. For the sake of convenience, henceforth, the parties to this Appeal Suit will be referred to as per their array in the Original Suit.

PLAINTIFFS' CASE

3. The suit properties consist of 'A' and 'B' schedules of properties. The Suit 'A' schedule property measures 22 feet east-west and 172 feet north-south and it lies within the specific four boundaries. The Suit 'B' schedule property, measuring 11 feet east-west and 172 feet north-south, constitutes the western half portion of the Suit 'A' schedule property. In other words, the Suit 'B' schedule property forms a part and parcel of the Suit 'A' schedule property.

                   3.1. The Suit 'A' schedule property originally belonged to Muthu Padayatchi and his son - Semba Padayatchi as their ancestral entitlement and each were entitled to undivided ½ share. There existed a tiled house towards the middle of the Suit 'A' schedule property, with its major portion lying on the eastern side. There also existed a 6 feet north-south lane within Suit 'A' schedule property on its western side. The property abutting the northern boundary of Suit 'A' schedule property belongs to the Math of Mouna Guru Manickavasaga Swamigal. Semba Padayatchi sold his undivided half share in the Suit 'A' schedule property to Manickavasaga Swamigal vide Sale Deed dated June 26, 1912, registered on June 27, 1912, under Document No.1446. Pursuant to the sale, Manickavasaga Swamigal was in possession and enjoyment of the western half of Suit 'A' schedule property, which is the Suit 'B' schedule property.

                   3.2. Thereafter, under his Will dated December 17, 1921, Manickavasaga Swamigal created a religious trust, and inter-alia dedicated the property purchased by him through the aforesaid Sale Deed under Document No.1446, to the said trust for religious charitable purposes. Further, under the said Will, Manickavasaga Swamigal appointed Ambalavana Pillai, Murugesan Pillai and their santhathi (descendants), as trustees to manage and continue the administration of the said trust.

                   3.3. Ambalavana Pillai and Murugesan Pillai discharged their duties as trustees until their respective deaths. Thereafter, Murugesan Pillai's son - Ponnambala Pillai, acted as trustee and was in possession and enjoyment of the Suit 'B' schedule property. During his lifetime, a portion of the tiled house in the 'B' Schedule property collapsed. Ponnambala Pillai died about 30 years prior to the Suit, and since then the plaintiffs, being his sons, have been in possession and enjoyment of the Suit 'B' schedule properties as trustees.

                   3.4. That being so, the first defendant is the mother of the second defendant and widow of one Chakravarthy. Said Chakravarthy died about four to five years prior to the Suit. Around the year 2009, Chakravarthy encroached upon the southern portion of Suit 'B' schedule property to an extent of 10 feet X 10 feet. Chakravarthy claimed that he had purchased the said portion from Venkatarama Iyer, son of Krishnamurthy Iyer in 1971. The plaintiffs subsequently came to know that Krishnamurthy Iyer had allegedly purchased the property from Krishnasamy Iyer on June 21, 1943.

                   3.5. Hence, the plaintiffs have filed the present Suit for partition of the plaintiffs' half share in Suit 'A' schedule property and pursuant allotment and separate possession of the Suit 'B' schedule property in favour of them. Further, the plaintiff sought for a mandatory injunction directing the defendants to remove the superstructure put up on the Suit 'B' schedule property.

DEFENDANTS' CASE

4. The defendants filed a written statement denying the averments made by the plaintiffs in the plaint. The defendants contended that the registered Sale Deed dated June 27, 1912 executed by Semba Padayatchi, and Manickavasaga Swamigal's Will dated December 17, 1921, are irrelevant to the case on hand and also baseless; they are not related to the suit properties. It was further stated that the father of the second defendant purchased the suit properties vide Sale Deed dated August 25, 1971 and he was in possession and enjoyment of the same. After his lifetime, the defendants being his successors are in possession and enjoyment of the suit properties. Stating so, the defendants sought dismissal of the Suit.

TRIAL COURT

5. On these pleadings, the parties went to trial. The Trial Court framed issues, which can be loosely translated as follows:

                   '1 Whether the plaintiffs are entitled to claim ½ share in the Suit 'A' schedule property?

                   2. Whether the plaintiffs are entitled to seek partition in the Suit 'B' schedule property?

                   3.  Whether the plaintiffs are entitled to Preliminary Decree as prayed for?

                   4. Whether the plaintiffs are entitled to Mandatory Injunction as prayed for?

                   5. To what other reliefs?'

6. At trial, on the side of the plaintiffs, plaintiffs examined themselves as P.W.1 and P.W.2 respectively and Ex-A.1 to Ex-A.3 were marked. On the side of the defendants, second defendant was examined as D.W.1 and Ex-B.1 to Ex-B.14 were marked.

7. The Trial Court after analysing the oral and documentary evidence, concluded that the plaintiffs did not establish that Muthu Padayatchi and his son - Semba Padayatchi were the original owners who were in possession and enjoyment of the suit properties. On the other hand, the defendants have traced title from the year 1903 and proved their possession and enjoyment of the suit properties. As the defendants have a better title in respect of the entire suit properties, the Trial Court dismissed the Suit.

APPEAL

8. Feeling aggrieved by the Judgment and Decree dated August 8, 2016 of the Trial Court, the plaintiffs have preferred this Appeal Suit.

9. Since the second appellant / second plaintiff passed away during the pendency of this Appeal, his legal representatives were brought on record as Appellant Nos.3 to 5, vide Order of this Court dated March 12, 2024 made in C.M.P. No.2118 of 2024 in A.S. No.21 of 2017. Likewise, the first appellant / first plaintiff also passed away during the pendency of this Appeal and his legal representative was brought on record as Appellant No.6, vide Order of this Court dated December 5, 2025 made in C.M.P. Nos.1216, 1217 and 1218 of 2025 in A.S. No.21 of 2017.

ARGUMENTS

10. Mrs.Hema Sampath, learned Senior Counsel assisted by Mrs.R.Meenal, appearing for the appellants / legal representatives of plaintiffs would submit that the suit properties were originally owned by Muthu Padayatchi and his son - Semba Padayatchi as their ancestral property. Vide Ex-A.1 - Sale Deed dated June 26, 1912, Semba Padayatchi sold his undivided ½ share in Suit 'A' schedule property in favour of Manickavasaga Swamigal. Manickavasaga Swamigal's Math is situate abutting the northern boundary of Suit 'A' schedule property. On the western portion of Suit 'A' schedule property, there is a north-south lane, linking the road on south and the Math on north. Hence, Manickavasaga Swamigal was in possession and enjoyment of the western portion of the suit properties; in other words, he was in possession and enjoyment of the Suit 'B' schedule property.

                   10.1. She would further submit that Manickavasaga Swamigal executed Ex-A.2 - Will dated December 17, 1921, wherein and whereby, he created a trust and dedicated the property covered under Ex-A.1 along with some other properties to the said trust for religious charitable purposes. The plaintiffs qua the present trustees of the trust created by Manickavasaga Swamigal, are in possession and enjoyment of the trust's properties including Suit 'B' schedule property. While so, the defendants encroached an extent of 10 feet X 10 feet on the southern portion of Suit 'B' schedule property. Hence, the plaintiffs seeks to partition the Suit 'A' schedule property into equal halves and allot the western half in favour of the plaintiffs after removing the superstructure therein.

                   10.2. She would further submit that the defendants trace their title from the year 1903 under Ex-A.3 - Sale Deed dated February 26, 1903. The suit properties were allegedly purchased from one Sellammal. While the four boundaries mentioned therein correlates with that of the suit properties, the east-west measurement are written in Tamil numerals and are not visibly clear. According to her, for that reason, the defendants cannot claim title over the entire extent of suit properties.

                   10.3. Further she would submit that Sellammal executed Ex-B.1 - Sale Deed in favour of Samikannu Padayatchi and his brother - Periyathambi Padayatchi, in respect of a north-south stretch of land whose east-west measurement is 19 foot [1 foot = 12 inches; so 19 foot = 15.8 feet], while retaining her hut in the western portion. Thereafter, Samikannu Padayatchi and his minor son executed Ex-B.2 - Sale Deed dated September 2, 1919 in favour of Krishnasamy Iyer in respect of the north south stretch of land, but with an east-west measurement of 26.5 foot [26.5 foot = 22 feet as mentioned therein]. When Samikannu Padayatchi's predecessor in title namely Sellammal had sold only east-west 19 foot in the north-south stretch of land under Ex-B.1, it is not possible for Samikannu Padayatchi and his minor son to sell east-west 26.5 foot under Ex-B.2. In the documents subsequent to Ex-B.2 viz., Ex-B.3 to Ex-B.5, the erroneous measurement of 26.5 foot has been followed. Hence, these documents would not bind the plaintiffs. The Trial Court without appreciating Ex-A.1, Ex-A.2 and other evidence available on record, erred in dismissing the Suit. Accordingly, she would pray to allow the Appeal Suit, set aside the Judgment and Decree of the Trial Court and decree the Suit as prayed for.

11. Opposing the submissions, Mr.A.Muthukumar, learned Counsel appearing for the respondents / defendants would submit that the plaintiff failed to establish that the suit properties originally belonged to Muthu Padayatchi and Semba Padayatchi, nor did the plaintiff establish their alleged possession and enjoyment of the suit properties. Further, Ex-A.1 - Sale Deed & Ex-A.2 - Will are inadmissible as they are not the original documents and there is no foundational plea for letting in secondary evidence. Further, there is no evidence to show that the purchaser under Ex-A.1 and testator under Ex-A.2, namely Manickavasaga Swamigal, was in possession and enjoyment of the Suit 'B' schedule property. He would refer to the evidence of P.W.1 and submit that it has been admitted by P.W.1 that the suit properties are not in possession and enjoyment of the plaintiffs. Hence, the Suit as framed by the plaintiffs is not maintainable.

                   11.1. He would further submit that the defendants have successfully traced their title from the year 1903 vide Ex-A.3 - Sale Deed, wherein Sellammal @ Sellathamal purchased a north-south strip of land measuring east-west 25.5 foot. Though the east-west measurement is not visibly clear owing to the age of the document, in the register of index relating to Ex A.3 - Sale Deed called for from the Registration Department by this Court, the east-west measurement is clearly mentioned as 25.5 foot. The subsequent documents in Ex-B.2 to Ex-B.5 proves the defendants title over the suit properties. Further, the second defendant's father - Chakravarthy obtained building permission (Ex-B.6) in the year 2003, wherein the east west measurement has been clearly mentioned as 21.9 feet. Further Ex-B.7 - Licence to construct building, Ex-B.11 - Property Tax Receipt, Ex-B.12 - Electricity Connection Transfer Letter, Ex-B.13 - Development Charges Receipt, Ex-B.14 - Licence Fee Receipt, these documents clearly establish the defendants' title and possession over the suit properties. The Trial Court after carefully appreciating the entire evidence available on record rightly dismissed the Suit and there is no warrant to interfere with it. Accordingly, he would pray to dismiss the Appeal Suit and sustain the Judgment and Decree of the Trial Court.

DISCUSSION AND DECISION:

12. Upon hearing either side and perusing the evidence available on record, the following points arise for consideration in this Appeal Suit:

                   (i) Whether the suit properties were originally owned by Muthu Padayatchi and Semba Padayatchi as their ancestral entitlement and whether they were in possession and enjoyment of the suit properties in 1912 ?

                   (ii) Whether Manickavasaga Swamigal was in possession and enjoyment of the Suit 'B' schedule property pursuant to Ex-A.1 - Sale Deed executed by Semba Padayatchi in respect of his ½ undivided share in the suit properties ?

                   (iii) Whether the defendants have established their title and possession over the entire extent of suit properties ?

                   (iv) Whether the Judgment and Decree of the Trial Court is liable to be interfered with by this Court?

13. There is no dispute with respect to the lie and location of Suit 'A' schedule property, which is a north-south strip of The Suit 'A' schedule property as described measures north-south 172 feet and east-west 22 feet. It is bounded by the Manickavasaga Swamigal's Math on the north; an east-west road on the South; another Math on the East; and land belonging to Natraja Padayatchi and Anjala Padayatchi on the West. There is a north south lane lying within the Suit 'A' schedule property. No serious dispute with the above facts.

14. In Ex-A.1 - Sale Deed dated June 26, 1912 [registered on June 27, 1912 under Document No.1446], it has been recited that Semba Padayatchi is thereunder selling his undivided ½ share in Suit 'A' schedule property in favour of Manickavasaga Swamigal. But there is no documentary or oral evidence to trace the vendor - Semba Padayatchi's title over the suit properties. Further, there is no evidence to show that the vendor - Semba Padayatchi was in possession and enjoyment of the suit properties in 1912, let alone settled possession. Nor is there any evidence to show that pursuant to the sale under Ex-A.1, Manickavasaga Swamigal was in possession and enjoyment of the suit properties or any portion thereof. Furthermore, P.W.1 as well as P.W.2, who are the plaintiffs 1 and 2 respectively, have categorically admitted that the defendants are in possession and enjoyment of the suit properties, and importantly, they did not deny Ex-B.1 to Ex-B.5 - Sale Deeds; they pleaded ignorance about the said Sale Deeds. They even about pleaded ignorance about the possession and enjoyment of Manickavasaga Swamigal. This Court deems fit to extract the relevant portion of the evidence of P.W.1 and P.W.2 hereunder:

                  

                  

15. Further, as rightly contended by the learned Counsel for the Respondents / Defendants, the Sale Deed and the Will marked in Ex-A.1 and Ex-A.2 respectively are not the originals and there is no foundational plea in this regard.

16. On the other hand, the defendants have traced their title from 1903 through Ex-A.3 and Ex-B.1 to Ex-B.6 - Sale Deeds. Vide Ex-A.3 - Sale Deed dated February 26, 1903, Sellammal purchased a north-south strip of land in the Suit survey number within specific four boundaries from Gopala Chettiyar and Kuttiaandi Padayatchi. In Ex-A.3, the east-west measurement of the property covered thereunder is mentioned in Tamil numerals and further it is not visibly clear. The measurement could not be deciphered. Hence, this Court vide Order dated January 21, 2026, inter alia directed the Sub Registrar, Chidambaram to produce the register relating to encumbrances during the period of 1890 to 1912 relating to suit properties. The Sub Registrar, Chidambaram produced the register of index relating to Ex-A.3, which clearly shows the east-west measurement of the property covered under Ex-A.3 as 25 ½ foot. Relevant extract from the register of index reads thus:

                  

                  

17. Hence, it is clear that under Ex-A.3, a north-south strip of land having east-west measurement of 25 ½ foot in Suit survey number within specific four boundaries was sold to Sellammal @ Sellathammal. Admittedly, the specific four boundaries of the property covered under Ex A.3 matches that of the suit properties and it is in the Suit survey number. Further, the north-south and east-west measurements also more or less matches that of the suit properties. Hence, it is safe to say that Sellammal @ Sellathammal purchased the suit properties under Ex-A.3.

18. After acquiring the suit property which is a north - south strip of land under Ex-A.3, Sellammal executed Ex-B.1 - Sale Deed dated July 7, 1911 in favour of Saamikannu Padayachi and Periyathambi Padayachi, conveying a portion of the suit properties to the extent of east-west 19 foot, while retaining the remaining portion on the western side. To be noted, there is no serious dispute with the north-south measurement of the north south strip of land originally purchased under Ex-A.3; the dispute lies only with its east-west measurement.

19. Thereafter, under Ex-B.2 - Sale Deed dated September 2, 1919, Saamikannu Padayachi and another sold the north-south strip of land to the extent of east-west 26 ½ foot, which is 22 feet as mentioned in Ex-B.2, in favour of Krishnasamy Iyer. It remains unexplained how Saamikannu Padayachi and another sold east-west 26 ½ foot [22 feet], when vendor - Sellammal sold only east-west 19 foot under Ex-B.1 - Sale Deed. 20. Be that as it may, thereafter, the property covered under Ex-B.2 was sold by Krishnasamy Iyer and others, to Krishnamoorthy Iyer, describing east-west measurement as 22 feet vide Ex-B.3 - Sale Deed dated June 21, 1943. It is recited therein that the east-west 22 feet includes the 6 feet Naarasam on the western side. Naarasam as described in A Comprehensive Tamil-English Dictionary by M.Winslow [Asian Educational Services, New Delhi & Chennai, 2011], means a narrow straight land at a right angle to a street. Further, vide Ex-B.4 - Release Deed dated January 8, 1944, Minor Natrajan expressed his consent for the sale under Ex-B.3 after attainting the age of majority [though Ex-B.4 bears the nomenclature of Release Deed, it is a Consent Deed in substance].

21. Under Ex-B.5 - Sale Deed dated August 25, 1971, Venkatrama Iyer, son of Krishnamoorthy Iyer [vendee under Ex-B.3], sold the same extent viz., east-west 22 feet, to second defendant's father. Thus, the defendants would trace their title to the suit properties.

22. In order to prove their possession and enjoyment of the suit properties, the defendants have marked Exs-B.7, B.11 to B.14. Ex-B.7 is a licence obtained in the year 2001 to construct building, Ex-B.11 is a property tax receipt obtained in 1973, Ex-B.12 is a no objection letter from vendor - Venkatrama Iyer to vendee - Chakravarthy [second defendant's father] written in 1972, for the purpose of effecting electricity connection name transfer. Ex-B.13 - Development Charges Receipt and Ex-B.14 - Licence Fee Receipt were issued in favour of defendants' side in the year 2013. All these documents are in respect of the suit properties. Bare perusal of these documents establish the possession and enjoyment of the north-south strip of land to the extent of east-west 22 feet, by the defendants' side.

23. Although the defendants have traced their title from the year 1903 in a largely clear manner, it is true that there exist a small gap or rather discrepancy with respect to east-west extent, in the chain of defendants' title between Ex-B.1 and Ex-B.2 - Sale Deeds as stated supra. There appears to be some discrepancy in the extent of east-west 26½ foot [21 feet] in the north-south strip of land [suit property] conveyed by Saamikannu Padayachi and another, inasmuch as their vendor - Sellammal had conveyed only east-west 19 foot under Ex-B.1 - Sale Deed while retaining east-west 6 feet in the western side thereof. But in Ex-B.3 - Sale Deed, there is a specific recital that the east-west 22 feet covered thereunder includes the 6 feet Naarasam. Furthermore, as stated supra, the defendants have established their possession over the entire extent of suit properties vide Exs-B.7, B.11 to B.14. It is possible that Sellammal subsequently conveyed the east-west 6 feet portion retained by her, but there is no evidence in this regard, nor is there any pleadings to explain the discrepancy. However, as elaborated above, plaintiffs' have miserably failed to establish their alleged title, rights and possession over the suit properties. In fact, in their evidence as P.W.1 and P.W.2, they have supported the case of defendants by deposing that the entire extent of suit properties is under the possession and enjoyment of the defendants. Further, have not denied the defendants' Sale Deeds but have just evasively deposed that they are not aware of the same. Further, the Sale Deeds in Ex B.3 and Ex-B.5 and the Release Deed in Ex-B.4 are originals. Under such circumstances, on a holistic consideration of the facts and circumstances as well as the evidence available on record, this Court comes to the conclusion that the defendants have established a better title than the plaintiffs. Hence, the plaintiffs are not entitled to the reliefs sought for.

24. Moreover, the Suit is not maintainable for the reason that the plaintiffs ought to filed the Suit in their capacity as trustees of the trust created by Manickavasaga Swamigal. The plaintiffs are claiming title and right over the Suit 'B' schedule property by describing it as trust property and by virtue of the fact that they are the present trustees of the trust. Bare reading of the cause title shows that the Suit has been filed by the plaintiffs in their individual capacity. As individuals, they have no claim over the suit properties. Hence, the Suit is not maintainable on that score.

25. The Trial Court after considering the evidence available on record, rightly dismissed the Suit and this Court finds no reason to interfere with its Judgment and Decree. Point Nos.(i) to (iv) are answered accordingly in favour of defendants and against the plaintiffs. As all the points for consideration are inter-twined, they were combined and answered.

CONCLUSION

26. Resultantly, the Appeal Suit stands dismissed. In view of the facts and circumstances of this case, there shall be no order as to costs. Consequently, connected Civil Miscellaneous Petition is closed.