MEMORANDUM OF GROUNDS OF SECOND APPEAL

(Under Section 100 of C.P.C)

IN THE COURT OF THE DISTRICT MUNSIF, KULITHALAI

O.S.NO.103/2003

IN THE COURT OF THE SUBORDINATE JUDGE, KULITHALAI

A.S.NO.26/2009

IN THE HIGH COURT OF JUDICATURE, MADRAS AT MADURAI BENCH

S.A. of 2010

Trial Court /Appellant Court/High Court

Krishnan,
Son of Veerakutti Mooppan,
Konaparayan Kulam,
Renganathapuram Village,
Manavasi Post,
Krishnarayapuram Taluk,
Karur District. … Plaintiff/1st Respondent /Appellant

- Vs -

1. The Tahsildar,
Krishnarayapuram Taluk,
Krishnarayapuram,
Karur District.

2. The Revenue Divisional Officer,

3. State,
Represented by
District Collector,
Karur District,
Collectorate,
Thanthonimalai,
Karur.
4. Dr.Govindasamy,
Son of Karuppannan,
Chairman Muthukaruppan Street,
Opp. To Urakadai Lane,
Pasupathipalayam,
Karur – 639004.
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5. Krishnan,
Son of Velayutham,
Konaparayan Kulam,
Renganathanpuram Village,
Manavasi Post,
Krishnarayapuram Taluk,
Karur District.

6. Palanisamy,
Son of Mottaiyan,
Konaparayan Kulam,
Renganathanpuram Village,
Manavasi Post,
Krishnarayapuram Taluk,
Karur District.
… Defendants/Appellants &
Respondents/Respondents

The address for service of process and notices on the petitioner is

that of his counsel M/s. E.K.Kumaresan, B.Saravanan and K.Suresh,

Advocates, having office at No.41, Managiri – 3rd Street, Near Arulmalar

Convent, K.K.Nagar, Madurai.

The address for service of notices and processes on the respondents

is as stated above

The appellant above named begs to prefer this Memorandum of

Grounds of Second Appeal against the Judgment and Decree passed in

A.S.No.26 of 2009 dated 28-10-2009 on the file of Subordinate Judge,

Kulithalai reversing the judgment and decree passed in O.S.103/2003

dated 14-02-2008 on the file of District Munsif, Kulithalai, for the following

amongst other.

GROUNDS

1. The common Judgment and Decree of the Lower Appellate

Court in A.S.26/2008 and A.S.26/2009 are contrary to Law and constitute

complete misdirection as to relevant points in issue, misconstruction and

complete overlooking of vital materials on record in setting aside the well

considered judgment of the learned trial judge.

2. The learned 1st appellate judge ought to have confirmed the

decree and judgment passed by the learned trial judge by considering the

possession of the appellant over the suit property on the date of suit.

3. The first appellate court miserably not only failed to give due

weight and consideration to the failure on the part of the respondents in

establishing title or possession to the suit properties but also committed a

grave error in failure to appreciate the admission made by the respondents

before the Trial Court regarding the classification of suit property as Grama

Natham.

4. The first appellate court has erroneously come to the

conclusion that the appellant has not established that the suit property is a

Grama Natham. In fact the respondents had admitted before the trial court

during the cross examination that the suit property is a Grama Natham

and Ex.B7 also confirms that the suit property is a Grama Natham. As

such, the first appellate court failed to consider the settled position of Law

that the admission made by the opposite party is the best evidence.

5. The first appellate court has placed much reliance on the

documents produced by the respondents before the 1st appellate court,

which are the documents created subsequent to the suit and as such, the

same cannot be entertained for deciding the present issue.

6. The first appellate court has not given any proper explanation

for its conclusion particularly no explanation has been given for rejecting

the registered Sale Deed dated 28-09-1994 executed in favour of the

appellant. The learned first appellate judge ought to have given

consideration to the registered Sale Deed dated 28-09-1994.

7. The first appellate court has erroneously come to the

conclusion that the appellant has not obtained any title deed from his

vendor. It is already established that the vendor of the appellant owned the

suit property ancestrally and as such, there cannot be any title deeds for

ancestral properties. This vital aspect is not considered by the first

appellate judge while drawing a conclusion on the basis that the appellant

has not received the title deeds.

8. The first appellate judge has failed to consider the admission

made by the respondents in their written statement, chief examination of

Dw2, cross examination of Dw2 and Dw3, that the suit property is a Grama

Natham. But, the first appellate court over looked the admissions and

erroneously concluded that the appellant has not established that the suit

property is a Grama Natham.

9. The learned first appellate Judge ought to have confirmed the

decree and judgment passed by the trial judge in view of the admission

made by Dw3 during cross examination that the appellant is in possession

over the suit property. The learned first appellant judge failed to consider

the important position of Law that in a suit for bare injunction, possession

over the suit property on the date of suit is very material. Admittedly, the

appellant is in possession and enjoyment over the suit property even

according to the documents exhibited by the respondents and the evidence

given by the respondents.

10. The first appellate court failed to consider the decision reported

in 2000(2) MLJ – Page 636 regarding Grama Natham and the same

squarely applies to the present case.

11. The first appellate judge has failed to consider that the

respondents have not putforth any defense regarding the title over the suit

property. In the absence of any defense, The first appellate judge ought to

have concluded basing upon the acceptable documents rather than the

documents which were subsequent to the suit. It is not the case of the

respondents that the Sale Deed dated 28-09-1994 created by the appellant

in anticipation of the dispute arose in the year 2003. As such, the first

appellate judge ought to have given consideration to the registered Sale

Deed dated 28-09-1994 executed in favour of the appellant.

12. The first appellate court has drawn an incorrect conclusion

that the suit property is not a Grama Natham, which is not supported by

any documentary evidence and against the available evidence.

13. The first appellate court has not given any property explanation

for rejecting the admission made by Dws regarding the classification of suit

property as Grama Natham.

14. The first appellate court ought to have given consideration to

the evidence of Pws and Ex.A –series. The conclusion of the first appellate

court for accepting the documents produced by the respondents before the

first appellate court is erroneous and unsustainable in Law.

15. The conclusion of the first appellate court in its judgment

demonstrates lack of any serious or judicious appreciation in not only

trying to condone the lapses made by the respondents in establishing their

definite case regarding the classification of suit property but also rejecting

the admissions made by the respondents during their examination before

the Trial Court.

16. The learned first appellate judge failed to consider the written

admission made by the respondents 1 to 3 in para of their written

statement that “the suit property and adjacent properties are the

Village Natham in the hamlet of Konarparayar Kulam of

Renganathapuram Village”. This is vital admission in writing and the

same ought to have been given due consideration by the first appellate

Judge.

17. The learned first appellate judge has failed to consider the

provision of Section 58 of Evidence Act regarding admissions. When the

admission of Dws are taken into consideration, then the respondents 1 to 3

on behalf of the Government have no right to deal with or make any claim

over the suit property. This aspect has not been considered by the first

appellate judge while drawing its conclusion.

18. The lower appellate court committed a grave error in

dismissing the suit in O.S.103/2003 by allowing the appeal in A.S.26/2008

and A.S.26/2009 on the sole ground that the appellant has not established

that the suit property is a Grama Natham, which was done without any

legally based findings nor there was any discussion in the judgment of the
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lower appellate court so as to arrive a conclusion about the classification of

suit property in any category other than Grama Natham.

19. The Judgment and decree as made in A.S.26/2008 and

A.S.26/2009 in reversing the decree and judgment passed in O.S.103/2003

is totally perverse for the sole reason that the suit was dismissed without

appreciation of the acceptable documents and evidence even adduced on

the part of the respondents.

20. The Judgment and decree as made in A.S.26/2008 and

A.S.26/2009 in reversing the decree and judgment passed in O.S.103/2003

is totally erroneous for the reason that the possession of the appellant over

the suit property is not seriously disputed by the respondents particularly

the possession of the plaintiff over the suit property on the date of suit.

21. The Judgment and decree as made in A.S.26/2008 and

A.S.26/2009 in reversing the decree and judgment passed in O.S.103/2003

is non-est in Law in view of the fact that the appellant has proved his

possession over the suit property by producing Ex.A1 and A2.

22. The Judgment and decree as made in A.S.26/2008 and

A.S.26/2009 in reversing the decree and judgment passed in O.S.103/2003

is not legally sustainable for the reason that the Lower Appellate Court not

rendered any finding or reason in order to set aside the findings of the trial

court.

23. The common judgment of the first appellate court is liable to be

setaside and the suit filed by the appellant is liable to be decreed in the

interest of justice and fair play.

24. At any date, the judgment and decree of the lower appellate

court is liable to be setaside and the judgment and decree of the trial court

is liable to be restored.

The appellant submits that the following substantial questions of law

arise for the kind consideration of this Hon’ble Court in the facts and the

circumstances of the case.

SUBSTANTIAL QUESTIONS OF LAW

A. Whether the first appellate court’s finding in respect of the

classification of suit property in reversed of the trial court suffer infirmity of

rejection of admissions made by the respondents or flimsy grounds and

disregard the acceptable document viz. the Sale Deed dated 28-09-1994.

B. Whether the lower appellate judge was right in holding that the

suit property is not a Grama Natham especially in the light of admissions

made by Dws.

C. Whether the appellate is in possession of the Grama Natham

lands is not entitled to a decree as prayed for especially in the light of

admission made for Dw3.

D. Whether the lower appellate court was right in dismissing the

suit in favour of the respondents by concluding that the suit property is not

a Grama Natham as against the case put forth by the respondents 1 to 3 in

contending that the suit property is a Grama Natham in their Written

Statement.
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E. Whether the lower appellate court was right in concluding the

suit property as poromboke which was not the case of the respondents by

virtue of their Written Statement.

F. Whether the respondents 1 to 3 on behalf of the Government

right had got any vested right over the properties which are classified as

Grama Natham.

G. Whether the lower appellate court was right in rejecting the

admissions of the opposite parties, which is the best evidence.

H. Whether the judgment and decree of the lower appellate court

in dismissing the suit in O.S.103/2003 is liable to be setaside on the

ground that the lower appellate court has reversed the judgment and

decree of the trial court without rendering any findings or reasonings while

reversing the judgment of the trial court and allowed the first appeal

without rendering any finding as to who is in possession over the suit

property.

The appellant states that the above substantial questions of Law have

arisen for the kind consideration of this Hon’ble Court and craves leave of

this Hon’ble Court to frame such other substantial questions of Law at the

time of hearing the appeal.

In the above circumstances, it is humbly prayed that this Hon’ble

Court may be pleased to setaside the judgment and decree of the appellate

court as made in A.S.26/2009 dated 28-10-2009 on the file of the

Subordinate Judge, Kulithalai reversing the judgment and decree of the

trial court in O.S.103/2003 dated 14-02-2008 on the file of District Munsif,

Kulithalai and pass such further or other orders as this Hon’ble Court

deem fit and proper to the circumstances of the case and thus render

justice.

MEMO OF VALUATION

Value of the suit : Rs.400

Court Fees paid : Rs.30.50

Value of First Appeal : Rs.1000

Court Fees paid : Rs.75.50

Value of Second Appeal : Rs.1000

Court Fees paid : Rs.75.50

Dated at Madurai on this day of September, 2010.

COUNSEL FOR APPELLANT

KARUR DISTRICT

IN THE HIGH COURT OF

(Civil Appellate Jurisdiction)

S.A.No. /2010

MEMORANDUM OF
GROUNDS OF
SECOND APPEAL

Address for Service

E.K.Kumaresan, B.A.,B.L.,
M.Ashfaq Ahmed, B.A.,B.L.,
R.Prakash, B.Com.,B.L.,
M.Saminathan, B.Com., B.L.,
K.Suresh, M.B.A., B.L.,
No.46, Narasimmapuram
Middle Street, Karur -1.
Advocates