Research › Browse › Judgment

Madras High Court · body

1988 DIGILAW 97 (MAD)

P. Latha v. Thiruthangal Major Town Panchayat through its Executive Officer, Kamarajar District

1988-02-19

M.KARPAGAVINAYAGAM

body1988
Judgment :- This Second Appeal is directed against the judgment and decree passed in A.S. No. 11 of 1996 on the file of Additional District Judge, Srivilliputhur dated 8.2.1996, confirming the judgment and decree passed in O.S. No. 247 of 1993 on the file of Principal District Munsif, Sathur, dated 31.3.1994. 2. The appellant is the defendant. The respondent herein filed a suit against the appellant for permanent injunction restraining her from interfering with the plaintiffs peaceful possession and enjoyment of the suit property. The case of the plaintiff is that the plaintiff being a Major Town Panchayat has been in possession of the suit property, a well, which is used by the public and that on the strength of a sale deed, the defendant, the appellant herein tried to disturb the possession by attempting to construct a wall around the well. The case of the defendant is that the suit property belongs to him by virtue of the sale deed dated 11.9.1991. 3. The trial Court, after considering the evidence of P.W.1, the Executive Officer of the Major Town Panchayat, Exs.A1 to A3 and the evidence of D.Ws.1 and 2 and Exs.B1 to B3, decreed the suit granting the relief of permanent injunction in favour of the plaintiff, as against the appellant herein. Aggrieved over the same, the appellant filed an appeal before the lower Appellate Court, which was also dismissed confirming the verdict of the trial Court. Hence, the Second Appeal. 4. Mr. Sivaji, appearing for the appellant, effectively submitted that both the Courts below have omitted to consider the important questions of law, which resulted in the miscarriage of justice. He would also point out by reading through the judgments of Courts below and the evidence of P.W.1 that the plaintiff has not made out a case for seeking the relief of permanent injunction. 5. According to the counsel for the appellant, the suit itself is not maintainable, since the Executive Officer of the Major Town Panchayat filed the suit even without the authorisation given by the elected body of the Panchayat. It is also contended that when the Panchayat Union transferred the properties to the Village Panchayat under Section 71 of the Panchayat Act, there must be a vesting order and the same had not been filed. It is also contended that when the Panchayat Union transferred the properties to the Village Panchayat under Section 71 of the Panchayat Act, there must be a vesting order and the same had not been filed. In the absence of those documents, it is submitted that the well could not be said to be belonging to the plaintiff. 6. The counsel has further contended that under Ex.B3 the appellant got the decree and judgment in respect of the same suit property as against one Muniyandi, who attempted to disturb her possession of the same. He proceeded to submit that when the plaintiff has failed to prove the fact how it became the owner and how the property was handed over to the possession of the plaintiff, both the Courts below ought not to have decreed the suit. On the basis of this point, the counsel for the appellant took pains to argue the case for admission by elaborately referring to the various portions of the judgments of the Courts below and the evidence of P.W.1. However, he did not choose to produce the copy of the deposition of D.Ws.1 and 2. 7. I have carefully considered the submissions of the counsel for the appellant and also perused the evidence of P.W.1 and judgments of both the Courts below. 8. At the outset, I must point out that this is a suit for bare injunction. The plaintiff through the Executive Officer, through his oral evidence and Exs.A1 and A2, has proved that the Government well was in possession of the Major Town Panchayat and the public in the village were using the well water from 1966 onwards. In both Exs.A1 and A2 there is a mention about the suit property. 9. When the defendant, the appellant herein attempted to prevent the public from taking the well water, the members of the public reported to the District Collector and requested action for the same. Therefore, on 18.6.1993 under Ex.A3, the Collector directed the Panchayat Officials to take suitable action to prevent the defendant from interfering with the possession of the well by the Panchayat. With reference to these documents, there was no challenge on the part of the defendant. 10. Therefore, on 18.6.1993 under Ex.A3, the Collector directed the Panchayat Officials to take suitable action to prevent the defendant from interfering with the possession of the well by the Panchayat. With reference to these documents, there was no challenge on the part of the defendant. 10. On the other hand, the defendant attempted to establish that the suit property belongs to him, since the property in which the well is situated was purchased from one Annapillai by the document dated 11.9.1991. Strangely, Ex.B1, the sale deed did not contain any details about the suit property. The explanation for the same was given by D.W.1, who is the father-in-law of the defendant that the failure to mention about the well in the sale deed was purely a mistake. However, he admitted that he did not take any steps to rectify the mistake, though he knew about the mistake within 20 days from the date of execution of the sale deed. Though D.W.1 would state that he had attested the sale deed, it is clear that he did not sign the said deed. 11. As pointed out by both the Courts below, the defendant did not adduce any evidence except the oral evidence of D.W.1, her father-in-law to show that the well belonged to the defendant or was in her possession. 12. The non-production of the vesting order and the authorisation for filing a suit would not entitle the defendant to seek for the finding from the Courts below that the defendant is in possession. 13. On the other hand, Ex.A3, the order of the District Collector and the filing of the documents Exs.A1 and A2, which are in possession of the Panchayat, coupled with the oral evidence of P.W.1 would establish that the plaintiff has been in possession of the suit property which was enjoyed by the public as permitted by the Panchayat. 14. The materials to prove the title would not be very much essential in this suit, in the facts and circumstances of the case, especially when Exs.A1 and A2 have not been challenged. On the contrary, the documents filed on behalf of the defendant did not prove that the well belongs to her. 15. In fact, D.W.2 would say that the property which was purchased by the defendant under the sale deed Ex.B1 was situated away from the well. On the contrary, the documents filed on behalf of the defendant did not prove that the well belongs to her. 15. In fact, D.W.2 would say that the property which was purchased by the defendant under the sale deed Ex.B1 was situated away from the well. Even Ex.B3 would not be sufficient to hold that the defendant has been in possession of the well, since it was only an ex parte decree as against one Muniyandi. So, it would not be binding on the plaintiff in this suit. 16. Therefore, looking at any angle, I do not find any valid reason to hold that the suit is not maintainable or the plaintiff is not entitled to the relief sought for. 17. In the result, in the absence of any substantial question of law, the Second Appeal is liable to be dismissed at the admission stage itself and accordingly it is dismissed. Consequently, C.M.P. No. 15101 of 1997 stands dismissed.