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1997 DIGILAW 607 (MAD)

A. JOSHEPH v. M. C. MOTTAYANDI

1997-06-14

M.KARPAGAVINAYAGAM

body1997
Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) THE appellants are the defendants, having lost in both the Courts below. The plaintiffs/respondents filed a suit in O. S. No. 479 of 1984 on the file of District Munsiffs Court, Sattur, for declaration and recovery of possession of property in Survey No. 642/2-A (new S. No. 267), measuring an extent of 1 acre 47 cents. ( 2 ) THE case of the plaintiffs is that they are the grand-sons of one Periyanna Nadar, that in a partition that took place in the year 1909, the property in S. No. 642 was kept in common, while other properties were divided, that in a subsequent oral partition in the year 1959, the suit property was allotted to the father of the plaintiffs, that ever since the said partition, the plaintiffs and their father have been in continuous possession and enjoyment, and that in the year 1982, the suit property was wrongly included in the name of the 2nd defendant/2nd appellant, and so the plaintiffs applied to the Deputy Director of land Records, for rectification of mistake, and after due enquiry and inspection, the mistake was rectified and Patta in respect of the suit property was issued in the name of the plaintiffs, by order dated 6. 9. 1984, and that in the meantime, taking advantage of the mistake committed by inclusion of the second appellants name and others as Pattadars, in respect of the suit property, the defendants trespassed into the suit property and constructed a hut therein. ( 3 ) THE case of the defendants is that their fore-fathers were in possession and enjoyment of the suit property. The plaintiffs have no right in the suit property, as it was a government land, and defendants alone had been in possession and continuous enjoyment of the same, and as such, they could claim adverse possession also. ( 4 ) THE trial Court, on consideration of the rival claims, decreed the suit as prayed for. and in the appeal in A. S. No. 30 of 1988, on the file of Additional Sub-Judge, Srivilliputhur, filed by the appellants/defendants, the judgment and decree of the trial Court were confirmed by the Appellate Court, by judgment dated 19. 9. 1996. Being aggrieved over this judgment, the appellants have filed the present second appeal before this Court. and in the appeal in A. S. No. 30 of 1988, on the file of Additional Sub-Judge, Srivilliputhur, filed by the appellants/defendants, the judgment and decree of the trial Court were confirmed by the Appellate Court, by judgment dated 19. 9. 1996. Being aggrieved over this judgment, the appellants have filed the present second appeal before this Court. ( 5 ) THE main contention that has been urged before this Court, by learned Counsel for the appellants is that Ex. A6, the order of deputy Director of Land Records and Survey, dated 6. 9. 1984, rectifying the mistakes, by transferring the Patta in favour of the plaintiffs, could not be said to be binding on the appellants, since the said order was passed, without giving any opportunity to the second appellant. ( 6 ) NO doubt, it is true that there is no reference in the order dated 6. 9. 1984, about the opportunity having been given to the second appellant. But it is to be noted that the inclusion of the name of the second appellant karuppayee and others viz. Mariappan, karuppiah, Karuppan also found in the said order, But, as per the records filed before the lower Court, by both the parties, admittedly, the 2nd appellant alone was in possession of the hut constructed in the suit property. So. it is clear, that the disturbance to the possession of the plaintiffs was only from the 2nd appellant, and not from others, whose names also have been included wrongly in the earlier patta issued in the year 1982. ( 7 ) THIS order dated 6. 9. 1984 would also indicate, that there was an enquiry on the petition presented by the plaintiffs dated 10. 7. 1984, and on receipt of reports from the officers concerned on 4. 8. 1984. The suit was filed by the plaintiffs in the year 1984, after issuance of the notice dated 5. 10. 1984 calling upon them to vacate the suit property, to the appellants. Though it was sent to the correct address, the notice was returned unserved with the postal acknowledgement, that no such addressee in the door. ( 8 ) IT is stated in the written statement filed by the appellants/defendants that the patta had been issued to the 2nd defendant and others, after due enquiry by Tahsildar. Though it was sent to the correct address, the notice was returned unserved with the postal acknowledgement, that no such addressee in the door. ( 8 ) IT is stated in the written statement filed by the appellants/defendants that the patta had been issued to the 2nd defendant and others, after due enquiry by Tahsildar. In this context, it must be borne in mind that when this patta was issued by the Tahsildar, there is no material to show, that opportunity was given to the plaintiffs, before of Patta. It is also mentioned in the written statement, that the defendants had been in possession and enjoyment for more than 100 years, and they acquired the title by way of adverse possession. ( 9 ) OF course, it is true that both the courts below took into consideration Ex. A6, by which the Patta has been transferred in the name of plaintiffs, and gave a finding that the plaintiffs are entitled to the relief sought for, on the strength of this document of the decision reported in V. M. S. Kandaswamy Nadar v. The Province of Madras, through the district Collector of Ramnad at Madura and anr. , and the case State of Madras fay collector, Rammad v. Kasthuri Ammal and ors. , learned Counsel for the appellants would strenuously argue, that this document cannot be given due consideration, as there was no opportunity given to them before passing this order. If this argument is accepted, then the issuance of Patta in favour of the 2nd defendant and others, without giving opportunity to the plaintiff also would be considered to be invalid. Therefore, this Court is mainly concerned with the question, whether the claim made by the rival parties had been established by producing valid evidence. ( 10 ) ON behalf of the plaintiffs Exs. A1 to a12 have been marked. Through oral and documentary evidence adduced on behalf of the plaintiffs, both the trial Court as well as the appellate Court have come to the conclusion, that the title to the suit property belongs to the plaintiffs. Even though Exs. B1 to B15 have been marked on behalf of the defendants, that documents would not show that the defendants had been in possession for hundered years or so, as they claimed to be. Even though Exs. B1 to B15 have been marked on behalf of the defendants, that documents would not show that the defendants had been in possession for hundered years or so, as they claimed to be. Moreover, as pointed out by the Courts below, the second appellant would admit in her cross examination, that the hut was constructed only in the year 1982. ( 11 ) EVEN for substantiating the plea that the suit property was a poromboke land, which they are enjoying for several decades, the defendants have not produced any document, such as b memo, to show that they were residing there for a long number of years, Furthermore, it is to be noticed, that others, whose names were mentioned in the original Patta, have not been examined to support the claim of the defendants, and as such, the plea of the defendants, only on the strength of Patta issued by Tahsildar, which was also subsequently cancelled, could not be sufficient to hold that the defendants are entitled to claim title, on the ground of adverse possession, especially when the 2nd appellant herself would admit that she put up a hut only in the year 1982. ( 12 ) SO, when both the Courts below have considered all these facts and arrived at a factual findings, this Court in second appeal would not inclined to interfere with the same, in the absence of any valid reasons. Therefore, the Court of First Appeal alone is competent to entertain a question of fact and decide whether the findings of fact by the trial court are erroneous. The Court of Second appeal is not competent to entertain the question, as to the soundness of the finding of fact by the Courts below. ( 13 ) THIS Court in the case of Smt. Sokkuthai Ammal and Anr. v. Pandiaraj and 2 ors. , after referring to the decisions of the apex Court in Sundara Naicka Vadiyar By l. Rs. and Anr. v. Ramaswami Ayyar by L. Rs. , and in Vrindavanibhai Samhaji Mane v. Ramachandra Vithal Ganeshkar and Ors. , held that the High Court has no jurisdiction to interfere in Second Appeal, with the finding of fact, given by the First Appellate Court, based upon the appreciation of relevant evidence. and Anr. v. Ramaswami Ayyar by L. Rs. , and in Vrindavanibhai Samhaji Mane v. Ramachandra Vithal Ganeshkar and Ors. , held that the High Court has no jurisdiction to interfere in Second Appeal, with the finding of fact, given by the First Appellate Court, based upon the appreciation of relevant evidence. ( 14 ) IN these circumstances, I do not find any valid ground to admit this second appeal, since there is no substantial question of law involved on these facts in the second appeal. In the result, the second appeal is dismissed. Consequently, the C. M. P. is also dismissed. Appeal dismissed.