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2002 DIGILAW 958 (MAD)

Natesan v. Mannankatty Naicker

2002-09-03

A.K.RAJAN

body2002
Judgment :- This second appeal is filed against the reversing judgment of the lower appellate Court. 2. The appellant herein has filed the suit for declaration of title and permanent injunction. According to him, the suit property was purchased by his mother Mangammal by sale deed, dated 4.10.1940. After her death, the suit property was handed over to him. He has put up hut in the property and it was assessed for property tax and he was paying the tax. In or about 1970, there was fire in the Alathur village. In that fire, the house of the plaintiff was destroyed. Thereafter, he was enjoying the property by storing his hay-stack and rearing his cattle. While so, when he was about to construct a house in the year 1984, the defendant has obstructed the same. Therefore, he filed the suit. 3. The defendant claimed that the suit property, which is pattai poromboke, was situate in the south of his property and that was removed by panchayat and the plaintiff was not having title to that property. He contended that his father purchased the property in the year 1951 and the same is in his possession. 4. Plaintiff was examined himself as PW.1 and another witness as PW.2 to prove his case. On the side of the defendant, he was examined as DW.1 with another witness. Plaintiff's documents were marked as Exs.P1 to P21. Exs.P2 to P21 are the property tax receipts, paid for the property sold in Ex.P1. On the side of the defendant, except the sale deed, no other document has been marked to prove his possession. 5. On the basis of the evidence, the trial Court decreed the suit in favour of the plaintiff and granted injunction. Against that, the defendant filed an appeal and the lower appellate Court reversed the judgment of the trial Court. Hence the plaintiff/appellant has filed the second appeal. 6. At the time of admission, this Court framed the following substantial question of law for consideration:- "Whether the judgment of the lower appellate Court is vitiated by its failure to consider the entire evidence on record and a misreading of the documents." 7. The lower appellate Court has stated that the plaintiff has not filed any documents to prove his possession from the year 1958 to 1968; this it has referred it in two places. The lower appellate Court has stated that the plaintiff has not filed any documents to prove his possession from the year 1958 to 1968; this it has referred it in two places. Further, it has stated that the suit property belonged to pattai poromboke and panchayat has removed the same and therefore, reversed the judgment of the trial Court. 8. The lower appellate Court has no justification to arrive at this conclusion when Exs.P2 to P21, which are property tax receipts, have been marked as evidence by PW.1, wherein he has stated that these receipts pertain to the tax paid for the suit property. On perusal of evidence, there is absolutely no cross-examination on this point. When that being so, it is very strange for the lower appellate Court to hold that there is no document filed on behalf of the plaintiff to prove his possession from 1958 to 1968. Therefore, the finding of the first appellate Court, to put it in most mildest of the words, is perverse. 9. Further, the first appellate Court comes to the conclusion, which is not based on any evidence. Further, the first appellate Court states that the property of the plaintiff situates on the south of the defendant's property and the south of the suit property is road and therefore the plaintiff cannot succeed. There is absolutely no evidence to come to this conclusion. The case of the plaintiff is that his property is situate on the north of the defendant's property. The judgment of the first appellate Court is not based on evidence, it is misreading of evidence and hence it has to be set aside and it cannot be sustained on any account. Hence, the judgment of the first appellate Court is set aside. 10. The learned counsel appearing for the respondent submitted that there is no evidence to show that the plaintiff was in possession of the suit property on the date of filing of the suit and therefore, even assuming that the plaintiff had title to the property, he has lost it by dispossession and there is absolutely no evidence to prove his possession after 1968. He also submitted that when in the suit was filed in the year 1984, it was only the defendant who was enjoying the property and therefore, he gets title by adverse possession. This argument of the counsel for the respondent cannot be accepted. He also submitted that when in the suit was filed in the year 1984, it was only the defendant who was enjoying the property and therefore, he gets title by adverse possession. This argument of the counsel for the respondent cannot be accepted. When PW.1 was cross-examined, no such suggestion was put to him. He has stated categorically that he was in occupation of the suit property by making use of it for storing his hay-stack and rearing his cattle. This is not even denied by way of suggestion by the defendant. Therefore, it cannot be said that the defendant got title by adverse possession. 11. The trial Court has given a finding based upon the evidence. That finding cannot be assailed on any ground. Therefore, the judgment and decree of the first appellate Court are set aside and the judgment and decree of the trial Court are restored. 12. The second appeal is allowed with costs.