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2008 DIGILAW 3452 (MAD)

Thaiyalammal v. Kulanthivelu Mudaliar

2008-09-18

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- 1. This appeal has been directed against the Judgment in A.S.No.249 of 1996 on the file of the Court of Subordinate Judge, Kallakurich dated 24. 1997. The plaintiff has filed a suit in O.S.No.625 of 1989 before the District Munsif, Kallakurichi for bare injunction in respect of the plaint schedule property, a house and vacant site to an extent of 0.00.5 Hectares in R.S.No.13.C/2A at Devapandalam Village, Kallakurichi Taluk. The learned trial Judge has decreed the suit but on appeal, the learned Subordinate Judge, Kallakurichi had allowed the appeal thereby setting aside the decree and Judgment of the learned trial Judge in O.S.No.625 of 1989 which necessitated the plaintiff to approach this Court by way of second appeal. 2. The short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaint schedule property belonged to the plaintiff. The plaintiffs father Dharmalingam was in possession and enjoyment of the plaint schedule property and the plaint schedule property is an ancestral property of the plaintiff. The plaintiff has put up a house in the plaint schedule property and the door Number for the said house is 75A. The defendant has no right or title in respect of the plaint schedule property. The defendant is never in possession and enjoyment of the plaint schedule property. The defendant has made an attempt to trespass into the plaint schedule property on 8. 1989 which was timely prevented by the plaintiff. The plaintiff apprehends that the defendant along with his hench man may trespass into the suit property at any time. Hence the suit for bare injunction. 3. The defendant in his written statement would contend that the plaint schedule property is not an ancestral property of the plaintiff. The plaintiff is residing at North street, A Pandalam Village. The plaintiff has not put up any construction in the plaint schedule property. There is an enmity between the Panchayat President and the defendant and with the help of the Panchayat President, the plaintiff has obtained clandestinely the house tax receipts and UDR Patta. The defendant has objected to the issue of UDR Patta and house tax receipts in favour of the plaintiff to the higher officials. The plaintiff was never in possession and enjoyment of the plaint schedule property. The defendant has objected to the issue of UDR Patta and house tax receipts in favour of the plaintiff to the higher officials. The plaintiff was never in possession and enjoyment of the plaint schedule property. The plaint schedule property was originally belonged to the defendants father Vaithi Mudaliar who had executed a sale deed in respect of the plaint schedule property in favour of Kuppu Mudaliar on 8. 1938. The defendant was working in the rice mill of Kuppu Mudaliar. Under such circumstances, the said Kuppu Mudaliar had sold the plaint schedule property in the year 1944 orally to the defendant. The defendant is in possession and enjoyment of the plaint schedule property for the past 45 years and the defendant has prescribed title to the plaint schedule property by way of adverse possession. The allegation that the defendant had made an attempt to trespass into the plaint schedule property on 8. 1989 is false. The suit is not maintainable. The plaintiff has no cause of action. Hence the suit is liable to be dismissed. 4. On the above pleadings, the trial Court had framed three issues for trial. On the side of the plaintiff, the plaintiff has examined herself as P.W.1 and exhibited Exs A1 to A4. The defendant has examined himself as D.W.1 Exs B1 to B4 were marked on the side of the defendant. The learned trial Judge,after going through the evidence both oral and documentary, and after giving due consideration to the submissions made by the counsel on both sides, has come to the conclusion that the plaintiff is entitled to the relief asked for in the plaint and accordingly decreed the suit granting permanent injunction in favour of the plaintiff in respect of the plaint schedule property. Aggrieved by the findings of the learned trial Judge, the defendant has preferred an appeal in A.S.No.249 of 1996 before the learned Subordinate Judge, Kallakurichi. After taking into consideration, the submissions made by the learned counsel for the appellant as well as the learned counsel for the respondent and after considering the exhibits produced before the trial Court, the first appellate Judge thought it fit to allow the appeal thereby setting aside the decree and Judgment of the learned trial Judge and dismissed the suit which necessitated the plaintiff to approach this Court by way of second appeal. 5. 5. The substantial questions of law involved in this appeal are i) When vital particulars such as Survey Number, patta Number, House number etc., are absent whether such sale deed in the absence of other evidence can be used to claim the title of the property? ii) Whether mere stay for some time outside the property would do away with the right of possession when other evidentiary values are in favour of the one claiming the right of possession? 6. Substantial question of Law No.1 A perusal of the plaint schedule will go to show that the subject matter of the suit is in respect of R.S.No.13.C/2A measuring 0.00.5 Hectares of land in Devapandalam Village, Kallakurichi Taluk. There is no four boundaries given for the plaint schedule property and no door number for the house was also furnished by the plaintiff to the plaint schedule property. But at paragraph 3 of the plaint, the plaintiff would state that the door number assigned by the Panchayat for the suit house was 75A. Even though, the plaintiff would plead in the plaint that the Panchayat President has issued certificate as to the effect that the door number assigned to the plaint schedule house was 75A, he has not produced any certificate before the trial Court. The plaintiff has relied on four documents before the trial Court to establish her possession in respect of the plaint schedule property. Ex A1 is the patta in respect of R.S.No.13.C/2A measuring 0.00.5 Hectares. Ex A1 patta No.131 stands in the name of the plaintiff. Ex A2 is the land tax receipts relating to patta No.131. Ex A3 series are the house tax receipts. But there is no door number mentioned in Ex A3 series house tax receipts. It is further pertinent to note that Ex A3 house tax receipts are all subsequent to the filing of the suit. Ex A4 is the voters card in which also door number has been mentioned as 69A whereas in the plaint pleadings, the plaintiff would state that her house door No.75A. In the cross examination, P.W.1(Plaintiff) would depose that she was residing at Lathinaickenpatti Village for about two years prior to the filing of the suit and when she returned from the said village, the defendant has obstructed her from entering into the suit house. In the cross examination, P.W.1(Plaintiff) would depose that she was residing at Lathinaickenpatti Village for about two years prior to the filing of the suit and when she returned from the said village, the defendant has obstructed her from entering into the suit house. But in the plaint cause of action column, the plaintiff would state that the defendant has made an attempt to trespass into the plaint schedule property on 8. 1989. There is absolutely no pleadings in the plaint to the effect that at the time when the plaintiff returned from Lathinaickenpatti Village, the defendant has prevented her from entering into the suit house. Absolutely, there was no material placed before the trial Court to show that on 8. 1989, the defendant has made an attempt to trespass into the plaint schedule property. So absolutely , there is no cause of action for the plaintiff to file the suit. Even though, it was contended on behalf of the appellant that the defendants sale deed Ex B1 has no survey number, the settled proposition of law is that the plaintiff has to stand or fall on his own pleadings and cannot pick up holes in the defence raised by the defendant. We are not going to declare the title of the defendant on the basis of Ex B1. Absolutely, there is no evidence on record to show that the door Number 75 A belongs to the plaintiff and that the defendant has made an attempt to trespass into the plaint schedule property on 8. 1989. Substantial question of law No.1 is answered accordingly. 7. Substantial question of Law No.2 As I have already observed that the plaintiff has failed to furnish even the door number for the plaint schedule house in the plaint schedule and Ex A3 house tax receipts produced by the plaintiff are all subsequent to the filing of the suit. The pleadings of the plaintiff is that she had constructed the house bearing door No.75A in the plaint schedule property but there is no material to substantiate the said pleading of the plaintiff that the plaint schedule house is bearing door No.75A and that the defendant has made an attempt to trespass into the plaint schedule property. The pleadings of the plaintiff is that she had constructed the house bearing door No.75A in the plaint schedule property but there is no material to substantiate the said pleading of the plaintiff that the plaint schedule house is bearing door No.75A and that the defendant has made an attempt to trespass into the plaint schedule property. Except Ex A1 and Ex A2 to show that the plaintiff is in possession of the land scheduled to the plaint, there is absolutely no evidence on record to show that there is a house in the said land measuring 0.00.5 hectares in R.S.No.13.C/2A in Devapandalam Village, Kallakurichi Taluk. Under such circumstances, the relief for permanent injunction on the basis of the possession in respect of the plaint schedule property in the absence of any evidence for the same, the suit,as rightly decided by the first appellate Court, is not maintainable. 8. In fine, there is no merit in the second appeal which is accordingly dismissed confirming the decree and Judgment of the learned first appellate Judge in A.S.No.625 of 1989 on the file of the Court of Subordinate Judge, Kallakurichi. No costs. The remedy open to the plaintiff is to file a suit for declaration of her title in respect of the plaint schedule property, if she is so advised.