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2012 DIGILAW 643 (MAD)

Ramasamy Cavoundar v. Rajeema Bibi

2012-02-07

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by first appellate court in A.S.No.66 of 2001 dated 26.04.2002 in confirming the judgment and decree passed by the trial court in O.S.No.501 of 2000 dated 21.08.2001 in decreeing the suit. 2. The appellant herein was the defendant and the respondent was the plaintiff before the trial court. 3. The case of the plaintiff/respondent stated in the plaint are briefly as follows:- The suit property is a dilapidated compound wall situated in the southern side of the house of the plaintiff, which is more specifically described as 'B' schedule property. The plaintiff is the owner of the entire suit property having purchased the same under a sale deed dated 24.12.1980. She is in possession and enjoyment of the property. She altered the tiled roof of the old house into a terraced building and also constructed the suit compound wall in the southern side in the year 1983. During the last rainy season, a small stretch of the compound wall fell down and the defendant who is adjacent land owner has been unnecessarily obstructing her for reconstructing the same. The defendant has no right over the property. The defendant is a litigant in O.S.No.1046 of 1985 and he has no respect for law and the plaintiff being a Muslim woman is being harassed. The advise of the elders of the village is also in vain. Therefore, the plaintiff was forced to issue a notice on 30.05.2000 and the defendant did not receive the same and the defendant may at any time disturb the peaceful possession and enjoyment of the plaintiff relating to 'B' schedule property and therefore, the suit for permanent injunction. 4. The contentions raised by the defendant/appellant in the written statement filed by him would be thus:- The suit is not maintainable and the suit averments are denied. The plaintiff is put to strict proof of the same. It is denied that the 'B' schedule property forms part of 'A' schedule property and it is also denied that the plaintiff is the owner of the 'B' schedule property. The plaintiff is not in possession and enjoyment of the 'B' schedule property. The plaintiff is put to strict proof of the same. It is denied that the 'B' schedule property forms part of 'A' schedule property and it is also denied that the plaintiff is the owner of the 'B' schedule property. The plaintiff is not in possession and enjoyment of the 'B' schedule property. The defendant has filed the suit in O.S.No.1046 of 1985 before the III Additional District Munsif, Pondicherry, against one Noor Mohammed, who attempted to disturb and interfere with the defendant's possession and enjoyment and the suit was dismissed. However, the said Noor Mohammed did not interfere with the possession of this defendant and, therefore, the defendant did not prefer any appeal. The defendant is the absolute owner of a manai bearing R.S.No.23/67 Cad No.2521/pt Paimash No.851 for an extent of 1 Kuzhi 1½ veesams by virtue of a partition deed dated 04.12.1972. Originally the property belonged to the father of the defendant and after his demise, the defendant and his brother Vinayagamurthy partitioned the same. Therefore, the defendant is in possession and enjoyment of the above extent for more than six decades. The vendor of the plaintiff have no right or title to sell 28¾ feet on the South-North direction. The plaintiff is in possession of only 24 feet. On 11.07.2000, the plaintiff measured her property. The District Surveyor by name, Ravindran, demarcated her property from the property of the defendant, but she conveniently omitted and suppressed the material facts. The panchayatars advised her to abide by the measurement. This defendant is a law abiding citizen and also an aged Thiagi and the plaintiff is trying to swallow his small property by way of vexatious suit. There is no compound wall as alleged in the plaint and there is no 'B' schedule property. There is no cause of action and the plaintiff is not entitled to any injunction. Hence, the suit is liable to be dismissed. 5. The trial court had framed necessary issues and entered trial. After appraising the evidence on either side, the trial court had come to a conclusion of decreeing the suit filed by the plaintiff for the grant of permanent injunction against the defendant. 6. The aggrieved defendant had preferred the appeal before the first appellate court in A.S.No.66 of 2001 questioning the judgment and decree passed by the trial court. After appraising the evidence on either side, the trial court had come to a conclusion of decreeing the suit filed by the plaintiff for the grant of permanent injunction against the defendant. 6. The aggrieved defendant had preferred the appeal before the first appellate court in A.S.No.66 of 2001 questioning the judgment and decree passed by the trial court. The learned first appellate Judge had, after hearing both sides, dismissed the appeal and confirmed the judgment and decree passed by the trial court in decreeing the suit. 7. Aggrieved by the judgment and decree passed by the first appellate court, the defendant had preferred the present Second Appeal before this Court. 8. On admission of the appeal, this Court had formulated the following substantial questions of law, to be considered in the Second Appeal:- "Whether the judgment and decree of the courts below are sustainable in law as the courts below have not appreciated the relevant evidence to decide the issue in question and the relevant provisions of law applicable to the facts of the case." 9. Heard Mr.T.P.Manokaran, learned counsel for the appellant / defendant and Mr.S.Vadivelmurugan, learned counsel for the respondent / plaintiff. 10. The learned counsel for the appellant / defendant would submit in his argument that the defendant was entitled to the property after partitioning the property belonging to the defendant and his brother Vinayagam through a partition deed dated 04.12.1972and an extent of one Kuzhi 1½ Veesams was allotted to the share of the appellant and from the said date of partition, the defendant was in possession and enjoyment of the said house and plot including the northern compound wall as absolute owner. He would further submit that the adjacent northern property in R.S.No.23/66 Cad No.252 pt. measuring 73 feet East-West and 24 feet North-South was belonging to one Munusamy and after his death, his son Ramasamy, Pitchaimuthu and Gopalakrishnanwere entitled to the property and they sold the said property to the respondent / plaintiff and however, they have given the measurement as 73 feet East–West, 28¾ North-South instead of 24 feet originally belonged to them. He would further submit that the plaintiff was not entitled to such extended property, to which his vendors were not entitled to. He would further submit that the plaintiff was not entitled to such extended property, to which his vendors were not entitled to. He would further submit that the defendant is in possession and enjoyment of the property belonging to him, located on the south of the property belonged to the vendors of the plaintiff and therefore, there would not be any compound wall belonged to the plaintiff as described in 'B' schedule. He would also submit that the defendant had filed a suit in O.S.No.1046 of 1985 for permanent injunction restraining the plaintiff herein from disturbing the defendant's possession and the said suit was dismissed on technical ground with liberty to proceed against the plaintiff for recovery of possession. He would further submit in his argument that the said finding of the trial court in O.S.No.1046 of 1985 will not in any way defeat the rights of the defendant, but would show that the plaintiff had encroached certain portions of the property in the defendant's land which could be evidenced by Commissioner's report and sketch filed in that suit. He would further submit that the said compound wall was not belonging to the plaintiff and it was not constructed by the plaintiff. He would also submit that the compound wall could not have been constructed by the plaintiff for the simple reason that the front portion of the compound wall was very old and she had purchased the property only on 24.12.1980 and the Advocate Commissioner inspected and found on 05.09.1986, that the compound wall was constructed recently in the rear portion and the compound wall in the front portion was very old and therefore, the theory put forth by the plaintiff that she constructed the entire compound wall could not be true. He would further submit that both the courts below have erred in relying upon the judgment of the trial court made in O.S.No.1046 of 1985 in Ex.A4 as if the said judgment was a bar to the defendant from claiming to be in possession of the compound wall. The plaintiff would not be entitled to any permanent injunction if it is shown by the defendant that he is entitled to the area, in which the compound wall has been put up, since no injunction can be granted against the true owner. The plaintiff would not be entitled to any permanent injunction if it is shown by the defendant that he is entitled to the area, in which the compound wall has been put up, since no injunction can be granted against the true owner. He would also submit that the mere evidence of PW.1 would not be sufficient to hold that the plaintiff was entitled to the suit compound wall i.e., 'B' schedule property and without any sufficient evidence, it cannot be decided in favour of the plaintiff on her interested testimony. The judgment and decree passed by the trial court in O.S.No.1046 of 1985 was misconstrued by both the courts below in decreeing the suit and dismissing the appeal preferred before the first appellate court. The evidence adduced by the parties have also not been perceived properly, but both the courts below have come to a pre-determination to pass judgments, which are certainly perverse. He would further submit that the plaintiff did not prove that she was in possession of the entire 'A' schedule property including 'B' schedule compound wall and therefore, the permanent injunction sought for by her cannot be ordered. He would further submit that the plaintiff, who has to prove his case, should have applied for the appointment of Commissioner for the purpose of proving his possession and she cannot rely upon the earlier Commissioner's report, which was much prior to the date of the present suit. Therefore, he would request the court to interfere with the judgment and decree passed by the first appellate court and to set aside the same and thereby to set aside the judgment and decree of the trial court also and the suit filed before the trial court may be dismissed and thus, the Second Appeal may be allowed. 11. The learned counsel for the respondent / plaintiff would submit in his argument that the defendant is not entitled to any of the area nor the compound wall described as 'B' schedule as claimed by him in this appeal. He would further submit that the defendant did not state in his written statement that he was entitled to the compound wall nor he built the compound wall. He would further submit that the arguments advanced without pleadings and evidence are not sustainable. He would further submit that the defendant did not state in his written statement that he was entitled to the compound wall nor he built the compound wall. He would further submit that the arguments advanced without pleadings and evidence are not sustainable. He would further submit that the first appellate court had correctly confirmed the judgment and decree passed by the trial court by finding that the plaintiff was in possession and enjoyment of the 'A' schedule property which includes 'B' schedule compound wall also. He would also submit that the earlier suit filed by the defendant in O.S.No.1046 of 1985 for permanent injunction against the present plaintiff was not decreed in favour of the present defendant and while dismissing the suit filed by the defendant, the trial court had found that the defendant (the plaintiff therein) did not prove his possession and enjoyment of the compound wall as well as the property lying north of the compound wall. He would further submit that the defendant did not prefer any appeal against the said judgment passed in O.S.No.1046 of 1985, (i.e.) Ex.A4 and the said judgment became final. The interpretation made by the learned counsel for the appellant in respect of the finding of the said court in Ex.A4 that a portion of the property was encroached by the plaintiff was not correct, since the report of the Commissioner and his sketch would show that the encroachment was not upheld and the said Court had not given liberty to the defendant herein (the plaintiff therein) to file a suit for recovery of possession, if so advised and the defendant herein even otherwise did not file any suit for declaration and recovery of possession, but had simply filed a suit for permanent injunction. The said Commissioner's report and sketch would go to show that the compound wall was built by the plaintiff and she was in possession and enjoyment of the compound wall along with the property lying north of the compound wall. He would further submit that the cause of action for the present suit had arisen when the plaintiff had put up the damaged compound wall, due to heavy rains in the month of May, when the defendant had prevented from constructing the said damaged compound wall. He would further submit that the cause of action for the present suit had arisen when the plaintiff had put up the damaged compound wall, due to heavy rains in the month of May, when the defendant had prevented from constructing the said damaged compound wall. He would further submit that the first appellate court as well as the trial court have promptly analaysed the evidence and had come to a conclusion that the defendant is estopped from claiming against the judgment made in O.S.No.1046 of 1985 in Ex.A4 and the plaintiff was found to be in possession and enjoyment of both 'A' schedule property and 'B' schedule compound wall and therefore, the arguments advanced to the effect that the defendant was the owner of the compound wall cannot be sustained. He would further submit that the plaintiff had examined her vendors and had proved the purchase along with the compound wall and the damaged compound wall on the western side was also put up by her, which was evidenced by Ex.A4, the earlier judgment in O.S.No.1046 of 1985 and the possession of the plaintiff was proved to the hilt by the plaintiff and therefore, the concurrent finding of the first appellate court concurrently with the finding of the trial court may not be disturbed. He would further submit that the defendant did not prove his title over the compound wall by raising necessary pleadings and in the absence of such pleadings and proof, the arguments advanced in the Second Appeal cannot be sustained. He would therefore, request the Court to dismiss the Second Appeal. 12. I have given anxious thoughts to the arguments advanced on either side. 13. The plaintiff filed the suit seeking for permanent injunction against the defendant in respect of 'B' schedule compound wall located in 'A' schedule. According to the plaintiff, the possession and enjoyment of 'A' schedule property including the 'B' schedule compound wall was already found in favour of the plaintiff by III Additional District Munsif, Pondicherry in O.S.No.1046 of 1985. It was contended that in the said judgment produced as Ex.A4, it has been categorically found that the plaintiff who was shown as defendant in that suit was found in possession of the suit 'A' schedule property and 'B' schedule compound wall. It was contended that in the said judgment produced as Ex.A4, it has been categorically found that the plaintiff who was shown as defendant in that suit was found in possession of the suit 'A' schedule property and 'B' schedule compound wall. The said judgment produced as Ex.A4 was not challenged by the defendant herein in appeal and therefore, there is no dispute that it has become final. The said judgment produced in Ex.A4 would therefore bind both the parties in this proceedings. According to the said judgment, in Issue No.2, it has been categorically found as follows:- "Issue No.2 : ....... Before constructing the wall, the defendant is in possession of the suit property, to certain extent. This was not mentioned in the plaint by the plaintiff. But generally the plaintiff has mentioned in the plaint that the defendant had encovered his property and attempt to encroach it. So the plaintiff has not come before the Court with clear case. The plaintiff filed the partition deed which was executed between his father and value and marked as Ex.A1. The partition deed executed between the plaintiff and his brother was marked as Ex.A2. With the help of these document the Commissioner has identified the suit property. From the above finding, this Court come to the conclusion that the plaintiff is not in possession of the whole of the suit property. As per surveyor sketch and Commissioner's report leaving the portion of 'C' the plaintiff is in possession of 'B' portion of property. This issue is answered accordingly." 14. According to the said judgment, the plaintiff herein was found in possession of the property shown as 'A' and 'C'. In the Commissioner's sketch, the defendant was found to be in possession of property lying south of 'A' property, which was marked as 'B' property. The compound wall is shown in between 'A' and 'B' properties and the said compound wall was also found to have been constructed by the plaintiff herein. There is no dispute that the said court in the judgment Ex.A4 in Issue No.4 had given liberty to the defendant herein (the plaintiff therein) to take appropriate steps for recovery of possession under due process of law in respect of the encroached area shown in the Commissioner's report. There is no dispute that the said court in the judgment Ex.A4 in Issue No.4 had given liberty to the defendant herein (the plaintiff therein) to take appropriate steps for recovery of possession under due process of law in respect of the encroached area shown in the Commissioner's report. However, the said encroachment mentioned by the Commissioner was not at all approved as encroachment by the defendant (the plaintiff herein) by the said Court. Therefore, the suit was dismissed against the defendant herein, who was the plaintiff in that suit. It is an admitted fact that the defendant herein did not file any action against the plaintiff herein for recovery of possession of the property. Therefore, it is quite clear that the possession of the plaintiff as shown in the Commissioner's report and sketch filed in O.S.No.1046 of 1985 was continued till the date of filing of the present suit before the trial court. The compound wall described as 'B' schedule property was found in possession of the plaintiff herein as per the judgment produced in Ex.A4 and the Commissioner's sketch filed in that suit. In the said circumstances, the defendant herein did not plead and prove the title to the said compound wall nor in respect of the property which was said to have been excessively sold by the vendors of the plaintiff ie., 28¾ feet on the North-South in stead of 24 feet in a separate suit. If it was pleaded and proved by the defendant, then only this Court can pass a judgment to the effect that injunction cannot be granted against the true owner. Admittedly, it was not proved by the defendant so far by filing any suit. Therefore, this Court cannot find fault with the first appellate court that it has not analysed the evidence in proper perspective and did not come to a correct conclusion. The suit filed by the plaintiff for bare injunction could be considered only regarding lawful possession of the property and in the circumstance that the defendant had not shown that the property sought to be claimed to be in possession of the plaintiff was not belonging to him, there could not be any rejection of his prayer for injunction. In the said circumstances, the concurrent findings reached by the courts below cannot be interfered since no such instance has been pointed out for such interference. In the said circumstances, the concurrent findings reached by the courts below cannot be interfered since no such instance has been pointed out for such interference. Therefore, I find that the substantial question of law formulated is necessarily to be decided against the appellant/defendant. 15. For the foregoing discussions, I am of the considered view that the judgment and decree passed by the first appellate court dated 26.04.2002 in A.S.No.66 of 2001 confirming the judgment and decree of the trial Court dated 21.08.2001 made in O.S.No.501 of 2000 are in no way liable to be disturbed and therefore, the Second Appeal deserves dismissal and accordingly, the Second Appeal is dismissed. No order as to costs. Consequently,connected Miscellaneous Petitions are closed.