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2012 DIGILAW 665 (MAD)

Thimmappa Gounder (died) v. Karnan

2012-02-08

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Plaintiff has projected this instant Second Appeal as against the judgment and decree dated 25.01.2002 in A.S.No.2007 of 2001 passed by the learned Principal District Judge, Coimbatore in confirming the Judgment and decree dated 10.09.2001 in O.S.No.90 of 1999 passed by the learned District Munsif, Mettupalayam. 2. The First Appellate Court viz., Learned Principal District Judge, Coimbatore while passing the judgment in A.S.No.207 of 2001 on 25.01.2002 has inter alia observed that In this case, as seen from the evidence the suit properties and adjacent properties remain fallow and there was no actual cultivation. Therefore, possession should follow title more or less. The defendant has proved that he is entitled to 1.20 acres on the southern side of Plaintiffs properties i.e., Item-1, which alone is available with him, whether he sold to third party or not. Thus the oral evidence of PW2 also fails to advance the case of title, as well as possession. The Commissioner who is examined as PW3 has spoken, really in favour of the defendant, seeing the reality and there is nothing wrong etc.,’ and further opined that as per the measurement also, the Appellant/Plaintiff is having the extent which he is entitled, whereas the defendant is not having the extent, which his father had purchased and the extent will come correctly if the disputed portion is included. The iron fence also was of the recent origin, could be seen from the Commissioners report which is not denied. Therefore, the Respondent/Defendant and his father was enjoying the property as per the extent available, as per Ex.B2 and at present, the Respondent/Defendant is having only the remaining extent, excluding the portions sold as per the measurement, over which the Plaintiff cannot claim any right and resultantly dismissed the appeal with costs. 3. Before the trial Court, in the main suit, 1 to 2 issues have been framed for determination. On behalf of the Appellant/Plaintiff, witnesses Pws 1 to 3 have been examined and Exs.A1 to A12 have been marked. On the side of the Respondent/Defendant, witnesses Dws 1 and 2 have been examined and Exs.B1 to B8 have been marked. On behalf of Court, Exs.C1 to C4 have been marked. 4. On behalf of the Appellant/Plaintiff, witnesses Pws 1 to 3 have been examined and Exs.A1 to A12 have been marked. On the side of the Respondent/Defendant, witnesses Dws 1 and 2 have been examined and Exs.B1 to B8 have been marked. On behalf of Court, Exs.C1 to C4 have been marked. 4. The trial Court, in the main suit, after scrutinising the entire oral and documentary evidence available on record has come to a categorical conclusion that the Appellant/Plaintiff is not entitled to claim the relief of injunction because of the fact that he has failed to establish as to how he claims the right in one acre and 39 cents and consequently dismissed the suit with costs. 5. At the time of admission of the Second Appeal, this Court has formulated the following substantial questions of law for consideration:- “When the written statement was filed after the report of the Commissioner appointed in the suit at the instance of the Respondent/Defendant and the Courts below mainly relied on these reports and plans and as such evidence has been let in (Report and plan) without reference to the pleadings, whether the Courts below are correct in negativing the claim of the Plaintiff on the basis of the said report and plan." The Contentions, Discussions and Findings on Substantial Question of Law:- 6. According to the Learned counsel for the Appellant/Plaintiff, the trial Court as well as the First Appellate Court have failed to appreciate that the Respondent/Defendant filed his written statement after the filing of the report of the Commissioner in the suit at his instance, and thus, it has been taken advantage of by him and accordingly, projected his line of defence. 7. The learned counsel for the Appellant/Plaintiff urges before this Court that the Commissioner has been directed to measure the suit property only and therefore, his finding that the Respondent/Defendant is in possession of 20 cents is beyond the scope of his assignment and that the report ought not to have been taken into account. 8. The stand of the Appellant/Plaintiff is that he has incidentally established his title to the suit property and also his possession and enjoyment by placing the title deeds, patta passbook and Adangal extracts. However, these factual aspects have not been adverted to by the Courts below in a proper and real perspective. 9. 8. The stand of the Appellant/Plaintiff is that he has incidentally established his title to the suit property and also his possession and enjoyment by placing the title deeds, patta passbook and Adangal extracts. However, these factual aspects have not been adverted to by the Courts below in a proper and real perspective. 9. The Learned Counsel for the Appellant/Plaintiff projected a plea that the surveyor has not measured the lands of the Appellant/Plaintiff and also that he has not looked into any of the documents of title of the Appellant/Plaintiff and per contra he measured those portions claimed to be that of the Respondent/Defendant. 10. Lastly, it is the submission of the learned counsel for the Appellant/Plaintiff that the Surveyor has not located the portion and extend of the land sold by the Respondent/Defendant. Added further, the heirs of Chinna Marudachala Pillai have sold some more lands in S.F.No.778/2A2A and 778/3-C totalling 16 cents, even before the visit of the Commissioner, but this has not been made mention of in the Commissioners Report and the plan of the Surveyor. 11. In response, it is the contention of the learned Senior Counsel for the Respondent/Defendant that the Appellant/Plaintiff has filed O.S.No.90 of 1999 on the file of the trial Court seeking only the relief of permanent injunction against the Respondent/Defendant, his men, agents and servants in any manner entering into the suit property and disturbing peaceful possession and enjoyment of the suit property by the Appellant/Plaintiff and has sought the relief of permanent injunction only. 12. Furthermore, it is the submission of the learned Senior Counsel for the Respondent/Defendant that the Respondent/Defendant in the written statement has denied the right of the Appellant/Plaintiff in respect of the plaint schedule properties and in a case of title of the Appellant/Plaintiff being disputed by the other side, the Appellant/Plaintiff should have only filed the suit for declaration with regard to 20 cents, if he is the owner of the property and the mere suit for injunction is not per se maintainable in law. The stand taken by the Respondent/Defendant is that the Appellant/Plaintiffs title in the present case is under a cloud and when he does not have possession, the remedy in law is to file a suit for declaration and possession, with or without consequential injunction. 13. The stand taken by the Respondent/Defendant is that the Appellant/Plaintiffs title in the present case is under a cloud and when he does not have possession, the remedy in law is to file a suit for declaration and possession, with or without consequential injunction. 13. To lend support to the contention that the suit in O.S.No.90 of 1999 filed by the Appellant/Plaintiff on the file of trial Court is not maintainable, the learned senior counsel for the Respondent/Defendant cites the decision of the Honble Supreme Court in Anathula Sudhakar Vs.P.Buchi Reddy (Dead) by Lrs. And Others reported in (2008) 4 SCC 594 , wherein it is held that ‘where the Plaintiffs title is under cloud and he does not have possession, the remedy is to file a suit for declaration and possession with or without consequential injunction, further where his title is not disputed or under a cloud but he is out of possession, the remedy is to file a suit for possession with consequential injunction’. 14. He also seek the aid of the decision of this Court in Jothi Ramalingam Vs. M.N.Sivagnana Prakasam and Others reported in (2010) 3 MLJ 85 , whereby and whereunder it is held thus:- “When a cloud is raised upon the Plaintiffs as they do not have title and possession, a suit for declaration and possession with consequential injunction is the remedy.” 15. At this juncture, this Court pertinently points out that in the plaint filed by the Appellant/ Plaintiff, it is averred that the Appellant/Plaintiff and his sons viz., Subbian and Badrappan divided the properties of Appellant/Plaintiffs father on 07.12.1983 by means of a registered Partition Deed. As per the registered Partition Deed, the Appellant/Plaintiff has been allotted A schedule property i.e., suit property. In terms of the Partition Deed, the Appellant/Plaintiff has allotted an extent of 2.70 acres in S.F.No.778/2A and 778/3. The same survey fields numbers have been subdivided as S.F.No 778/3C and 778/2A1. The Appellant/Plaintiff has come out with a case that he is in possession and enjoyment of the suit property for more than 8 years and that he has been issued with Patta No.1970. The Respondent / Defendant (Neighbour of Appellant/Plaintiff) owns a land adjoining to the Appellant/Plaintiffs land (on southern side). The Respondent/Defendants father Chinna Marudachalam Pillai has purchased the land from the Appellant/Plaintiffs father Thimmappa Gounder during the year 1931. The Respondent / Defendant (Neighbour of Appellant/Plaintiff) owns a land adjoining to the Appellant/Plaintiffs land (on southern side). The Respondent/Defendants father Chinna Marudachalam Pillai has purchased the land from the Appellant/Plaintiffs father Thimmappa Gounder during the year 1931. The Respondent/Defendant taking advantage of the old age of the Appellant/Plaintiff is end eavouring to encroach into the Appellant/Plaintiffs property. 16. The version of the Appellant/Plaintiff is that the Respondent/Defendant on 25.04.1999 with the help of rowdy elements entered into the property of the Appellant/Plaintiff and tried to encroach into the same and that the Appellant/Plaintiff with the aid of neighbours defeated the said attempts. The Appellant/Plaintiff filed a complaint to Karamadai Police Station on 25.04.1999. On 27.04.1999, Respondent/Defendant has come with his men and attempted to encroach into the properties of the Appellant / Plaintiff and also threatened him with dire consequences etc., The Appellant/Plaintiff has no option but to file a suit for permanent injunction against the Respondent/Defendant. 17. The Respondent/Defendant in the written statement has stated that the description of the property furnished by the Appellant/Plaintiff is not correct and the description of the property includes an extent of 20 cents owned by the Respondent/Defendant. Also that it is for the Appellant/Plaintiff to establish that the suit properties are ancestral properties. Likewise, it is true that during the year 1931, the father of the Appellant/Plaintiff sold an extent of 1.20 acres, out of 2.39 acres in S.F.No.778/2A to the father of the Respondent / Defendant. The lands purchased by the father of the Respondent/Defendant are situated on the south side of the property owned by the Appellant/Plaintiff. 18. The Respondent /Defendant has denied that the suit properties have been allotted to the Appellant/Plaintiff. The Respondent/Defendant is not a party to the Partition Deed and therefore, he ignores the same. The dispute is only with regard to lands comprised in S.F.No.778/2A. The extent of 20 cents, which is in dispute, is in possession and enjoyment of the Respondent / Defendant and before him, his father has been in peaceful possession and enjoyment of the same. 19. The case of the Respondent/Defendant is that his father purchased 1.20 acres in G.S.No.778/2A out of 2.39 acres from the father of the Appellant/Plaintiff by means of a Sale Deed dated 03.04.1931. Therefore, the Appellant/Plaintiffs father is entitled to an extent of 1.19 acres. 19. The case of the Respondent/Defendant is that his father purchased 1.20 acres in G.S.No.778/2A out of 2.39 acres from the father of the Appellant/Plaintiff by means of a Sale Deed dated 03.04.1931. Therefore, the Appellant/Plaintiffs father is entitled to an extent of 1.19 acres. Out of the 1.20 acres, the Respondent/Defendants father sold about 70 cents as per the Sale Deed dated 15.07.1964 to enormous parties. The balance extent of 50 cents has been in possession and enjoyment of the father of the Respondent/Defendant and after his demise, it is in possession and enjoyment of the legal heirs of K.P.Chinna Marudhchalam Pillai. After the demise of said Chinna Marudhchalam Pillai, his legal heirs have partitioned the properties by means of Partition Deed dated 18.12.1995. An extent of 50 cents in S.F.No.778/2A has been allotted to the share of the Respondent/Defendant. 20. The Respondent/Defendant has come to know that S.F.No.778/2A has been subdivided as 778/2A1, 778/4,5,6,7, 778/2A2A, 778/2A2B and also 778/3C. Further he is not aware of the fact that S.F.No.78/2A has been subdivided as 778/3C. An extent of 20 cents from S.F.No.778/2A2A has also been subdivided as S.F.No.778/3C. An extent of 50 cents has been allotted to the share of the Respondent/Defendant which is comprised in S.F.No.778/2A2A as per Partition Deed dated 08.12.1995, without knowing the fact that an extent of 20 cents have been given on separate subdivision number viz., S.F.No.778/3C. Taking advantage of the same, the Appellant/Plaintiff influenced the Revenue authorities and included his name in S.F.No.778/3C. 21. The Respondent/Defendant coming to know the mistake committed by the authorities, applied before the concerned authorities and after due verification by the authorities that the mistake has been committed by them, they included the Respondent/Defendants name also as joint pattadar in respect of S.F.No.778/3C. The Commissioner has been requested to measure the entire properties in S.F.No.778/2A, which has been subsequently subdivided by the Revenue authorities with the help of the Surveyor. The Commissioner and the surveyor found that the 20 cents comprised in S.F.No.778/3C belongs to the Respondent/Defendant and also that he is in possession and enjoyment of the same. 22. Also, the Commissioner also noted that an attempt has been made by the Appellant/ Plaintiff to encroach into the said 20 cents. The Respondent/Defendant never prevented the Appellant/Plaintiff from enjoying his property. The Appellant/Plaintiff has no legal right to encroach into the property of the Defendant. 23. 22. Also, the Commissioner also noted that an attempt has been made by the Appellant/ Plaintiff to encroach into the said 20 cents. The Respondent/Defendant never prevented the Appellant/Plaintiff from enjoying his property. The Appellant/Plaintiff has no legal right to encroach into the property of the Defendant. 23. The trial Court in its Judgment in the suit has held that PW2 in his evidence has deposed that there is a pathway at a breadth of 5 = feet which passes between the Appellant/Plaintiffs land and Respondent/Defendants land and since it has not been mentioned in the pleading, his evidence cannot be accepted and also that the Commissioner has found that the stones put and fence formed dividing the Appellant/Plaintiffs and Respondent/Defendants property have been newly made etc., 24. Apart from the above, the trial Court has also gone to the extent of observing in its judgment in the suit that DW2 in his evidence has stated that in S.No.778/2A one acre 39 cents remain and in S.No.778/3C the disputed 20 cents land have been included and the total extent is shown. Moreover, he has also deposed that at the time of UDR Scheme survey one portion in S.No.778/2A2A, a portion of 778/3C has been included and subdivided. The Commissioner in his report and plan has stated that the Appellant/Plaintiff has a right in respect of one acre and 39 cents. But in other Subdivision No.778/2A, the Appellant/Plaintiff has 1.19 cents, a opined by the trial Court. Ultimately, the trial Court has come to the conclusion that after selling one acre and 20 cents, the remaining extent of 1.19 belongs to the Appellant/Plaintiff. However, the Appellant/Plaintiff has not established in what manner he is entitled to an extent of one acre 39 cents and finally, the suit has been dismissed with costs. 25. The First Appellate Court has also opined in its Judgment in A.S.No.207 of 2001 that the Appellant/Plaintiff miserably failed to prove prima facie title to an extent of 1.32 acres and therefore, based upon title, he is not entitle to injunction. Also it has observed that it is not known how the Appellant/Plaintiff claimed titled to S.No.S.No.778/3C since the Ex.B2 Sale Deed dated 03.04.1931 has not referred to this survey number. Also it has observed that it is not known how the Appellant/Plaintiff claimed titled to S.No.S.No.778/3C since the Ex.B2 Sale Deed dated 03.04.1931 has not referred to this survey number. The First Appellate Court has gone further and observed that there is no evidence of any kind, worth the name to prove that the Plaintiff is the owner of S.No.778/3. 26. In regard to the suit second and third items, the Respondent/Defendant has not claimed any right and the dispute is only with regard to first item, namely whether it is 16 cents or 20 cents as claimed by the Respondent/Defendant in its written statement based the Commissioners Report. PW1 has deposed in his evidence that in S.No.778 /2A his family is entitled to only 1.19 acres. When the Commissioner has measured the property of the parties, the Appellant/Plaintiff has been present and there is a fence demarcating the two properties. PW2 in his evidence has not spoken nothing about the real possession of the suit property by the Appellant/Plaintiff. All though he has stated that neither the Respondent/Defendant nor his father cultivated the property, which is situated on the northern side of the suit properties. 27. According to the First Appellate Court, the Respondent/Defendant has established that he is entitled to 1.20 acres on the southern side of Appellant/Plaintiffs properties, namely Item No.1 which is available with him and also it has concluded that the evidence of PW2 is not improving the case, title as well as possession. 28. DW1 in his evidence has deposed that the northern side in S.No.778/2A belongs to the Appellant/Plaintiff and the 1.20 acres on the southern side belongs to him as per Ex.B2 Sale Deed dated 03.04.1931. The Respondent/Defendants father has sold during the year 1964, 70 cents in favour of Sridharan as per Ex.B3 sale deed dated 15.07.1964 and the remaining 50 cents has been subdivided during the year 1987. As per the evidence of DW1, an extent of 20 cents without the knowledge of DW1 in S.No.778/2A has been subdivided as S.No.778/3C and after coming to know of the same, an objection has been raised and patta has been issued. 29. A cursory perusal of Ex.C3 sketch will unerringly point out that the Respondent/Defendant owns an acre separately and 20 cents jointly along with the Appellant/Plaintiff in S.No.778. The disputed portion is mentioned in Yellow colour measuring 17 = cents. 29. A cursory perusal of Ex.C3 sketch will unerringly point out that the Respondent/Defendant owns an acre separately and 20 cents jointly along with the Appellant/Plaintiff in S.No.778. The disputed portion is mentioned in Yellow colour measuring 17 = cents. According to the field measurement, the First Appellate Court has held that this portion is on the southern side of the property admittedly belong to the Appellant/Plaintiff in between the admitted properties of the Plaintiff and the defendant, the disputed portion lies etc., As per the Commissioners Report, the iron fence has come up recently and as per Ex.B2 Sale Deed dated 03.04.1931, the Respondent/Defendants father has been enjoying the property as per the extent available. The balance extent other than the portions sold, the Appellant/Plaintiff cannot lay any claim. 30. In view of the aforesaid detailed discussions and taking note of the fact that when the Respondent/Defendant has disputed the title of the Appellant/Plaintiff in respect of the suit property, then in law, the Appellant/Plaintiff is only entitled to file a suit for declaration and possession. Per contra, he is not entitled to file a suit for injunction simpliciter. To put it differently, the title of the Appellant/Plaintiff in the suit property has come under cloud, as per the defence taken by the Respondent/Defendant in the written statement. The proper course or option for the Appellant/Plaintiff is only to file a suit for declaration and possession with or without consequential injunction. Unfortunately, the Appellant/Plaintiff has not sought a relief of declaration of his title and to protect his possession, the consequential relief of injunction in O.S.No.90 of 1999. 31. As such this Court comes to an irresistible conclusion that the suit in O.S.No.90 of 1999 filed by the Appellant/Plaintiff on the file of the learned District Munsif, Mettupalayam is clearly unsustainable in the eye of law. That apart, on going through the judgments of the trial Court and that of the First Appellate Court, this Court opines that they do not suffer from any material irregularity or illegality. Both the Courts below have concurrently recorded the finding of facts and have come to the conclusion that the Appellant/Plaintiff is not entitled to the relief of permanent injunction as prayed for by him in the plaint. Both the Courts below have concurrently recorded the finding of facts and have come to the conclusion that the Appellant/Plaintiff is not entitled to the relief of permanent injunction as prayed for by him in the plaint. Viewed in that perspective, this Court holds that the trial Court as well as the First Appellate Court are correct in rightly negativing the claim of the Appellate/Plaintiff on the basis of the Commissioners Report and plan and accordingly, the substantial question of law is so answered by this Court. 32. In the result, the second appeal is dismissed leaving the parties to bear their own costs. Consequently, the judgment and decree of the First Appellate Court in A.S.No.207 of 2001 dated 25.01.2002 and the Judgment and the decree of the trial Court in O.S.No.90 of 1999 dated 10.09.2001 are confirmed for the reasons assigned by this Court in this appeal.