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2014 DIGILAW 2733 (MAD)

Renuka v. Periavan @ Muniappan

2014-08-19

T.RAJA

body2014
Judgment 1. The unsuccessful plaintiff, who had lost her case, both before the trial Court and appellate Court, has come to this Court, by way of Second Appeal. 2. Assailing the concurrent findings, Mrs. Rita Chandrasekaran, learned counsel appearing for the plaintiff/appellant herein would submit that the plaintiff/appellant herein had filed a suit in O.S.No.439 of 1997, for declaration of title to the suit property and for permanent injunction, restraining the defendants, their men and servants, from interfering the peaceful possession and enjoyment of the suit property. During the pendency of the suit, she has also moved I.A.No.924 of 2005, seeking additional prayer for delivery of possession of the suit property, to an extent of 35 Cents, to be handed over to her possession. According to her, when the defendants/respondents herein have not attempted to come forward to file any counter in the said I.A., and after allowing the said I.A., in favour of the plaintiff/appellant herein, it is not open to the Courts below to dismiss the suit, by merely saying that the plaintiff/appellant herein has failed to prove the encroachment made by the defendants/respondents, in respect of remaining 32 cents of the disputed suit property. 3. It is further contended by the learned counsel for the plaintiff/appellant herein that the suit properties are clearly described in the schedule and that the plaintiff/appellant herein has been in possession of the same, for nearly 22 years, along with the revenue records, standing in her name. For the suit property, patta has also been granted to the plaintiff, updating the scheme in her favour. Pursuant to the same, she has been paying kist to the Revenue Department. When it is the admitted case that the plaintiff/appellant herein has been granted D-Card patta by the Government, about 22 years ago, with the specific boundaries and admittedly, the plaintiff/appellant herein is in possession thereof, the defendants, being the adjacent land owner, having lands lying on the West, covered by the property in Survey Nos.739/3 and 739/4, have interfered with the possession and enjoyment of the suit property, for the reason that the plaintiff/appellant herein has refused to sell the property to the defendants, since this is the only available land to the plaintiff. Aggrieved by the refusal, the defendants have attempted to trespass into the suit property on 16.11.1997, by trying to remove the ridge of stone placed nature. Aggrieved by the refusal, the defendants have attempted to trespass into the suit property on 16.11.1997, by trying to remove the ridge of stone placed nature. When there was an attempt to cut and remove the fruit trees, the plaintiff and the family members have prevented the illegal act of the defendants/respondents therein. However, the defendants proclaimed that they would come back and remove the trees. In view of the aforesaid act, the plaintiff/appellant herein was constrained to file the suit for declaration of the title to the suit property and for permanent injunction, restraining the defendants and their men, from interfering the peaceful possession and enjoyment of the same. 4. Learned counsel for the plaintiff/appellant herein would also further submit that before the matter was taken up for trial, I.A.No.924 of 2005, was moved, seeking a prayer for amending the prayer in the suit, in order to add one more relief of delivery of possession, in respect of suit property, having an extent of 32 cents. Admittedly, recording that there was no counter affidavit, by the defendants/respondent herein in the said I.A., the trial Court allowed the prayer for delivery of possession of the suit property. When there was no objection from the defendants to add one more prayer, delivery of possession of the suit property, it goes without saying that the defendants/respondents herein had conceded the case of the plaintiff, with regard to the relief of delivery of possession of the suit property, having an extent of 32 cents. 5. Concluding her arguments, it is further pleaded that when the Advocate Commissioner, who was appointed by the trial Court, has submitted a detailed report, specifically mentioning that the defendants have encroached 32 cents of land, the Trial Court has committed a serious mistake, in overlooking even the report of the Advocate Commissioner, by merely saying that the plaintiff has failed to prove encroachment. 6. But this Court is unable to find any justification made by the learned counsel appearing for the plaintiff/appellant herein. 6. But this Court is unable to find any justification made by the learned counsel appearing for the plaintiff/appellant herein. When the plaintiff has claimed to be an owner of the land, covered under D-Card Patta, issued by the Government, 20 years ago, in Survey No.739/6 and 739/9, both in A and B Schedule properties and the said lands were clearly demarcated by a ridge of stone placed nature, in between the plaintiff's lands and defendant's lands, except the D-Card patta, assigning the land, having an extent of 1 Hectare, the plaintiff/appellant herein has not produced any adequate or acceptable evidence, before the trial Court or before the appellate Court, to prove her case that in addition to 1 Hectare of the land covered in Survey Nos.739/6 and 739/9, she has also purchased lands, in addition to the extent mentioned in D-Card patta issued by the Government. 7. Merely on surmises and conjunctures, the plaintiff/appellant herein has laid a suit, claiming declaration of title to the suit property, permanent injunction and delivery of possession, in respect of 32 Cents. Again, as rightly held by the learned appellate Court, when I.A.No.924 of 2005 was moved in the pending suit, the plaintiff/appellant herein has once again committed a serious mistake, in not mentioning the correct boundaries of this 32 Cents. Therefore, the learned appellate Court, having found the inability of the plaintiff/appellant herein, to establish her case, to describe the suit property, even in the appeal memorandum, came to the conclusion that there is no cause of action, for laying the suit for declaration of title, permanent injunction and delivery of possession. 8. Therefore, when the plaintiff/appellant herein has grossly failed to prove that the defendants have encroached into the alleged 32 Cents of land in Survey No.739/6, with all available evidence, as rightly found by both the Courts below, the plaintiff/appellant cannot seek for any declaratory relief of delivery of possession, without mentioning the encroachment. 9. When both the Courts below, on the available evidence, oral and documentary, produced by both the parties, have reached the finding of fact that the defendants have not encroached into the alleged 32 Cents of land, as pleaded by the plaintiff/appellant herein, this Court, finding no substantial question of law, is not inclined to entertain the finding of fact, arrived at, by both the Courts below. Hence, the Second Appeal fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.