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2014 DIGILAW 2767 (MAD)

S. Mohanasundaram v. Perumayee

2014-08-20

T.RAJA

body2014
Judgment 1. This second appeal has been filed, challenging the impugned judgment and decree passed by the first appellate Court, by the unsuccessful first defendant. 2. Learned counsel for the appellant/first defendant vehemently contended before this Court that when the case of the respondents 1 & 2/plaintiffs 1 & 2 for granting a decree of declaration of title in respect of the encroachment of the disputed 175 sq.ft., of land in the suit 'A' schedule property covered in T.S.No.13/1 of Hasthampatti village, Salem Town having an extent of 1050 sq.ft., said to have been purchased under the sale deed dated 29.11.1985 by the first respondent from one Mrs. Bakkiam and for permanent and mandatory injunction to remove the construction in the suit 'B' schedule property, has been held as not forming part of the 1050 sq.ft., by the trial Court and again when the trial Court has clearly given a finding that the respondents 1 & 2 had miserably failed to establish their case to the satisfaction of the trial Court, the first appellate Court, reversing the findings and conclusions reached by the trial Court, came to the conclusion that the disputed 175 sq.ft., is forming part of the 1050 sq.ft., said to have been purchased by the first respondent from one Mrs. Bakkiam under the sale deed dated 29.11.1985, without assigning any valid and good reason. Adding further, it was contended that when the identity of the suit 'B' schedule property was already disputed, the first appellate Court miserably failed to see the specific case of the appellant that in respect of the purchase of the 'A' schedule property by the first respondent and his vendors through Exs.A3 & A2, they never attempted to take possession of the 'B' schedule property, which is used as passage by the appellant. Adding further, the learned counsel stated that when the respondents 1 & 2 have filed the suit for declaration of title in respect of the 'A' schedule property and for permanent and mandatory injunction in respect of the disputed 175 sq.ft., of land, they have not taken out any application for appointment of an Advocate Commissioner. Adding further, the learned counsel stated that when the respondents 1 & 2 have filed the suit for declaration of title in respect of the 'A' schedule property and for permanent and mandatory injunction in respect of the disputed 175 sq.ft., of land, they have not taken out any application for appointment of an Advocate Commissioner. Moreover, the appellant also had filed a suit in O.S.No.264 of 2009 praying for permanent injunction with regard to the same suit property and when the suit in O.S.No.264 of 2009 filed by the appellant is admittedly pending, the first appellate Court ought not to have reversed the findings of the trial Court. On this basis, he prayed for interference with the impugned judgment. 3. This Court is unable to see any merits in the submissions made by the learned counsel for the appellant. It is true that the respondents 1 & 2 have filed the suit for declaration of title in respect of the suit 'A' schedule property with a consequential prayer for permanent and mandatory injunction in respect of the 'B' schedule property viz., the disputed portion. When the respondents 1 & 2 are admittedly the legal heirs of Mr. Subramaniam, the grandfather of the respondents 1 & 2, who sold 1750 sq.ft., of land to one Dr.(Mrs.)M.S. Jyothiammal under the Ex.A1 sale deed dated 22.07.1961, admittedly, the said land was subsequently sold by the said Mrs. Jyothiammal to one Mrs. Bakkiam under the Ex.A2 sale deed dated 17.06.1985. The said Mrs. Bakkiam, who is the vendor of the first respondent, also sold 1050 sq.ft., of land to the first respondent under the Ex.A3 sale deed dated 29.11.1985. As there was some dispute with regard to 175 sq.ft., of land, the present suit was filed. However, during the pendency of the suit, the second respondent has purchased the suit property on 07.11.2007 under the Ex.A12 sale deed from the first respondent. As the respondents 1 & 2 and the appellant were disputing the title and the ownership in respect of 175 sq.ft., of land, the trial Court, after enquiry, came to the conclusion that the respondents 1 & 2 had failed to prove the case of encroachment in respect of the 175 sq.ft., of land. Although the respondents 1 & 2 had examined one Mr. Although the respondents 1 & 2 had examined one Mr. Sakthivel, who was also living in the same locality, the trial Court refused to rely upon the said oral evidence on the ground that the said witness himself had categorically stated that their attempt to measure the property in order to ascertain the area of encroachment itself, ended in vain, therefore, the trial Court was of the view that the total extent of 1050 sq.ft., was still unclear for lack of clear and sufficient evidence. However, while going into the claim of title by the appellant over the 'A' schedule property by way of adverse possession, it has concluded that the title claimed by the appellant over the 'A' schedule property was unsustainable, for the reason that no one can claim adverse possession without admitting the title of the real owner. For the aforesaid reasons, the suit was dismissed. On appeal, the first appellate Court, distinguishing 794 sq.ft., from that of 1050 sq.ft., of land purchased by the first respondent under the Ex.A3 sale deed dated 29.11.1985 and sold to the second respondent under the Ex.A12 sale deed dated 07.11.2007, taking into account the categorical admission of the appellant as D.W.1, who deposed that 175 sq.ft., is forming part of the 1050 sq.ft., of land purchased by the first respondent and passed on to the second respondent under the sale deed dated 07.11.2007, came to the conclusion that when there is a clear admission of the appellant regarding the execution of the Ex.A3 sale deed in favour of the first respondent and the extent of 1050 sq.ft., conveyed therein and that the disputed portion of 175 sq.ft., in the first respondent's land is clearly forming part of the 1050 sq.ft., of land purchased by the first respondent and the same has been subsequently purchased by the second respondent, accordingly, allowed the appeal by declaring the respondents 1 & 2 as the absolute owner of 'A' schedule property and granted the other consequential reliefs. Therefore, when there has been a finding of facts reached on the basis of the categorical admission made by the first defendant, the appellant herein, this Court, finding no substantial question of law involved in the second appeal, is not inclined to interfere with the finding of facts reached by the first appellate Court. Therefore, when there has been a finding of facts reached on the basis of the categorical admission made by the first defendant, the appellant herein, this Court, finding no substantial question of law involved in the second appeal, is not inclined to interfere with the finding of facts reached by the first appellate Court. Accordingly, this Court is not inclined to entertain the second appeal for admission, hence, the second appeal fails and it is dismissed. Consequently, M.P.No.1 of 2013 is also dismissed. No costs.