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2014 DIGILAW 2960 (MAD)

Subramania Asari v. Kathan Asari

2014-08-28

A.SELVAM

body2014
Judgment : 1. The concurrent Judgments and decrees passed in Original Suit No.421 of 1993 by the District Munsif Court, Periyakulam and in Appeal Suit No.43 of 1996 by the Sub Court, Periyakulam are being challenged in the present second appeal. 2. The deceased respondent as plaintiff has instituted Original Suit No.421 of 1993 on the file of the trial Court for the reliefs of declaration, permanent and mandatory injunctions, wherein the deceased appellant has been shown as sole defendant. 3. In the plaint it is averred that the suit property has been described as 'A B C D' in the plaint plan and by virtue of partition, the same has been given to the plaintiff and since then the plaintiff is in possession and enjoyment of the suit property and immediately on the southern side of the suit property the property of the defendant is situate and he is nothing, but brother of the plaintiff and now the defendant has put up a wall from points 'A' to 'D' mentioned in the plaint plan by way of denying the title of the plaintiff in respect of 'A B C D' portion. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant, it is averred that the plaintiff is not the owner of the suit property. The defendant has been enjoying the suit property for more than a statutory period and thereby prescribed title to the same by adverse possession. It is false to say that the defendant has put up a wall from points 'A' to 'D' mentioned in the plaint plan and there is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.43 of 1996 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the defendants as appellants. 7. At the time of admitting the present second appeal, the following substantial questions of law have been settled for consideration: a) Whether the plaintiff in title has lost title to the property under Section 27 of the Limitation Act? b) Whether the plaintiff who is admittedly out of possession is entitled to maintain a suit for permanent injunction and mandatory injunction instead of filing a suit for recovery of possession? 8. The learned counsel appearing for the appellants/defendants has made an inert attempt by way of raising the following points so as to supplant the concurrent Judgments and decrees passed by the Courts below: (a) The suit property is in possession and enjoyment of the defendant for more than a statutory period and thereby prescribed title to the same by adverse possession. (b) In the present suit only relief of mandatory injunction has been sought for and admittedly in the suit property a thatched shed is in existence and the same has been put up by the defendant and therefore the present suit is not maintainable. 9. In order to resile the contention putforth on the side of the appellants/ defendants, the learned counsel appearing for the respondents/plaintiffs has contended that in the suit property a thatched shed is in existence and the same is the absolute property of the plaintiff and since the defendant has put up a wall from points 'A' to 'D' mentioned in the plaint plan, the present suit has been instituted for the reliefs sought for in the plaint and the Courts below after considering the available evidence on record have rightly rejected the defence putforth on the side of the defendants and therefore the concurrent Judgments and decrees passed by the Courts below are not liable to be interfered with. 10. Before contemplating the rival submissions made on either side, the Court has to narrate the lie of the suit property and the property of the defendant and also their relationship. 10. Before contemplating the rival submissions made on either side, the Court has to narrate the lie of the suit property and the property of the defendant and also their relationship. In the plaint plan, the suit property has been described as 'A B C D' and immediately on the southern side, the property of the defendant is situate. Both the plaintiff and defendant are nothing, but brothers. 11. The present suit has been instituted mainly on the ground that the defendant has put up a wall from points 'A' to 'D' by way of denying the title of the plaintiff over the suit property. 12. The Courts below have concurrently rejected the defence putforth on the side of the defendants. 13. The first and foremost point raised on the side of the appellants/defendants is that the deceased defendant has had enjoyed the suit property for more than a statutory period and thereby prescribed title to the same by adverse possession. 14. In paragraph No.4 of the written statement, it has been simply stated that the defendant has had enjoyed the suit property for more than a statutory period and thereby perfected title to the same by adverse possession. 15. In fact this Court has scanned the entire averments made in the written statement. Nowhere it has been stated that the suit property is the absolute property of the plaintiff and to his knowledge the defendant has had enjoyed the same for more than a statutory period. Therefore requisite animus is lacking on the part of the defendant. Under the said circumstances the claim of adverse possession is not legally maintainable and therefore the first and foremost contention putforth on the side of the appellants/defendants cannot be accepted. 16. The learned counsel appearing for the appellants/defendants has repeatedly putforth his argument on the basis of the second contention raised on their side. 17. It is an admitted fact that in the trial Court an Advocate Commissioner has been appointed and he inspected the suit property and its adjoining property and filed his Report and Plan. In the Commissioner's Plan, it has been stated to the effect that a thatched shed is in existence in the suit property. 18. The learned counsel appearing for the appellants/defendants has contended that the thatched shed which is in existence in the suit property has been put up by the defendant. 19. In the Commissioner's Plan, it has been stated to the effect that a thatched shed is in existence in the suit property. 18. The learned counsel appearing for the appellants/defendants has contended that the thatched shed which is in existence in the suit property has been put up by the defendant. 19. It has already been pointed out that the defendant is not the owner of the suit property and in the written statement he has claimed only adverse possession and to that extent, this Court is of the considered view that the defendant has not perfected title to the suit property by adverse possession. Therefore it is quite clear that the defendant is a property grabber. Since the defendant is a property grabber, at any stage of litigation he should be thrown out. 20. Considering the fact that the defendant is nothing, but a property grabber and also considering that he should be thrown out at any stage of litigation, even assuming without conceding that the shed which is in existence in the suit property has not been put up by the defendant, at any stage of litigation he should be thrown out. 21. The Courts below after considering the available evidence on record, have rightly rejected the defence putforth on the side of the defendant and all the substantial questions of law settled in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 22. In fine, this second appeal is dismissed with costs and the concurrent Judgments and decrees passed by the Courts below are confirmed.