Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3148 (MAD)

Krishnan v. Perumal

2014-09-08

A.SELVAM

body2014
Judgment : 1. Challenge in this second appeal is to the Judgment and decree dated 31.07.2008 passed in Appeal Suit No.314 of 2007 by the Principal District Court, Tiruchirappalli, wherein the Judgment and decree dated 12.07.2007 passed in Original Suit No.288 of 1999 by the District Munsif Court, Musiri are reversed. 2. The appellants herein as plaintiffs have instituted Original SuitNo.288 of 1999 on the file of the trial Court for the relief of perpetual injunction, wherein the present respondents have been shown as defendants. 3. In the plaint it is averred that the suit property is comprised in Survey No.117/66 wherein two houses bearing Door Nos.18 and 19 are situate. Further in the suit property, a house under construction is also situate. The first plaintiff has been enjoying all the suit properties as Manager of a Hindu joint family consisting of the first plaintiff and other plaintiffs. In suit Survey No.117/66, the defendants are not having any manner of right, title and interest. Now the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiffs over the suit properties. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint. 4. In the written statement filed on the side of the defendants, it is averred that suit Survey No.117/66 is originally belonged to two brothers namely Anumanthan and Krishnan and both of them have partitioned their family properties by virtue of partition deed dated 02.03.1922, wherein the suit survey number has been allotted to the share of Anumanthan. The said Anumanthan has passed away leaving behind him his three sons namely Renganathan, Marimuthu and Venkatraman. The defendants are the sons of Renganathan. The defendants are having right, title and interest in suit Survey No.117/66 and they have also obtained necessary approval from the concerned Panchayat for putting up construction. Under the said circumstances the house under construction is being constructed by the defendants. It is false to aver in the plaint that the plaintiffs have put up construction 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. 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 defendants as appellants have preferred Appeal Suit No.314 of 2007 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 allowed the appeal in part and modified the Judgment and decree passed by the trial Court by way of excluding the portion which has been mentioned as 'B C D E F G H B' in Ex.C.4. Against the disallowed portion, the present second appeal has been preferred at the instance of the plaintiffs as appellants. 7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellants/ plaintiffs, the following substantial questions of law have been raised for consideration: a) Whether the Appellate Court is correct in modifying the Decree and Judgment of the Trial Court after holding that Ex.A.1 patta is to the entire extent of suit property is conclusive proof of possession? b) Whether the Appellate court finding is legally sustainable that the defendant had put up the disputed construction relying on uncorroborated evidence of D.W.2 and Ex.B.4 the blue print for the disputed structure obtained after the filing of the suit which is contrary to the Commissioner report? c) Whether Appellate Court is correct in modifying the Decree and Judgment of the Trial Court without recording any finding or reasons as to how the findings of the Trial Court is not correct and warrant interference? d) Whether the defendants are entitled for any relief when they have not let in any better evidence of possession to the contrary of Ex.A.1, which is prima facie evidence of title as per Section 6 of Tamil Nadu Patta Pass Book Act? e) Whether the Appellate court is correct in modifying the Decree and Judgment of the Trial Court relying on Ex.B.4 & Ex.B.5 and evidence of D.W.2 for which there is no pleading in the written statement? 9. The present suit has been instituted in respect of Survey No.117/66. e) Whether the Appellate court is correct in modifying the Decree and Judgment of the Trial Court relying on Ex.B.4 & Ex.B.5 and evidence of D.W.2 for which there is no pleading in the written statement? 9. The present suit has been instituted in respect of Survey No.117/66. In the plaint it is mentioned that in Survey No.117/66 two houses bearing Door Nos.18 and 19 are situate and the house under construction is also situate. 10. The specific case putforth on the side of the appellants/plaintiffs is that the plaintiffs are the owners of the suit property mentioned in the schedule and the defendants are not having any manner of right, title and interest over the same and since the defendants have tried to interfere with the peaceful possession and enjoyment of the plaintiffs over the suit property, the present suit has been instituted for the relief sought for in the plaint. 11. The defence putforth on the side of the respondents/defendants is that suit Survey No.117/66 is originally belonged to two brothers namely Anumanthan and Krishnan and both of them have partitioned their family properties including the suit survey number, wherein suit survey number has been allotted to the share of Anumanthan and the said Anumanthan has passed away leaving behind him his three sons namely Renganathan, Marimuthu and Venkatraman and the present defendants are the sons of Renganathan and they obtained necessary approval from the concerned Panchayat for putting up construction and only on the basis of approval, the house which is under construction in the suit property is being constructed by the defendants and therefore the plaintiffs are not entitled to get the relief in respect of the suit property. 12. The trial Court as stated earlier has decreed the suit as prayed for. The first appellate Court after coming to a conclusion that the defendants have been constructing the house which is under construction has dismissed the suit in respect of the portion, which has been described as 'BC D E F G H B' in Ex.C.4. 13. 12. The trial Court as stated earlier has decreed the suit as prayed for. The first appellate Court after coming to a conclusion that the defendants have been constructing the house which is under construction has dismissed the suit in respect of the portion, which has been described as 'BC D E F G H B' in Ex.C.4. 13. The learned counsel appearing for the appellants/plaintiffs has contended that with regard to suit survey No.117/66, a patta has been granted and the same has been marked as Ex.A.1 and only on the basis of Ex.A.1, the plaintiffs are the owners of suit Survey No.117/66 and the trial Court after considering the documents filed on the side of the plaintiffs has rightly decreed the suit, but the first appellate Court has erroneously dismissed the same in respect of the portion which has been described as 'B C D E F G H B' in Ex.C.4 and therefore the Judgment and decree passed by the first appellate Court are liable to be set aside. 14. The learned counsel appearing for the respondents/defendants has contended that on the side of the defendants a partition deed which has come into existence in between two brothers namely Anumanthan and Krishnan on 02.03.1922 has been marked as Ex.B.1 and further for constructing a house in the suit survey number, the defendants have duly obtained necessary approval from the concerned Panchayat and the trial Court without considering the vital documents filed on the side of the respondents/ defendants has erroneously decreed the suit in toto, but the first appellate Court after knowing the fact that no approved plan has been marked on the side of the plaintiffs for the purpose of showing that they are constructing the house, which is under construction, has rightly dismissed the suit in respect of the portion which has been described as 'B C D E F G H B' in Ex.C.4 and therefore the Judgment and decree passed by the first appellate Court do not require any interference. 15. As pointed out earlier, the suit property is comprised in Survey No.117/66. In the plaint schedule, it has been clearly mentioned that in the suit property two houses bearing Door Nos.18 and 19 are situate and a house which is under construction is also situate. 16. 15. As pointed out earlier, the suit property is comprised in Survey No.117/66. In the plaint schedule, it has been clearly mentioned that in the suit property two houses bearing Door Nos.18 and 19 are situate and a house which is under construction is also situate. 16. On the side of the respondents/ defendants, no rival title has been claimed in respect of houses bearing Door Nos.18 and 19. In the present case, the apple of discord is nothing, but the house which is being under construction. As rightly pointed out on the side of the respondents/defendants, no approved plan has been marked on the side of the plaintiffs. But on the other hand, necessary approval plan has been marked on the side of the defendants as Ex.B.4. If really, the plaintiffs have been constructing the house in question in the suit property, definitely they ought to have obtained necessary approval from the concerned Panchayat. But no document has been filed on the side of the plaintiffs. Under the said circumstances, the Court can very well come to a conclusion that as per Ex.B.4, the house which is under construction is being constructed only by the defendants. Since the said house is being constructed only by the defendants, relief of permanent injunction cannot be sought for. 17. At this juncture, the Court has to look into the nature of the relief sought for in the plaint. 18. In the plaint merely relief of permanent injunction has been sought for and no declaratory relief is available in the plaint. Considering the fact that both parties have set up rival claims over suit Survey No.117/66 and also considering that the present suit has been filed only for mere relief of permanent injunction, the same can be granted only on the basis of available document and as pointed out earlier as per Ex.B.4, it is easily discernible that the house under construction, is being constructed only by the defendants. Under the said circumstances, the plaintiffs are not entitled to get relief of permanent injunction in respect of the portion which has been described as 'B C D E F G H B' in Ex.C.4. 19. The first appellate Court after considering the available evidence on record, has rightly non-suited the plaintiffs in respect of the portion which has been described as 'B C D E F G H B' in Ex.C.4. 19. The first appellate Court after considering the available evidence on record, has rightly non-suited the plaintiffs in respect of the portion which has been described as 'B C D E F G H B' in Ex.C.4. In view of the foregoing enunciation of factual aspects, this Court has not found any error nor illegality in the Judgment and decree passed by the first appellate Court and further the substantial questions of law raised on the side of the appellants/ plaintiffs are not having substance at all and altogether the present second appeal deserves to be dismissed. 20. In fine, this second appeal is dismissed without costs. The Judgment and decree passed in Appeal Suit No.314 of 2007 by the Principal District Court, Tiruchirappalli are confirmed. However both parties are at liberty to institute a fresh suit for getting declaratory relief. Consequently, connected Miscellaneous Petition is dismissed.