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2014 DIGILAW 849 (MAD)

P. Mokkamayan v. Lakshmiammal

2014-04-04

G.CHOCKALINGAM

body2014
JUDGMENT 1. Challenge in this second appeal is to the judgment and decree, dated 14.03.2007 passed in A.S. No. 175 of 2002 by the Subordinate Judge, Madurai, reversing the judgment and decree passed in O.S. No. 1394 of 1992, dated 19.06.2002 on the file of the District Munsif Court, Madurai. 2. The appellant herein as plaintiff has instituted Original Suit No. 1394 of 1992 on the file of the trial Court seeking the relief of declaration and permanent injunction, wherein the present respondents have been shown as defendants. 3. It is averred in the plaint that the plaintiff purchased the suit property through a registered sale deed in the month of April 1992 from one P.T. Mani as he stands the Power Agent of P.P. Thavasi Konar. The suit property is a vacant site measuring 1773 sq. ft shown as ‘ABCD’ in the rough sketch and the plaintiff has got absolute right and possession of the schedule mentioned property. The defendant and her family members are living in their adjoining house on the eastern side shown as ‘EFGH’. On 05.10.1992, the defendants started to put up a portable tent in the vacant site and also put up four pillars encroaching vacant site. On coming to know the same, the plaintiff has gone to the suit property and removed the same. At that time, the defendants and their family members jointly threatened the plaintiff stating that they would definitely trespass into the land and put a tent. Hence, on 07.10.1992 the plaintiff lodged a complaint before G-2, Police Station, Madurai city and the same is pending for enquiry so far. Thereafter, the plaintiff had built up Bamboo fence on all four ways and locked the site, but the defendants along with family members entered into the vacant site and damaged the bamboo fence and trying to put a new tent by encroaching the vacant site belonging to the plaintiff. Since the plaintiff is residing at Valangakulam village, Usilampatty Taluk, Madurai District, which is far away from the suit property, the plaintiff could not be able to look after the suit property frequently. Therefore, the plaintiff has filed the suit for the relief as stated supra. 4. In the written statement as well as the additional written statement filed on the side of the defendants, it is averred as follows: The description of property mentioned in the plaint is in-correct. Therefore, the plaintiff has filed the suit for the relief as stated supra. 4. In the written statement as well as the additional written statement filed on the side of the defendants, it is averred as follows: The description of property mentioned in the plaint is in-correct. The defendants are in no-way connected with the alleged sale deed said to have been executed by one P.T. Mani in favour of the plaintiff in respect of the suit property. The alleged sale deed is nothing, but a false and fraudulent document brought into existence in order to snatch the suit property from the hands of the defendants. The defendants had put up one tiled house at the north western corner and also put up one thatched house on the southern side and both houses are in existence for the past 18 years. The defendants had also put up one thatched shed by raising stone pillars in the middle of these two houses and it also exists for the past 18 years for the purpose of tethering their sheep and keeping their hens and obtained electricity service connection for the suit property bearing S.C. No. 1126. The plaintiff attempted to interfere with the peaceful possession and enjoyment of the defendants in the suit property under the guise of temporary injunction granted in I.A. No. 1118 of 1992 on false grounds. The plaintiff has no locus standi to claim any right or title or interest over the suit property. Hence, the defendants prayed for the dismissal of the suit. 5. The trial court after considering the rival evidence adduced on either side has decreed the suit. Against the judgment and decree passed by the trial court, the 1st defendant as appellant have preferred the A.S. No. 175 of 2002 on the file of the first appellate court. The first appellate court after hearing both sided and upon reappraising the evidence available on record has allowed the appeal and thereby set aside the judgment and decree passed by the trial court in O.S. No. 1394 of 1992. Against the judgment and decree passed by the first appellate court, this second appeal has been preferred at the instance of the plaintiff as appellant. 6. At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration: 1. Against the judgment and decree passed by the first appellate court, this second appeal has been preferred at the instance of the plaintiff as appellant. 6. At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration: 1. Whether the first appellate court failed to take note of the fact of the surveyor identifying property by the two definite boundaries noted in the sale deeds of the plaintiff and the extent thereon which definitely he must be entitled to? 2. Whether the first appellate court failed to note that when the Western and northern boundary having been clearly fixed and in the absence of any contra title document forthcoming or evidence of lesser extent alone was owned by the vendors of sale document, the entire extent in sale document must have to be accepted? 3. Whether the first appellate court failed to note that the defendant who has claimed title by way of adverse possession on the basis of an unregistered document is not entitled to any relief? 4. Whether the first appellate court erred in finding that the plaintiff has not proved the existence and owning of a thatched shed when the registered sale document itself mentions of existence of the same? 7. It is argued on the side of the appellant/plaintiff that the first appellate court, without considering the facts and the entire materials available on record, contrary to law reversed the judgment and decree of the trial court and the first appellate court also failed to note that the appellant/plaintiff has proved his title by clear documentary evidence and the respondents/defendants have not entitled to any right or possession in the suit property and further the first appellate court failed to note that the surveyor identified two definite boundaries, noted in the sale deeds belonged to the appellant/plaintiff. But the first appellate court without any valid reason interfered with the judgment and decree of the trial court, when the western and northern boundary, having been cleared fixed and therefore, the second appeal has to be allowed as prayed for. 8. But the first appellate court without any valid reason interfered with the judgment and decree of the trial court, when the western and northern boundary, having been cleared fixed and therefore, the second appeal has to be allowed as prayed for. 8. On the other hand, on the side of the respondents/defendants, it is argued that the first appellate court, after analysing the documents and evidence adduced by the both parties, has rightly come to the conclusion that the appellant/plaintiff has not proved his case and there is no illegality or infirmity in the judgment and decree of the first appellate court and therefore, the second appeal filed by the appellant/plaintiff has to be dismissed in toto. 9. It is admitted by both parties that in this case, the Advocate Commissioner inspected the suit property with the assistance of Surveyor in the presence of both parties as well as their respective counsel and submitted his report and plan, which were marked as Ex.C1 and C2 and the Surveyor, who measured the suit property also submitted a plan and report, which were marked Exs.C3 and C4 and for that, no objection was filed by both parties. 10. Further, in this case, the appellant/plaintiff has filed a rough plan to identify the suit property and on the side of the appellant/plaintiff, Ex.A2 sale deed, dated 07.04.20192 has been marked to prove that the the suit property was purchased by him and in that sale deed, the description of property is stated as follows: 11. Therefore, it is made clear from the sale deed Ex.A2 that the description for R.S. No. 3/1 is 76 cents and R.S. No. 6/13 is 56 cents, totally comes to 1 acre and 32 cents and the suit property is an extent of 1773 sq. feet and a thatched house was in-existence in part of it and specific boundaries were also stated. Since, the trial court has identified the description of the suit property through the report and plan of the Advocate Commissioner and both the survey numbers and extent were clubbed, hence the specific survey number has not mentioned for the suit schedule property and finally, the trial court has come to the conclusion that the suit property is in possession and enjoyment of the appellant/plaintiff. But according to sale deed Ex.A2, both the survey numbers and extent were clubbed and the suit property was described with definite boundaries with measurements and therefore, the contention of the respondents/defendants that the suit property survey number was not correctly mentioned Ex.A2 sale deed and the the appellant/plaintiff has no right or title in the suit property is not at all acceptable one, since specific boundary and survey numbers and extent were specifically mentioned in Ex.A2. Therefore, this court is of the considered view that the appellant/plaintiff has got right and title over the specific properties mentioned in the sale deed. 12. Further, on the side of the appellant/plaintiff to prove his possession, has produced Ex.A2 sale deed, Ex.A3 sale deed, dated 1.12.1981, Exs.A4 to A7 tax receipts of the year 1994 to 1997 and Ex.A8 Power of Attorney. 13. On the side of the respondents/defendants, it is contended that they were enjoying the suit property for a long time, without any interruption by anybody. But they have not produced any document to show their enjoyment in respect of the suit property and they have only produced Exs.B1 to B4, namely electricity card, electricity receipts consumption charges, etc. 14. Further, the respondents/defendants have not produced the particulars that the service connection is in their name, which is situate in the suit property. Hence, this court is of the considered view that on the basis of the electricity card and electricity receipts etc., this court cannot come to the conclusion that the respondents/defendants are in possession and enjoyment of the suit property, without any interruption for a long time. 15. Further, on the side of the respondents/defendants, Ex.B5 Inland letter, dated 18.05.2014 was marked, which was written by the plaintiff to the 1st respondent/1st defendant. According to the learned counsel for the respondents/defendants, Ex.B5 Inland letter was written by the appellant/plaintiff agreeing to compromise the matter amicably with the 1st defendant and therefore, it shows that the 1st respondent/1st defendant is in possession and enjoyment of the suit property and the appellant/plaintiff has no right in the suit property. 16. On perusal of Ex.B5 Inland letter, it is seen that no date is found place and the alleged Inland was disputed by the appellant/plaintiff. 16. On perusal of Ex.B5 Inland letter, it is seen that no date is found place and the alleged Inland was disputed by the appellant/plaintiff. Therefore, this court is of the view that no importance can be given to Ex.A5 and therefore, the contention of the respondents/defendants that the appellant/plaintiff has admitted the possession of the 1st respondent/1st defendant in Ex.B5, cannot be accepted. 17. Further, in this case, the respondents/defendants have claimed title by adverse possession. Therefore, the respondents/defendants have to prove that 12 years prior the date of filing the suit, they were in possession and enjoyment of the suit property, without any interruption from any party. The suit has instituted on 15.10.1992. Hence, it is well settled law that the respondents/defendants, who claims adverse possession, have to prove that they are in continuous possession, without interruption of anybody for 12 years, preceding to the date of filing of the suit. Hence, this court is of the view that the respondents/defendants have not prove their adverse possession in the suit property and to prove their possession, they have only produced the payment of electricity charges, electricity card etc. alone, which were also not connected with the electricity service connection, situate in the suit property. Hence, the defendants have not proved the they are entitled to claim adverse possession. 18. For all the reasons stated above, this court is of the that considered view that the respondents/defendants have not proved their title by way of adverse possession and the appellant/plaintiff proved his possession through Ex.A2 sale deed. Hence, the respondent/defendants have no right to encroach upon the suit property and therefore, they are liable to be evicted from the suit property and accordingly, they are directed to surrender the possession to the appellant/plaintiff, as described by the trial court. But the first appellate court without considering these aspects has wrongly come to the conclusion that the appellant/plaintiff has not proved the title and possession of the suit property, is without any basis and against the settled principles of law and it is liable to be set aside. When the boundaries are clearly fixed that the the boundaries prevailing over the measurement and the appellant/plaintiff is entitled to the encroached portion within the boundaries stated in the document of title deeds. Hence, the appellant/plaintiff is entitled to declaration and for possession as prayed for in the plaint. 19. When the boundaries are clearly fixed that the the boundaries prevailing over the measurement and the appellant/plaintiff is entitled to the encroached portion within the boundaries stated in the document of title deeds. Hence, the appellant/plaintiff is entitled to declaration and for possession as prayed for in the plaint. 19. Accordingly, the substantial questions of law are answered. 20. In the result, the second appeal is allowed and the judgment and decree of the first appellate court is set aside and the judgment and decree of the trial court is confirmed with regard to the declaration of title and possession of the suit property alone. Considering the facts and circumstances of the case, both parties are directed to bear their own costs. Second appeal allowed.