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2017 DIGILAW 2280 (MAD)

S. Vijayaveni v. Ayyammal

2017-07-28

N.SATHISH KUMAR

body2017
JUDGMENT : Aggrieved over the concurrent judgment and decree of the trial Court and the appellate Court granting declaration and consequential injunction in respect of the third schedule property and also mandatory injunction in respect of the second schedule property, the present second appeal has been filed. For the sake of convenience, the parties are referred as per their rank in the suit. 2. The brief facts of the plaintiff case is as follows. The suit property originally belonged to the plaintiff's grand father Ellappa Naicker by virtue of sale deed dated 30.08.2011. The second schedule property is the western portion of the first schedule property. The said Ellappa Naicker had three sons namely Ramasamy Naicker, Venkadasamy Naicker and Ellappa Naicker. The plaintiff is the son of the Venkadasamy Naicker. Ramasamy Naicker died issueless. Therefore, the plaintiff's father Venkadasamy Naicker and his brother Ellappa Naicker succeeded the share of the Ramasamy Naicker and enjoying the properties together. Thereafter, in a family arrangements, 2/3rd share on the western side of the property allotted to the plaintiff and the remaining 1/3rd share on the eastern side was allotted to Ellappa Naicker. As per the above oral partition and family arrangement, first item of the suit property was enjoyed by the plaintiff. The property allotted to the plaintiff is shown as third schedule property. The first defendant has purchased the 1/3rd share from the plaintiff's Uncle Ellappa Naicker's legal heirs. When the matter stood us, the first defendant encroached upon 6 s feet land on the western side of the second schedule and put up a construction when the plaintiff was away from the native. Immediately, the plaintiff issued a legal notice on 06.05.1981. Hence, the suit has been filed for declaration and mandatory injunction. 3. The case of the third defendant and adopted by the 2, 4 to 9 defendants are as follows. Admittedly, the properties originally belong to the plaintiff's Grandfather and his sons. It is the contention of the defendants that the measurement shown in the first schedule is not correct. In fact the eastern side only 34 + feet and south-west only 42 + feet alone available. The first defendant purchased 1/3 of the property from Ellappa Naicker's legal heirs on 12.01.1967. It is the contention of the defendants that the measurement shown in the first schedule is not correct. In fact the eastern side only 34 + feet and south-west only 42 + feet alone available. The first defendant purchased 1/3 of the property from Ellappa Naicker's legal heirs on 12.01.1967. After such purchase, there was an understanding between the first defendant and the plaintiff that the first defendant should enjoy the 1/3rd share in the northern side East-West. Similarly, the plaintiff enjoyed 2/3rd share in the southern side East- West and both of them enjoying the property as per the oral understanding. The first defendant has also constructed the latrine in the North-East side in the year 1979. In the second schedule property, there was a cow shed and the same was removed by the defendants and the same has been converted as a Match Box Factory. Similarly, the first defendant also had a property on the western side of the suit property to an extent of 25 + feet and southern side 28 + feet and Northern side and south-west 44 feet and eastern side 42 feet. The plaintiff has suppressed the existence of the defendants land adjacent to the suit property and in the suit property, the defendants have constructed the Match Box Factory and measurement given in the plaintiff is also not correct. The first defendant also executed the Will in favour of the defendants 3 to 5 and they are in enjoyment of the property. Hence, prayed for dismissal of the suit. 4. On the basis of the above pleadings, the trial Court has framed the following issues:- “i. Whether the suit properties are enjoyed as per the oral partition. ii. whether the second and third schedule property belongs to the plaintiff. iii. whether the first defendant has encroached upon the second item of property and put up the construction. iv. whether the defendants have any right over the second schedule property. v. what relief the plaintiff is entitled.” 5. On the side of the plaintiff, the plaintiff was examined as P.W.1 and marked four documents as Ex.A1 to Ex.A4. On the side of the defendants three witnesses were examined as D.W.1 to D.W.3 and marked 10 documents as Ex.B1 to Ex.B10 and Court documents were marked as C1 to C6. 6. v. what relief the plaintiff is entitled.” 5. On the side of the plaintiff, the plaintiff was examined as P.W.1 and marked four documents as Ex.A1 to Ex.A4. On the side of the defendants three witnesses were examined as D.W.1 to D.W.3 and marked 10 documents as Ex.B1 to Ex.B10 and Court documents were marked as C1 to C6. 6. The Trial Court considering the entire evidence and also both oral and documentary evidence decreed the suit. As against which, the first appeal has been filed in A.S.No.89 of 1988. The appeal also dismissed by confirming the judgment and decree of Trial Court. As against which, the present second appeal has been filed. 7. At the time of the admission, the following substantial questions of law were framed. “1. Whether the suit is maintainable in law in the absence of a prayer for recovery of possession when admittedly defendants are in possession of the second schedule property? 2. Whether the onus of proof shifts from plaintiff to defendant when actually the plaintiff has not discharged his burden of proving his case to any length? 3. Whether circumstantial evidence (though remote) can be relied in the case? 4. Whether the suit is bad in law in the absence of an issue regarding relief for possession?” 8. The learned counsel appearing for the appellant has made only one contention before this Court that the suit for declaration is not maintainable without seeking the relief of possession. In respect of substantial question of law, no arguments put forward by the learned counsel for the appellant. 9. The further contention of the learned counsel for the appellant that admittedly the second item in the suit schedule property, the building was an existence and building was admittedly put up by the appellant. When the possession is with the appellant, declaration without the relief of possession is not maintainable. 10. The learned counsel for the first respondent submitted that admittedly there is no dispute with regard to the suit properties and second and third items actually belongs to the plaintiff. It is the case of the plaintiff that the appellant has encroached upon the portion of the second schedule property and put up a construction and immediately filed the suit seeking declaration in respect of the third schedule property and also to remove the encroachment made in the second schedule property. It is the case of the plaintiff that the appellant has encroached upon the portion of the second schedule property and put up a construction and immediately filed the suit seeking declaration in respect of the third schedule property and also to remove the encroachment made in the second schedule property. Hence, it is submitted that there is no need whatsoever claiming the relief of possession since the appellant is encroacher and put up a construction in the property of the respondents. Therefore, when the property itself absolutely belongs to the respondent, there is no need whatsoever for seeking recovery of possession, when the relief is already sought for mandatory injunction to remove the encroachment. Hence prayed for dismissal of the appeal. 11. The suit has been laid for declaration in respect of the suit schedule property. On careful perusal of the documents, the property originally purchased by the plaintiff's Grand father under Ex.A1. It is also not in dispute that after purchase of the suit property by the plaintiff's Grand father under Ex.A.1, one of his son Ramasamy Naicker died issueless. Therefore, the plaintiff's father and his brother were enjoying the suit property. This aspect has been admitted by both sides. It is also admitted by both sides that 2/3rd share was allotted to the plaintiff's father and the remaining 1/3rd share was allotted to his brother Ellappa Naicker. The first defendant has purchased 1/3rd share from Ellappa Naicker. 12. It is to be noted that it is the main contention of the plaintiff that the entire suit property in the western side 2/3rd share was allotted to the plaintiff's father and the Eastern side remaining 1/3rd share was allotted to the Ellappa Naicker. Though the defendants have disputed such allotment between two brothers, but the specific plea of the defendants that after purchase of the 1/3rd share by the first defendant from the Ellappa Naicker, there was an oral understanding between the parties namely the first defendant and the plaintiff. Wherein, it was agreed between them, the first schedule property in the southern side 2/3rd share was allotted to the plaintiff and northern side namely 1/3rd was allotted to the first defendant. Wherein, it was agreed between them, the first schedule property in the southern side 2/3rd share was allotted to the plaintiff and northern side namely 1/3rd was allotted to the first defendant. Though such specific stand has been taken by the defendant that there was an oral understanding between the first defendant and the plaintiff, absolutely there is no evidence to show that only the southern portion was allotted to the first defendant. Whereas, Ex.B4, the sale deed under which the first defendant purchased the property on 12.01.1967 clearly indicates that in fact the property has already been partitioned between two brothers namely the plaintiff's father Venkadasamy Naicker and Ellappa Naicker and they have been enjoying the property as per the oral partition effected between them. 13. From Ex.B.4 itself an oral partition has been clearly established even prior to 1967 between two sons of original owner Ellappa Naicker. Similarly, D.W.1 in his evidence also admitted that there was an oral partition between the predecessor in title even before their purchase. Though, there was no dispute between the parties with regard to the oral partition measuring 2/3rd share and 1/3rd share respectively, the dispute now seems to be with regard to the partition of the property. But, both sides have not adduced any evidence to substantiate their rival claims. In three occasions Advocate Commissioners were appointed by the Court and all the three Commissioners have filed respective sketches and filed their reports. On physical verification of the properties, the Commissioner Reports were filed and all the Commissioners were clearly given a report to the effect that properties were divided on the western side and eastern side. The Trial Court and the Appellate Court have also taken note of the report of the Commissioners and the topography of the suit property and held that the suit properties were divided on the western side and eastern side namely 2/3rd on the western side and 1/3rd on the eastern side. 14. The learned Trial Court is also clearly noted down that the latrine built by the defendants is also existence only on the eastern side i.e., within the 1/3rd share entitled by them. 14. The learned Trial Court is also clearly noted down that the latrine built by the defendants is also existence only on the eastern side i.e., within the 1/3rd share entitled by them. The learned trial Court is also taken note of the measurements in the original title deed and also compared with other documents filed by the defendants and found that the schedule properties actually falls within the 2/3rd share originally entitled by the plaintiff accordingly granted declaration in respect of the 3rd item of the suit properties. The factual aspects has been clearly considered by the learned Trial Court and arrived such a conclusion. 15. Now the contention of the plaintiff is that in the year 1981, the defendants encroached upon the partition of the second schedule property and put up a construction when the plaintiff was away from his native and immediately has also issued legal notice on 06.07.1981 and the same was marked as Ex.A2. Whereas, it is the contention of the defendants that they put up a construction only with the permission of the plaintiff. Therefore, in respect of which, the plaintiff has also given a letter Ex.B1. On careful perusal of Ex.B.1 to B.3 the letters in fact clearly shows that only to establish the Match Box Factory in the neighboring land, the plaintiff has given such letter. In fact, no objection was given only to construct the Match Box Factory within the lands of defendants. Therefore, the above letters cannot be construed as no objection to put up building in the plaintiff land. 16. Merely because, no objection was given to the neighbour to run the business in his land cannot be construed as no objection to put up unlawful construction over others land. The plaintiff by oral and documentary evidence clearly established that in a portion of his 2/3rd share, the defendant has encroached upon and put up the construction in the year 1981. The suit was also filed immediately not only for declaration of the 1/3rd share property, but, also to remove the encroachment made by the defendant. In such view of the matter, this Court is of the view that to remove the encroachments, a relief of recovery of possession is not at all required. The suit was also filed immediately not only for declaration of the 1/3rd share property, but, also to remove the encroachment made by the defendant. In such view of the matter, this Court is of the view that to remove the encroachments, a relief of recovery of possession is not at all required. When the declaration is sought in respect of the property belonging to the plaintiff, the consequential relief in respect of removing the encroachment in the portion of the land, which declaration is sought itself sufficient to grant a relief and there is no separate relief requiring possession is necessary. Hence, the substantial questions of law is answered accordingly. 17. Similarly, the plaintiff's specific case that there was an oral partition has been clearly established not only by the documentary evidence but also admission on the side of the defendants. Further, the Commissioner's Reports and other documents Ex.B4 also clearly substantiate the same. Therefore, the plaintiff's initial burden has been discharged. The defendants contention is that there was an oral partition in other mode has not been established in any manner. Hence, this Court is of the view that the judgment and decree of the First Appellate Court does not require any interference. 18. With regard to issue No.3 on perusal of the judgment of the trial Court as well as the Appellate Court, both Courts not passed the Judgments based on mere circumstantial evidence, in fact, the judgment is based on the documents and the oral evidence and also Commissioner's Report. Hence, there is no question of law involved in this aspect. 19. Accordingly, the Second Appeal fails and dismissed. No costs.