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2017 DIGILAW 736 (MAD)

K. Balasubramanian v. A. Periyasamy

2017-03-22

N.AUTHINATHAN

body2017
JUDGMENT : N. AUTHINATHAN, J. 1. The above second appeal arises out of the Judgment and Decree, dated 06.01.1997, passed in A.S. No. 135 of 1996, on the file of the Principal District Judge, Sivagangai, reversing the Judgment and Decree, dated 31.01.1996 passed in O.S. No. 240 of 1992, on the file of the District Munsif, Sivaganga. 2. Parties herein are hereinafter referred to as they were arrayed in the original suit. 3. The plaintiff in O.S. No. 240 of 1992 on the file of the District Munsif, Sivaganga is the appellant herein. He filed the above suit for permanent injunction with respect to a property measuring east-west 40 feet, south-north 50 feet and a hut put up thereon bearing Door No. 3/30, in Paloovur village, Silukkampatti Group, Sivagangai. 4. The case of the plaintiff is that the suit property originally belonged to Ramanathan Servai. Muthuveerayee Ammal is the wife of Ramanathan Servai. Maragathavalli is the sister of Muthuveerayee Ammal. The plaintiff is the son of the Maragathavalli. After the life time of Ramanathan Servai, his wife Muthuveerayee Ammal was under the care and custody of the plaintiff. Ramanathan Servai has dealt with this suit property by mortgaging the same on 27.09.1928. He discharged the mortgage. Since Muthuveerayee Ammal was under the care and custody of the plaintiff, she orally gifted the property to plaintiff about 30 years ago. The plaintiff put up a hut and started enjoying the property. Electricity connection was also given to the hut in the name of the plaintiff on 25.01.1980 under "One Electrical Lamp for one Hut" Scheme. The plaintiff has been in enjoyment of the property. He has paid house tax to the Panchayat and also acquired title by prescription. 5. The first defendant filed a written statement and it was adopted by defendants 2 and 3. The defendants are brothers. According to them, the suit property was purchased by their paternal grand father Durai Samy Servai under a sale deed dated 24.08.1906. He constructed a house thereon and lived there. After the life time of their grand father, they left for Sivagangai and the house in the suit property remained un-occupied. The house building fell into a state of dilapidation. During Updating Record Scheme (UDR), an attempt was made to obtain patta for the land in question in favour of the plaintiff and one Chithirai Velu S/o Mangini Servai. After the life time of their grand father, they left for Sivagangai and the house in the suit property remained un-occupied. The house building fell into a state of dilapidation. During Updating Record Scheme (UDR), an attempt was made to obtain patta for the land in question in favour of the plaintiff and one Chithirai Velu S/o Mangini Servai. On a petition given by the first defendant, dated 03.05.1990 to the Natham Survey Inspector, an enquiry was conducted by the surveyor and by his proceedings in The. Mu. No. 16/90, dated 09.09.1990, patta was ordered to be made in the name of the defendants. An appeal preferred by the plaintiff to the Natham Settlement Tahsildar was dismissed by him in Na. Ka. No. 1, Manu/10/92, dated 13.03.1992. The plaintiff, taking advantage of the absence of the defendants in the village, put up a hut on the south-east corner of the property during the month of September 1990. The remaining part of the property has been lying vacant. The defendants denied the claim of the plaintiff that he has acquired title by prescription. 6. Before the Trial Court, in support of the case, the plaintiff has examined himself as PW-1 and examined two witnesses. The 1st defendant was examined as DW-1 and one more witness was also examined on the side of the defendants. The plaintiff has marked 25 documents as Exs.A.1 to A.25. The defendants have marked 9 documents as Ex.B.1 to B.9. 7. The Trial Court, after considering the materials on record, came to the conclusion that the plaintiff has been in possession of the suit property and granted the relief of permanent injunction as prayed for. Challenging the findings of the Trial Court, the defendants preferred an Appeal Suit in A.S. No. 135 of 1996 on the file of the Principal District Judge, Sivagangai. 8. The first Appellate Court, on appreciation of evidence, found that the possession of the plaintiff was not lawful. It has further held that though the plaintiff claims title to the suit property, he has not come forward to seek a prayer for declaration. As the plaintiff has failed to prove that his possession was lawful, he cannot claim an injunction against the defendants, who are lawful owners. The appeal was allowed and the judgment and decree of the Trial Court were set aside. 9. As the plaintiff has failed to prove that his possession was lawful, he cannot claim an injunction against the defendants, who are lawful owners. The appeal was allowed and the judgment and decree of the Trial Court were set aside. 9. Aggrieved by the judgment of the first appellate court, the appellant has approached this Court by way of this Second Appeal. 10. At the time of admitting the second appeal, the following substantial question of law have been formulated: (a) Whether the Lower Appellate Court was right in dismissing the suit by reversing the Judgment and Decree of the trial Court When Ex.A.4 to A.16 clearly prove that the Appellant is in possession of the suit property from the year 1977 onwards? (b) Whether the Lower Appellate Court was correct in not considering the report of the Commissioner, which clearly proves that the Appellant was in the possession of the suit property for long time? (c) Whether the Lower Appellate Court was right in not applying the principles of adverse possession in the present case? (d) Is not the Learned Principle District Judge wrong in applying the Maxim that the permanent injunction cannot be granted as against the true owner in the facts of the present case? 11. Despite service of notice, the respondents remained absent. Points: 12. The main contention of the learned counsel for the appellant is that in a suit for bare-injunction, the plaintiff is required to prove only his possession and in the case at hand, the possession of the plaintiff has been admitted by the defendants and that therefore, the plaintiff is entitled to the relief of injunction as prayed for. It is also his contention that the First Appellate Court was not justified in coming to the conclusion that the suit for bare-injunction was not maintainable as against the defendants. The learned counsel for the appellant would also contend that the first appellate court has erred to note that the plaintiff has established his title to the suit property by prescription. 13. A careful scrutiny of the plaint would reveal that the plaintiff claims the relief of injunction on the basis that he is the owner of the suit property. According to him, the suit property originally belonged to one Ramanathan Servai and after his death, his wife Muthu Veerayee Ammal orally gifted the property in his favour. 13. A careful scrutiny of the plaint would reveal that the plaintiff claims the relief of injunction on the basis that he is the owner of the suit property. According to him, the suit property originally belonged to one Ramanathan Servai and after his death, his wife Muthu Veerayee Ammal orally gifted the property in his favour. It is also claimed that he acquired title by prescription. The defendants claimed that they are the lawful owners of the property. 14. It is seen from the materials on record that the parties had proceeded on the basis that the title to the suit property was at issue. Both sides have adduced evidence in support of their case. Ex.B.1 is a sale deed, dated 20.08.1906. Under this deed, the grandfather of the defendants purchased this property. Admittedly, there is no registered gift deed in favour of the plaintiff. The plaintiff claims that the property was orally gifted to him. The first appellate court, on appreciation of evidence, has disbelieved the case of the plaintiff. I do not find any ground for interfering with the appreciation of said evidence. 15. It is true that the defendants admitted the possession of the plaintiff with respect to the hut built on the suit property. According to them, it was put up only in the year 1990. The remaining part of the suit property, according to them, has been lying vacant. The appellant filed tax receipts as Exs.A.7 to A.16, A.24 and A.25. The suit has been filed in the year 1992. The earliest tax receipt (Ex.A.7) is dated 14.12.1981. Therefore, it cannot be held that the plaintiff has acquired title by adverse possession. 16. As already noticed, the plaintiff's title to the property is in dispute. The defendants assert title to the suit property and produced evidence in support of their claim. Since the plaintiff's title is in dispute, he ought to have prayed for declaration. The first appellate court, on the basis of the materials, has come to the conclusion that the plaintiff is not entitled to an order of injunction against the defendants, who are lawful owners. The findings of fact recorded by the first appellate court cannot be interfered with in the second appeal. Re-appreciation of evidence on the ground that different view is possible on facts cannot be said to be a substantial question of law. 17. The findings of fact recorded by the first appellate court cannot be interfered with in the second appeal. Re-appreciation of evidence on the ground that different view is possible on facts cannot be said to be a substantial question of law. 17. The first appellate court discussed all aspects of the case and came to its own conclusion as per evidence on record. Therefore, there is no substance in the grievance of the appellant regarding the judgment of the first appellate court. 18. For the reasons stated above, the second appeal fails and it is dismissed. The judgment and decree of the first appellate court in A.S. No. 135 of 1996, dated 06.01.1997 are confirmed. No costs.