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2018 DIGILAW 2497 (MAD)

V. M. Kuppa Gounder v. Janaki

2018-08-11

T.RAVINDRAN

body2018
JUDGMENT : 1. In this second appeal, challenge is made to the Judgment and Decree dated 09.08.2002 passed in A.S.No.13 of 2002 on the file of the Additional District Judge, Fast Track Court, Tirupattur, confirming the Judgment and Decree dated 08.08.1997 passed in O.S.No.885 of 1990 on the file of the District Munsif Court, Tirupattur. 2. The second appeal has been admitted on the following substantial questions of law: “(a). Whether the judgments of the Courts are right in not considering the fact that the appellant has got a right of possession of the suit property by way of adverse possession? (b). Whether the Courts are right in not considering the report of the Advocate Commissioner that the drainage is constructed by the appellant and that area was covered with the concrete slabs" 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The plaintiff has laid the suit against the defendant for the relief of permanent injunction. 5. According to the plaintiff, in brief, the suit properties bearing Door Nos.4 & 5 are in the possession and enjoyment of the plaintiff and the property bearing Door No.6 is in the possession and enjoyment of the defendant. It is found that the properties bearing Door Nos.4 to 6 originally belonged to the common owner Akkammal. The plaintiff traces title to the suit properties as described in the plaint contending that Akkammal sold the suit properties to one Nandi Gounder by way of a sale deed dated 07.03.1966 and thereafter, Nandi Gounder had sold the suit properties to the plaintiff by way of two sale deeds dated 22.02.1969 and 02.09.1974 and the abovesaid sale deeds executed by Nandi Gounder in favour of the plaintiff had been marked as Exs.A1 and A2. The dispute, with reference to the parties, is only as regards the Wall lying in between the properties belonging to the plaintiff and the defendant and the drainage portion lying to the west of the abovesaid wall. The dispute, with reference to the parties, is only as regards the Wall lying in between the properties belonging to the plaintiff and the defendant and the drainage portion lying to the west of the abovesaid wall. The plaintiff claims the said Wall as his separate wall and also claims right to the drainage portion lying to the west of the said Wall and for the exclusive claim of title to the wall and the drainage portion lying to the west of the same, as above noted, the plaintiff places reliance upon Exs.A1 & A2. However, as rightly determined by the Courts below, on a perusal of the title deeds relied upon by the plaintiff marked as Exs.A1 & A2, there is no mention that the vendor had conveyed the right to the plaintiff including the drainage portion stated to be lying to the west of the wall on the western side. Furthermore, there is also no mention of the wall lying between Door Nos.5 & 6 as exclusively belonging to the plaintiff and the same had been conveyed to the plaintiff by way of Exs.A1 & A2 as sought to be projected. In such view of the matter, when the title deeds relied upon by the plaintiff do not buttress or evidence his alleged claim of title to the Wall and drainage portion, it is found that as determined by the Courts below, the plaintiff cannot contend that the Wall and the drainage portion are exclusively in his possession and enjoyment and the same does not belong to the defendant and that the defendant is attempting to interfere with his possession and enjoyment of the same. Quite inconsistent to the case of the plaintiff, to trace out the title to the abovesaid wall and drainage portion, noting that the documents Exs.A1 & A2 do not support the plaintiff's case, it is found that oral evidence has been adduced as if the plaintiff had constructed the drainage portion after the purchase of Exs.A1 & A2. However, there is no material placed on the part of the plaintiff to hold that the drainage portion had been put up by him after the purchase under Exs.A1 & A2. Thus, the case projected during the course of oral evidence that the drainage portion had been constructed or put up 5 years after the purchase is untenable. However, there is no material placed on the part of the plaintiff to hold that the drainage portion had been put up by him after the purchase under Exs.A1 & A2. Thus, the case projected during the course of oral evidence that the drainage portion had been constructed or put up 5 years after the purchase is untenable. Accordingly, it is found that the plaintiff is unable to present any valid claim of title to the wall as well as the drainage portion either through the documents marked as Exs.A1 & A2 as well as by producing any other valid material to hold that the drainage portion had been put up by him after the purchase under Exs.A1 & A2. 6. At the foremost, when the plaintiff's claim of exclusive title to the wall and drainage portion is being contested by the defendant tooth and nail, in my considered opinion, the plaintiff should have sought for the relief of declaration as regards the abovesaid properties. However, the plaintiff had not sought the relief of declaration with reference to the same. When the suit itself has come to be really laid by the plaintiff only as regards the wall and the drainage portion and when there is no material placed by the plaintiff to establish his claim of exclusive title to the same and when it is found that, as determined by the Courts below, rightly, that the Wall lying in between the properties of the plaintiff and the defendant is a common wall to the parties and when it is further seen that the drainage portion lies within the property belonging to the defendant, it is seen that the Courts below had rightly negatived the case of the plaintiff as regards the wall and the drainage portion. 7. As determined by the Courts below, as regards the properties lying to the East of the common wall, the defendant has not picked up any issue with the plaintiff. The issue between the parties is only as regards the wall and the drainage portion. 7. As determined by the Courts below, as regards the properties lying to the East of the common wall, the defendant has not picked up any issue with the plaintiff. The issue between the parties is only as regards the wall and the drainage portion. Accordingly, the plaintiff knowing fully well that the wall and the drainage portion had not been secured by him under Exs.A1 & A2 exclusively, particularly, the drainage portion had not been secured by him exclusively by way of Exs.A1 & A2, it is found that the plaintiff has also laid a claim of title to the same by taking the plea of adverse possession. Thus, it is found that impliedly thereby the plaintiff has admitted the defendant's title to the same. However, for sustaining the claim of title to the abovesaid properties on the plea of adverse possession, other than Exs.A1 & A2, the plaintiff has produced two house tax receipts marked as Exs.A3 & A4. That apart, no other document has been placed by the plaintiff. When the abovesaid documents do not in any manner advance the case of the plaintiff for upholding his plea of adverse possession, it is found that the Courts below had rightly not accepted the plaintiff's case for sustaining his claim of title to the abovesaid properties on the strength of adverse possession. 8. The plaintiff having failed to establish his claim of exclusive title to the wall as well as his claim of title to the drainage portion lying to the west of the Wall and when the documents projected by the plaintiff as abovenoted do not in any manner go to establish his claim of title to the suit properties as projected in the plaint as well as his claim of title to the said properties on the plea of adverse possession also, it is seen that the Courts below are justified in negativing the plea of the plaintiff's claim of title to the disputed suit properties, particularly, the wall and drainage portion as projected in the plaint. When the commissioner's report cannot be the basis for upholding the plaintiff's claim of title to the disputed portions, it is found that the contention of the plaintiff's counsel that the Courts below had not taken into consideration the commissioner's report for upholding his title to the disputed areas as such cannot be countenanced. When the commissioner's report cannot be the basis for upholding the plaintiff's claim of title to the disputed portions, it is found that the contention of the plaintiff's counsel that the Courts below had not taken into consideration the commissioner's report for upholding his title to the disputed areas as such cannot be countenanced. Inasmuch as the plaintiff has not placed any material for sustaining his claim of title to the disputed areas by way of adverse possession, it is found that the Court had not rightly endeavoured to countenance the said plea of the plaintiff. The substantial questions of law formulated in the second appeal are, accordingly, answered against the plaintiff. In conclusion, the second appeal fails and is, accordingly, dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.