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2019 DIGILAW 1942 (MAD)

Ramamoorthy v. Jagannathan

2019-07-29

T.RAVINDRAN

body2019
JUDGMENT : Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree passed in A.S. No.15/2003, on the file of the Principal Sub Court, Viruthachalam on 08/09/2004 and confirming the decree passed in O.S. No.1039/1992, on the file of the Principal District Munsif Court, Viruthachalam on 20.12.2002. 1. In this second appeal, challenge is made to the judgment and decree dated 08/09/2004, passed in A.S. No.15/2003, on the file of the Principal Subordinate Court, Viruthachalam confirming the judgment and decree dated 20.12.2002, passed in O.S. No.1039/1992, on the file of the Principal District Munsif Court, Viruthachalam. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 3. Suit for declaration, possession and mesne profits. 4. The dispute between the parties is only as regards the extent of 3 cents of land and even as per the description of the above said property in dispute, it is stated by the plaintiff that the above said extent of 3 cents of land is related to both S.Nos.86/6A and 86/6B. Now, according to the plaintiff, he has acquired title to an extent of 0.66½ cents in S.No.86/6 and the same has been in his possession and enjoyment and further, put forth the case that the defendants, without any entitlement, had trespassed into the extent of 3 cents of land unlawfully and hence, he has been necessitated to institute the suit against the defendants for appropriate reliefs. 5. The defendants resisted the plaintiff's suit contending that they had been in the possession and enjoyment of the 0.18 cents of land in the suit survey number in their own right and accordingly, the plea of trespass alleged by the plaintiff is false and further, according to the defendants, they had also prescribed title to the suit property by way of adverse possession and thereby prayed for the dismissal of the plaintiff's suit. 6. Considering the materials placed on record and the submissions made, the Courts below were pleased to dismiss the plaintiff's suit. Impugning the same, the present second appeal has been preferred. 7. It is found that the parties are not in issue with the total extent available in S.No.86/6 is 2.42 acres and the same could be gathered from Ex.A1 re-settlement register. Impugning the same, the present second appeal has been preferred. 7. It is found that the parties are not in issue with the total extent available in S.No.86/6 is 2.42 acres and the same could be gathered from Ex.A1 re-settlement register. It is seen that the plaintiff's father had acquired an extent of 0.33 ¼ cents in S.No.86/6 from one Kanjamalai, in the name of the plaintiff when the plaintiff was a minor by way of a sale deed dated 03.07.1971, which has been marked as Ex.A2. The above said extent is stated to be lying in north western corner of the abovesaid survey number. It is further seen that on the same date, Kanjamalai had alienated an extent of 0.33 ¼ cents in favour of Jayaraman and Sadhasivam sons of Narayanasamy and the said property is stated to be lying to the west of the property acquired in the name of the plaintiff by way of Ex.A2 sale deed and the sale deed in favour of Jayaraman and Sadhasivam has been marked as Ex.A4. Though the plaintiff would claim that he had purchased the above said extent from Jayaraman and Sadhasivam by way of a sale deed dated 08.08.1983, marked as Ex.A3, as rightly found by the Courts below, it is seen that by way of Ex.A3 sale deed, the plaintiff has only purchased the extent of 0.33 cents and not 0.33 ¼ cents as described in Ex.A4 sale deed. Therefore, in toto, it is found that as determined by the Courts below, by way of Exs.A2 and A3, the plaintiff had acquired only an extent of 0.66 ¼ cents and the claim of the plaintiff that he had acquired 0.66 ½ cents in the suit survey number by way of the abovesaid sale deeds, as such, cannot be accepted. Furthermore, as could be seen from the evidence adduced by the plaintiff examined as PW1, he has admitted that he is only having title to the extent of 0.66 ¼ cents in the suit survey number and that he had wrongly claimed title to the extent of 0.66 ½ cents in the suit survey number. It is further seen that neither the plaintiff's father nor the plaintiff had measured the property purchased by them by way of Exs.A2 and A3 and the same has been admitted by the plaintiff in the course of his evidence. It is further seen that neither the plaintiff's father nor the plaintiff had measured the property purchased by them by way of Exs.A2 and A3 and the same has been admitted by the plaintiff in the course of his evidence. Though the plaintiff had marked the sale deeds above stated as Exs.A2 to A4, with reference to his claim of possession and enjoyment of the above said extent acquired by him, the plaintiff has not placed any material pointing to the same and though the plaintiff would claim that he is having the chitta and adangal extract to evidence his possession of the property purchased by him and that he had entrusted the same to his Advocate, the fact remains that no such document has been projected on the part of the plaintiff. In such view of the matter, it is evident that there is no material on the part of the plaintiff to establish that he is in the possession and enjoyment of either 0.66 ½ cents or 0.66 ¼ cents in the suit survey number right from the time of the acquisition of the same under Exs.A2 and A3. 8. Now, according to the defendants, they had claimed title to the extent of 0.16 cents in the suit survey number lying in the north eastern corner by way of the sale deed dated 27.11.1951 and the certified copy of the above said sale deed has been marked as Ex.B1. Further, according to the defendants, though their ancestors had acquired an extent of 0.16 cents by way of Ex.B1 sale deed, according to them, within the boundaries described in the sale deed Ex.B1, they are in the actual possession and enjoyment of 0.18 cents and accordingly, it is put forth that right from the date of Ex.B1, i.e. From 27.11.1951, it is only their predecessors in interest and following them, the defendants who are in the possession and enjoyment of the extent of 0.18 cents and to sustain their above said claim, the defendants have produced the chitta extract marked as Exs.B2 to B4 and the adangal extract marked as Exs.B5 and B6. On a perusal of the above said revenue documents, it is seen that it is only the defendants and their predecessors in interest who are in the possession and enjoyment of 0.18 cents of lands in the suit survey number and accordingly, it is found that though they had acquired only 0.16 cents of lands under Ex.B1, as put forth by them, they are in the actual possession and enjoyment of 0.18 cents of land and accordingly, the defendants have also put forth the claim of adverse title in respect of the excess extent in their possession and enjoyment for several years right from the date of Ex.B1 sale deed. 9. In the light of the above said factual matrix, when as above noted, when the plaintiff has miserably failed to establish his claim of possession and enjoyment of the property said to have been acquired by him by way of Exs.A2 and A3 and when the documents projected on the part of the defendants go to disclose that they had been in the possession and enjoyment of the extent of 0.18 cents of land right from 1973 onwards, as determined by the Courts below, in such view of the matter, the claim of the plaintiff that the defendants had encroached into the disputed property by removing the fence and occupied the same, as such, cannot at all be accepted and therefore, the very basis of the plaintiff's case goes out and as determined by the Courts below, the alleged cause of action projected by the plaintiff for laying the suit has not been made out. 10. When the plaintiff is found to be aware of the resurvey proceedings effected in the suit S.No.86/6 and now claims that his property in resurvey exercise is comprised in S.No.86/6A, all the more, he would claim that the disputed extent of 3 cents of land is associated or connected with both S.Nos.86/6A and 86/6B. However, the plaintiff has come forward with the suit only by giving the description of the suit property as lying in S.No.86/6 and without giving the sub division effected therein. Therefore the Courts below had rightly disbelieved the contentions put forth by the plaintiff that he is not aware of the survey proceedings effected in the suit S.No.86/6. 11. However, the plaintiff has come forward with the suit only by giving the description of the suit property as lying in S.No.86/6 and without giving the sub division effected therein. Therefore the Courts below had rightly disbelieved the contentions put forth by the plaintiff that he is not aware of the survey proceedings effected in the suit S.No.86/6. 11. In the light of the above said position, when it is seen that it is only the defendants who are in the possession and enjoyment of the extent of 0.18 cents of land inclusive of the disputed property for more than 18 years by exercising the absolute right and enjoying the same continuously, that too with the knowledge of the plaintiff and in such view of the matter, the Courts below are correct in holding that it is only the defendants who are in the possession and enjoyment of the extent of 0.18 cents of lands in the suit survey number inclusive of the disputed extent of 3 cents of land and the plaintiff having not put forth any objections to the enjoyment of the defendants with reference to the same, despite having knowledge of the continuous possession and enjoyment of the property in dispute, the Courts below are justified in upholding the defendants' version and also found to be justified in disbelieving the plaintiff's case by determining that the plaintiff has miserably failed to establish his title to the suit property as described in the plaint and his possession and enjoyment of the same on the strength of his title and also miserably failed to establish that the defendants have trespassed into the suit property during 1992 as put forth in the plaint and in such view of the matter, when the above said reasonings and determination of the Courts below for rejecting the plaintiff's case and accepting the defence version, being found on the proper appreciation of the materials available on record and centering on factual matrix and not suffering from any perversity or irrationality, in such view of the matter, I do not find any acceptance in the second appeal. 12. In the light of the above discussions, no substantial question of law is involved in the second appeal. Resultantly, the second appeal is dismissed. Consequently, connected miscellaneous petition, if any, is closed.