Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 2207 (MAD)

S. P. Lourthusami v. K. Samuel

2019-08-28

R.PONGIAPPAN

body2019
JUDGMENT : R. Pongiappan, J. 1. This second appeal is preferred against the Judgment and Decree, dated 19.08.1998, passed in AS No. 67 of 1996 on the file of the learned Subordinate Judge, Palani. 2. Before the trial Court the first respondent K. Samuel, the 'deceased San-thanammal and the respondents 3 to 6 herein filed a suit as against the appellants in the year 1990 and seeking the relief of permanent injunction restraining the defendants and their men from in any way interfering with the peaceful possession and enjoyment of the suit property, i.e., Item Nos. 1 to 6 and for costs. 3. By Judgment and Decree, dated 05.08.1993, the learned District Munsif-cum-Judicial Magistrate, Kodaikanal, had allowed the suit in respect to the first item of the suit property In respect to the item Nos. 2 to 6 of the suit schedule property, the claim made by the plaintiffs/respondents are dismissed. Aggrieved over the said findings, the plaintiffs/respondents filed an appeal in A.S. No. 67 of 1996 on the file of the learned Subordinate Judge, Palani. 4. After elaborate enquiry, the learned Subordinate-Judge, Palani, by Judgment and Decree/dated 19.08.1998 allowed the appeal and granted injunction in respect to item Nos. 2 to 6 also Feeling aggrieved over the same, the appellants/defendants are before this Court with this present Second Appeal. 5. For the sake of convenience, the parties are referred to as, as described before the Courts below. 6. The averments made in the plaint, in brief, are as follows: Through an assignment order given by the Government, item No. 1 of the suit property is in the hands of one M.S.P. Arokiyasamy. On 06.08.1988, the plaintiff purchased the said property through his Power-of-Attorney, by name, Mariya Louis. Ever since from the date of purchase, the first plaintiff is in possession and enjoyment of the suit item No. 1 and his possession continues till today. Item Nos. 2 to 6 of the suit properties is the portion of Ward-D, Block-17 comprised in T.S. No. 21 of Kodaikanal village, in fact the same was encroached by the plaintiffs 2 to 6 and they are being enjoyed the same. For their recognition, the Government has issued separate B-memo to the plaintiffs 2 to 6. They have been individually paying the kist to the Government for the said properties. For their recognition, the Government has issued separate B-memo to the plaintiffs 2 to 6. They have been individually paying the kist to the Government for the said properties. Since the plaintiffs 2 to 6 are residing out of the said village, they have appointed one Fathima as their Power-Agent for managing the suit properties. The defendants claim false right over the suit properties and interfering with the possession and enjoyment of the plaintiffs. Hence, the suit. 7. The averments made in the written statement filed by the first defendant and adopted by the defendants 2 to 4 reads as follows: The suit has been filed without mentioning the address and proof of the plaintiffs. Even the address of the Power Agent has not been mentioned in the plaint. Originally, M.S.P. Arokiyasamy, who is the father of the first defendant encroached the suit properties and developed the same by spending huge amount for plantation. From the date of encroachment, accompanying with his father, the first defendant has also cultivating the suit lands and raised berry trees and plums trees in the suit land. For the past 50 years, the said suit schedule properties are in the possession of M.S.P. Arpkiyasamy. He had passed away on 08.10.1990. Thereafter, B-memo was issued in favour of the family members of the deceased Arokiyasamy. It is false to say that the plaintiffs are enjoying the suit property item Nos. 2 to 6 by paying tax. The B-memo and kist receipt alleged to be given by the Village Administrative Officer is a fabricated one. Except the first plaintiff, all others are not residing in the suit properties. The allegation that the suit properties stands in the name of the first plaintiff's wife (Power Agent) is a fabricated one. The defendants never attempted to interfere with the alleged encroachment made by the plaintiffs. The description of the properties found in the plaint is not correct. Hence, the suit is liable for dismissal. 8. Based on the above pleadings, the learned District Munsif-cum-Judicial Magistrate, Kodaikanal, framed necessary issues and tried the suit. 9. On the side of the plaintiffs, three witnesses were examined as P.W 1 to P.W 3 and 12 documents were exhibited as Ex. A1- to Ex. A12. On the side of the defendants, 4 witnesses have been examined as D.W 1 to D.W 4 and 32 documents were marked as Ex. B1 to Ex. 9. On the side of the plaintiffs, three witnesses were examined as P.W 1 to P.W 3 and 12 documents were exhibited as Ex. A1- to Ex. A12. On the side of the defendants, 4 witnesses have been examined as D.W 1 to D.W 4 and 32 documents were marked as Ex. B1 to Ex. B32. 10. Having considered all the materials placed before him, the learned District Munsif-cum-Judicial Magistrate, Kodaikanal, after observing that the plaintiffs are in the possession of item No. 1 alone, partly allowed the suit and granted the relief in favour of the plaintiffs in respect to item No. 1 and dismissed the suit in respect to item Nos. 2 to 6. 11. With respect to the said findings, no appeal was filed by the defendants. But, the very same plaintiffs filed an appeal in respect to the findings arrived at by the trial Court in respect to item Nos. 2 to 6. After elaborate enquiry, the learned Subordinate Judge, Palani, allowed the appeal and granted a decree in favour of the plaintiffs with respect to the entire suit properties. Aggrieved over the same, the defendants are before this Court with this second appeal. 12. This Court, while at the time of admitting this second appeal, has formulated the following Substantial Questions of Law for consideration: "1. Whether or not the lower Appellate Court committed an error of law in not construing the various kist receipts, B-memos and Adangal in respect of suit properties in their proper perspective? 2. Whether or not the lower Appellate Court committed an error of law in placing the burden of proof on the appellants when in such cases it is for the plaintiffs to prove their possession of the suit properties?" 13. During the pendency of this appeal, the defendants/appellants herein filed a civil miscellaneous petition in C.M.P. (MD). No. 5224 of 2019 under Order 41 Rule 27 C.P.C. and prayed to receive the additional documents enclosed along with the said petition. 14. The averments made in the affidavit filed by the petitioners in support of the petition are as follows: After filing this second appeal, the respondents herein filed a suit in O.S. No. 179 of 1999, on the file of the learned District Munsif, Kodaikanal, as against the revenue authorities seeking permanent injunction as not to disturb their possession with regard to the suit item Nos. 2 to 6 mentioned in O.S. No. 264 of 1990, which pertains to this second appeal. In the said suit, the revenue authorities have filed a detailed written statement disputing the possession of the respondents herein over the suit properties. The item Nos. 2 to 6 in the present second appeal is referred as item Nos. 1 to 5 in the above referred suit, i.e., O.S. No. 179 of 1999. In the said suit, both the parties admitted that the suit properties are the Government poramboke land and both the parties claiming possession based upon the B-memo and kist receipt issued by the Revenue authorities. So the copy of the plaint filed by the respondent in the said suit and written statement filed in the said suit by the Government authorities is relevant to decide the Substantial Questions of Law raised in this Second Appeal. 15. Resisting the claim made by the petitioners/appellants in C.M.P. (MD). No. 5224 of 2019, the first respondent through the Power-Agent Fathima filed a counter and stated that the Revenue Authorities also supporting the respondents herein and they are going to change the revenue records in' their favour. Only in the said circumstances, the said suit in O.S. No. 179 of 1999 was filed, hence the said documents are irrelevant to decide the issue raised in this second appeal. 16. Mr. R. Vijaya Kumar, learned counsel appearing on behalf of Mr. P. Subbaraj the learned counsel, who is on record for the appellants/petitioners would contend that in the written statement filed by the Government, the document, which requires to be received as additional document No. 2, the stand of the Government is clear that the land in question belongs to the Government. Further, as per the revenue records, the plaintiffs/respondents No. 2 to 5 herein, are in the possession of 0.01.00 hectare alone. But the case has been filed for the larger extent by stating that the plaintiffs/respondents herein are in the possession of the suit properties. 17. Contra to the said argument, the learned counsel appearing for the respondents/respondents would contend' that after admitting the suit property as a Government poramboke by either side, receiving additional documents for proving the same fact is unnecessary to decide the second appeal. 18. 17. Contra to the said argument, the learned counsel appearing for the respondents/respondents would contend' that after admitting the suit property as a Government poramboke by either side, receiving additional documents for proving the same fact is unnecessary to decide the second appeal. 18. Upon considering the arguments raised on either side, it is true that the first Appellate Court, while at the time of disposing the appeal filed by the 'plaintiffs, has held even though the property belongs to the Government, the documents relied on by the plaintiffs will prove that they are only in the possession of item Nos. 2 to 6. Since the possession is with the plaintiffs, they are entitled to the relief of injunction and accordingly allowed the first appeal. So, the additional documents relied on by the appellants/defendants is not at all helpful to decide the Substantial Questions of Law raised in this appeal. It is true, both the Courts below have concluded the case by holding that even though the property belongs to the Government, the documents produced on the side of the plaintiffs will clearly reveal the fact that they are in their possession and accordingly, the plaintiffs are entitled the relief of injunction. 19. So, the contents of the plaint and written statement filed in O.S. No. 179 of 1999 are also proved the same fact that item Nos. 2 to 6 of the suit properties belongs to the Government, i.e., natham poramboke. Except the said fact, nothing was averred in the plaint as well as in the written statement filed in O.S. No. 179 of 1999, which are now required to receive as Additional Documents. The contents of those documents are not at all necessary to accept the case of either side. Therefore, the petition in C.M.P. (MD). No. 5224 of 2019 filed by the appellants/petitioners stands dismissed as unnecessary. 20. Substantial Question of Law Nos. 1 and 2. Before the trial Court, the suit has been filed in respect to 6 items of the suit property. Therefore, the petition in C.M.P. (MD). No. 5224 of 2019 filed by the appellants/petitioners stands dismissed as unnecessary. 20. Substantial Question of Law Nos. 1 and 2. Before the trial Court, the suit has been filed in respect to 6 items of the suit property. While at the time of disposing the suit, the learned trial Judge granted a decree in favour of the plaintiff in respect to the suit item No. 1 alone, against which the other plaintiffs filed an appeal before the learned Subordinate Judge, Palani, in which after elaborate enquiry, the learned Subordinate Judge, Palani,- allowed the appeal and granted the relief of injunction in respect to item Nos. 2 to 6 of the suit property. Challenging the said findings, this second appeal has been filed by the defendants/appellants. Therefore, the decision rendered by the trial Court in respect to the first item of the suit property is not challenged before the competent forum. 21. Before the trial Court, in respect to item Nos. 2 to 6, to prove the possession, on the side of the plaintiffs, B-memo stands in the name of each plaintiffs and the kist receipts are marked as Exs. A8 to A11. The said exhibits establishes that totally 77 receipts are issued by the revenue authorities, in favour of the plaintiffs for the reason that they are possessing the Government property. 22. On the other hand, on the side of the defendants, the kist receipts and B-memo issued in favour of the second and third defendants were marked as Ex. B3 to Ex. B6 and Ex. B14 to Ex. B19. In other-words, Ex. B20 and Ex. B21 are the applications filed before the Tahsildar for issuing patta. So, the documents relied on by either parties will prove the fact that some of the time, the plaintiffs are in the possession of item Nos. 2 to 6 of the suit properties and some of the time, the defendants are in the possession of the said properties. Before the trial Court, the Village Administrative Officer of the said village and the Officer, who issued the said kist receipts were examined as D.W. 2 to D.W. 4. They categorically mentioned that only by the instruction given by their Superior Officers, B-memo has been issued in the name of the defendants. Before the trial Court, the Village Administrative Officer of the said village and the Officer, who issued the said kist receipts were examined as D.W. 2 to D.W. 4. They categorically mentioned that only by the instruction given by their Superior Officers, B-memo has been issued in the name of the defendants. Therefore, against the documents, which were relied on by the defendants accepting the evidence given by the plaintiffs is the violative of Section 92 of the Indian Evidence Act, 1872. The documents now relied on by either parties is for accepting the possession of either parties. On the other hand, it is admitted on either side that the suit properties are belonged to the Government natham poramboke. 23. While at the time of disposing the first appeal, the learned Subordinate Judge, Palani, has held that the defendants have not produced the revenue records to show that the properties are in their possession before 1984. 24. It is a basic principle that since the suit has been filed by the plaintiffs, they alone have to prove the possession. But, in this case, instead of considering the documents relied on by the plaintiffs, concluding the suit by saying that the defendants have not produced the relevant documents to show the possession is nothing; but an apparent error. The duty is to cast upon the plaintiffs to prove their case. In this case, the attempt made by the plaintiffs to stand on the leg of the defendants cannot be accepted. Even though, the documents relied on by the plaintiffs is the basic documents to accept their possession, it is also necessary to see the documents, which stand in the name of the defendants. Furthermore, the revenue authorities have stated before the trial Court about the extent in which the plaintiffs are in possession. The same cannot be tallied with the description of properties found in the plaint. Therefore, the said circumstances has not been dealt with by the First Appellate Court. On the other hand, the trial Court has clearly held that the exhibits relied on by the plaintiffs and defendants will show that both of them are in the possession of the suit properties in various periods. So, it cannot be termed that the plaintiffs are in the continuous possession of the said properties. 25. On the other hand, the trial Court has clearly held that the exhibits relied on by the plaintiffs and defendants will show that both of them are in the possession of the suit properties in various periods. So, it cannot be termed that the plaintiffs are in the continuous possession of the said properties. 25. Generally, a suit for injunction simpliciter is concerned only with the possession and normally, the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the findings of possession. But, in this case, the evidence and the exhibits relied on by either side have not proved the fact that the plaintiffs alone are in the continuous possessions The documents relied on by the defendants have also been issued by the same officer, who had issued B-memo and kist receipts in favour of the plaintiffs. So, the documents relied on by the defendants have the equal force with that of the plaintiffs. 26. Accordingly, the First Appellate Court, without considering the validity of exhibits relied on either, side in proper perspective allowed the first appeal in favour of the appellants/plaintiffs in respect to suit item Nos. 2 to 6, further, I am of the opinion that placing burden of proof on the appellants is nothing but a grave error committed by the first Appellate Court. Hence interference is necessary in the findings arrived at by the First Appellate Court. 27. In fine, this Second Appeal stands allowed. The Judgment and Decree, dated 19.08.1998, passed in A.S. No. 67 of 1996, by the learned Subordinate Judge, Palani, is hereby set aside and the Judgment and Decree, dated 05.08.1993, passed in O.S. No. 264 of 1990, by the learned District Munsif-cum-Judicial Magistrate, Kodaikanal, is restored. No Costs. Consequently, connected C.M.P. No. 18053 of 1998 is dismissed.