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2020 DIGILAW 2322 (MAD)

Selvarangan (deceased) v. Jayaraman

2020-12-09

G.JAYACHANDRAN

body2020
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of C.P.C against the judgment and decree of Principal Sub Court, Mayiladuthurai, dated 15.03.2007 made in A.S.No.133 of 2006, confirming judgment and decree of Principal District Munsif Court, Mayiladuthurai dated 14.09.2006 made in O.S.No.335 of 2005.) (The case has been heard through video conference) 1. The suit for recovery of possession and mesne profit, the Trial Court granted the relief of recovery of possession of the suit property mentioned in “A” schedule except 2 feet East-West from the eastern tip of the gobar gas well in “D” schedule and leave to recover the mesne profit by separate proceedings. 2. On appeal, the trial Court judgment was confirmed. The aggrieved defendant as appellant is before this Court, challenging the concurrent findings. 3. The brief facts leading to the Second Appeal are as below:- The plaintiff and the defendants are neighbouring land owners which original belong to a Temple. The ancestors of the parties have occupied the land and had constructed house in the respective land they are in occupation. “A” & “B” properties morefully described in the plaint schedule are the property in enjoyment of the plaintiffs. The plaintiff are sons of Narayanasamy Pillai. For “A” schedule property Natham patta was issued to Narayanasamy Pillai. For “B” schedule property, the natham Patta is given to the 1st plaintiff Jayaraman. The plaintiffs father Narayanasamy Pillai was assigned patta for S.No.107/45. The 1st plaintiff was assigned patta for S.No.107/46. The defendants are residing on the north of plaintiff’s property. They were assigned patta for the land in S.No.107/44 on the west of plaintiff’s property. In the year 1996, the defendant erected gobar gas well on the backyard of the defendant. To facilitate the erection, the defendant removed the live fence running along the western boundary of the plaintiff’s land. For erecting the well, the defendant encroaching upon 2 ½ feet into the plaintiff’s land. Thereafter, slowly started to encroach upon the plaintiff’s land by destroying the live fence. He entertaining doubt, the plaintiff’s measured the land with the help of surveyor and found that the defendant has encroached upon the “A” & “B” schedule property. The area of encroachment in “A” schedule property and “B” schedule property was about 210 sq.ft each. The encroached area marked as ‘BGHIFB’ in the sketch of the plaint. He entertaining doubt, the plaintiff’s measured the land with the help of surveyor and found that the defendant has encroached upon the “A” & “B” schedule property. The area of encroachment in “A” schedule property and “B” schedule property was about 210 sq.ft each. The encroached area marked as ‘BGHIFB’ in the sketch of the plaint. When the surveyor measured the land on 19.08.2005, the defendant was present and he was asked to remove the encroachment including the gobar gas well. Then the village elders advised not be disturb the gobar gas well constructed, encroaching 2 ½ feet of the plaintiff’s land. Instead, the defendant was asked to pay the costs for the encroached land where the well is erected and handover the remaining portion of the encroached land. The defendant refused to accept the settlement proposed by the villager elders. Hence, the suit. 4. Before the Trial Court, the plaintiff examined three witness including the Advocate Commissioner, who visited the field and submitted his report and sketch. 3 Exhibits were marked as Ex.A.1 to Ex.A.3 and 4 other Exhibits were marked as Ex.X.1 to Ex.X.4. On behalf of the defendant three witnesses and 8 documents were marked. 5. The Trial Court, after considering the natham patta issued by both the parties, the sketch available in the patta besides the Advocate Commissioner’s report held that the defendant has encroached upon the plaintiff’s land on the western side. The gobar gas well is on the encroached portion. However, the gobar gas well was found to be erected in the year 1988 and suit filed belatedly. So mandatory injunction to remove the gobar gas well construction on the encroached portion not granted. In respect of the other portion, barring the gobar gas well, the defendant ordered to handover the vacant possession within two months time. 6. Aggrieved by the judgment, the 1st defendant filed First Appeal. The plaintiff preferred cross appeal for disallowed portion. The First Appellate Court confirmed the judgment and decree of the Trial Court. The Appeal and Cross objection were dismissed. 7. Aggrieved by the concurrent finding, the present Second Appeal is filed. 8. The Learned Counsel appearing for the appellant submit that when the Courts below have rightly held that the cause of action shown by the plaintiffs are false, it should have dismissed the suit in entirety. The Appeal and Cross objection were dismissed. 7. Aggrieved by the concurrent finding, the present Second Appeal is filed. 8. The Learned Counsel appearing for the appellant submit that when the Courts below have rightly held that the cause of action shown by the plaintiffs are false, it should have dismissed the suit in entirety. The plaint averment that the cause of action arose in the year 1996, when the defendant erected the gobar gas well and thereafter, slowly encroached upon the portion marked as “C” & “D” in the plaint schedule is held to be wrong. Since, the evidence let in by the plaintiff proves that the gobar gas plant was erected in the 1988 itself. The bank passbook for availing loan to erect the gobar gas plant proves the fact that, the defendant had erected the said gobar gas well in the year 1988 itself. While so, when the cause of action held to be false, the suit ought to have been dismissed in toto. 9. Further, the Learned Counsel for the appellant would state that, the natham patta issued to the plaintiff is not proof for title. Ex.A.1 to Ex.A.3 will not confer any title to the plaintiffs. When the Temple is the actual owner of the property, without impleading the temple, the suit is bad for non-joinder of necessary parties. 10. Per contra, the Learned Counsel for the respondents/plaintiffs submitted that there is no dispute that the suit property originally belong to Temple, which was occupied by several persons including the plaintiffs and the defendant. Under Tamil Nadu Occupants of Kudiyiruppu (conferment of ownership) Act, 1971, patta was granted for the plaintiff as well as the defendant. The patta to the parties was assigned based on the extent which were in their actual possession and enjoyment. Based on the patta, the Advocate Commissioner, who visited the property has clearly submitted his report marking the area of encroachment by the defendant. The Patta was issued for the plaintiff as well the defendant during the month of August - 1995. The Courts below, based on the entry in the bank passbook marked as Ex.B.8 has erroneous held that the gobar gas well, which is now found in the encroached portion of the plaintiff was erected in the year 1988 itself. The said finding is based on the passbook is not correct. The Courts below, based on the entry in the bank passbook marked as Ex.B.8 has erroneous held that the gobar gas well, which is now found in the encroached portion of the plaintiff was erected in the year 1988 itself. The said finding is based on the passbook is not correct. However, the plaintiff did not prefer any further appeal against the said finding. In fact, even before filing the suit, when elders advised not to disturb the plaintiff gobar gas well but to re-claim the encroached portion, he agreed for that, but only the defendant refused to accept the elders compromise proposal, which forced the him to file the suit. 11. The Learned Counsel for the respondents would further submit that, as far as the assignment of patta under the Tamil Nadu Occupants of Kudiyiruppu (conferment of ownership) Act, 1971, the said assignment of patta is a title document. The patta assigned to the defendant and patta assigned to the plaintiff in the year 1995 based on the respective possession had clearly proved that the defendant had encroached upon the portion of “A” & “B” schedule property, which is shaded and marked as “C” & “D” schedule. Since, there is no question of law involved in this case, so the appeal has to be dismissed. 12. Heard the Learned Counsel for the Appellants and the Learned Counsel for the respondents. 13. It is an admitted fact that the suit land originally owned by the Temple, in which, the parties have occupied and in possession for years together. Under Tamil Nadu Occupants of Kudiyiruppu (conferment of ownership) Act, 1971, patta has been assigned to the occupiers. The plaintiff as well as the defendants are beneficiaries of it. The extent of land assigned to them is also mentioned in their respective patta which is marked as Ex.A.1, Ex.A.2 and Ex.B.2. The loan availed by the defendant for erecting gobar gas well which is reflected in the Bank of Baroda passbook marked as Ex.B.7 has led to the conclusion by the Courts below that on 02.11.1998, the defendant has availed loan to erect gobar gas plant. The loan availed by the defendant for erecting gobar gas well which is reflected in the Bank of Baroda passbook marked as Ex.B.7 has led to the conclusion by the Courts below that on 02.11.1998, the defendant has availed loan to erect gobar gas plant. Though, it is not proof for erection of gobar gas well in the present site, the Panchayatar as well as the Courts have rightly held that the defendant need not be disturbed, as far as the encroachment of the plaintiff’s land where the gobar gas will is located. For the rest of the portion, there is no reason or justification for the plaintiff/defendant to claim. Neither the patta issued to him nor the evidence let in by him support his case of possession in respect of the vacant site in the west of plaintiff’s land to the extent of 6 ½ feet. On considering the evidence, this Court finds that there is no substantial question of law involved in this case. Accordingly, the Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.