Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 316 (MAD)

M. Kandasamy v. Raji (died)

2020-02-13

G.K.ILANTHIRAIYAN

body2020
JUDGMENT : (Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 29.10.2004, in A.S.No.14 of 2003 on the file of the Principal District Judge, Dharmapuri District at Krishnagiri, confirming the decree and judgment dated 22.11.2002 in O.S.No.63 of 1998 on the file of the District Munsif cum Judicial Magistrate, Uttangarai.) This second appeal is directed as against the judgment and decree dated 29.10.2004, in A.S.No.14 of 2003 on the file of the Principal District Judge, Dharmapuri District at Krishnagiri, confirming the decree and judgment dated 22.11.2002 in O.S.No.63 of 1998 on the file of the District Munsif cum Judicial Magistrate, Uttangarai. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 3. The case of the plaintiff in brief is as follows :- 3.1. The suit is filed for declaration, injunction and mandatory injunction. The property shown as ABCDEFGH in the plan annexed to the plaint originally belonged to one Sarasu, and she was residing in a thatched house situated therein for a long time. The said property is classified as Natham and under survey scheme Patta No.12 has been issued in her name in the year 1995. The thatched house was completely damaged and only the damaged wall remains there. While being so, the plaintiff purchased the said vacant site by the registered sale deed dated 29.05.1995 for valid sale consideration. Thereafter from the date of purchase, the plaintiff was put in possession and enjoyment of the property. Thereafter the plaintiff also constructed a tiled house on the northern portion and a terraced building on the western portion. Thereafter, the plaintiff was also issued patta and is paying house tax to the revenue authorities. The defendants are adjacent house owners and they have encroached into the suit “B” schedule property and which is shown as GHIJ in the plan annexed to the plaint and also put up superstructure. In fact, they have also kept separate door at point M and drainage pipe at point N shown in the plan annexed to the plaint. When the plaintiff has questioned their illegal activities, the defendants also promised to hand over the vacant possession of “B” schedule property to the plaintiff. In fact, they have also kept separate door at point M and drainage pipe at point N shown in the plan annexed to the plaint. When the plaintiff has questioned their illegal activities, the defendants also promised to hand over the vacant possession of “B” schedule property to the plaintiff. In respect of “A” schedule suit property shown as ABJI in the plan annexed to the plaint is very narrow and the plaintiff finds it very difficult to lead his vehicle as the defendants encroached into “B” schedule property. Therefore, the plaintiff also lodged a complaint before the concerned police station and caused legal notice to the defendants on 19.05.1998. Hence, the suit. 4. The defendants resisted the plaintiff's case by filing written statement stating that the entire averments made in the plaint are false and frivolous. The second defendant is the absolute owner of the suit “A” and “B” schedule property. Except the second defendant, no one else has got right, title or interest or possession over the same and she has purchased the same along with properties lies on its east from one, Ragavan and Arumugam for valid sale consideration. Even prior to her purchase, the vendors were living there for more than thirty years in the “B” schedule suit property and it is adjacent portion of its east by putting thatched house in it and living therein. The doorstep marked as M and drainage pipe marked as N shows in the plan is in existence since 1973. The tiled house in the “B” schedule and it is adjacent portion on its east tiled house are not built up by the second defendant and it was built up by her vendor even in the year 1973. The plaintiff or his vendors have no right, title and interest or possession over the suit 'A' and 'B' schedule property at any point of time. The second defendant's vendors and the defendants have been in continuous, uninterrupted and exclusive possession of the suit properties quite adverse to the vendor's predecessors in total, later to the plaintiff's vendor and subsequently to the plaintiff and all others for more than statutory period and in no case, the defendants' vendors and the defendants perfected their title to the suit properties by adverse possession. Therefore, the plaintiff is not entitled to seek any relief as prayed for and sought for dismissal of the suit. 5. Therefore, the plaintiff is not entitled to seek any relief as prayed for and sought for dismissal of the suit. 5. In support of the plaintiff's case, P.W.1 to P.W. 3 were examined and thirteen documents were marked as Ex.A.1 to Ex.A.13. On the side of the defendants D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.6 were marked. Commissioner's report and plan were marked as Ex.C.1 to Ex.C.4. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsel, the trial Court dismissed the suit with costs. Aggrieved over the judgment and decree of the trial Court, the plaintiff preferred an appeal suit in A.S.No.14 of 2003 before the Principal District Judge, Dharmapuri District at Krishnagiri. The first appellate Court on appreciating the materials placed on records, dismissed the appeal by confirming the judgment and decree passed by the trial Court. Challenging the same, the plaintiff has come forward with the present second appeal. 6. At the time of admission of the second appeal, the following substantial questions of law were framed :- (a) Are not the judgment and decree of the courts below liable to be set aside for non consideration of Exs.A1 & A10 in their correct perspective? (b) Are not the judgment and decree of the courts below perverse due to misappropriation and non consideration of the materials available on record? 7. The learned counsel appearing for the plaintiff submitted that the suit property originally belonged to the vendor of the plaintiff, namely Sarasu, in whose name patta was also issued which was marked as Ex.A.1 for the land comprised in S.No.52/15. Thereafter the plaintiff purchased the suit property by the registered sale deed which was marked as Ex.A.2, in which the entire extent of the land comprised in S.No.52/15 categorically mentioned in the schedule. Further the field map and the S.No.52 which was marked as Ex.A.10 would clearly show that the plaintiff is entitled to the entire extent of the suit property comprised in S.No.52/15, which is in the shape of “T”. Whereas the defendants claimed the suit property by the unregistered sale deed which was marked as Ex.B.1 in respect of the suit property. It is nothing but fabricated one to defend the suit. Whereas the defendants claimed the suit property by the unregistered sale deed which was marked as Ex.B.1 in respect of the suit property. It is nothing but fabricated one to defend the suit. Unfortunately both the courts below failed to consider the documents which were marked as Ex.A.1, Ex.A.2 and Ex.A.10 and dismissed the suit. The plaintiff claimed the suit property only by way of undisputable documentary evidence and it cannot be rejected when the defendants failed to prove their title by way of Ex.B.1. 8. The learned counsel appearing for the defendants reiterated the defence as made in the written statement. 9. Heard Mr.D.Shivakumaran, learned counsel appearing for the plaintiff and Mr.J.Hariharan, learned counsel appearing for the defendants. 10. This Court considered the rival submissions made by the learned counsel on either side. 11. The suit is filed for declaration and permanent injunction. The suit property is marked as ABCDEFGH in the plan annexed to the plaint. Accordingly, the plaintiff purchased the suit property with the pathway admeasuring 10 feet breadth and 30 feet length, in which the defendants encroached upto 5 feet of the pathway to the length of 30 feet adjacent to the defendants' house. The total extent of the property purchased by the plaintiff admeasuring 2422 square feet, in which the suit property namely the pathway to the house of the plaintiff admeasuring about 300 square feet. The entire suit property is marked as ABCDEFGH in the plan annexed to the plaint. The encroached portion marked as GHIJ admeasuring 165 square feet. The courts below calculated the measurements as stated in the patta and wrongly calculated that except the property mentioned in the patta, no other property is in possession and enjoyment by the plaintiff. 12. On perusal of Ex.A.1 and Ex.A.10 and Ex.A.13 categorically show that the portion marked as ABGH in the plan annexed to the plaint is the pathway to the plaintiff's house and vacant site, approximately admeasuring about 270 square feet. The plan annexed to the plaint is corroborated with the patta, which was marked as Ex.A.1 and the survey sketch, which were marked as Ex.A.10 and Ex.A.13. Therefore, the plaintiff filed the suit according to the patta issued in favour of his vendors and the survey sketch issued by the revenue authorities, which was marked as Ex.A.10 and Ex.A.13. The plan annexed to the plaint is corroborated with the patta, which was marked as Ex.A.1 and the survey sketch, which were marked as Ex.A.10 and Ex.A.13. Therefore, the plaintiff filed the suit according to the patta issued in favour of his vendors and the survey sketch issued by the revenue authorities, which was marked as Ex.A.10 and Ex.A.13. Admittedly, the defendants constructed house adjacent to the pathway which is marked as ABGH in the plan annexed to the plaint, in which they encroached some portion of the pathway belong to the plaintiff. The Advocate Commissioner was appointed and his reports and plan were marked as Ex.C.1 to Ex.C.4. On perusal of Ex.C.4, the portion is marked in the plan annexed to the plaint encroached by the defendants by putting up some construction, etc. The relevant portion of the report of the Advocate Commissioner is as follows: OTHER LANGUAGE 13. The Advocate Commissioner categorically reported that the portion which is marked as EF belong to the defendants comprised in S.No.52/16, in which they constructed house. Apart from that, they also put up construction in the land comprised in S.No.52/15. Therefore it is clearly proved that the defendants encroached some portion as alleged by the plaintiff in the land comprised in Survey no.52/15. Unfortunately, both the courts below held that the plaintiff is claiming more than the property mentioned in the patta, which was marked as Ex.A.1. Accordingly, this Court concluded that the findings of the courts below are perverse and against the evidence on record and they are liable to be interfered with. Accordingly, all the substantial questions of law formulated in this second appeal are answered in favour of the plaintiff and as against the defendants. 14. In fine, the Second Appeal is allowed, and the judgment and decree of both the courts below are hereby set aside and resultantly, the suit filed by the plaintiff in O.S.No.63 of 1998 on the file of the District Munsif-cum-Judicial Magistrate, Uttangarai is allowed, with costs. Consequently, connected miscellaneous petition is closed.