Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 911 (MAD)

Vedamuthu v. Thangavelu Pillai

2020-06-09

RMT.TEEKAA RAMAN

body2020
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, against the decree and Judgment of the learned First Additional Sub Judge, Madurai, dated 19.12.2000 passed in A.S.No.41 of 1995 confirming that of the learned District Munsif, Madurai Town dated 06.03.1995 passed in O.S.No.797 of 1988.) 1. The plaintiffs are the appellants herein. The plaintiffs filed a suit for injunction restraining the defendants from interfering with their peaceful possession of the suit schedule property. The suit property is the piece of land measuring 3 ½ feet east-west and 33 feet of north south described in the rough sketch (Ganesan Road, Lakshimpuram). After contest, both the suit and appeal suit were dismissed. Hence, the second appeal filed by the appellants. 2. For the sake of the convenience, the parties are referred to as per their ranking before the trial Court, as plaintiffs and defendants. 3. The suit, out of which the above appeal arises, was filed by the plaintiffs for a permanent injunction restraining the defendants from interfering without possession of the suit property, namely an open space measuring 3 ½ feet East-West and 33 feet North-South situated on the west of plaintiff's house marked ADEF in the plan. Since the respondents tried to encroach and interfere without possession, the appellants/plaintiffs came forward with the present suit. 4. The respondents resisted the suit contending that the appellants have no right or title over the suit property but it belongs to the respondents and the appellants were never in possession. 5. Before the trial Court, on the side of the plaintiffs, the first plaintiff was examined himself as PW.1 and also one Tharmalingam was examined as PW.2 and Ex.A1 to Ex.A24 were marked. On the side of the defendants, two witnesses were examined as DW.1 and DW.2 and 10 documents were marked as Ex.B1 to Ex.B10. Apart from that, the Advocate Commissioner's report, plan and surveyor plan were marked as Ex.C1 to Ex.C4. 6. Having considered all the above materials placed before him, the learned District Munsif, Madurai, by judgment and decree dated 06.03.1995, had dismissed the suit. Against which, the appellants herein have filed an appeal in A.S.No.41 of 1995, on the file of the First Additional Subordinate Court, Madurai. 6. Having considered all the above materials placed before him, the learned District Munsif, Madurai, by judgment and decree dated 06.03.1995, had dismissed the suit. Against which, the appellants herein have filed an appeal in A.S.No.41 of 1995, on the file of the First Additional Subordinate Court, Madurai. The learned First Additional Subordinate Judge, Madurai, by judgment and decree, dated 19.12.2000, had dismissed the first appeal by confirming the judgement and decree passed by the trial Court. Feeling aggrieved by the same, the appellants/plaintiffs herein have filed the present second appeal. 7. At the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:- (i) Whether Ex.B1 and Ex.B2 unregistered deeds of release one admissible in evidence? (ii) Whether the judgment and decree of the learned First Additional Judge can be sustained in the absence of raising and settling out the points for determination and to state the reasons for such decision as provided for under order 41 Rule 31? 8. Heard both sides and perused the records. 9. The suit property is a piece of vacant land measuring 3 ½ feet X 30 feet lying on the western side of the plaintiffs' house. The defendants' house is situated on the western side of the said suit property. The plaintiffs' claim is that the suit property exclusively belongs to the plaintiffs. The plaintiffs purchased a property, which includes the suit property through a registered sale deed dated 15.07.1978 (Ex.A2) from one Gurusamy and others. The said vendors purchased the said property from one Kuppusamy Naidu through a registered sale deed dated 22.08.1968 (Ex.A15). The said Kuppusamy Naidu had purchased the property from one Mariammal, through a registered sale deed dated 23.02.1959 (Ex.A14). 10. The plaintiffs' case is that the East-West measurement of the property is shown as 36 feet in the sale deed. However, the East-West measurement of the plaintiffs' house alone would come to 36 feet and the suit property with an East-West measurement of 3 ½ feet was left out in the said sale deed and hence, his vendor on 16.12.1978 executed an agreement dated 16.12.1978 (Ex.A17) stating that the property sold would include the vacant site to the breadth of 3 ½ feet only, also assumes significance. 11. 11. The defendants claim exclusive ownership over the suit property stating that the said area was left open by them on the eastern side of his house. The defendants claim to have purchased his property through a sale deed dated 20.01.1957 (Ex.D3). The other parent documents of the defendants were marked as Ex.A22 and Ex.D4. In all those documents, the East-West measurements of the defendants property is given as 85 feet. As per Ex.C1 to Ex.C4, the properties were measured with the help of the surveyor and the east and west measurement of the defendants' house is 85 feet and the east west measurement of the plaintiffs' house is 39 feet. 12. The learned counsel for the respondents submitted that the unsuccessful plaintiffs filed a suit for injunction in respect of 3 ½ feet x 30 feet alone on the ground that it belongs to the plaintiffs. The same was negatived by both the Courts below. The appellants/plaintiffs rely upon Ex.A2, sale deed, whereby the land purchased by the plaintiffs/appellants to the extent of 36 X 30 feet. 13. It remains to be stated that the defendants are the petitioners in the Advocate Commissioner's petition and as per the advocate commissioner's report, the plaintiffs have built up the building the area over and above the extent they have purchased, that is, over and above the measurement as mentioned in Ex.A2. Furthermore, both in the said advocate commissioner's report Ex.C1 and the surveyor report, the plaintiffs have not filed any objection, especially with regard to the extent occupied by the plaintiffs also assumes significance. 14. On the contrary, the respondents claim title to the property under Ex.B2 to the extent of 103 links equal to 5 cents. As per Ex.B2, he is entitled for 5 cents and also as per Ex.B7 and B8, revenue records issued by the Tahsildar as well as FMB sketch indicates the extent in occupation of the respondent/ defendants is only 5 cents. The relief sought for in the suit is injunction and hence, the plaintiffs ought to have filed documents to show their possession. However, no evidence of their possession have been filed before the trial Court. In the surveyor report, it is highlighted that the plot in the defendants row are having 3 ½ feet and only, also assumes significance. 15. The relief sought for in the suit is injunction and hence, the plaintiffs ought to have filed documents to show their possession. However, no evidence of their possession have been filed before the trial Court. In the surveyor report, it is highlighted that the plot in the defendants row are having 3 ½ feet and only, also assumes significance. 15. On perusal of the documents, both the Courts below have rightly come to the conclusion that the recital under Ex.A17 cannot be looked into, since the same was not a registered document. It is an agreement to sell and not a document, which is admissible in evidence and therefore, rightly negatived the contention of the appellants' counsel that Ex.A2 and Ex.A17 cannot be read together. Both the Courts below have properly appreciated Ex.C2 to Ex.C4 that the property belongs to the respondents/defendants. 16. It remains to be stated that Ex.B1 and Ex.B2 were attested by none other than the plaintiffs. Though a plea has been raised that the signature was obtained by the force and coercion, no positive evidence was let in, in support of the plea also assumes significance. Taking note of the substance of Ex.B1 and Ex.B2, both the Courts below have rightly come to the conclusion that as the factum of possession is a collateral plea and for collateral purpose, Ex.B1 and Ex.B2 may be relied on and placing reliance on Ex.B1 and Ex.B2, only to the limited extent of collateral purpose, has rightly come to the conclusion that the defendants is in possession of the property. Based upon the other documents came to the conclusion that the plaintiffs have constructed the building to the entire extent, which they had purchased, as per their sale deeds Ex.A14, Ex.A15 and Ex.A2 and hence, when the plaintiffs have purchased the extent of land and constructed the building over the entire extent, they cannot claim a piece of land in his neighbors namely, the defendants, on ground that it also lies in their survey number. Though the suit is for injunction, the plaintiffs have not adduced any document to show their possession, even in respect of alleged title and further more, they were already in possession of the entire extent of the land purchased under the documents Ex.A12, Ex.A15 and Ex.A14. 17. Though the suit is for injunction, the plaintiffs have not adduced any document to show their possession, even in respect of alleged title and further more, they were already in possession of the entire extent of the land purchased under the documents Ex.A12, Ex.A15 and Ex.A14. 17. Hence, I do not find any error in the concurrent judgment rendered by both the Courts below and both the Courts below has rightly relied upon Ex.B1 and Ex.B2 only for collateral purpose and also rendered the finding on each aspect of the issue raised therefor satisfying substantial compliance as required under Order 4 Rule 31 C.P.C., and thus, both the Court below have rightly negatived the claim of the plaintiffs and hence, both the substantial questions of law do not arise for consideration and the same is answered in negative against the appellants/plaintiffs. 18. In the result, this Second Appeal is dismissed, by confirming the Judgment and Decree dated 19.12.2000 passed in A.S.No.41 of 1995, by the learned First Additional Subordinate Judge, Madurai and the Judgment and Decree, dated 06.03.1995 passed in O.S.No.797 of 1988 by the learned District Munsif, Madurai. No costs.