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2021 DIGILAW 3404 (MAD)

Chinnathambi v. Nesappu

2021-12-03

R.VIJAYAKUMAR

body2021
JUDGMENT : The plaintiff is the appellant herein. 2. The plaintiff filed O.s.No.855 of 1988 before the II Additional District Munsif Court, Kuzhithurai for the relief of permanent injunction over 'B' schedule property or to commit any waste for 'B' schedule property by cutting and removing trees. The trial Court dismissed the suit. The plaintiff had filed A.S.No.126 of 2000 before the Sub Court, Kuzhithurai. The learned Subordinate Judge dismissed the appeal, confirming the judgment and decree of the trial Court. As against the concurrent finding, the plaintiff had filed the above second appeal. 3. The plaintiff has contended that the plaint 'A'schedule property is the patta land and 'B'schedule property lies on the east of the 'A' schedule property. According to the plaintiff, 'B' schedule property is a Government Poromboke. The plaintiff further contended that 'B' schedule property lies between A and C schedule properties. The 'B' schedule property is a narrow strip of land in which valuable trees are planted by the plaintiff and the plaintiff is in possession and enjoyment of the 'B' schedule property along with his patta land located in 'A' schedule property. The plaintiff further contended that 'B' memo has been issued by the official defendants and he is also paying tax for the said 'B' schedule property. The plaintiff further contended that 'C' schedule property is a part of 'B' schedule property. The plaintiff is having separate 'B' memo for the said 'C' schedule property. The plaintiff further contended that the defendants have no right or possession, title over 'B' schedule property and they are making attempt to make undue claim over 'B' schedule property by cutting and removing valuable tress. Hence, the plaintiff prayed for permanent injunction as against the defendants 1 and 3 who are the private parties and defendants 4 to 8 who are the official defendants. 4. The second defendant filed a written statement contending that defendants 2 and 3 are jointly in possession of the suit schedule property and they have put up a building and residing therein. The defendant further contended that the entire 'B' and 'C' schedule properties are in possession of the defendant and contended that the plaintiff is attempting to knock away the poromboke land which is possession of the defendant. 5. The defendant further contended that the entire 'B' and 'C' schedule properties are in possession of the defendant and contended that the plaintiff is attempting to knock away the poromboke land which is possession of the defendant. 5. The District Revenue Officer has filed a written statement contending that 'B' schedule property is a poromboke land is under possession and enjoyment of the plaintiff and 'C' schedule property is in enjoyment of the defendants. The defendant further contended that 'B' memo has been issued as against the plaintiff with regard to 'B' schedule property. The defendant further contended that the official defendants are not necessary parties and they have not taken any steps against the plaintiff. 6. The trial Court after considering the oral and documentary evidence, came to the conclusion that the plaintiff is not aware of the proper resurvey number for the suit schedule property. The trial Court relied upon Exhibits B5 and B6 and came to the conclusion that the plaintiff is not a possession of 'B' schedule property. The plaintiff is having 'B' memo only for one year and based on the said 'B' memo, the plaintiff is attempting to establish his possession over 'B' schedule property. The trial Court also considered the report of the Advocate Commissioner which indicated that the house belonging to the defendants 2 and 3 are located in 'B' schedule property. The trial Court also relied upon the evidence of DW1 to the effect that there is a channel between 'A' and 'B' schedule properties and hence, the contention of the plaintiff that 'A' and 'B' schedule properties found as a single plot is not correct. 7. In view of the above said finding, the trial court rejected Exhibit A2 'B' memo. Moreover, the trial Court has also arrived at a finding that there are valuable tress in the 'B' schedule property which neither belongs to the plaintiff nor to the private defendants, but only to the Government. Further, the trial Court arrived at a conclusion that defendants 2 and 3 are in possession of 'B' schedule property and hence, the plaintiff is not entitled to the relief as prayed for. 8. The First Appellate Court found that Exhibit A1 'B' memo, a just few months prior to the filing of the suit and the plaintiff has filed the present suit based on the above said 'B' memo. 8. The First Appellate Court found that Exhibit A1 'B' memo, a just few months prior to the filing of the suit and the plaintiff has filed the present suit based on the above said 'B' memo. Other than 'B' memo, the plaintiff has not filed any document to establish his possession. The First Appellate Court confirmed the judgment and decree of the trial Court. As against the same, the present second appeal has been filed. 9. The second appeal has been admitted on the following substantial questions of law: “1) In a suit for injunction, whether the Courts below are right in not adjudication the aspect of possession? 2) Whether the order of the court below is not against the written statement filed by the respondents 3 to 8 and should it not have held that the respondent is bound by the principle of estoppel by pleadings? “ 10. I have heard the learned counsel for the appellant and the respondents. 11. It is not in dispute that though there are three schedule of properties in the plaint, the plaintiff has restricted his prayer to 'B' schedule property seeking a decree for permanent injunction as against the private defendants, defendants 1 to 3 and official defendants 4 to 8. The 'B' schedule property is located in Survey No.399/19 having an extent of 34 ares. Even according to the plaint averment, the said property is a Government poromboke. The plaintiff claims possession over the said 'B' schedule property on basis of Exhibits A1 and A2 tax receipts. Exhibit A1 is dated 23.03.1989 and Exhibit A2 is dated 26.06.1988. Exhibit A1 is after the suit and Exhibit A2 is just few months prior to the filing of the suit. Exhibit B2 'B' memo has been issued in the name of the plaintiff on 26.11.1990 which is after the suit. Exhibit B3 'B' memo has been issued in the name of the second defendant which is dated 26.11.1990. The 'B' memo in the name of the plaintiff is also after the suit. The plaintiff has prayed for an injunction that nobody should cut and remove the trees standing in the 'B' schedule property. From the oral and documentary evidence, it could be seen that the trees standing in 'B' schedule property does not belong to the private parties and it belongs to the Government. The plaintiff has prayed for an injunction that nobody should cut and remove the trees standing in the 'B' schedule property. From the oral and documentary evidence, it could be seen that the trees standing in 'B' schedule property does not belong to the private parties and it belongs to the Government. The plaintiff has not established his possession over plaint 'B' schedule property on the date of filing of the suit. 12. Hence, the judgment and decree of the Courts below rejecting the prayer for permanent injunction are sustainable in law. This Court does not find any reason to interfere with the concurrent finding of the facts rendered by the Courts below. The Courts below have adjudicated upon the possession and have concurrently arrived at a finding that the plaintiff has not established his possession over 'B' schedule property. All the substantial questions of law are answered as against the appellant and the second appeal stands dismissed. No costs.