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2021 DIGILAW 578 (MAD)

Vadivel v. Elayappa gounder

2021-02-19

T.RAVINDRAN

body2021
JUDGMENT : Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 23.01.2007 made in A.S.No.119 of 2002 on the file of the Sub Court, Namakkal confirming the judgment and decree dated 03.12.1999 made in O.S.No.830 of 1986 on the file of the District Munsif Court, Tiruchengode. 1. Challenge in this second appeal is made to the judgment and decree dated 23.01.2007 passed in A.S.No.119 of 2002 on the file of the Subordinate Court, Namakkal confirming the judgment and decree dated 03.12.1999 passed in O.S.No.830 of 1986 on the file of the District Munsif Court, Tiruchengode. 2. For the sake of convenience, the parties are referred to as per the rankings in the trial court. The first defendant in O.S.No.830 of 1986 is the appellant in this second appeal. 3. Suit for permanent injunction. 4. The case of the plaintiffs in brief is that the plaintiffs had purchased the property in S.No.377/9 of Pallipalayam village under a registered sale deed dated 10.06.1966 from one Chinna gounder, s/o, Velappa gounder and others and enjoying the same and on 13.09.1966, the plaintiffs have sold said some of their property to one Marappa gounder with specific boundaries under the registered sale deed and Marappa gounder sold the said property to the second defendant and the first defendant is the son of the second defendant and the third defendant is the tenant under the second defendant. S.No.377/1 is a parai promboke belonging to the Government. The plaintiffs have been enjoying the said land from 1966 onwards from the date of purchase of the land in S.No.377/9, using the promboke land as their manure pit and put up a cattle shed and growing trees and also paying B Memo charges to the Government for enjoying the promboke land. Except the plaintiffs, no one is in the possession and enjoyment of the land comprised in S.No.377/1 and the said land in the suit property. The defendants 1 and 2 are the adjacent land owners and owing to certain dispute between the plaintiffs' family and the defendants, the defendants are attempting to trespass into the suit property unlawfully by taking the law into their own hands and hence according the plaintiffs, they had been necessitated to lay the suit against the defendants for appropriate relief. 5. 5. The first defendant resisted the plaintiffs' suit contending that it is false to state that the plaintiffs are in the possession and enjoyment of the suit property as alleged in the plaint by paying B Memo charges to the Government and the rough plan submitted by the plaintiffs is incorrect and putforth the case that the second defendant has got his land adjacent to the promboke land, however the allegation of trespass said to have been made by the defendants into the promboke land is false. The plaintiffs had sold their property to one Marappa gounder with specific boundaries by way of a sale deed dated 14.09.1966 and subsequently, Marappa gounder sold the same to the second defendant by way of the sale deed dated 13.07.1972 and since then, it is only the second defendant and the first defendant who are in the possession and enjoyment of the property. The property purchased under the abovesaid sale deed is a vacant site sold by the plaintiffs adjoining the promboke land in S.No.377/1 on the east and as the defendants had refused to sell the house to the plaintiffs, enraged over the same, the plaintiffs are preventing the defendants from going to their house from the road on the west through the promboke land. The defendants all along have been using the promboke land in S.No377/1 to reach the road on the west of the house and the owner of the houses or premises abutting the road way are entitled to have access to that road from all the points on the boundary of their land and none has the right to cause any obstruction over the road margin securing such access and contended that the plaintiffs have never been in the possession and enjoyment of the suit property comprised in S.No.377/1 and after obtaining exparte injunction, the plaintiffs had brought bricks to raise some constructions in the suit property with a view to prevent the defendants from having access through the promboke land and the suit laid by the plaintiffs is only with the malafide intention and therefore the suit is liable to be dismissed. 6. In support of the plaintiff's case, P.W.1 was examined. Exs.A1 to A8 were marked. On the side of the defendant, D.W.1 was examined. Exs.B1 and B2 were marked. Exs.C1 to C4 were also marked. 7. 6. In support of the plaintiff's case, P.W.1 was examined. Exs.A1 to A8 were marked. On the side of the defendant, D.W.1 was examined. Exs.B1 and B2 were marked. Exs.C1 to C4 were also marked. 7. On a consideration of the oral and documentary evidence adduced in the matter and the submissions putforth by the respective parties, the Courts below were pleased to grant the relief prayed for by the plaintiffs and impugning the same, the present second appeal has been laid by the first defendant. 8. At the time of admission of the second appeal the following substantial questions of law were formulated for consideration. i. Whether the Courts below have erred in law and misdirected themselves in granting the relief of injunction in respect of the government poramboke land which has been classified as a road margin especially when the suit itself is not maintainable in law in view of the bar under Section 14 of the Tamil Nadu Land Encroachment Act, 1905? ii. Whether the judgment and decrees of the courts below are perverse on account of its misconstruction of the documents in Exs.A1 as well as Ex.B1? 9. The plaintiffs and the defendant are vying with each other over the promboke land comprised in S.No.377/1. It is not in dispute the plaintiffs had purchased the suit property comprised in S.No.377/9 under the sale deed dated 10.06.1966 marked as Ex.A1. It is also not in dispute that the plaintiffs had alimented the portion of the purchased property to one Marappa gounder by way of a sale deed dated 13.09.1966 marked as Ex.A4 and it is not in dispute that subsequently Marappa gounder and his son had alienated the said property to the second defendant under the sale deed dated 30.11.1972 marked as Ex.B1. The property in dispute is comprised in S.No.377/1 which is admittedly a poramboke land belonging to the Government. The property in dispute is comprised in S.No.377/1 which is admittedly a poramboke land belonging to the Government. Now according to the plaintiffs, it is they are in the exclusive possession and enjoyment of the suit property comprised in S.No.377/1 by paying necessary B Memo charges to the Government and as rightly held by the Courts below, considering the document marked as Ex.A6, it is evident that it is only the plaintiffs who had been paying the necessary charges to the Government in respect of the property comprised in S.No.377/1 and the abovesaid fact as held by the Courts below is not also controverted by the defendants. It is further noted from Ex.A8 that the Government had also issued the notice to the plaintiffs under the Tamil Nadu Land Encroachment Act, 1905 and in addition to that it is also seen that the first defendant examined as D.W.1 has clearly admitted that at the time of purchase of the property under Ex.B1, it is only the plaintiffs who had been in the possession and enjoyment of the suit property. In addition to that, D.W.1 has also admitted during the course of evidence that it is only the plaintiffs who are enjoying the usufructs of the coconut trees available in the suit property and also it is only the plaintiffs who had put up the thatched sheds in the suit property and enjoying the same. Therefore, considering the abovesaid facts in toto, when the plaintiffs are entitled to sustain their case through Exs.A6 and A8 as well as from the admission of D.W.1 that it is only they who are in the possession and enjoyment of the suit property and when admittedly the suit property is the government poramboke land, the determination of the Courts below that the suit property is only in the possession and enjoyment of the plaintiffs do not warrant any interference. The defendants have not placed any material worth acceptance to hold that they are in the possession and enjoyment of the suit property at any point of time. 10. The defendants have not placed any material worth acceptance to hold that they are in the possession and enjoyment of the suit property at any point of time. 10. Considering the recitals contained in Ex.A4 sale deed executed by the plaintiffs in favour of Marappa gounder as held by the Courts below, the plaintiffs had specifically retained the four feet pathway for gaining access to the suit property and when the plaintiffs had retained the four feet path way on the northern side for the enjoyment of the suit property while alienating the property to Marappa gounder under Ex.A4, it has not been explained by the defendants as to how they would claim any right of access through the suit property for having access to the road on the western side. Therefore, as rightly concluded by the Courts below, the suit property is enjoyed by the plaintiffs right from the inception and therefore their possession having also been recognized by the government, the true owner, as above pointed out, it is seen that the plaintiffs are entitled to be in the possession and enjoyment of the suit property unless and until being evicted from the same by the government under the due process of law. 11. When from the Commissioner's report and plan, it is evident that the defendants are having access to the road lying on the western side through the lane lying on the northern side abutting their property and when the suit property had been enjoyed by the plaintiffs by putting up thatched house, raising trees etc., and hence the suit property cannot be held to be a road way as sought to be projected by the defendants and on the other hand, the same is only a poramboke land which is in the exclusive possession and enjoyment of the plaintiffs. In such view of the matter, the contention putforth by the defendant that the defendant as the owner of the property lying on the eastern side adjacent to the suit property is entitled to have access to the road way from all the points on the boundary of the land and none has the right to cause any obstruction over the road margin securing such access, as such, cannot be upheld. The above principle of law is not in dispute and the same could also be gathered from the decisions relied upon by the defendants' counsel reported in 1. 1996 (1) LW.550 [ Kullammal Vs. K.Perumal & another] 2. 1998 (2) MLJ 62 [ K.Mani Vs. L.Indumathi] 3. 1999 (3) MLJ 520 [ Gunabhooshanammal Vs. Santha & Another] 4. 1999 (2) MLJ 242 [ Dhanu Pandaram Vs. Kali Pandaram] 5. 2008 (3) CTC 405 (Mad) [ TNEB Vs. Madasamy Konar] 6. 2012 (8) MLJ 41 [State of TN Vs. Samiyathal] However considering the case at hand, the suit property cannot at all be held to be the road margin as sought to be putforth by the defendant and on the other hand, it is the poramboke land in the exclusive possession and enjoyment of the plaintiffs, therefore as rightly held by the Courts below, the suit property not being the road margin, it is evident that the defendants are not entitled to interfere with the plaintiffs' possessionand enjoyment of the suit property in any manner and the defendant having endeavored to interfere with the plaintiffs' possession and enjoyment of the suit property accordingly it is found that the plaintiffs had been necessitated to institute the suit against the defendants for the relief of permanent injunction. 12. The reasonings and conclusions of the Courts below for upholding the plaintiffs' case being based on the proper appreciation of the materials available on record, both on factual matrix and on the questions of law and when the same are not shown to be perverse, illogical or irrational, I do not find any valid reason to interfere with the same. The reasonings and conclusions of the Courts below for upholding the plaintiffs' case being based on the proper appreciation of the materials available on record, both on factual matrix and on the questions of law and when the same are not shown to be perverse, illogical or irrational, I do not find any valid reason to interfere with the same. The contention putforth by the defendants' counsel that the plaintiffs' suit is barred under section 14 of the Tamil Nadu Land Encroachment Act 1905 is not sustainable particularly, when the plaintiffs are not questioning the acts initiated by the authorities under the abovesaid act by way of the present suit and as above pointed out, when the suit property namely the poramboke land has been failed to be shown as the road margin entitling the defendants to have access through the same to reach the road lying to the west of the suit property and the Courts below have properly appreciated the documents projected in the matter, more particularly, Exs.A1, A4 and B1 in the correct perspective, in my considered opinion, no substantial question of law is involved in this second appeal. Be that as it may, the substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiffs and against the defendants. 13. In the light of the abovesaid discussions, the judgment and decree dated 23.01.2007 passed in A.S.No.119 of 2002 on the file of the Subordinate Court, Namakkal confirming the judgment and decree dated 03.12.1999 passed in O.S.No.830 of 1986 on the file of the District Munsif Court, Tiruchengode are confirmed. Resultantly, the second appeal is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.