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2022 DIGILAW 2360 (MAD)

Kesavan v. Muthalu

2022-07-27

P.T.ASHA

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of the CPC against the Judgement and Decree passed in A.S.No.150 of 2017 on the file of the learned Subordinate Judge, Ulundurpet dated 01.09.2021 confirming the Judgement and Decree passed in O.S.No.227 of 2013 on the file of the learned Principal District Munsif, Ulundurpet dated 04.09.2017. ) The defendant is the appellant before this Court challenging the concurrent Judgement and Decree passed against him. The facts which are necessary for disposing of the above Second Appeal are herein below narrated and the parties are referred to in the same rank as before the Trial Court. 2. When the appeal had come up for an admission on 06.01.2022, this Court had directed notice to the respondents and respondents have also entered appearance in the matter. 3. The dispute is in respect of an extent of 2.2.50 Hectares of land in R.S.No.450/1, Vellore village, Tiruvennai Nallur, Villupuram District, within the following boundaries, East by Perumal’s land, South by Muthu Lingam and Elumalai’s lands, West by High School and North by the lands of Dhanapal. 4. The suit properties are Government Porambokku lands. About 10 years prior to the filing of the suit, one Dhanapal, the 1st plaintiff’s husband and father of plaintiffs 2 to 4 had encroached into the lands and developed it. Thereafter, he had been in absolute possession and enjoyment of the same. On 22.03.2002, the said Dhanapal passed away leaving behind him the plaintiffs as his legal representatives. The revenue records are in the name of the said Dhanapal and he has been remitting land revenue to the Government. 5. It is the case of the plaintiffs that the defendant who is the brother of the said Dhanapal has no title to the suit property and he owns the property near the suit property. However, the defendant is attempting to encroach the suit property from 25.07.2013 and therefore, the plaintiffs have come forward with the above suit. 6. The defendant had filed a written statement inter alia denying the various contentions raised by the plaintiffs and would submit that the suit property which measures 5 acres of land belonged to the Government and one Kattaiyan had entered into possession of the same 43 years prior to the filing of the suit. The said Kattaiyan is the father of the defendant and the said Dhanapal, the husband of the 1st plaintiff. The said Kattaiyan is the father of the defendant and the said Dhanapal, the husband of the 1st plaintiff. 7. The defendant would submit that on Kattaiyan’s death, 35 years ago, the property had fallen to the share of the defendant and his brother Dhanapal. The defendant and the said Dhanapal had, within three years entered into an oral partition. Under the partition, the Northern portion measuring 2.5 acres was allotted to the share of the defendant and the Southern portion measuring 2.5 acres had fallen to the share of the said Dhanapal. 8. The defendant would submit that each of them had been paying land revenue separately in respect of their shares. The defendant would further contend that the plaintiffs with an intent of grabbing the defendant’s property, taking advantage of his illiteracy has obtained a false patta in the name of Dhanapal by furnishing false information to the revenue authorities. The defendant had come to know about this only when he had approached the Village Administrative Officer, Vaaniyankuppam, for getting the adangal. Immediately, the defendant had taken steps before the Revenue authorities to cancel the patta wrongly granted in the name of Dhanapal, by including the defendant’s share of 2.5 acres of land. 9. The defendant would submit that plaintiff’s have filed the suit as a preventive measure to forestall the proceedings initiated by the defendant. The defendant would submit that there is no cause of action for the suit. 10. It appears that the plaintiff had filed an amendment petition to amend the description of the property and an additional written statement came to be filed. In the additional written statement, the defendant would contend that the suit property is situate to the south of Dhanapal’s land. The property to the north of the suit property belonged to the defendant and his brother Dhanapal and they had jointly sold the same to one Elumalai on 27.07.2006. In the original plaint, therefore, the Northern boundary has been rightly described as Elumalai’s land and now the plaintiff’s have wrongly amended the boundaries of the suit property being situate South of the said Dhanapal’s land. The suit is therefore liable to be dismissed. 11. The learned Principal District Munsif, Ulundurpet before whom the suit O.S.No.227 of 2013 was pending had framed the following issues on perusing the pleadings: 1. The suit is therefore liable to be dismissed. 11. The learned Principal District Munsif, Ulundurpet before whom the suit O.S.No.227 of 2013 was pending had framed the following issues on perusing the pleadings: 1. Whether the suit property is the separate property of the Plaintiffs father? 2. Whether the Plaintiffs have valid title and possession in the suit property? 3. Whether the Plaintiffs are entitled for Declaration and Permanent Injunction as prayed for? 4. To what other relief and cost the Plaintiffs are entitled? 12. The learned Judge had observed that the plaintiffs have produced the document to show the original assignment in the name of Dhanapal as early as in the year 2001 and also the fact that the patta has been mutated in his name. The learned Judge held that the defendant who claimed to be in possession of the Northern half of the suit property for over 32 years had not produced any documents to prove his possession and on the contrary the plaintiffs have been able to show their continuous possession and enjoyment of the suit schedule property from the date of assignment. Ultimately, the learned Judge had decreed the suit. 13. Aggrieved by the said Judgement and Decree, the defendant had filed an appeal in A.S.No.150 of 2017 on the file of the Subordinate Court, Ulundurpet. The Lower Appellate Court had also confirmed the Judgement and Decree of the Trial Court. 14. Aggrieved by this concurrent Judgement and Decree, the defendant is before this Court. 15. Heard both the learned counsels and perused the records. 16. The defendant had countered the case of the plaintiffs by stating that 32 years prior to the filing of the suit there was a partition with reference to the suit property, which according to the defendant had been assigned to his father Kattaiyan, who was in possession and enjoyment of the same for over 43 years and that the land revenue was also assessed in his name. However, no document is filed to support this plea. However, no document is filed to support this plea. The specific case of the defendant is that the Northern portion of the suit property was allotted to him and the Southern portion was allotted to the share of the said Dhanapal under an oral partition that took place 32 years prior to the suit and that they have been enjoying their respective shares since then and that the Revenue records were also in their respective names. However, the defendant has not produced the records for this period. 17. On the other hand, the plaintiffs would contend that the assignment patta had been granted in favour of the said Dhanapal in the year 2001, which is evidenced by Ex.A.1. Except for the oral evidence and written statement of the defendant, there is no documentary evidence to prove the allegations made by him in his written statement. 18. The Trial Court has extracted the admissions of the defendant, wherein, in his cross examination, the defendant who had pleaded that there was an oral partition between him and his brother Dhanapal would however state as follows: 19. The fact that there was no partition between the brothers till the death of Dhanapal is reiterated by D.W.2 in his cross examination. D.W.2 in his cross examination would state as follows: 20. Therefore, it is clear that the plea of the property belonging to Kattaiyan and thereafter the oral partition pleaded by the defendant stand disproved. Ex.A.1 is the assignment patta standing in the name of Dhanapal and the same is dated 16.05.2001. The assignment is with reference to the entire suit property. The A-Register and other revenue records are also standing in the name of the deceased Dhanapal. Objections to the grant of assignment has been made only in the year 2013 by the defendant. That the brothers have not partitioned the properties is evident from the fact that under Ex.B.1, the two of them had together sold the property to one Elumalai. 21. It is also to be noted that the proceedings before the revenue authorities had been taken by the defendant only after his attempts to trespass into the suit property had not fructified. 22. The defendant who challenged the Judgement and Decree of the Courts below had not made out any Substantial Questions of law. 21. It is also to be noted that the proceedings before the revenue authorities had been taken by the defendant only after his attempts to trespass into the suit property had not fructified. 22. The defendant who challenged the Judgement and Decree of the Courts below had not made out any Substantial Questions of law. The appellant once again seeks to make his submission on the documentary evidence, which has been considered at length by both the Courts below and detailed orders passed there on. The defendant has not been able to establish that the Judgement and Decree of the Courts below suffers from a perversity or a failure to consider vital evidence. 23. Therefore, I see no reason to interfere with the concurrent Judgement of the Courts below and accordingly, the Second Appeal is dismissed. Consequently, connected Civil Miscellaneous Petition is closed. No costs.