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2022 DIGILAW 507 (MAD)

Muthaiah v. Mahalingam Chettiar

2022-03-01

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree passed in A.S.No.43 of 2007, dated, 30.04.2008 on the file of the Subordinate Court, Ambasamudram, in so far as it is against the appellant is concerned partly allowing the judgment and decree passed in O.S.No.113 of 1988, dated 11.11.2003 on the file of the District Munsif Court, Ambasamudram.) 1. The 2nd plaintiff is the appellant herein. 2. The plaintiffs filed a suit for mandatory injunction for removal of the encroachment on the eastern side of the 1st schedule property. The plaintiffs further prayed for permanent injunction, not to disturb their possession and enjoyment over items 1 to 4 of the suit schedule properties. The trial Court had granted a decree for permanent injunction with regard to the 1st schedule property. But dismissed the suit with regard to mandatory injunction in the 1st schedule property and the prayer for items 2 to 4. The 2nd plaintiff filed A.S.No.43 of 2007 before Subcourt, Ambasamudram. The learned Subordinate Judge confirmed the decree and judgment of the trial Court with regard to items 1 and 2. However, reversed the judgment and decree of the trial Court with regard to items 3 and 4 and granted a decree for permanent injunction in favour of the plaintiff with regard to items 3 and 4 of the suit schedule properties. Aggrieved over the disallowed portion, the 2nd plaintiff has filed the above second appeal. 3. The plaintiff had contended that the suit schedule properties belonged to Thiruvavaduthurai Adheenam and plaintiff and others have taken the site on lease from the Adheenam and enjoying the same after putting up construction over the property. 4. The plaintiff had further contended that he has created usufructuary mortgage in favour of his daughter as per Exhibits A.1 to A.4 with regard to items 1 to 4 and he is in possession and enjoyment of the same. According to the plaintiff, the 1st defendant has encroached in the 1st item of the suit schedule property and he has constructed a compound wall. The plaintiff further contended that at the instigation of the 1st defendant, defendants 7 to 11 are disturbing the possession of the plaintiff in items 2 to 4 of the suit schedule properties. Hence, the present suit. 5. The plaintiff further contended that at the instigation of the 1st defendant, defendants 7 to 11 are disturbing the possession of the plaintiff in items 2 to 4 of the suit schedule properties. Hence, the present suit. 5. The defendants 1 and 5 filed a written statement contending that the 1st defendant has constructed the compound wall only within his property and there is no encroachment into the property of the plaintiff. That apart, the defendants have further contended that the constructions were made long back and the present suit has been filed after so many years and hence, the same is barred by limitation. The defendants have further contended that the plaintiff's daughter was never in possession or enjoyment of the suit schedule properties and Exhibits A.1 to A.4 have been created only for the purpose of filing the suit. The defendants have further contended that the 2nd item was never in the possession and enjoyment of the plaintiff. The defendants have further claimed that they are in possession and enjoyment of the 2nd item. The defendant have further contended that the 2nd item is in common enjoyment of defendants 1 to 11 as their backyard and hence, the plaintiff cannot claim permanent injunction alleging that he is in exclusive possession of the 2nd item. 6. The trial Court after consideration of the oral and documentary evidence originally by a judgment and decree, dated, 11.03.1991 had granted a decree for permanent injunction with regard to 1st item. But dismissed the prayer for mandatory injunction for the 1st item. With regard to the prayer for schedules 2 to 4, the trial Court had dismissed the suit. As against the same, the plaintiff had filed A.S.No.279 of 1992 before Sub-court, Ambasamudram. The learned Subordinate Judge had allowed the appeal and remitted the matter back to the trial Court for fresh consideration of the prayer of the plaintiff with regard to items 2 to 4. The learned First Appellate Judge had confirmed the findings of the trial Court with regard to the 1st item. 7. After remand, the trial Court independently considered the pleadings and evidence of the plaintiff with regard to items 2 to 4. The trial Court found that the 2nd item is a large extent of property measuring East- West 60 carpenter cubic feet and North-South 60 carpenter cubic feet. 7. After remand, the trial Court independently considered the pleadings and evidence of the plaintiff with regard to items 2 to 4. The trial Court found that the 2nd item is a large extent of property measuring East- West 60 carpenter cubic feet and North-South 60 carpenter cubic feet. This 2nd item is a rocky area and the same is in enjoyment of all the defendants as their backyard. Based upon the said findings, the trial Court dismissed the suit with regard to 2nd item. 8. The Advocate Commissioner has filed a report and plan under Exhibits C.1 and C.2. The boundary recitals for the 3rd and 4th schedule property did not correlate with the Commissioner's report. Hence, the trial Court arrived at a finding that the plaintiff has not established his possession over 3rd and 4th item of the suit schedule properties. Hence, the trial Court dismissed the suit with regard to items 3 and 4. 9. The 2nd plaintiff filed A.S.No.43 of 2007 before Subcourt, Ambasamudram. The learned Judge arrived at a finding that as regards the 1st item of the suit schedule properties, the prayer for permanent injunction that was originally granted by the trial Court was already confirmed in A.S.No.279 of 1992. That apart, the rejection of mandatory injunction over 1st schedule property was also confirmed in the same appeal. Hence, the finding of the trial Court after remand with regard to 1st item of the suit schedule properties was correct. 10. The First Appellate Court independently considered the pleadings and evidence with regard to 2nd item. The First Appellate Court relied upon the Commissioner's report and arrived at a finding that all the defendants, namely, defendants 1 to 11 are using the 2nd item as their backyard. That apart, the 2nd item as rocky area. The plaintiff has not established his exclusive possession over a large extent of land and hence, dismissed the suit with regard to the 2nd item. 11. As far as the 3rd and 4th items of the suit schedule properties are concerned, the learned counsel for the 1st defendant had submitted that his client has no interest in items 3 and 4. Though the concerned defendants have been impleaded in the suit, they have not chosen to file a written statement, challenging the right of the plaintiff over items 3 and 4. Though the concerned defendants have been impleaded in the suit, they have not chosen to file a written statement, challenging the right of the plaintiff over items 3 and 4. When none of the defendants have got any objection with regard to the grant of decree in favour of the plaintiff in respect of items 3 and 4, a decree can very well be granted. Based upon the said findings, the First Appellate Court reversed the findings of the trial Court with regard to items 3 and 4 and granted a decree in favour of the plaintiff. Not being satisfied by the decree granted by the First Appellate Court, the plaintiff has preferred the present second appeal. 12. The suit filed by the plaintiff with regard to the 1st item of the property has already been decided in A.S.No.279 of 1992 on the file of Subcourt, Ambasamudram. Only after confirming the permanent injunction with regard to 1st schedule and rejecting the prayer for mandatory injunction with regard to the same schedule, the matter was remitted back to the trial Court. Hence, the appellant cannot now raise any grounds with regard to 1st item. 13. Though the trial Court has rejected the prayer for permanent injunction with regard to items 3 and 4, the same has been reversed by the First Appellate Court and a decree has been granted as prayed for in favour of the plaintiff with regard to items 3 and 4. However, no appeal has been filed by anyone of the defendants challenging the decree with regard to items 3 and 4. 14. Hence, the scope of the present second appeal is restricted to the narrow campus of 2nd item. The learned counsel for the appellant contended that the plaintiff has produced Exhibit A.2-mortgage deed with regard to 2nd item. The said mortgage deed would establish that the plaintiff is in possession of the 2nd item. He further contended that the trial Court as well as the First Appellate Court have rejected the prayer for permanent injunction relying upon the Commissioner's report and plan. According to the learned counsel for the appellant, the Commissioner's report and plan cannot be a basis for the Court to decide about the possession of the plaintiff. Hence, he further prayed for allowing the second appeal. 15. According to the learned counsel for the appellant, the Commissioner's report and plan cannot be a basis for the Court to decide about the possession of the plaintiff. Hence, he further prayed for allowing the second appeal. 15. Per contra, the learned counsel for the 1st respondent/1st defendant contended that his prayer for permanent injunction has been rejected by both the Courts below with regard to 2nd item and hence, the same may not be interfered with in the second appeal. He further contended that no substantial question of law arises for consideration. 16. In view of the fact that, the findings of the Courts below with regard to 2nd item are factual in nature. Hence, he prayed for dismissal of the second appeal. 17. I have carefully considered the submissions on either side. 18. Apart from producing Exhibit A.2-mortgage deed, the plaintiff has not produced any document to establish his possession over the 2nd item of the suit schedule properties. This mortgage deed is said to have been executed by the plaintiff in favour of his daughter. Though the plaintiff claims that the 2nd item along with other properties were leased out by Thiruvavaduthurai Adheenam in favour of the plaintiff, no document has been produced. Exhibit A.2 document seems to be a self-serving document executed by the father in favour of his daughter. In fact, the defendants have specifically contended in the written statement at no point of time, the plaintiff's daughter was in possession of the suit schedule properties. That apart, the plaintiff has not chosen to examine his daughter to establish that there was a lease back arrangement with her. Except Exhibit A.2, no other document has been produced on the side of the plaintiff to establish his possession over the 2nd item. 19. The measurements given for the 2nd item indicates that it has got a very large extent. The East-West measurement shown as 60 carpenter cubic feet and North-South measurement also as 60 carpenter cubic feet. When the carpenter cubic feet measurement is calculated in feet, it comes to 165x165 feet, totalling an extent of 27,225 square feets. P.W.2 has admitted in his deposition that the 2nd item is a rocky area. The Commissioner's report also finds that all the defendants 1 to 11 are using the 2nd item as their respective backyard. When the carpenter cubic feet measurement is calculated in feet, it comes to 165x165 feet, totalling an extent of 27,225 square feets. P.W.2 has admitted in his deposition that the 2nd item is a rocky area. The Commissioner's report also finds that all the defendants 1 to 11 are using the 2nd item as their respective backyard. The plaintiff has not chosen to produce a single document with regard to his possession over such a large extent of area and the nature of his possession over this 2nd item of the suit schedule property. 20. Hence, the Courts below were right in arriving at a conclusion that the plaintiff has not established his possession over the 2nd item of the suit schedule property. In view of the above said discussion, I do not find any question of law to interfere in the second appeal. The Second Appeal is dismissed. No costs.