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2025 DIGILAW 280 (MAD)

Doraisamy Gounder (Died) S/o Ramasamy Gounder v. Perumal Gounder (Died) S/o Ramasamy Gounder

2025-01-09

R.N.MANJULA

body2025
JUDGMENT : 1. The appellants in both the suits are the 3nd defendant and the legal heirs of the defendants 1 and 2 in O.S.No.181/1999. The plaintiffs filed a suit in OS.NO.181/1999 against the defendants seeking the relief of permanent injunction. The defendants have filed a counter suit in OS.No.184/1999 claiming the relief of declaration and permanent injunction. Both the suits have been tried together and a common judgement has been pronounced in which, the trial Court, has decreed the suit filed in OS.No.181/1999 and dismissed the suit filed by these appellants in OS.No.184/1999. Both the first appeals preferred by the present appellants also got dismissed by confirming the judgement of the trial court. Aggrieved over that the appellants, who were the defendants in OS.No.181/1999 and plaintiffs in OS.No.184/1999 before the trial Court, have preferred these two second appeals. 2. The case of the plaintiff, as it appears from the plaint filed by them in OS.No.181/1999, are as follows: The suit properties belonged to the plaintiffs and they have been in continuous possession and enjoyment of the plaintiffs for more than 30 years. The suit property are situated in S.No.650/4 -0.56.0 acres; S.No.650/5-0.45.5 acres; totally 1.01.5 acres. The plaintiffs are in enjoyment of the suit property for more than 30 years continuously without any interference from any quarters. The patta, chitta and adangal are standing in the name of the plaintiffs. The defendants offered to purchase the suit property for which the plaintiffs did not agree. Enraged over that, they started to give troubles to the plaintiffs and they have even destroyed his crops. Hence the plaintiffs have filed the suit for permanent injunction. 3. The defendants resisted the suit by filing a written statement and the same is given as brief as under: There are no lands in S.No.650/4 and 650/5. The plaintiffs have not been in possession and enjoyment of the suit property for more than 30 years and the documents created by the plaintiffs are for the purpose of the suit. It is false to state that the revenue records have been in the name of the plaintiffs. Even if it is presumed that the patta was granted in the name of the plaintiff, the plaintiff is not entitled to sell the same before the lock-in period. The panchayat salai in Melathumbai runs south to north. It is false to state that the revenue records have been in the name of the plaintiffs. Even if it is presumed that the patta was granted in the name of the plaintiff, the plaintiff is not entitled to sell the same before the lock-in period. The panchayat salai in Melathumbai runs south to north. A cart track measuring 20 links width originates from there and runs through S.No.650/1 in east-west direction for more than 50 years. The said cart track is in existence for more than 50 years and it goes up to the S.No.499/2A, which is owned by the defendants. As the plaintiffs tried to encroach the whole of the defendants property, the suit has been filed with the help of false documents. The plaintiff tried to encroach an extent of 2 acres 65 cents in S.No.650/1 and hence, the plaintiff is not entitled to get the relief of declaration as prayed. 4. On the basis of the above pleadings, the trial Court has framed the following issues: 5. The 1st defendant has filed a counter suit in OS.No184/99 against the plaintiffs and sought a relief of declaration and permanent injunction. 6. The pleadings of their plaint are as under: Keeripati Panchayat Road runs South to North on the Eastern side of the said road in S.No.650/1 is situated in the suit property and it is a barren land. From the said road on the western side a road with width of 25ft is running till the defendants' land in S.No.499/2A. The said pathway has been in enjoyment of the plaintiff in OS.No.184/99 and their predecessors. Except the said pathway and the plaintiffs have got no other pathway. It is necessary for the plaintiffs enjoyment of the lands in S.No.499/2A and it has been shown in the FMD. In respect of the usage of the said pathway, there is an agreement inherited between the plaintiff and the defendant on 15.05.1999. The lands in S.No.650/1 is a government poramboke of 5 acres 39 cents. The defendants are in enjoyment of 2 Acres 25 cents on the northern side of the poramboke land. 6.1. As per the agreement both the parties shall not alter the physical features of the pathway. The defendants 1 and 2 purchased the lands of the plaintiffs in S.No.499/2A. The plaintiffs did not agree to sell the lands. The defendants are in enjoyment of 2 Acres 25 cents on the northern side of the poramboke land. 6.1. As per the agreement both the parties shall not alter the physical features of the pathway. The defendants 1 and 2 purchased the lands of the plaintiffs in S.No.499/2A. The plaintiffs did not agree to sell the lands. The plaintiff's tried to interfere with the enjoyment of the plaintiff's lands and to destroying the pathway. On 05.06.1999 the defendants tried to interfere with the plaintiffs peaceful enjoyment and possession and that was prevented successfully. As the defendants continued to cause threats to their enjoyment over their lands and the usage of the pathway, the plaintiffs have filed a suit for declaration and permanent injunction. 6.2. There is no pathway in S.No.650/1. The Commissioners report would show that there is no such pathway. There is no agreement dated 22.09.1982 as alleged by the plaintiffs. Even if there is any pathway the plaintiff ought to have filed a suit to declare easementary rights and not entitlement. The cause of action alleged is false. The plaintiffs are not entitled to the relief as prayed for. 7. On the basis of the above pleadings, the trial Court has framed the following issues: 8 . Since the parties to both the suits are one and the same, the trial Court has conducted a joint trial and recorded joint evidence. 9 . During the course of the trial, on the side of the plaintiffs, five witnesses have been examined as P.W.1 to P.W.5 and Exs.A1 to A21 were marked. On the side of the defendants, three witnesses have been examined as D.W.1 to D.W.3 and Exs.B1 to B4 were marked. The Commissioner's report and plan are marked as Ex.C1 and C2. 10. At the conclusion of the trial and on considering the evidence available on record, the trial Court has decreed the suit in OS.No.181 of 1999 and dismissed the suit in O.S.No.184/1999. On the first appeal preferred by the defendant in O.S.No.181/1999 and plaintiffs in O.S.No. 184/1999 was also dismissed by confirming the judgement of the trial Court. Aggrieved over that the defendants in O.S.No.181/1999 who are plaintiffs in O.S.No. 184/1999 have preferred these second appeals. 11. On the first appeal preferred by the defendant in O.S.No.181/1999 and plaintiffs in O.S.No. 184/1999 was also dismissed by confirming the judgement of the trial Court. Aggrieved over that the defendants in O.S.No.181/1999 who are plaintiffs in O.S.No. 184/1999 have preferred these second appeals. 11. For the sake of convenient discussion, the plaintiffs in O.S.No.181/99 corresponding to the appeal in S.A.No. 1384 of 2011 are referred as plaintiffs and the plaintiffs in the other suit in O.S.No.184/99 corresponding to the appeal in S.A.No. 1385/2011 are referred as defendants. Even in these appeals, I feel it is convenient to refer the respondents in these second appeals are plaintiffs and the appellants as defendants, as how they have been described in O.S.No. 181/1999. 12. The second appeals have been preferred by the appellants by framing the following questions of law: “1. (A) whether the judgements of the Courts below are vitiated in that they have accepted the plea of the respondents herein, that, there has been a sub-division of their properties, without any corroborative proof by production of revenue records? (B) Whether the judgements of the Courts below are vitiated in that they have upheld the claim of the respondents claim to the suit property on the basis of an assignment from the government, without any patta being filed to prove title? (C) Whether the judgments of the Courts below are vitiated in that they have failed to recognize the survey marks in the FMB Plan which are indicative of a cart track?” 13. The learned counsel for the appellants submitted that the plaintiffs have not proved any subdivision in their properties as subdivision and patta in their names. The plaintiffs have been in the enjoyment of the suit property and they have paid revenue receipt (kandaya receipt). The plaintiffs have produced the B Memo given to them in respect of the suit properties as Ex.A1 Chitta and Adangal stand in the name of the 2 nd plaintiff and they have been produced as Exs.A2 to A9 and Exs.A17 and A18 have been produced to show that S.No.650/1 has been subdivided as 650/4 and 650/5. 14. The defendants claim that there is a pathway running in the middle of the S.No.650/1 and it runs up to their lands in S.No.499/2A on the West of S.No.650/1. 14. The defendants claim that there is a pathway running in the middle of the S.No.650/1 and it runs up to their lands in S.No.499/2A on the West of S.No.650/1. The Village Administrative Officer has been examined as a witness and he has stated in his evidence that the pathway runs in S.No. 650/1 ends with odaai and adjacent to that Oddai there is an another piece of land and thereafter only the lands in S.No. 499/2A are situated. The Commissioner's report also confirmed the same. The features of the ground coupled with the Village Administrative Officer and the Commissioner’s report would confirm the fact that there is no pathway as alleged by the defendants running from S.No.650/1 and continuing in S.No. 499/2A. 15 . The plaintiff who claims to be in the enjoyment of the properties on the east of S.No.650/1 need not have any agreement with the defendants who are in the rest of the alleged pathway and the land joining the pathway. When the defendants could not produce any documents to show their enjoyment over the alleged pathway ending in their land, the plaintiffs have furnished their documents to show their enjoyment in S.No. 650/5 and 650/4. As the preponderance of evidence in respect of the enjoyment of the lands in S.No. 650/4 and 650/5 stands in favour of the plaintiff, the lower Court had chosen to grant the relief of permanent injunction in O.S.No. 181/99. 16 . The learned counsel for the appellant submitted that the VAO’s evidence cannot be conclusive and hence the matter may be remanded back to reissue the Commissioner's warrant to study the physical features once again. The questions of law framed by the plaintiff is not on the basis of the evidence adduced by the VAO and further, the evidence of VAO is corroborated with the report of the Commissioner as well. So far as the defendants are concerned they have got no right or enjoyment over S.No. 650/4 and 650/5. Even according to their claim statement, they do not make any claim over the S.No. 650/4 and 650/5. The trial Court and the first Appellate Court had appreciated the preponderance of probabilities available in favour of the plaintiff along with a report of the Commissioner and the evidence of the VAO and the field map and had arrived at a right conclusion. The trial Court and the first Appellate Court had appreciated the preponderance of probabilities available in favour of the plaintiff along with a report of the Commissioner and the evidence of the VAO and the field map and had arrived at a right conclusion. Hence, I do not find any irregularity and illegality in the judgment of the Courts below. In view of the above-stated reasons, I do not find any questions of law much less a substantial question of law has arisen or as submitted by the appellant. 17. In the result, these Second Appeals are rejected. No costs. 18. Consequently, connected miscellaneous petitions are closed.