Madras High Court
Arumugham (Died) vs T.Nallappan on 28 April, 2021
S.A.No.1451 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.04.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1451 of 2008
&
C.M.P.No.24501 of 2019
1.Arumugham (Died)
2.Chinnaiyan (Died)
3.Ayyammal
4.Kamala
5.Manimegalai
6.Malliga
7.Ranjitham
8.A.Murugan
9.A.Krishnasamy
10.Kandasamy ... Appellants
Vs
T.Nallappan ... Respondent
1/16
https://www.mhc.tn.gov.in/judis/
S.A.No.1451 of 2008
(Appellants 3 to 10 brought on record as LRs of the deceased 1st appellant viz.,
Arumugham vide order of the Court dated 06.08.2019 made in M.P.No.1 to 3 of
2013 in S.A.No.1451 of 2008).
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree passed in A.S.No.147 of
2007 dated 23.08.2007 on the file of the Principal Subordinate Court,
Salem confirming the Judgement and Decree passed in O.S.No.380 of
1999 dated 11.02.2004 on the file of the District Munsif, Mettur.
For Appellants : Mr.M.V.Venkataseshan
For Respondent : Mr.D.Shivakumaran
JUDGEMENT
The defendants are the appellants before this Court. The appeal
is filed challenging the concurrent Judgement and Decree of the Courts
below granting a decree for injunction in favour of the plaintiff /
respondent herein.
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S.A.No.1451 of 2008
2. The suit property comprised in Veerakalpudur Village, Mettur
Taluk, Salem District is an extent measuring 1.25 acres in
S.No.100/3A1 which is a portion of 6.90 acres in S.No.100/3A1 and
100/3A3 which was the remaining lands after the acquisition within the
following boundaries:
East by : Lands acquired in S.No.100/3A1
North by : Arumugham's land, house and palmyrah tree
West by : Chinnaiya Gounder's land and boulder (Parai)
South by : Eri Vaikal measuring 2 acres.
Also the lands in S.No.100/3A bounded on the;
East by : Lands acquired for housing sites for backward
classes.
North by : Eri Vaikal
West by : Eri Vaikal
South by : Mettur to Nanga Valli road.
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S.A.No.1451 of 2008
3. Brief facts that has culminated in the filing of the above
Second Appeal are as follows. The parties are referred to in the same
array as in the suit.
4. The plaintiff had filed a suit in O.S.No.380 of 1999 on the file
of the District Munsif Court, Mettur for a bare injunction in respect of
the suit property which was an extent of 1.25 acres comprised in
Survey No.100/3A1 and an extent of 2 acres in Survey No.100/3A3 in
Veerakkalpudur Village, Mettur Taluk, Salem.
5. The plaintiff's case was that in the year 1940 his father has
taken on lease an extent of 9.16 acres which was part of the larger
extent of 11.44 acres originally comprised in Survey No.100/3 of
Veerakkalpudur Village from one T.Ramasamy Iyer. In the year 1968,
the plaintiff had obtained the lease muchalika from T.Ramasamy Iyer
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S.A.No.1451 of 2008
and was in possession of the same and rents were being paid to the said
Ramasamy Iyer. After his demise, the rents were being paid to his two
wives, Seethalakshmi and Lakshmi Ammal and his son Sivakumar. In
the year 1972, the plaintiff was recorded as a cultivating tenant in the
Tenancy Records maintained by the Tenancy Records Officer. This
order came to be passed after due enquiry.
6. Between the years 1975 to 1990, portions of the property
comprised in Survey No.100/3 was acquired. In the year 1975, an
extent of 1.71 acres was acquired for the formation of house sites for
Arunthathiars. Thereafter, in the year 1980 an extent of 0.35 acres was
acquired followed by acquisition of an extent of 2.03 acres in the year
1989, once again for the purpose of providing house sites to
Arunthathiars. Finally, in the year 1990, an extent of 3.04 acres was
acquired.
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S.A.No.1451 of 2008
7. It is also the case of the plaintiff that in the acquisition
proceedings of the year 1980 he had received 50% compensation along
with his owner Sivakumar. The plaintiff had challenged the
acquisition of the year 1989 by filing a Writ Petition in W.P.No.10731
of 1989 and the acquisition proceedings of the year 1990 by filing Writ
Petition in W.P.No.3896 of 1991. Both the petitions were ultimately
dismissed holding that a tenant cannot question the acquisition
proceedings.
8. The case of the plaintiff is that after the acquisition he was left
with the suit property, wherein, he has been raising Corn (Cholam) and
Horse gram (Kollu). The defendants who owned lands near the suit
property attempted to trespass into the property on 03.11.1999. This
attempt was successfully thwarted by the plaintiff. However, the
defendants have threatened and that they somehow enter into the suit
property. Therefore, left with no other alternative the plaintiff was
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S.A.No.1451 of 2008
constrained to file the suit in question.
9. The suit was resisted by the defendants inter alia contending
that the lands comprised in Survey No.100/3A measuring an extent of
11.44 acres belonged to five brothers and the defendants 1 to 4 who are
their children would claim under them. They would also contend that
the said Ramasamy Iyer was a Poosari in the temple and was in the
possession of the lands. Along with the ancestors of the defendants
joint patta had been granted to him. His son Sivakumar had not
cultivated the lands for over 10 years and was also not doing poojas.
Therefore, on 29.09.1999 the defendants have terminated the license
(In the written statement there is nothing to show when the license was
granted and for what purpose the license was granted).
10. They would contend that the defendants and their co-owners
are in possession of the lands comprised in 100/3A3A, 3B and 4
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S.A.No.1451 of 2008
barring the portions given to Ramasamy Iyer. It is their contention that
they are in possession of the suit properties. They would further
contend that after the acquisition, the claim of the plaintiff that he was
in possession of 3.25 acres is totally false. According to them, there is
no cause of action for filing the above suit and therefore sought for the
dismissal of the same.
11. The plaintiff has examined himself as P.W.1 and one
Swamiappan as P.W.2 and had marked 27 documents i.e., Ex.A.1 to
Ex.A.27 to prove his case. On the side of the defendants, the 3 rd
defendant, Chinnaiyan was examined as D.W.1 and one Arthanari as
D.W.2. Ex.B.1 to Ex.B.15 were marked by the defendants.
12. The learned District Munsif, Mettur after elaborately
considering the evidence both oral and documentary came to the
conclusion that the plaintiff was in possession of the suit property,
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S.A.No.1451 of 2008
which is evident from the counter filed by the Government in the Writ
Petition filed by the plaintiff and which is marked as Ex.A.24. The
learned Judge has also relied upon the admission of D.W.1 in his cross
examination that in the acquisition proceedings no compensation was
received by them which would clearly prove that the defendants had
nothing to do with the suit property.
13. The learned Judge has also considered Ex.A.4, Ex.A.5 and
Ex.A.11 to Ex.A.16, which are the receipts for the payment of the lease
amount to hold that the plaintiff had established his possession of the
suit property. Therefore, considering the possession of the plaintiff in
the suit property the learned Judge had decreed the suit as prayed for .
14. This Judgement and Decree was taken up on appeal by the
defendants in A.S.No.147 of 2007 on the file of the Principal
Subordinate Court, Salem. The learned Subordinate Judge, Salem after
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S.A.No.1451 of 2008
detailed enquiry held that the defendants through their documents have
clearly proved that they are not in possession of the suit property and
that their documents relate to some other property. On the other hand
the plaintiff has produced documents to show that he was in possession
of the suit property. The suit being one for bare injunction the learned
Appellate Court confirmed the Judgement and Decree of the Trial
Court.
15. Aggrieved by the said Judgement, the defendants are before
this Court invoking the provisions of Section 100 of the Code of Civil
Procedure.
16. When the matter came up for admission on 20.11.2008, this
Court had ordered notice to the plaintiff / respondent herein returnable
by 4 weeks and the Second Appeal is yet to be admitted.
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S.A.No.1451 of 2008
17. Mr.M.V.Venkataseshan, learned counsel appearing on behalf
of the defendants vehemently argued that under Ex.A.3, which is the
order of the Tahsildar dated 26.08.1987, the plaintiff is shown to be in
possession of an extent of 6.90 acres in Survey Nos.100/3A1 and
100/3A3. If the extent acquired by the Government on various dates is
taken into account it is clear that the plaintiff cannot be in possession
of an extent of 3.25 acres which is shown as the suit property as
claimed by him. He would submit that this basic factor has been
overlooked by the learned Judges of the Courts below.
18. He would draw the attention of the Court to the admission of
P.W.1, the plaintiff that he would not be in a position to specify the
subdivision of Survey No.103, in which the extent of 9.16 acres
allotted to Ramasamy Iyer lies. Likewise, the ancestors of the
defendants are entitled to the balance 2.28 acres in S.No.103. The crux
of the submission of the learned counsel for the defendants was that if
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the total extent acquired was to be taken into account and after
adjusting that extent to which the plaintiff was entitled to and in
possession then the plaintiff would not be able to claim any right to the
entirety of the suit property.
19. Per contra Mr.D.Shivakumaran, learned counsel appearing on
behalf of the plaintiff / respondent herein would submit that the learned
counsel for the defendants has deliberately suppressed the fact that
even the lands that belonged to the defendants had been acquired and if
that is taken into account it would clearly establish that what remains is
the suit property which is in the possession of the plaintiff.
20. He would draw the attention of the Court to Ex.A.8, which is
the counter filed by the Joint Secretary to the Government, Adi
Dravidar and Tribal Welfare Department, wherein, the Joint Secretary
has stated that the plaintiff was cultivating the land for many years and
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S.A.No.1451 of 2008
that he has been registered as cultivating tenant for the land under
acquisition. The Joint Secretary would further contend that since
Porambokku lands were not available they had to enter the patta lands
like in the instant case.
21. The learned counsel would further submit that the documents
that have been filed on the side of the defendants, namely, Ex.B.2,
Ex.B.3 and Ex.B.4 are subsequent to the filing of the suit. He would
further submit that the Courts below have clearly found the plaintiff to
be in possession of the suit property. He would submit that since both
the Courts below have elaborately analysed the evidence and
pronounced Judgement, this Court hearing the Second Appeal cannot
re-appreciate the evidence.
22. Heard the learned counsels and perused the papers.
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S.A.No.1451 of 2008
23. The entire dispute hinges upon the extent that is now
available after the acquisition proceedings so as to enable the plaintiff
to claim his share. The counter filed by the Joint Secretary in the
acquisition proceedings would prove that the plaintiff was in
possession of the suit property and that the plaintiff has been recorded
as a cultivating tenant in respect of the larger extent of the said lands.
The total extent acquired and the total extent originally held clearly
confirms that the plaintiff is now in possession of the suit property.
24. The plaintiff has provided enough proof to show his
possession of the suit property. The suit being one for bare injunction
the Court is only concerned with the possession of the suit property.
The Courts below have in detail analysed the evidence and come to the
conclusion that it is the plaintiff who is in the possession of the suit
property. The entire case of the defendants rest on the measurement of
the property originally held, the property acquired and the property
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S.A.No.1451 of 2008
now in the possession of the defendants. This is purely a question of
fact which has already been elaborately analysed and conclusion
arrived at by the Courts below.
25. In these circumstances, this Court does not find any ground
to interfere with the Judgement and Decree in A.S.No.147 of 2007
dated 23.08.2007. The defendants have not made out any question of
law much less a substantial question of law. In fine, the Second
Appeal is dismissed. Consequently, connected Civil Miscellaneous
Petition is also closed. There shall be no order as to costs.
28.04.2021
kan
Index : Yes/No
Speaking order/non-speaking order
To
1. The Principal Subordinate Court, Salem.
2. The District Munsif, Mettur.
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S.A.No.1451 of 2008
P.T.ASHA, J.,
kan
S.A.No.1451 of 2008
28.04.2021
https://www.mhc.tn.gov.in/judis/
