Madras High Court
Thakkar ... vs Avarampu Ammal ... on 27 August, 2021
S.A.No.483 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.483 of 2019
and
C.M.P.No.7776 of 2019
Thakkar ...Defendant/Respondent/Appellant
Vs.
Avarampu Ammal ...Plaintiff/Appellant/Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 31.08.2018 in
A.S.No.160 of 2017 on the file of the learned Subordinate Judge,
Ulundurpet, reversing the Judgment and the Decree dated 24.03.2014
in O.S.No.304 of 2010 on the file of the learned Principal District
Munsif, Ulundurpet.
For Appellant : Ms.R.Meenal
For Respondent : Mr.M. Muruganantham
1/12
https://www.mhc.tn.gov.in/judis/
S.A.No.483 of 2019
JUDGMENT
The defendant is the appellant before this Court. The suit is filed
challenging the Judgment and Decree in A.S.No.160 of 2017 on the file
of the learned Subordinate Judge, Ulundurpet in reversing the
Judgment and Decree of the learned Principal District Munsif,
Ulundurpet in O.S.No.304 of 2010. The parties are referred to in the
same array as before the trial Court.
The facts in brief which are necessary for disposing of the appeal are as
follows:
2.The plaintiff has filed the suit O.S.No.304 of 2010 for an
injunction restraining the defendant from trespassing into the suit
property and dispossessing the plaintiff. The case of the plaintiff is that
the plaintiff had encroached into the suit property thirty years ago and
put up a hut by spending a sum of Rs.5,000/-. In the year 1985, she
had removed the hut and put up a thatched house. It is the case of the
plaintiff that she has been paying the property tax and also paying the
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S.A.No.483 of 2019
electricity charges. She would therefore submit that she has prescribed
title to the property. It is also her case that 15 feet away from her
property on the East the compound wall of the defendant Temple was
situate. Her late husband was a Poojari in the Koothandavar Temple
and he had passed away ten months ago and thereafter, the defendant
has been trying to evict her from the premises through illegal means.
In fact, she was served two notices dated 30.09.2010 and 28.10.2010
stating that the property belonged to the defendant Temple and that
they wanted to extend the Temple and therefore, the defendant should
vacate and hand over the vacant possession to her. The plaintiff had
issued replies to the said notices. From 06.11.2010, the defendant has
been trying to evict the plaintiff from the premises and therefore, she
has come forward with the suit.
3.The defence of the appellant is that the properties belong to the
Temple and the defendant is a rank encroacher and therefore, the
Temple has the right to evict her. The learned Principal District
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S.A.No.483 of 2019
Munsif, Ulundurpet had framed the following issues:
“1.Whether the suit property belongs to the
defendant temple?
2.Whether this suit is maintainable before this
Court?
3.Whether the plaintiff is entitled for the relief's as
prayed for?
4.What relief?”
4.During the trial on the side of the plaintiff, the plaintiff had
examined herself as PW1 besides examining one Mr.Palani as PW2
and Mr.R.Sankar as P.W.3 and marked Ex.A.1 to Ex.A.48 to show her
possession and enjoyment of the suit property. On the side of the
defendant, the defendant had examined himself as DW1 and Ex.B.1
and Ex.B.2. were marked. Ex.C1 to Ex.C.11 were marked as Court
documents.
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S.A.No.483 of 2019
5.The learned District Munsif taking into account the evidence of
PW2 that Survey No.630/19 (the suit Survey Number) measuring 1510
sq.mr. was classified as a street and a Temple had come to the
conclusion that on considering the revenue records, the plaintiff was in
occupation of the Temple land and therefore, was not entitled to an
injunction.
6.The plaintiff had challenged the said Judgment and Decree by
filing A.S.No.160 of 2017 on the file of the learned Subordinate Judge,
Ulundurpet. The Appellate Court on considering the evidence let in by
the plaintiff showing her possession allowed the appeal and set aside
the Judgment and Decree of the trial Court. The Appellate Judge while
allowing the appeal had held that the defendant has not taken any
proceedings to evict the plaintiff to date and the plaintiff had proved
her possession of the suit property. The Appellate Court had while
passing Judgment observed that the defendant does not have the right
or authority to take proceedings in respect of the suit property.
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S.A.No.483 of 2019
Therefore, challenging the said Judgment and Decree, the defendant is
before this Court.
7.Ms.Meenal, learned counsel appearing on behalf of the
defendant would contend that it is an admitted fact that the property
comprised in S.No.630/19 which totally measured 1510 sq.mt. is
described as the respondent Temple and road in the revenue records.
She would further submit that the plaintiff has not taken any steps to
identify the location of the suit schedule property in the above Survey
Number which is fatal to the case of the plaintiff. She would further
submit that the plaintiff who claims to have encroached into the
Government lands has not produced the “B” memo charges paid by her
to the Government as an encroacher of the poramboke land. Therefore,
she was not entitled to any protection since she is a rank trespasser
belonging to the Temple.
8.Per contra, Mr.M.Muruganantham, learned counsel for the
plaintiff would submit that the plaintiff has established her possession
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S.A.No.483 of 2019
of the property right from the Fasli.1401 and have also produced proof
of the same which have been marked as Ex.A.1 to Ex.A.40 and
thereafter, from Ex.A.44 to Ex.A.47. He would submit that even
assuming that the property belonged to the Temple, the plaintiff has
been in open and continuous possession of the same for many years
and the defendant had not asserted any right over the same all these
years. Therefore, he would submit that the Lower Appellate Court was
correct in allowing the appeal. He would also argue that the defendant
by not taking any steps till date has recognised the right of the plaintiff
to be in possession of the suit property.
9.After hearing the arguments of the learned counsels, the only
Substantial Question of Law the arises for consideration in the above
Second Appeal is “Whether the Lower Appellate Court was correct in
law in decreeing the suit and granting relief not prayed for by the
plaintiff?.
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S.A.No.483 of 2019
10.Heard the learned Counsels appearing on either side and
perused the records.
11.The plaintiff has filed the suit O.S.No.304 of 2010 on the file
of the learned Principal District Munsif, Ulundurpet for the following
relief:
“tHf;F brhj;jpy; vjph;thjpa[k; mtuJ
Ml;fSk; Vb$z;LfSk; mj;JkPwp gpuntrpj;J
thjpia mg;g[wg;gLj;jhky; ,Uf;Fk; bghUl;L
mth;fs; nghpy; xU epue;ju cWj;Jf;fl;lis
gpwg;gpf;ft[k”; ”
12.Admittedly, the plaintiff has been in continuous possession of
the suit property from the year 1993 as is evident from Ex.A.1. There
has been no obstruction to this enjoyment until the issue of the notices
by the defendant on 30.09.2010 and 28.10.2010 followed by their
attempts to enter into the possession. The defence is that the revenue
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S.A.No.483 of 2019
records would indicate that the property measuring 1510 sq.mt. Is
described as the property of the Temple and as a road and therefore, the
plaintiff is not entitled to the decree for injunction. Even a trespasser's
possession is liable to be protected against an unlawful attempt to evict
them from the property in which they are in possession. In the instant
case, the plaintiff has established that at least from the year 1993, the
plaintiff has been enjoying the suit property by paying kist, tax, etc.,
The respondent Temple cannot therefore evict the plaintiff except by
due process of Law. The plaintiff having proved the attempts on the
part of the respondent to take possession from the plaintiff, without
following the due process of Law, is entitled to a Decree for injunction
and the Lower Appellate Court has rightly granted the Decree for
injunction by reversing the Judgment and Decree of the trial Court.
However, the Lower Appellate Court while reversing the Judgment and
Decree of the trial Court has erred in making the following
observations:
“tprhuiz ePjpkd;wk; tHf;F brhj;jpd;
jd;ik. tHf;fpy; jhf;fy; bra;ag;gl;l
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S.A.No.483 of 2019
Mtz';fs; kw;Wk; gpujpthjpf;F tHf;F
brhj;jpidg; bghWj;J eltof;if vLf;f
chpiknah. Mjpfhunkh ,y;iy vd;w
tptu';fis fUj;jpy; bfhs;shky; thjpapd;
tHf;if js;Sgo bra;Js;sjhy; tprhuiz
ePjpkd;wj;jpd; jPhg
; ;g[ kw;Wk; jPhg
; ;ghiz uj;J
bra;ag;gLfpwJ. ,t;thW ,e;j tpdh
vz;/2w;F tpil fhzg;gLfpwJ/“
13.The Lower Appellate Court by making such an observation is
attempting to curtail the right if any available to the defendant to
proceed against the plaintiff by following due process of Law. The
plaintiff has claimed a relief of injunction on the basis of her being in
possession and enjoyment of the property without any obstruction for
over so many years. In these circumstances, the Substantial Question
of Law insofar as it relates to the observation of the learned Judge
regarding the defendants right is answered against the plaintiff and the
observation in Para 15 of the Judgment extracted supra stands
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S.A.No.483 of 2019
eschewed. However, the Decree for injunction granted by the
Appellate Court is confirmed.
The Second Appeal is dismissed with the above observation.
There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
27.08.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Subordinate Judge,
Ulundurpet.
2.The Principal District Munsif,
Ulundurpet.
https://www.mhc.tn.gov.in/judis/
S.A.No.483 of 2019
P.T. ASHA, J,
mps
S.A.No.483 of 2019
and
C.M.P.No.7776 of 2019
27.08.2021
https://www.mhc.tn.gov.in/judis/
