Madras High Court

Kokila vs P.Ramasamy on 16 December, 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATE: 16.12.2021

CORAM

THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN

S.A.(MD) No.384 of 2011
and
CMP(MD) No.4986 of 2021

1. Kokila
2. Nithya
3. Selvakumar Appellants

vs.

P.Ramasamy Respondent

Second Appeal filed under Section 100 of CPC against the

Judgment and Decree passed in A.S. No.53 of 2019 on the file of the

I Additional Subordinate Judge, Tiruchirapalli dated 21.11.2019

affirming the judgment and decree passed by the Additional District

Munsif, Manaparai in O.S. No.238 of 2012 dated 24.01.2019.

For Appellants : Mr.N.Vallinayagam

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2

JUDGMENT

This Second Appeal is directed against the Judgment and Decree

passed in A.S. No.53 of 2019 on the file of the I Additional Subordinate

Judge, Tiruchirapalli dated 21.11.2019 affirming the judgment and

decree passed by the Additional District Munsif, Manaparai in O.S. No.

238 of 2012 dated 24.01.2019.

2. For the sake of convenience, the parties are referred to as, as

described before the trial Court.

3. The suit has been filed seeking for declaration and recovery of

possession.

4. The case of the plaintiff, in brief, as per the averments made

in the plaint, reads as follows:-

The Suit ‘A’ schedule property is described a natham land

wherein the plaintiff was in occupation for more than three decades.

The revenue authorities had issued patta for the said property in Patta

No.172. The said patta was filed by the plaintiff to prove his possession

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and enjoyment. Originally, the suit property belongs to his grand

mother later on to his mother who is living in the thatched house.

Later when the plaintiff came to the said house he put up a tiled

house. He also obtained electricity connection and paying house tax

and electricity charge. The plaintiff has also filed house tax receipt

and electricity bills to show that he was residing and enjoying the said

property. The suit ‘B’ schedule property is lying on the western portion

of the suit ‘A' schedule property, which forms part of suit ‘A'

schedule property. The plaintiff was using the suit 'B' schedule

property to store the thathering and cattle's and fire woods and the

suit 'B' schedule property was kept vacant for the above use. The

defendant started encroaching upon a portion of the property. The

second and third defendants are the son and daughter of the first

defendant, who had trespassed into the suit ‘B’ schedule property on

the western portion of the suit ‘A' schedule property, five months ago

and hence, he requested him to vacate the said place but the

defendant failed to do so and he encroached upon the same as

trespasser. Hence, the plaintiff filed a suit for relief of declaration and

consequential relief of recovery of possession.

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5. The 1st defendant filed written statement and adopted by

other defendants contending among otherthings that the suit ‘B’

scheduled property is enjoyed by the defendants along with their

property situated on the western side by constructing a house and had

also put up a compound wall and the plaintiff has got no right over the

area on the eastern side of the defendants house and the plaintiff

property is only ‘A' schedule property and patta given in favour of the

plaintiff has been denied. The patta issued in favour of the plaintiff in

'B' schedule property would not bind the defendants, as the said

property was occupied Natham.

6. The trial Court has formulated the following three issues while

deciding the suit:-

a) Whether the plaintiff is entitled to the relief of declaration as prayed for in the plaint?

b) Whether the plaintiff is entitled for recovery of possession as prayed for in the plaint ?

c)Any other relief he is entitled to ?

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7. During the trial, on the side of the plaintiff, the power agent of

plaintiff was examined as PW1. One Sivasubramanian was examined

as PW2 and through him Ex.X.1 to X.4 were marked. Exs.A1 to A6

were also marked on the side of the plaintiff. One Kokila was

examined as DW1 and through her Ex.B.1 to Ex.B4 were marked. One

Ponnusamy was examined as DW2 and no documents was marked

through him. Court documents were marked as Ex.C1 to C3.

8. On analysis of the oral and documentary evidence, the trial

Court has allowed the suit. Aggrieved by the same, the defendant has

preferred an appeal in A.S. No.53 of 2019, on the file of the learned 1st

Additional Subordinate Judge, Trichy.

9. The first appellate court, upon considering the oral and

documentary evidence of the parties, had confirmed the findings of the

trial Court. Aggrieved by the Judgment and decree passed by the first

appellate Court, the present Second Appeal has been filed the

defendants.

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10. The learned counsel appearing for the appellants /

defendants would submit that the Courts below failed to note that the

plaintiff has only right over the area beyond the compound wall on

the east of the defendants property, but, the Courts below erred in

findings that the compound wall is in existence between the property

of the defendants and the plaintiff. The patta obtained by the plaintiff

will not bind the defendants, as it was obtained without any notice to

them. The plaintiff was never in possession of the property as

described in the plaint. The courts below erred in holding that the

defendants encroached the suit property in the year 2010 and further

erred in granting relief on the above basis, when the case of the

defendant is that the alleged encroachment was made 5 months

before the suit. The Courts below failed to note that the plaintiff has

not even clear about the measurement of 'B' schedule properties and

has changed his stand on the basis of Commissioner's report. The

plaintiff had abandoned the earlier suit in O.S.No.10 of 2008 on the file

of the District Munsif, Manaparai for the same property. Further, the

suit is hit by Order 2, Rule 2 CPC., as the plaintiff has not sought for

declaration in the earlier suit O.S.No.10 of 2008. The Suit is barred

by law of limitation as the denial of the title was made in the earlier

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suit O.S.No.10 of 2008 in the year 2008 itself while the present suit for

declaration was filed in the year 2012, which is beyond three years.

Hence, the learned counsel prays for dismissal of the Judgments of the

Courts below.

11. The learned counsel appearing for the respondent/ defendant

would vehemently oppose the Second Appeal by contending that the

well considered Judgments of the Courts below need not be interfered

with, as there is no question of law involved in this Second Appeal and

prayed for dismissal of the Second Appeal.

12. This Court paid its anxious consideration to the rival

submissions made and also carefully perused the materials placed on

record.

13. According to the plaintiff the Suit ‘A’ schedule property is

described a natham land wherein the plaintiff was in occupation for

more than three decades. The Revenue Authorities had issued patta

for the said property in Patta No.172. Originally, the suit property

belongs to the grand mother later on to his mother and living in the

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thatched house. Later, when the plaintiff came to the said house he

put up a tiled house. He also obtained electricity connection and paying

house tax and electricity charge. The suit ‘B’ schedule property is in

western portion of the suit ‘A' schedule property, which forms part of

suit ‘A' schedule property. The plaintiff was using the suit 'B' schedule

property to store the thathering and cattle's and fire woods and the

suit 'B' schedule property was kept vacant. The defendant started

encroaching upon the portion of the property. The second and third

defendants are the son and daughter of the first defendant, who had

unauthorizedly trespassed into the suit ‘B’ schedule property on the

western portion of the suit ‘A” schedule property.

14. According to the defendants, the suit ‘B’ scheduled property

is enjoyed by the defendants along with their property situated on the

western side by constructing a house and had also put up a compound

wall and the plaintiff has got no right over the area on the eastern

side of the defendants house and the plaintiff property is only ‘A'

schedule property. The patta issued in favour of the plaintiff in 'B'

schedule property would not bind the defendants, as the said property

was classified as Natham land.

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15. It is not in dispute that the suit property is a natham

property. Grama Natham land was never vested with the Government

or Town Panchayat. In respect of grama natham land, the 1 st occupier

is the owner of the particular land. Furhter, P.W.1, who is the power

agent of plaintiff, in cross deposed that the suit property was ancestral

property of the plaintiff. D.W.1 in her cross admitted that the plaintiff

resided in the suit property for 10 years and before that his

grandmother Subbammal resided in the above property. D.W.2 in

cross deposed that the plaintiff Ramasamy resided in the Sui property

for more than 40 years. Ex.A1 is the House Tax Receipt, dated

19.04.2002, which is issued ten years before filing of the suit. So, the

conjoint reading of evidence of DW.1, D.W.2 and P.W.1 and Ex.A1

would show that the plaintiff perfected his title over the suit property.

Ex.C1 is the Commissioner's Report. The Advocate Commissioner in

his report observed that the defendant encroached east-west 5 feet

and north-south 46 feet in the suit property and to that effect, there

was no objection by the defendant. Furhter, D.W.1 in her cross

admitted that the new building was put up by her in the year 2010.

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So, a conjoint reading of Ex.C1 and evidence of D.W.1 would show

that D.W.1 encroached the suit property in the year 2010, after the

plaintiff occupied the suit property, which is natham land and perfected

his title.

16. Insofar as the contention of the defedant that earlier, the

plaintiff had instituted a suit in O.S.No.10 of 2008, for the relief of

permanent injunction, before the learned District Munsif, Manapparai,

which was dismissed for default. The plaintiff, suppressing the earlier

Suit, instituted the present suit and therefore, under Order 2, Rule 2 of

Code of Civil Procedure, the subsequent suit in respect of

relinquishment or part of claim is barred with respect to the relief

arising out of same cause of action, as the plaintiff has not obtained

leave of the Court. The cause of action for the earlier suit viz.,

O.S.No.10 of 2008 and the present suit is a different one and it would

not create cloud upon the title of the plaintiff. According to the

defendant, he had put up construction only in the year 2010 and the

Suit for declaration and recovery of possession was filed in the year

2012, which is within the period of limitation. The defendants' case

was rightly rejected by the Courts below, and this Court finds no

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reason to interfere with the well reasoned Judgments of the Courts

below and also there is no question of law much less substantial

question of law involved in this Second Appeal for consideration by this

Court.

17. In view of the forgoing discussions, this Court is not of the

view that the findings rendered by the trial court and upheld by the

first appellate Court, do not warrant any interference by this Court, as

the findings given on the issues framed by the Courts below as well as

specifically taken up by this Court to reach the root of the controversy,

appears to be based upon correct appreciation of oral as well as

documentary evidence. Hence, the present appeal fails and is

dismissed, accordingly. No costs. Consequently connected

miscellaneous petitions are closed.

16.12.2021 Index: Yes/No.

Internet: Yes/No.

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Note: In view of the present lock down owing to COVID 19 pandemic, a web copy of the order may be utilised for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.

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1. The I Additional Subordinate Judge, Tiruchirapalli.

2. The Additional District Munsif, Manaparai.

3.The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

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V. BHAVANI SUBBAROYAN, J.

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S.A.(MD) No.384 of 2011 and CMP(MD) No.4986 of 2021

16.12.2021

https://www.mhc.tn.gov.in/judis