Madras High Court
P.Velusamy vs P.Ravikumar on 16 December, 2021
S.A.No.632 of 2012
and M.P.No.1 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.632 of 2012
and M.P.No.1 of 2012
P.Velusamy ... Appellant/Plaintiff
Vs.
1.P.Ravikumar
2.R.Selvakumar
3.R.Palanisamy
4.M.S.Sengottaiyam,
5.Palaniyappan ... Respondents 1 to 5/
Defendants 1 to 5
6.Muthugoundenpalayam Panchayat,
Represented by its Executive Officer,
Muthugoundenpalayam Panchayat.
7.The State of Tamil Nadu
represented by its District Collector,
Erode District,
Collectorate, Erode 11. .. Respondents 6 & 7/
Defendants 6 & 7
PRAYER: This Second Appeal has been filed under Section 100 of CPC
against the judgment and decree made in A.S.No.16 of 2011, on the file
of the learned I Additional Subordinate Judge, Erode, dated 10.01.2012,
reversing the judgment and decree made in O.S.No.264 of 2002, by the I
Additional District Munsif, Erode, dated 31.01.2011.
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S.A.No.632 of 2012
and M.P.No.1 of 2012
For Appellant : Mr.Chandrasekharan
For R1 to R5 : Mr.V.S.Kesavan
For R6 : Mrs.T.P.Savitha
For R7 : Mr.D.Gopal
Government Advocate
JUDGMENT
The unsuccessful plaintiff is the appellant herein.
2.This Second Appeal has been filed against the judgment and
decree passed in A.S.No.16 of 2011, by the learned I Additional
Subordinate Judge, Erode, dated 10.01.2012, wherein, the learned Judge
has reversed the judgment and decree passed in O.S.No.264 of 2002, by
the I Additional District Munsif, Erode, dated 31.01.2011.
3.For the sake of convenience parties are referred to as per their
ranking before the Trial Court.
4.The plaintiff has filed a suit in O.S.No.264 of 2002, before the I
Additional District Munsif, Erode, for permanent injunction against the
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S.A.No.632 of 2012
and M.P.No.1 of 2012
private defendants and official defendants. The Trial Court on
consideration of both oral and documentary evidence, had decreed the
suit. Agreed over the same, the private defendants have preferred an
appeal suit in A.S.No.16 of 2011, before the learned I Additional
Subordinate Judge, Erode and by an order dated 10.01.2012, the learned
Judge has allowed the appeal and dismissed the suit. Hence, the Second
Appeal.
5.The above Second Appeal was admitted on the following
substantial question of law:
“1.Whether the Lower Appellate Court has
rendered a perverse finding holding that the
appellant/plaintiff has not proved his possession in
respect of the suit property?”
6.Heard Mr.Chandrasekharan, learned counsel for the revision
petitioner, Mr.V.S.Kesavan, learned counsel for the respondent Nos.1 to
5, Mrs.T.P.Savitha, learned counsel for respondent No.6 and Mr.D.Gopal,
learned counsel for the respondent No.7. Perused the materials placed on
record.
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S.A.No.632 of 2012
and M.P.No.1 of 2012
7.After hearing the learned Government Advocate appearing for
the respondent No.7, it is appears that the suit property is Natham
Poramboke and no Patta has been issued in favour of the plaintiff. The
said property was enjoying by the Nanjai Uthukuli Villagers as a pathway
to reach Karuppannan Temple and it appears that festivals of the said
temple have also been celebrated in the part of the temple area, which is
also comes within the area of the suit property. The Lower Appellate
Court has taken into consideration the above pleadings as projected by
the Government Pleader along with the admission of PW1/Velumani in
the witness box that he has not issued Patta in respect of the suit property,
no revenue records available to demonstrate the plaintiff's possession nor
any Kist receipt has been filed and accordingly, non suited the plaintiff.
8.The learned counsel for the appellant/plaintiff would contend
that as per Ex.A4/xerox copy of the sale deed dated 06.12.1967,
forefather by name Poosappa Gounder is referred to be in possession of
the property. As per the description in Ex.A4/sale deed that the suit
property is lies on the South of the property in possession of Poosappa
Gounder and PW2 is neighbour and admittedly Ex.A4 is sale deed is not
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S.A.No.632 of 2012
and M.P.No.1 of 2012
between inter parties. The executent of Ex.A4/xerox copy of the sale
deed 06.12.1967 was not examined. Further, the learned counsel for the
appellant would draw my attention to Ex.A1/release deed dated
04.06.2002, Ex.A4/sale deed dated 06.12.1967, Ex.A5 which is equal to
Ex.B2/settlement deed in favour of D6 (Ex.A5 is the xerox copy of
Ex.B2).
9.As stated supra, the case of the plaintiff seeking relief of
possession, he has to plead and prove his case. He cannot rely upon the
weakness of the defendants. The case of the plaintiff solely rest upon
Ex.A1/release deed dated 04.06.2002 & Ex.A4/xerox of the sale deed
dated 06.12.1967 and it appears to have been marked through
PW2/Subramaniyam, who is the neighbour. According to
PW2/Subramaniyam, the property mentioned in Ex.A4/sale deed lies on
the South of the property in possession of the said Poosappa Gounder.
But the identity of the said Poosappa Gounder as that of the ancestor or
grand father of the Palaniappa Gounder is not proved. Further Ex.A4 is
not between inter parties in the suit. Admittedly, executant of Ex.A4/sale
deed has not been examined.
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S.A.No.632 of 2012
and M.P.No.1 of 2012
10.As rightly relied upon by the Lower Appellate Court that the
classification of the land as Natham Poramboke and therefore, the Trial
Court has rightly relied upon the decision reported in 2007 (4) CTC 125
and 2010 (3) LW 846 to non suit the plaintiff. As stated supra, even PW3
has admitted in the cross examination that she has not aware of the
survey number, extent of the land and boundaries of the suit property and
further, she admitted that existence of the Karuppannan Temple situated
in the suit property. Hence, I find that PW3/Marayamman supports the
case by the official defendants viz., R6 & R7 herein and hence, in the
absence of any document to show that the alleged possession of the
plaintiff, on the date of the suit and in the absence of identification of
Poosappa Gounder is the relation of the said plaintiff, in the absence of
any ancestral document or parent document of Ex.A1/release deed dated
04.06.2002, the Lower Appellate Court has rightly held that Exs.A1 &
A4 are not sufficient to prove the possession of the plaintiff and hence,
this Court finds that the substantial questions of law and appreciation of
evidence does not arise for consideration and the the Lower Appellate
Court has rightly held that the plaintiff does not proved his case. Hence,
the finding rendered by the Lower Appellate Court does not suffer from
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S.A.No.632 of 2012
and M.P.No.1 of 2012
any illegality or irregularity, which does not warrant any interference at
this appellate stage.
11.Accordingly, this Second Appeal stands dismissed and the
judgment and decree made in A.S.No.16 of 2011, by the learned I
Additional Subordinate Judge, Erode, dated 10.01.2012, by reversing the
judgment and decree made in O.S.No.264 of 2002, by the I Additional
District Munsif, Erode, dated 31.01.2011, is hereby confirmed. No costs.
Consequently, connected miscellaneous petition is closed.
16.12.2021
Internet : Yes
dua
To
1.The I Additional Subordinate Judge, Erode.
2.The I Additional District Munsif, Erode.
3.The Executive Officer,
Muthugoundenpalayam Panchayat.
4.The District Collector,
The State of Tamil Nadu
Erode District, Collectorate, Erode 11.
https://www.mhc.tn.gov.in/judis
S.A.No.632 of 2012
and M.P.No.1 of 2012
RMT.TEEKAA RAMAN, J.
dua
S.A.No.632 of 2012
and M.P.No.1 of 2012
16.12.2021
https://www.mhc.tn.gov.in/judis
