Madras High Court
S.Siva vs B.Govindarajan on 20 December, 2021
SA NO.657 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.12.2021
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.657 OF 2017
AND CMP NO.16272 OF 2017
S.Siva ... Appellant
VS.
1.B.Govindarajan
2.G.Saraswathi
3.G.Balaguru
4.G.Siva Sankar
5.B.Balambal ... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgment and decree dated 30.08.2016 in
A.S.No.12 of 2013 on the file of I Additional Sub Court, Villupuram
reversing the judgment and the decree dated 29.01.2013 in O.S.No.86 of
2007 passed by the I Additional District Munsif, Thirukoilur.
For Appellant : Mr.T.Sezhian
For Respondent-1 : Mr.C.Munusamy
1/10
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SA NO.657 OF 2017
JUDGMENT
The plaintiff is the appellant before this Court. Aggrieved
over the reversal of the decree granted by the Trial Court by the First
Appellate Court, the above Second Appeal has been preferred.
2.According to the plaintiff, the property in "A" Schedule
originally belonged to one Dhanapakkiammal. She sold it to one Subbu
Ammal on 05.10.1967 by virtue of a registered sale deed. In turn, the said
Subbu Ammal, sold the property to one Jayaraman on 19.03.1997, who
in turn, sold it to the plaintiff on 05.05.2000 by virtue of a registered sale
deed. The property measured about 130 feet on the east west direction.
Even though the boundaries mentioned in the properties in the sale deed
made by Subbu Ammal in favour of Jayaraman were correct, the east
west measurement was mentioned as 51 feet and in the sale made to the
plaintiff, it was mentioned as 63 ½ feet. But, as per the boundaries, the
predecessors in title to the plaintiff were enjoying the entire extent for
over 25 years and thereby entitled to prescriptive title also. The plaintiff
also constructed a house in the "A" Schedule property in the year 2003
and was assessed to tax. He is in peaceful possession and enjoyment of
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SA NO.657 OF 2017
the same. While so, the respondents / defendants included their names as
title holders of "B" Schedule property, which form part of "A" Schedule
property and made entries in the "A Register". On 28.06.2005, the
plaintiff filed a petition before the Revenue Department and got the patta
transferred in his name. But on 09.02.2007, the defendants encroached
into the property and put up compound wall for a height of 6 feet. Hence,
he filed a Suit for declaration of title and for mandatory injunction to
remove the construction and deliver vacant possession and also for mesne
profits.
3.The defendants filed an elaborate written statement
denying the averments made in the plaint. Actually, Subbu Ammal sold
the property with correct measurements having 51 feet east-west and 21
feet north-south admeasuring an area of 1071 sft. by virtue of a registered
sale deed dated 19.03.1997. But the purchaser Jayaraman suppressing
the actual measurements, sold 1366 ½ sft to the plaintiff herein on
05.05.2000 in excess of the land to which he had title. From 2000 to
2003, the plaintiff was enjoying the property which he purchased from
Jayaraman to an extent of 1071 sft. and nothing more than that. But he
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SA NO.657 OF 2017
preferred the case on a false cause of action. The property described in
"B" Schedule belonged to the defendant. It is a natham property and the
defendant was issued with patta in the year 1995 itself by Natham
Tahsildar. Since the plaintiff attempted to encroach the property, he
constructed a compound wall. Therefore, he filed a Suit with a malafide
intention to cause mental torture.
4.The Trial Court after framing appropriate issues tried the
Suit. Pending trial, a Commissioner was appointed and he filed a report.
Based on the materials placed before the Court, the Suit was decreed. On
appeal by the first defendant, the First Appellate Court found that the
plaintiff had not established the fact that his original vendor did possess
the extent of land claimed by the plaintiff and therefore, he is not entitled
to more than what was purchased by his predecessors in title and
reversed the decree. Aggrieved over the same, the plaintiff has preferred
the above Second Appeal.
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SA NO.657 OF 2017
5.Heard the submissions made on either side and perused the
materials available on record.
6.From the materials produced before the Court, it could be
seen that the plaintiff purchased the property from one Jayaraman. His
sale deed was marked as Ex.A3. The sale deed executed by Subbu
Ammal predecessor in title in favour of Jayaraman was marked as Ex.A2
and the sale deed executed by the original owner Dhanapakkiammal in
favour of Subbu Ammal was marked as Ex.A1. In Ex.A1, the property
was sold with linear measurements of 50 X 21 feet on 05.10.1967. Ex.A2
also conveys same extent of land, with same boundaries. Therefore, it is
very clear from the schedule of Exs.A1 and A2 that the linear
measurements of the property was 50 X 21 feet admeasuring an area of
1071 sft. It is also relevant to note that the property was classified as
"grama natham" in S.No.101/6. However, in Ex.A3 the vendor of the
plaintiff who had purchased 1071 sft has sold an extent of 1366 ½ sft in
favour of the plaintiff. There is no explanation as to how the extent of the
property increased from 1071 sft to 1366 ½ sft. In other words, 50 feet
was increased to 63 ½ feet by the vendor of the plaintiff. The eastern
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SA NO.657 OF 2017
boundary was mentioned as Thirukoilur Oil Mill. During the cross
examination, P.W.1 would categorically admit that there is gap between
the property of the plaintiff and Thirukoilur Oil Mill. The Oil Mill situates
½ km away from the Suit property.
7.From the evidence of parties, it could be seen that in
between the eastern boundary of the plaintiff and the Thirukoilur Oil
Mill, there were lot of occupants put up constructions over the Natham
land. The sketch prepared by the Advocate Commissioner clearly shows
that the plaintiff’s property measures lesser extent and not 130 feet as
claimed by him in the east west direction.
8.It is imperative to note that Ex.B1 is Manaivari Thoraya
Patta dated 03.07.1995 issued by Natham Tahsildar of Thirukoilur in
favour of the first defendant. It is also relevant to note that the plaintiff
purchased the property only on 05.05.2000. Therefore, it is clear that the
defendants were in enjoyment of the property as per Ex.B1 even before
the purchase made by the plaintiff. The plaintiff as P.W.1 would admit
that he has not measured the property before purchase. He made only
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SA NO.657 OF 2017
approximate measurements. As seen above, the discrepancy in
measurement between Exs.A1, A2 and A3 spells out that the plaintiff is
claiming more than what his predecessor in title was entitled to.
9.Further, it is an admitted fact that the property is classified
as "Natham Poramboke". Whoever is in possession and occupation of the
property is entitled to hold the same. Even though the plaintiff has
purchased the property on 05.05.2000 and produced patta vide Ex.A4 as
discussed by the First Appellate Court, it was obtained on 23.09.2005.
But, there were no proceedings for cancelling the patta of the first
respondent / first defendant and it was issued without any notice.
Particularly, Ex.A4 proceedings does not disclose issuance of notice,
conduct of enquiry or the procedure contemplated for granting patta in
respect of Natham land. Therefore, the First Appellate Court has rightly
found that by virtue of patta, the plaintiff cannot claim any title over the
property which is under occupation of the first respondent / first
defendant. On the other hand, the possession of the first defendant was
proved through Ex.B2, the petition sent to the District Collector and
Ex.B5 dated 10.02.2007, CSR issued by the Police and Ex.B6, demand
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SA NO.657 OF 2017
certificate issued by the Executive Officer, Town Panchayat. From this, it
is very clear that the possession of the first respondent was sought to be
disturbed by the plaintiff.
10.Therefore, it is crystal clear that the plaintiff is claiming
larger extent of property through the sale deed dated 05.05.2000. When
his predecessor in title themselves were not having larger extent, he
cannot claim more than what he purchased through his predecessor. If at
all there is any discrepancy, he should have approached the appropriate
authorities for rectifying the sale deed with concrete proof. It is also
important to note that the plaintiff is not claiming title and possession
over "B" Schedule property by virtue of his occupation over "natham
lands". He claims title only through the title deed. Whereas, the
defendants were in possession of the property even before the purchase
made by the plaintiff. Ex.B1 - Thoraya Patta issued in the year 1995 i.e.,
five years prior to the purchase of the property by the plaintiff can amply
prove the possession by the first defendant. Therefore, I do not find any
infirmity or discrepancy on the reasons recorded by the First Appellate
Court for reversing the erroneous finding of the Trial Court. There is no
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SA NO.657 OF 2017
question of law arising out of factual materials produced before the Court
much less any substantial question of law. The questions of law projected
by the appellant are not questions of law, but questions of fact. Therefore,
the Second Appeal does not deserve admission and accordingly,
dismissed. No costs. Consequently, connected civil miscellaneous petition
is closed.
20.12.2021
Index : Yes/No
Internet : Yes/No
TK
To
1.The I Additional Sub Court
Villupuram.
2.The I Additional District Munsif
Thirukoilur.
https://www.mhc.tn.gov.in/judis
SA NO.657 OF 2017
M.GOVINDARAJ, J.
TK
SA NO.657 OF 2017
20.12.2021
https://www.mhc.tn.gov.in/judis
