Madras High Court
Kaleel vs Paramanandam on 1 February, 2021
C.M.A.No.3159 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:01.02.2021
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.3159 of 2009
and
M.P.No.1 of 2009
1.Kaleel,
S/o.Vahit Khan.
2.Vahit Khan,
S/o.Ameer Khan. .. Appellants
Vs.
1.Paramanandam,
S/o.Pavadai Mudaliar.
2.The Commissioner,
Virudhachalam Municipality,
Virudhachalam. .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under 43 Rule (1) (u) read
with Section 104 of the Civil Procedure Code, against the judgment and
decree dated14.09.2009, passed in in A.S.No.3 of 2007 on the file of the
Principal Subordinate Judge, Virudhachalam, remanding and setting aside the
judgment and decree dated 27.10.2006 passed in O.S.No.201 of 2000, on the
file of the Principal District Munsiff Court, Virudhachalam.
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C.M.A.No.3159 of 2009
For Appellants : Mr.S.K.Ragunathan
and S.Kingston Jerold
For Respondents :Mr.V.Raghavachari
JUDGMENT
The appellants herein are the defendants 1 and 2 in the suit against
whom and another defendant, the first respondent herein filed a suit for
declaration and consequential injunction relief, recovery of possession and
other reliefs in O.S.No.201 of 2000, on the file of the Principal District
Munsif Court, Virudhachalam. The defendants contested the suit. After full
trial, the trial Court dismissed the suit as not maintainable in law.
2. Aggrieved, the plaintiff preferred the first appeal before the
Principal Subordinate Judge, Virudhachalam, in A.S.No.3 of 2007 and the
same also contested by the respondents. After full trial, the first Appellate
Court remanded the case to the trial Court for the reason to examine the
witnesses belonging to Virudhachalam Municipality to prove his possession
and enjoyment of the suit property.
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C.M.A.No.3159 of 2009
3. Aggrieved that order, the defendants 1 and 2 preferred this Civil
Miscellaneous Appeal on the following grounds:
(i) The Court below failed to note that the first respondent has not made
out any case for remand especially when the trial Court on a consideration of
the entire oral and documentary evidence rejected the claim of the first
respondent;
(ii) The Court below erred in holding that in respect of Ex-A1 to A19, the
trial Court rejected the documents as the same were not proved and that
therefore the documents should be reconsidered by the trial Court by giving
an opportunity to the first respondent;
(iii) The Court below failed to note that reconsidering the documents by
the trial Court will not at all arise as the same will amount to filling up the
lacuna in the case of the first respondent;
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C.M.A.No.3159 of 2009
(iv) The Court below failed to note that two Advocate Commissioners
were appointed and their reports were considered by the trial Court and it is
only on consideration of the reports of the Commissioner and the oral and
documentary evidence of the first respondent, the Court below rejected the
case of the first respondent;
(v) The Court below failed to note that the lower appellate Court has
given permission to the first respondent to fill up the latches in his case and in
such circumstances the order of remand made by the lower appellate Court
cannot be sustained.
4. The first respondent/plaintiff also contested this Appeal.
5. Heard both sides and perused the materials available on records.
6. As per the submissions made by the appellants that the first
Appellate Court erroneously remanded the matter to the trial Court in order to
fill up the lacuna by the plaintiff, which is not permissible in law.
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C.M.A.No.3159 of 2009
7. The learned counsel appearing for the appellants also submits that
the trial Court elaborately discussed about the material and documentary
evidence adduced on the side of the plaintiff and dismissed the suit as it has
no merits. But, before the first Appellate Court, the counsel for the plaintiff
sought for sufficient opportunity to prove his enjoyment by examining
officials from municipality which was observed by the trial Judge, while
passing the decree. Considering that the first Appellate Court remanded the
matter to the trial Court.
8. On perusal of the records, it reveals that the plaintiff approached the
Court for relief of declaration, injunction and recovery of possession against
the defendants 1 and 2, and Virudhachalam Municipality who is added as the
formal party to the proceedings. The suit property with four boundaries in
O.S.No.21 of 2007 as discussed in the plaint schedule in R.S.No.99/16 with
an extent of 0.03 cent in Ayirar Mada Street, Virudhachalam, Door No.48/6,
belongs to him by way of enjoyment. The defendants 1 and 2 falsely claimed
right over the property with the help of the Virudhachalam Municipality.
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C.M.A.No.3159 of 2009
Hence, the plaintiff approached the Court for declaration and other reliefs.
The first and second defendants contested the suit stating that the entire
S.No.99/16 with an extent of 4 acre and 44 cents belongs to their ancestors
viz., Ameer Khan and obtained patta for that property. So the D1 and D2
claimed claim right over the entire S.No.99/16 with an extent of 4 acre and 44
cents, the Municipality/3rd defendants contended that they have not made any
attempt to transfer the patta as alleged by the plaintiff.
9. Admittedly, the suit property is situated in Natham Poramboke land, and
neither document was produced and nor witness was examined including the
Revenue Officials by the plaintiff to prove his possession and enjoyment of
the suit property. The trial Judge elaborately discussed about the documents
filed by the plaintiff and dismissed the suit. Moreover, a Commissioner also
appointed and his report also taken into consideration by the trial Judge
which was marked as Exs.C.W.1 to C.W.4 . Based on the Commissioner's
report the trial Judge concluded that the property shown as 'ABCD' concerned
with the suit property and another portion related to thatched roof of physical
structure found in the property and the same also measured with the help of
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C.M.A.No.3159 of 2009
surveyor and the said 'ABCD' portion situated in S.No.99/16 with an extent
of 4 acre and 44 cents. Therefore, the Commissioner report also clearly
reveals that the property is situated at Natham Poramboke land. The trial
Judge, based upon the Commissioner report, dismissed the suit as the plaintiff
is not entitled for any declaration relief to the Natham Poramboke land. But,
without considering all these facts, the first Appellate Court simply remanded
the matter to the trial Court with the reason that the plaintiff has to be given
opportunity to prove his case by examine the revenue officials in order to
prove his long term enjoyment.
10. Considering the entire judgment of the trial Court in all aspects,
the plaintiff failed to prove his case, based upon the documents ExS.P1 to
P19. He was given opportunity to prove his case, while he was adduced the
evidence before the trial Court but as rightly pointed by the appellant counsel
to fill up lacuna, the matter was remanded back to the trial which is not
permissible in law.
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C.M.A.No.3159 of 2009
11. Furthermore, the defendants 1 and 2/appellants also claimed right
over the property based upon the enjoyment said to be made by their
ancestors. But, admittedly, S.F.No.99/16, Natham Poramboke land, over
which, the defendants right also was not acceptable one. As the plaintiff
approached the Court for relief, he has to prove his case with all materials
evidence, but before the trial Court, he not only failed to prove his title but
also not proved his possession of the property on the date of the suit. The trial
Court rightly dismissed the suit. Without considering the legal aspects, the
first Appellate Court erroneously remanded the matter to the trial Court,
which is unsustainable one.
12. Accordingly, this Civil Miscellaneous Appeal is allowed, and the
order of the first appellate Court is set aside. Accordingly, the order passed
by the trial Court is confirmed. No Costs. Consequently, connected
Miscellaneous Petition is closed.
01.02.2021
ub
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.3159 of 2009
T.V.THAMILSELVI,J.
ub
C.M.A.No.3159 of 2009
and
M.P.No.1 of 2014
01.02.2021
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