Madras High Court
R. Mahalingam vs S. Varalakshmi on 21 January, 2021
S.A (MD) No.26 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.01.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A (MD) No.26 of 2021 and
CMP(MD).Nos. 377 and 379 of 2021
R. Mahalingam .. Appellant / defendant
Vs.
S. Varalakshmi ... Respondent / plaintiff
Prayer: Second Appeal filed under Section 100 CPC against the
Judgment and Decree passed by the learned IV Additional District Judge,
Madurai, dated 26.02.2020 in A.S.No.104 of 2018 confirming the
Judgment and Decree passed by the III Additional Subordinate Judge,
Madurai, dated 20.08.2018 in O.S.NO. 933 of 2013.
For Appellant : Mr.P. Pethu Rajesh
JUDGMENT
The defendant in O.S.No.933 of 2013 on the file of the III
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S.A (MD) No.26 of 2021
Additional Sub Court, Madurai, questioning the decree of declaration of
title and recovery of possession of the encroached portion about 3 Cents of
lands in S.No.128 / 3A (R.S.No.146/3A) passed by the trial Court and its
confirmation by the Appellate Court in A.S.No.104 of 2018 on the file of
the IV Additional District Judge, Madurai, has come come up with this
Second Appeal.
2. The respondent / plaintiff, sought recovery of possession
contending that she has purchased 42 ½ Cents in S.No. 128/3A (R.S.No.
146/3A) under a sale deed, dated 02.07.1990, and that the defendant who
owns the property in S.No.143/4A2E, on the Northern side, of the suit
property, had encroached upon to an extent of 3 Cents, on the North of
UDR.S.No. 146/3A.
3. The suit was resisted by the defendant contending that he
had purchased an extent of land 1045 sq. ft., in R.S.No. 129/4A2A, which
has been assigned R.S.No.143/4A2E2, by virtue of un-registered sale deed
from one Ramasamy. According to him, though he has purchased 1045 sq.
ft., of land, an extent of 209 sq. ft., was acquired by the Government for
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S.A (MD) No.26 of 2021
the purpose of widening the road, leaving balance of 850 sq. ft. He
would contend that he is in possession of 850 Sq. feet only and nothing
more. The defendant also admits the title of the plaintiff to an extent of
42 ½ Cents in R.S.No.146 / 3A. A Commissioner was appointed and he
had also filed his report and plan showing physical features of the
property.
4. At trial, the plaintiff was examined as PW.1 and Exs.A1 to
A9 were marked. The defendant was examined as DW.1 and one
Senthilkumar was examined as DW.2 and Exs.B1 to B14 were marked.
5. The Trial Court, upon consideration of the evidence,
concluded that the plaintiff has established her title for 42 ½ Cents in
R.S.No. 146/3A and the Commissioner's report showed that the defendant
had encroached upon 3 Cents of land on the Northern side of the said
Survey field. Hence, the trial Court decreed the suit as prayed for.
Aggrieved, the defendant filed appeal in A.S.No.104 of 2018. The
learned IV Additional District Judge, who heard the appeal, concurred
with the findings of the trial Court and dismissed the appeal. Hence, the
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S.A (MD) No.26 of 2021
Second Appeal.
6. I have heard Mr. P. Pethu Rajesh, learned counsel appearing
for the appellant.
7. The learned counsel appearing for the appellant would
vehemently contend that the appellant has not encroached upon any
portion of the property in S.No. 146 / 3A. It is claimed that 850 sq. ft., of
land purchased by him in R.S.No.143 / 4A2E is situated between the
Dindigul road and the plaintiff's property. He is only in possession of the
said extent of land. He has also contended that if the present suit is
decreed then the plaintiff's property would be shown as appurtenant to the
Dindigul Road.
8. The learned counsel would further strenuously contended
that the plaintiff has admitted the defendant's possession and his right over
the property on certain land situated in between Dindigul main road
and the plaintiff's property. Earlier, the defendant has filed a suit in
O.S.No.597 of 2004 in respect of entire extent of 1045 Sq. Ft. in R.S.No.
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S.A (MD) No.26 of 2021
143/4A2E and the same had been decreed which decree has been
confirmed by this Court in the Second Appeal.
9. I have considered the submission made by the learned
counsel appearing for the appellant.
10. The case of the plaintiff is that she is entitled to 42 ½
Cents in R.S.No.146/3A. She sought for a declaration of title and recovery
of possession of 3 Cents, which according to her is encroached upon by
the appellant / defendant. The Courts below have found that the appellant
is in possession of land in R.S.No.146 / 3A. Neither in the earlier suit
filed nor in the written statement filed in this suit, the defendant has
claimed any right over the land in R.S.No. 146 / 3A. Earlier suit was
restricted to an extent of 1045 Sq. Feet in UDR S.No. 143 / 4A2E and to an
extent of 850 Sq.Ft., remained in the said Survey Number, which is
protected by decree for injunction in the suit in O.S.No.597 of 2004,
confirmed by this Court. Once it is found that the defendant has not
claimed any right over the suit property in R.S.No.146/ 3A, it can be easily
concluded that the plaintiff has established her title.
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S.A (MD) No.26 of 2021
11. According to the defendant, he had purchased 1045 Sq.
feet of land from one Ramasamy by virtue of unregistered sale deed in the
year 2000. It is his admitted case that 209 sq. ft., out of 1045 sq. ft., was
acquired by the Government for widening the road. Therefore, he was left
with only 850 sq. ft. of land. As pointed out by the plaintiff, the
defendant is in possession of more than 1300 sq. ft., which admittedly,
does not belong to him. Therefore, I do not see any error or perversity in
the findings of the Courts below. Despite his best efforts, the learned
counsel appearing for the appellant is unable to demonstrate that the
factual findings of the Courts below are perverse. He is unable to point out
any questions of law, much less a substantial question of law in this
appeal.
12. Accordingly, this Second Appeal is dismissed without
being admitted. No costs. Consequently, the connected Miscellaneous
Petitions are closed.
13. This decree will not, however, enable the plaintiff /
respondent to take the possession of the land in R.S.No.143/4A2E which
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S.A (MD) No.26 of 2021
possession is protected by the injunction decree in O.S.No. 597 of 2004.
21.01.2021
Index : yes/no
Internet : yes/no
trp
To
1. IV Additional District Judge, Madurai,
2. III Additional Subordinate Judge, Madurai,
http://www.judis.nic.in
S.A (MD) No.26 of 2021
R.SUBRAMANIAN,J.,
trp
S.A (MD) No.26 of 2021 and
CMP(MD).Nos. 377 and 379 of 2021
21.01.2021
http://www.judis.nic.in
