Madras High Court
Chellamuthu vs Azhagamuthu (Died) on 26 July, 2021
S.A.No.173 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 26.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.173 of 2011
Chellamuthu ...Appellant
Vs.
1.Azhagamuthu (Died)
2.Sadasivam
3.Vijayan
4.Nallammal
5.Manimuthu
6.Rathinammal
7.Pachiammal ...Respondents
(RR2 to RR7 brought on records as LRs of the deceased 1st respondent
vide Court order dated 15.06.2021 in C.M.P.Nos.2670 & 2671 of 2016
in S.A.No.173 of 2011).
1/11
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S.A.No.173 of 2011
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 24.09.2010 passed in
A.S.No.5 of 2010 on the file of the Sub Court, Mettur confirming the
Judgement and Decree dated 20.11.2009 passed in O.S.No.61 of 2004
before the District Munsif Court, Mettur.
For Appellant : Mrs.R.Meenal
For Respondent 1 : Died
For Respondents 2 &3 : Served
For Respondents 4 to 7 : Mr.T.Murugamanickam
Senior Counsel
for Ms.Zeenath Begum
JUDGMENT
The plaintiff is the appellant before this Court. The Second
Appeal arises against the concurrent Judgement and Decree in
A.S.No.5 of 2010, Subordinate Court, Mettur and O.S.No.61 of 2004,
District Munsif, Mettur. The suit O.S.No.61 of 2004 which was
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S.A.No.173 of 2011
instituted on the file of the District Munsif, Mettur was originally filed
for the relief of permanent injunction and thereafter the plaint was
amended to include the relief of declaration and recovery of possession
in respect of 24 cents. The subject matter of the suit was an extent of
1.48 acres comprised in S.No.387/1.
2.It is the case of the plaintiff that he and the 1 st defendant are
brothers and the 2nd and 3rd defendants are his nephews. The plaintiff
had purchased the suit property under a registered sale deed dated
02.03.1988 and his brother had purchased a land in the very same
survey number measuring an extent of 3 acres on 18.02.1984. The
plaintiff would submit that he was in enjoyment of an extent of 1.48
acres and his brother 3 acres. A portion of the land belonging to the 1st
defendant was acquired by the Government for the purpose of
constructing a channel and the compensation was made over to the 1st
defendant. Thereafter, the lands had been subdivided and joint patta
given in respect of S.No.387/1A.
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S.A.No.173 of 2011
3. It is the case of the plaintiff that the defendants had encroached
into 24 cents of land in the said survey number. Thereafter, the suit has
been filed for the relief stated supra. Recovery of possession was only
with reference to 24 cents.
4.The 3rd defendant had filed a written statement which was
adopted by the other defendants inter alia contending that the suit
property is situate to the west and south of the land belonging to the 1 st
defendant. The defendants had not trespassed into any portion of the
suit property belonging to the plaintiff. The plaintiff's land is lying
south of the lands of the 1st defendant and his lands were subdivided as
S.No.387/1C2 and he has been in possession only with reference to this
land. To the North of the said survey number the lands in
S.No.387/1C1 and 387/1A belongs absolutely to the 1st defendant. The
plaintiff and 1st defendant have not purchased the lands jointly but had
purchased independent of each other. The old survey number of the
suit property was S.No.387/1 and since the plaintiff and 1st defendant
had purchased property in the same survey number but under separate
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S.A.No.173 of 2011
sale deed joint patta was issued.
5.East of the land in question is the land belonging to the Forest
Department. The channel was dug in the forest land from Sekkarapatty
water storage for irrigation purposes and after the acquisition by the
Government, lands in S.No.387/1 was subdivided as 387/1A, 387/1B,
387/1C1 and 387/1C2. The lands north of the channel was demarcated
as S.No.387/1A. The categoric case of the defendants was that the
plaintiff did not own any lands beyond S.No.387/1C2. Infact, there
was a well defined boundary between S.No.387/1C1 and S.No.387/1C2
by coconut trees and also a stone revetment. Therefore, the contention
of the plaintiff that they own lands beyond the said boundaries was
totally inconceivable.
6. The Trial Court on considering the evidence on record which
was the evidence of plaintiff as P.W.1 and also the evidence of P.W.2
and P.W.3, Ex.A.1 to Ex.A.9, evidence of the 3rd defendant as D.W.1
and Ex.B.1 to Ex.B.14 along with Ex.C.1 to Ex.C.3 and Ex.X.1 to
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S.A.No.173 of 2011
Ex.X.6 come to the conclusion that no case had been made out and
accordingly the suit was dismissed.
7. Challenging the same, the plaintiff had filed A.S.No.5 of 2010
on the file of the Subordinate Court, Mettur. Along with the appeal the
appellant had also filed I.A.No.36 of 2010 for amending the plaint with
reference to survey number. The Appellate Court dismissed the
interlocutory application as well as the appeal. Thus the appellant is
before this Court.
8. At the time of admission notice was ordered and the
respondents / defendants have entered appearance through counsel.
9. Mrs.R.Meenal, learned counsel appearing on behalf of the
plaintiff / appellant would submit that the plaintiff had purchased 1.48
acres on 02.03.1988 under Ex.A.1 sale deed. The 1st defendant had
purchased 3 acres earlier and both of them had purchased from the
same vendor. She would submit that the purchase had been admitted
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S.A.No.173 of 2011
by the defendants. She would submit that the Trial Court had observed
that the suit property as comprised in new S.No.387/1C2 which
measured 1.24 acres whereas under Ex.A.1 the plaintiff has purchased
1.48 acres. The purchase was originally in the undivided S.No.387/1
and it was after subdivision that the plaintiff's extent got reduced to an
extent of 1.24 acres in S.No.387/1C2.
10. Therefore, considering the admission of defendants the
plaintiff was still owner of 24 cents of land which the plaintiff seeks to
recover. She would also submit that the appellate Court had erred in
hearing the application for amendment and the first appeal together and
passing orders on the very same day, as a result of which the plaintiff
had been deprived of his right to amend the plaint.
11. Per contra, Mr.T.Murugamanickam, learned senior counsel
appearing on behalf of Ms.Zeenath Begum, learned counsel for the
respondents would draw the attention of the Court to the
Commissioner's report and plan which has been marked as Ex.C.1 to
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S.A.No.173 of 2011
Ex.C.3. He would submit that it is inconceivable as to how the plaintiff
can claim recovery of possession in respect of lands situate in
S.F.No.387/1A which was situate beyond the property that fell to the
share of the plaintiff.
12. He would further submit that there is no clarity in the
averments of the plaintiff as to the portion which had been encroached
upon in his plaint plan. The encroachment is shown as a portion in the
property comprised in S.F.No.387/1C1, whereas, the amendment was
sought for with reference to S.F.No.387/1A. He would submit that the
property belonging to the plaintiff is clearly demarcated by a well
defined stone revetment as well as a live boundary consisting of
coconut trees both on the western and southern sides. Therefore, he
would submit that the plaintiff was very much aware about the extent
that was in his enjoyment and had accordingly demarcated the portion.
13. The learned senior counsel would submit that the Courts
below being the Courts of fact considered the evidence from its proper
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S.A.No.173 of 2011
perspective and arrived at a conclusion that the plaintiff had to be non
suited. This Court sitting in Second Appeal cannot seek to overturn the
concurrent Judgement and that too when the challenge in this Second
Appeal is on facts.
14. Heard the counsels and perused the records.
15. The plaintiff had originally come forward with a case that the
property purchased by him was an extent of 1.48 acres comprised in
S.No.387/1. Thereafter, on coming to know about the subdivision
made after the acquisition, the plaintiff had sought to amend the plaint
to include the prayer of declaration and recovery of possession in
respect of the property comprised in S.No.387/1C2.
16. The plaintiff would claim recovery of an extent of 24 cents in
S.No.387/1A. While considering the lie on the land in S.No.387/1 it is
impossible for the Court to come to the conclusion that the plaintiff is
entitled to recover possession of 24 cents in S.No.387/1A since this
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S.A.No.173 of 2011
survey number is not contiguous to the lands belonging to the plaintiff,
namely, S.No.387/1C2. The case of the plaintiff is that the extent of
1.48 acres purchased by him in old S.No.387/1 was in one block.
However, the 24 cents of which recovery is now sought for is not
contiguous to the plaintiff's land.
17. The commissioner's report shows that the property of the
plaintiff has well defined boundaries and therefore this Court has to
accept the findings of the Courts below that the plaintiff is in
possession and enjoyment of 1.24 acres comprised in S.No.387/1C2
and nothing beyond S.No.387/1C2.
18. I do not find any substantial question of law warranting
interference and accordingly the Second Appeal stands dismissed.
However, there shall be no order as to costs.
26.07.2021
Index : Yes/No
Internet : Yes/No
kan
https://www.mhc.tn.gov.in/judis/
S.A.No.173 of 2011
P.T. ASHA, J,
kan
To
1. The Sub Court, Mettur.
2. The District Munsif Court, Mettur.
S.A.No.173 of 2011
26.07.2021
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