Kannan vs Muthaiyan
2021 Latest Caselaw 12436 Mad

                                                          S.A.No.801 of 2008



            IN THE HIGH COURT OF JUDICATURE AT MADRAS
                          DATED: 25.06.2021
                                 CORAM:
               THE HONOURABLE MS.JUSTICE P.T.ASHA
                          S.A.No.801 of 2008
                                   and
            CMP.No.6354 of 2019 and MP.Nos.1 of 2008,
                        1 of 2010 and 1 of 2012
1. Kannan

2. Venkatesam

3. Mani
                                                        ... Appellants
                                  versus
1. Muthaiyan

2. Ganeshan

3. Mannangatti

4. Murugesa Pandithar
                                                          ...Respondents

     Second Appeal filed against the judgment and decree dated
10.10.2007 made in A.S.No.112 of 2005 on the file of the Sub- Court,
Gingee, reversing the decree and judgment dated 30.09.2004 made in
O.S.No.167 of 1998 on the file of Additional District Munsif Court,
Gingee.


       For Appellants    : Mr. P. Srinivas

       For Respondent    : Ms. Gayatri for Mr. P.B. Balaji for R1
                           R2 and R4- Served - No appearance
                           R3- Ex-parte.


1/14
                                                         S.A.No.801 of 2008

                              JUDGMENT

The defendants 1, 2 and 3 are the appellants before this

Court.

2. The second appeal is filed challenging the judgment and

decree in A.S.No.112 of 2005 on the file of the Sub Court, Ginjee

reversing the judgment and decree made in O.S.No.167 of 1998

on the file of the Additional District Munsif, Ginjee.

3. The facts in brief are as follows:

Plaintiff's Case:

3.1. The first respondent herein had filed the above suit for

a declaration and permanent injunction in respect of the suit

property. Thereafter, the suit was amended to include the relief

of recovery of possession, if the courts were to come to the

conclusion that defendants had encroached into the suit property.

The suit was filed against the appellants herein and respondents

2 to 4 herein.

S.A.No.801 of 2008

4. The case of the first respondent was as follows:

4.1. The suit properties belonged to his father Muttaiya

Pillai and the old patta number for the same was 87. Muttaiya

Pillai was in possession and enjoyment of the property till his

death in the year 1986. The first respondent being the sole legal

heir had inherited the same and has been in possession and

enjoyment of the properties. The natham patta was also issued in

the name of the first respondent and the new Patta Number was

120.

4.2. The first respondent contended that he and his

predecessor in title being in open and continuous possession of

the suit property for over a period of 12 years had therefore

perfected the title to the same by adverse possession.

4.3. The defendants who have no semblance of right, title

or interest to the suit property have been interfering with the

first respondent's peaceful possession and enjoyment of the suit

property thereby constraining the first respondent to file the suit.

S.A.No.801 of 2008

Written Statement of the First Defendant:

4.4. The first appellant herein as first defendant had filed a

written statement which was adopted by the other defendants

and respondents 2 to 4. In their defense they had denied the

entire contentions of the first respondent and had stated that the

suit property never belonged to Muttaiya Pillai, the first

respondent's father.

4.5. The first appellant further contended that the Advocate

Commissioner who had been appointed in the above suit has

submitted a report stating that there is a house existing in the

suit property which is very old and the first respondent had not

taken any steps to show the house in the schedule of properties.

The appellant and his ancestors have been enjoying the suit

property for well over 60 years by paying the revenue charges

and having electricity service connection to the said house. The

first appellant had further contended that the old survey numbers

in the suit property is Survey Numbers 73 and 74 and the patta

which has been obtained by the first respondent was not a valid

S.A.No.801 of 2008

one.

Additional Written Statement of the first defendant:

4.6. The first appellant had also filed an Additional written

statement, which was once again adopted by the other appellants

and respondents 2 to 4 herein, contending that the plaintiff had

not filed the suit for recovery of possession despite the fact that

he had stated that the appellants herein and respondents 2 to 4

had encroached into the suit property. Therefore, the suit was

barred by limitation.

4.6. The appellants had questioned the Court fee paid and

sought for dismissal of the above suit.

4.7. The appellants 1 and 2 had filed O.S.Nos.67 of 1997

and 68 of 1997 for declaration of the plaintiffs' possessory title to

the suit property and for a permanent injunction in both the

suits.

Trail Court:

5.1 The Trail Court originally framed the following issues in

S.A.No.801 of 2008

the above suit:

" 1. Whether the plaintiff and his ancestors were in possession and enjoyment over the suit properties and had perfected right and title over the suit properties ?

                  2.    Whether         the    plaintiff      is     in
           possession      and    enjoyment          of     the    suit
           property ?

3. Whether the plaintiff is entitled for the relief as prayed for ?

4. To what relief, the plaintiff is entitled ?

5.2. Additional issues were also framed which are detailed

hereinbelow:

                  1.Whether       the    defendants          are    in
            possession and enjoyment of the suit
            property ?
                  2. Whether the suit is barred by
            limitation ?

3. Whether the plaintiff is entitled for recovery of possession as alternative relief ?

S.A.No.801 of 2008

5.3. Considering the fact that the subject matter of the

suits and the parties were same, joint trail of the suits

O.S.Nos.67 and 68 of 1997 and O.S.No.167 of 1998 was ordered

on the basis of a memo.

5.4. The witnesses were examined and exhibits were

marked in O.S.No.67 of 1997. The first respondent was referred

to as the defendant and appellants 1 and 2 were referred to as

the plaintiffs. The first and second appellants had examined

themselves as P.W.1 and P.W.2 and examined Mahalingam,

Kamapillai and Gandhi as P.W.3, P.W.4 and P.W.5 and marked

Exs. A1 to A39. The respondent had examined himself as D.W.1

and had marked Exs.B1 to B8.

5.5. The Trail Court rendered a finding that none of the

plaintiffs have proved their case and therefore dismissed all the

three suits. Challenging the said judgment and decree, only the

respondent herein had filed A.S.No.112 of 2005 on the file of the

S.A.No.801 of 2008

Sub Court, Ginjee. The appellants 1 and 2 did not file any appeal,

as a result, the findings and the decision in their suits O.S.Nos.67

and 68 of 1997 respectively had attained finality.

Appellate Court

6.1. The learned Subordinate Judge had considered the

evidence on record, both oral and documentary as well as the

Advocate Commissioner's report and plan which had been

marked as Exs.C1 and C2 and returned a finding that the plaintiff

had proved possession and considering the evidence and the

Commissioner's report it was clear that the construction had

been put up only after the suit and therefore also decreed the

suit for the relief of recovery of possession.

6.2. Aggrieved by this reversing judgment and decree, the

appellants 1 to 3 alone have filed this Second Appeal and

defendants 2 to 4 have not challenged the judgment and decree

and therefore the same has attained finality insofar as they are

concerned.

S.A.No.801 of 2008

Submission:

7.1. Mr. P. Srinivas, learned counsel appearing on behalf of

the appellants would contend that that the Appellate Court has

failed to appreciate that the first respondent has not come

forward with a clear description of the property, subject matter of

the suit. It is his contention that the first respondent had come

forward with a case that the suit properties were vacant sites and

after the visit of the Advocate Commissioner he has amended the

plaint to include the relief of recovery of possession.

7.2. He would submit that the perusal of the Advocate

Commissioner's report would clearly demonstrate the existence

of appellants' house, which the Advocate Commissioner has

described as being very old, and which is stated to be situate in

the suit schedule property.

7.3. This would clearly show that the appellants are in

S.A.No.801 of 2008

possession of the property and the respondent is not in

possession of the same.

7.4. He would further submit that the first respondent has

come forward with a specific case that the property is a vacant

site however the Advocate Commissioner's report would demolish

this contention of the first respondent. It is his case that the

Appellate Court has not considered the evidence from its proper

perspective and this has resulted in an erroneous judgment.

7.5. Ms. Gayatri, learned counsel appearing on behalf of Mr.

P.B. Balaji, leaned counsel for the first respondent would contend

that the appellants cannot challenge the judgment and decree of

the Appellate Court since they have not filed any appeal.

challenging the dismissal of their suits, which was filed for

declaration and injunction.

7.6. She would further contend that the property in

question is a natham land. It is only the patta which is proof of

possession and being a natham land possession would

S.A.No.801 of 2008

presuppose title as natham lands are house sites in which the

person in possession is presumed to be the owner, unless there

is a contrary evidence. She would further argue that the first

respondent has produced the patta and kist receipts right from

the year 1958 which would clearly disprove the case of the

appellants that they are in possession of the suit property.

8. Heard the counsel and perused the records.

Discussion:

9.1. Admittedly the appellants have not challenged the

decree of the Trail Court which went against them. It is only the

first respondent herein who had filed an Appeal. The first

respondent had filed Ex.B1 which is the patta issued to the first

respondent as early as in the year 1992 which is prior to the

dispute coming into existence. He has also filed the kist receipts

standing in the name of his father which are of the years 1957

and 1958. After the demise of his father, he has filed the kist

receipts standing in his name. The Advocate Commissioner has

found the respondent being in possession of the property and the

S.A.No.801 of 2008

Appellate Court had relied on this report of the Advocate

Commissioner as one of the pieces of evidence to show that the

property is in possession of the first respondent.

9.2. The Appellate Court has also relied on the evidence to

come to the conclusion that the constructions/encroachments

were of a very recent origin and therefore the first respondent

was entitled to the relief of recovery of possession.

9.3. The appellants have not been able to disprove the

documents filed on the side of the first respondent. The Trail

Court has clearly opined that the documents filed on the side of

the appellants namely the house tax receipts do not indicate that

it relates to the suit property. On the other hand the first

respondent's documents are with reference to the suit survey

numbers. As already observed the suit property is a Natham

land, where ownership is determined by possession. The revenue

records are proof of such possession. The first respondent

having produced these documents, the Trial Court has rightly

come to the conclusion that the property belongs to the first

S.A.No.801 of 2008

respondent. Therefore, the substantial questions of law are

answered against the appellants and the Second Appeal stands

dismissed and the judgment and decree of the Subordinate

Court, Ginjee in A.S.No112 of 2005 is confirmed. Consequently

connected Petitions are closed. No costs.

25.06.2021 Index: Yes/no mrn

To

1. The Sub- Court, Gingee

2. The Additional District Munsif Court, Gingee.

S.A.No.801 of 2008

P.T.ASHA, J.

(mrn)

S.A.No.801 of 2008 and CMP.No.6354 of 2019 and MP.Nos.1 of 2008, 1 of 2010 and 1 of 2012

25.06.2021