Madras High Court
Vijayam Pillai (Deceased) vs Ramakrishna High School on 1 March, 2021
S.A.No.53 of 1999
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.53 of 1999
1. Vijayam Pillai (Deceased)
2. Rajeswari
3.Rajendran
4.Rajalakshmi
5.Kalaiselvi
6.Sakthivel
7.Arul
[Appellants 3 to 7 brought on record
as LRs of the deceased 1st appellant
vide order of Court dated 18.07.2012
made in C.M.P.No.228/2009 in S.A.No.53/1999] ... Appellants
.. Vs ..
Ramakrishna High School,Kothandapuram
Represented by its Secretary and
Correspondent Venkataparthasarathy ....Respondent
Prayer :- Appeal filed under Section 100 of the Civil Procedure Code
against the Decree and Judgment dated 18.04.1996 made in A.S.No.61
of 1995 on the file of the Additional Sub Judge, Mayiladuthurai
confirming the Decree and Judgment dated 13.03.1995 made in
O.S.No.395 of 1990 on the file of the District Munsif,Sirkali.
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For Appellant : Mr.S.Sounthar
For Respondent : No appearance
-----
JUDGMENT
None appeared for the respondent and hence, the respondent is
set ex-parte.
2. The respondent/plaintiff has filed the suit for injunction
restraining the appellant/defendant from altering physical features of
the suit property on the ground that the defendant/appellant is the
tenant and the eviction proceedings are pending.
3. In the written statement, the appellant/defendant denied
the ownership and title of the respondent in respect of the suit
property and also denied the tenancy and stated inter-alia that the 'B'
schedule property is a part of 'A' schedule property, which is in this
joint land and hence, the tenant being in possession of the property is
deemed to be the owner of the property and relied upon Ex.B1 patta.
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4. Before the trial Court, on behalf of the plaintiff P.W.1 was
examined and Exs.P1 to P18 were marked. On the side of the
defendant, D.W.1 and D.W.2 were examined and Exs.B1 to B24 were
marked and Exs.C1 and C2 are the Commissioner's Report and Sketch.
After trial, the suit was decreed and the appeal was dismissed and
hence, the Second Appeal.
5. The above Second Appeal was admitted on 28.01.1999 on the
following Substantial Questions of Law.
(a) Whether the respondent can claim
right over the suit property, which is a natham
Jari land in possession of appellant, in the
absence of any evidence to show that his right
was recognized by the Government? Whether
the appellant is deemed to be owner of the suit
property in view of his possession over suit
natham Jari property?
(b) Whether suit for bare injunction is
maintainable in the absence of prayer for
declaration especially when the
respondent/plaintiff's right over the suit
property is specifically denied by the
appellant/defendant?
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6. Mr.S.Sounthar, learned counsel for the appellant/defendant
could contend that in the absence of any document to show that the
respondent/plaintiff is the owner of the property especially when the
defendant/appellant denied title and ownership of the
respondent/plaintiff in the written statement as well as in the
evidence. The trial Court has committed error and made submissions
in support of the Substantial Question of Law No.II.
7. Furthermore, the finding rendered by the trial Court that the
respondent/plaintiff is the owner of the property is also against the
appreciation of the evidence and thereby, made submission in support
of the Substantial Question of Law No.I.
8. It is seen from the records that the suit 'A' schedule property
is a larger extent measuring 20 cents. While, 'B' schedule property is
measuring 10 cents and 'B' schedule property is a small portion of the
'A' schedule property. It is a specific pleading of the
respondent/plaintiff that on 10.04.1979 there was an oral agreement,
based upon which, the appellant/defendant was put in possession and
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in support thereof, they have filed documents Exs.A1 to A8 and the
defendant entered into the witness box and marked Ex.B1 certified
copy of Tahsildar proceedings, dated 14.06.1990 to show that he is in
possession of the property on his own right. However, the said order of
the Tahsildar under Ex.B1 was cancelled in the proceedings of the Sub-
Tahsildar and R.D.O in Ex.A3, Ex.A4 and Ex.A18 and hence, both the
Courts below has rightly come to the conclusion that Ex.A3 would
substantiated the plea of the defendant.
9. After going through the Ex.B1 in connection with Ex.A3, Ex.A4
and Ex.A18, I find that the said finding does not suffer from any
illegality or irregularity, warranting interference.
10. Under Ex.A1 Settlement Deed, the enjoyment was created in
favour of the respondent/plaintiff coupled with Ex.B3, Ex.B4 and
Ex.B18. Both the Courts below has rightly comes to the conclusion that
the respondent/plaintiff has right and title over the property as
against the appellant/defendant. Furthermore, the electricity
connection service in the name of the respondent/plaintiff in Ex.A6. In
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the cross examination, D.W.1 has categorically admitted that the
service connections are standing in the name of the
respondent/plaintiff and continued to enjoy the same and hence, in
view of the admission of D.W.1 coupled with Exs.A7, A8 and A5, the
lower Appellate Court has rendered a specific finding that the
appellant/defendant is only a tenant, under respondent/plaintiff and
in the absence of any positive evidence to substantiate the case of the
defendant, the lower Appellate Court is right in holding so.
11. In view of the specific finding rendered in the previous
paragraph, on a combine reading of Exs.A1, A2, A3, A4, A5, A6, A7 and
A8,the finding rendered by the both Courts below that the plaintiff
has better title over the suit property as against the defendant and
coupled with the admission of the defendant as D.W.1 in the witness
box that the electricity connections are standing in the name of the
respondent/plaintiff only and hence, both the Courts below have
correctly come to the conclusion that the respondent/plaintiff got the
better title and the defendant is a tenant and therefore, the
Substantial Question of Law does not arise for ascertaining on the
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point of first Substantial Question of Law.
12. In view of the documentary evidence discussed supra and
also coupled with the statement of the respondent/plaintiff, in Exs.A7
to A17, which are maintained in the regular course of business and in
the absence of any positive evidence in favour of the
defendant/appellant, I find that the finding rendered by the trial
Court that the defendant/appellant shall not alter the physical feature
of the suit property is well created and well merited and does not
warrant any interference. Hence, both the Substantial Questions of
Law are held against the appellant.
13. In the result, this Second Appeal is dismissed. No costs.
01.03.2021
nvi
Index : Yes / No
Internet : Yes
To
1. The Additional Sub Judge, Mayiladuthurai
2. The District Munsif,Sirkali.
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RMT.TEEKAA RAMAN,J.,
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01.03.2021
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