Madras High Court
Ashim Basha … vs The Special Commissioner on 30 November, 2021
S.A.No.1012 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :30.11.2021
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.1012 of 2021
Ashim Basha …Appellant
Vs.
1.The Special Commissioner
Madhavaram Milk Production &
Dairy Development Corporation
Madhavaram.
2.The Estate Officer,
Madhavaram Milk Production &
Dairy Development Corporation
Madhavaram. ...Respondents
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree of the learned Subordinate
Judge, Ponneri, Thiruvallur District, in A.S.No.61 of 2014 dated 16.04.2019
confirming the judgment and decree of the learned District Munsif,
Thiruvotriyur, Thiruvallur District in O.S.No.184 of 2004 dated 30.08.2011.
For Appellant : Mr.S.Nambirajan
1/11
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S.A.No.1012 of 2021
JUDGMENT
This Second Appeal is directed against the judgment of the
learned Subordinate Judge, Ponneri, Thiruvallur District in A.S.No.61 of
2014 confirming the judgment of the learned District Munsif, Thiruvotriyur in
O.S.No.184 of 2004.
2. Appellant/plaintiff filed the suit seeking the relief of
permanent injunction against the respondents, restraining the respondents,
their men, agents, servants or any authority from forcibly occupying and
putting up construction in the suit properties thereby interfering with the
possession of the plaintiff and for costs.
3. The case of the appellant/plaintiff is that the suit property
originally belongs to Aathma Rao Chettiar. He had 1.00acre in survey No.995
part at Madhavaram Village, Ambattur taluk. The southern western portion of
0.55acres is in possession and enjoyment of Retart Laboratory Company and
a portion of property measuring 0.03.0ars was taken by the Government for
laying Madavaram Milk Colony Road. The remaining extent immediately to
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S.A.No.1012 of 2021
the West of Madhavaram Milk Colony Road was occupied by various persons
together with plaintiff's ancestors for decades. The suit property was occupied
by the plaintiff and his predecessors and they put up a hut with brick built
wall. Sottima Bi, wife of the plaintiff executed a settlement deed dated
04.07.2002 and settled the suit property in favour of the plaintiff. Plaintiff is
in absolute possession and enjoyment of the suit property by paying tax. He
has voters identity card and ration card in the suit property. Defendants have
no right in the suit property. In the third week of December 2003, the
defendants threatened to interfere with possession of the plaintiff. Therefore,
the suit was filed for the reliefs aforesaid.
4. Respondents/Defendants filed written statement, denying and
disputing the claim of the appellant/plaintiff. The claim that the appellant is
residing in the suit property is not true. The encroachments in survey
No.995/2 were removed on 17.10.2003 by the Tahsildar and the suit property
was handed over to the Government. The claim that suit property belongs to
Aathma Rao Chettiyar is not true. An extent of 0.14.0hectare in survey
No.995/2 was handed over to Dairy Development Corporation 40 years back.
This land was acquired from Mohammed Yahiya Sahib as per award No.12
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S.A.No.1012 of 2021
dated 14.12.1957 and was alloted to Madras Dairy and Milk Project. The
Madras Dairy and Milk project is in possession of this suit property from
1957. There are entries in the revenue records to show that this property
stands in the name of Dairy Development Department. The execution of
settlement deed by Sottima Bi, in favour of the appellant without any prior
title to the suit property is not acceptable and it is not legal and valid. One
Raja filed Writ Petition No.14198/1997 claiming right in the suit property and
the Writ Petition was dismissed confirming the title of the respondent.
Similarly, Writ Petition filed by one Syed in W.P.No.29767/2003 was also
dismissed. This is speculative suit filed without any basis and therefore, suit is
liable to be dismissed.
5. On the basis of the above pleadings, Trial Court framed the
following issues:
i)Whether the plaintiff is entitled for the relief of permanent
injunction?
ii)to what other reliefs, plaintiff is entitled?
6. During the trial, PW1 was examined and Exhibit A1 to A6 were
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S.A.No.1012 of 2021
marked on the side of the plaintiff. DW1 was examined and Exhibit B1 to
B11 were marked. On considering the oral and documentary evidence, the
learned Trial Judge found that there is no evidence produced by the appellant
to show that suit property originally belongs to Aathma Rao Chettiyar; the
plaintiff and his predecessors had been in possession and enjoyment of the
suit property for decades; that appellant's wife has right to settle the suit
property in favour of her husband. Finally, it was found that the appellant was
not in possession of the suit property on the date of filing the suit. In this view
of the matter, suit was dismissed. Appellant/plaintiff filed appeal against the
judgment of the Trial Court. The learned Appellate Judge also found no
reason to interfere with the judgment of the Trial Court, confirmed the
judgment of the Trial Court and dismissed the appeal. Challenging the said
dismissal of first appeal, this Second Appeal is preferred.
7. The learned counsel for the appellant submitted that appellant
has produced documents to show that appellant has title and possession to the
suit property. There are sub divisions in the suit property. There are sub
divisions in survey No.995/2. Respondents are Government agencies and
therefore, they are able to create documents in support of the respondents'
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S.A.No.1012 of 2021
case. The documents produced by the appellant proved that appellant was in
possession and enjoyment of the suit property. Without considering these
aspects, both the Courts below have wrongly dismissed the suit. Therefore, he
prayed for entertaining this Second Appeal and set aside the judgment of the
Court below.
8. Considered submissions of the learned counsel for the appellant
and perused the records.
9. The perusal of the judgment of the Trial Court shows that
appellant had produced Exhibit A1 to A6 documents. Exhibit A1 is the copy
of the settlement register of Madhavaram Village. Exhibit A2 is the copy of
the settlement deed executed by his wife in his favour and Exhibit A3 is the
surveyor's survey. Exhibit A4 is property tax receipt, Exhibit A5 is voter's list
and Exhibit A6 is the chitta. All these documents relate to the period from
2000 to 2002. This suit was filed in 2004. Respondents produced Exhibits B1
to B11 documents. Respondents also produced revenue records especially
Exhibit B4 settlement register copy, Exhibit B6 encumbrance certificate,
chitta and other records. As a dominus litigant, the appellant is excepted to
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S.A.No.1012 of 2021
prove his case on its own set of pleadings and evidence. It is claimed by the
appellant in the plaint that suit property was originally belonged to Aathma
Rao Chettiyar and it came to be enjoyed by the appellant and his
predecessors. Then, his wife Sottima Bi executed settlement deed in respect
of the suit property in his favour. It is found from evidence that appellant has
not produced any material to show that the suit property belonged to Aathma
Rao Chettiyar and that the appellant and his predecessors has been in
possession and enjoyment of suit property for decades. As already stated, the
documents filed by the appellant relate only to the period 2000 to 2002.
Appellant has not even filed documents to show that on the date of filing the
suit, appellant was in possession and enjoyment of the suit property. The
Courts below, especially the Trial Court has found from evidence that
appellant was not in possession and enjoyment of the suit property on the date
of filing the suit. Therefore, this Court is of the considered view that the
appellant on his own pleadings and evidence has failed to establish his claim
of title and possession in respect of the suit property.
10. When it is claimed by the appellant that his wife executed
settlement deed dated 04.07.2002 in his favour, there is no evidence to show
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S.A.No.1012 of 2021
how his wife was entitled to this property. In the absence of any title deed in
the name of appellant's wife Sottima Bi, the settlement deed dated 04.07.2002
executed by her in respect of the suit property in favour of the appellant will
have no legal validity. On the other hand, it is specifically claimed by the
respondents that the suit property was acquired by the Government from
Mohammed Yahiya Sahib as per award No.12 dated 14.12.1957 and handed
over to Madras Diary and Milk Project and is in possession and enjoyment of
this department from 1957. Revenue records produced by the respondent
support this claim. Thus, from the oral and documentary evidence produced
in this case, both the Courts below have concurrently found that appellant has
not established the claim of title to the suit property and possession on the
date of filing of the suit property. Therefore, the suit was dismissed.
11. Thus, this Court finds no reason to interfere with the judgment
and decree of the Appellate Court confirming the judgment and decree of the
Trial Court. There is no substantial question(s) of law arise for consideration
in this Second Appeal. In this view of the matter, the judgment and decree of
the learned Subordinate Judge, Ponneri, in A.S.No.61 of 2014 confirming the
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S.A.No.1012 of 2021
judgment and decree of the learned District Munsif, Thiruvotriyur in
O.S.No.184 of 2004 is confirmed.
12. In fine, this Second Appeal is dismissed. No costs.
30.11.2021
ep
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
The Section Officer,
VR Section,
High Court of Madras.
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S.A.No.1012 of 2021
G.CHANDRASEKHARAN.J,
ep
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S.A.No.1012 of 2021
S.A.No.1012 of 2021
30.11.2021
https://www.mhc.tn.gov.in/judis
