Madras High Court
V. Rathinam vs Durairaj Alias Duraikannu on 8 October, 2021
S.A.No.862 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.10.2021
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.862 of 2011
1. V. Rathinam
2. Mani
3. Sankar
4. Ramalingam
5. Dhanabhakiyam (died)
6. Rukku Ammal
7. R. Ammani ...Appellants
7th appellant brought on record as LRs of the deceased
5th appellant, viz, Dhanabhakiyam, vide court order
dated 30.07.2021 made in CMP Nos.11755, 11756 &
11758 of 2021
Vs.
Durairaj alias Duraikannu ... Respondent
Prayer : Second Appeal filed under Section 100 of CPC, 1908 against the
decree and judgment dated 31.01.2011 passed in A.S. No.27 of 2010, on
the file of the Principal Sub Court, Tiruvannamalai, upholding the
decree and judgment dated 07.01.2010 passed in O.S. No.359 of 2006,
on the file of the Principal District Munsif Court, Tiruvannamalai.
Page 1 of 10
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S.A.No.862 of 2011
For A1, A3, A4, A6 & A7 : Mr. M. Aswin
For Respondent : Mr. R. Rajarajan
for Mr. G. Rajan
JUDGMENT
The appellants are the defendants in O.S.No.359 of 2006 on
the file of the Principal District Munsif, Thiruvannamalai, and appellants
in A.S.No.27 of 2010 on the file of the Principal Subordinate Judge,
Thiruvannamalai.
2.For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their ranking
in the present appeal would also be indicated.
3.The respondent/plaintiff filed a suit against the
appellants/defendants for a permanent injunction restraining them
(appellants/defendants) from interfering with his possession and
enjoyment of the suit property.
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S.A.No.862 of 2011
4. The case of the plaintiff was that the suit property situate in
Survey No.61/8C measuring 1820-1/4 of Melchettipattu Village,
Thiruvannamalai District, was his ancestral property and that in an oral
partition between him and his father the suit property was alloted to him.
His further contention was that he has been in possession and enjoyment
of the suit property and a patta dated 25.04.1992 (Ex.A1) was also issued
in his favour. It was his further contention that he has been paying
electricity consumption charges and house tax as evidenced by Ex.A4
and Ex.A5 receipts and that the defendants, who are in no way connected
with the suit property, were attempting to interfere with his peaceful and
possession enjoyment of the suit property.
5. The suit was resisted by the defendants on the following
grounds:
i. The suit property and the properties on the northern and western
portions bearing Survey No.44/8 of Melchettipattu Village,
Thiruvannamalai District, belonged to the first defendant's paternal
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S.A.No.862 of 2011
grand father Gopala Pillai and his two sons Pachaiyappa Pillai and
Varadhan @ Narayanasamy (father of the first defendant) and one
Chinnamaniammal (Daughter of Gopala Pillai).
ii. The first defendant's paternal grand father Gopala Pillai and his
two sons partitioned their ancestral properties through a registered
partition deed dated 26.09.1924 (Ex.B1), through which Survey
No.44/8 and several other properties were alloted to the share of
Gopala Pillai.
iii. The defendants, Gopala Pillai, Varadhan @ Narayanasamy Pillai
had dealt with the properties alloted to them by selling the same to
various persons through Ex.B2 to Ex.B10. However, they retained
six cents in Survey No.44/8, which is the present suit property.
iv. The plaintiff's father Renukonar was the maternal uncle of the first
defendant and since the plaintiff was not owning any house at
Melchettipattu Village, he was permitted to occupy a cow shed
which was constructed on the north western side of the suit
property.
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S.A.No.862 of 2011
v. The defendants were residing in Meppathurai Village from 1985 to
1995. However, they were in possession of the suit property by
storing cow dung and hayrick.
vi. The actual Survey Number of the suit property is 44/8B and that
the defendants are in possession of 0.06 acre in Survey No.44/8B.
Therefore, they prayed for dismissal of the suit.
6. The trial Court after framing appropriate issues and after full
contest decreed the suit filed by the respondent/plaintiff with costs vide
its decree and judgment dated 07.01.2010.
7. Aggrieved over the same, the defendants filed an appeal in
A.S.No. 27 of 2010 on the file of the Principal Sub Court,
Tiruvannamalai. The learned Principal Subordinate Judge, after
analysing the evidence on record upheld the findings recorded by the trial
court and dismissed the appeal vide decree and judgment dated
31.01.2011.
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S.A.No.862 of 2011
8. Now the present second appeal is filed by the defendants.
9. Notice of motion was ordered and after several
adjournments, the matter is posted today for final hearing.
10. At the outset, it may be observed that the plaintiff has filed
the suit only for a bare injunction based on his possession over the suit
property. According to the plaintiff, the patta (Ex.A1) in respect of the
suit property was issued in his favour and that he has been in possession
and enjoyment of the same by paying electricity consumption charges
and house tax. However the defendants contended that the suit property
is not actually situate in Survey No.61/8C as alleged by the plaintiff and
that it is situate only in survey No.44/8B. His further contention is that
the total extent of the property in Survey No.44/8B is one acre and out of
the same 94 cents were sold to various persons retaining the remaining
extent of 6 cents. The specific contention of the appellants/defendants is
that the plaintiff is only a permissive occupier of the suit property and
that too only in a cow shed that was constructed by the defendants in the
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S.A.No.862 of 2011
suit property.
11. Ex.A1 is the patta issued by Special Tahsildar in favour of
the plaintiff. Ex.A1, Ex.A4 and Ex.A5 shows that the plaintiff has been
in possession and enjoyment of the suit property. This is also admitted by
the first defendant in his evidence as D.W.1. Moreover, though D.W.1 in
his evidence had deposed that his father and his paternal uncle Gopala
Pillai sold 80 cents out of one acre in Survey No.44/8 and 14 cents by
him and his brother through Ex.B4 & Ex.B5, admitted that in none of the
sale deeds it is mentioned that how they became entitled to Survey
No.44/8. He could not also produce any documentary evidence to show
that after resurvey, Survey No.44/8 was renumbered as Survey No.61/8C.
At this juncture, it is seen from Ex.A1 that the patta was given to the
plaintiff with specific boundary description. Though the defendants
contend that the plaintiff is a permissive occupier of the suit property, did
not adduce evidence to substantiate the same. In fact, both the trial court
and the first appellate court had gone into this aspect in extenso and had
given a specific finding that the plaintiff is not a permissive occupier of
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S.A.No.862 of 2011
the suit property as alleged by the defendants. The first defendant also
admitted during the course of cross examination that he did not issue any
notice to the plaintiff to vacate the suit property. It is also relevant to
point out that the defendants also did not take steps to cancel the patta
Ex.A1 issued in favour of the plaintiff. Moreover, the first defendant also
admitted in his evidence that the plaintiff has been in possession of the
suit property for more than 15 years. In the circumstances, both the
courts below had rightly held that the plaintiff is entitled for a permanent
injunction as prayed for by him.
12. Mr. M. Aswin, learned counsel appearing for the appellants
pressed into service the proceedings of Revenue Divisional Officer dated
03.08.2016 to show that a patta was wrongly issued to the plaintiff. This
particular document has not been filed along with a petition to receive
additional documents. However, nothing was decided in the said
proceedings as regards the Survey No.61/8C (suit property) since the
present Second Appeal is pending. Since both the courts below had
rightly and concurrently held that the plaintiff is in possession of the suit
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S.A.No.862 of 2011
property, I do not find any reason to upset the findings recorded by both
the courts below. Hence, the second appeal deserves to be dismissed.
In fact, I do not find any substantial question of law involved in the
present Second Appeal.
13. In the result,
i. the second appeal is dismissed. There shall be no
order as to costs.
ii. the decree and judgment dated 31.01.2011 passed in
A.S. No.27 of 2010, on the file of the Principal
Subordinate Judge, Tiruvannamalai, and the decree
and judgment dated 07.01.2010 passed in O.S. No.359
of 2006, on the file of the Principal District Munsif,
Tiruvannamalai, are upheld.
08.10.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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S.A.No.862 of 2011
R. HEMALATHA, J.
bga
To
1. The Principal Subordinate Judge, Tiruvannamalai,
2. The Principal District Munsif, Tiruvannamalai
3. The Section Officer, VR Section, High Court, Madras
S.A.No.862 of 2011
08.10.2021
https://www.mhc.tn.gov.in/judis/
