Madras High Court
K.Krishnasamy vs The District Collector on 4 April, 2022
S.A.No. 78 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.04.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.78 of 2022
K.Krishnasamy .. Appellant
Vs.
1. The District Collector,
Collectorate,
Gundusalai Road,
Cuddalore.
2. The Revenue Divisional Officer,
Revenue Division Office,
Sub Jail Road,
Manjakuppam,
Cuddalore.
3. The Tahsildar,
Taluk Office,
Kurinjipadi & Taluk,
Cuddalore District. .. Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, against the decree and judgment made in A.S. No.10 of 2017 dated
19.02.2020, on the file of the Principal Sub Court, Cuddalore, Cuddalore
District, confirming the judgment and decree as made in O.S. No.289 of
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S.A.No. 78 of 2022
2015 dated 15.11.2016 on the file of the Principal District Munsif Court,
Cuddalore.
For Appellant : Ms. Moneshaa
For Respondents : Mr. P.Harish
Government Advocate (C.S.)
JUDGMENT
The plaintiff in the suit in O.S. No.289 of 2015 on the file of District
Munsif Court, Cuddalore is the appellant in the above second appeal. The
appellant filed the suit in O.S. No.289 of 2015 for permanent injunction
restraining the defendants and their men from interfering with the possession
and enjoyment of the plaintiff over the suit property. The suit property is
described as an extent of 60 cents in Survey No.69/5 in Rasakuppam
Village, Kurinjpadi Taluk. The respondents are the District Collector and
other Revenue Officials of Cuddalore District.
2. The case of the appellant in the plaint is that the suit property is in
the enjoyment of appellant and his predecessors in interest for more than 70
years and that the appellant is having lands adjacent to the suit property.
Stating that the appellant has prescribed title by adverse possession over the
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S.A.No. 78 of 2022
suit property, the suit is filed for permanent injunction. Though the
defendants did not filed any written statement, the trial Court, on the basis of
admission of plaintiff, dismissed the suit holding that the plaintiff has not
produced any piece of evidence to show that he is in possession of the
property. Since the trial Court held that the plaintiff has not even proved the
possession, the suit was dismissed.
3. Aggrieved by the judgment and decree, the appellant preferred an
appeal in A.S. No.10 of 2020 before the Principal Sub Court, Cuddalore.
The lower appellate Court, after going through the records, found that the
appellant has not produced any record to show his possession on the date of
filing of the suit. Since it is admitted that the suit property belonged to
Government and the plaintiff has only prayed for injunction, the lower
appellate Court held that the appellant is not entitled to the relief of
permanent injunction without the relief of declaration of title and dismissed
the appeal.
4. Aggrieved by the concurrent findings of the Courts below the
plaintiff has preferred the above appeal by raising the following substantial
questions of law in the memorandum of grounds of appeal:
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S.A.No. 78 of 2022
“ a) Whether the Court was right in holding that no document has
been filed by the appellant to prove possession while the appellant has
produced kist receipt which was marked as Ex.A5?
b) Whether the Court was right in holding that the appellant was not
in possession of the suit property disregarding Ex.A5 when there was no
contrary evidence to disprove the possession of the appellant ?
c) Whether the Court was right in holding that the appellant has
failed to establish possession, when a factual finding has been rendered that
the suit property lies landlocked between the properties belonging to the
appellant ?
d) Whether the Court below was right in rejecting the suit for
injunction on the ground that the appellant has not claimed declaration of
title even by adverse possession when the appellant is entitled to maintain a
suit for bare injunction even against the true owner of the property ?”
5. Learned counsel for the appellant submitted that the appellant is in
possession as evident from the documents. Therefore, he submitted that the
Courts below are erroneous in holding that the appellant has not produced
any document to prove his possession. The learned counsel has also
submitted that the suit property lies in between the land belonged to the
appellant and that therefore the plaintiff may also offer alternative lands
even if it held that the suit property is a Government poromboke land.
6. The suit property admittedly belongs to Government. Though the
suit is not for declaration of title, the relief for permanent injunction is on the
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S.A.No. 78 of 2022
basis that the plaintiff has prescribed title to the property by adverse
possession. Strangely, no document is produced to show that plaintiff /
appellant was continuously in possession for more than the statutory period
and that his possession is hostile to the respondents. From the documents
filed, the appellant admitted has he has paid 'B' memo charges to the
Government. Even in the plaint, the appellant admit that he has been paying
'B' memo charges to the Government. When the plaintiff states that he has
been regularly paying penal charges for his unlawful possession, the plaintiff
cannot set up title by adverse possession as his possession is by admitting
the title of Government. Therefore this Court is unable to find any
irregularity in the findings of the Courts below that the plaintiff is not
entitled to any relief as against the respondents. Suit for permanent
injunction is not maintainable against true owner.
7. In view of the concurrent findings on fact, this Court finds no
substance in any of the substantial question of law raised by the appellant.
Accordingly, the second appeal is dismissed.
04.04.2022
bkn
Index: Yes / No
Speaking order / Non-speaking order
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S.A.No. 78 of 2022
S.S.SUNDAR, J.,
bkn
To:
1. The Principal Sub Judge, Cuddalore.
2. The Principal District Munsif, Cuddalore.
S.A. No.78 of 2022
04.04.2022
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