Madras High Court
Adimoolam vs The Commissioner on 11 April, 2022
S.A.Nos. 262 & 263 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.04.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. Nos.262 & 263 of 2022
and C.M.P. Nos.5411 & 5416 of 2022
S.A. No.262 of 2022
and C.M.P. Nos.5411 of 2022
Adimoolam .. Appellant
Vs.
1. The Commissioner,
Arakkonam Municipality,
Arakkonam.
2. Mohanarangam
3. Manoharan
4. Loganathan
5. Chockkammal
6. Govindan
7. Srinivasan .. Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, to set aside the judgment and decree of learned Subordinate Court,
Arakkonam, in A.S. Nos.41 of 2015 dated 07.03.2019, upholding the title of
the 1st respondent of the suit property by reversing the judgment and decree
of the District Munsif, Arakkonam, in O.S. No.289 of 1986 dated
28.11.2014 and decree the suit.
For Appellant : Mr. J.Shanmuga Sundara Babu
For Respondent -1: Mr. P.Harish,
Government Advocate (C.S.)
https://www.mhc.tn.gov.in/judis
S.A.Nos. 262 & 263 of 2022
S.A. No.263 of 2022
and C.M.P. Nos.5416 of 2022
Adimoolam .. Appellant
Vs.
1. The Commissioner,
Arakkonam Municipality,
Arakkonam.
2. Mohanarangam
3. Manoharan
4. Loganathan
5. Chockkammal
6. Govindan
7. Srinivasan .. Respondents
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, to set aside the judgment and decree of learned Subordinate Court,
Arakkonam, in A.S. Nos.15 of 2015 dated 07.03.2019, confirming the
judgment and decree of the District Munsif, Arakkonam, in O.S. No.289 of
1986 dated 28.11.2014 and decree the suit.
For Appellant : Mr. J.Shanmuga Sundara Babu
For Respondent -1: Mr. P.Harish,
Government Advocate (C.S.)
COMMON JUDGMENT
Second Appeal in S.A. No.262 of 2021 is filed against the judgment
and decree of Sub-Court, Arakkonam in A.S. No.41 of 2013 reversing the
judgment and decree of District Munsif Court, Arakkonam in O.S. No.289 of
1986 in so far as the property in which the first respondent claim right.
https://www.mhc.tn.gov.in/judis
S.A.Nos. 262 & 263 of 2022
Second Appeal in S.A. No.263 of 2022 is directed against the judgment and
decree of Sub Court, Arakkonam, in A.S. No.15 of 2015 confirming the
judgment and decree of District Munsif Court, Arakkonam, in O.S. No.289
of 1986 dismissing the suit filed by the appellant.
2. The appellant in both the appeals is the second plaintiff in the suit
in O.S.No.289 of 1986 before the District Munsif Court, Arakkonam. The
suit is originally filed by the appellant and his mother who was the first
plaintiff. Since the appellant's mother died during pendency of the suit, the
appellant / second plaintiff became the sole plaintiff to prosecute the suit
further. The first respondent is the Commissioner, Arakkonam Municipality,
and other respondents are third parties and the legal heirs of second
defendant in the suit.
3. The appellant filed the suit in O.S. No.289 of 1986, for permanent
injunction restraining the defendants and their men from in any way
interfering with the appellant's peaceful possession and enjoyment of the suit
property. It is the case of the appellant in the plaint that the suit property is
the Government Poromboke land in which the mother of appellant
constructed a hut about sixty years back and that the plaintiff is in
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S.A.Nos. 262 & 263 of 2022
continuous enjoyment of the hut by paying house tax to the first defendant.
Stating that the plaintiffs are in open, continuous and uninterrupted peaceful
possession of the property for more than the statutory period, it is contended
by the appellant that the plaintiff have perfected title by way of adverse
possession even against the Government. It is also stated in the plaint that the
first respondent has admitted the appellant's enjoyment by issuing demand
notice for property tax and house tax in respect of the house put up by the
plaintiff.
4. The suit was contested by the first respondent by denying the
averments made in the plaint. Since the appellant was paying penal charges
to the Government ( 'B' memo charges), it is contended by the first
respondent that the case of appellant is unsustainable. It is contended by the
first respondent that the suit property is a part of Mayana Poromboke which
belonged to the Government and in turn vested with the first respondent. It is
stated that the suit property is required for public purpose as burial ground
and that action was initiated to remove the encroachment from Mayana
Poromboke. The suit which was filed to stall the proceedings initiated by the
first respondent for removal of encroachment is not sustainable. The second
respondent is a third party who filed the written statement making similar
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S.A.Nos. 262 & 263 of 2022
claim as it was pleaded by the appellant. However, it is stated by the second
defendant that portion of the property was purchased by the second
defendant's wife and contended that the first defendant is trying to remove
the hut in the suit property which is the property of second defendant. It is to
be noted that the other defendants also filed written statement claiming
certain rights on the basis of few transactions.
5. Before the trial Court, the appellant marked Exs.A1 to A21 apart
from examining P.W.1 to P.W.6. The documents filed by the appellants are
the demand for property tax and notices issued by statutory authorities. No
document of title is relied upon or produced by the appellant. Since the
plaintiffs have not proved that they have prescribed title by adverse
possession or that the suit property is in the exclusive possession and
enjoyment of the appellant, the trial Court dismissed the suit. Though some
of the defendants who raised plea about their possession and enjoyment were
not proved by any material evidence, the trial Court also found that the case
of defendants have not been proved by them. Though defendants 4 to 6 filed
a written statement stating that the suit property is their patta land, the trial
Court held that defendants 4 to 6 have no right in another suit in O.S.
No.345 of 1989.
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S.A.Nos. 262 & 263 of 2022
6. Aggrieved by the judgment and decree of the trial Court, the
appellant preferred an appeal in A.S. No.15 of 2015 before the Sub Court,
Arakkonam. Similarly the Arakkonam Municipality namely the first
defendant in the suit in O.S. No.289 of 1986 preferred an appeal in A.S.
No.41 of 2015 challenging the findings of trial Court. The learned
Subordinate Judge, Arakkonam dismissed the appeal filed by the appellant in
A.S. No.15 of 2015 and allowed the appeal filed by the first respondent in
A.S. No.41 of 2015. Aggrieved by the common judgment of the lower
appellate Court, the appellant has preferred the S.A. No.263 of 2022 as
against the judgment and decree in A.S. No.15 of 2015 and S.A. No.262 of
2022 as against the judgment and decree in A.S. No.41 of 2015.
7. In the memorandum of grounds of appeal in S.A. No.262 of 2022,
the appellant has raised the following substantial questions of law:
“1) Whether the learned first appellate Court is right in holding that
the suit property is in mayanam poromboku (bury ground) in absence of
documentary evidence ?
2) Whether the learned first appellate Court is right in holding that
the suit property in mayanam poromboku (bury ground) which belongs to
the first respondent ?
3) Whether the learned first appellate Court is right in holding that
the suit property is mayanam poromboku (bury ground) which not taking
note of the exhibits C1 and C2 ?”
https://www.mhc.tn.gov.in/judis
S.A.Nos. 262 & 263 of 2022
In the memorandum of grounds of appeal in S.A. No.263 of 2022, the
appellant has raised the following substantial questions of law:
“ 1) Whether Courts below are right in holding that the plaintiff has
not proved the possession of the suit property without taking note of Exs. A1
to A6, A17, A7, A8, A10 and A11?
2) Whether the Courts below are right in holding that the suit
property in mayanam poromboku (bury ground) which is in survey No.110/1
whereas the suit property is comprised 231/2?
3) Whether the Courts below are right in holding that the advocate
commissioner cannot be relayed upon without assign any reasons ?”
8. This Court has carefully considered the pleadings of the respective
parties particularly the appellant and the first respondent in the plaint and
written statement filed in the suit. It is admitted by the appellant that he is
not the owner of the suit property. The specific case of the plaintiff is that the
suit property is a Poromboke land belonged to Government and that the
plaintiffs, by their enjoyment of more than sixty years, have prescribed title
by adverse possession. Having pleaded title against the Government by
adverse possession, the plaintiffs have failed to prove their case by cogent
evidence. As a matter of fact, both the Courts have concurrently held that the
plaintiffs have not even established their possession as it was contended by
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S.A.Nos. 262 & 263 of 2022
the appellant. The appellant himself admitted in the plaint that the
Government has recognised the appellant's possession. To prove his
enjoyment as an encroacher, the plaintiffs have specifically pleaded that the
appellant had paid 'B' memo charges to the Government. A few documents
were also filed by the appellant to show that the appellant paid 'B' memo
charges to the Government. The appellant himself admit that the he has been
paying penal charges for encroachment and hence estopped from setting up
title as against the Government by pleading that he has prescribed title by
adverse possession. The payment of 'B' memo charges would certainly
indicate that the appellant has admitted his possession as an encroacher. The
payment of 'B' memo charges would only mean that the appellant has
admitted paramount title of Government and that he is an encroacher.
9. In the present case, the case of the first respondent is that the suit
property vest with the local body as a burial ground. There is no evidence to
show that the suit property is being enjoyed as a burial ground and
maintained by the first respondent. It is not necessary for this Court to go
into the issue whether the first defendant has established his right to the
property. The first defendant is the local body and entitled to hold the
property in trust for the benefit of public if the property vest with them for
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S.A.Nos. 262 & 263 of 2022
the maintenance of property for public purpose. The Courts below have
concurrently held that the second plaintiff / appellant had failed to establish
either title or possession. In such circumstances, this Court has no reason to
interfere with the findings of the Courts below.
10. It is to be noted that the appeal in A.S. No.41 of 2015 had been
filed by the first respondent before the Sub Court, Arakkonam as against the
findings of the trial Court. It is well settled that an appeal does not lie as
against men findings on facts. Therefore, it is not necessary for the first
respondent to file an appeal as against the judgment and decree of the trial
Court dismissing the suit. The lower appellate Court has rendered a finding
in favour of the first respondent in the independent appeal in A.S. No.41 of
2015 filed by the first respondent. However, the plaintiff who has failed to
establish his title and enjoyment has no locus standi to file any appeal as
against the judgment and decree in A.S. No.41 of 2015.
11. Having regard to the findings of fact that the suit property is not
the property of appellant and it is a land belonged to Government or vested in
the local body, this Court finds no merits in the appeals. The suit property is
stated to be a property reserved as a burial ground. If it is so, the first
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S.A.Nos. 262 & 263 of 2022
respondent in the appeal as local body is entitled to hold and maintain the
property as such for the benefit of public.
12. In view of the findings on facts, this Court is unable to appreciate
any of the substantial questions of law raised in the above appeals. In fine,
the Second Appeals are dismissed as devoid of merits. Consequently,
connected miscellaneous petitions are closed.
11.04.2022
bkn
Index: Yes / No
Speaking order / Non-speaking order
To:
1. The Subordinate Judge, Arakkonam.
2. The District Munsif, Arakkonam.
https://www.mhc.tn.gov.in/judis
S.A.Nos. 262 & 263 of 2022
S.S.SUNDAR, J.,
bkn
S.A. Nos.262 & 263 of 2022
11.04.2022
https://www.mhc.tn.gov.in/judis
