Madras High Court
S.Kandasamy vs Karuppan on 18 April, 2022
S.A.No.215 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.04.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.215 of 2022
and C.M.P. No.4226 of 2022
S.Kandasamy .. Appellant
Vs.
1. Karuppan
2. Kullaiyan
3. Palanisamy
4. Thangavel
5. State of Tamilnadu,
Represented by its District Collector,
Erode Collector Office,
Perundurai Road, Erode – 11.
6. The Tahsildar,
Erode Taluk,
Taluk Office, Erode – 1.
7. The Executive Officer,
Nasianoor Town Panchayat,
Nasianoor Erode Taluk.
8. Nachammal
9. Maran
10. Subramani
11. Palanal
12. Nagammal
13. Deivanai
14. Padmavathi
15. Anbu .. Respondents
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S.A.No.215 of 2022
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, as against the judgment and decree dated 27.02.2020 made in A.S.
No.23 of 2017 on the file of Principal Subordinate Judge, Erode confirming
the judgment and decree dated 17.02.2017 made in O.S. No.272 of 2013 on
the file of I Additional District Munsif, Erode.
For Appellant : Mr. M.V.Venkataseshan
JUDGMENT
The appellant is the plaintiff in the suit in O.S. No.272 of 2013 on the
file of I Additional District Munsif, Erode. The appellant filed the suit in
O.S.No.272 of 2013 for declaration of his title in respect of suit 'A' schedule
property and for consequential injunction restraining the defendants 1 to 5 in
any manner from interfering with the plaintiff's peaceful possession and
enjoyment of the suit 'A' schedule property. The prayer is also for permanent
injunction restraining defendants 1 to 5 in any manner from interfering with
his peaceful enjoyment of suit 'B' schedule property so as to reach suit 'A'
schedule property.
2. The case of the appellant in the plaint is that the suit property
belonged to the plaintiff absolutely. The suit 'A' schedule property is
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S.A.No.215 of 2022
described as an extent of 0.37.0 Hectare in Survey No.432/7. It is admitted
by the appellant that suit 'B' schedule forms part of suit 'A' schedule
property. It is the specific case of the plaintiff that he had no access to reach
his land in suit 'A' schedule except the memool cart tract namely the property
described as 'B' schedule. It is contended by the appellant that the defendants
have no right to interfere with the plaintiff's peaceful possession and that the
suit 'B' schedule property is used by the plaintiff / appellant as mamool cart
track for the convenient enjoyment of suit 'A' schedule property. In other
words, it is stated that the plaintiff has no access to suit 'A' schedule property
without suit 'B' schedule property.
3. The suit was contested by the defendants 1 to 5 disputing the very
existence of suit pathway or cart track as described in suit 'B' schedule.
4. The trial Court after considering the entire evidence and pleadings,
came to conclusion that the plaintiff has not proved that the suit 'A' schedule
property is the absolute property of plaintiff and that the property which is
classified as poromboke has been encroached by plaintiff. Before the trial
Court, an Advocate Commissioner was appointed and the Advocate
Commissioner submitted a report. It was held by the trial Court that there is
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S.A.No.215 of 2022
no indication about the existence of suit 'B' schedule pathway as per
Advocate Commissioner's report and that the appellant has not let in any
evidence to prove the character of suit pathway. The suit was dismissed by
the trial Court holding against the plaintiff.
5. Aggrieved by the findings of the trial Court, the plaintiff preferred
an appeal in A.S. No.23 of 2017 before the Principal Sub Court, Erode. The
lower appellate court also held that the plaintiff has failed to prove his case
and confirmed the judgment and decree of the trial Court. Aggrieved by the
concurrent findings of the Courts below, the above second appeal is
preferred by the appellant / plaintiff.
6. In the memorandum of grounds of appeal, the appellant has raised
the following substantial question of law:
“ Whether the Courts below are right in dismissing the
suit without considering the partition deed dated 30.06.1984
marked as Ex.A1?”
7. It is seen that the plaintiff claim title as against the Government by
pleading adverse possession. Even the plea of adverse possession was raised
by the plaintiff after encroachment of poromboke land as identified by
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S.A.No.215 of 2022
Advocate Commissioner in his report which was submitted after inspection
of suit property with the help of qualified surveyor. The lower appellate
Court also found that the plaintiff has failed to prove his adverse possession
and held against the appellant. In view of the findings of the Courts below
holding against the plaintiff on all issues, the question of title or enjoyment
of property as pleaded by the appellant cannot be sustained. In view of the
concurrent findings of facts, this Court is unable to find any substance in the
substantial question of law raised in this appeal.
8. Since the findings of the Courts below are not demonstrated to be
perverse, this Court is unable to accept the submissions of the learned
counsel appearing for the appellant. The Second appeal is dismissed as
devoid of any merits. Consequently, connected miscellaneous petition is
closed.
18.04.2022
bkn
Index: Yes / No
Speaking order / Non-speaking order
To:
1. The Principal Subordinate Judge, Erode.
2. The I Additional District Munsif, Erode.
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S.A.No.215 of 2022
S.S.SUNDAR, J.,
bkn
S.A. No.215 of 2022
18.04.2022
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