Madras High Court
Muthu vs Nataraj .. Plaintiff / on 7 February, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.402 of 2012
1. Muthu
2. Angamuthu .. Defendants/Appellants/
Appellants
Vs.
1. Nataraj .. Plaintiff /respondent
/respondent
2. Azhagar .. Defendants /
Respondents/ Respondents
Prayer: Second Appeal filed under section 100 of the Code of Civil
Procedure against the judgment and decree of the Subordinate Judge,
Perambalur, dated 24.06.2011 made in A.S.No.3 of 2011 confirming that
of the District Munsif, Perambalur, dated 29.03.2010 made in
O.S.No.220 of 2009.
For Appellants : Mr.I.Abrar Mohamed Abdullah
For Respondents : Mr.M.Palani Muthu
for R1
R2- Served
No appearance.
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2
JUDGMENT
The defendants are the Appellants. The
respondent/Plaintiff filed a suit for permanent injunction with respect to
the property situated at Old Survey No.746/4A (New Survey No.200/4A)
measuring an extent of 1 acre 27 cents.
2. The specific case of the plaintiff is that the subject
property is a Government Poramboke land. The father of the plaintiff
had purchased certain properties in Survey Nos.746/1, 746/2, 746/3 and
746/5 through a registered sale deed dated 17.11.1982 marked as Ex.A1
and the subject property was contiguous to these properties and it was
in possession and enjoyment of the father of the plaintiff.
3. The further case of the plaintiff is that after the
demise of his father, his legal heirs viz., Periasamy, Palani Muthu, Chella
Muthu, Arumugam and Natarajan were jointly in possession and
enjoyment of the same. It is stated that they had originally divided it
among themselves and the subject property namely old Survey
No.746/4A was alloted in favour of the plaintiff and he is in possession
and enjoyment of the same.
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4. It is further stated by the plaintiff that the revenue
records originally stood in the name of the father of the plaintiff and in
order to substantiate the same, Ex.A4 to Ex.A8 were marked and after
his demise, the revenue records were transferred in the name of the
plaintiff and his brothers, which is sought to be substantiated through
Ex.A9.
5. The grievance of the plaintiff is that the defendants
who have no right over the said property were attempting to interfere
with the possession and enjoyment of the plaintiff. Left with no other
option, the present second appeal was filed.
6. The specific case of the defendants is that the subject
property is not a Government Poramboke land and it was never in
possession and enjoyent of the father of the plaintiff. According to the
defendants, the subject property was originally owned by one
Angamuthu, who is the grand father of the defendants 2 and 3. After
his demise, his sons, viz ., Chinnamuthu, Arunachalam and Kuzhandhai
had divided it among themselves with 1/3rd share each roughly
measuring 60 cents to each of the sharers. Arunachalam to whom 60
cents was alloted, sold his share along with his sons through a
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registered sale deed dated 07.12.1984 in favour of the father of the 2nd
defendant viz Kuzhandhai. After the demise of Kuzhandhai, his share of
60 cents and the 60 cents that was purchased by him was in possession
and enjoyment of the 2nd defendant. Insofar as the balance 60 cents, it
is in possession and enjoyment of the 3rd defendant and his brother
Murugan.
7. In view of the above, the defendants claim that they
are the absolute owners of the property and are in possession and
enjoyment of the same and hence, they have denied the right and
possession of the plaintiff and had sought for the dismissal of the suit.
8. Heard the learned counsel for the Appellants and the
learned counsel appearing for the respondents.
9. Both the Courts below have given a categoric finding
to the effect that the subject property is a Government Poramboke land.
Both the Courts below on appreciation of the relevant revenue records,
came to the conclusion that the subject property is in possession and
enjoyment of the plaintiff.
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10. The learned counsel for Appellants submitted that
both the Courts below erred in deciding the possession of the property
by relying upon revenue records. It was further submitted that the lands
in Survey No.746/4A is in the name of the defendants and their
ancestors even prior to the UDR Scheme. During the UDR Scheme, the
revenue records were absolutely transferred in the name of the plaintiff
and that cannot be taken advantage by the plaintiff to prove their
possession. The judgements of both the Courts below requires the
interference of this Court.
11. The Second Appeal is in the stage of notice of motion and
hence, this Court has to necessarily see if any substantial question of
law is involved even before taking up the Second Appeal for hearing
after admitting the same, by formulating the substantial questions of
law.
12. It is now settled that a perverse finding which is not based
on or which contrary to the oral and documentary evidence, can also be
framed as a substantial question of law. However, this Court must keep
in mind that if there is some evidence and there is scope a for different
interpretation of the same, that will not be a ground to interfere with
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the findings of the Courts below.
13. In the present case, the evidence available on record shows
that the property in question is a Government Poramboke. Both the
sides did not care to examine any one from the side of the revenue. The
only option that was available to the Courts below is to render their
finding based on the revenue records.
14. Insofar as the Government poramboke land is concerned,
the person who is able to establish a settled position in the property can
lay a suit for permanent injunction as against the private party and
thereby, protect his possession. This can be done even without
impleading the Government as party. Useful reference can be made to
the judgement of this Court in [Ezumalai and others Vs.Venkatesa
Gounder] reported in 2018 5 law weekly 785.
15. On a careful reading of the judgements of the Courts below,
it can be seen that both the Courts below have taken into consideration
the fact that the revenue records stood in the name of the father of the
plaintiff and thereafter, it continued in the name of the plaintiff. Even
though the defendants have taken a stand that this happened due to
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the mistake that took place during the UDR scheme, the defendants
have not taken any steps to rectify the same. Hence, the Courts below
on appreciation of evidence, have concurrently found that the plaintiff is
in possession and enjoyment of the property.
16. This Court does not find any ground to interfere with those
findings and this Court does not find any perversity in the findings
rendered by both the Courts below. As between the documents that
were produced by either side, the Courts below found that the
documents produced by the plaintiff is more relevant for the purpose of
determining the possession over the property. Even if this Court is to
come to a different conclusion based on re-appreciation of evidence,
that can never be a ground to interfere in the second appeal.
17. This Court does not find any substantial questions of law
involved in the present Second Appeal and accordingly, the second
appeal stands dismissed. In the facts and circumstances of the case,
there shall be no order as to costs.
07.02.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
https://www.mhc.tn.gov.in/judis
To
1.The Subordinate Judge, Perambalur.
2.The District Munsif Court, Perambalur.
Copy To:-
The Section Officer
VR Section, High Court
Madras.
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N.ANAND VENKATESH.,J
rka
SA.No.402 of 2012
07.02.2022
https://www.mhc.tn.gov.in/judis
