Madras High Court
Angamuthu vs Sellammal on 8 February, 2022
S.A.No.1365 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.02.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1365 of 2005
Angamuthu ...Appellant
Vs.
1.Sellammal
2.K.Sammannan
3.K.Janaki
4.K.Mahalingam
5.Sellammal ... Respondents
(5th respondent herein given up as an
unnecessary party)
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 31.10.2003 passed in A.S. No.32 of 1997, on
the file of the Sub Court, Attur, upholding the decree and judgment dated
28.04.1997 passed in O.S. No.123 of 1992, on the file of the District
Munsif, Attur.
For Appellant : Ms.Sathya Satheesh
for M/s.Zeenath Begam
For R1 to R4 : Mr.P.Jagadeesan
For R5 : Given up
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S.A.No.1365 of 2005
JUDGMENT
The unsuccessful plaintiff before both the courts below has
filed the present second appeal.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and in appropriate places, their ranking
in the present appeal would also be indicated.
3. The suit in O.S. No.123/92 was filed by the plaintiffs for a
bare injunction.
4. The case of the plaintiff in nutshell is as follows:
The suit property originally belonged to one Mariammal, wife
of Kumara Padaiyachi. One Veerasaamban, husband of the first plaintiff
and father of the plaintiffs 2 to 4 purchased the suit property from
Mariammal through a registered sale deed dated 19.08.1946 (Ex.A1) and
ever since the date of purchase, Veerasaamban was in possession and
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S.A.No.1365 of 2005
enjoyment of the suit property. He died intestate during the year 1976.
Veerasaamban, during his lifetime constructed a tiled house in the suit
property in the year 1957. However, the said house collapsed due to
heavy rain and thereafter, the suit property was lying vacant. The
defendants, who do not have any title or possession over the suit
property, are attempting to trespass into the suit property and one such
attempt was made on 02.03.1992. However, the plaintiffs prevented the
same with the help of some neighbours. Since the defendants are
threatening the plaintiffs that they would trespass into the suit property,
the plaintiffs filed the suit for a permanent injunction restraining the
defendants from interfering with their peaceful possession and enjoyment
of the suit property.
5.The suit was resisted by the defendants on the following
grounds :
i. It is false to state that the plaintiffs purchased the suit property
through a registered sale deed dated 19.08.1946 and that the
plaintiffs are in possession and enjoyment of the suit property.
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S.A.No.1365 of 2005
ii. It is also false to state that the defendants are attempting to
interfere with the peaceful possession and enjoyment of the suit
property by the plaintiffs.
iii. In fact both the defendants are residing in the suit property for
more than fifty years and have also perfected their title by adverse
possession and prescription.
iv. The plaintiffs are not residing in the suit property and therefore
there is no cause of action for filing the present suit.
They had therefore prayed for the dismissal of the suit.
6.The learned District Munsif, Attur, after framing necessary
issues and after full contest, dismissed the suit filed by the plaintiffs vide
his decree and judgment dated 28.04.1997, by observing that the
plaintiffs have not established their possession over the suit property by
adducing acceptable evidence.
7.Aggrieved over the same, the plaintiffs filed an appeal before
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S.A.No.1365 of 2005
the Sub Court, Attur, in A.S. No.32 of 1997. The learned Subordinate
Judge, after analysing the evidence on record, upheld the findings
recorded by the trial Court and dismissed the suit filed by the plaintiffs.
The first appellate Court also had come to the conclusion that the
plaintiffs have not proved either their possession or title over the suit
property.
8.Now the present second appeal is filed by the second plaintiff
on the following substantial questions of law:
i. Whether the judgment of the Courts below are vitiated in that
having held, that the plaintiff has proved title to the suit property,
have not granted the relief of injunction?
ii. In a suit for permanent injunction, when a finding has been
rendered that the defendant's documents do not relate to the suit
property, whether even then the plaintiff can be denied the relief of
permanent injunction can be refused against such defendant?
9. Heard Ms.Sathya Satheesh for Ms.Zeenath Begam, learned
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S.A.No.1365 of 2005
counsel appearing for the appellant and Mr.P.Jagadeesan, learned counsel
appearing for the respondents.
10. Ms.Sathya Satheesh, learned counsel for the
appellants/second plaintiff contended that though the plaintiffs had filed
a registered sale deed dated 19.08.1946 (Ex.A1) executed in favour of
Veera Samban and a tax demand notice (Ex.A3) to prove title and
possession over the suit property, both the Courts below failed to take the
same into consideration. It is also her contention that the registration copy
of the sale deed dated 01.05.1947 (Ex.A2) executed in favour of one
Chellamuthu Saamban though shows that his property is situate on the
eastern side of Veerasaamban's property, both the courts below did not
advert their attention to this particular document. It was also argued by
the learned counsel for the appellant that in the plaint it is clearly averred
that all the tax receipts and other connected records were lost in the flood
during the year 1972 and that the tax demand notice (Ex.A3) clearly
shows that the plaintiffs are in possession and enjoyment of the suit
property.
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S.A.No.1365 of 2005
11.Per contra, Mr.P.Jagadeesan, learned counsel for the
respondents would contend that the defendants have been in possession
and enjoyment of the suit property for more than fifty years and that patta
was also issued in their favour. It is also contended by him that both the
Courts below had concurrently held that the plaintiffs did not prove their
possession over the suit property.
12.In order to establish the possession over the suit property the
plaintiffs relied on the sale deed dated 19.08.1946 (Ex.A1) executed in
favour of Veerasaamban, husband of the first plaintiff (since deceased)
as well as a tax demand notice (Ex.A3). In Ex.A1, Survey Number of the
property conveyed is not indicated. However, in the plaint schedule, the
description of the suit property is described as the property in S.No. 93/1
of Abinavam Village, Attur Taluk. Even as per the averments of the
plaint, the property was lying vacant since 1972. Therefore the house tax
demand notice (Ex.A3) dated 19.12.1996 cannot be relied upon for any
purpose. Thus, judged from any angle the plaintiffs did not prove their
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S.A.No.1365 of 2005
possession over the suit property. Similarly in Ex.A2 also neither the
survey number of the property conveyed nor the survey numbers of four
boundaries are mentioned.
13.Both the Courts below had also analysed all the
documentary evidence adduced on the side of the defendants and held
that the defendants have not proved that they had perfected their title to
the suit property by way of adverse possession and prescription. The
findings rendered by both the courts below are based on facts and
evidence. In any event, since the suit is filed by the plaintiffs for the relief
of permanent injunction, burden lies on the plaintiffs to establish that
they are in possession of the suit property. Since no acceptable oral /
documentary evidence was adduced in the instant case by the plaintiffs to
prove possession over the suit property, the second appeal deserves to be
dismissed. In view of the same, the substantial questions of law are
answered against the appellant. In fact, no substantial question of law
arises as far as the present appeal is concerned. Section 100 CPC is a
jurisdiction confined to substantial questions of law only. Therefore
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S.A.No.1365 of 2005
second appeal fails and is dismissed.
14. In the result,
i. the second appeal is dismissed. No costs.
ii. the decree and judgment dated 31.10.2003 passed in
A.S. No.32 of 1997, on the file of the Sub Court,
Attur, and the decree and judgment dated 28.04.1997
passed in O.S. No.123 of 1992, on the file of the
District Munsif, Attur, are upheld.
08.02.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
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S.A.No.1365 of 2005
R. HEMALATHA, J.
mtl
To
1. The Sub Court, Attur
2.The District Munsif Court, Attur.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No .1365 of 2005
08.02.2022
https://www.mhc.tn.gov.in/judis
