Madras High Court
Ulaganathan vs Rajam on 31 January, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 31.01.2022
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.687 of 2011
1. Ulaganathan
2. Bastin Sundarraj .........Appellants
vs.
Rajam .....Respondent
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree made in A.S. No. 68 of 2010 on the file of the
Additional Subordinate Judge, Thanjavur dated 29.11.2010 confirming
the judgement and decree passed in O.S. No.569 of 2004 on the file of
the District Munsif, Thanjavur dated 24.06.2010.
For Appellants : Mr. V.Chandrasekar
For Respondent : Mr.K.Vamanan
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2
JUDGMENT
This Second Appeal is directed against the Judgment and Decree
made in A.S. No. 68 of 2010 on the file of the Additional Subordinate
Judge, Thanjavur dated 29.11.2010 confirming the judgement and
decree passed in O.S. No.569 of 2004 on the file of the District Munsif,
Thanjavur dated 24.06.2010
2. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
3. The case of the plaintiff, in brief, as per the averments made
in the plaint, reads as follows:-
The suit property is a Varipooramboke which belongs to the
Government and situated in Vattam No.41, Thanjavur Town within the
municipal limit. The plaintiff's husband Late Veeraiyan occupied the
suit property in the year 1977 after levelling the ground, destroying
the bushes with great difficulties and spending huge money. He put
up a thatched house in the suit property. He was issued B memo for
the suit property and also paid penal assessment tax to the
Government. The plaintiff's husband died on 14.10.2003 and after the
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death of the plaintiff's husband, the plaintiff and her children were in
possession and enjoyment of the suit property. As per the recent
Government order regarding the assignment of the government
poramboke land to the occupiers of the plaintiff is entitled to get the
benefit of the said G.O and she applying for the same. The first
defendant is nothing, but the own brother of the plaintiff's husband
Veeraiyan. On 03.12.2004 the second defendant at the instigation of
the first defendant came to the suit property and tried to demolish the
suit house wall with the help of some rowdy elements and politician.
The plaintiff rushed to the Collector Office on 06.12.2004 and
submitted a petition seeking protection for her life and property from
the defendants. On 07.12.2004 this plaintiff lodged a police complaint
before the Thanjavur South Police Station for necessary action but all
ended in vain,hence the present suit has been filed.
4. The first defendant has filed a written statement which was also
adopted by the second defendant and the averments of the same reads as
under:
The suit property is the Government Vari Poramboke. But it is
absolutely false to state that the entire suit property was occupied and
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possessed and enjoyed by the plaintiffs Veeraiyan alone. Equally plaintiffs
husband alone is not recognized as person in posession. In fact since 50
years this defendant's father Shanmugam alone had occupied the entire
suit property and also had the B memo in his name. It is not true that this
plaintiff's husband alone entitled to the suit property as alleged in the
plaint. This plaintiff had falsely preferred a complaint to the police and it
was rightly rejected after enquiry. The alleged occurence on 03.12.2004 is
an imaginary one. This defendant is not aware of the any petition to the
Collector on 06.12.2004. It is submitted that this defendant had sole out
the possessory right of his due share in T.S. No. 1 and 4 extending
1669.1/2 square feet house site and a thatched house which is situated in
east of the plaintiff's house to the second defendant's wife, Arputha
Santhanamary on 01.12.2004 for a valid consideration. Since the date of
purchase the second defendant and his wife along with their family
members are in possession and enjoyment of the same. The description of
the property is erroneous and misleading. There is no surving cause of
action for the plaintiff to file the suit, hence prayed for dismissal of the
suit.
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5. The trial Court has formulated the following two issues while
deciding the suit:-
a) Whether the plaintiff is having lawful
possession over the suit property ?
b) Whether the plaintiff is entitled for the
relief of permanent injunction?
c)To what other relief the plaintiff is
entitled to ?
6. During the trial, on the side of the plaintiff, four witnesses
were examined as PW.1 to PW.4 and 21 documents were marked as
Exs.A1 to A24. On the side of the defendant, three witnesses were
examined as DW.1 to DW.3 and Exs.B.1 to B.23 were marked.
7. On analysis of the oral and documentary evidence, the trial
Court has dismissed the suit. Aggrieved by the same, the defendants
have preferred an appeal in A.S. No.68 of 2010 on the file of the
Additional Sub Court, Thanjavur
8. The first appellate court, upon considering the oral and
documentary evidence of the parties, had dismissed the appeal by
confiming the findings of the trial Court. Aggrieved by the Judgment
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and decree passed by the first appellate Court, the present Second
Appeal has been filed the defendants as appellants..
9. The first appellate court, after considering the oral and
documentary evidence of the parties and re appreciation of evidence,
had dismissed the appeal suit. Aggrieved by the Judgment and decree
passed by the first appellate Court, the present Second Appeal has
been filed by the defendants as appellants raising various grounds.
10. The learned counsel appearing for the appellants/defendants
would vehemently contend that the respondent as plaintiff has not filed
any documents to prove his possession in respect of the entire extent
of 3150 sq.ft and the courts below failed to note that even as per the
averments in the plaint, the Government of Tamil Nadu has issued 'B'
memo in respect of the suit property in favour of the respondent's
husband viz., Veeraiyan but no 'B' memo was filed as document to
prove that facts. Further the property was originally occupied by the
father of the first defendant and father-in-law of the respondent.
Further the Courts below failed to note that the first appellant and the
respondent are equally entitled to a moierty in the property and the
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plaintiff alone is entitled to 1669 ½ sq.ft and the first defendant is
entitled to other half viz., 1669 ½ sq.ft. and also failed to note that the
house bearing door No.5 B is situated only in the property measuring
1669 ½ sq.ft on the eastern side. Further the house bearing door No.5
is situated on the western side of the house in possession of the
respondent. Further the courts below failed to consider the
documents filed by the appellants in respect of the house bearing door
No.5 situated on the western side of the house owned by the
appellant. The Courts below failed to note that the respondent has
cleverly filed the suit in respect of the entire extent of 3150 sq.ft
without disclosing the factum of the posession of the appellant on the
western side of the house owned by the first respondent.
11. The learned counsel appearing for the respondent/ plaintiff
would vehemently oppose the Second Appeal by contending that the
well considered Judgments of the Courts below need not be interfered
with, as there is no question of law involved in this Second Appeal and
prayed for dismissal of the Second Appeal.
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12. This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
13. From the perusal of the documents and evidence adduced
on the side of the plaintiff it is seen that the plaintiff was in possession
of the suit property bearing door no. 5 B. More over all the documents
filed by the plaintiff/respondent related to door No.5B. These
documents would prove that the plaitniff was in posession of the suit
property. Further the appellants/defendants in the suit pleaded that
door No. 5 B stands in his brother's name and door No. 5 stands in his
name. However door No.5 is not releavent to the present case.
Further the B memo also prove that the plaintiff was in posession of
the suit property. Hence this Court is of the view that the
plaintiff/respondent is in possession of the suit property and the
appellants/defedants are never in posession and enjoyment of the suit
property. In respect of the relief of permanent injunction it is seen that
the appellants/defendants are close relatives of the plaintiff and they
have not filed any document to prove their posession but the
plaintiff /respondent has proved the posession. When the
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plaintiff/resopndent has proved his claim for posession,she is also
entitled for the relief of permanent injunction. In respect of third issue
with regard to what other relief, the plaintiff/respondent is entitled to,
is answered that she is not entilted to any other relief .
14.The trial Court, has on appreciatoin of facts and evidence,
has decreed and granted the relief of posession and permanent
injunction and on appeal also the first apellate court on re-
appreciation of evidence and on going through the facts of the case,
has concurred with the trial court in which this court also does not find
any sufficient reason or cause to interefere with the well consdiered
and well reasoned judgment of the courts below. Accordingly the
substantial questions are answered in favour of the
plaintiff/respondent and as aginst the appellants/defendants.
15.In fine, present appeal fails and the same stands dismissed,
accordingly. No costs.
31.01.2022
Index: Yes/No.
Internet: Yes/No.
aav
https://www.mhc.tn.gov.in/judis
Note: In view of the present lock down owing to COVID 19 pandemic,
a web copy of the order may be utilised for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the Advocate/litigant concerned.
To
1. The Sub Court, Padmanabhapuram
2. The Additional District Munsif Court, Padmanabhapuram
3.The Section Officer,
Vernacular Section, Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.687 of 2021
31.01.2022
https://www.mhc.tn.gov.in/judis
