Madras High Court

N.B.Shadanan Nair vs K.Ramachandra Nair on 6 January, 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATE: 06.01.2022

CORAM

THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN

S.A.(MD) No.614 of 2021

N.B.Shadanan Nair .....Appellant

vs.

K.Ramachandra Nair .....Respondent

Second Appeal filed under Section 100 of CPC against the

Judgment and Decree made in A.S. No. 15 of 2013 on the file of the

Sub Court, Padmanabhapuram dated 30.08.2013 by confirming the

judgment and decree passed in O.S. No.274 of 2010 on the file of the

Additional District Munsif Court, Padmanabhapuram dated 04.12.2012.

For Appellant : Mr. Vashik Ali
for Mr.R. Murugan

For Respondents : Mr.M.Brijesh Kishore

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2

JUDGMENT

This Second Appeal is directed against the Judgment and Decree

made in A.S. No. 15 of 2013, on the file of the Sub Court,

Padmanabhapuram, dated 30.08.2013, by confirming the Judgment

and Decree, passed in O.S. No.274 of 2010, on the file of the

Additional District Munsif Court, Padmanabhapuram dated 04.12.2012.

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 plaintiff is in possession of the suit property in R.S.No.

468/7, situated in Surulakoodu Village as per the permanent rental

agreement entered between the plaintiff and one Ramakrishna Nair

who got the said property by lease from one Karunakaran Nair trustee

of Narayananda Kanji Tharma Madam on 30.05.2000 to an extent of

66.5 ares. As per the agreement, the plaintiff has to pay a sum of

Rs.2500/- per annum as rental amount. They have also agreed that

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the rental amount should be increased Rs.100/- per year. The rental

agreement was increased from 01.01.2009 to 31.12.2009 and further

period plaintiff has remitted a sum of Rs.3300/-. As the suit property is

in absolute possession and enjoyment of the plaintiff, the defendant

who is having no right over the said property has disturbed the

possession and enjoyment of the plaintiff by entering into the suit

property and grazing his cattle and also tried to damage the rubber

trees and banana trees. Lastly on 25.06.2010, the defendant has

tried to enter into the property which was successfully prevented by

the plaintiff. The steps taken by the plaintiff to mediate the problem

through mediators also ended in vain. The defendant has tried to

encroach upon the suit property, hence the plaintiff has filed the suit

for the relief of permanent injunction.

4. The defendant has filed a written statement in which he has

stated that the precedessors of the defendants have encroched the suit

property before 75 years back and made further developments and also

planted rubber saplings. The precedessors of the defendant are in

continuous possession of the suit property and they have cut and

removed the old rubber trees and planted new rubber saplings four years

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back. The plaintiff possession over the suit property was not disturbed by

the officers of the Narayananda Kanji Tharma Madam or by the

Karunkaranair or other members. As the suit scheduled properties are

in possession of the defendant for the past 75 years the above said

officers of the trust has not taken any steps. Now the officers of the

Trust with the help of lease receipt dated 18.03.2010 has tried to

disturb the possession of the defendant and tried to evict them from

the suit property with the help of the rowdy elements. It is not true to

say that the plaintiff are in possession of the suit property as per the

lease document dated 30.05.2000. The plaintiff was never in

possession of the suit property. It is not necessary to damage the suit

property as the defendant and their precedessors are in continuous

possession of the suit property is not necessary. The defendant has

adverse possession over the suit property. The cause of action alleged

to have been arose on 25.06.2010 is imaginary. The officers of the

trust has no right to evict the defendants from the suit property on

compulsion. The plaintiff is not entitled for the relief of permanent

injunction as sought for. As the suit is not filed by the original owner

the suit filed by the plaintiff is not maintainable and hence prayed for

dismissal of the suit.

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5. Before the trial Court, during the trial, on the side of the

plaintiff, the plaintiff himself was examined as PW.1 and Ex.A1 to

Ex.A10 were marked. On the side of the defendant, the defendant

himself was examined as D.W.1 and one Ramakrishnan (witness) was

examined as D.W.2 and no documents were marked. However, two

Court document were marked as Ex.C1 and Ex.C2.

6. On analysis of the oral and documentary evidence, the trial

Court has dismissed the suit. Aggrieved by the same, the plaintiff has

preferred an appeal in A.S. No.15 of 2013 on the file of the Sub Court,

Padmanabhapuram.

7. The first appellate Court, after hearing both sides and upon

reappraising the evidence available on record, had dismissed the

appeal by confiming the findings of the trial Court. Aggrieved by the

Judgment and decree passed by the first appellate Court, the present

Second Appeal has been filed the plaintiff.

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8. Heard the learned counsel appearing for the appellant /

plaintiff and the learned counsel appearing for the respondent /

defendant.

9. The learned counsel appearing for the appellant / plaintiff

would submit that the defendant is one of the attesting witnesses in

the mutual agreement executed on 13.05.2000, which was marked as

Ex.A7 and during the course of cross-examination also, the defendant

has also admitted his signature in it and he has not specifically denied

the agreement in his written statement, which was not considered by

the Courts below in proper perspective. In order to prove that the

plaint schedule property was in fact belongs to the Trust and the

plaintiff has adduced documents of land tax receipt and the remittance

of the lease in favour of the Trust and the defendant has not adduced

any contra evidence, the docuemnts produced by the plaintiff should

be taken as discharge of initial burden cast upon the plaintiff. Both

the Courts below failed to give credence to Ex.A7, the mutual

agreement executed between the Trust and the plaintiff. The Courts

below failed to advert the documents and inspite of producetion of the

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documents, they brushed aside those docuemnts, which are

unsustainable in the eye of law. The Courts below after adverting to

the Commissioner's report found the report does not support either the

plaintiff or the defendant's case and thus, failed to given any

importance to the Commissioner's Report.

10. Per contra, the learned counsel appearing for the respondent

/ defendant would vehemently oppose this 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 the dismissal of the same.

11. This Court paid it's anxious consideration to the rival

submissions made and also carefully perused the materials placed on

record.

12. According to the plaintiff, he is in possession of the suit

property to an extent of 66.5 Ares, in R.S.No. 468/7, situated in

Surulakoodu Village. As per the Permanent Agreement, dated

30.05.2000, the “Narayanantha Kanji Dharmamadam” executed the

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property in favour of the plaintiff. As per the Mutual Agreement, the

plaintiff has to pay a sum of Rs.2500/- per annum, as rental amount.

It was also agreed that the rental amount should be increased Rs.

1000/- per year. The rental agreement was increased from 01.01.2009

to 31.12.2009 and further period plaintiff has remitted a sum of Rs.

3300/-. As the suit property is in absolute possession and enjoyment

of the plaintiff, the defendant who is having no right over the said

property has disturbed the possession and enjoyment of the plaintiff

by entering into the suit property and grazing his cattle and also tried

to damage the rubber trees and banana trees. On 25.06.2010, the

defendant had tried to enter into the property. which was successfully

prevented by the plaintiff. The steps taken by the plaintiff to mediate

the problem through mediators also ended in vain. The defendant has

tried to encroach upon the suit property, hence the plaintiff has filed

the suit for the relief of permanent injunction.

13. According to the defendant, the precedessors of the

defendants have encroched the suit property before 75 years back and

made further developments and also planted rubber saplings. The

precedessors of the defendant are in continuous possession of the suit

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property and they have cut and removed the old rubber trees and planted

new rubber saplings four years back. The plaintiff's possession over the

suit property was not disturbed by the Trustee of the Narayananda Kanji

Dharmamadam. Now the officers of the Trust with the help of lease

receipt dated 18.03.2010 has tried to evict the defendant from the suit

property with the help of the rowdy elements. The officers of the

trust has no right to evict the defendants from the suit property on

compulsion. The plaintiff is not entitled for the relief of permanent

injunction as sought for.

14. It is not in dispute that the suit property to an extent of 66.5

Ares, in R.S.No. 468/7, situated in Surulakoodu Village belonged to

“Narayananda Kanji Dharmamadam Trust”. Since, the plaintiff had

instituted the suit for permanent injunction, it is for the plaintiff to

prove his legal independent entity in the suit property in question.

Ex.A7 is the Mutual Agreement, dated 30.05.2000. On perusal of

Ex.A7 would show that it was jointly written mutual agreement by one

Karunakaran Nayar, Ramachandran Nayar and Sadhananan Nayar. The

said Mutual Agreement written in 10 Stamp Paper and in that, the

value of the 1st Stamp paper is Rs.10/- and the value of other Stamp

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Papers are Rs.16.75/- each. On careful scrutiny of the Stamp Papers

would show that the first Stamp Paper was purchased by the plaintiff

on 29.05.2000 and the remaining nine stamp papers are daed

14.08.1975. It is not known, why the first stamp paper was bought in

the year 2000 and the other stamp papers bought in the year 1975

itsel and there is no explanation by the plaintiff in this regard. P.W.1 in

his cross examination deposed that the suit property was in Ponmanai

Village before resurvey and after resurvey, it is in Surulodu Village. It

is seen from the records that the Resurvey has been completed in

1975 itself. On scrutiny of Ex.A7, it shows that the stamp papers were

bought in the year 1975, except the first stamp paper and in that, the

village name was mentioned as Ponmanai Village. On a combined

analysis, this Court comes to a categorical finding that Ex.A7 document

is the false, frivolous one.

15.As per Ex.A7 Mutual Agreement, dated 30.05.2000, the anual

lease amount was mentioned as Rs.2500/- and the amount has to be

increased to Rs.100/- every year. The value of lease amount is more

than Rs.100/- it has to be registered under Registration Act. Since,

the mutual agreement was not registerd nder the Registration Act, the

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agreement is null and void. When this Court is of the view that the

very Ex.A7 itself is null and void, the claim of the plaintiff based on

Ex.A7, canot be countenanced. This Court finds no reason to interfere

with the well reasoned Judgments of the Courts below and also there

is no question of law much less substantial question of law arises for

consideration in this Second Appeal Accordingly, the Second Appeal is

liable to be dismissed.

16. In fine, the Second Appeal is dismissed, confirming the

Judgment and Decree in A.S. No. 15 of 2013, on the file of the Sub

Court, Padmanabhapuram, by confirming the judgment and decree

passed in O.S. No.274 of 2010, on the file of the Additional District

Munsif Court, Padmanabhapuram. However, there shall be no order as

to costs.

06.01.2022 Index: Yes/No.

Internet: Yes/No.

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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.

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.

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V. BHAVANI SUBBAROYAN, J.

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S.A.(MD) No.614 of 2021

06.01.2022

https://www.mhc.tn.gov.in/judis