Madras High Court
R. Sekar vs Somu on 8 June, 2022
S.A.No.313 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.313 of 2020
and
C.M.P.No.6338 of 2020
R. Sekar ...Appellant/Appellant/Plaintiff
Vs.
1.Somu
2.Seetharaman
3.Sivaprakasa Chettiar
4.Dhavamani ...Respondents/Respondents/Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 27.04.2019
passed in A.S.No.103 of 2016 on the file of the learned Principal
Subordinate Judge, Villupuram, confirming the Judgment and Decree
dated 18.04.2016 passed in O.S.No.129 of 2011 on the file of the
learned Principal District Munsif, Villupuram.
For Appellant : Mr.D.Baskar
1/9
https://www.mhc.tn.gov.in/judis
S.A.No.313 of 2020
JUDGMENT
The plaintiff in a suit for bare injunction has filed the above
appeal.
2.The facts in brief are as follows:
The appellant herein had filed a suit O.S.No.129 of 2011 on the
file of the learned Principal District Munsif, Villupuram, seeking the
relief of bare injunction restraining the defendants from interfering
with his peaceful possession and enjoyment of the suit property. The
suit property was described as follows:
“Villupuram Taluk, Mazhavarayanur
Village in Mariamman Koil Street, in
Gramanatham S.No.145/6 of an extent 12 ½
cent measuring North-South 40' and East-West
135' with two thatched houses bearing Old Door
No.1/19A New No.80 and Door No.1/18,
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S.A.No.313 of 2020
Boundaries: West of the Mriamman Koil Street,
East of Moorthi House, South of Rajamani
House, North of Arumugam house.”
3.It is the case of the appellant that the suit property belonged to
his grandfather Veerabadra Gounder and after his life time, the
plaintiff's father Ranganatha Gounder was in possession and enjoyment
of the same. The said Ranganatha Gounder died in the year 1999 and
after his death, the plaintiff continued to be in possession and
enjoyment of the property. It is also the case of the plaintiff that he and
his predecessors in title have been in possession of the same for over
seventy years. The suit property consisted of two thatched houses
which was enjoyed by the grandfather, the father of the plaintiff and
thereafter by the plaintiff. The old door number of the property is
1/19A and 1/18 and the new door number is 1/80. The property was
assessed to tax and also has an electricity service connection.
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S.A.No.313 of 2020
4.While so, on 01.04.2011 to the plaintiff's utter shock, the
defendants had stealthily attempted to trespass into the suit property
which was successfully resisted by the plaintiff. The defendants are
absolute strangers to the suit property. On 10.05.2011, once again the
defendants had trespassed into the suit property and the attempt was
once again resisted. Therefore, the plaintiff has come forward with the
suit for injunction.
5.The 4th defendant has alone filed a Written Statement inter
alia contending that the suit property and other properties belonged to
one Murugesa Chettiar who had purchased the same from one
Dhanalakshmi under a Sale Deed dated 12.03.1943. Thereafter, one
Dhandapani Chettiar had executed a Sale Deed in favour of
Sarangapani Chettiar. On 11.12.1974, Murugesa Chettiar and
Sarangapani Chettiar were in possession and enjoyment of the suit
properties and the revenue records were mutated in favour of
Sarangapani Chettiar. The 4th defendant had purchased the suit
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S.A.No.313 of 2020
property under a Sale Deed dated 24.03.2011 from the legal
representatives of Murugesa Chettiar and Sarangapani Chettiar. The
4th defendant was in possession and enjoyment of the suit schedule
property and is in possession of the two thatched houses therein.
6.It is the contention of the 4th defendant that the plaintiff's
father was in permissive occupation of the thatched hut which situate
on the Eastern side and the Western portion was allotted to one Poojari.
After the demise of his father, the plaintiff was permitted to continue in
possession as a permissive occupier. Therefore, the defendants had
contended that the plaintiff is not entitled to an injunction in respect of
the suit schedule property.
7.The learned Principal District Judge, Villupuram, vide
Judgment dated 18.04.2016 was pleased to dismiss the suit and
challenging the same, the plaintiff had filed A.S.No.103 of 2016 on the
file of the learned Principal Subordinate Judge, Villupuram. The
learned Principal Subordinate Judge also upheld the finding of the trial
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S.A.No.313 of 2020
Court and dismissed the appeal. Aggrieved by the same, the plaintiff is
before this Court.
8.Heard the learned counsel appearing for the appellant and
perused the papers.
9.The Courts below have concurrently found that the plaintiff has
not produced any document to show that they have title to the suit
property or that they have perfected title by way of adverse possession.
The evidence let in and the admission of the defendant would show that
the plaintiff is in possession of only one of the thatched huts situate in
the Eastern side and not with reference to the entire suit property. Prior
to him, his father had been in possession of the property with the
permission of the predecessors in title of the defendants.
10.The Court has also relied upon the admission of PW1 that his
grandfather and father had entered into the suit property only with the
permission of the Sarangapani Chettiar. While so, the plaintiff cannot
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S.A.No.313 of 2020
claim exclusive title to the suit property. The plaintiff has not been
able to provide proof regarding the possession of the entire suit
property. The plaintiff has sought for an injunction in rest of the entire
suit property whereas the defendants have admitted the plaintiff's
possession only with reference to the thatched hut on the Eastern side.
Therefore, the onus is on the plaintiff to prove possession of the entire
suit property. The plaintiff has failed to prove the same. The Courts
below have rightly appreciated the evidence while non-suiting the
plaintiff.
In the circumstances and since the plaintiff/appellant has not
made out any Substantial Question of Law, the Second Appeal fails and
is accordingly dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
08.06.2021
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
https://www.mhc.tn.gov.in/judis
S.A.No.313 of 2020
To
1.The Principal Subordinate Judge,
Villupuram.
2.The Principal District Munsif,
Villupuram.
https://www.mhc.tn.gov.in/judis
S.A.No.313 of 2020
P.T. ASHA, J,
mps
S.A.No.313 of 2020
and
C.M.P.No.6338 of 2020
08.06.2022
https://www.mhc.tn.gov.in/judis
