E.Arul Jothi Sankar Ayena Gounder ... vs M/S.Pradeepa Krishna Industries ...
2022 Latest Caselaw 4530 Mad

                                                                  SA.No.430/2021 & CRP.No.786/2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 08.03.2022

                                                       CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                       SA.No.430/2021 & CRP.No.786/2021and CMP.Nos.8210, 6584/2021


                    E.Arul Jothi Sankar Ayena Gounder @
                    E.Ayena Arul Jothi Kumar                             .. Appellant/Defendant

                                                        Vs.

                    M/s.Pradeepa Krishna Industries (P) Ltd.,
                    rep. by its Managing Director,
                    Dr.M.Chandrasekar,
                    S/o.S.K.Mylanandhan,
                    having Office at S.F.613,
                    Savadipalayam Post Office Road,
                    Nanjai Oothukuli Village,
                    Modakurichi (via)
                    Erode District.                                       .. Respondent/Plaintiff


                    Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
                    Code to set aside the judgment and decree of the learned I Additional
                    Subordinate Judge, Erode dated 29.03.2019 and made in A.S.No.10/2017
                    setting aside the judgment and decree of the learned Principal District
                    Munsif, Erode dated 23.12.2016 and made in O.S.No.413/2012.

                                      For Appellant           :   Mr.T.Gowthaman
                                      For Respondent          :   Mr.V.P.Sengottuvel




https://www.mhc.tn.gov.in/judis
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                                                                      SA.No.430/2021 & CRP.No.786/2021



                                                       JUDGMENT

(1) The defendant in the Suit in O.S.No.413/2012 on the file of the

learned Principal District Munsif, Erode is the appellant in the above

Second Appeal.

(2) The respondent as plaintiff, filed the Suit in O.S.No.413/2012 for

delivery of possession of the Suit property, directing the defendant to

pay damages of Rs.10,000/- till the date of delivery of possession,

and for other consequential reliefs. The Suit property is described as

a land measuring an extent of 0.12.0 hectares in RS.No.793/2,

0.15.0 hectares in RS.No.793/3 and 0.39.0 hectares in RS.No.793/4

corresponding to the old RS.No.617 in Nanjai Uthukuli Village. It is

pertinent to mention that the boundary description for the Suit

property is not given in the plaint schedule.

(3) The case of the plaintiff is that the Suit property comprised in all the

three Survey Numbers. along with an extent of 1.64.0 hectares in

RS.No.792 in Nanjai Uthukuli Village, Erode Taluk originally

belonged to the defendant and his family members. It is stated that

by virtue of a registered Sale Deed dated 13.07.2006, the defendant

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and his family members sold the Suit property and the property in

S.No.792 to M/s.SKM Animal Feeds and Foods (India) Limited, a

Company registered under the Companies Act.

(4) It is stated that the plaintiff purchased the Suit property along with

the other properties from M/s.SKM Animal Feeds and Foods (India)

Limited under the registered Sale Deed dated 22.05.2012 and has

been in possession and enjoyment of the same since the date of sale.

It is the specific case of plaintiff in the plaint that the defendant is the

owner of property in RS.No.769/2 which is located on the north of

the Suit property.

(5) Leaving alone the pleadings and evidence that was adduced before

the Lower Court, it is candidly admitted before this Court that the

defendant had sold the property on the southern side of odai situated

in S.No.793/1. Stating that the defendant trespassed into and

occupied the Suit property in RS.No.793/2, RS.No.793/3 and

RS.No.793/4 the plaintiff has come forward with the Suit for delivery

of possession of the property which lies on the southern side of the

odai in S.No.793/1.

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(6) However, a written statement was filed by the defendant denying the

averments made in the plaint. It is the specific case of defendant that

the defendant is in possession of the land in S.No.769/2 as absolute

owner and there exist a odai poramboke in RS.No.793/1 which is on

the south of defendant's property.

(7) It is admitted that the plaintiff's property and the defendant's

property in RS.No.769/2 are separated by a east west poramboke

odai in RS.No.793/1. The east west poramboke odai runs on the

northern side of the plaintiff's property. It is the positive case of the

defendant that he has not encroached either the odai or any portion

of the plaintiff's property. The Sale Deed executed by the appellant

and others in favour of M/s.SKM Animal Feeds and Foods (India)

Limited is marked as Ex.A2.

(8) The Suit in O.S.No.413/2012 was dismissed by the Trial Court

holding that the plaintiff has not proved any encroachment by

defendant in the suit property in RS.No.793/2, RS.No.793/3 and

RS.No.793/4. Aggrieved by the same, the plaintiff preferred an

Appeal in AS.No.10/2017. The Lower Appellate Court, however,

though, gave a specific finding that there is no proof regarding any

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encroachment, observed further that if at all any encroachment by

appellant in the suit property, appellant shall hand over possession of

the property located in in RS.No.793/2, RS.No.793/3 and

RS.No.793/4 to the respondent and delivery of possession was

directed by decreeing the suit. However, suit for damages is

dismissed.

(9) As against the judgment and decree in AS.No.10/2017 dated

29.03.2019 reversing the judgment and decree of the Trial Court in

O.S.No.413/2012 dated 23.12.2016 the above appeal is preferred by

the defendant. The appellant raised the following substantial

questions of law in the Memorandum of Grounds of Second Appeal.

a. Whether the Lower Appellate Court were right in reversing the well-considered judgment of the Trial Court with regard to the delivery of possession without any evidence for any encroachment on the part of the appellant into the suit property?

b. Whether it was open to the Lower Appellate Court to order delivery of possession without setting out the extent thereof and without giving any specific finding that the appellant had any extent of the suit property in his illegal possession?

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c. Whether the Lower Appellate Court was right in ordering delivery of possession alone separately after confirming the judgment of the Trial Court in toto with respect to all the material aspects of the case with respect to ownership, possession and injunction?

(10) The learned counsel appearing for the appellant produced before this

Court, the Sale Deed under Ex.A2 dated 13.07.2006 by which the

appellant has sold the property to the plaintiff 's predecessor in title.

The boundary description in Ex.A2 is relevant and hence extracted

as below:

<nuhL hPo. Mty;g{e;Jiw rg;hPo. <nuhL tl;lk;. e";ir Cj;Jf;Fsp fpuhkk;.

hP/r;/792be/g[/bcw/1/64/0f;Fj; jPh;it U:/2/26. ,jd; giHa f/r/617 ,J g{uht[k.; gpd;Dk;.

hP/r;/793/2be/g[/bcw/0/12/0f;Fj; jPh;it U:/0/17. ,jd; giHa f/r/617 ,J g{uht[k.; gpd;Dk;.

hP/r;/793/3be/g[/bcw/0/15/0f;Fj; jPh;it U:/0/26. ,jd; giHa f/r/617 ,J g{uht[k.; gpd;Dk;.

hP/r;/793/4be/g[/bcw/0/39/0f;Fj; jPh;it U:/0/54. ,jd; giHa f/r/617 ,J g{uht[k.;

Mff;TLk; g[/bcw/2/30/0f;Fj; jPh;it U:/3/23 ,J g{uht[k.; ,e;jtif tp!;jPh;zKs;s g[";irg{kp

https://www.mhc.tn.gov.in/judis 6 Page of 12 SA.No.430/2021 & CRP.No.786/2021

g[/V/5/68brd;l; Ie;J Vf;fh; mWgj;jp vl;L brd;l; tp!;jPh;zKs;s g[";ir g{kp g{uht[k.; ,jw;Fr; brf;Fg;ge;jp/

Vw;fdnt c';fs; fk;bgdpf;Fg; ghj;jpag;gl;l g{kpf;Fk; fpHf;Fk;. tlf;Fk;. mh;jj; dhhP!t ; ud; g{kpf;F nkw;F hP/r;/793/1 be/fpHnky; Xilf;Fk; bjw;F ,jd; kj;jpapy; cs;s g[";ir g{kp g[/V/5.68brd;l; Ie;J Vf;fh; mWgj;jp vl;L brd;l; tp!;jPh;zKs;s g[";ir g{kp g{uht[k.; ,jw;Fr; rk;ke;jg;gl;l khK:y; tHpeil jlghj;jpak; rfpjKk;. KhKy;go tz;o. ThfdhjpfSld; Ml;fs; fhy;eilfis xl;of;bfhz;L nghftut[ss ; ghj;jpak; rfpjKk;. KhK:y;

tHpeiljlghj;jpak; rfpjKK; nru ,e;j Rj;jf;fpuaj;jpw;F fl;Lg;gl;lJ/ (11) As per the boundary description, the respondent's predecessor in

interest had purchased an extent of 5 acres 68 cents comprised in

RS.No.792, RS.No.793/2, RS.No.793/3 and RS.No.793/4. The

northern boundary of the property purchased by the plaintiff 's

predecessor in title is shown as the east-west odai in RS.No.793/1. If

the defendant has to encroach the suit property he has to cross the

odai on the southern side of his property and then to move further

down on the south to the respondent's/plaintiff 's property in

S.No.793/2 or S.No.793/3 or S.No.793/4. The plaintiff has not given

the exact location in which the defendant has encroached the

property.

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(12) Learned counsel appearing for the respondent produced the

Advocate Commissioner's sketch in respect of RS.No.793. The odai

is in RS.No.793/1, and no part of odai runs into the property

purchased by the plaintiff in RS.No.793/2, RS.No.792/3 or

RS.No.792/4. From the field map, it can be seen that the appellant

cannot encroach the property of plaintiff, as the plaintiff 's property

is not adjacent to the appellant's property. It is the definite case of the

defendant in the Suit that the defendant had never encroached or

claimed any right over any of the property sold to the plaintiff's

predecessor in interest particularly the property in S.No.793/2,

S.No.792/3 or S.No.792/4.

(13) Though, the Trial Court specifically found that the plaintiff has not

proved any encroachment by the appellant, the Lower Appellate

Court has decreed the Suit as if the defendant will not be aggrieved

by the decree as he does not have any claim over the property of

plaintiff which was actually sold by the defendant to the plaintiff 's

predecessor interest. In such circumstances, the conclusion of the

Lower Appellate Court in decreeing the Suit without a finding that

the defendant had encroached into any portion of the plaintiff's

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property is not proper. When this Court examined the evidence let in

by both sides, this Court is unable to find any positive evidence to

come to the conclusion that any portion of the property sold by the

defendant in favour of plaintiff 's predecessor in title has been

encroached by the defendant.

(14) Therefore, the Trial Court is right in holding that the encroachment

alleged by the plaintiff is not proved. Learned counsel appearing for

the respondent submitted that the defendant may encroach into the

property of plaintiff by shifting the odai to further south or by

showing some of the property of plaintiff as odai.

(15) This Court is unable to find any factual basis for the apprehension

expressed by the learned counsel appearing for the plaintiff. As seen

from the records, the property of plaintiff and defendant are divided

by a well defined odai as detailed in the revenue records.

(16) The learned counsel of the defendant refers to the specific portion of

paragraph 8 of the written statement, wherein the defendant has

stated that on the north of RS.No.792 there exists a nilaviyal odai in

RS.No.793/4. From this the learned counsel appearing for the

defendant pointed out that the defendant has specifically pleaded a

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odai in RS.No.793/4. However, it is to be pointed out that the odai

which is referred to in paragraph 8 is not the odai which lies in

between the property of plaintiff and defendant. The east-west odai

in RS.No.793/1 runs on the north of plaintiff 's property in

S.No.793/2, and on the south of defendant's property. The Court has

not gone into the existence of another odai which is detailed in

revenue map. The existence of another odai is not gone into by the

Appellate Court.

(17) Having regard to the discussion above, this Court finds that the

Lower Appellate Court has not given any valid reasons to decree the

suit for delivery of possession. While referring to grant a decree for

delivery of possession, the Trial Court has passed a well considered

judgment. As admitted by both parties, there is no dispute with

regard to the Title Deeds under which the plaintiff is entitled to claim

right over the property purchased in RS.Nos.792/2, 792/3 and 792/4.

(18) It is admitted that the defendant has no right in any of the properties

purchased by the plaintiff. Since the plaintiff has failed to prove any

encroachment in the suit property by the defendant, the Lower

Appellate Court cannot grant a decree for recovery of possession,

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merely on an assumption that such decree would not affect the

defendant. Since Execution Petition is filed, this Court is of the view

that the suit is filed with an ulterior motive. In view of the above

discussions, this Court is inclined to allow the Second Appeal. In the

result, the Second Appeal is allowed setting aside the judgment and

decree of the Lower Appellate Court dated 29.03.2019 made in

A.S.No.10/2017 and confirming the judgment and decree dated

23.12.2016 made in O.S.No.413/2012 by the learned Principal

District Munsif, Erode. Consequently connected Civil Miscellaneous

Petition is closed.

(19) In view of the judgment of this Court setting aside the judgment and

decree of the Lower Appellate Court in AS.No.10/2017 dated

29.03.2019, the Suit in O.S.No.413/2012 stands dismissed. Hence,

the whole execution proceedings cannot be sustained and therefore

the Civil Revision Petition is allowed. Consequently, connected Civil

Miscellaneous Petition is closed.

08.03.2022 cda Internet : Yes

S.S.SUNDAR, J.,

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cda

To

1.The I Additional Subordinate Court, Erode.

2.The Principal District Munsif Court, Erode.

3.The Section Officer, VR Records, High Court, Chennai.

SA.No.430/2021 & CRP.No.786/2021 and CMP.Nos.8210, 6584/2021

08.03.2022

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