Madras High Court
Vengudusamy (Died) vs S.Thangavel (Deceased) on 21 December, 2023
SA.Nos.377 & 378 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.12.2023
PRONOUNCED ON : 21.12.2023
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.Nos.377 & 378 of 2004
and
CMP.Nos.2642 of 2004, 4002 of 2023 & 112 of 2005
S.A.No.377 of 2004
Vengudusamy (Died)
2. Sivabhakiyam
3. Chitrakala
(A2 & A3 bring on record as LRs of deceased sole appellant)
... Appellants
- Vs -
1. S.Thangavel (Deceased)
2. S.Loganathan (Deceased)
3. S.Kanagaraj
4. S.Nagaraj (Died)
5. S.Ananthanarayanan
6. T.Manian
7. T.Saravanan
(R6 & R7 brought on record as LRs of the deceased R1
vide order dated 18.02.2016 made in CMP.Nos.1584 to 1586/2007)
8. Nirmala
(R8 brought on record as LR of the deceased R2
vide order dated 18.02.2016 made in CMP.Nos.1587 to 1589/2007)
R4-died-No surviving LR's recorded vide order dated 30.08.2022
... Respondents
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SA.Nos.377 & 378 of 2004
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the judgment and decree passed in A.S.No.42 of 2001 by the Sub
Court, Udumalpet, dated 24.07.2003 modifying the judgment and decree
passed in O.S.No.720 of 1992 by the District Munsif Court, Udumalpet dated
23.03.1999.
For Appellants : Mr.B.Kumarasamy
For Respondents : Mr.N.Thiagarajan for RR3, 5, 6 & 7
R4 – Died
R1 & R2 - died (steps taken)
R8- Not ready in notice
S.A.No.378 of 2004
Vengudusamy (Died)
2. Sivabhakiyam
3. Chitrakala
(A2 & A3 bring on record as LRs of deceased sole appellant)
... Appellants
- Vs -
1. S.Thangavel (Deceased)
2. S.Loganathan (Deceased)
3. S.Kanagaraj
4. S.Nagaraj (Died)
5. S.Ananthanarayanan
6. The District Collector,
Tamil Nadu Government,
Coimbatore.
7. The Tahsildar,
Katcherry Street,
Udumalpet,
Coimbatore.
8. T.Manian
9. T.Saravanan
(R8 & R9 brought on record as LRs of the deceased R1
vide order dated 18.02.2016 made in CMP.Nos.1590 to 1592/2007)
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SA.Nos.377 & 378 of 2004
10.Nirmala
(R10 brought on record as LR of the deceased R2
vide order dated 18.02.2016 made in CMP.Nos.1593 to 1595/2007)
R4-died-No surviving LR's recorded vide order dated 30.08.2022
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the judgment and decree passed in A.S.No.3 of 2002 by the Sub
Court, Udumalpet, dated 24.07.2003 reversing the judgment and decree
passed in O.S.No.750 of 1992 by the District Munsif Court, Udumalpet,
dated 23.03.1999.
For Appellants : Mr.B.Kumarasamy
For Respondent
: Mr.N.Thiagarajan for RR3, 5, 8 & 9
Mr.C.Sathish
Govt. Advocate for R6 & R7
RR1, 2 & 4-Died
*****
COMMON JUDGMENT
Since both the Second Appeals are arising for the same property, this
Court deems it appropriate to dispose of both the appeals by way of a
common judgment.
2. The instant Second Appeals have been filed at the instance of the
plaintiffs. It appears that the plaintiff Mr.Vengudusamy originally filed a
suit for permanent injunction in O.S.No.720 of 1992 against the 7 private
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SA.Nos.377 & 378 of 2004
persons. Wherein the defendants put forth the contention that the
Government is the necessary party. Hence, the plaintiff has filed another suit
in O.S.No.750 of 1992 against the Government for the relief of injunction,
and subsequently amended the prayer seeking declaration. Both the suits
were decreed by the Trial Court on 23.03.1999. Against which, the
defendants in O.S.No.720 of 1992 preferred two Appeals in A.S.No.42 of
2001 and A.S.No.3 of 2002, in which the First Appellate Court set aside the
Trial Court's judgment, and the suit was ultimately dismissed. Aggrieved
with the same, the plaintiff is before this Court by way of these Second
Appeals.
3. For ready reference, the parties will be referred to according to their
litigative status before the Trial Court.
The brief facts, which give rise to the instant Second Appeals are as
follows:-
4. a) The plaintiff is the absolute owner of the suit property by virtue
of two Sale Deeds dated 11.08.1986 and 04.12.1991. According to the
plaintiff, the suit properties are vacant site, and except the plaintiff, no one
has got right over the same. While so, the defendants attempted to interfere
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SA.Nos.377 & 378 of 2004
with the suit property by contending that it is a public passage. Hence, the
plaintiff came forward with the suit for the relief of permanent injunction in
O.S.No.720 of 1992.
b) The said suit was resisted by the defendants by contending that the
suit property is the public passage and the plaintiff has no right title and
ownership over the same. It was also further contended that the Government
is a necessary party to the suit.
c) After filing of the above written statement, the plaintiff filed an
another suit in O.S.No.750 of 1992 originally for bare injunction and,
subsequently the prayer was amended for the relief of declaration and
injunction against the official defendants qua the Government. Wherein, the
plaintiff sought for the relief of declaration in respect of the suit property.
d) The said suit was resisted by the official defendants that the plaintiff
has been in encroachment of the suit property, and a notice have been issued
for removal of encroachment. Hence, the defendants in both the suits prayed
to dismiss the same.
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SA.Nos.377 & 378 of 2004
Evidence and Documents:-
5. Before the Trial Court, the plaintiff examined 4 witnesses as PW1 to
PW4, and marked as many as 10 documents as Exs.A1 to A10. On behalf of
the defendants, 6 documents have been marked as Exs.B1 to B6 and 2
witnesses have been examined as DW1 and DW2. Before the Trial Court,
Court documents were also marked.
Findings of the Court below:-
6. The Trial Court, after having gone into the oral and documentary
evidence, decreed the suit as prayed for. Aggrieved with the said judgment,
when the defendants preferred appeals, the First Appellate Court set aside the
judgment of the Trial Court by allowing the appeals and thereby, dismissed
the suits. Against the said finding, the plaintiff is before this Court by way
of these Second Appeals.
Substantial Question of Law:-
7. At the time of admission on 12.03.2004, this Court has formulated a
common substantial question of law, which is as follows:-
“Having regard to the recital regarding the western
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SA.Nos.377 & 378 of 2004
boundary in Ex.A4 and absence of any legal evidence
produced by the defendants in support of their defence, has not
the Lower Appellate Court committed an error of law in non
suiting the plaintiff in both the suits ignoring the material
evidence available on record?”
Submission of either side counsel:-
8. The learned counsel for the plaintiff/appellant in both the Second
Appeals would vehemently contend that by virtue of Sale Deeds dated
11.08.1986 and 04.12.1991, they are the absolute owner of the property and
that they have been in actual physical possession and enjoyment of the same.
It was also contended by the learned counsel for the plaintiff/appellants that
though it is the case of the defendants that the suit property is a Poromboke
passage, they have not submitted any documents before the Court to prove
their case. On the other hand, it was the contention of the learned counsel
for the plaintiff that by producing their Sale Deed, they have demonstrated
their title over the suit property. Hence, contended that they are entitled for a
decree as prayed for. In view of the same, the learned counsel for the
plaintiff prayed to allow the Second Appeals.
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SA.Nos.377 & 378 of 2004
9. Per contra, the learned counsel for the respondents in both the
appeals would contend that the suit property is a public passage and that the
encroachment of the plaintiff could be evidently proved through the Revenue
records and the sketch submitted by the defendants, and that the finding of
fact recorded by both the Courts below that the defendants in occupation of
an extent more than what is mentioned in his Sale Deed. Therefore, it is the
submission of the learned counsel for the defendants that the plaintiff has not
approached the Court with clean hands, and that he is not entitled for any
reliefs. Hence, prayed to dismiss the Second Appeals.
10. I have given my anxious consideration to either side submissions.
Analysis of the submissions:-
11. In order to decide the substantial question of law, this Court would
like to rely upon Exs.A1 and A3, which is the parental deeds in respect of the
suit property. The suit property is a passage between Madurai Veeran
Temple and the plaintiff's property. The Trial Court has granted decree with
a finding that the defendants have not submitted any document so as to prove
that the that the suit property is the Government Poromboke passage.
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SA.Nos.377 & 378 of 2004
12. It is settled principles of law that, when the plaintiff approaches
the Court seeking for the relief, the burden is upon him to prove the case and
he cannot rely upon the weakness of the defendants’ case. According to the
plaint, the suit property is the passage and that the passage is available
between the suit property comprised in S.F.No.20/A1A. According to
Exs.A1 and A3-Sale Deeds, the plaintiff is entitled for an extent of 4131
sq.ft+ 931 ½ sq. ft. This Court has perused Exs.B2 and B3, which are the
documents submitted by DW2. Ex.B2 is the notice issued to the defendants
to remove encroachment and Ex.B3 is the plan showing the alleged
encroachment. On perusal of Ex.B3, though the plaintiff is entitled for the
extent of 5062 ½ sq. ft, he was in possession and enjoyment of 6300 sq.ft.
13. As a matter of fact, Exs.B2 & B3 have been marked through DW2.
While perusing the cross examination of DW2, there is no denial as to the
enjoyment of the total extent as referred to in Ex.B3-plan. Though the Trial
Court accepted the evidence of DW2, still granted decree on the ground that
the defendants did not submit any record so as to prove that the excess
portion is the Government Poromboke land.
14. But the First Appellate Court, while re-appreciating the evidence,
has arrived at a conclusion that when the plaintiff has come up with a
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SA.Nos.377 & 378 of 2004
specific case, that too with specific boundary and with specific measurement,
he cannot be entitled for a decree more than the extent mentioned in his title
deeds [Exs.A1 and A3]. The First Appellate Court, in its judgment has
elaborately discussed all these aspects and has found that the finding
recorded by the Trial Court, shifting the burden upon the defendants, without
explaining as to how he was in excess occupation, is contrary to the settled
legal principles.
15. Therefore, when the plaintiff is only having a right over lesser
extent, since because the defendant has not proved the nature of land or
nature of classification of the property in question, that does not mean that
the plaintiff can have right more than the property mentioned in his Sale
Deed. Therefore, this Court is of the firm view that, the finding of fact
recorded by the First Appellate Court that the plaintiff is in occupation of
more than the property mentioned in his title deeds [Exs.A1 and A3] is
vindicated through Ex.B3-plan, and such plan has not at all been disputed by
the plaintiff, while cross examining the DW2. Therefore, this Court is of the
firm view that the finding of fact recorded by the First Appellate Court is
based on materials, and this Court could not find any perversity over the
same.
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SA.Nos.377 & 378 of 2004
16. From the submissions made by the learned counsel for the
appellants, this Court could not find any ground to deviate from the said
findings recorded by the First Appellate Court. In view of the above
discussion, the substantial question of law is answered in favour of the
respondents.
17. In the result, both the Second Appeals are dismissed by confirming
the judgments of the First Appellate Court. There shall be no order as to
costs. Consequently, connected Miscellaneous Petitions are closed.
21.12.2023
kmi
Index : Yes/No
Speaking Order : Yes/No
NCC : Yes/ No
To
1. The Sub Court,
Udumalpet.
2. The District Munsif Court,
Udumalpet.
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SA.Nos.377 & 378 of 2004
C.KUMARAPPAN, J
kmi
S.A.Nos.377 & 378 of 2004
21.12.2023
https://www.mhc.tn.gov.in/judis
