S. Eswaran vs N.Shanmugam
2023 Latest Caselaw 276 Mad

                                                                           S.A.Nos.1068 & 1075 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Dated : 05.01.2023

                                                      CORAM

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                            S.A.Nos.1068 & 1075 of 2022
                                                         and
                                    C.M.P.Nos.22977, 22980, 23164 & 23167 of 2022

                   1. S. Eswaran
                   2. E.Vijayakumar
                   3. E.Gopi                               ...   Appellants in both appeals

                                                          Vs

                   1. N.Shanmugam

                   2. The Tahsildar,
                   Modakkurichi
                   Modakkurichi Taluk,
                   Erode District.                         ...   Respondents in both appeals

Prayer :- These Second Appeals are filed under Section 100 of Civil Procedure Code to set aside the Judgment and Decree dated 02.08.2021 made in A.S.Nos.44 & 45 of 2020 on the file of the I Additional Subordinate Judge, Erode, confirming the Judgment and Decree dated 16.03.2020 in O.S.No.175 of 2014 on the file of the Principal District Munsif, Erode.

                                                   In both appeals
                                         For Appellants    : Mr.K.S.Karthik Raja
                                         For R2            : Mr.C.Sathish
                                                             Government Advocate

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

                                                                            S.A.Nos.1068 & 1075 of 2022

                                            COMMON JUDGMENT

S.A.No.1068 of 2022 is directed as against the Judgment and

Decree dated 02.08.2021 made in A.S.No.45 of 2020 on the file of the

I Additional Subordinate Judge, Erode, confirming the Judgment and Decree

dated 16.03.2020 made in O.S.No.175 of 2014 on the file of the Principal

District Munsif, Erode, thereby dismissing the suit.

2. S.A.No.1075 of 2022 is directed as against the Judgment

and Decree dated 02.08.2021 made in A.S.No.44 of 2020 on the file of the

I Additional Subordinate Judge, Erode, confirming the Judgment and Decree

dated 16.03.2020 made in O.S.No.175 of 2014 on the file of the Principal

District Munsif, Erode, thereby allowing the counter claim.

3. The appellants are the plaintiffs and the respondents are the

defendants. The appellants filed a suit for permanent injunction in respect

of the suit property. The case of the appellants is that from the year 1996,

they are in possession and enjoyment of the suit property and the property

originally belonged to Tamil Nadu Boomidhana Board and thereafter, they

had spent several lakhs to level the land for cultivation. They digged up a

well and cultivating the land. They also constructed a house in the suit

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

S.A.Nos.1068 & 1075 of 2022

property and they are residing in the said house. They obtained electricity

connection for their house. While being so, the first respondent herein

attempted to trespass into the land on 30.03.2014. Hence, the suit.

4. The first respondent resisted the suit by way of filing

written statement and also made counter claim of declaration and recovery

of possession in respect of the suit property. The suit property is an

agricultural land and it originally belonged to Tamil Nadu Boomidhana

Board. In the year 1997, the suit property was gifted by Tamil Nadu

Boomidhana Board in favour of the first respondent herein. Thereafter, the

first respondent digged up a well and cultivating the said land. In the year

1990, the first respondent also obtained electricity connection in

S.C.No.137. Due to his avocation, he went out of the village and also in the

year 2003 there was no water and due to dry weather he was not able to

cultivate the said land. Therefore, in order to maintain the suit property,

the first plaintiff was requested to maintain the suit property. He also

borrowed a sum of Rs.1,50,000/- as loan from the first plaintiff and

permitted him to maintain the suit property. Thereafter, though the first

respondent is ready and willing to return the amount even then, the

appellants herein refused to hand over the said land. Therefore, he made

counter claim for declaration and recovery of possession. https://www.mhc.tn.gov.in/judis

S.A.Nos.1068 & 1075 of 2022

5. On the side of the appellants, they had examined P.Ws.1

to 3 and marked Exs.P1 to P22. On the side of the respondent, they had

examined D.Ws.1 to 4 and marked Exs.D1 to D14. On considering the oral

and documentary evidences adduced by the respective parties and the

submission made by the learned counsel, the trial Court dismissed the suit

filed by the appellants and decreed the counter claim filed by the first

respondent herein and declared the suit property in favour of the first

respondent and ordered for recovery of possession as against the appellants.

Aggrieved by the same, the appellants filed two appeal suits in A.S.Nos.44

& 45 of 2020. The First Appellate Court has also dismissed both the

appeals and the Judgement and Decree passed by the Trial Court was

confirmed. Hence, the present second appeals.

6. In both second appeals, the learned counsel for the

appellants has raised the following substantial questions of law:

a) Are the Courts below right in dismissing the suit for injunction filed by the appellants especially when the 1st respondent have admitted the appellants possession over the suit property ?

b) When the 1st respondent has failed to establish his title over the suit property by

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

S.A.Nos.1068 & 1075 of 2022

producing the original title document, are the Courts below right in allowing the counter claim for declaration sought by the 1st respondent ?

c) Are not the judgments of the Courts below perverse in allowing the counter claim in the absence of any oral and documentary evidence to substantiate ?

7. Heard, Mr.K.S.Karthik Raja, the learned counsel

appearing for the appellants and Mr.C.Sathish, learned Government

Advocate appearing for the second respondent and perused the materials

available on record.

8. The learned counsel appearing for the appellants would

submit that the appellants marked Exs.A1 to A22. Ex.A12 is the kist

receipt for the suit property and thus it is clear that they are in possession

and enjoyment of the suit property. The suit property belonged to Tamil

Nadu Boomidhana Board and it is also evident from the report of the

Tahsildar. Though, the first respondent claimed that the suit property was

handed over to the appellants in the year 2003, no document was produced

by them to prove the same.

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

S.A.Nos.1068 & 1075 of 2022

9. A perusal of the documents reveals that admittedly, the suit

property belonged to Tamil Nadu Boomidhana Board. Thereafter, the suit

property was gifted in favour of the first respondent herein. In order to

prove the same, the first respondent marked Ex.D1 dated 17.12.1990. It

was issued by the Tamil Nadu Boomidhana Board, Madurai for the suit

property in favour of the first respondent. Thereafter, the first respondent

digged up a well and applied for electricity service connection, which was

marked as Ex.P2. On 28.03.2014, when the first respondent requested the

appellants to return the land for which he lodged a complaint and the same

was marked as Ex.D3. Therefore, the first respondent proved that the suit

property was allotted by the Tamil Nadu Boomidhana Board and thereafter,

he digged up a well and obtained electricity connection. At one point of

time, the appellants were gifted or assigned the suit property by Tamil Nadu

Boomidhana Board. However, they were permitted to occupy the land. The

first respondent, in order grab the land, had filed a suit for permanent

injunction in respect of the suit property as against the respondents herein.

10. As such the Courts below have analyzed the evidences

adduced by the parties both the documentary and oral in detail and by

giving cogent reasons, concluded rightly and dismissed the suit filed by the https://www.mhc.tn.gov.in/judis

S.A.Nos.1068 & 1075 of 2022

appellants and decreed the counter claim made by the first respondent

herein. Accordingly, this Court is of the considered opinion that no

substantial question of law is involved in these appeals.

11. In view of above, these Second Appeals are dismissed

and the Judgment and Decree dated 02.08.2021 made in A.S.Nos. 44 & 45

of 2020 on the file of the I Additional Subordinate Judge, Erode, confirming

the Judgment and Decree dated 16.03.2020 made in O.S.No.175 of 2014 on

the file of the Principal District Munsif, Erode, is confirmed. Consequently,

connected miscellaneous petitions are closed. There shall be no order as to

costs.

05.01.2023

Index : Yes/No Internet : Yes/No Speaking order/Non-speaking order Lpp

To

1.The I Additional Subordinate Judge, Erode.

2.The Principal District Munsif, Erode.

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

S.A.Nos.1068 & 1075 of 2022

G.K.ILANTHIRAIYAN, J.

Lpp

S.A.Nos.1068 & 1075 of 2022 and C.M.P.Nos.22977, 22980, 23164 & 23167 of 2022

05.01.2023 https://www.mhc.tn.gov.in/judis