Madras High Court
Radhakrishnan (Died) vs Kaliamurthy on 7 July, 2023
S.A.No.1754 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.07.2023
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
S.A.No.1754 of 2003
1.Radhakrishnan (died)
2.R.Padma
3.R.Srinivasan
4.R.Eswaran
5.R.Gopala Krishnan
6.R.Jeyalakshmi
Appellants 2 to 6 are brought on record
as LRs of the deceased 1st appellant
vide order dated 01.12.2009 made in
M.P.(MD).No.192 of 2009 in S.A.No.1754 of 2003.
... Appellants
-Vs-
1.Kaliamurthy
2.Pappathi Ammal ... Respondents
PRAYER: The Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the decree and judgment passed by the Additional
Sessions Judge cum Chief Judicial Magistrate, Tanjore at Kumbakonam in
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A.S.No.41 of 2002 on 05.12.2002 reversing the judgment and decree passed
by the Additional District Munsif Judge at Kumbakonam in O.S.No.714 of
1994, dated 05.07.2001.
For Appellants : Mr.K.Sathiya Singh
For Respondents : Mr.K.Govindarajan
JUDGMENT
The appellant herein has filed a suit in O.S.No.714 of 1994 on the
file of the Additional District Munsif Court, Tanjore at Kumbakonam
against the respondents herein for bare injunction.
2. The said suit was decreed by the trial Court against the
respondents herein. The defendants in the said suit filed an appeal in
A.S.No.41 of 2002 on the file of Additional District Sessions cum Judicial
Magistrate, Tanjore at Kumbakonam. The first appellate Court, after hearing
the appeal, has allowed the appeal and set aside the judgment and decree
passed by the trial Court and dismissed the suit filed by the plaintiff.
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Against the said judgment and decree passed by the first appellate Court, the
plaintiff has filed the present second appeal before this Court.
3. While admitting the second appeal, this Court has formulated
the following substantial question of law:
In the absence of evidence to prove the case of appellant before
the lower appellate Court, whether the appellate Court decree and
judgment is correct?
4. The brief facts of the case of the appellant/plaintiff are as
follows:
The appellant has purchased the suit property under registered
sale deed dated 06.02.1979 for a valid consideration and he was put in
possession of the suit property. Therefore, the plaintiff is the absolute owner
of the suit property. From the date of purchase till the filing of the suit, the
appellant was in possession and enjoyment of the suit property as absolute
owner. He enjoyed the suit property by paying kist. The first item of the suit
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property lies on the south of the ancestral house owned by the appellant's
father and the second item of the property lies on the western side of the
house owned by the father of the appellant. The respondents, who are the
husband and wife, are residing in a portion of the ancestral house owned by
the father and in the rest of the house, the mother of the appellant and the
sisters were residing. The appellant is permanently residing at Chennai and
the suit property was lying as a vacant land. The first respondent is the
brother of the appellant. The respondents have no right and interest over the
suit property. When the appellant came to the suit property from Chennai on
19.11.1994, the respondents made a request to the appellant to permit them
to construct a house in the suit property, since the present occupation in the
ancestral house was not convenient for their accommodation. The appellant
has refused to give permission to put up a construction in the suit property.
The respondents have threatened the appellant on 20.11.1994, that they are
going to construct a house. Therefore, the plaintiff has filed the suit for bare
injunction restraining the respondents, their men, agents, legal
representatives and others claiming right in any manner interfering with the
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appellant's peaceful possession and enjoyment of the suit property.
5. The brief facts of the written statement filed by the first
respondent are as follows:
Though the appellant has purchased the suit property under
registered sale deed dated 06.02.1979, for valid consideration and he was in
possession and enjoyment of the suit property, however, under a family
arrangement between the appellant and the first respondent, the first
respondent was enjoying the suit property as absolute owner. The patta was
also issued in respect of the suit property to the first respondent. He paid the
tax and other Government dues and he has also obtained electricity
connection and put up a construction and enjoying the suit property and the
first respondent is in possession and enjoyment of the suit property to the
knowledge of the appellant for more than 15 years. Therefore, the
respondents also acquired right and title of the property by way of adverse
possession. The description of property given by the appellant is not clear
and misleading and the rest of the portions, the second respondent was in
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possession and enjoyment of the suit property. The Village Administrative
Officer has also given a certificate to the effect that the respondents are in
possession of the suit property for more than 13 years. The appellant is
permanently residing in Chennai and he is not in possession of the suit
property and the respondents are in possession and enjoyment of the suit
property and the suit filed by the plaintiff is not maintainable, since the
plaintiff was not in possession and he was out of possession of the suit
property.
6. Based on the above pleadings, the trial Court has framed the
following issues:
(i) Whether the appellant was entitled to get a relief of permanent
injunction as sought for by him?
(ii) Whether the appellant was in possession of the suit property or
the respondents?
(iii) Whether the suit property was rightly described in the plaint
and what other relief the plaintiff is entitled to?
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7. The above said issues were modified as follows:
(i) Is it true that the suit property was in possession and enjoyment
of the appellant?
(ii) Is it correct to say that the appellant was not in possession and
enjoyment of the suit property and only the respondents alone are in
possession and enjoyment of the suit property?
(iii) Whether the appellant was entitled to get a relief of
permanent injunction and what other relief the parties are entitled to?
8. Based on the pleadings, during the trial, before the trial Court,
on the side of the appellant, one witness was examined as P.W.1 and 8
documents were marked as Exs.A1 to A8. On the side of the respondents,
one witness was examined as D.W.1 and 5 documents were marked as
Exs.B1 to B5. Besides, two documents Exs.C1 and C2 were marked.
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9. Based on the above said oral and documentary evidence, the
trial Court has granted a decree in favour of the appellant and challenging
the same, the respondents herein have filed an appeal before the Additional
District Sessions cum Chief Judicial Magistrate, Tanjore at Kumbakonam.
The first appellate Court had dealt with the appeal and re-appreciated the
evidence and allowed the appeal and set aside the judgment and decree
passed by the trial Court. Therefore, the plaintiff is before this Court.
10. The learned counsel appearing for the appellant would submit
that the appellant has purchased the suit property under registered sale deed
dated 06.02.1979 for valid consideration. The said sale deed was marked as
Ex.A1. Even from the date sale deed onwards, the appellant was in
possession and enjoyment of the suit property and adjacent to the suit
property, the father of the appellant has got ancestral property, in which the
respondents and the mother of the appellant were residing. Since the
appellant was residing in Chennai, he used to come to the suit property
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occasionally. When lastly the appellant came to the suit property on
19.11.1994, the respondents requested the appellant to permit them to
construct a building in the suit property for their residence, since the house
situated in the ancestral property was not convenient for their
accommodation, for which the appellant denied. Further, he would submit
that the appellant has paid the kist and enjoyed the property, since the suit
properties are vacant land. Ex.A1, sale deed itself clearly shows that the suit
properties are punja land and the appellant was put in possession on the date
of sale deed and the Advocate Commissioner also inspected the suit
property and even prior to that, the respondents made a request to the
Panchayat for constructing the building, whereas the appellant has made an
objection and the oral and documentary evidence proved that the
respondents were not in possession of the suit property and the appellant
alone was in possession of the suit property. The kist paid by the appellant
for the Fasli 1390 to 1396 were marked as Ex.A2 and the Block
Development Officer written a letter to the Panchayat President,
Koranatukarupoor Panchayat/Ex.A3, which clearly shows that the
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respondents were not in possession of the suit property. Therefore, he
refused to give permission to the respondents to construct a house, which
clearly shows that on 22.07.1999, the respondents were not in possession of
the property. The respondents have not established the family arrangement
said to have been referred to in the written statement. The trial Court has
rightly appreciated the oral and documentary evidence and granted the
decree, whereas the first appellate Court unfortunately failed to re-
appreciate the evidence and simply allowed the appeal by setting aside the
judgment and decree, without any valid reason, which is against Ex.A1 /
recital made in the title deed of the appellant. He would further submit that
D.W.1 himself admitted that whenever the appellant comes to
Kumbakonam, he will stay at the suit property. Thereafter, the possession of
the properties lies in the hands of the appellant, whereas the respondents
have not filed any document to show that they were in possession of the suit
property. Though the respondents pleaded that the suit property is not
clearly shown in the schedule mentioned in the plaint, P.W.1 himself
admitted in his evidence that the suit property is adjacent to the ancestral
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property and the building is situated in the ancestral property not in the suit
property.
11. Further, he would submit that the first appellate Court has
erred in holding that P.W.1 in his evidence deposed regarding the cultivation
of the suit properties, whereas P.W.1 has not deposed any evidence
regarding the cultivation in the suit property. The evidence of P.W.1 was
clear regarding the possession of the property and he used to stay in the suit
schedule property, whenever he come to native place. Though the appellant
discloses all the facts as per Ex.A1, sale deed, whereas the first appellate
Court wrongly held that the appellant suppressed the fact that the
respondents are constructing the building in the suit schedule property.
When the appellant came to the native, the respondents seek permission to
construct a building in the suit property and occupied the same for their
convenience. Therefore, the finding of the first appellate Court warrants
interference.
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12. The learned counsel appearing for the respondents would
submit that though the suit property was purchased by the appellant, the suit
property is adjacent to the ancestral property of the appellant and the
respondents and the appellant also residing in Chennai, by way of family
arrangement, the respondents got the suit property and put up a construction
and they are residing in the suit property. The appellant has not properly
described the suit property in the plaint. The appellant has not properly
identified the suit property. Therefore, an Advocate Commissioner was
appointed to note down the physical features. On completion of the
inspection, the Advocate Commissioner also filed a report and the same was
marked as Exs.C1 and C2. Even in the Commissioner's report, the entire suit
property was shown as A, B, C, D, E and as per the Commissioner report, in
the suit property, there were residence in which the respondents are residing
more than over and above the statutory period even with the knowledge of
the appellant. Therefore, on the date of filing of the suit, the appellant was
not in possession of the property. Even as per the Commissioner report, the
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suit property is not a vacant site, as stated by the appellant. The appellant
has described the suit property as a vacant land, whereas the Commissioner
report shows otherwise. Therefore, the appellant has not come to the Court
with clean hands and suppressed the material facts. The appellant also
knowing fully well that the respondents have occupied certain portion of the
suit property and the suit property is not a vacant land as described in the
plaint by the appellant. The Commissioner report and Exs.C1 and C2 also
confirmed the same. The suit property was not a vacant land as on the date
of inspection made by the Advocate Commissioner. Therefore, the appellant
ought to have amended the plaint for recovery of possession. The appellant
has no right and title over the suit property and as per the family
arrangement, the respondents are the absolute owner and they were in
possession of the property.
13. Though the trial Court has erroneously decreed the suit,
without considering the oral and documentary evidence, however, the first
appellate Court as a final Court of fact finding authority re-appreciated the
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entire evidence independently found that on the date of filing of the suit, the
appellant was not in possession of the suit property. Therefore, the first
appellate Court has allowed the appeal and set aside the decree and
judgment passed by the trial Court. Therefore, there is no merit in the
second appeal and there is no substantial question of law emerged in the
second appeal. Therefore, all the findings are only based on the factual
position and the appellate Court based on the Commissioner report and
pleadings and the admission made by the appellant in his oral evidence,
rightly re-appreciated the evidence and interfered with the judgment and
decree passed by the trial Court and set aside the same and allowed the
appeal and there is no merit in the second appeal and the same is liable to be
dismissed.
14. Heard the learned counsel for the appellant and the learned
counsel appearing for the respondents and perused the materials available
on record.
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15. At the time of admission, this Court has formulated the
substantial question of law as stated above. Actually, the appellant is the
plaintiff and he has filed the suit for bare injunction, stating that the suit
property belongs to him and he has purchased the suit property under Ex.A1
and even as per the recital of Ex.A1, it is the punja land and from that date
onwards, he was in possession and enjoyment of the property. The first
respondent is the brother of the appellant and adjacent owner and tried to
interfere with. Therefore, he filed the suit for bare injunction. The
respondents have denied the same in the written statement itself. Though
Ex.A1 was admitted by the respondents, however, they have stated that on
the date of filing of the suit, the appellant was not in possession of the suit
property. The appellant was residing in Chennai. The respondents are alone
in possession of the the suit property. Even though the appellant has
vehemently contended that the appellant was in possession of the suit
property and the respondents are residing only in the ancestral property and
not in the appellant's property, whereas, the respondents have not only
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denied in the written statement but also let in oral evidence. The appellant
also during the evidence admitted that the respondents were in possession of
a portion of the suit property. Though the appellant has denied that the
respondents were not in possession of the suit property, whereas, a careful
reading of the evidence, P.W.2 admitted that the respondents were in
possession of a portion of the suit property and careful reading of the
Commissioner report filed in the year 1999 clearly shows that within the
suit property, certain construction and also thatched roof houses and other
encroachments and unfortunately the appellant has not denied the same and
has not made any objection for the Commissioner report and he has not
taken even any steps to get the warrant for revisit the property and measure
it and identify it. In the suit, though the schedule of property was described
as a vacant land, even the recital shows that it is a punja land. Though the
appellant has stated that he was in possession of the suit property from the
date of purchase, admittedly, Ex.A1 is the sale deed purchased by him, dated
06.02.1979 and if it is an agricultural land, there must be an extract or entry
in the adangal register and unfortunately the appellant has not produced any
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such document to show that he was in possession of the suit property, at the
time of filing of the suit.
16. When the respondents specifically denied about the
possession and enjoyment of the appellant, even though admitted that the
sale deed / Ex.A1 was in the name of the appellant, the Commissioner report
also shows that within the suit property, there are constructions and also
some thatched roofs and other encroachments, the appellant has not taken
any steps even to amend the plaint for recovery of possession. Since the
appellant has filed the suit for bare injunction, the appellant has to establish
his case.
17. Further, it is settled principle of law that the plaintiff has to
prove his case on his own strength and he cannot take advantage of the
weakness of the defence, whereas, in this case, especially the respondents
have denied the possession and enjoyment of the appellant in the suit
property and also the Commissioner report also shows that the suit property
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is not a vacant land as stated and described by the appellant in the plaint.
Therefore, the appellant has not established that on the date of filing of the
suit, he was in possession and enjoyment of the suit property. Admittedly,
the appellant was residing in Chennai regularly and occasionally he has
come to the suit property. Though the trial Court has granted a decree in
favour of the appellant, the first appellate Court, as a fact finding authority
re-appreciated the evidence independently and set aside the decree and
judgment passed by the trial Court and the entire material facts and evidence
shows only it is based on factual aspects and oral and documentary evidence
and given a finding that the appellant has not established the possession of
the suit property. Therefore, there is no substantial question of law involved
in this case and the second appeal is devoid of merits.
18. In the result, the Second Appeal is dismissed. No costs.
07.07.2023
akv
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To
1.The Additional Sessions Judge cum Chief Judicial Magistrate,
Tanjore at Kumbakonam.
2.The Additional District Munsif Judge,
Kumbakonam
3. The Record Keeper,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN,J.
akv
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