Madras High Court
Manickathai @ Manickam vs M.R.Chinnasamy on 2 March, 2023
S.A.No.155 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.155 of 2023
and
C.M.P.No.4503 of 2023
Manickathai @ Manickam,
W/o. Kadirvelkalingarayar .... Appellant
Vs
1. M.R.Chinnasamy
S/o.M.C.Rathinam
2. M.C.Rathinam
S/o.Late M.R.Chinnaswamy Gounder
3. R.Sandhakumar
S/o.Late Ramasamy Gounder
R.Sampathkumar (Died)
4. Chitraleka Sampathkumar
W/o.Late R.Sampathkumar
5. Sumangala Hari
W/o.Hari
6. S.Ganesh Rathinam
S/o.Late R.Sampathkumar .... Respondents
Prayer :- This Second Appeal is filed under Section 100 of Civil
Procedure Code to set aside the Judgment and Decree dated 10.10.2022
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S.A.No.155 of 2023
passed in A.S.No.10 of 2016 on the file of the Subordinate Court, Pollachi,
reversing the Judgment and Decree dated 08.02.2016 passed in O.S.No.118
of 2008 on the file of the District Munsif Court, Pollachi.
For Appellants : Mr.K.R.Arun Shabari
JUDGMENT
This Second Appeal is directed as against the Judgment and
Decree dated 10.10.2022 passed in A.S.No.10 of 2016 on the file of the
Subordinate Court, Pollachi, reversing the Judgment and Decree dated
08.02.2016 passed in O.S.No.118 of 2008 on the file of the District Munsif
Court, Pollachi, thereby allowing the suit seeking for permanent injunction.
2. The appellant is the plaintiff and the respondents are the
defendants. The case of the plaintiff is that the suit schedule property and
other properties belonged to one Ponnammal, wife of M.R.Chinnaswamy
Gounder. The first defendant is the son and the defendants 3 and 4 are the
grandsons through the eldest son of the said Ponnammal. The second
defendant is the son of the first defendant. The plaintiff is the grand
daughter of Ponnammal through her daughter deceased Muthammal. While
being so, on 23.02.1983, the said Ponnammal executed a registered Will,
thereby bequeathed the suit properties in favour of the defendants. The 'E'
Schedule property, which is portion of the suit property herein, was
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S.A.No.155 of 2023
bequeathed in favour of the plaintiff. Thereafter, the said Ponnammal died
on 07.12.1985. However, the defendants 1 to 4 had set up a false case and
created annexure to the said Will. The property, which was given to the
plaintiff, has been revoked by way of codicil. On demise of the said
Ponnammal, the defendants had taken possession and enjoyment of the
properties. Therefore, the plaintiff possession was denied by them and she
was constrained to file a suit for declaration of her right in O.S.No.24 of
1986 on the file of the Subordinate Court, Udumalpet and it is pending. In
the suit properties, there are five big grown up tamarind trees and about 900
silk cotton trees are planted. All of them are grown up and yielding, the
entire benefits are enjoying by the defendants. Therefore, now the appellant
was threatened by the defendants that they would cut and remove the
tamarind trees and silk cotton trees. Hence, the suit.
3. The defendants/respondents resisted the suit and filed
written statement stating that the property, which was bequeathed in favour
of the plaintiff, was cancelled by her grandmother, viz., the said
Ponnammal, by way of codicil. As per the codicil, the plaintiff does not
have any right in the suit property. The suit filed by the plaintiff in
O.S.No.24 of 1986, only because the plaintiff was unable to defeat the fact
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S.A.No.155 of 2023
that the right given to her in the Will has been taken away by the codicil.
After the Will, the defendants had taken possession of the land, there are
only four tamarind trees and rest of the lands were vacant. In fact, the
defendants by investing more than Rs.30,000/- to the said lands for
developing and also planted the silk cotton trees. They are spending
Rs.10,000/- per annum to maintain the said trees. There is absolutely no
reason at all for the defendants to damage their own properties,
subsequently, they invested huge amount to develop the growing silk cotton
trees.
4. Based on the pleadings, the Trial Court framed the
following issues :-
(i) Whether the plaintiff is entitled for permanent
injunction as prayed for ?
(ii) What other relief plaintiff is entitled for ?
5. On the side of the plaintiff, she had examined P.W.1 and no
exhibit was marked. On the side of the defendants, no one was examined
and no document was marked. The Court has marked Ex.C1.
6. On considering the oral and documentary evidences
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S.A.No.155 of 2023
adduced by the respective parties and the submission made by the learned
counsel, the trial Court decreed the suit. Aggrieved by the same, the second
respondent preferred an appeal in A.S.No.10 of 2016 before the
Subordinate Judge, Pollachi. The Appellate Court allowed the appeal and
dismissed the suit filed by the plaintiff. Aggrieved by the same, the
appellant filed the present second appeal.
7. The learned counsel for the appellants has raised the
following substantial questions of law:
(i) Does not the burden of proof with respect to the
claims made by the second defendant lie with the second
defendant alone ?
(ii) Does not the burden of proof lying with the
second defendant shift on the plaintiff only after such
burden of proof is discharged by the second defendant with
requisite evidences ?
(iii) Is not the plaintiff entitled to a relief of
permanent injunction, when the 2nd defendant has failed to
prove the alleged absence of any trees from the suit
property, during the tendency of the first appeal ?
8. Heard, Mr.K.R.Arun Shabari, the learned counsel appearing
for the appellant and this Court considered the submission made by the
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S.A.No.155 of 2023
learned counsel for the appellants.
9. The learned counsel appearing for the appellant would
submit that it is only for permanent injunction to some trees, which are
situated in the suit property. Pending appeal, the Trial Court appointed the
Advocate Commissioner. In the suit land, there are five tamarind trees, aged
about 40 to 45 years. That apart, 900 to 1000 silk cotton trees are also
planted in the suit land. Unfortunately, the First Appellate Court dismissed
the suit on the ground that the appellant failed to produce any documents to
show that the trees were planted by her grandmother. He further submitted
that even according to the defendants, they were taken possession of the
suit land, there were five tamarind trees. Now, they are taking steps to cut
down those trees.
10. A perusal of the records reveals that the appellant filed a
suit for permanent injunction restraining the respondents herein not to cut
the trees or destroying and removing any of the trees in the suit land. She is
claiming the suit property through a Will dated 23.02.1983. As per the
Will, she was bequeathed 'E' Schedule property, executed by her
grandmother viz., the said Ponnammal. Whereas, the case of the
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S.A.No.155 of 2023
respondents is that as per the subsequent codicil, the share, which was
allotted in favour of the plaintiff, was cancelled. Admittedly, the
respondents are in possession and enjoyment of the suit schedule property.
11. On perusal of their written statement, they categorically
admitted that they are taking possession of the suit property, there were five
tamarind trees. Thereafter, they were planted silk cotton trees and they are
enjoying the same. They also categorically stated that there is absolutely
no reason at all to damage their own property especially after they are
invested hard labour and a huge amount to develop the land by growing silk
cotton trees. The silk cotton trees so grown by them and they can do
anything with them as they please. It shows that they are in possession of
the suit property, they had planted silk cotton trees and they were enjoying
the same. In fact, the plaintiff filed a suit for declaration in O.S.No.24 of
1986 on the file of the Subordinate Court, Udumalpet, transferred to the file
of the District Munsif Court, Pollachi and re-numbered as O.S.No.118 of
2008. It is also seen that it is only filed for declaration.
12. As such the Courts below have analyzed the evidences
adduced by the parties, both the documentary and oral in detail, and by
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S.A.No.155 of 2023
giving cogent reasons, concluded rightly and dismissed the suit.
Accordingly, this Court is of the considered opinion that no substantial
question of law is involved in this appeal.
13. In view of above, this Second Appeal is dismissed and
the Judgment and Decree dated 10.10.2022 passed in A.S.No.10 of 2016 on
the file of the Subordinate Court, Pollachi, reversing the Judgment and
Decree dated 08.02.2016 passed in O.S.No.118 of 2008 on the file of the
District Munsif Court, Pollachi, are hereby confirmed. However, the
appellant is at liberty to approach the Trial Court, in the suit for declaration
for appropriate relief, if so advised. Consequently, connected
miscellaneous petition is closed. There shall be no order as to costs.
02.03.2023
Index : Yes/No
Neutral Citation : Yes/No
Speaking order/Non-speaking order
Lpp
To
1. The Subordinate Judge, Udumalpet.
2. The District Munsif, Pollachi.
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S.A.No.155 of 2023
G.K.ILANTHIRAIYAN, J.
Lpp
S.A.No.155 of 2023
and
C.M.P.No.4503 of 2023
02.03.2023
https://www.mhc.tn.gov.in/judis
