Madras High Court
H.N.Basuvaraj vs Rani on 9 October, 2023
S.A.No.435 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.435 of 2017
H.N.Basuvaraj ... Appellant
vs.
1.Rani
2.Padmavathi
3.B.Badu ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree dated 07.12.2016 passed by
Subordinate Court at Nilgiris, Udhagamandalam in A.S.No.14 of 2015,
confirming the judgment and decree made in O.S.No.24 of 2011 on the file
of the District Munsif Court at Kothagiri.
For Appellant : Mr.TK.Bhaskar
for M/s.Srinath Sridevan
For Respondents : Mr.L.Mouli
JUDGEMENT
The unsuccessful plaintiff in the suit is the appellant. The appellant
filed a suit for permanent injunction. The suit was dismissed by the Trial
https://www.mhc.tn.gov.in/judis
S.A.No.435 of 2017
Court and the findings of the Trial Court were confirmed by the First
Appellate Court. Aggrieved by the concurrent findings, the
appellant/plaintiff has come by way of this second appeal.
2. According to the appellant/plaintiff, he purchased 50 cents of land
in Old S.No.9/2A, New S.No.21/1 in Kengarai Village, Kothagiri Sub-
District, The Nilgiris District from one Ghagiammal, who is the mother of
respondents 1 and 3 and mother-in-law of 2nd respondent. It was further
averred that plaintiff had been in possession and enjoyment of the suit
property from the date of purchase. It was also claimed by the appellant that
the property retained by his vendor was subsequently sold to one Bhojaraj.
As the respondents attempted to interfere with the possession of the
plaintiff, he was constrained to file a suit for bare injunction by giving the
eastern boundary of the suit property as property of Bhojaraj.
3. The defendants filed written statement denying the averment of the
appellant that property on the eastern side of the suit property was sold by
them to Bhojaraj. It is the specific case of the respondents/defendants that
they are having tea garden in the eastern side of the suit property and they
https://www.mhc.tn.gov.in/judis
S.A.No.435 of 2017
have been cultivating in the said property. It is further stated that in order to
grab the property of the defendants in the eastern side of the suit property,
the plaintiff has come up with the above said suit by giving wrong
description.
4. Before the Trial Court, the appellant/plaintiff was examined as
PW.1 and yet another witness by name S.Murugesan was examined as
PW.2. On behalf of the appellant/plaintiff, 7 documents were marked as
Exs.A1 to A7. On the side of the respondents/defendants, the 3 rd defendant
was examined as DW.1 and one Thangavel was examined as DW.2. On
behalf of the respondents/defendants, 5 documents were marked as Exs.B1
to B5.
5. The Trial Court on appreciation of oral and documentary evidences
available on record, came to the conclusion that the plaintiff has not given
correct boundary description of the suit property and the consequently,
dismissed the suit. Aggrieved by the same, the appellant herein filed an
appeal in A.S.No.14 of 2015 on the file of the Subordinate Court at Nilgiris,
Udhagamandalam. The First Appellate Court also concurred with the
https://www.mhc.tn.gov.in/judis
S.A.No.435 of 2017
findings of the Trial Court and dismissed the appeal. Aggrieved by the
same, the appellant is before this Court.
6. The learned counsel appearing for the appellants submitted that the
appellant purchased 50 cents of property in New S.No.21/1 (Old S.No.9/2A)
in Kengarai Village, Kothagiri Sub-District, The Nilgiris District from
Ghagiammal under Ex.A1-Sale Deed. When purchase of the suit property
by the plaintiff was not disputed by the defendants, the Courts below ought
not to have dismissed the suit. The learned counsel further submitted that
the property retained by vendor on eastern side of the suit property was sold
by the respondents to one Bhojaraj subsequently and therefore, the
boundary description found in the plaint defers from the title document of
the plaintiff. The appellant/plaintiff in the description of the property in the
plaint has clearly mentioned the boundaries of the suit property mentioned
in the title document Ex.A1 and also the present boundaries.
7. A perusal of the same would suggest that the eastern boundary of
the suit property was mentioned as defendants' remaining property in the
title document of the appellant. However, in the plaint, while giving the
https://www.mhc.tn.gov.in/judis
S.A.No.435 of 2017
present boundaries of the suit property, appellant has mentioned it as
Bhojaraj property. It is the specific case of the defendants that the property
retained by them on the eastern side was not at all sold to Bhojaraj.
8. The learned counsel for the respondents submitted that said
Bhojaraj has got property on the further east of defendants' property and
therefore, if Bhojaraj's property shown as a eastern property of the suit
property then property of the appellant will include the tea garden of the
respondents retained by them at the time of selling the suit property to
appellant under Ex.A1.
9. It is the specific case of the appellant, after purchase of the suit
property from Ghagiammal, the property retained by his vendor was sold by
defendants to one Bhojaraj. Except the oral testimony of the appellant,
absolutely, there is nothing available on record to suggest that the property
retained by respondents was sold to Bhojaraj.
10. In such circumstances, the boundary description mentioned in the
plaint as if, Bhojaraj property situate on the eastern side of the suit property
https://www.mhc.tn.gov.in/judis
S.A.No.435 of 2017
is not supported by any acceptable documentary evidence. In a suit for
injunction, unless property is properly described, no injunction can be
granted. In the case on hand, it is the specific case of the respondents that
Bhojaraj property situate on the further east of respondents' property.
Therefore, if the new boundary description given by the appellant, which is
not supported by any evidence is accepted, it would result in granting
injunction in respect of a larger extent than the one purchased by the
appellant/plaintiff. Both the Courts below rightly came to the conclusion
that the appellant has failed to give the correct description of the suit
property as described in his title document. I do not find anything to
interfere with the said finding of facts by the Courts below.
11. The second appeal does not involve any questions of law much
less substantial question of law. Therefore, the same is dismissed.
12. It is also stated by the learned counsel appearing for the
respondents that the appellant has already instituted a suit for declaration
and recovery of possession in respect of the 12 ½ cents which lies on the
eastern side of the suit property in O.S.No.46 of 2018 on the file of the
https://www.mhc.tn.gov.in/judis
S.A.No.435 of 2017
District Munsif, Kotagiri. It is always open to the appellant to workout his
remedy in the comprehensive suit for declaration filed by him.
In Nutshell:-
(i) The second appeal is dismissed.
(ii) In the facts and circumstances of the case, there will be no order
as to costs.
09.10.2023
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
To
1.The Subordinate Court at Nilgiris,
Udhagamandalam.
2.The District Munsif Court at Kothagiri.
https://www.mhc.tn.gov.in/judis
S.A.No.435 of 2017
S.SOUNTHAR, J.
dm
S.A.No.435 of 2017
09.10.2023
https://www.mhc.tn.gov.in/judis
