Madras High Court
K.P.Mohamed vs Tamilnadu Tea Plantation ... on 13 September, 2023
S.A.No.2005 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
SA.No.2005 of 2004
K.P.Mohamed .. Appellant
Vs.
Tamilnadu Tea Plantation Corporation Limited,
a Body Corporate represented by its Chairman
and Managing Director,
Esses Lodge,
Coonoor,
Nilgiris District. .. Respondent
PRAYER: Second Appeal is filed under section 100 of Civil Procedure
Code, against the Judgment and Decree of the Learned District Judge of
Nilgiris at Uthagamandalam in A.S.No.30 of 1990, dated 18.06.2004
reversing the judgment and decree of the Learned District Munsif of
Gudalur in O.S.No.59 of 1982, dated 14.12.1988.
For Appellant : Mr.Rooban Chakravarthy
for M/s.K.Kumarasamy
For Respondent : Mr.Anbumani
1/8
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S.A.No.2005 of 2004
JUDGMENT
This Second Appeal arises against the suit for bare injunction filed
by the appellant against the respondent in O.S.No.59 of 1982. The claim
of the plaintiff is that he is in possession of the suit schedule mentioned
property as a lessee under Nilambu Kovilagam. According to him, he was
paying pottom to the said Kovilagam till 1977 and was rising Tea and
Coffee Plants. He would state that the Forest Officials came to dispose
the same and hence, he filed W.P.No.5081 of 1981. Alleging that in the
Writ Petition he had been benefited with the order of stay, he presented a
suit for permanent injunction not to interfere with the possession.
2.The suit was resisted by the respondent/defendant stating that the
plaintiff is not in possession of the suit schedule mentioned property. It
was alleged that the respondent/Tamil Nadu Tea Plantation Corporation
Limited had taken possession of the property much before the
presentation of the suit on 26.06.1981. As the defendant had taken
possession way before the presentation of the plaint, he sought for
dismissal of the suit.
3.Before the trial Court, the plaintiff examined himself as PW1 and
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S.A.No.2005 of 2004
an official of the defendant by name Uralin had been examined as DW1.
The plaintiff had filed an interim order passed by this Court, dated
15.10.1981 and the proceeding of the Forest Settlement Officer, dated
25.02.1987. Apart from these two evidences, the Court also marked the
report and the plan filed by the Advocate Commissioner as Exhibits C1
to C3. The trial Court decreed the suit on 14.12.1988. Against which, an
appeal was preferred by the respondent herein in A.S.No.30 of 1990. The
appeal suit was allowed on 18.06.2004. Against the reversal judgment,
the present Second Appeal has been filed.
4.This Second Appeal had been admitted on the following
substantial questions of law :-
“1. Whether the lower appellate Court is
justified in holding that no documentary
evidence is produced by the appellant to prove
his possession of the suit lands, overlooking
Exs.A1 to A3 which would conclusively prove
that the appellant is in possession of the suit
lands.
2. When the appellant's possession and
enjoyment of the suit land is recognised by the
statutory authorities, is the lower appellate Court
justified in holding that the possession of the suit
land by the appellant is not proved.”
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S.A.No.2005 of 2004
5.Heard Mr.Rooban Chakravarthy, learned counsel for
Mr.A.K.Kumarasamy, learned counsel appearing for the appellant and
Mr.Arun Anbumani, learned counsel for the respondent.
6.On going through the records that have been filed by the plaintiff
in order to prove the possession, I only find that there are two documents
which have been filed, one is the copy of the interim order passed by this
Court. Originally, the plaintiff had obtained an order of stay, and that had
been vacated. The order of stay was modified into an order of status quo,
pending disposal of the writ petition in W.P.No.5099 of 1981. The final
order passed by this Court in the said Writ Petition had not been marked
before the trial Court or before the lower Appellate Court. The other
document that had been filed by the plaintiff is a copy of the Forest
Settlement Officer, dated 25.02.1987. The said order does not state that
the plaintiff is in possession of the property.
7.At the appellate stage, with the permission of the Court, the
plaintiff had presented Exhibit A3 namely, a document dated 30.06.1990.
On going through the said order, it is clear that no assignment had been
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S.A.No.2005 of 2004
created in favour of the appellant. All that the order reads is that
application for assignments were pending with the Forest Settlement
Officer and therefore, the order was passed to that effect on 30.06.1990.
8.In a suit for injunction, it is the duty of the plaintiff to prove that
he is in possession of the property on the date of presentation of the
plaint. Orders of the Court cannot create a new right in the party. They
only recognise an already existing right in the parties. Neither the Pottom
that was granted by the Nilambu Kovilagam family was filed before the
Court, nor is there any proof that the appellant was paying them the
pottom fees regularly.
9.As per the Gudalur Janmam Abolition Act, the plaintiff should
have proved that he is in possession of the property from 1967, that is,
three years prior to the taking over of the Janmam.
10.The documents, not having been provided before the Court, I
am not able to conclude that the plaintiff was in possession of the
property on the date of presentation of the plaint.
11.I should also add another fact which is brought to my notice by
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S.A.No.2005 of 2004
way of application filed under Order 41 Rule 27 of the Civil Procedure
Code. The documents filed along with the CMP relate to a larger extent
of property, which includes the suit schedule mentioned property in field
Survey No.92. Opportunity was granted to the appellant to file a counter
to the same, but he has not gone on record by way of a counter.
12.The documents that have been filed in the CMP are official
proceedings of the Government of Tamil Nadu. They have come into
existence pending this appeal. Hence CMP.No.19744 of 2023 is allowed.
They are received on record and marked as document Nos.B1 to B2.
13.The documents would show that the Government had accepted
the proposal of the respondent and had directed an extent of 276.78
hectares of Forest Land at Gudalur, leased to the respondent, be handed
over to the Forest Department. This order was passed on 21.05.2019.
Exhibit B2 is a document, which shows that the respondent had
physically handed over the property to the Forest Department. Field
No.92 is found at Page No.3 at Serial No.6. The reference to the Exhibits
B1 and B2 make it clear that the property has been taken over by the
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S.A.No.2005 of 2004
Forest Department. Neither the appellant nor the respondent are in
possession of the same.
14.Consequently, the substantial questions of law framed are
answered against the appellant. The appellant has failed to prove that he
is in possession of the property on the date of presentation of the plaint.
No documents worth its name have been filed in order to substantiate the
same. Consequently, Second Appeal stands dismissed. CMP.No.19744 of
2023 stands allowed.
15.In fine, the judgment and decree of the Court of the learned
Principal District Judge at Nilgiris in A.S.No.30 of 1990, dated
18.06.2004 in reversing the judgment and decree in O.S.No.59 of 1982,
dated 14.12.1988 on the file of the learned District Munsif, Gudalur
stands confirmed. No costs.
13.09.2023
Index:Yes/No (1/2)
Speaking Order :Yes/No
Neutral Citation:Yes/No
MKN 2/vs
V.LAKSHMINARAYANAN,J.
https://www.mhc.tn.gov.in/judis
S.A.No.2005 of 2004
MKN 2/vs
To
1.The Learned District Judge,
Nilgiris at Uthagamandalam
2.The Learned District Munsif,
Gudalur
SA.No.2005 of 2004
13.09.2023
(1/2)
https://www.mhc.tn.gov.in/judis
