Madras High Court
Kottimuthu Moopanar (Died) vs Maruthayya Thevar (Died) on 9 August, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A.No.2001 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A.No.2001 of 2003
1.Kottimuthu Moopanar (died)
... 1st Appellant/1st Appellant/Defendant
2.Kuzhalvaimozhi
3.Ramakrishnan
4.Mariammal
5.Backiyalakshmi
6.Iyamani
7.Shanmugasundari
... Appellants 2 to 7
(Appellants 2 to 7 are brought on record as Lrs of the
deceased sole appellant vide order dated 02.02.2022
made in C.M.P(MD)Nos.7201, 721 & 722 of 2022
in S.A.No.2001 of 2003)
Vs.
1.Maruthayya Thevar (died)
... 1st Respondent/1st Respondent/Plaintiff
2.Sankathal
3.Kaliraj
4.Essakkiammal
5.Murugathal ... Respondents 2 to 4
(Respondents 2 to 5 are brought on record as Lrs
of the deceased sole respondent vide order
dated 25.04.2016 made in M.P.No.1 of 2007
in S.A.No.2001 of 2003)
1/17
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S.A.No.2001 of 2003
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 24.03.2003 passed
in A.S.No.3 of 2002, on the file of the Principal Sub-Court, Tenkasi,
confirming the judgment and decree dated 23.08.2001 passed in
O.S.No.413 of 1996 on the file of the Additional District Munsif Court,
Tenkasi.
For Appellants : Mr.P.Thirumagilmaran
For Respondents : Mr.T.M.Hariharan
JUDGMENT
The Judgments and decrees passed in O.S.No.413 of 1996
on the file of the Additional District Munsif Court, Tenkasi and in
A.S.No.3 of 2002, on the file of the Principal Sub-Court, Tenkasi, are
being challenged in the present Second Appeal.
2.Originally, one Maruthayya Thevar as plaintiff, instituted a
suit in O.S.No.413 of 1996, on the file of the trial Court seeking for the
relief of declaration of title, recovery of possession and mandatory
injunction to remove the shop put up by one Kottimuthu Moopanar/the
defendant.
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3.Pending the Second Appeal, the appellant/defendant
died. Hence, the appellants 2 to 7 herein are brought on record as
legal representatives of the deceased appellant/defendant.
Subsequently, the respondent/plaintiff died. Hence, the respondents 2
to 5 herein are brought on record as legal representatives of the
deceased respondent/plaintiff.
4.For the sake of convenience, the parties are referred to
as, as described before the trial Court.
5.According to the plaintiff, the first scheduled property
originally belonged to one Vadivammal, W/o.Vellaiappa Moopanar, who
30.08.1966 received the property from the Government by way of an
assignment and was also in possession and enjoyment of the second
scheduled property. The said Vadivammal executed a registered
document in favour of the plaintiff on 13.10.1982 with regard to the
second scheduled property, which is an extent of 5 cents of land and he
was in possession and enjoyment of the same. According to the
plaintiff, the first scheduled property was a part of the second
scheduled property, which was in the south-east corner. Between the
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second scheduled property and Panmozhi Road and Malampattai Road,
there was a channel available. According to him, the defendant has no
right over the first scheduled property and the defendant had
encroached upon the front side of the first scheduled property and put
up a petty shop. In the sketch, the second schedule of the property has
been shown as 'ABCD', the first schedule of the property has been
shown as 'EFGD' and the encroached portion of the defendant has been
shown as 'HEFGDI'.
6.Further, according to the plaintiff, the said encroachment
was closing the easmentary right of him and the frontage was being
closed by putting up a shop, without any permission from the
Municipality. Hence, the defendant herein as plaintiff has filed a suit in
O.S.No.277 of 1984 on the file of the District Munsif Court, Tenkasi, as
against the plaintiff herein and sought for an interim injunction in
I.A.No.648 of 1984 under Order 39 Rule 1 C.P.C and obtained an ex-
parte injunction. Subsequently, O.S.Nos.276 and 278 of 1984 were
also filed by P.S.Selvan and Valliyammal, on the file of the District
Munsif Court, Tenkasi, as against the plaintiff herein and the defendant
obtained an ex-parte injunction. In O.S.No.277 of 1984, the plaintiff,
who was a defendant in the suit, filed a written statement and counter-
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statement and the said suit was decreed in favour of the plaintiff by
judgment and decree, dated 31.01.1990. Challenging the same, the
defendant herein as plaintiff had filed an appeal in A.S.No.143 of 1991
on the file of the Sub Court, Tenkasi and the said appeal suit was also
decreed in favour of the plaintiff herein with costs, by judgment and
decree, dated 02.03.1994. Since the defendant had already lost before
both the Courts below and he was not leaving the place, but
canvassing that he has filed a second appeal, but he has not filed any
appeal till the date of the filing of the suit, the plaintiff has filed the
said suit for the abovestated relief.
7.The defendant had filed a written statement stating that
the plaintiff was not the owner of the property and with false
averments, he filed the suit and in the year 1972 onwards, the
defendant was running a tea shop, after obtaining necessary
permission from the Municipality on condition that if necessary, he
would vacate the shop and hand it over to the Municipality. When the
property was in the hands of Vadivammal, the vendor of the plaintiff,
the defendant had been running the petty shop for the past 17 years
and claimed adverse possession of the said land. The defendant further
stated that the suit was not maintainable for non-joinder of necessary
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parties, as Kadaiyanallur Municipality was not made as a party to the
suit proceedings. Based on the Judgment and Decree made in O.S.No.
277 of 1984 on the file of the District Munsif Court, Tenkasi, the
defendant need not be vacated or evicted and prayed for dismissal of
the suit.
8.Before the trial Court, on the side of the plaintiff, he
himself was examined as P.W.1 and Exs.A1 to A19 were marked. On
the side of the defendant, P.S.Selvam was examined as D.W.1 and the
defendant himself was examined as D.W.2 and Exs.B.1 to B.11 were
marked.
9.On the basis of the rival pleadings made on either side,
the trial Court, after framing necessary issues and after evaluating both
the oral and documentary evidence, has partly decreed the suit
regarding the relief of declaration of title and recovery of possession
and the prayer sought for by the plaintiff for the relief of mandatory
injunction has been dismissed.
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10.Aggrieved by the Judgment and decree passed by the
trial Court, the defendant herein as appellant, had filed an Appeal Suit
in A.S.No.3 of 2002 on the file of the first Appellate Court and the
plaintiff has also filed Cross Objection No.100 of 2002 against the
portion which has not been decreed on the file of the first Appellate
Court.
11.The first Appellate Court, after hearing both sides and
upon reappraising the evidence available on record, has dismissed the
appeal and cross objection and confirmed the Judgment and decree
passed by the trial Court.
12.Challenging the said Judgments and decrees passed by
the Courts below, the present Second Appeal has been preferred at the
instance of the defendant, as appellant.
13.At the time of admitting the present second appeal, this
Court had framed the following substantial questions of law for
consideration:
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"1) Whether the Courts below are right in not
adverting to the fact that the plaintiff's vendor has been
prohibited by the assignment deed by the Government
from transferring and therefore when the transfer is in
favour of the plaintiff is invalid and therefore no title
should be declared in favour of the plaintiff?
2.Whether the Courts below failed to note that what
was claimed by the plaintiff is only right to frontage which
is recognised in law and therefore whether the Judgments
of the Courts below are vitiated?
3.When admittedly, the plaintiff in possession for
more than 20 years and then the plaintiff has not proved
either permissive possession or title to the property for
recovery of possession is not maintainable in decreeing
the suit for recovery of possession when the claim is
barred by limitation?”
14.The learned counsel appearing for the
appellants/defendants would submit that the Courts below have not
considered the pleading and evidence of the D.W.2 and the Courts
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below failed to consider the admission made by P.W.1 during his cross-
examination that the shop run by the defendant belongs to the
Government. The Courts below have not touched any point regarding
frontage. The Courts below failed to note that even as per the case of
the plaintiff, the land originally belonged to the Government and as per
the Government grant, there cannot be a sale in favour of the third
party and admittedly, the plaintiff had only purchased the property
from the allottee and in such case, when the sale was in favour of the
plaintiff was illegal and unenforceable in law, no decree for title can be
granted in favour of the plaintiff and prayed for allowing the Second
Appeal.
15.Heard the learned counsel appearing for the
respondent/plaintiff, who reiterated the averments made in the plaint
and the appeal.
16.Heard the learned counsel appearing for the appellants
and the learned counsel appearing for the respondents and also
perused the records carefully.
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17.According to the plaintiff, the second scheduled property
was purchased by him on 13.10.1982 by paying Rs.3,000/- to one
Vadivammal and even though the second scheduled property was 5
cents, 6.5 cents are thereon and he was in possession and enjoyment
of the second scheduled property. The defendant was the encroacher,
who put up a petty shop, which was obstructing the free access to the
plaintiff's land. The trial Court has partly decreed the suit regarding the
relief of declaration of title and recovery of possession and dismissed
the prayer sought for by the plaintiff for the relief of mandatory
injunction.
18.The ground taken by the defendant before the appellate
Court was that as per the conditions of sale, the said Vadivammal
should not sell the property for a period of 30 years and hence, the
same is not valid and the schedule of the property was also not proper
and prayed for allowing his appeal and dismissing the plaintiff's claim.
The first Appellate Court held that the first scheduled property forms
part of the second scheduled property and accordingly, on 10th June
1984, the defendant encroached upon the first scheduled property and
the road portion was also encroached upon and put up a petty shop,
which was a small petty shop, which comes around 130 square feet.
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19.From the perusal of the Judgment and Decree passed in
O.S.No.277 of 1984 District Munsif Court, Tenkasi, it is seen that the
Advocate Commissioner has identified the property and as per the
documents, it is seen that the plaintiff's land has been encroached
upon by the defendant. It is also further seen that against the said
Judgment and Decree, the defendant has filed an appeal in A.S.No.143
of 1991 on the file of the Sub Court, Tenkasi and the same was also
dismissed. In that case, the defendant was unable to prove his case
that he had been in possession and enjoyment, which is an adverse
possession against the plaintiff. He also failed to prove that the
property belonged to him and did not provide any evidence to support
his claim that he had been in possession and enjoyment of the
property with the plaintiff's knowledge. Further, from the perusal of the
documents, it is seen that the defendant was an encroacher. Further,
during the course of cross-examination, the defendant was not in a
position to prove that the first scheduled property does not belong to
the plaintiff and it is seen that again and again, the defendant has been
approaching the Court with the same set of facts and the same could
not be accepted. Further, it is made clear that the first scheduled
property belongs to the plaintiff and regarding the boundary dispute
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and other schedules, the same was raised before the Courts below,
which were rejected. Now, the defendant cannot raise the same in this
case and regarding the non-joinder of necessary parties was also
dismissed and he has not substantiated his right as a tenant under the
said Municipality that was also not pressed by the defendant and that
claim also cannot be granted. As the plaintiff could not provide
appropriate measurements, the prayer sought for by the plaintiff for
the relief of mandatory injunction was rejected by the Appellate Court.
20.Further, on a perusal of Ex.B.1, it could be seen that the
assignment deed was given in favour of the plaintiff by one
Vadivammal. As per the assignment deed, in Survey Nos.721/2, 0.05
cents was issued in the year 1966 by the Government Board Standing
Order 21. As per the said assignment deed, the said assignee shall not
sell the property within a period 10 years from the date of assignment.
The said Vadivammal had sold the property in favour of the plaintiff on
13.10.1982 under Ex.A.2. Accordingly, the said Survey Nos.721 and
730/2 have been given in favour of the plaintiff. Hence, the first
question of law goes as the said transfer is valid and the first question
of law is decided in favour of the plaintiff.
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21.Further, as per the orders of this Court in various
Judgments, it could be seen that when the public streets are vested
with the Municipal Councils and the persons, who have a house or
premises abetting the roadway, are entitled to have access to the
roadways from all the boundaries of their land and if any obstruction is
caused over the road margin by any third party, who was causing
obstruction and securing such access, the said person who is owner of
the property has every right to initiate proceedings before the
competent Court. That being the case, when the plaintiff has the right
over the property by way of purchasing the same by sale deed, the
second question of law is also answered in favour of the plaintiff
against the defendant.
22.It is to be seen that this suit itself is not maintainable on
the ground that already the defendant had filed a suit in O.S.Nos.277
of 1984 of the file of the District Munsif Court, Tenkasi and the same
has been decided in favour of the plaintiff and the trial Court has held
that Survey Nos.721 and 730/2 belonged to the plaintiff and the claim
made by the defendant that from the year 1962, he has been running
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a shop in that place would not accepted and decided against the
defendant and also it is to be seen that the defendant has not
produced any document to show that he has been allotted with such
area by the Municipality for running a business and in the absence of
any document to show that he has been particularly allotted this place
for running the petty shop, he cannot claim any right over the said
property by way of adverse possession as against the principal or
against the plaintiff, as it is seen that in the said Judgment and Decree
passed in O.S.No.277 of 1984 District Munsif Court, Tenkasi, wherein it
has been clearly stated that the said area belongs to the plaintiff as has
been observed and given a finding by the Court below.
23.It is also seen that the defendant has not claimed any
title over the property and the defendant has encroached upon the
area that belonged to the plaintiff has been heavily discussed in the
said Judgment and Decree passed in O.S.No.277 of 1984 District
Munsif Court, Tenkasi and the same has become final, as the appeal
filed by the defendant has also been dismissed on merits. Hence, once
again the defendant cannot raise the dispute, which cannot be
accepted and on the ground of res judicata also, the defendant's claim
has to be dismissed.
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24.From the above, this Court is of the view that the
Judgments and Decrees of the Courts below are accompanied with
sufficient reasons, in which, this Court does not want to make any
interference. Accordingly, the substantial questions of law framed are
ordered as against the defendant and in favour of the plaintiff.
25.In the result, the Second Appeal stands dismissed. No
costs.
09.08.2024
Index : Yes/No
Internet : Yes/No
ps
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To
1.The Principal Sub-Court,
Tenkasi.
2.The Additional District Munsif Court,
Tenkasi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
09.08.2024
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