K. Sellamuthu vs Jayanathan (died) (J. Philomina and Others)

P.R. Shivakumar, J.—After having failed in his attempt before the trial court as well as the first appellate court to get a decree for permanent

injunction against the Respondents herein/Defendants, the Appellant/Plaintiff has come forward with the present second appeal.

The second appeal came up for admission and this Court heard the submissions made by Mr. M. Karthikeya Venkatachalapathy, learned

Counsel for the Appellant. The judgment of the courts below and other connected records produced in the form of typed-set of papers were also

perused.

Admittedly, the property comprised in S. No. 277 in T. Venkatapuram Village, Karur Taluk, Karur District belongs to the Appellant/Plaintiff

and the property comprised in S. No. 253, which lies on the west of the Appellant/Plaintiff''s land belongs to the Respondents/Defendants.

Contending that there was an age-old fence made up of ''Kiluvai'' trees on the boundary line dividing the properties of the Appellant/Plaintiff and

the Respondents/Defendants and the same was sought to be cut and removed and a portion of the Appellant/Plaintiff''s property was sought to be

encroached upon and annexed by the Respondents/Defendants with their property, the Appellant/Plaintiff had approached the trial court with

Original suit O.S. No. 472 of 1995, for a bare perpetual injunction not to interfere with his possession and enjoyment of the suit property, which is

described to be 5.79 acres within defined boundaries comprised in S. No. 277.

Though the measurement of the area comprised in the said survey number, regarding which the Appellant/Plaintiff claims derivation of title by

purchase, has been furnished as 79 acres in the plaint schedule, the Appellant/Plaintiff has also chosen to incorporate a pleading to the effect that

he was enjoying the property upto the edge of ''Kiluvai'' fence for more than the statutory period and thereby he had perfected title by adverse

possession in respect of the portion, if any, which might fall within the boundary of S. No. 253, belonging to the Respondents/Defendants.

The suit was resisted by the Respondents/Defendants admitting the title of the Appellant/Plaintiff to the property comprised in S. No. 277 and

the fact there was a ''Kiluvai'' fence on the boundary line demarcating the properties of the Appellant/Plaintiff and Respondents/Defendants, but

denying the contention that an attempt was made by the Respondents/Defendants to remove the existing fence and annex a portion of the

Appellant/Plaintiff''s property with their property. It was also contended by the Respondents/Defendants that in fact, taking advantage of the

absence of the Respondents/Defendants from the suit village, shortly prior to the filing of the suit, the Appellant/Plaintiff removed the then existing

fence and shifted the fence by further west and thereby annexed 2 1/2 cents area belonging to the Respondents/Defendants comprised in S. No.

253; that the said act on the part of the Appellant/Plaintiff was questioned by the Respondents/Defendants and he was also asked to restore the

earlier position; that since the Appellant/Plaintiff failed to heed to the request made by the Respondents/Defendants, the Respondents/Defendants

were taking steps to file a suit and that sensing that such a suit would be filed, the Appellant/Plaintiff rushed to the court with the present suit for

bare injunction.

The learned Trial Judge after framing necessary issues, conducted trial in which two witnesses were examined as P.w.1 and P.W.2 and Ex.A1

to A14 were marked on behalf of the Plaintiff and one witness was examined as D.W.1 and Ex.B1 was marked on the side of the Defendants.

Further, an Advocate Commissioner was also appointed by the trial court, whose report and plan were marked as Ex.C1 and Ex.C2 and Ex.C3

to C5 were also marked.

Upon considering the pleadings and evidence, the trial court came to the conclusion that the Appellant/Plaintiff had not proved any attempt on

the part of the Respondents/Defendants to remove the fence and encroach upon any portion of the Appellant/Plaintiff''s property comprised in S.

No. 277. On the other hand, a clear finding has been rendered by the trial court to the effect that it was the Appellant/Plaintiff who removed the

then existing fence and shifted the fence further west encroaching upon a portion of the Respondents/Defendants property to an extent of 2 1/2

cents. So far as the plea of adverse possession is concerned, the case of the Appellant/Plaintiff was rejected on the following grounds:

The encroachment was made only shortly prior to the filing of the suit.

The person claiming adverse possession did not have an animus for the same as the Appellant/Plaintiff claimed that the property belonging to him

extended upto the fence and Appellant/Plaintiff did not even know that the property over which he claimed adverse possession belonged to the

Respondents/Defendants or at least that the said property did not belong to the Appellant/Plaintiff.

The exact portion over which the Appellant/Plaintiff claimed adverse possession had not been furnished.

4 There was no proof of adverse possession for a period prescribed by the Limitation.

Accordingly, the trial court held that the Appellant/Plaintiff was not entitled to the relief sought for and dismissed the suit without costs, by its

judgment and decree, dated 12.11.2002. Challenging the decree of the trial court, the Appellant/Plaintiff filed an appeal in A.S. No. 71 of 2008,

before the first appellate court. The first appellate court on reappreciation of evidence, concurred with the above said findings of fact recorded by

the trial court and dismissed the appeal with costs, by its judgment and decree, dated 19.03.2010. Hence, the Appellant/Plaintiff is before this

Court with this Second Appeal.

An appeal from the decree of the first appellate court shall lie to the High Court u/s 100 of CPC only on a substantial question of law. Though

the Appellant/Plaintiff has chosen to suggest some questions as substantial questions of law in the grounds of appeal, this Court is not inclined to

accept them to be the substantial questions of law involved in the present case. Both the courts below have given a concurrent finding of a fact in

issue as to whether there was any attempt made by the Respondents/Defendants to remove the fence or to encroach upon the property of the

Appellant/Plaintiff. The courts below have also rendered concurrent findings of fact to the effect that it was the Appellant/paintiff who removed the

fence, shifted the same further west, encroached upon a portion of the Respondents/Defendants property and annexed the same with his property.

The courts below have also given a finding that such encroachment was made recently. Concurrent findings have also been given to the effect that

the Appellant/Plaintiff had not proved adverse possession in respect of any defined portion of the suit property. The findings of facts concurrently

arrived at and recorded by the courts below cannot be termed perverse so that such a question of fact can assume the character of a substantial

question of law Therefore, this Court is of the considered view that this second appeal does not even merit admission as it is not proved that any

substantial question of law is involved in this appeal and that the appeal deserves to be dismissed at the admission stage itself.

In the result, the Second Appeal is dismissed. No costs.