Raju @ Periyasamy Konar vs Chella Mariappan

R. Mahadevan, J.—The Appellant herein, who is the unsuccessful Defendant in the Suit in O.S. No. 18 of 2006. which was filed for Permanent Injunction, has come up with S.A.(MD) No.289 of 2016, challenging the concurrent findings rendered by the Courts below.

Likewise, the Appellant herein, who is the Plaintiff in the Suit in O.S. No. 482 of 2004, which was filed for Permanent Injunction, has come up with S.A(MD) No.290 of 2016, challenging the findings of the Lower Appellate Court in partly setting aside the Judgment and Decree of the Trial Court and thereby, allowed the Appeal in part.

The case of the Plaintiff in O.S. No. 482 of 2004, as culled out from the Plaint, for the purpose of disposal of the Second Appeal, is as follows:

The property described in the Suit Schedule originally belonged to the Government of Tamil Nadu, classified as Poramboke land in Revenue records. The Plaintiff occupied the said Suit Schedule property by putting up a thatched house therein for the past 33 years and he was in possession and enjoyment of the Suit property and has also acquired title over the Suit property by adverse possession. At a later point of time, the Plaintiff constructed a Pucca house in the Plaint Schedule property and the said house is assessed by the Kadayanallur Municipality and the Tamil Nadu Electricity Board has also given Electric Service connection.

Previously, two Suits in O.S. Nos. 185 and 295 of 1997 were filed relating to the properly described in the Schedule by certain people belonging to Viswakarma Community in Krishnapuram in Kadayanallur. However, both the Suits were dismissed for default. In the said Suits, Advocate Commissioners were appointed and the Reports of the Commissioners clearly proved that the Plaintiff was in possession and enjoyment of the Suit property by raising a house. When the matter stood thus, on 12.7.2003, the Defendants, who have no right whatsoever over the Suit property, threatened the Plaintiff to dispossess the Suit property. Under the above stated circumstances, the Plaintiff had to file the said Suit for the relief, as stated earlier

A Written Statement was filed by the Defendants stating that the entire Suit Schedule property does not belong to the Government as alleged in the Plaint. As a matter of fact, a major portion of the Plaint Schedule property, which lies on the southern side of the Plaint Schedule, belonged to one Gopalakrishnan Iyer, who purchased the Schedule property by way of a registered Sale Deed dated 20.3.1972, vide Document No. 571/1972 and he was in possession and enjoyment of the same. After his demise in the year 2003, his son inherited his property and he was in possession and enjoyment of the same as absolute owner.

It is further averred in the Written Statement that a small portion on the northern side of the Suit Schedule property belonged to the Government. In the year 2002, the Plaintiff trespassed into a portion of the Plaint Schedule property and made constructions, while the said Gopalakrishnan Iyer was out of station. On coming to know about the same, he raised objections. The Plaintiff assured that he will remove the construction made by him. but, he has failed to do so. In addition to the Suit Schedule property, there are vacant sites on the eastern and western side of the house mentioned in the Plaint Schedule property and the Plaintiff was not in possession of the same. The son of Gopalakrishnan Iyer and the Government were in possession and enjoyment of the same. The Defendants had no knowledge about the Suits referred in the Plaint, in which the Defendants were not parties to the Suit. Thus, according to the Defendants, the Reports of the Advocate Commissioner do not bind upon the Defendants. Therefore, it was prayed that the Suit filed by the Plaintiff was liable to be dismissed.

The case of the Plaintiff in O.S. No. 18 of 2006 is that the Suit Schedule property belonged to one Mr. K.S. Gopalakrishna Iyer, by virtue of Sale Deed Nos. 400 of 1973 and 571 of 1972. On his demise, the Suit property devolved on his son - Mr. K.G. Sankara Subramanian. On 28.6.2005. the said Mr. K.G. Sankara Subramanian executed a Sale Deed in favour of the Plaintiff and by virtue of the same, he was in possession and enjoyment of the Suit property. Thus, the Defendant has no right whatsoever over the Suit property. However, from 28.12.2005 onwards, the Defendant started to give hindrance to the Plaintiff by interfering with the possession of the Suit property. Therefore, the Plaintiff had to file the Suit for the relief, as stated supra.

Resisting the Suit, a Written Statement was filed by the Defendant contending that the Plaintiff has no right whatsoever over the Suit property and he has not produced any document to show that he was in possession and enjoyment of the Suit property. The land comprised of eight cents situated at Survey Nos. 325/1 & 308/3 was classified as Government Poramboke Land. The Defendant constructed a small hut on the Suit property and was in possession and enjoyment of the same. The said hut was assigned as Door No. 160-B and he was paying tax also and obtained Electricity Service connection also. It is further averred in the Written Statement that two Suits in O.S. Nos. 185 and 295 of 1997 were filed relating to the property described in the schedule by certain people belonging to Viswakarma Community in Krishnapuram in Kadayanallur. An Advocate Commissioner was appointed and he inspected the property in question and submitted a Report. The said Suit was dismissed on 2.4.2001. Knowing fully well that the Defendant was in possession and enjoyment of eight cent lands for a long time, the Plaintiff filed the Suit for Permanent Injunction. Thus, according to the Defendant the Suit filed by the Plaintiff was liable to be dismissed.

Based on the above facts, the Trial Court heard both the Suits together and framed appropriate issues. On the side of the Plaintiff, one Witness was examined as PW1 and as many as six documents were marked as Ex-A1 to Ex-A6. On the side of the Defendants, four Witnesses were examined as DW1 to DW4 and as many as three Documents were marked as Ex.B1 to Ex. B3. Two documents were marked as Ex.X1 and Ex.X2 on the side of the witness. Having considered all the above, the Trial Court, by a Common Decree and Judgment dated 14.3.2007, allowed and dismissed both the Suits in part. Challenging the same, A.S. Nos. 35 & 58 of 2007 were filed. The Lower Appellate Court, by Decree and Judgment dated 11.4.2008, while confirming the Judgment and Decree passed in O.S. No. 18 of 2006, set aside the Decree and Judgment passed in O.S. No. 482 of 2004 and granted Permanent Injunction in respect of a house bearing Survey No. 308/3 and a portion bearing Survey No. 325/1. That is how, the Appellant is now before this Court with these Second Appeals.

I have heard the learned Counsel appearing for the Appellant the learned Counsel appearing for the Respondents and I have also gone through the materials available on record carefully, including the Judgments rendered by the Courts below.

The contention of the learned Counsel appearing for the Appellant is that the Courts below ought to have dismissed the Suit in O.S. No. 18 of 2006 in its entirely and ought to have decreed the Suit in O.S. No.482 of 2004 for the entire extent. The learned Counsel further submits that the Appellant was in possession and enjoyment of the Suit property for more than 35 years and it is a Government Poramboke land. However, the Defendants in O.S. No. 482 of 2004 and the Plaintiff in O.S. No. 18 of 2006 have not produced any document to prove their possession and enjoyment of the Suit property. Furthermore, they have not examined any Independent Witness to prove their exclusive possession and enjoyment of the Suit schedule property in both Suits. The learned Counsel further submits that the Appellant has perfected title by adverse possession and it was proved through positive evidence. The above facts, according to the learned Counsel for the Appellant were not taken into consideration by the Courts below. Thus, the learned Counsel prays that the Judgment and Decree passed by the Courts below is liable to be set aside.

On the other hand, the learned Counsel appearing for the Respondents submits that the Appellant has produced Tax Receipt, Receipt issued by the Electricity Department and the Reports of the Advocate Commissioner, which will not confer any right to the Appellant. On the side of the Appellant, no Independent Witnesses were examined to prove his possession and enjoyment of the Suit property. Apart from the above, the Appellant has not perfected title to any part of the Suit property by adverse possession Thus, according to the learned Counsel for the Respondents, the Decree and Judgment passed by the Courts below is liable to be confined and the Second Appeals have to be dismissed.

I have considered the above rival submissions.

On a perusal of the records, it is seen that the Appellant has produced only Tax Receipt, Receipt issued by the Electricity Department and the reports of the Advocate Commissioner to prove his possession in respect of the Suit property, which, in my considered view, will not confer any right on him. Further, as rightly contended by the learned Counsel for the Respondents, to prove the possession and enjoyment of the Suit property, on the side of the Appellant, no Independent Witnesses were examined.

However, the Trial Court, on considering the oral and documentary evidence, came to the conclusion and decreed the Suit in O.S. No. 482 of 2004 to an extent of East-West 12 feet, North-South 33 feet in Survey No. 308/3 in favour of the Appellant and also decreed the Suit in O.S. No. 18 of 2006 in favour of the Plaintiff therein to the effect that the Plaintiff therein is entitled to the remaining portion in S. No.308/3, except the portion with which the Plaintiff in O.S. No.482 of 2004 is in possession and enjoyment of the same by constructing a house Can Appeal, the First Appellate Court, after framing necessary points for determination, dismissed the Appeal in A.S. No. 35 of 2007, by confirming the Judgment and Decree of the Trial Court in O.S. No. 18 of 2006 and with regard to O.S. No.482 of 2004. rightly interfered with the findings of the Trial Court and allowed the Appeal in part in A.S. No. 58 of 2007 and granted the Decree in respect of a house in S.No. 308/3 and the portion in S.No.325/1 and negatived the relief with regard to the remaining portion.

In this case, the dispute is over the title and possession of the property. In my considered view, these are all questions of fact which cannot be re-opened and re-appreciated in the absence of sufficient oral and documentary evidence and that the documents produced by the Appellant will not prove his title and possession in its entirety. When such being the position, the Trial Court and the First Appellate Court, with the available documents, had rightly dealt with the issue on hand and correctly come to the conclusion about the title and possession of the Plaintiff in both Suits, which need not be interfered. Thus, I do not find any reason to interfere with the well considered and well reasoned Judgment and Decree of the Courts below and no question of law much less substantial question of law involved in these Second Appeals for consideration.

In the result, the Second Appeals fail and the same are dismissed accordingly. No costs.