Rameswari vs R. Arumugham and Others

M. Chockalingam, J.—This second appeal has been brought forth from the judgment of the learned I Additional Subordinate Judge,

Coimbatore made in AS No.2 of 1990, wherein the judgment of the trial court, namely District Munsif, Coimbatore made in OS No.75 of 1981

for permanent and mandatory injunction was reversed.

The plaintiffs/respondents filed a suit seeking the said relief of permanent injunction against the first defendant and mandatory injunction against

the second defendant with following allegations:

The first plaintiff purchased the property by a sale deed, dated 25.6.1945 under Ex.A.1 and from that time onwards, he was in continuous and

uninterrupted possession of the same. Originally, there was an old house and the same was demolished in the year 1957. He obtained necessary

permission from the second defendant Town Panchayat and he made certain modification in the house and continue to enjoy the same. While so,

the first defendant made an attempt to trespass into the property three months prior to the filing of the suit, but the same was thwarted. In view of

the old age, the first plaintiff was living with his son, who is having a residence nearby. Taking advantage of the said situation, the first defendant

attempted to trespass into the property. Under the stated circumstances, the first plaintiff issued notice, which resulted in reply notice with false

allegations. The plaintiff filed a plan for approval before the second respondent Town Panchayat for construction of a house and for the untenable

objections made by the first defendant, the second defendant has not issued approval yet. Under the stated circumstances, there arose a cause of

action for the plaintiff to file a suit for permanent injunction against the first defendant and also for mandatory injunction against the second

defendant, directing him to issue approval for a new construction proposed by the plaintiff.

The suit was resisted by the first defendant stating that the plaintiff had no right or interest over the properties, in question and it belonged to the

first defendant; that the properties, in question, are situated abutting the first defendant''s property and that these two plots, which are situated on

the West and North, formed part of the first defendant''s property and he has been in enjoyment of the same all along and under the stated

circumstances, it is a false case preferred by the plaintiff and the plaintiff is not entitled for the reliefs asked for. The second defendant remained ex

parte.

Pending suit, the first plaintiff died and her legal representatives were added as plaintiffs 2 to 7. Likewise, the first defendant died and her legal

representative was added as third defendant. The trial court framed necessary issues. On trial, the suit was dismissed. Aggrieved the plaintiffs took

it on appeal in AS No.2 of 1990. On enquiry, the first appellate Court reversed the judgment of the trial court and granted decree in favour of the

plaintiffs. Hence, this second appeal at the instance of the third defendant, who was added as legal representative of the first defendant.

At the time of admission, the following substantial questions of law were formulated for consideration:

When the boundary description found in the plaintiffs'' own documents namely Ex.A-2 and Ex.A-11 and the oral evidence of P.Ws.2 and 3 are

clear that the defendant is entitled to the property in the eastern side of the plaintiffs, is not the learned Subordinate Judge wrong in decreeing the

suit in toto depriving the defendant''s well recognised right and title in respect of the portion to suit property in front of her own house?

Is the learned Principal Subordinate Judge right in decreeing the suit based on Ex.A-1 when it is not established how the vendors who executed

the document Ex.A-1 derived their title to the suit properties?

Is the learned Principal Subordinate Judge right in accepting the measurements found in the documents without adverting to the well known

principle of law that the boundary will prevail over the extent?

When the documents Ex.B-1 and the oral evidence of defendant''s witnesses and plaintiff''s witnesses clearly establish that the defendant is

entitled to the portion of suit property, in front of her house and that the same is being enjoyed by the defendant as per separate lane, is the learned

Principal Subordinate Judge wrong in negativing the case of the defendant?

When the plaintiffs plead adverse possession, is not the learned Principal Subordinate Judge wrong in decreeing the suit without any proof that

the plaintiffs are in exclusive possession of the suit properties to the knowledge of the defendant for more than the suit property?

This Court has heard the learned counsel for the appellant and also the respondents.

As could be seen above, it was a suit for permanent injunction against the first defendant, whose legal representative was added as third

defendant and mandatory injunction against the second defendant Town Panchayat. The case of the plaintiffs was that the first plaintiff purchased

the property, in question, in the year 1945 under Ex.A.1 sale deed; that originally, there was a house property and he made certain modification in

the year 1957 on permission granted by the second defendant and he has been in continuous enjoyment of the same; that taking advantage of the

fact that the property of the first defendant is situated abutting the suit property, he attempted to interfere with the possession and enjoyment and

the same was thwarted. Before filing the suit, the first plaintiff filed an application before the second defendant, seeking permission for a new

construction in the site belonged to him, but on the untenable objections raised by the first defendant, the second defendant has not issued

approval. The case was resisted by the first defendant stating that the suit property did not belong to the first plaintiff, but it belonged to the first

defendant. The second defendant remained ex parte.

This Court made a thorough scrutiny of the materials available. The first plaintiff has sought for the relief of permanent injunction against the first

defendant, stating that he purchased the property under Ex.A.1 in the year 1945 and he got title to the property and he has been in continuous

possession of the same. The first appellate Court has clearly pointed out that both the description of the property under Ex.A.1 and the property in

respect of which the relief was sought for, on comparison, found to be same. Apart from that, in the instant case, originally there was an occasion

for the first plaintiff to file an application before the second defendant and got permission for modification. Insofar as the first defendant''s case was

concerned, there was a denial of title of the plaintiff. From the available materials, it could be seen that the suit properties are situated on the West

and North of the first defendant''s property and the first defendant, as D.W.1, has categorically admitted that originally, the first plaintiff''s property

is a house and the same was situated on the West of his house and the property covered under Ex.B.1 is situated on the East of the suit property

and thus, it was a clear admission made by the first defendant at the time of examination in Court.

Added circumstance is that it was brought to the notice in the judgment of the first appellate court that though the first defendant has claimed that

the property belonged to him and he is having his house and he has been paying tax, he has not produced any receipt in that regard. The learned

counsel for the appellant would submit that the application for appointment of Commissioner was filed by the first defendant and the same was

dismissed. If the first defendant was aggrieved over the order of dismissal of the said application for appointment of Commissioner, he should have

approached this Court by filing revision, but not done so. Equally, when the suit was originally filed, no door number was given by the plaintiff, but

subsequently an application for amendment was filed to include the door number and on contest, the application was allowed. The plaint was also

amended and the door number was included. The first appellate Court has marshalled the evidence proper and has come to the conclusion that the

property, in question, belonged to the plaintiff. On perusal of the materials available, this Court is of the considered opinion that the judgment of the

first appellate Court has got to be sustained. This Court is unable to notice any reason to interfere with the judgment of the first appellate court and

the second appeal has got to be dismissed.

In the result, this second appeal is dismissed, leaving the parties to bear their costs.