Soundirammal and Sundarasamy vs S. Ramachandran

R. Mala, J.—The second appeal has been preferred against the judgment and decree dated 03.09.2003 made in A.S. No. 24 of 2003 passed by the learned Principal District Judge at Ramanathapuram reversing the judgment and decree dated 01.07.2003 made in O.S. No. 19 of 1999 passed by the learned Subordinate Judge, Ramanathapuram.

The averments in the plaint is as follows:

The suit properties are situated in S. No. 129/4B of Naduvalasai Village. In the plaint plan the entire suit property has been described as ''A B C D E F A'' and its entire extent is one acre. In the plaint plan, the suit first item has been described as ''A B D G E F A'' to the extent of 0.97 cents. The suit second item has been described as ''B C D G B'' in the plaint plan to the extent of three cents.

The entire suit property is originally belonged to one Shanmugathevar, the father of plaintiff. The first defendant has filed a suit in O.S. No. 348/89 against the father of the plaintiff for declaration and injunction in respect of one acre of land in S. No. 129/4B. During the pendency of the suit, the father of the plaintiff has died and subsequently the plaintiff and others have been added as the legal heirs of the deceased Shanmuga Thevar as defendants. The said suit was dismissed on 30.08.1993 by the the learned District Munsif, Ramantahpuram. In that it was held that the first defendant, who is the plaintiff in O.S. No. 348/89 has no right over the suit property and also held that the present plaintiff and his brothers and sisters are entitled prescribed title by adverse possession. Against the Judgment and decree passed by the District Munsif Court, Ramanathapuram the first defendant herein has filed A.S. No. 10/94 and the same has also been dismissed. Against that the first defendant herein has filed S.A. No. 636/1997 and the same has also been dismissed on 29.01.1998. So, in the suit properties the defendants are not having any right, title and interest.

After the disposal of the suit filed in O.S. No. 348/89, on 15.07.1994, the first defendant has executed a settlement deed in favour of his son, the second defendant, in respect of the second item of suit property. But, he has no right over the property. In 1996, the second defendant has also obtained a loan from Housing society, Ramanathapuram and constructed a house in the suit second item. The plaintiff has lodged a complaint in Uchipuli Police Station against the defendants and no action has been taken against the defendants.

Now the plaintiff and others has partitioned the property and in that partition the suit properties and its adjoining western properties have been allotted to the share of the plaintiff. The father of the plaintiff has encroached upon the poramboke land on the south of ''E F'' in the plaint plan and enjoying the same by one by one block and planted coconut saplings. There is no fence in ''EF'' land, so the entire second item of suit property is in possession and enjoyment of the plaintiff. But, the first defendant encroached upon the second item of suit property and made constructions in the suit properties. Hence the plaintiff is constrained to file the suit for injunction in respect of first item of suit property and for mandatory injunction against the second item of suit property to demolish the constructions made by the second defendant and recovery of possession and prayed for a decree.

The gist and essence of the written statement filed by the defendants is as follows:

The suit survey number is 29/4 B to the extent of one acre. The second item of suit property belonging to the defendants and they are enjoying the same. The plaintiff has not planted coconut saplings. The defendant has preferred an appeal before the Supreme Court against the judgment passed by the High Court. The plaintiff is entitled only for 67-1/2 cents in the suit survey number 24/4B. The second defendant has constructed house in the second item of suit property and it was assessed to tax and he is in open, continuous and uninterrupted possession for more than statutory period and hence, he prescribed title by adverse possession. Since the plaintiff is working in the Revenue Department, he has changed patta in his name. The first defendant has preferred an appeal against the same before the Revenue Divisional Officer. Since the plaintiff and his men have removed the vested fence, the defendants preferred a complaint before Uchipuli police station. From that date onwards, there was no fence. Palm trees alone is the western property. The plaintiff has put up motor pump set in the second item of suit property and enjoying the same.

The suit properties and its adjoining northern property are measuring 2 acres 07 cents are originally belonged to one Kunjarammal. Since, she has not having issues, she executed a settlement deed dated 03.03.1976 in favour of the daughter of her sister by name Nagavalli. The said Nagavalli has sold one acre of land which situates on the southern side in favour of the first defendant herein under a registered sale deed dated 23.3.1989. The plaintiff is not having any right over the suit properties. The first defendant has constructed the house on the second item of suit property in 1992 and electricity connection has been obtained and he is in possession and enjoyment of the same. The plaintiff entitled only 67-1/2 cents as per the previous suit. The plaintiff has not claimed any declaratory decree and prayed for the dismissal of the suit.

The learned Subordinate Judge, Ramanathapuram after considering the averments both in the plaint and written statement, framed three issues and considering the oral evidence of P.Ws.1 and 2, D.Ws.1 and 2 and Exs.A1 to A24, B1 to B17, come to the conclusion that the plaintiff is not entitled any relief and dismissed the suit. Against the said judgment and decree, the plaintiff has preferred an appeal before the learned District Judge, Ramanathapuram. The learned First Appellate Judge, after considering the arguments of both sides and after framing three points for consideration, allowed the appeal and set aside the decree and judgment of the trial Court and decreed the suit. Two months time granted for demolish the superstructure and hand over the vacant possession to the plaintiff. Against that the defendants have come forward with this second appeal.

The substantial questions of law arises in the Second Appeal are as follows:

Whether the judgment of the lower appellate Court is vitiated by a total misreading of the judgment in O.s. No. 348/89 marked as Ex.A2.?

Whether suit for permanent injunction, mandatory injunction and recovery of possession could be decreed without identification and co-relation of the suit property?

Whether the respondent is not estopped from claiming any right more than what was claimed in O.s. No. 348/89?

Points 1 and 3 :

The respondent herein as plaintiff has filed a suit stating that previously, the first defendant/first appellant herein filed a suit in O.S. No. 348/89 for declaration and injunction and the suit has been dismissed stating that the father of plaintiff/respondent and his brothers and mother have prescribed title by adverse possession and the same has been confirmed by first appellate Court and High Court by way of second appeal. Now, the appellants herein have attempted to interfere the respondent''s possession in respect of ''A'' schedule property to the extent of 97 cents and the appellants have encroached upon 3 cents and made construction there and hence the respondent prayed for injunction in respect of the first item of suit property and mandatory injunction in respect of the second item of suit property and prayed for a decree.

The appellants as defendants raised the contention stating that the father of the plaintiff/respondent has claiming title only in respect of 67-1/2 cents and not total one acre and hence he prayed for the dismissal of suit.

The trial Court has considered the oral and documentary evidence and dismissed the suit. Against that the respondent/plaintiff has preferred an appeal before the learned Principal District Judge, Ramanathapuram, who has reversed the findings of the trial Court and decreed the suit as prayed for. Against that, the defendants have come forward with the present second appeal.

The learned Counsel for the appellant would content that it is true that the first appellant herein has preferred a suit in O.S. No. 348/89 in respect of S. No. 29/4B to the extent of one acre. In that the plaintiff''s father Shanmugathevar raised a plea that he has purchased 67-1/2 cents in the same survey number and he also in possession and enjoyment of the same and the trial Court has come to the conclusion that the said Shanmugathevar and his heirs are prescribed title by adverse possession in respect of suit properties and dismissed the suit and also come to the conclusion that Kunjarammal has no concur any right to execute sale deed under Ex.A1. But, the said Shanmugathevar has claiming right only in respect of 67-1/2 cents and in O.S. No. 348/89 and A.S. No. 10/94, it was decided that first appellant is not entitled any relief and they are prescribed title by adverse possession and hence the learned Counsel for the appellant would contend that they are entitled only 67-1/2 cents alone and not remaining 32-1/2 cents; so the trial Court has considered all the aspects, but the first appellate Court has erroneously come to the wrong conclusion that the respondent is entitled for injunction in respect of first item of suit property and mandatory injunction in respect of second item of suit property, which has not been identified; since Shanmugathevar has claiming right over only to 67-1/2 cents in the previous suit, they are estopped from claiming more than that and hence he prayed for the allowing of appeal.

The learned Counsel for the respondent would contend that since the property has been identified, there is no dispute in respect of the property because already the suit has been filed by the first appellant in respect of one acre on the basis of Ex.B1 and Ex.B11, but in the previous suit, it was decided that Kunjarammal has no right to execute the settlement deed and in view of the same Nagavalli has not acquired any right over the suit property and she has not having any alienable right in the property, hence the sale deed in favour of the first appellant under Ex.A1 is not valid and as per Ex,.A1, the appellants herein has not conferred or acquired any right over the suit property. He further contended that it is true that in the previous suit, as per Ex.B16 and B17, Shanmugathevar has claiming only 67-1/2 cents, but the trial Court has come to the conclusion that the entire suit property one acre has not been in the possession and enjoyment of the appellants herein and the defendant Shanmugathevar and heirs alone are in possession and enjoyment for more than statutory period and hence it was held that they are prescribed title by adverse possession and thus they are entitled one acre, that has been considered by the first appellate Court and decree has been granted and there is no infirmity in the judgment and decree of the first appellate Court and hence he prayed for the dismissal of the appeal.

Substantial questions of law Nos. 1 and 3:

It is true that the first item of suit property to the extent of 97 cents and the second item of suit property 3 cents are situated in S. No. 29/4B. The plaint plan has been marked as Ex.A1. As per Ex.A1, the portion mentioned in ''A B C G D E F A'' is the first item of suit property and the second item of suit property is mentioned as ''B C D G B''. The first appellant herein has filed a suit against Shanmuthevar on the file of District Munsif Court, Ramanathapuram for declaration and injunction in respect of one acre in S. No. 29/4B. The judgment and decree are marked as Ex.A2 and A3 respectively. In that, it was held that Shanmugathevar has purchased western 67-1/2 cents from one Ramiah Thevar out of one acre 80 cents. From that date onwards, he is in possession and enjoyment of the same. Since Kunjarammal having no right to execute the sale deed, it will not bind the defendant and hence from 21.11.1998 onwards Shanmugathevar, the defendant in O.S. No. 348/89 and his children were enjoyed the property and Soundarmmal, who was the plaintiff therein, has no right over the suit property and thus the suit has been dismissed. Against that an appeal and second appeal have been preferred and the same were also dismissed stating that the plaintiff/first appellant herein has not entitled declaration or injunction.

In such circumstances, the suit property is in possession of the respondent herein and hence they are entitled and prescribed title by adverse possession and the second appeal has also been dismissed, that has been evidenced by Ex.A6. After that, the respondent is in possession and enjoyment of the same. The second appeal has disposed of on 29./01.1998. Even though the respondents/appellants herein raised a plea in their written statement that they preferred an appeal against Ex.A6 before the Supreme Court, they have not filed any document before the Court to substantiate the said plea. During the argument also, they have not put forth any arguments in respect of the same. The only plea raised is that since Shanmugathevar in his written statement has claiming only 67-1/2 cents, even though the suit has been dismissed entirety, they are estopped from claiming one acre in the present suit. But the above argument does not hold good. Because, even though they raised the contention that they are entitled only 67-1/2 cents in the suit property in the previous suit, it was negativing the right of appellants over the suit property. They have not proved their possession and enjoyment.

In the above said circumstances, the plea of the appellants that the respondent is estopped from claiming any right more than what was claimed in O.S. No. 348/89 is not correct. Because, even though, the first appellate Court has come to the conclusion that the appellants herein are not entitle any title over the suit property and so the respondent is not estopped from claiming more than what he was claimed in O.S. No. 348/89.

Moreover, considering the judgment of first appellate Court as well as Ex.A2 and A4, the judgment in O.S. No. 348/89 and A.S. No. 10/94, have clearly proved that the appellants herein have no right over the suit property. Even though the respondent herein has claiming 67-1/2 cents, the entire suit has been dismissed stating that he is in possession and enjoyment and hence their title has been proved by the Court of law in the previous suit. The second appeal has also been dismissed at the admission stage itself and hence, it has become final. So, the arguments advanced by the learned Counsel appearing for the appellants that the remaining 32-1/2 cents is in possession and enjoyment of the appellants herein is an unacceptable one. So, the learned first appellate Judge has considered all the aspects in his judgment come to the correct conclusion, hence there is no misreading of judgment in O.S. No. 348/89 i.e. marked as Ex.A2. The substantial questions of law 1 and 3 are answered accordingly.

Substantial question of law No. 2:

In view of the answer given in substantial questions of law Nos. 1 and 3, as per the previous proceeding in Ex.A2 and A4, it was decided that the first appellant herein has not entitled one acre i.e. the suit property and the suit has been dismissed and hence the respondent''s herein right has been declared, even though he is claiming 67-1/2 cents, he is in possession and enjoyment of the same. After the disposal of the second appeal in 1994, during the pendency of the appeal, the first appellant has executed the settlement deed in favour of the second appellant. Even though the second appellant has made constructions, he filed documents in Exs.B4 to B9 photographs and previous sale deeds and those documents are not helpful to the appellants herein. There was a criminal cases also in between both the parties from 1998 onwards, that has been evidence by Exs.B23 and B24.

20.It has clearly proved that the second appellant herein has encroached upon the second item of suit property and made constructions. So, the respondent herein is entitled to mandatory injunction to demolish the construction and recovery of possession and I am of the opinion that there is no infirmity and irregularity in the judgment and decree passed by the learned first appellate Judge and the same is liable to be confirmed.

In the result, the Second appeal is dismissed. The Judgment and decree dated 03.09.2003 made in A.S. No. 24 of 2003 passed by the learned Principal District Judge at Ramanathapuram reversing the judgment and decree dated 01.07.2003 made in O.S. No. 19 of 1999 passed by the learned Subordinate Judge, Ramanathapuram is confirmed. Two months time is granted to demolish the superstructure in the second item of suit property and hand over the vacant possession of the second item of suit property to the plaintiff. Two months time is granted. No costs. Consequently, connected miscellaneous petitions are also dismissed.