Udayar vs Smt. Daiva Guruvammal

S. Rajeswaran, J.—This appeal is disposed off in the admission stage itself.

The defendant in O.S. No. 40 of 1999 is the appellant before this Court. The suit in O.S. No. 40 of 1999 has been filed by the

respondent/plaintiff before the Additional District Munsif, Sankaankoil for the relief of permanent prohibitory injunction and mandatory injunction.

By a later amendment as per Court order, the relief of declaration was also added in the plaint.

The case of the plaintiff is that the suit property belonged to one Kanagaraj son of Sundaram and the same was purchased by the plaintiff on

23.9.1996 and since then she has been in possession and enjoyment of the same. Under the Government Welfare scheme, a house was

constructed by the Government in the part of the property and the plaintiff has been living there with her family. The other portion has been kept

vacant and she has put up a shed in the vacant place. The northern side of the property belonged to one Poochi and eastern side of the property of

Poochi, the property belonged to the defendant is situated. The defendant under the guise of purchasing the property from the said Poochi,

attempted to construct a wall in the suit property which was thwarted by the plaintiff. But now, the defendant on 2.2.1999 tried to put up a wall on

the northern side and again due to intervention of elders in the village it was prevented. But taking advantage of the fact that the plaintiff is a woman

and her husband is a physically handicapped person, every attempt is being made by the defendant to take possession of the property on and from

2.2.1999. Hence, the suit is filed by the plaintiff for the aforesaid relief.

The appellant/defendant filed a written statement opposing the reliefs prayed by the plaintiff.

On the basis of the above said pleadings, the trial Court framed the following issues and additional issues:

(1) Whether the plaintiff is entitled to claim for the relief of permanent injunction against the defendant?

(2) What are the other reliefs the plaintiff is entitled to?

Additional Issues:

(1) Whether the second item of the suit schedule property is exclusively in possession of the plaintiff?

(2) Whether the plaintiff is entitled for the relief of declaration?

(3) Whether the plaintiff is entitled to mandatory injunction as prayed for?

(4) Whether the suit is bad for non-joinder of necessary parties?

Before the trial Court the plaintiff examined herself as PW1 and along with her two other witnesses were examined as PW2 and PW3 on the

side of the plaintiff. The plaintiff also marked Exs. A1 to A4 and the defendant examined himself as DW1 and along with him another person was

also examined as DW2 to support the case of the defendant and one document was marked as Ex.B1 on the side of the defendant. The

Commissioner''s report was also obtained by the Court and same was marked as Ex.C1 along with the plans as Exs. C2 to C8.

The trial Court found on the basis of the oral and documentary evidence adduced before it, that there is no dispute about the identity of the

property. The trial Court has also adverted to the fact that the plaintiff purchased the property from the vendor Kanagaraj on 23.9.1996 as

admitted by DW1 himself in the cross examination. It is also an admitted fact before the trial Court that there is no dispute between the parties with

regard to the constructed area of the suit property and the dispute is with regard to the vacant area lying on the northern side. Though the

defendant claimed that property belonged to him, there is no documentary evidence adduced on the side of the defendant to substantiate his case.

The Court has also found that the property purchased by him does not relate to the property of the plaintiff. The trial Court further found that the

plaintiff is entitled for the relief of declaration. Accordingly, the trial Court granted the relief of prohibitory injunction, but found that the plaintiff has

not proved her case for the relief of mandatory injunction. Thus the suit was partly decreed. As against this, the defendant filed A.S. No. 92 of

2005 and the lower appellate Court has also, on the basis of the re-evaluation of the oral and documentary evidence available on record, agreed

with the findings of the trial court and dismissed the appeal. As against the concurrent judgements of both the Courts below, the defendant has filed

the above second appeal before this Court.

The second appeal has been filed raising the following substantial questions of law:

(1) Whether the judgement and decree of the lower appellate Court is correct in law holding that the plaintiff has proved title, especially when the

vendor of the plaintiff cannot convey better title than what he has?

(2) Whether the judgement and decree of the Courts below are sustainable in law especially when the plaintiff has not succeeded on the strength of

her case rather than relying on the weakness of the defence?

(3) Whether the judgement and decree of the Courts below are sustainable in law without considering the materials on record and in particular

averments in the written statement and depositions of Dws. 1 and 2 thereby vitiated which was the principle laid down by this Hon''ble Court in

2006(3) TNLJ page 680?

(4) Whether the judgement and decree of the lower appellate court are vitiated by its failure to consider relevant evidence on record?

I have heard the learned Counsel for the appellant and I have gone through the documents available in the record.

The plaintiff filed the suit before the trial Court for the relief of declaration, prohibitory injunction and mandatory injunction claiming that the

defendant, without any right whatsoever is trying to disturb the possession and enjoyment of the plaintiff''s property. Before the trial court, the

defendant resisted the claim of the plaintiff but however could not substantiate his claim by filing any document in support of his case. It is also an

admitted fact that there is no controversy with regard to the constructed portion of the suit schedule property. The dispute is only with regard to the

vacant site lying on the northern side. In fact, the appellant himself as DW1 admitted that the plaintiff purchased the property from the erstwhile

owner. His claim is that he is the owner of the vacant portion, which claim he could not establish before both the Courts below, by letting in legally

acceptable evidence. When both the Courts below have found that there is no basis for the claim of the defendant, claiming ownership of the

vacant land and rightly rejected the case of the defendant, no substantial questions of law arising for consideration in this appeal to be considered

by this Court u/s 100 CPC. The case of the plaintiff has been proved on the basis of oral and documentary evidence before the trial court, which

was also accepted by the lower appellate court. These factual findings could not be interfered with by this Court u/s 100 CPC, especially when the

findings are reasonable and are not perverse.

Therefore, in my considered opinion, the appellant has not made any question of law much less substantial questions of law in the second

appeal. Hence, the second appeal is dismissed. No costs. Consequently, the connected M.P. No. 1 of 2009 is also dismissed.