Court : Madurai Bench of MAdras High COurt
Brief :
Citation :
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19/01/2009
CORAM
THE HONOURABLE MR. JUSTICE S. RAJESWARAN
S.A. No. 4 OF 2009
Udayar
.. Appellant
vs.
Smt. Daiva Guruvammal
.. Respondent
Second Appeal is filed under Section 100 of the Code of Civil Procedure
against the judgement and decree dated 13.06.2008 made in A.S.No. 92 of 2005 on
the file of the learned Subordinate Judge, Sankarankoil, confirming the
judgement and decree, dated 01.12.2004 made in O.S.No.40 of 1999 on the file of
the Additional District Munsif's Court, Sankarankoil.
!For Appellant ... Mr. S. Kadarkarai
^
:JUDGMENT
This appeal is disposed off in the admission stage itself.
2. 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.
3. 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.
4. The appellant/defendant filed a written statement opposing the reliefs
prayed by the plaintiff.
5. 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 ?
6. 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.
7. 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.
8. 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 ?
9. I have heard the learned counsel for the appellant and I have gone
through the documents available in the record.
10. 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 under Section 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 under Section 100
CPC, especially when the findings are reasonable and are not perverse.
11. 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.
kr.
To:
1.The Subordinate Judge,
Sankarankoil, Tirunelveli District.
2.The Additional District Munsif,
Sankarankoil, Tirunelveli District.
