Court : MADURAI BENCH OF MADRAS HIGH COURT
Brief :
Citation :
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23/01/2009
CORAM
THE HONOURABLE MR. JUSTICE S.RAJESWARAN
S.A.(MD)NO.11 of 2009
& MP.NO.1 OF 2009
1.V.Karupiah
2.V.Lakshmanan Asari
3.P.Subbiah ... Appellants
Vs
1.V.Vasuki
2.The State of Tamil Nadu,
Rep.by its District Collector,
Sivagangai. ... Respondents
PRAYER
Second Appeal filed under Section 100 of the civil Procedure Code
against the judgement and decree dated 30-01-2002 in A.S.No.19 of 2001, on the
file of learned Subordinate Judge, Devakottai, confirming the judgment and
decree dated 29-11-2000 in O.S.No.77 of 1996 on the file of the District
Munsif, Devakottai.
!For Appellants ... Ms.AL.Gandhimathi
^For Respondents ... Mr.R.Vijayakumar for R1
:JUDGMENT
The defendants 1, 3 and 5 in O.S.No.77 of 1996 on the file of the District
Munsif, Devakottai are the appellants before this Court.
2.For the sake of convenience, the parties are referred to as per their
rankings in the suit.
3.O.S.No.77 of 1996 was filed by the plaintiff for declaration as well as
for mandatory injunction and for recovery of possession of the suit schedule
property. According to the plaintiff, the suit schedule property originally
belonged to the sixth defendant Government and it was Government's Punja Land.
The Survey Number of the suit property is 1/3 and its extent is 0.92.0 Ares and
it was assigned to the plaintiff in Assignment No.1125 of 1995 as per the order
dated 05-07-1990. From the date of assignment, the plaintiff has been in
possession of the suit property cultivating Punja Crops. Patta has been issued
in her name and she is also paying the tax.
4.The defendants 1 to 5 have no rights, title or interest over the suit
property and all of them belong to the Melamanakudi village. Since it was not
possible to implead all the 200 persons belonging to that village, the
defendants 1 to 5 have been impleaded as the representatuves of the villagers
and an application was filed under Order I, Rule 8 of CPC in this regard. It is
the case of the plaintiff that the defendants 1 to 5 colluded with the other
village people and demanded the plaintiff to sell away the property which was
refused by her. Therefore, they started giving trouble and prevented her from
cultivating the lands. Hence, the suit was filed for permanent injunction only.
Pending Suit, the suit property was encroached upon and a thatched shed was put
up in the suit propeprty. Therefore, the plaintiff asked for the relief of
declaration as well as mandatory injunction and also for possession of the suit
proerty by way of amendment.
5.The first defendant filed a written statement which was adopted by the
defendants 2 to 5. According to the defendants, the main supply channel to the
Melamankudi Kanmoi is passing through the suit property. Further, there are
houses of the villagers in the properties for a number of years and it is not a
punja land as contended by the plaintiff. As the plaintiff is an affluent
person, she managed to get the records and the plaintiff cannot claim any relief
against the defendants who are in possession and enjoyment of the property.
6.The sixth defendant Government filed a written statement stating that
the suit property was assigned to the plaintiff and she has been in possession
of the same by cultivating punja crops. The sixth defendant admitted that patta
was issued in the name of the plaintiff and the plaintiff is paying the tax.
The sixth defendant further conceded that the suit property has not been a
channel at any point of time and they have no objection for decreeing the suit
as prayed for.
7.The trial Court framed the following issues and additional issues:
1)Whether the suit property is in the possession of the plaintiff?
2)Whether the plaintiff is entitled to get the relief of permanent
injunction as prayed for?
3)Whether the suit is bad for non-joinder of Government as a party?
4)To what other reliefs the plaintiff is entitled to?
Additional Issues:-
1)Whether the plaintiff is entitled to the relief of declaration of title
over the suit property?
2)Whether the defendants 1 to 5 have to directed to handover vacant possession
of the suit property to the plaintiff?
3)Whether the plaintiff is entitled to be the relief of mandatory
injunction as prayed for?
8.The plaintiff examined herself as PW.1 and marked the Exs.A1 to A8 on
her side. Five witnesses were examined on the side of the defendants 1 to 5 and
Exs.B1 to B5 were marked on their side.
9.The trial Court, has gone into Ex.A1 which is the assignment order
granted in her favour, considered Exs.A2 to A4, which are Tax Receipts for
Fasali 1399,1400,1402 and 1404. It took note of Ex.A5 which is the Adangal and
Ex.A6 which is the Adangal for Fasali 1401 to 1404. The trial Court has also
adverted to the fact that no evidence was let in by the defendants 1 to 5 to
prove their claim that the main supply Channel to the Melamanakudi Kanmoi is
passing through the suit property. The trial Court has also considered the
stand of the sixth defendant/Government that the property was assigned to the
plaintiff and she has been in possesion and enjoyment of the suit property. On
the basis of the above said evidence, the trial Court came to the conclusion
that the suit property belongs to the plaintiff and she is entitled to the
relief of permanent injunction. The trial Court has also granted the mandatory
injunction after considering that encroachment has been made after filing the
suit and houses have been constructed after filing of the suit. In the result,
the suit was decreed as prayed for.
10.Aggrieved by the judgment of the trial Court, the defendants 1 to 5
filed an appeal in A.S.No.19 of 2001. The lower appellate Court reconsidered
the entire evidence and came to the conclusion that the suit property belongs to
the plaintiff who was put in possession and enjoyment of the same by the
Government/sixth defendant. It adverted to the fact that there was a valid
assignment and the same is still in force. The lower appellate Court has also
found that pending suit, the suit property was encroached upon by the defendants
and the plaintiff is entitled to the mandatory injunction. Therefore, it
concurred with the findings, of the trial Court and dismissed the appeal.
11.Aggrieved by the judgments of the both the Courts below the above
second appeal was filed in the year 2002 itself and for some reasons, the same
was not numbered and only now, it was numbered and posted before this Court i.e,
in the year 2009.
12.The following substantial questions of law were raised in the Second
Appeal:
a)Whether the suit property, which is not a punja land and is a channel
can be assigned to the Plaintiff?
b)Whether the Courts below are correct in granting a decree for
declaration, mandatory injunction and recovery of possession on the basis of
Ex.A1?
c)Whether the Courts below are correct in not considering the report of
the Commissioner which shows a channel in the suit property?
13.Heard the learned counsel for the appellants and the learned counsel
for the respondent/plaintiff. I have also gone perused the entire records, in
particular, the judgments of both the Courts below:
14.The case of the plaintiff is that, the suit property belongs to her on
the basis of the assignment order given by the Government, dated 05-07-1990.
She has been in possession and enjoyment of the same since then and in fact, she
is cultivating punja crops on the said land. When the villagers attempted to
interfere with her property she filed O.S.no.77 of 1996 for a permanent
injunction to protect her possession. Pending suit, some encroachment was made
and constructions were put up by the defendants. Therefore, she prayed for
recovery of possession as well as mandatory injunction besides seeking a
declaratory reliefs. The case of the defendants 1 to 5 is that there is a
channel in the suit property which is the main supply channel to the Melamankudi
Kanmoi. When the plaintiff was able to establish her title and possession by
necessary documents, the defendants 1 to 5 were not able to establish that there
was a channel as claimed by them by letting in acceptable evidence. That apart,
the Government which was impleaded in the suit later on as the sixth defendant,
accepted the case of the plaintiff and denied that there was a channel in the
suit property as contended by the defendants 1 to 5.
15.On the basis of the above evidence, both the Courts below accepted the
case of the plaintiff and rejected the case of the defendants 1 to 5. From the
above, it is very clear that the entire controvery was decided and settled in
favour of the plaintiff on the basis of factual aspects only.
16.In such circumstances, I do not find any question of law much less
substantial questions of law that arise for consideration in the second appeal.
Therefore, I do not find any merits in the appeal and the same is dismissed
accordingly.
17.In the result, the Second Appeal is DISMISSED. No costs. Consequenlty,
connected MP.No.1 of 2009 is dismissed.
gsr
To
1.The District Munsif,
Devakottai.
2.The Subordinate Judge,
Devakottai.
