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2010 Supreme(Mad) 3961
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
Syed Abdul Jabbar
Versus
The Executive Officer & Another
S.A.No. 771 OF 2000
Decided On : 06-09-2010
For the Appellant:P. Mani, Advocate.
For the Defendants:R. Revathy, Government Advocate.
The main legal point established in the judgment is that the Appellant/Plaintiff failed to prove adverse possession over the suit property, as claimed, and the court affirmed the decision of the First Appellate Court based on the evidence and legal provisions presented.
Headnote:
The Appellant/Plaintiff filed a Second Appeal against the Judgment and Decree of the trial Court, which had granted relief of permanent and mandatory injunction and awarded compensation of Rs.20,000. The First Appellate Court set aside the trial Court's decision, stating that the Appellant/Plaintiff did not have sufficient evidence to prove possession of the suit property before 1980. The Appellant/Plaintiff claimed that they had been in possession of the property since 1958 and had perfected their title through adverse possession. The Respondents/Defendants argued that the property was a Natham poramboke land and that the Appellant/Plaintiff was running a commercial business on the property, which was not permitted. The court considered various legal provisions, including Section 170 of the Panchayat Act, and found that the Appellant/Plaintiff had not proved adverse possession. The court dismissed the Second Appeal, affirming the First Appellate Court's decision.
1. The Appellant/Respondent/Plaintiff has filed this Second Appeal as against the Judgment and Decree dated 13.10.1999 in A.S.No.109 of 1997 on the file of Learned II Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri.
2. The First Appellate Court viz., the Learned II Additional District and Sessions Judge-Chief Judicial Magistrate, Krishnagiri, in the Judgment in A.S.No.109 of 1997 dated 13.10.1999 has among other things observed that the Appellant/Plaintiff is not entitled to claim the relief of recovery of possession in respect of the suit property and further it is also held that the Appellant/Plaintiff is not entitled to claim a sum of Rs.20,000/-determined by the trial Court as compensation and consequently allowed the Appeal, thereby setting aside the Judgment and Decree of the trial Court passed in the main Suit O.S.No.46 of 1996 on its file.
3. Before the trial Court, on the side of the Appellant/Plaintiff, 1 to 9 issues were framed for trial. On the side of the Appellant/Plaintiff, witnesses PW1 to PW3 were examined and Ex.A.1 to Ex.A.13 were marked. On the side of the Respondents/Defendants witnesses DW1 to DW3 were examined and Ex.B.1 to Ex.B.8 were marked. Also, as Court Exhibits, the Commissioners Reports and plans were marked as Ex.C.1 to Ex.C.4.
4. On an appreciation oral and documentary evidence available on record the trial Court has come to the conclusion that the Appellant/Plaintiff has a claim over the suit property and since the Respondents/Defendants have removed the Appellant/plaintiff unlawfully they are required to hand over the possession of the suit property to the Appellant/Plaintiff and further has held that as per Section 170 of the Panchayat Act, no notice is required to be sent and consequently granted the relief of permanent injunction and mandatory injunction as prayed for by the Appellant/Plaintiff in the suit, but in regard to the claim of compensation it awarded only a sum of Rs.20,000/-to the Appellant/Plaintiff and decreed the suit, leaving the parties to bear their own costs.
5. The trial Court in Paragraph 5 of its Judgment in the suit has observed that though it is stated that the suit property belonged to Panchayat when it has been handed over to Panchayat has not been stated. Further, the trial Court has opined that in respect of Occupied Natham Poramboke who ever encroachers upon the same it belonged to him and since the suit property has been admitted to be a Grama Natham and encroached by the Appellant/Plaintiff the plea that it belonged to Panchayat is not accepted.
6. Moreover, the trial Court in Paragraph 6 of the Judgment has observed that on the basis of contradictory evidence of defendant witnesses it is unbelievable to say that the Plaintiff has voluntarily vacated the shop. That apart, the trial Court has held that the averment officers have demolished the shop is believable, but to say that they have removed the articles of the building is unbelievable. In respect of damage to articles and buildings damaged, the trial Court has awarded a sum of Rs.10,000/- each and in all it granted a sum of Rs.20,000/-.
7. The First Appellate Court has come to the conclusion that the evidence of witnesses examined and document marked on the side of the Appellant/Plaintiff are not sufficient to prove that the Appellant/Plaintiff has been enjoyment of the suit property before the year 1980.
8. Furthermore, the First Appellate Court viz., the Learned II Additional District and Sessions Judge-Chief Judicial Magistrate, Krishnagiri has also opined that the document filed on the side of the Appellant/Plaintiff are only for ten years to show possession and added further, the evidence of PW2 to 4 are all interested.
9. Being satisfied with the Judgment and Decree passed by the First Appellate Court viz., the II Additional District and Sessions Judge-Chief Judicial Magistrate, Krishnagiri in A.S.No.109 of 1997 dated 13.10.1999, the Appellant/Plaint
