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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. AUTHINATHAN, J.
Meyyathal – Appellant
Versus
Nachiappan @ Nachan – Respondent
S.A. (MD) No. 1824 of 1998
Decided On : 23-06-2017
Indian Evidence Act – Section 110 – Permanent Injunction – Decree – Appellate Court has come to conclusion that plaintiff has failed to establish his adverse possession for full statutory period appellate court observed that plaintiff has proved possession suit it reversed judgment and decree of Trial Court and dismissed suit – Court plaintiff examined four witnesses and marked 26 documents – On side of defendants witnesses have been examined have marked documents – Commissioner has been appointed to inspect suit property and his report and plan were marked – Held, Plaintiff was in possession of property be seen whether plaintiff is entitled to an order of injunction restraining defendants from interfering with his possession well-settled that possession is nine points in law and that a person who has been in long continuous possession of a property can protect same by seeking an injunction against any person in world other than true owner learned senior counsel for appellant submitted that in terms Court can presume that person in possession has a good title and granted relief of declaration and injunction against any person other than true owner case at hand there is clear evidence to contrary relief of declaration cannot be granted as prayed for by plaintiff – Learned senior counsel for appellant submitted that in terms of Court can presume that person in possession has a good title and granted relief of declaration and injunction against any person other than true owner case at hand there is clear evidence to contrary relief of declaration cannot be granted as prayed for by plaintiff – Appeal is allowed.
N. AUTHINATHAN, J.
1. The above second appeal arises out of the judgment and decree, dated 08.10.1998, passed in A.S. No. 36/95 on the file of the Principal District Judge, Sivaganga, reversing the judgment and decree dated 27.4.94, passed in O.S. No. 140/92 on the file of the learned Subordinate Judge, Devakottai.
2. Parties herein are hereinafter referred to as they were arrayed in the original suit.
3. One Mayalagu @ Mayan Asari instituted the suit in O.S. No. 140 of 1992 on the file of Sub Court, Devakottai as against seven defendants. It is a suit for declaration of his title to the suit property and for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit property. The suit property is a site measuring about 16 cents with a tiled shed built thereon. It is situated within Grama Natham area in S.R. Pattinam, Karaikudi Taluk.
4. Before the Trial Court, the plaintiff examined four witnesses and marked 26 documents. On the side of the defendants, 5 witnesses have been examined. They have marked 10 documents. A Commissioner has been appointed to inspect the suit property and his report and plan were marked as Exs.C1 and C2.
5. The Trial Court held that the plaintiff had acquired title to the suit property by prescription and decreed the suit as prayed for. Aggrieved by the judgment and decree, the defendants in the suit preferred A.S. No. 36 of 1995 on the file of Principal District Judge, Sivagangai.
6. The first Appellate Court has come to the conclusion that the plaintiff has failed to establish his adverse possession for the full statutory period. The appellate court observed that the plaintiff has proved possession for a period of 10 years before suit. However, it reversed the judgment and decree of the Trial Court and dismissed the suit.
7. Aggrieved by the judgment and decree of the First Appellate Court, this appeal has been preferred by the legal heirs of the original plaintiff. The second appeal was admitted on the following substantial questions of law:-
1. Whether the possession by the plaintiff of the suit property is not sufficient to entitle him to the relief of declaration and injunction against the defendants, who have failed to prove better title than the plaintiff?
2. Whether the judgment of the Learned District Judge is against Section 110 of Indian Evidence Act?
3. When the lower Appellate Court has rightly found the plaintiff has proved his continuous possession over the suit property, whether he is not entitled to the presumption of title in his favour and has not the Lower Appellate Court committed an error of law in not seeing that the burden of proving better title was on the defendants?
Points:
8. The case of the plaintiff is that the suit property originally belongs to one Sappani. He had three sons namely Poochi, Murugan and Kumaran. The case of the plaintiff is that Poochi predeceased Sappani, leaving behind his wife Valli and sons Rasappan and Arumugam. The plaintiff filed a suit in O.S. No. 65 of 1969 on the file of District Munsif, Devakottai against the legal heirs of Sappani on the basis of a pro-note executed by Sappani. He obtained a decree (Ex.A.1) for recovery of Rs. 1798.82 payable from out of the joint family properties of Sappani. Pending suit, the property in question was attached before judgment and it was made absolute (Ex.A.2). The further case of the plaintiff was that the legal heirs of Sappani handed over this property in lieu of Ex.A.1, decretal amount and left for Malasiya in the year 1969. The plaintiff claims that he has been in possession of the property since 1969.
9. The Defendants 1 to 3 have filed a written statement stating that they are unnecessary parties to the suit. The fourth defendant filed a written statement and it was adopted by defendants 5 to 7. They admitted that the suit property belonged to Sappani. According to them, after the death of Sappani, the suit property and other properties were allotted to
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