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2019 Supreme(Mad) 2138
IN THE HIGH COURT OF MADRAS
G. Jayachandran, J.
Gopal - Appellant
Vs.
Kaleshkumari - Respondent
Second Appeal No. 1815 of 2004, 1968 of 2004
Decided On : 28-01-2019
A.L. Gandhimathi, Adv., V. Anilkumar, Adv.
Headnote:
Claim of compensation - Trial Court - Recovery of possession and mandatory injunction - Case of appellants/plaintiffs suit property which is described as a cart track is situated in measuring roughly feet length and breadth marked as ABCD in he rough plan attached to plaint - According to appellants they are absolute owners of said cart track - Father of appellants inherited suit property from his ancestors and enjoyed the same till his death - As his legal heirs plaintiffs/appellants have succeeded to his estate and enjoying suit property. In the year 1985 appellants dug a well in their property mud excavated in well was used to lay cart track in their own land for their own use exclusively – Held, While the cart track falls within the land of the respondents, live fence put on Southern side of cart track prevents respondents from having access to their house through the cart track - To have access to their house through the cart track live fence in their land is necessarily to be removed that is reason why First Appellate Court after appreciating rival contentions allowed suit filed by respondents dismissed the suit filed by appellants herein - It is incorrect to say that First Appellate Court has arrived to said conclusion based on assumption and presumption - His decision is based on documentary evidence and oral evidence let in by parties besides commissioner report marked - When both the parties admit that there was separate cart tracks for them running in their respective lands and document also supports case of first respondent, there is no error in the findings of First Appellate Court that suit cart track was part and parcel of land purchased by the first respondent under - There is ample evidence before the Court to arrive at conclusion that live fence on Southern side of the suit property has been put up by the appellants after encroaching upon the suit land of first respondent appellants herein either as a plaintiff in O.S.No.266 of 1995 or as defendants could establish that the suit property exclusively falls within their land - While so, this Court finds that the finding of First Appellate Court is based on evidence both documentary as well as oral beside report of Advocate Commissioner appointed by Court and the sketch prepared by Commissioner with help of the surveyor - Hence this Court finds no reason to interfere with judgment of the First Appellate Court - Contradictory plea by a plaintiffs one claiming title over property and another accept title of other but claiming a right based on adverse possession is not maintainable - In a suit for declaration based on title plaintiffs cannot make an alternate plea for declaration of ownership based on adverse possession - In support of the submission learned counsel for the respondents would refer to judgment of Hobble Supreme Court in wherein in paragraph it has been held as follows – Appeal dismissed
JUDGMENT :
G. Jayachandran, J.
The above two Second Appeals are directed against the common judgment passed by the First Appellate Court in A.S.Nos.36 of 2002 and 11 of 2003 dated 29.04.2003. The appellants herein are the plaintiffs in O.S.No.372 of 1997 on the file of the learned District Munsif, Dharmapuri and respondents in A.S.No.11 of 2003 on the file of the learned Subordinate Judge, Dharmapuri. The respondents herein are the plaintiffs in O.S.No.266 of 1995 on the file of the learned District Munsif, Dharmapuri and appellants in A.S.No.36 of 2002 on the file of the learned Subordinate Judge, Dharmapuri.
2. Before the trial Court, the appellants herein succeeded in their suit in O.S.No.266 of 1995 which was reversed by the First Appellate Court in A.S.No.36 of 2002. Whereas, before the trial Court, the respondents herein lost their suit in O.S.No.372 of 1997 but succeeded in their appeal in A.S.No.11 of 2003.
3. The case of the appellants/plaintiffs in O.S.No.266 of 1995, the suit property which is described as a cart track is situated in S.No.37/5 and S.No.38/4 measuring roughly 360 feet length and 10 feet breadth marked as 'ABCD', in the rough plan attached to the plaint. According to the appellants, they are the absolute owners of the said cart track. The father of the appellants inherited the suit property from his ancestors and enjoyed the same till his death in the year 1970. As his legal heirs, the plaintiffs/appellants have succeeded to his estate and enjoying the suit property. In the year 1985, the appellants dug a well in their property. The mud excavated in the well was used to lay cart track in their own land, for their own use exclusively.
4. The first respondent herein who purchased the land adjacent to the suit cart track from one Ramalingam. He also wanted to purchase the appellants' land, to establish a Mill. When the appellants refused to sell their property, as a short cut method, to grab the suit property, the first respondent, claiming imaginary right over the suit property and causing trouble to the appellants' peaceful possession and enjoyment.
5. On 29.08.1995, the respondents herein made an attempt with the help of rowdy elements to destroy the suit property and annexed it with their property. The said attempt was prevented by the appellants with the help of others. The vendor of the first respondent never claimed right over the suit property till be alienated to the first respondent the first respondent making a imaginary claim over the suit property, as if, she has a right in the cart track. Even, for any reason, if the Court come to the conclusion that the first respondent is entitled for the suit property, the appellants, having perfected their title to the suit property by way of adverse possession, by their continuous enjoyment for more than 100 years to the knowledge of the first respondent and his predecessor in title, they are entitled for the declaration of title and permanent injunction restraining the defendants.
6. The case of the respondents herein as defendants in the suit, O.S.No.266 of 1995:
In the written statement filed by the first respondent, she resists the claim of the appellants. While admitting that the land in S.Nos.37/5 and 38/4, of Pagalahalli Pannai Village, belongs to the appellants, the respondents denied the claim of the appellants that the suit cart track belongs to the appellants'. The suit property which is a cart track marked as 'ABCD' in the plaint rough sketch, does not fall within the appellants land.
7. It is averred in their written statement that the cart track is in the first respondent's land and it belongs to the first respondent who purchased it from the lawful owner. To reach his house, the first respondent has put up the cart track in her land. Earlier, the appellants were having their own cart track in their land and the suit cart track marked as ABCD is in the first respondent's land. Later the appellants ploughed the land and annexed their cart track wit
