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2020 Supreme(Mad) 1044
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
J. NISHA BANU, J.
Jailani – Appellant
Versus
Valliammal and Others – Respondents
S.A. (MD) No. 864 of 2005
Decided On : 06-02-2020
Advocate Appeared:
For the Appellant : A. Arumugam.
For the Respondent: V. Meenakshisundaram for A. Sankarasubramanian, D. Nallathambi.
Headnote:
Constitution of India, 1950 - Permanent injunction - Schedule property was allotted to share - Possession of properties - Appellant as well as 2nd respondent as plaintiffs had instituted O.S. on file of trial Court for reliefs of declaration and permanent injunction in respect of suit properties wherein respondents 1 and 3 have been shown as defendants - For better appreciation and understanding parties are referred to as per their ranking in suit - According to plaintiffs suit schedule properties ancestrally belonged to father of plaintiffs and patta also stood in his name - They effected partition in respect of their family properties including suit properties in which 1st schedule property was allotted to share of 1st plaintiff and 2nd schedule property was allotted to share of 2nd plaintiff – Held, It is also contended on side of appellant/1st plaintiff that 1st defendant deliberately avoided to enter into witness box - It is duty of plaintiffs to cross-examine other witnesses and prove their case - Said contention raised on side of plaintiffs is of no merit - It is further contended on side of appellant/1st plaintiff that this Court can interfere with perverse findings of Courts below – Since plaintiffs did not prove their case through oral and documentary evidence said contention raised on side of appellant/1st plaintiff is of no merit - Counsel for appellant/1st plaintiff drawing attention of this Court to Judgment of Hobble Supreme Court Prasad and Another submitted that through a larger relief is prayed in suit and if no case is made out but facts as established justify granting of a smaller relief Order VII Rule 7 permits granting of such relief to parties - But in this case plaintiffs did not prove their partition deed Ex.A.1, which is sheet anchor of their case - Above Judgment is not applicable to facts and circumstances of present case - In view of above discussions this Court does not find any reason to interfere with concurrent judgment and decree passed by Courts below and substantial questions of law formulated in second appeal are not at all relevant for purpose of deciding real issue involved in present second appeal - In view of above this Court is inclined to dismiss this second appeal – Appeal dismissed
JUDGMENT :
J. NISHA BANU, J.
1. The concurrent judgments and decrees passed in O.S. No. 161 of 1999 by the learned Additional District Munsif, Tuticorin and in A.S. No. 34 of 2003 by the learned Principal District Judge, Tuticorin are being challenged in these second appeals.
2. The appellant as well as 2nd respondent as plaintiffs had instituted O.S. No. 161 of 1999 on the file of the trial Court for the reliefs of declaration and permanent injunction in respect of the suit properties, wherein the respondents 1 and 3 have been shown as defendants.
3. For better appreciation and understanding, the parties are referred to as per their ranking in the suit.
4. According to the plaintiffs, the suit schedule properties ancestrally belonged to the father of the plaintiffs, namely, Mohamed Serammali Maraicayar and the patta also stood in his name. On 30.04.1987, they effected partition in respect of their family properties including the suit properties, in which, the 1st schedule property was allotted to the share of the 1st plaintiff and the 2nd schedule property was allotted to the share of the 2nd plaintiff. After partition, they are in enjoyment of their respective shares. Since the 1st plaintiff is in Muscut, his wife is enjoying the property. The plaintiffs, their father and his ancestors have been enjoying the suit properties over a period of 50 years and perfected title by adverse possession. The father of the plaintiffs died two years back. On 26.04.1999, the defendants, who are the adjacent owners of the property, started cutting the trees in their properties and they high-handedly tried to cut the trees in the suit properties, which was prevented by the plaintiffs and the plaintiffs made a complaint to the police. The value of the velikaruvai trees standing in the suit properties is worth about Rs. 5,000/-. Since, the defendants are threatening to cut and remove the trees standing in the suit properties, the plaintiffs filed the suit for the reliefs of declaration and permanent injunction.
5. Denying the facts averred in the plaint, the defendants had resisted the suit contending that the property situate in S. No. 305 originally belonged to the great-grandfather of the plaintiffs by name Chinna Pitchai Maraicayar. He had three sons namely, Kamsa Maraikayar, Peer Kannu Maraicayar and Samsu Maraicayar. In the partition which took place between the three sons in respect of S. No. 305, eastern portion was allotted to Samsu Maraicayar, the adjacent wester position was allotted to Kamsa Maraicayar and the further western portion was allotted to Peer Kannu Maraicayar. Thereafter, the said properties were sub-divided, in which, S. No. 305/1E and 305/2C were allotted to Samsu Maraicayar, S. No. 305/1B, 305/1D and 305/2B were allotted to Kamsa Maraicayar and S. No. 305/1A, 305/1C and 305/2A were allotted to Peer Kannu Maraicayar. Since Samsu Maraicayar had gone to foreign country and died as bachelor, the shares of Samsu Maraicyaar were enjoyed by Kamsa Maraicayar and Peer Kannu Maraicayar. Peer Kannu Maraicayar sold some of the properties including the suit property to one Kandasamy Naicker on 02.12.1938, who in turn, executed a gift deed in favour of the 1st defendant on 02.11.1961. After subdivisions, S. No. 305/1E and 305/2C lands were allotted to 1st defendant in lieu of that the lands in S. No. 206/1 was given to Seramalli Maraicayar. The 1st defendant was granted patta and she is also paying kist. Since she is in enjoyment of the suit properties, for the past 25 years, she perfected title by adverse possession. The plaintiffs have no right, title and possession over the suit properties. Thus, they prayed to dismiss the suits.
6. Before the trial Court, O.S. No. 161 of 1999, was taken up along with the connected suit in O.S. No. 225 of 1999. On the side of the plaintiffs, 2nd plaintiff was examined as PW-1 and one Sikkandar Mohideen was examined as PW-2 and Exs.A1 to A19 were marked and on the side of the defendants, three witnesses
