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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.N. MANJULA, J.
Balasubramaniam – Appellant
Versus
Ponnusamy – Respondent
S.A. No. 236 of 2010 & M.P. No. 1 of 2010
Decided On : 30-03-2021
Code of Civil Procedure, 1908 – Section 100, Order 41 Rule 31 – Permanent Injunction – Sale Deed – Trespass – Plaintiff is in enjoyment of lands in village Natham old Survey corresponding to new Survey comprising an extent of 0.0375.0 sq.mt. – In Illupuli Panchayat, he has constructed a tiled house – Land in old S. corresponding to the new S. in an extent of 0.0210.0 sq.mt was in enjoyment of one Chinnaiya Pillai and Thiyagarajan. – Patta is also granted in the favour of them. – Chinnaiya Pillai and Thiyagarajan sold above said site in favour of plaintiff and executed a sale deed – Defendant who is adjoining land owner in S. situated on eastern side of plaintiff’s suit property. – He has also got patta to his land in S. – Since plaintiff’s vendor refused to purchase suit property, defendant started to make unlawful attempts to trespass into suit property and encroached same. – Hence plaintiff has filed suit for declaration of title and permanent injunction. – During pendency of suit, defendant constructed asbestos sheet building, erected compound wall, borewell and effected other improvements and changes in the suit property by trespassing into it. – Hence suit is amended to include prayer for mandatory injunction to remove same. – When appellant had produced Ex.A.2, patta and Ex.A.3, sale deed, to establish his title and possession over suit property, whether courts below are correct in law in not considering same and non-suiting appellant – When it is axiomatic in law that issue of title has to be decided only by Civil Court and revenue authorities cannot decide same as held in several judgments, whether courts below are correct in deciding otherwise –
Finding of the Court: Counsel for appellant submitted that Appellate Courts should comply with requirement of Order 41 Rule 31 and in support of his contention he cited in the decisions Nos.7 & 8. – But even in the absence of points for consideration, if sufficient justification is done by appreciating the evidence on record with enough discussion in order to answer the question of dispute involved in the suit, that itself can be considered as a sufficient compliance. – Judgment of the First Appellate Court would show that it has done a fresh discussion on the findings of the Lower Court and subscribed its own reasons as to how findings of the Trial Court are correct. – Judgment and decree of the First Appellate Court is in conformity with the decision of Trial Court and the reading of judgment of First Appellate Court reveals reasons as to why First Appellate Court could accept findings of trial court and why first appeal was dismissed. – Though questions of law raised in this appeal camouflaged as something related to law, actually whole background is question of facts only. – These facts have been correctly analysed by Courts below and Civil Court’s jurisdiction to decide about title of a person has been invoked correctly and decided. – Court find no factual or legal infirmity in the judgment and decrees of the Courts below in dismissing the suit. – Hence the substantial questions of law are answered against the appellant. –
Result: Second Appeal Dismissed
JUDGMENT :-
(Prayer: The Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree of the Subordinate Judge’s Court at Tiruchengode dated 24.07.2009 in A.S.No.185 of 2008, confirming the judgment and decree of the District Munsif Court at Tiruchengode dated 31.03.2008 in O.S.No.97 of 1998.)
1. This Second Appeal has been filed against the Judgment and Decree dated 24.07.2009 passed in A.S.No.185 of 2008 on the file of the Subordinate Judge’s Court at Tiruchengode, confirming the judgment and decree dated 31.03.2008 passed in O.S.No.97 of 1998 on the file of the District Munsif Court, Tiruchengode.
2. The Appellant is the plaintiff in the suit.
The short facts of the plaintiff’s case are as under:-
3. The plaintiff is in enjoyment of the lands in village Natham old Survey No.22/3A1 corresponding to new Survey No.500/6 comprising an extent of 0.0375.0 sq.mt. In Illupuli Panchayat, he has constructed a tiled house bearing Door No.9/60. The land in old S.No.22/3A1 corresponding to the new S.No.500/7 in an extent of 0.0210.0 sq.mt was in enjoyment of one Chinnaiya Pillai and Thiyagarajan. Patta is also granted in the favour of them. On 27.11.1995, Chinnaiya Pillai and Thiyagarajan sold the above said site in favour of the plaintiff and executed a sale deed on 27.11.1995. The defendant who is the adjoining land owner in S.No.500/8 situated on the eastern side of the plaintiff’s suit property. He has also got patta to his land in S.No.500/8. Since the plaintiff’s vendor refused to purchase the suit property, the defendant started to make unlawful attempts to trespass into the suit property and encroached the same. Hence the plaintiff has filed the suit for declaration of title and permanent injunction. During the pendency of the suit, the defendant constructed asbestos sheet building, erected compound wall, borewell and effected other improvements and changes in the suit property by trespassing into it. Hence the suit is amended to include the prayer for mandatory injunction to remove the same.
The short facts of the written statement of the defendant:-
4. The description of the property itself is false and fraudulent. The defendant and his forefathers had been in enjoyment and possession of the entire area covered under the patta No.579. The plaintiff’s vendors have fraudulently obtained patta for theerstwhile S.No.500/7 by suppressing the defendant and his forefather’s title over the same. Aggrieved by the same, the defendant filed an appeal before the District Revenue Officer, Namakkal and after enquiry, the patta granted in favour of the plaintiff’s vendors was cancelled and both the sites in S.No.500/8 and 500/7 were clubbed together in S.No. 500/7 itself and a fresh patta has been granted to the entire extent in patta No.579. In view of the same, a patta in respect of the erstwhile S.No.500/7 in patta No.239 in the name of Chinnaiya Pillai and Thiyagarajan was cancelled. The improvements in the suit property has been made by the defendant in the year 1985 itself and the Commissioner’s report and plan in Exs.C1 & C2, would show the same. Further, the plaintiff has put up the borewell also in the suit property several years ago for his domestic use and agricultural purposes. The sale deed in favour of the plaintiff is a fraudulent one and the defendant has not made any construction during the pendency of the suit but the construction in the suit property has been made by him long ago. The plaintiff is not entitled to any relief and hence the suit has to be dismissed.
5. On the side of the plaintiff, one witness was examined as P.W.1 and Exs.A1 to A16 were marked. On the side of the defendant, two witnesses were examined as D.W.1 & D.W.2 and Exs.B1 to B9 were marked. The Commissioner’s report and plan were marked as Exs.C1 & C2.
6. The Trial Court after the conclusion of the trial dismissed the suit. Now the plaintiff has filed the second appeal and the second appeal has been admitted on the following questions of la
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