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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
P. Manickam – Appellant
Versus
P. Panneerselvam – Respondent
S.A. No. 1398 of 2008 & M.P. No. 1 of 2008
Decided On : 25-03-2021
Limitation Act 1963 – Article 64 – Code of Civil Procedure, 1908 – Section 100 – Suit for declaration and possession – Second Appeal filed under Section 100 of C.P.C., against the judgment and decree of the learned Subordinate Judge, in A.S. and thereby confirming the judgment and decree of the Learned District Munsif, Tiruvarur, in O.S. – Have not the Courts below erred in holding that the plaintiff proved his case by Ex.A1 of a suit for declaration and recovery of possession without considering the fact that the defendant has established his possession of the suit property by the Exs.B1 to B23 – Whether or not the Courts below erred in considering the deposition of D.W.2 when he categorically stated that the partition happened in the year 1980 between the plaintiff and the defendant – Whether or not the findings of the Courts below regarding the declaration of the suit property in favour of the plaintiff is sustainable in law when he did not even produce any of the single piece of evidence to show his title except Ex.A1 – Whether or not the Courts below erred in holding that the defendant is not entitled for the relief of adverse possession, he firstly seeks a relief by his ownership and subsequently he seeks the relief of adverse possession when he continuously was in possession of the suit property from the year 1980 –
Finding of the Court:
When the plea of partition raised by the defendant is found to be totally a false case particularly the defendant having contradicted as regards the plea of partition in the written statement and in the oral evidence and when the evidence of P.W.2 is also found to be unacceptable, when according to the defendant in the course of his evidence, the partition had been effected only after Ex.A1 sale deed and when the plaintiff's claim of title to the suit property has been clearly established from Ex.A1, merely because the plaintiff has not placed any document of possession evidencing his possession qua the suit property, the defendant having failed to establish his plea of title by way of adverse possession, as above discussed, the substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiff and against the defendant. – Reasonings and conclusions of the Courts below for upholding the plaintiff's case and rejecting the defence version being founded on the proper appreciation of the materials available on record both oral and documentary, both on factual matrix as well as on the points of law and when they are not shown to be in any manner, perverse, illegal and irrational, court do not find any valid reason to interfere with the same. – Plaintiff's counsel in support of his contention placed reliance upon the decision reported in AIR 1964 Supreme Court 1254 – Principles of law outlined in the abovesaid decision are taken into consideration and followed as applicable to the case at hand – Judgment and decree passed in A.S. on the file of the Subordinate Court, confirming the judgment and decree passed in O.S. on the file of the District Munsif Court, are confirmed.
Result: Second Appeal Dismissed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree of the learned Subordinate Judge, Tiruvarur, dated 02.06.2008 in A.S.No.40 of 2007 and thereby confirming the judgment and decree of the Learned District Munsif, Tiruvarur, dated 18.06.2007 in O.S.No.80 of 2006.)
1. Challenge in this second appeal is made to judgment and decree dated 02.06.2008 passed in A.S.No.40 of 2007 on the file of the Subordinate Court, Tiruvarur, confirming the judgment and decree dated 18.06.2007 passed in O.S.No.80 of 2006 on the file of the District Munsif Court, Tiruvarur.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. Suit for declaration and possession.
4. The case of the plaintiff in brief is that the defendant is his natural brother. The plaintiff was brought up by his maternal uncle Kuppusamy and after attaining majority, the plaintiff learnt tractor driving and out of the income derived from the driving of the tractor and out of his own funds, the plaintiff had acquired the suit property and other properties by way of the sale deed dated 24.03.1983 and enjoying the same. Accordingly, the plaintiff had put up the terraced building in the eastern portion of S.No.88/7 and enjoying the suit property. The defendant came to the suit village for livelihood and for want of funds for his medical expenses and other needs, accordingly sought the permission of the plaintiff to put up a thatched shed in the western portion in S.No.88/7 and the same being acceded to by the plaintiff by considering the relationship between the parties, the defendant had put up the thatched hut in the western potion in S.No.88/7. However, the defendant subsequently endeavored to obtain patta in respect of the portion over which he had been permitted to occupy by the plaintiff and on coming to know the same i.e. that the defendant had endeavored to obtain the patta to the suit property, the plaintiff objected to the issuance of the patta in favour of the defendant qua the suit property and also issued the legal notice to the defendant on 08.09.2004 calling upon him to hand over the vacant possession of the property in his occupation and to the same, the defendant has sent a reply dated 14.09.2004 containing false allegations. Meanwhile, the defendant had put up the tiled superstructure in the portion occupied by him and therefore, according to the plaintiff, he has been necessitated to lay the suit against the defendant for appropriate reliefs.
5. The defendant resisted the plaintiff's suit contending that the suit has not been properly valued by the plaintiff and if the suit subject is properly valued, the Court below would not have the jurisdiction to entertain the suit laid by the plaintiff. Further, putforth the case that the plaintiff is not the owner of the suit property and disputed that the suit property and other properties had been acquired by the plaintiff out of his own funds and income derived from the driving of the tractor. According to the defendant, it is only the defendant who had conducted the marriage of the plaintiff and they had properties in Vittukatti village, which were sold in the year 1979 by the plaintiff and the defendant and after they leaving the village, out of the sale proceeds, it is only the defendant, who had paid money for the purchase of the suit property and other properties even in the year 1981 and took the possession of the same, however the sale deed was registered in the year 1983 and after the purchase of the suit property in 1981, the extent of 24 cents were divided into two halves and the plaintiff took the eastern half portion and the defendant took the western half portion and accordingly the plaintiff and the defendant had been in the possession and enjoyment of their respective portions by putting up superstructure thereon and enjoying the same by paying tax etc., Only thereafter, the defendant came to know that the plaintiff
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