IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, J.
V. Selvaraj S/o. Varadappa Naicker - Appellant
Versus
S. Devarajan S/o.Sadayandi - Respondent
S.A.No.524 of 2021 and CMP.No.10642 of 2021
Decided on : 16-07-2021
Civil Procedure Code,1908 - Order XLI Rule 31 - Ancestral property - Sale deed – Possession - Plaintiff's case that suit property is his ancestral property and that his predecessors in title were in possession and enjoyment of suit property using the same as cattle shed besides using it for parking two wheelers and tractors - It is also specific pleading of plaintiff that predecessors in title and plaintiff are in possession of the suit property for well over statutory period qua perfecting title by adverse possession and it is also the pleading of the plaintiff that plaintiff's property is adjacent to, abutting and contiguous with suit property on Western side - Plaintiff was visited with a caveat lodged by defendants and this caveat became a trigger for aforementioned suit - Defendants entered appearance, a written statement was filed in August and suit was contested primarily on pleadings that suit property originally absolutely belonged who are natives of Village, there was a exchange deed dated - Whether a question of law raised in case is substantial would, in Court opinion, be whether it is of general public importance - Whether it directly and substantially affects rights of parties and if so whether it is either an open question in sense that it is not finally settled by Court or by Privy Council or by Federal Court or is not free from difficulty or calls for discussion of alternative views – Held, On contrary, Court is of view that well settled principles regarding proving possession qua vacant land and well settled principles regarding bare injunction suits have been strictly adhered to and followed - Like wise there is nothing to demonstrate that law has been misapplied in appreciating any piece of evidence - Court to demonstrate that there is anything perverse or so perverse that conclusion would have been a bipolar opposite absent such error - Court has no hesitation in coming to conclusion that no substantial question of law arises in captioned Second Appeal - Court deems it appropriate to set out and say that sole point for determination which arises in case on hand is whether principles for establishing possession qua a bare injunction suit where suit property is vacant land have been followed and if answer is not in affirmative whether any substantial question of law arises in case on hand - With regard to first limb of point for determination, answer is clearly in affirmative for various reasons delineated supra - Second Appeal is dismissed.
JUDGMENT :
1. Age of the lis, which has led to the captioned Second Appeal is more than twelve years, as a plaint was presented by 'sole appellant in this Second Appeal Court' [hereinafter 'plaintiff' for the sake of convenience and clarity] on 31.03.2009 and the same was taken on file as O.S.No.111 of 2009 on the file of 'Principal District Munsif's Court, Kanchipuram' [hereinafter 'trial Court' for the sake of convenience and clarity]. 'Respondents 1 to 3' in the captioned Second Appeal were arrayed as 'defendants 1 to 3' respectively in the trial Court and therefore, 'respondents in the captioned second appeal' shall hereinafter be collectively referred to as 'defendants' and as 'first defendant, second defendant and third defendant' wherever appropriate and deemed necessary for the sake of convenience and clarity.
2. Aforementioned suit in the trial Court was filed with a prayer for bare injunction qua possession with regard to plaint schedule property which is 'vacant land admeasuring 37 feet East to West and 215 feet North to South [7955 sq.ft in all] being Gramanatham land comprised in Survey No.238/1 A1 in Sevilimedu Village, Brahmin Street, Kanchipuram Taluk, Kanchipuram District' [hereinafter 'suit property' for the sake of convenience and clarity].
3. It is seen from the pleadings in the plaint that it is plaintiff's case that the suit property is his ancestral property and that his predecessors in title were in possession and enjoyment of the suit property using the same as cattle shed besides using it for parking two wheelers and tractors. It is also the specific pleading of plaintiff that predecessors in title and plaintiff are in possession of the suit property for well over the statutory period qua perfecting title by adverse possession and it is also the pleading of the plaintiff that plaintiff's property is adjacent to, abutting and contiguous with the suit property on the Western side. Plaintiff was visited with a caveat lodged by defendants and this caveat became a trigger for the aforementioned suit. The defendants entered appearance, a written statement was filed in August of 2009 and the suit was contested primarily on the pleadings that suit property originally absolutely belonged to Late A.Veeraraghava Achariyar (Son of V. Rajagopala Achariyar) who are natives of Sevilimedu Village, there was a exchange deed dated 13.08.1946 being registered exchange deed (document No.3807/1946 on the file of jurisdictional Sub Registrar being Sub Registrar, Kanchipuram) pursuant to which Veeraraghava Achariyar was in peaceful possession and enjoyment of the suit property until his demise. It is the further case of the defendants that the said Veeraraghava Achariyar died intestate on 09.02.1966 leaving behind his wife, son and three daughters as legal heirs and the suit property devolved on his son Krishnan and three daughters, they were in peaceful possession and enjoyment by putting up a thatched superstructure thereon and as per oral partition and allotment between the sharers suit property fell to the shares of son Krishnan, who along with his sisters jointly sold the front portion of the same with a narasam and thatched shed in favour of first defendant vide a registered sale deed dated 08.12.2008, middle portion in favour of second defendant vide another sale deed of even date and the remaining portion in favour of third defendant vide another registered sale deed. To be noted, registered sale deeds in favour of first defendant, second defendant and third defendant have been marked as Exs.B7, B8 and B23 respectively.
4. Trial Court framed three issues and parties went to trial on the three issues framed by trial Court. Three issues framed by trial Court are captured in paragraph 4 of the judgment of trial Court and the same reads as follows:
1. Whether the plaintiff is in possession and enjoyment of the suit property?
2. Whether the plaintiff is entitled for permanent injun
Rimmalapudi Subba Rao Vs. Noony Veeraju and others reported in AIR 1951 Mad 969 (FB)
Santosh Hazari Vs. Purushottam Tiwari (deceased) by Lrs.
Hero Vinoth Vs. Seshammal reported in (2006) 5 SCC 545
Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928 PC 172
Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB)
Kanailal and others Vs. Ram Chandra Singh and others reported in (2018) 13 SCC 715
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