Madras High Court
Manikandan vs Rajkumar on 10 July, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.07.2018
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
S.A.(MD)No.215 of 2018
Manikandan ... Appellant
-Vs-
1.Rajkumar
2.Iyyappan ...Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code,
to set aside the judgment and decree dated 06.11.2017 made in A.S.No.99 of
2014 on the file of the 2nd Additional Sub-Court, Nagercoil, confirming the
judgment and decree dated 09.12.2013 made in O.S.No.394 of 2006 on the file
of the 1st Additional District Munsif Court, Nagercoil.
!For Appellant : Mr.A.Arumugam
^For Respondents :
:JUDGMENT
The plaintiff in the suit in O.S.No.394 of 2006 on the file of 1st Additional District Munsif, Nagercoil, is the appellant in the second appeal. The suit was filed by the appellant in O.S.No.394 of 2006 for permanent injuction restraining the respondents herein from interefering with the possession and enjoyment of the plaintiff over the plaint scheduled property. Later, the prayer in the suit was amended to substitute the prayer for declaration of plaintiff's title in respect of the suit property and for recovery of possession from the second defendant.
2.The case of the plaintiff as stated in the plaint is as follows:-
The plaintiff's father namely, one Velandi was in possession and enjoyment of three cents of land along with a thatched shed in the suit property from the year 1980. In order to become the owner of the property, the plaintiff purchased the suit property as a vacant land for a valid consideration on 25.03.1996 from one Apppavoo. After the purchase of the suit property, the plaintiff is in possession and enjoyment of the property as owner. The plaintiff obtained family card for the house that was available in the suit property. Since the house that was available in the suit property collapsed in 1999 due to heavy rain, the plaintiff shifted his residence to Santhapuram and thereafter, the plaintiff had put up new foundation for constructing a house in the suit property during the year 2000 and due to paucity of funds, he could not continue his construction. But the foundation is available in the suit property.
3.Since the first defendant and one Appavoo attempted to interfere with the plaintiff's possession and enjoyment over the suit property, the plaintiff filed another suit in O.S.No.728 of 2002 on the file of the first Additional District Munsif Court, Nagercoil on 31.07.2003 and the suit was decreed. The plaintiff had applied for mutation of revenue records and he was expecting patta in due course. Even on 26.06.2006, the plaintiff applied for patta before the Taluk Thasildhar at Santhapuram for issuance of patta. The plaintiff had planted trees in the suit property on 19.06.2006 and the second defendant in order to grab the suit property tried to put up a fence in the suit property. Hence, a police complaint was also given on 16.07.2006 stating that the defendants are attempting to interfere with the peaceful possession and enjoygment of the plaintiff's property. Since the defendants are unnecessarily interfering with the plaintiff's possession, the suit is filed.
4.The suit was resisted by the second defendant denying the title and right claimed by the plaintiff in the suit. It is also the case of the second defendant that the alleged sale obtained by the plaintiff is not in respect of the suit property but in relation to some other property. The defendant specifically stated that the decree in O.S.No.728 of 2002 also relates to some other property and not to in respect of the present suit property. It is further stated that the plaintiff has decribed the survey number in the suit property is Re.Survey No.765/1A which belongs to the defendant exclusively by virtue of the sale deed obtained by the second defendant on 16.12.2002. The defendant refuted all the allegations and the averments relating to the enjoyment of the suit property by the plaintiff. It is the specific case of the defendant that the defendant is the owner of the entire extent of 15/2 cents of land comprised in Re.No.765/1 and that the Revenue Department has recognised the ownership of the second defendant by granting patta in his favour.
5.Before the trial Court, the plaintiff examined himself as P.W.1 and marked documents A1 to A7. On behalf of the defendants, three witnesses were examined and documents Ex.B1 to B9 were marked. Apart from the documents filed by the defendants, through the Village Administrative Officer, who was examined as D.W.3, few more documents were marked as Exhibits X1 to X4.
6.The Trial Court after framing necessary issues specifically found that the plaintiff has miserably failed to prove either title or enjoyment over the property in Survey No.765/1A. Though the suit was filed earlier by the plaintiff in O.S.No.728 of 2002, it was found by the trial Court that the suit is not related to the suit property and on the basis of the evidence of D.W.3, Village Administrative Officer at Neeendakarai Village and Exhibits X2 to X4, the trial Court found that the property purchased by the defendant has been sub divided as 765/1E. Since the vendor of the second defendant is found to be the owner of the suit property, the trial Court found that the second defendant has established his title in respect of the suit property. It is to be noted that the plaintiff's vendor who was examined as P.W.2 has categorically admitted before the trial Court that he has no right or title in respect of the property in Survey No.765/1 and that the property purchased by him, namely, an extent of three cents falls in Survey No.765/3C and 765/3D. After finding that the second defendant has proved his title with possession and enjoyment over the suit property right from the date of his purchase, the trial Court ultimately found that the plaintiff is not in possession and enjoyment of the property and that he is not entitled to any relief sought for in the suit. Aggrieved by the findings of the trial Court, the plaintiff preferred an appeal and the appellate Court has also dismissed the appeal confirming the judgment and decree of the trial Court. As against the concurrent judgment and decree of the Courts below, the present second appeal has been preferred by the plaintiff.
7.The following substantial questions of law have been framed by the appellant in the memorandum of the grounds of Second Appeal:-
?1.Whether the reliance of the Courts below on the evidence of Appavoo is contrary to the letter and spirit of Section 18(1) of Indian Evidence Act, 1872?
2.Whether the failure of the Courts below to apply the well established legal principle that the boundaries will prevail over Survey number ha vitiated the judgments of both the Courts below?
3.When there is no dispute as regards boundaries and when the correct survey number is given and only sub-division number is not given, whether the Courts below are legally right in dismissing the calim of the plaintiff?
4.Whether the defense of the defendant is barred by res-judicata and constructive res-judicata in view of the judgment in O.S.No.122 of 1982 and O.S.No.728 of 2002?
5.Whether the failure of the First Appellate Court to frame the proper points for consideration under Order 41 Rule 31 of the C.P.C., 1908 has vitiated the hearing of the First Appeal to the detriment of the third defendant in the First Appeal?
6.Whether the finding of the Courts below that the plaintiff is not the owner of the property and hence not entitled to the decree of injunction is as a result of admission of immaterial, inadmissible and irrelevant evidence and rejection of admissible, material and relevant evidence and whether such perverse and legally unacceptable findings are liable to be set aside under Section 100 of C.P.C, 1908??.
8.The learned counsel appearing for the appellant argued elaborately to sustantiate the grounds raised and questions of law framed.
9.The suit property admittedly has been purchased by the second defendant. The document filed by the second defendant would clearly establish that the second defendant has purchased the property from the then owner whose name was also found in the revenue records as pattadhar. The plaintiff obtained permission from the local body to construct a house in the suit property and also constructed a house in the land which was purchased by him. The suit property is only a small extent of three cents which falls within the property purchased by the defendants as per the document of title marked by the second defendant.
10.The burden lies on the plaintiff to prove his title and enjoyment in a suit for declaration and consequential permanent injunction or recovery of possession. In this case, both the Courts have concurrently held that the plaitniff has miserably failed to establish his case. The trial Court categorically found that the plaintiff's vendor has admitted that he has no title over the suit property and that he executed the sale deed in favour of the plaintiff without title or enjoyment. In such circumstances, when the witness P.W.2 examined by the plaintiff has spoken against the interest of plaintiff, the plaintiff ought to have taken steps to treat the witness as hostile and to cross examine him. In this case, there was no attempt made. Hence, the contention that the evidence of P.W.2/the plaintiff's vendor cannot be taken as an admission under Section 18(1) of the Indian Evidence Act is untenable. The second question of law has no substance as the plaintiff is now seeking relief in respect of the property which falls within the four boundaries of property of the second defendant whose title and possession is established by several documents.
11.Similarly, the third question of law does not convey any meaning. In the present case, the suit property is described in Survey No.765/1E which must be part of Survey No.765/1. There is no dispute with regard to the identity of the suit property at any time. Based on the exparte decree in the suit filed by the plaintiff, the plaintiff cannot claim ownership over the property. Since the second defendant or his vendor is not a party to the suit in O.S.No.728 of 2000, there is no scope for applying the principles of res judicata. It is also to be noted that in another suit, the title of vendor of the second defendant is admitted.
12.As a matter of fact, P.W.2, the plaintiff's vendor had admitted that the vendor of the second defendant had obtained relief in the suit in O.S.No.122 of 1982 and that he was alloted only an extent of three cents in some other survey number. When the evidence of P.W.2 is against the very case pleaded by the plaintiff, it is for the plaintiff to explain that the deposition of P.W.2 is incorrect or false, on the basis of material documents and by examining other witnesses. When the plaintiff's witness was examined to prove the case of plaintiff and it is found that the witness instead of corroborating the case has given a statement contrary to the case of the plaintiff, he cannot blame anyone than himself.
13.Regarding the fifth question of law framed by the appellant in the memorandum of grounds, it is well settled that this technical plea of Order 41 Rule 31 cannot be taken as a substantial question of law, when the lower Appellate Court has considered all the issues and the points raised by the appellant before the lower appeallte Court. However, in this case, the lower appellate Court has framed necessary issues with regard to the title and enjoyment of the property and decided the issue in favour of the second defendant confirming the findings of the trial Court.
14.In such circusmtances, the questions raised by the appellants have no substance. As a result, the substantial questions of law are answered against the plaintiff.
15.Having regard to the position that the Courts below have considered all the materials and pleadings in proper prespective, this Court do not find any legal infirmity and the findings are also supported by reasonings. Thus, the second appeal is dismissed, as having no merits, confirming the judgment and decree of the 2nd Additional Sub Court, Nagercoil, dated 06.11.2017 made in A.S.No.99 of 2014 and affirming the judgment and decree of the 1st Additional District Munsif Court, Nagercoil, made in O.S.No.394 of 2006, dated 09.12.2013. No costs.
To
1.The II Additional Sub-Court, Nagercoil.
2.The I Additional District Munsfi Court, Nagercoil.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.