Madras High Court
R.Palanisami vs Selvaraj @ Thimma Nayakar
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.837 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 24.06.2021
Delivered on : 28.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.837 of 2008
R.Palanisami ...Appellants
Vs
1.Selvaraj @ Thimma Nayakar
2.Devi
3.Chinna Bommakkal (Died)
4.Kamalam
5.Rangasami (Died)
6.Mallika ...Respondents
(RR5 & 6 b/r as LR of the deceased R3 vide Court order dated
19.04.2021 in M.P.No.1 & 2 of 2015 in S.A.No.836 of 2008)
(Appellant 1, RR1 and 4 are LRs of the deceased R3 vide Court order
dated 19.04.2021 made in M.P.Nos.1 & 2 of 2015 in S.A.No.837 of
2008).
1/15
https://www.mhc.tn.gov.in/judis/
S.A.No.837 of 2008
(RR1, 2, 4 and 6 are LR of the deceased R5 vide Court order dated
30.04.2021 made in memo SR.12398 in S.A.No.837 of 2008)
Prayer: Appeal filed under Section 100 of the CPC against the
Judgement and Decree dated 12.02.2008 in A.S.No.60 of 2007 on the
file of the Principal Sub Court, Gobichettipalayam, reversing the
Judgement and Decree dated 17.09.2007 in O.S.No.409 of 2004
before the District Munsif Court, Sathyamangalam.
For Appellant : Mr.T.Sezhian
For Respondents 1, 2, 4 & 6 : Mr.P.R.Balasubramanian
For Respondents 3 & 5 : Died
JUDGMENT
The plaintiff is the appellant before this Court. The suit for bare injunction is the subject matter of the Second Appeal. The parties are referred to in the same ranking as before the Trial Court. The brief facts necessary for appreciating the issue on hand is as follows.
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2. The plaintiff had filed a suit for bare injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit properties. The suit properties were comprised in S.No.1104/3 measuring 0.08.5 hectares and S.No.1104/6 measuring 0.680 hectares in Ukkram A Village, Sathyamangalam. It is the case of the plaintiff that the suit properties are Government Poramboku lands. One Thimma Nayakar son of Ranga Nayakar had encroached into the land in S.No.1104/6 and was cultivating the same. He had been paying B-memo charges every year. He left the village as he was unable to carry on cultivation.
3. The plaintiff's father was originally enjoying the land comprised in S.No.1104/3 and thereafter stopped cultivation. The plaintiff took both these lands and started cultivating the same. He was also paying B-memo charges in respect of these lands. Thereafter, the name of Thimma Nayakar was removed and the plaintiff's name was substituted in the B-memo. The plaintiff would 3/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 further submit that he had been drawing water from his patta lands to cultivate these lands.
4. On account of drought conditions, the Government had waived payment of land tax. Therefore, the plaintiff did not pay the land tax for this period. The 1st defendant is the plaintiff's brother, the 2nd defendant is the wife of the 1st defendant. The 3rd defendant is the mother of the plaintiff and defendants 1 and 4. The 4th defendant is the sister of the plaintiff.
5.On 01.09.2004, on the instigation of the other defendants the 1st defendant attempted to interfere with the plaintiff's possession of the property. Though this attempt was successfully prevented, however another attempt was made on 05.09.2004 and this was also prevented. However, the defendants threatened to dispossess the plaintiff and therefore left with no other alternative the plaintiff had come forward with the suit.
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6. The 1st defendant had filed a written statement inter alia contending that they had no dispute with reference to the properties comprised in S.No.1104/3 and that they were joining issue only with reference to the lands comprised in S.No.1104/6. It was also their case that the plaintiff has come to the Court with unclean hands as he has suppressed material facts. Thimma Nayakar, who is referred to in the plaint is none other than the 1st defendant. The plaintiff has deliberately used a wrong name for creating a non existent right.
7. The 1st defendant would contend that it is he who is in possession of the suit properties and the plaintiff was never in possession of the same. He would also contend that the suit is bad for non-joinder of necessary parties since the Government has not been made a party though the suit property is a Government Poramboku land. This written statement has been adopted by defendants 2 to 4. 5/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008
8.The plaintiff had examined himself as P.W.1, one Saminathan as P.W.2 besides examining the Village Administrative Officer, an Official from the Tahsildar Office, Sathyamangalam as well as the Sanitary Officer, Sathyamangalam Municipality as P.W.3 to P.W.6. Ex.A.1 to Ex.A.17 were marked on the side of the plaintiff. The 1st defendant had examined himself as D.W.1. The 3rd defendant, mother as D.W.2. Rangasamy, the father as D.W.3 and Thimma Nayakar as D.W.4. The defendants had marked Ex.B.1 to Ex.B.5. An Advocate Commissioner had been appointed to note down the physical features and his Report and Sketch has been marked as Ex.C.1 and Ex.C.2. Through the witnesses P.W.3, P.W.5 and P.W.6, Ex.X.1 to Ex.X.9 were marked.
9.The learned District Munsif, Sathyamangalam, on going through the evidence both oral and documentary had held that given name of the 1st defendant was Thimma Nayakar and he was called Selvaraj. However, the learned District Munsif held that possession 6/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 was with the plaintiff. To arrive at this finding, the learned District Munsif has taken into consideration two factors:
(i)That the 1st defendant had been paralysed and therefore could not have cultivated the lands.
(ii)The existence of pipeline from the patta land of the plaintiff to the suit property as evidenced by Ex.C.1 and Ex.C.2.
Ultimately, the suit was decreed in favour of the plaintiff.
10.Aggrieved by the said Judgement and Decree, the defendants had filed A.S.No.60 of 2007 on the file of the Principal Subordinate Court, Gobichettipalayam. The plaintiff had also challenged the finding of the District Munsif that Thimma Nayakar and Selvaraj are one and the same in a cross appeal.
11.The Appellate Court reconsidering the evidence on record allowed the appeal and dismissed the cross appeal. As a result, the Judgement of the learned District Munsif, Sathyamangalam was set 7/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 aside. It is challenging this reversing Judgement and Decree that the plaintiff is before this Court.
12.The Second Appeal was admitted on the following Substantial Questions of Law:
“(i)Whether the Judgement and Decree is perverse on account of its mis-construction of documents in Ex.A.15 and A.16?
(ii)Whether the finding of the Courts below with respect to possession of the property by the respondents is perverse based on no evidence?”
13. Heard the learned counsels and perused the records.
14. The suit O.S.No.409 of 2004 has been filed for a bare injunction in respect of properties which have been described as follows:
“<nuhL khtl;lk;. rj;jpak';fyk; tl;lk;. cf;fuk; 8/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 *m* fpuhkk;. g[jpa f/r/1104-06 g[/bcw/0/680 tp!;jPu;zKs;s g{kpa[k;. gpd;Dk; f/r/1104-3 g[/bcw/0/08/5 tp!;jPu;zKs;s g{kpa[k;. khtil. Kutil. khK:y; tHpeil. tz;oj;jlk; ghj;jpak; rfpjk;/
15.The property has not been described within four boundaries. The defendants have gone on record that they have no claim in respect of S.No.1104/3. The 1st defendant in his written statement has stated that he is in occupation of the property measuring 0.68.00 hectares in S.No.1104/06. No claim is made in respect of S.No.1104/3. The plaintiff has come to the Court with a case that S.No.1104/3 was in the enjoyment of his father Rangasamy who started cultivating it and after he had left it midway the plaintiff had taken over the said lands.
16.Likewise, with reference to lands in S.No.1104/6 it is the case of the plaintiff that this property was encroached by one Thimma 9/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 Nayakar son of Ranga Nayakar who was cultivating the same. Thimma Nayakar had left the village and thereafter was unable to cultivate the lands. In these circumstances, the plaintiff was in possession and enjoyment of both these lands. The lands in question are admittedly Government Poramboku lands. To support his case of possession the plaintiff has marked Ex.A.1 to Ex.A.11.
17.Ex.A.1 to Ex.A.5 are B-memo notices. Ex.A.2 does not contain a date or fasli year. Ex.A.1 is dated 31.10.2003. However, the B-memo in Ex.A.1 when compared with the other B-memos appears to be a created one. The last column of the 'B' Memo relates to the nature of cultivation. In this column in Ex.A.1 in respect of column showing nature of use it is described as encroacher Palanisami. The reason why Ex.A.1 appears suspect is on account of the fact that for the said year which comes within fasli 1413. Ex.X.4 would show that the person in enjoyment is Thimma Nayakar and Palanisamy. However, for the earlier and later faslis i.e., for fasli 10/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 1412 below the name Thimman's brother Palanisamy appears to have been added since the person in occupation of S.No.1104/3 and 1104/5 is shown as M.Rangasamy's son Palanisamy. Why Palanisamy is described as brother of Thimma Nayakar remains unexplained. For fasli 1414 in S.No.1104/6 it is only the name of Thimma Nayakkar, the 1st defendant which is shown as the occupier. Fasli 1414, is the year in which the suit has been filed. For fasli 1411 and 1412 Palanisamy is described as brother of Thimma Nayakkar and shown as the occupier of S.No.1104/6.
18.However, with reference to two other Survey numbers, namely, 1104/3 and 1104/5 he is described as the son of Rangasamy. In fasli 1413 his name is independently added. Therefore, the adangal receipts till the fasli year 1416 shows the name of Thimma Nayakkar. Likewise, even the B-memo receipts which has been filed as Ex.A.3, Ex.A.4 and Ex.A.5 stand in the name of Thimma Nayakkar. The possession of the property in the revenue records stand in the name of 11/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 Thimma Nayakkar except for the stray entry.
19.The plaintiff has himself accepted that his brother's name is Thimma Nayakkar since the adangal receipt describes him as brother of Thimma Nayakkar. The Trial Court has in very great detail examined the evidence and come to the conclusion that Thimma Nayakkar and Selvaraj, the 1st respondent / 1st defendant are one and the same person which has been confirmed by the Appellate Court as well. Therefore, the finding of the Appellate Court that Thimma Nayakkar and Selvaraj are one and the same person requires no reconsideration.
20.The suit which is filed by the plaintiff is one for an injunction which is discretional relief. A person claiming a relief of injunction has to come to the Court with clean hands. The plaintiff in his plaint has described Thimma Nayakar as third person and has also 12/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 shown his father's name as Ranga Nayakar and not Rangasamy. There has been a deliberate attempt to suppress the fact that Thimma Nayakar is the son of Rangasamy who is the father of the plaintiff as well. Therefore, the plaintiff is guilty of coming to the Court with a false case.
21.Further, the suit property has not been described by specific boundaries. It is not known as to how the Advocate Commissioner has identified the suit property and filed a report. The Trial Court has primarily found possession with the plaintiff only on the ground that the pipeline runs from the plaintiff's property to the suit property. However, the identity of the suit property by metes and bounds is not available. That apart, the documents filed both on the side of the plaintiff as well as defendants clearly shows that the lands are being cultivated only by the 1st defendant. The Appellate Court has rightly considered the evidence on record to come to the conclusion that it is the 1st defendant who is in possession and enjoyment of the suit 13/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 property and not the plaintiff. The Substantial Questions of Law are answered against the plaintiff.
22. The Second Appeal is dismissed. However, there shall be no order as to costs.
28.07.2021
Internet : Yes/No
Index :Yes/No
Speaking / Non-Speaking
kan
To
1.The Principal Sub Court, Gobichettipalayam.
2.The District Munsif Court, Sathyamangalam. 14/15 https://www.mhc.tn.gov.in/judis/ S.A.No.837 of 2008 P.T. ASHA. J, kan Pre-delivery Judgment in S.A.No.837 of 2008 28.07.2021 15/15 https://www.mhc.tn.gov.in/judis/