Madras High Court
P.Nagarajan vs Suresh Babu Changed As Mohammed Khan on 5 February, 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 05.02.2015 CORAM: THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Second Appeal No.6 of 2015 1. P.Nagarajan 2. P.Sampath .. Appellants -Vs- 1. Suresh Babu changed as Mohammed Khan 2. Ramesh Babu changed as Mahaboob Khan 3. Nasar Khan 4. Velusamy .. Respondents SECOND APPEAL filed under Section 100 of Code of Civil Procedure against the judgment and decree of the learned I Additional Subordinate Judge, Erode in A.S.No.8 of 2013 dated 10.10.2013 confirming the judgment and decree of the learned Principal District Munsif, Erode in O.S.No.395 of 2008 dated 12.10.2012. For Appellants : Mr.A.K.Kumaraswamy For Respondent : ... - - - J U D G M E N T
The defendants 1 and 2 in O.S.No.395 of 2008 on the file of the learned Principal District Munsif, Erode are the appellants herein. The respondents 1 to 3 are the plaintiffs and the 4th respondent is the 3rd defendant in the said suit. It was a suit for declaration of title and for permanent injunction to restrain the defendants from in any manner interfering with the alleged possession and enjoyment of the plaintiffs in the suit property. The trial court by decree and judgment dated 12.10.2012 partly decreed the suit thereby granting decree for declaration of title alone and denying the relief of permanent injunction. As against the same, no appeal was filed by the plaintiffs. The defendants 1 and 2 filed an appeal in A.S.No.8 of 2013 on the file of the learned I Additional Subordinate Judge, Erode. By decree and judgment dated 10.10.2013, the learned I Additional Subordinate Judge dismissed the appeal. Aggrieved over the same, the appellants/defendants 1 and 2 are before this Court with this Second Appeal.
2. This Second Appeal has come up before me for admission. I have heard the learned Counsel for the appellants and I have also perused the records carefully.
3. The case of the plaintiffs is that they are the absolute owners of the suit property. Earlier, there was a suit in O.S.No.663 of 1973 for partition. In that suit, one Mr.N.M.Pasupathy, an Advocate of Erode Bar was appointed as a receiver. The receiver leased out the suit property to one Mr.G.Periyasamy, S/o.Gurunatha Pannadi. On the demise of Periyasamy, the appellants herein started enjoying the suit property as tenants. It is further alleged that after sometime of the withdrawal of the above suit, the possession was taken out by the plaintiffs and they have been in possession and enjoyment of the suit property.
4. The case of the appellants/defendants 1 and 2 is as follows:
It is true that the court appointed a receiver and the receiver leased out the suit property to their father. It is also true that the suit was withdrawn. After the withdrawal of the suit, their possession continued which is adverse to the interest of the plaintiffs and thus, according to the defendants 1 and 2, they have perfected the title by adverse possession. It is their further case that they have been in possession of the suit property continuously.
5. Based on the above pleadings, the trial court framed appropriate issues. On the side of the plaintiffs, as many as two witnesses have been examined and 12 documents have been exhibited. On the side of the defendants, two witnesses have been examined and 9 documents have been exhibited. Having considered all the above, the trial court partly allowed the appeal as mentioned above and the lower appellate court confirmed the same.
6. In this Second Appeal, it is pointed out by the learned Counsel for the appellants that the courts below were not right in declaring that the defendants have lost their title to the interest of the plaintiffs by adverse possession. It is further submitted that after the withdrawal of the suit, their possession became adverse to that of the plaintiffs and thus they have perfected their title by adverse possession.
7. In my considered opinion, the courts below were right in rejecting the said plea of the appellants. It is an admitted case of the defendants that their father was inducted into possession only as a lessee. It is an agricultural land. It never became adverse. On considering the oral and documentary evidence, the courts below have held that the defendants never had adverse possession to the interest of the plaintiffs and they have not perfected the title also. This finding is a well considered finding of the two courts below on facts. There is no law involved at all in this finding. The learned Counsel for the appellants is not in a position to place any material making out a substantial question of law warranting admission of this Second Appeal.
8. So far as the possession is concerned, two courts below have held that the appellants are in possession against which no appeal has been filed by the plaintiffs. Thus, in my considered opinion, the courts below were right in declaring the title of the plaintiffs and denying a decree for injunction. I do not find any infirmity in the same as I have already narrated that there is no substantial question of law involved in this Second Appeal.
9. In view of all the above, the Second Appeal fails and the same is accordingly dismissed. No costs.
05.02.2015 Index : No Internet : No tsi To 1.The I Additional Subordinate Judge, Erode. 2.The Principal District Munsif, Erode. S.NAGAMUTHU, J. tsi S.A.No.6 OF 2015 05.02.2015