Madras High Court
Prema Ramkumar vs Rathinasabapathy on 19 November, 2018
Author: R.Subramanian
Bench: R.Subramanian
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:19.11.2018
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD).No.11 of 2007
Prema Ramkumar ..Appellant / Appellant / 11th Defendant
Vs.
1.Rathinasabapathy
2.P.Ulaganathan
3.Minor Ponnugiri Sankar @ Vellaichami
Represented through Court Guardian T.Ramanathan
4.Minor Sundaranayagam @ karuppasami
Represented through Court Guardian T.Ramanathan
5.M.K.Elango
6.M.Chandramohan
7.M.Nallannasamy
8.Kannagi
9.S.R.Jayaraman
10.Salem Chemicals,
Represented by its Partners Defedants 5 to 9
Through their Power Agent Elango,
Son of Krishnan,
No.14, Jegadesan Street, Gohai, Salem-6.
11.Salem Chemicals,
Represented by its Partners Defendants 5 to 9,
Varavanai Village, Kulithalai Taluk.
12.Thamizhselve ...Defendants 1 to 3 & 5 to 13 / Respondents 2 to
12 / Respondents 2 to 12
PRAYER: Appeal filed under Section 100 of the Code of Civil
Procedure C.P.C. against the judgment and decree in A.S.No.48 of 2004,
dated 30.03.2005, on the file of the Subordinate Judge's Court at
Kulithalai confirming the judgment and decree in O.S.No.204 of 1999,
dated 15.03.2004 on the file of the District Munsif Court at Kulithalai.
http://www.judis.nic.in
2
For Appellants : Mr.K.Govindarajan
For R1 : Mr.A.N.Ramanathan
For R2 to R10 & R12 : No Appearance
JUDGMENT
The 11th defendant in O.S.No.204 of 1999, who suffered a decree for recovery of possession and demarcation of the property, allotted to the plaintiff under the partition deed dated 05.06.1981 is the appellant herein. The plaintiffs sought for relief of recovery of possession of the “B” Schedule property and for demarcation of the “A” Schedule Property and for permanent injunction and restraining the defendants 5 to 12 from interfering the peaceful possession of the suit property.
2.According to the plaintiff / first respondent herein, the suit property originally belonged to him and his brother Paramasivan. In the partition deed dated 05.06.1981, the suit “A” Schedule property was allotted to the plaintiff and the same was shown in the “B” Schedule to the said partition deed. While so, the defendants claiming that his brother Paramasivam and his son, the first defendant have sold a portion of the property that was allotted to him in the partition deed dated 05.06.1981 have encroached upon two acres and 37 cents of land in Survey No.833/1, the plaintiff sought for the aforesaid reliefs. http://www.judis.nic.in 3
3.The suit was resisted by the 11th defendant, who is the purchaser from the fifth defendant. Contending that Paramasivan and his son / the first defendant had sold the property to the 12 th defendant represented by the fifth defendant vide sale deeds dated 31.01.1990 and on 28.04.1994. The 5th defendant in turn sold the property purchased by him under the abovesaid two sale deeds to the 11th defendant on 04.03.1999 which were marked as Ex.A.14 and Ex.A.15. The defendants claimed that the deceased Paramasivan Pillai and his son were in possession of the property and considering the same, patta was also issued in the name of the deceased Paramasivan Pillai. It is also the further contention of the defendants that the suit property has not been properly described. Though the plaintiff seeks possession of the “B” Schedule property, the boundaries of the “B” Schedule has not been set out in the plaint. On the above pleadings, the 11th defendant sought for dismissal of the suit. The other defendants adopted the wrtitten statement of the 11th defendant.
4.At trial, the plaintiff / first respondent herein examined himself as P.W.1 and one Thaigarajan was examined as P.W.2. Ex.A.1 to Ex.A.17 were marked on the side of the plaintiff. On the side of the defendants one Ramkumar was examined as D.W.1 and one Ulaganathan, the first defendant was examined as D.W.2. No documentary evidence was produced by the defendants.
http://www.judis.nic.in 4
5.A Commissioner was appointed in the pending suit. His report and plan were marked as C1 and C2 and Survey sketch was marked as C3.
6.The learned trial Judge after framing necessary issues and upon consideration of the evidence on record concluded that the plaintiff has established his title to the suit “A” Schedule property. The Trial Court also repelled the contention of the defendants that the suit “B” Schedule property has not been properly described and hence, there cannot be any decree for recovery of possession. In doing so, the trial Court relied upon the report of the Commissioner, according to which, the defendants had encroached upon 72 cents of land allotted to the plaintiff in Survey No. 833/1 in the partition deed dated 05.06.1981.
7. The Trial Court found that the non-description of the “B” Schedule properties with boundaries will not affect the case of the plaintiff in as much as the Commissioner has demarcated the encroached portion with the help of the Survey sketch which was marked as C.3. The Trial Court found that the disputed property lies within the four boundaries fond in Ex.A.1 partition deed dated 05.06.1981. The trial Court also took note of the evidence D.W.1 in this regard. He has deposed that they did not take steps to measure the property before the purchase and they relied upon patta to purchase the property. On the aforesaid findings, the http://www.judis.nic.in 5 learned Trial Judge decreed the suit for recovery of possession of 0.72 cents of land to the plaintiff which had been encroached upon by the defendants in Survey No.833 / 1B-2. The trial Court also granted a decree for demarcation of the entire extent of land as alloted to the plaintiff in Survey No.833/1. Aggrieved by the said judgment and decree, the 11th defendant filed an appeal in A.S.No.48 of 2004.
8.The learned Appellate Judge after reconsidering the evidence on record accepted the findings of the trial Court. The learned Appellate Judge pointed out it was not the case of the defendants that the property purchased by them does not lie within the four boundaries specified by the plaintiff in the plaint “A” Schedule property. The lower Appellate Court rightly pointed out that there was no plea in the written statement to the effect that the property allotted to the plaintiff in the partition deed dated 05.06.1981 was different from the property sold under sale deeds viz., Ex.A12 and Ex.A.13 by the first defendant and his father viz., Paramasivan Pillai. The trial Court also found that the defendants have not established their plea regarding ouster and on the aforesaid findings, the Lower appellate Court dismissed the appeal, confirming the judgment and decree of the Trial Court. Aggrieved, the 11th defendant is on appeal. Notice of Admission was ordered on 19.02.2007, pursuant to the said notice the first respondent / plaintiff, had entered appearance. The other respondents have not chosen to appear either in person or through counsel.
http://www.judis.nic.in 6
9.I have heard Mr.K.Govindarajan, learned counsel appearing for the appellant and Mr.A.N.Ramanathan, learned counsel appearing for the first respondent. Mr.K.Govindarajan, learned counsel appearing for the appellant would vehemently contend that the lower appellate Court is not right in concluding that the property purchased by the 11th defendant lies within four boundaries mentioned in the “A” Schedule property. He took pains to point out from the pleadings as the suit property and the property purchased by the defendants are different.
10.I have gone through the pleadings carefully.
11.The lower appellate Court was right in conclusion. The defendants had not taken plea that the property purchased by them is different from the property allotted to the plaintiff in the partition deed dated 05.06.1981.
12.In fact, the 11th defendant in the written statement has stated that the first defendant and his father have been in continous and interrupted possession of three acres of land in Survey No.833 / 1b and the said land was sold by them to the 12 th defendant on 31.01.1990 under Ex.A.12 sale deed. It is also claimed that the patta is stood in the name of the first defendant's father and first defendant. It ceased to be http://www.judis.nic.in 7 the plaintiff's property. It is further contended that the first defendant and his father have been peaceful continuous and un-interrupted possession for more than the statutory period, there by implying plea of adverse possession.
13.Even in Paragragh No.8 of the written statement, the 11 th defendant had stated as follows:-
“As a matter of fact the first defendant's father had been in possession of the property sold by him to this defendant even from the date of the partition deed, and cosidering his effective, settled possession patta was also granted, which is known to the plaintiff and the plaintiff has not either raised any objection or taken any steps to change the mutation entires or to take any proceeding to get possession back and for all these reasons it is submitted that plaintiff is barred by the principles of estoppel by his conduct, omission, act and plaintiff is not entitled to dispute the rights of the defendant.”
14.Considering the above pleadings, it is very clear that the defendants particularly, the 11th defendant was aware of the fact that the property purchased by her is within the four boundaries mentioned in the suit “A” Schedule property. Therefore, the 11th defendant cannot be heard to contend that the plaintiff has not proved that the suit property was the http://www.judis.nic.in 8 property allotted to him in the partition deed. It is seen from the judgment and decree of the courts below that they had demarcated the encroached portion as 72 cents relying upon the Commissioner's report. It is not seen from the record that the defendants have filed any objection to the said Commissioner's report.
15.In view of the above facts, I do not find any substantial of law in order to enable him to entertain this appeal under Section 100 of C.P.C. This Second Appeal is therefore dismissed without being admitted. There will be no order as to costs.
19.11.2018
Index : Yes/No
Internet : Yes/No
tsg
To
1.The Subordinate Judge's Court at Kulithalai.
2.The District Munsif Court, Kulithalai.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 9 R.SUBRAMANIAN,J.
tsg S.A.(MD).No.11 of 2007 19.11.2018 http://www.judis.nic.in