Madras High Court
The General Manager vs Ayyakannu (Died) on 21 December, 2021
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
S.A.(MD) No.389 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving Judgement Date of Pronouncing Judgement
: 27.04.2022 : 12 .05.2022
CORAM
THE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.(MD) No.389 of 2017
1. The General Manager,
Head Quarters,
Southern Railways, Chennai.
2. The Divisional Railway Manager,
Southern Railways, Trichy.
3. The Principal
Railway Protection Training School,
Kajamalai, Trichirapalli.
... Appellants/Appellants/Defendants
Vs.
1. Ayyakannu (Died)
2. Krishnamurthy (Died)
3. K.Kalaiyarasi
4. K.Murugesan
5. V.Sathya
6. P. Vijayalakshmi
7. K.Chitra
(R-3 to 7 are brought on record as lrs of the
deceased second respondent, vide order, dated 21.12.2021,
passed in C.M.P.(MD) Nos.4749 and 4750 of 2021.
8. Nallaponnu
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S.A.(MD) No.389 of 2017
9. Ayyalammal
10. Gomathi
11. Santhanakumar
(R-8 to 11 are brought on record as lrs of the deceased
first respondent, vide order, dated 02.02.2022, made
in C.M.P.(MD) Nos.697 and 698 of 2022 of this S.A.)
... Respondents
Second Appeal filed under Section 100 of C.P.C. against the
judgment and decree dated 12.04.2017, passed in A.S.No.106 of 2015, on
the file of the I Additional Sub Court, Trichy, in confirming the judgment
and decree, dated 02.03.2015, passed in O.S.No.917 of 2006, on the file of
the I Additional District Munsif, Trichy.
For Appellants : Mr.S.Manohar for
Mr.C.Venkateshwaran
For Respondents 3-11 : Mr.S.Parthasarathy
for Mr.M.P.Senthil
JUDGMENT
The unsuccessful defendants in the suit are the appellants herein.
2. The plaintiffs filed the suit for the relief of declaration and permanent injunction, in respect of the suit property. 2/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017
3. The case of the plaintiffs is that the suit property, which is a cultivable nanja land, bearing Old S.No.276, situated at Abisekarapuram Village, Trichy, originally belonged to one Late Mottaiyandi and he was in possession and enjoyment of the same till his death, i.e. on 28.03.1994. After the death of said Mottaiyandi, a portion of the property, in S.No.276 was converted as a Pathway and the remaining portion has been in possession and enjoyment of the plaintiffs and the suit property is the ancestral property and they are claiming right over the same by virtue of Hindu Succession Act, 1956 (hereinafter, referred to as 'the Act').
3.1 It is the further case of the plaintiffs that the defendant-Railway got their lands, comprised in S.Nos.179/1, 11, 181/2, 181/4 and 196 etc., which are adjacent to the plaintiffs' properties at S.No.276 on the western side and the same is used for training centre for Railway Protection Force. However, the defendants taking advantage of the fact that plaintiffs' property is adjacent to their properties and are lying vacant, attempting to encroach their property. Hence, the suit is filed for the declaration and injunction, as stated above.
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4. The defendant-Railway contested the suit, by filing a written statement, inter alia denying the averments made by the plaintiffs, by stating that the plaintiffs are not entitled to the relief of declaration and permanent injunction, as the defendant-Railway got the land fully owned by the Union of India, Ministry of Railways as per valid documents, proof plan, etc., and hence, the rough sketch, plan, etc., filed by the plaintiffs are not valid documents and support the case of the plaintiffs.
4.1 The defendant-Railway further stated that since the land belonged to Railway, they intend to plant saplings with a view to promote afforestation programme for clean ecology, and therefore, the allegation of encroachment/trespass made by plaintiffs is vexatious. Thus, by averring so, defendant-Railway sought for dismissal of the suit, as there is no cause of action for plaintiffs to file the same.
5. The Trial Court framed the following four issues:-
i) Whether averments of the plaintiffs that they are the owners of the suit property is true?
ii) Whether the plaintiffs are entitled to the relief of declaration in 4/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 respect of the suit property, as sought for in the suit?
iii)Whether the plaintiffs are entitled to the relief of permanent injunction in respect of the suit property, as sought for?
iv) To what relief, the plaintiff's are entitled to ?
6. Before the Trial Court, on the side of plaintiffs, one witness was examined as P.W.1 and totally, 22 documents were marked as Exs.A1 to A22. On the side of the defendants, one witness was examined as D.W.1 and three documents were marked as Exs.B1 to B3. An Advocate Commissioner report and his plan were marked as Exs.C1 and C2.
7. On consideration of both oral and documentary evidence adduced by respective parties, the Trial Court accepted the case of the plaintiffs and held that the suit property belongs to them and decreed the suit. This was challenged by the defendants in the first appeal and the First Appellate Court, concurred with the findings of the Trial Court and dismissed the first appeal. Hence, this Second Appeal.
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8. At the time of admission of the Second Appeal, the following Substantial Questions of Law were framed by this Court:-
i) Whether the Courts below are right in decreeing the suit for permanent injunction, when the plaintiffs themselves admitted that the defendants were in possession and enjoyment over the suit property, warrants interference?
ii) Whether the Courts below are right in appreciating that when the plaintiff themselves have admitted that the defendants were in possession without the relief of recovery of possession, the suit for declaration and permanent injunction are maintainable in law or on facts, warrants interference ?
iii) Whether the Courts below are right in appreciating the documents marked on the side of the plaintiffs in Ex.A1, Ex.A10 and Ex.A11 and all these documents are created after filing of the suit in order to prove their possession but the appellants/defendants have produced Ex.B2, B3 and Ex.A21 which clearly indicated that the suit property belongs to the appellants/defendants and they were in possession and enjoyment over the suit property, warrants interference?6/26
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9. Mr.S.Manohar, learned counsel appearing for the appellants/defendants submitted that the respondents/plaintiffs have filed the suit for the relief of declaration of title over the suit property, and in a suit filed for declaration, onus is cast on the plaintiffs to prove right/title/interest over the property by way of filing title deeds in respect of the suit property, instead plaintiffs filed only patta, adangal and kist receipts to prove that the suit properties were assigned to their predecessor-in- interest, viz.,Mottaiyandi, and they are claiming ancestral right over the same. The learned counsel further submitted that mere filing of patta, adangal and kist receipts are not sufficient to establish the respondents/plaintiffs right over the suit property and in fact, these documents were created by the plaintiffs for the purpose of filing the suit. The learned counsel pointed out that Ex.A.9, Entry Certificate in respect of the suit property issued in favour of Mottaiyandi by the Tahsildar, Trichirappalli, on 31.05.2006, whereas, the said Mottaiyandi died on 28.03.1994, i.e. prior to 12 years from the date of issuance of Ex.A9, and therefore, the plaintiffs are not entitled to the relief. 7/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 9.1 The learned counsel further submitted that the appellants/defendants have produced Ex.B2 and B3, which would clearly prove that the suit property belongs to the appellants/defendants and they are in possession of the same, however, both the Courts below failed to consider the same and wrongly arrived at a conclusion that the suit property belongs to the respondents/plaintiffs. The learned counsel furthermore submitted that the respondents/plaintiffs filed the suit through their power agent, Mr.Mani @ Manimaran and relied on only patta, adangal and kist receipts, which would not establish the title over the suit property, since it is well settled that patta is not a title document. However, both the Courts below have erred in granting the relief. The learned counsel further contended that, though the Trial Court gone through the report and plan of the Court Commissioner, which were marked as Exs.C1 and C2 respectively, wherein, it is stated that the property remained as a play ground, where, thorns and bushes were grown and merely because, the Commissioner has stated that the place was filled with thorns and bushes, that would by itself, would not mean that the property is not utilized by the Railway and the same was in possession of the plaintiffs, inasmuch as they are the owners of the property. Therefore, the learned counsel prayed for 8/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 allowing the Second Appeal. The learned counsel in support of his contention relied on the following reported judgments:-
1. (2017) 1 CTC 37 in the case of Arulmigu Marundeeswarar Thirukoil Vs. Chief Engineer, Highways Department, Govt. of T.N.
2. (2019) 6 SCC 82 in the case of Jagdish Prasad Patel Vs. Shivnath and others.
3. (2008) 6 CTC 237 in the case of Anathula Sundhakar Vs. P.Buchi Reddy.
4. (2017) 7 SCC 694 in the case of Agnigundala Venkata Ranga Roa Vs. Indukuru Ramachandra Reddy.
5. A.I.R. (2014) SC 937 in the case of Union of India Vs. Vasavi Co-op. Housing Society Ltd.
10. On the other hand, Mr.S.Parthasarathy, learned counsel appearing for the respondents/plaintiffs submitted that the suit property originally was in possession of deceased Murugan, father of Mottaiyandi, 9/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 and after the death of Murugan, the father of plaintiffs 2 and 3, viz., Mottaiyandi inherited the same, and after his (Mottaiyandi) death, plaintiffs, being his legal heirs, inherited the same and are claiming the suit property as their ancestral property as per the Act.
10.1 According to the learned counsel for respondents/plaintiffs with regard to identity of the suit property, there is no dispute over the same and since the suit property is an ancestral property, there cannot be any documents in the shape of title deeds, so as to show right/title/interest over the same and reliance has to be placed only upon the revenue records and produced Patta/Ex.A1, Adangal/Ex.A4, and Kist receipts/Exs.A10 and 11 as proof to show that the suit property stands in the name of the plaintiffs' predecessor- in-interest, viz., Mottaiyandi.
10.2 The learned counsel further submitted that the Trial Court relying on Ex.A1, Ex.A4, Ex.A5, Exs.A13 to 15, and the deposition of P.W.1, Mani @ Manimaran, Power Agent of the plaintiffs, rightly held that the suit property belongs to the plaintiffs and decreed the suit. On the same lines, the First Appellate Court also concurred with the findings of the Trial 10/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 Court and rightly dismissed the First Appeal filed by the appellants/Railway. Therefore, the learned counsel would submit that no interference is required in respect of the concurrent findings rendered by the Courts below and hence, prays for dismissal of this Second Appeal. The learned counsel in support of his contention relied on the following reported judgments:-
1. (1991) 1 L.W. 371 in the case of Palanniammal Vs. Pechimuthu
2. (1995) 2 MLJ 561, in the case of N.Raju Reddiar and another Vs. Tamil Nadu Electricity Board and another.
3. (1997) 1 MLJ 445, in the case of Sherwood Educational Society Vs. Abid Namazie
4. (1998) 1 CTC 162, in the case of Oriental Insurance Company Vs. T.Pitchaimani
5. (2001) 6 SCC 182, in the case of Karewwa and others Vs. Hussensab Khansaheb Wajantri and others
6. (2009) 4 MLJ 900 SC, in the case of Bachhaj Nahar Vs. Nilima Mandal and others
7. (2013) 1 MWN (CIVIL) 640 in the case of Kulandai Therasammal Vs. Maria Rathinam
8. (2013) 2 SCC 606in the case of Gian Chand and Brothers Vs. Rattan Lal Alais Rattan Singh.11/26
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11. Heard both the counsel.
12. It is the specific case of the respondents/plaintiffs that the suit property in Survey No.276, to the extent of 3.13 hectares exclusively belongs to them which is situated in the Cantonment area of Tiruchirapalli City, which is the heart of the City, valued more than 150 crores approximately. In order to establish the title, the plaintiffs have marked as many as 22 documents, viz., Exs.A1 to A22 and examined one witness, P.W.1, who is their Power Agent. As rightly contended by the learned counsel appearing for the appellants/defendants, any person, seeking the relief of declaration of title over the suit property, has to prove the same by way of adducing valid title deeds showing that the property stands in their name. In the present case, it is seen that, the respondents/plaintiffs instead of filing the title deeds in respect of the suit property, have taken a stand that, since the suit property is an ancestral property, there cannot be any documents in the shape of title deeds, so as to show right/title/interest over the same and placed reliance only upon the revenue records and produced Patta/Ex.A1, Adangal/Ex.A4, Kist receipts/Exs.A10, A11 and Ex.A21, 12/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 Town Survey Field Register said to have issued by Tahsildar, Tiruchirapalli, and the Trial Court relying on the same, held that the property belongs to the plaintiffs and decreed the suit.
12.1 It is seen that the Trial Court as well as first appellate Court heavily relied on Ex.A.1/Patta, Ex.A.4/Adangal and Ex.10 and 11/Kist receipts and decreed the suit, but failed to take into consideration of the various judgment of Hon'ble Supreme Court as well as this Court, which categorically held that patta, adangal and kist receipt are not the documents of title and it will not confer any title over the property, in question, and a person, claiming title over the property, has to prove the same by way of producing title deed. Further, on perusal of Ex.A1/Patta, it is not known, as to when it was issued and prove the same no revenue officials was examined. Both the trial Court as well as the First Appellate Court failed to consider the said aspect while decreeing the suit.
12.2 Apart from relying Ex.A1, the trial Court also relied on Exs.A4, A5, A9, A10 and A11. Both the Courts below failed to consider the aspect that, when the genuineness of those documents are under dispute 13/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 by the defendants, the same has to be proved by examining the Officials by the plaintiffs as to who issued them or the successor-in charge and, in the absence of examining the Officials, who stated to have issued those documents, it cannot be held, at any cost, that genuineness of documents is proved. Thus, non-examination of those Officials, who issued such documents is fatal to the case of the plaintiffs and even assuming if those documents were proved by examining the Officials, who issued such documents, it is not sufficient to hold that the respondents/plaintiffs proved title over the suit property. These aspects were not considered by both the Courts below while decreeing the suit.
12.3 Further, on behalf of the plaintiffs, only P.W.1. , the Power Agent was examined, but so-called owners of the property, viz., the plaintiffs were not examined to establish their case.
12.4 Further it is seen that the trial Court, apart from relying on Ex.A1, A4, A5, A9, A10 and A11, relied on Ex.A21, Town Survey Field Register, which would show that the property comprised in S.No.276 is a Railway Poramboke and part of the land was used as Road and therefore, as 14/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 per Ex.A21, which was dated 15.04.2010, road was in existence even before filing of the suit. This document would only prove the existence of pathway and not the possession of the plaintiffs. Even as per Ex.A5, part of the suit property has been shown as comprised in S.No.276, but, the suit was filed claiming entire right over the property, in S.No.276, inasmuch as, the plaintiffs themselves admitted Ex.A21, they have no right to claim the entire extent of the property in S.No.276 as of their own. That apart, the genuineness of Ex.A5 is not proved in the manner known to law by examining the concerned Officials. Unless and until, the Officials are examined, the veracity of the document cannot be proved, as the said document is not the original, but only a photostat copy, and hence, onus is cast on the plaintiffs to prove title by examining the Official, who issued such document. Unless and until, the veracity of the said document is proved, the same cannot be treated as proof to establish the title of the plaintiffs over the suit property. These aspects also were not considered by both the Courts below.
12.5 The Trial Court further heavily relied on Ex.A9, which was stated to have been issued by the Tahsildar, Trichirapalli on 31.05.2006. 15/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 Even the veracity of the said document is also not proved by the plaintiffs by examining the Tahsildar concerned. Even, if it is proved, that per se, will not confer any title to the plaintiffs, since this was issued by the Tahsildar after 12 years after the death of the said Mottaiyandi died on 28.03.1994, which shows that the plaintiffs have produced this document only to suit their purpose. Apart from that, Exs.A4, Adangal, A10 and A11, viz., kist receipts were marked, which were stated to have issued by Village Administrative Officer, in the year 2009, but the said Official was not examined. Therefore, it cannot be treated as valid document and based on the same, decree cannot be granted, and as discussed above, mere production of patta, kist receipts, adangal will not confer title on the plaintiffs over the suit property. This vital aspect also not considered by the Courts below while decreeing the suit.
12.6 As rightly pointed out by the learned counsel appearing for appellants, both the Courts below have ignored Ex.B3, which is the certified copy of the blue print, pertaining to the year, 1935, which comprises of the suit property in S.No.276 and it indicates that the entire extent of 3.125 hectares belongs to defendants Railway.
16/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 12.7 Exs.A13, 14 and 15 are the sale deeds of the neighboring properties, mentioning the plaintiffs' property as one of the boundaries of land of Mottaiyandi, but this itself is not sufficient to hold that plaintiffs are absolute owners and in possession of the suit property.
12.8. As far as Exs.A.16 to 19 are concerned, they are only Encumbrance Certificates in respect of the suit property and this will not certainly confer any title to the plaintiffs. In order to establish possession and prove title of the property, the plaintiffs have not examined themselves but only examined their Power Agent as P.W.1., who is not the competent person to depose about the genuineness of all those Revenue documents. These aspects also were not considered by both the Courts below. Therefore, this Court finds that both the Courts below committed serious error in passing the judgment and decree in favour of the plaintiffs.
12.9 On behalf of defendant, D.W.1., Officer was examined, he deposed that he has filed Exs.B1 to B3. Ex.B1 is the authorization letter, Ex.B2 is the settlement register and Ex.B3 is the certified copy of the blue 17/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 print, pertaining to the year 1935, which comprises of the entire properties of the defendants Railway. A perusal of Ex.B3 would show that the suit property in Survey No.276, belongs to the Railways. The said blue print was drawn by the Engineer of the Railway Official, which was verified with the revenue records and certified as found correct by the Tahsildar, Trichirapalli on 12.08.1996. As per Ex.B3, the suit property comprised in S.No.276, measuring to an extent of 7.72 acre, i.e. 3.125 hectares belongs to the Railways. This document pertains to the year 1935. Unfortunately, both the Courts below failed to take into consideration of this document. This document would certainly prove that the suit property, comprised in S.No. 276 belongs to the defendants Railway.
12.10 As stated supra, the document produced by the plaintiffs will not confer any title to the plaintiffs. In the absence of examining the Officials, who issued such documents, and when it was issued and proving the genuineness of the document, the plaintiffs are not entitled any decree for declaration and permanent injunction. However, Courts below, erroneously, taking reliance on Ex.A1/Patta, decreed the suit, as prayed for. Even assuming that, if the Officials are examined, and the genuineness of 18/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 those Revenue documents are proved, still, the same is not sufficient to hold that the property belongs to the plaintiffs.
12.11 Coming to the Court Commissioner' report and plan, which were marked Exs.C1 and C3, the disputed land was mentioned as a play ground, and since it is not utilized for months together, thorns and bushes were grown. Both the Courts below have failed to consider the Commissioner's report and plan in a proper perspective and wrongly arrived at a conclusion that the property does not belong to Railway but to the plaintiffs. The moment, the Commissioner found that the subject property was a play ground and there were thorns and bushes grown, it does not mean that it was also not used and utilized by Railway, however, this cannot be construed that, the plaintiffs were in possession and the property belongs to them. Thus, Commissioner's report would clearly show that the plaintiffs were not in possession of the property. This aspect also was not considered by the Courts below in a proper perspective.
12.12. Though the appellants/defendants stated in their written statement that the suit property does not belong to them, but, this itself 19/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 cannot succor the plaintiffs to claim the title, since, even if such admission is taken into consideration, still the plaintiffs have to prove their title that the property belongs to them, in the manner known to law, as such Exs.A1 to A22 would not be sufficient to prove the title of the suit property in favour of the plaintiff and was not proved in the manner known to law. Therefore, the plaintiffs are not entitled for the relief of declaration and injunction, as prayed for in the suit, but the same was not considered by the Courts below in a proper perspective.
13. Though both the counsel relied on very many judgments in support of their contentions, as both the Courts below failed to consider very many aspects of the documentary evidence and pleading, as stated above, this Court is of the view that both the Courts below came to the wrong conclusion that the plaintiffs proved the title with the available documents and pleadings. Thus, the citations referred by the plaintiffs do not support their contention to confer the title of suit schedule property to the plaintiffs based on Exs.A1 to A22. Hence, the said citation would not help the plaintiffs case anyway.
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14. In the light of the above discussion, this Court finds illegality and perversity in the judgment passed by the Courts below and accordingly, the substantial questions of law are answered as follows:-
(i) The respondents/plaintiffs have admitted in the cross-examination that they have not produced any document pertaining to the possession of the plaintiffs in the suit schedule property and the Advocate Commissioner report also filed and marked along with the rough sketch as Exs.C1 and C3, which also indicates that the plaintiffs are not in possession of the property, but the suit property is a play ground and at the time of inspection, it was noticed that there were thorns and bushes were grown. This would clearly proved that the property was not in possession of the plaintiffs, which aspect was not considered in a proper perspective by both the Courts below, as discussed above. Therefore, both the Courts below have committed error in decreeing the suit for permanent injunction, when the plaintiffs themselves admitted that the defendants were in possession and enjoyment of the property. Accordingly, the question of law (i) is answered as above.21/26
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(ii) The suit schedule property was not in possession of the plaintiffs. Therefore, they are not entitled for the decree of permanent injunction. To obtain the decree of declaration in favour the plaintiffs, it is the duty of the plaintiffs to establish the title. As narrated above, all the revenue documents produced by the plaintiffs in order to establish the title were not proved in the manner known to law. The revenue officials those who issued the documents were not examined. When the documents filed by the plaintiffs was disputed by the defendants as not bona fide, it is the duty of the plaintiffs to prove the genuinety of the documents by examining the revenue officials. But, in the present case, no attempt was made to examine the revenue officials and even the re-settlement register was also not called for. These aspects are not at all considered by both the Courts below. Thus, non- consideration of these aspects warrants this Court to interfere with the judgment and decree passed by both the Courts below and the plaintiffs are not entitled for the relief of declaration and permanent injunction as prayed and ultimately, the suit for declaration and permanent injunction is liable to be dismissed. When the plaintiffs are not entitled for the relief of declaration and permanent injunction, the question of filing the suit without the prayer of recovery of possession is irrelevant. Accordingly, the 22/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 substantial question of law (ii) is answered as above.
(iii) Ex.A1 is the patta, Exs.A10 and A11 are the kist receipts said to have issued in favour of the plaintiffs. As discussed above, Ex.A1/ patta does not contain any date. Exs.A10 and A11 were also issued by the revenue officials. The defendants have taken a categorically stand in the written statement that the rough sketch, plan etc., filed by the plaintiffs cannot be treated as bona fide and final. When the defendants/appellants disputed the documents filed by the plaintiffs, it is the duty of the plaintiffs to prove the genuinety of the documents. In the present case, Exs.A1, A10 and A11 are the revenue documents. On behalf of the plaintiffs, only P.W.1 was examined, who is none other than the power of attorney holder of the plaintiffs. He is not the competent person to depose about the genuinety of Exs.A1, A10 and A11, the revenue documents. Only the revenue officials are the competent persons to depose about the genuinety of the documents. In the present case, no attempt was made to examine the revenue officials on behalf of the plaintiffs. However, these aspects were not considered by both the trial Court as well as the Appellate Court, while decreeing the suit. Therefore, this Court is necessarily to interfere with and to hold that 23/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 Exs.A1, A10 and A11 were not proved in the manner known to law. Thus, based on Exs.A1, A10 and A11, no decree of declaration can be made to confer the title in favour of the plaintiffs. These revenue documents are nothing but patta, kist receipts, which even otherwise proved it cannot confer any title to the plaintiffs. Ultimately, the decree and judgment passed by the trial Court and as confirmed by the appellate Court is liable to be set aside. That apart, Exs.B2, B3 and A21 are clearly proved that the property belongs to the Railway and the Railway is in enjoyment of the property all along. Even Exs.C1 and C3 / Commissioner's Reports also clearly indicate that it was used and utilized as a play ground by the Railway. When such being the position, exhibits filed by the plaintiffs as well as the defendants specifically Ex.B3/ copy of the blue print of the year 1935, were not considered in a proper perspective by both the Courts below. With these materials declaring the suit schedule property belongs to the plaintiffs is not proper and the said finding is ultimately liable to be set aside. Accordingly, the substantial question of law (iii) is answered as above.
15. Hence, the suit in O.S.No.917 of 2006 is liable to be dismissed. Accordingly, the suit is dismissed. The judgment and decree passed by both 24/26 https://www.mhc.tn.gov.in/judis S.A.(MD) No.389 of 2017 the first appellate Court in A.S.No.106 of 2015 and the trial Court in O.S.No.917 of 2006 are set aside.
16. In the result, the Second Appeal is allowed. However, there shall be no order as to costs.
12.05.2022 sd/akv Index : yes Internet : yes To
1. I Additional Sub Court, Trichy.
2. I Additional District Munsif, Trichy.
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