BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/11/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.1716 of 1996 and C.M.P.(MD).No.16921 of 1996 Srinivasan ... Appellant Vs. 1.Seenikonar 2.The Tahsildar, Karaikudi, P.M.T. District. ... Respondents PRAYER Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 19.10.1995 in A.S.No.72 of 1994 on the file of the Sub Court, Devakottai, confirming the judgment and decree dated 09.11.1994 in O.S.No.142 of 1992 on the file of the District Munsif, Devakottai. !For Appellant ... Ms.AL.Gandhimathi ^For 1st Respondent ... Mr.V.Raghavachari For 2nd Respondent ... Mr.D.Gandhiraj, Additional Government Pleader :JUDGMENT
The unsuccessful plaintiff, after having failed to succeed in the
legal battle before the Courts below, has brought forth this second appeal. The
appellant herein had filed O.S.No.142 of 1992 on the file of the learned
District Munsif Court, Devakottai for declaration, mandatory injunction and
permanent injunction.
2. According to the plaint averments, the suit property was the
ancestral property of the appellant. He had constructed a compound wall on the
western boundary of the suit property, put up barbed wire fence on all other
three sides and kept the suit property under his exclusive possession and
enjoyment. He has also constructed a small tiled house in the suit property and
is residing therein. The balance area is in his use as a space for tying cattle,
spreading the vessels for the purpose of washing and for putting up hay-stacks.
In between the suit property and the property of the first respondent, there is
a vacant space classified as natham poramboke used by the village public as a
passage, and for draining the rain waters. While so, the first respondent put up
a compound wall close to the eastern fence of the appellant leaving only a 3
feet space for the use of the public for the above said purposes. The same was
reported to the second respondent, when the construction of the wall was in
progress. But the second respondent kept quiet till the completion of the
construction and thereafter, instead of taking action against the first
respondent, issued a notice to the appellant herein as if he had occupied a
portion in the use of the public as a public street and as a place for parking
their carts. In the above said circumstances stated in the plaint, the appellant
was constrained to file the suit for declaration of his title and permanent
injunction in respect of the suit property and for a mandatory injunction for
the removal of the compound wall put up by the first defendant.
3. The second respondent (Tahsildar), arrayed as the second
defendant in the suit, did not contest the same and remained exparte. The first
respondent/first defendant resisted the suit contending that there was no
encroachment of the street portion by the first respondent as alleged in the
complaint; that the first respondent’s wall had been constructed only on the
border of his property; that the said wall was constructed more than 30 years
prior to the date of filing of the suit and that the suit property was a natham
poramboke land used as public street and a place for parking the carts of the
villagers. He had also contended that pursuant to the notice issued by the
second respondent (Tahsildar), the appellant gave a statement admitting that he
had encroached upon the above said property which was earmarked for public use
and undertaking to remove the fence and clear the encroachment made by him and
that thereafter, without complying with the said undertaking, the appellant,
with ulterior motive, approached the Court with the false case.
4. The trial Court, after framing necessary issues, conducted trial,
in which the plaintiff was examined as the sole witness on the side of the
plaintiff, besides marking Exs.A.1 to A.5 as documentary evidence. Likewise 3
witnesses were examined and one document (Ex.B.1) was marked on the side of the
defendants. Exs.C.1 and C.2 were also marked as Court documents. After
considering the evidence adduced on both sides, the trial Court decided all the
issues against the appellant and dismissed the suit.
5. On appeal, the lower appellate Court, namely Subordinate Judge,
Devakottai, confirmed the judgment and decree of the trial Court. Hence the
present second appeal has been brought forth.
6. This Court heard the submissions made by Ms.AL.Gandhimathi,
learned counsel appearing for the appellant, by Mr.V.Raghavachari, learned
counsel appearing for the first respondent and also by Mr.D.Gandhiraj, learned
Additional Government Pleader appearing for the second respondent and perused
the materials available on record including the judgments of both the Courts.
7. The suit was filed in respect of the suit property, which was
described in the plaint as a house site. The learned counsel for the appellant
contended that both the Courts below erred in holding the suit property to be a
public pathway in the absence of sufficient evidence; that the Courts below
failed to consider the Commissioner’s report which resulted in improper
dismissal of the suit filed by the appellant and that patta standing in the name
of the appellant should have been accepted as prima facie evidence of title, in
the absence of any other contra evidence adduced on the side of the other party.
8. On the other hand, the learned counsel appearing for the
contesting respondent (first respondent) contended that the Courts below, on
proper evaluation of the evidence adduced on both sides, came to the conclusion
that the suit property was a public pathway and a place for parking the carts of
the villagers and that the plaintiff had no title to the suit property; that the
concurrent findings of the Courts below could not be interfered with; that, in
any event, the appellant/plaintiff had not established the involvement of a
substantial question of law in the second appeal and that the substantial
questions of law framed at the time of admission were not, in fact, substantial
questions of law. At the time of admission, the following questions were framed
as substantial questions of law involved in the second appeal:
“(1) Whether the Courts below erred in not appreciating that in the
absence of any other evidence, patta is prima facie evidence of title and
decreeing the suit on the said basis?
(2) Whether the Courts below erred in holding the suit property as public
pathway when there is no pleading to that effect or evidence on record? and
(3) Whether the Court below erred in dismissing the suit without
considering the Commissioner’s report which is a material evidence and forms
part of the record?”
9. Let us now consider the case of the appellant in the light of the
above said questions framed as substantial questions of law. The suit property
has been described in the plaint schedule as a house site measuring 0.04.61
hectares comprised in Survey No.229/13 of Sankarapuram Village, Karaikudi
Taluk, Sivaganga District, which is stated to be lying on the west of the first
respondent’s dry land and grama natham poramboke, on the north of
Rama.Chinnakaruppan Ambalam’s dry land, and on the east of the appellant’s
larger house and vacant site appurtenant to the same. Even though the total
extent of the disputed property is shown to be 0.04.61 hectares, on a close
scrutiny of the plaint averments and description of the property in the light of
the field map found in Ex.A.2-rough patta and Ex.C.2-Commissioner’s plan, it is
quite obvious that the dispute is confined to a part of the total extent
comprised in the said survey number, namely the eastern portion lying on the
east of the plaintiff’s north-south compound wall, and not in respect of the
entire extent. As per the measurements found in Ex.C.2-Commissioner’s plan, the
disputed portion (eastern part of the suit survey number) measures an extent of
roughly 6 cents and the western portion (undisputed portion) measures an extent
of 5 cents. The north-south compound wall of the plaintiff shown in blue colour
in Ex.C.2 divides the survey number into two parts. Admittedly the western part
including the blue marked compound wall belongs to the appellant and the same is
in his possession and enjoyment. According to the contesting respondent, though
the right and enjoyment of the appellant was restricted to the western part of
the suit survey number having an extent of 5 cents, during natham survey, by
mistake, Ex.A.2 rough patta happened to be issued in the name of the appellant
for the entire extent of 0.04.61 hectares (roughly 11 cents). The appellant got
patta for the entire 11 cents. He has chosen to file the suit in respect of the
eastern portion alone i.e. the portion which lies on the east of the plaintiff’s
compound wall. However, the appellant has given the extent of the suit property,
namely the property lying on the east of the compound wall marked in blue in
Ex.C.2, as 0.04.61 hectares. The fact remains that the said extent represents
the entire survey number including the western portion that lies on the west of
the plaintiff’s compound wall. Therefore, it is quite clear that the extent of
the suit property shown in the plaint is incorrect.
10. It is the admitted case of both parties that the western part of
the suit survey number is the ancestral property of the appellant. On the other
hand, the claim of the appellant that the eastern portion, namely the suit
property, also is his ancestral property has been disputed by the contesting
respondent. The submission made on behalf of the contesting respondent that if
at all the the eastern portion of the suit survey number was also the ancestral
property of the appellant/plaintiff, the appellant would have chosen to erect
his compound wall on the eastern extremity of the suit survey number and not on
the middle of the same dividing the same into two plots, has got to be
countenanced. Further more, while deposing as P.W.1, the plaintiff made an
admission that both the houses were located on the west of the compound wall
marked in blue and that only a cattle shed was located on the eastern part. The
said admission of the plaintiff as P.W.1 belies the plaint averment that he had
constructed a residential house in the suit property (portion lying on the east
of the blue mark wall) and he was residing in the said house and that the
remaining portion was being used for tying cattle, spreading and washing
vessels and for putting up hay-stacks. The oral and documentary evidence adduced
on the side of the contesting respondent, namely the first respondent, show that
the southern boundary of the suit property alone was fenced at the time of
filing of the suit and that the said fence was also put up just prior to the
filing of the suit. It is also obvious from the said evidence that fencing on
the other two sides was completed only subsequent to the first visit made by the
Advocate Commissioner. The said view gets support from the particulars found in
Ex.C.1-Commissioner’s report. There is ample evidence to show that a small tiled
shed put up on the east of the blue mark wall was put up recently with a view to
stake claim of title to the suit property.
11. It is also pertinent to note that the rough patta issued under
Ex.A.2 has also been subsequently ordered to be cancelled. As against the issue
of Ex.A.2-rough patta in favour of the appellant, the village public moved the
Assistant Settlement Officer, Madurai praying for the cancellation of the same.
The Assistant Settlement officer, by his order dated 31.05,1993, declined to
cancel the rough patta on the ground that civil suit was pending and directed
that representations could be made after the disposal of the civil suit. A copy
of the order has been marked as Ex.A.4. As against the said order of the
Assistant Settlement Officer, an appeal was filed before the District Revenue
Officer, Sivaganga. The District Revenue Officer, by his order dated 11.04.1994,
directed the cancellation of the rough patta so far as it relates to the suit
property, the District Revenue Officer has also directed the issue of patta in
favour of the appellant only in respect of the western part of the suit survey
number that lies on the west of and inclusive of the compound wall of the
plaintiff shown in blue colour in Ex.C.2. No doubt the said order was passed
during the pendency of the civil suit. But, admittedly, there was no stay of the
appeal filed before the District Revenue Officer and there was no injunction. As
such, the said order of the District Revenue Officer cannot be totally ignored,
especially when the appellant/plaintiff relies on the rough patta marked as
Ex.A.2. In the light of the above said order passed by the District Revenue
Officer marked as Ex.A.4, the claim of title to the suit property based on
Ex.A.2- rough patta has got to be disallowed as the said rough patta is no
longer valid.
12. The learned counsel for the contesting respondent has brought it
to the Court’s notice that there is a clear admission made by the plaintiff as
P.W.1 that he gave a statement before the Tahsildar and that Ex.B.1 was the true
copy of the same. The contents of Ex.B.1 clearly show that the
appellant/plaintiff had admitted to have put up a fence encroaching upon the
village natham poramboke used by the public and that he had no objection for the
removal of the fence. In the light of the above said admission, it cannot be
said that the findings of the Courts below to the effect that the appellant was
entitled to the portion that lies on the west of and inclusive of the compound
wall marked in blue in Ex.C.2-Commissioner’s plan alone and not entitled to any
portion on the east of the said wall, is against the preponderance of evidence
and that in any event the said finding cannot be termed based on no evidence or
otherwise perverse.
13. The next contention raised by the appellant is that the first
respondent has put up a compound wall enclosing a portion of the public street
on the west of his property. The said contention has been correctly negatived by
the Courts below. The Commissioner has noted the compound wall of the first
defendant to be in alignment with the compound wall constructed by the owner of
the property that lies on the north of the first respondent’s property. The fact
that the first respondent’s compound wall is in alignment with the compound wall
of the northern property has also been admitted by P.W.1. Taking into account
all these aspects, the Courts below have arrived at a correct conclusion that
the appellant had got title and possession only in respect of the portion lying
on the west of the compound wall marked in blue in Ex.C.2-Commissioner’s plan
and that the portion lying on the east of the said wall was a community land, a
part of which was used as a street and the remaining portion was used as a space
for parking carts of the villagers. The concurrent findings of the Courts below
in this regard cannot be interfered with, as they cannot be said to be based on
no legal evidence or against the preponderance of evidence. There is no
misreading or misinterpretation of any document. At no stretch of imagination,
the said finding can be stated to be perverse. The appellant has not proved the
involvement of a substantial question of law in the second appeal. All the
questions of law framed at the time of admission of the second appeal, according
to the considered view of this Court, are not, in fact, substantial questions of
law. Even assuming that those three questions framed at the time of admission of
the second appeal are substantial questions of law, all the questions have got
to be answered in negative and against the appellant.
14. For all the reasons stated above, this Court comes to the
conclusion that the appellant has not made out a case for interference with the
concurrent judgments of the Courts below. There is no merit in the second appeal
and the same deserves to be dismissed with costs.
15. Accordingly, the Second Appeal is dismissed with costs.
Consequently, the connected miscellaneous petition is also dismissed.
SML
To
1.The Sub Court,
Devakottai.
2.The District Munsif,
Devakottai.
