{"id":210033,"date":"2007-11-13T00:00:00","date_gmt":"2007-11-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/srinivasan-vs-seenikonar-on-13-november-2007"},"modified":"2015-08-31T23:49:33","modified_gmt":"2015-08-31T18:19:33","slug":"srinivasan-vs-seenikonar-on-13-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/srinivasan-vs-seenikonar-on-13-november-2007","title":{"rendered":"Srinivasan vs Seenikonar on 13 November, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Srinivasan vs Seenikonar on 13 November, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 13\/11\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\n\nS.A.(MD)No.1716 of 1996\nand\nC.M.P.(MD).No.16921 of 1996\n\n\nSrinivasan\t\t...\t\tAppellant\n\n\nVs.\n\n\n1.Seenikonar\n2.The Tahsildar,\n  Karaikudi,\n  P.M.T. District.\t...\t\tRespondents\n\n\nPRAYER\n\n\nSecond Appeal filed under Section 100 of the Code of Civil Procedure,\nagainst the judgment and decree dated 19.10.1995 in A.S.No.72 of 1994 on the\nfile of the Sub Court, Devakottai, confirming the judgment and decree dated\n09.11.1994 in O.S.No.142 of 1992 on the file of the District Munsif, Devakottai.\n\n\n!For Appellant\t\t...\tMs.AL.Gandhimathi\n\n\n^For 1st Respondent\t...\tMr.V.Raghavachari\n\t\t\n\nFor 2nd Respondent\t...\tMr.D.Gandhiraj,\n\t\t\t\tAdditional Government Pleader\n\n\n:JUDGMENT\n<\/pre>\n
\t\tThe unsuccessful plaintiff, after having failed to succeed in the
\nlegal battle before the Courts below, has brought forth this second appeal. The
\nappellant herein had filed O.S.No.142 of 1992 on the file of the learned
\nDistrict Munsif Court, Devakottai for declaration, mandatory injunction and
\npermanent injunction.\n<\/p>\n
\t\t2. According to the plaint averments, the suit property was the
\nancestral property of the appellant. He had constructed a compound wall on the
\nwestern boundary of the suit property, put up barbed wire fence on all other
\nthree sides and kept the suit property under his exclusive possession and
\nenjoyment. He has also constructed a small tiled house in the suit property and
\nis residing therein. The balance area is in his use as a space for tying cattle,
\nspreading the vessels for the purpose of washing and for putting up hay-stacks.
\nIn between the suit property and the property of the first respondent, there is
\na vacant space classified as natham poramboke used by the village public as a
\npassage, and for draining the rain waters. While so, the first respondent put up
\na compound wall close to the eastern fence of the appellant leaving only a 3
\nfeet space for the use of the public for the above said purposes. The same was
\nreported to the second respondent, when the construction of the wall was in
\nprogress. But the second respondent kept quiet till the completion of the
\nconstruction and thereafter, instead of taking action against the first
\nrespondent, issued a notice to the appellant herein as if he had occupied a
\nportion in the use of the public as a public street and as a place for parking
\ntheir carts. In the above said circumstances stated in the plaint, the appellant
\nwas constrained to file the suit for declaration of his title and permanent
\ninjunction in respect of the suit property and for a mandatory injunction for
\nthe removal of the compound wall put up by the first defendant.\n<\/p>\n
\t\t3. The second respondent (Tahsildar), arrayed as the second
\ndefendant in the suit, did not contest the same and remained exparte. The first
\nrespondent\/first defendant resisted the suit contending that there was no
\nencroachment of the street portion by the first respondent as alleged in the
\ncomplaint; that the first respondent’s wall had been constructed only on the
\nborder of his property; that the said wall was constructed more than 30 years
\nprior to the date of filing of the suit and that the suit property was a natham
\nporamboke land used as public street and a place for parking the carts of the
\nvillagers. He had also contended that pursuant to the notice issued by the
\nsecond respondent (Tahsildar), the appellant gave a statement admitting that he
\nhad encroached upon the above said property which was earmarked for public use
\nand undertaking to remove the fence and clear the encroachment made by him and
\nthat thereafter, without complying with the said undertaking, the appellant,
\nwith ulterior motive, approached the Court with the false case.\n<\/p>\n
\t\t4. The trial Court, after framing necessary issues, conducted trial,
\nin which the plaintiff was examined as the sole witness on the side of the
\nplaintiff, besides marking Exs.A.1 to A.5 as documentary evidence. Likewise 3
\nwitnesses were examined and one  document (Ex.B.1) was marked on the side of the
\ndefendants. Exs.C.1 and C.2 were also marked as Court documents. After
\nconsidering the evidence adduced on both sides, the trial Court decided all the
\nissues against the appellant and dismissed the suit.\n<\/p>\n
\t\t5. On appeal, the lower appellate Court, namely Subordinate Judge,
\nDevakottai, confirmed the judgment and decree of the trial Court. Hence the
\npresent second appeal has been brought forth.\n<\/p>\n
\t\t6. This Court heard the submissions made by Ms.AL.Gandhimathi,
\nlearned counsel appearing for the appellant, by Mr.V.Raghavachari, learned
\ncounsel appearing for the first respondent and also by Mr.D.Gandhiraj, learned
\nAdditional Government Pleader appearing for the second respondent and perused
\nthe materials available on record including the judgments of both the Courts.\n<\/p>\n
\t\t7. The suit was filed in respect of the suit property, which was
\ndescribed in the plaint as a house site. The learned counsel for the appellant
\ncontended that both the Courts below erred in holding the suit property to be a
\npublic pathway in the absence of sufficient evidence; that the Courts below
\nfailed to consider the Commissioner’s report which resulted in improper
\ndismissal of the suit filed by the appellant and that patta standing in the name
\nof the appellant should have been accepted as prima facie evidence of title, in
\nthe absence of any other contra evidence adduced on the side of the other party.\n<\/p>\n
\t\t8. On the other hand, the learned counsel appearing for the
\ncontesting respondent (first respondent) contended that the Courts below, on
\nproper evaluation of the evidence adduced on both sides, came to the conclusion
\nthat the suit property was a public pathway and a place for parking the carts of
\nthe villagers and that the plaintiff had no title to the suit property; that the
\nconcurrent findings of the Courts below could not be interfered with; that, in
\nany event, the appellant\/plaintiff had not established the involvement of a
\nsubstantial question of law in the second appeal and that the substantial
\nquestions of law framed at the time of admission were not, in fact, substantial
\nquestions of law. At the time of admission, the following questions were framed
\nas substantial questions of law involved in the second appeal:\n<\/p>\n
\t“(1) Whether the Courts below erred in not appreciating that in the
\nabsence of any other evidence, patta is prima facie evidence of title and
\ndecreeing the suit on the said basis?\n<\/p>\n
\t(2) Whether the Courts below erred in holding the suit property as public
\npathway when there is no pleading to that effect or evidence on record? and
\n\t(3) Whether the Court below erred in dismissing the suit without
\nconsidering the Commissioner’s report which is a material evidence and forms
\npart of the record?”\n<\/p>\n
\t\t9. Let us now consider the case of the appellant in the light of the
\nabove said questions framed as substantial questions of law. The suit property
\nhas been described in the plaint schedule as a house site measuring 0.04.61
\nhectares comprised in Survey No.229\/13 of  Sankarapuram Village, Karaikudi
\nTaluk, Sivaganga District, which is stated to be lying on the west of the first
\nrespondent’s dry land and grama natham poramboke, on the north of
\nRama.Chinnakaruppan Ambalam’s dry land, and on the east of the appellant’s
\nlarger house and vacant site appurtenant to the same. Even though the total
\nextent of the disputed property is shown to be 0.04.61 hectares, on a close
\nscrutiny of the plaint averments and description of the property in the light of
\nthe field map found in Ex.A.2-rough patta and Ex.C.2-Commissioner’s plan, it is
\nquite obvious that the dispute is confined to a part of the total extent
\ncomprised in the said survey number, namely the eastern portion lying on the
\neast of the plaintiff’s north-south compound wall, and not in respect of the
\nentire extent. As per the measurements found in Ex.C.2-Commissioner’s plan, the
\ndisputed portion (eastern part of the suit survey number) measures an extent of
\nroughly 6 cents and the western portion (undisputed portion) measures an extent
\nof 5 cents. The north-south compound wall of the plaintiff shown in blue colour
\nin Ex.C.2 divides the survey number into two parts. Admittedly the western part
\nincluding the blue marked compound wall belongs to the appellant and the same is
\nin his possession and enjoyment. According to the contesting respondent, though
\nthe right and enjoyment of the appellant was restricted to the western part of
\nthe suit survey number having an extent of 5 cents, during natham survey, by
\nmistake, Ex.A.2 rough patta happened to be issued in the name of the appellant
\nfor the entire extent of 0.04.61 hectares (roughly 11 cents). The appellant got
\npatta for the entire 11 cents. He has chosen to file the suit in respect of the
\neastern portion alone i.e. the portion which lies on the east of the plaintiff’s
\ncompound wall. However, the appellant has given the extent of the suit property,
\nnamely the property lying on the east of the compound wall marked in blue in
\nEx.C.2, as 0.04.61 hectares. The fact remains that the said extent represents
\nthe entire survey number including the western portion that lies on the west of
\nthe plaintiff’s compound wall. Therefore, it is quite clear that the extent of
\nthe suit property shown in the plaint is incorrect.\n<\/p>\n
\t\t10. It is the admitted case of both parties that the western part of
\nthe suit survey number is the ancestral property of the appellant. On the other
\nhand, the claim of the appellant that the eastern portion, namely the suit
\nproperty, also is his ancestral property has been disputed by the contesting
\nrespondent.  The submission made on behalf of the contesting respondent that if
\nat all the the eastern portion of the suit survey number was also the ancestral
\nproperty of the appellant\/plaintiff, the appellant would have chosen to erect
\nhis compound wall on the eastern extremity of the suit survey number and not on
\nthe middle of the same dividing the same into two plots, has got to be
\ncountenanced. Further more, while deposing as P.W.1, the plaintiff made an
\nadmission that both the houses were located on the west of the compound wall
\nmarked in blue and that only a cattle shed was located on the eastern part. The
\nsaid admission of the plaintiff as P.W.1 belies the plaint  averment that he had
\nconstructed a residential house in the suit property (portion lying on the east
\nof the blue mark wall) and he was residing in the said house and that the
\nremaining portion was being  used for tying cattle, spreading and washing
\nvessels and for putting up hay-stacks. The oral and documentary evidence adduced
\non the side of the contesting respondent, namely the first respondent, show that
\nthe southern boundary of the suit property alone was fenced at the time of
\nfiling of the suit and that the said fence was also put up just prior to the
\nfiling of the suit. It is also obvious from the said evidence that fencing on
\nthe other two sides was completed only subsequent to the first visit made by the
\nAdvocate Commissioner. The said view gets support from the particulars found in
\nEx.C.1-Commissioner’s report. There is ample evidence to show that a small tiled
\nshed put up on the east of the blue mark wall was put up recently with a view to
\nstake claim of title to the suit property.\n<\/p>\n
\t\t11. It is also pertinent to note that the rough patta issued under
\nEx.A.2 has also been subsequently ordered to be cancelled. As against the issue
\nof Ex.A.2-rough patta in favour of the appellant, the village public moved the
\nAssistant Settlement Officer, Madurai praying for the cancellation of the same.
\nThe Assistant Settlement officer, by his order dated 31.05,1993, declined to
\ncancel the rough patta on the ground that civil suit was pending and directed
\nthat representations could be made after the disposal of the  civil suit. A copy
\nof the order has been marked as Ex.A.4. As against the said order of the
\nAssistant Settlement Officer, an appeal was filed before the District Revenue
\nOfficer, Sivaganga. The District Revenue Officer, by his order dated 11.04.1994,
\ndirected the cancellation of the rough patta so far as it relates to the suit
\nproperty, the District Revenue Officer has also directed the issue of patta in
\nfavour of the appellant only in respect of the western part of the suit survey
\nnumber that lies on the west of and inclusive of the compound wall of the
\nplaintiff shown in blue colour in Ex.C.2. No doubt the said order was passed
\nduring the pendency of the civil suit. But, admittedly, there was no stay of the
\nappeal filed before the District Revenue Officer and there was no injunction. As
\nsuch, the said order of the District Revenue Officer cannot be totally ignored,
\nespecially when the appellant\/plaintiff relies on the rough patta marked as
\nEx.A.2. In the light of the above said order passed by the District Revenue
\nOfficer marked as Ex.A.4, the claim of title to the suit property based on
\nEx.A.2- rough patta has got to be disallowed as the said rough patta is no
\nlonger valid.\n<\/p>\n
\t\t12. The learned counsel for the contesting respondent has brought it
\nto the Court’s notice that there is a clear admission made by the plaintiff as
\nP.W.1 that he gave a statement before the Tahsildar and that Ex.B.1 was the true
\ncopy of the same. The contents of Ex.B.1 clearly show that the
\nappellant\/plaintiff had admitted to have put up a fence encroaching upon the
\nvillage natham poramboke used by the public and that he had no objection for the
\nremoval of the fence. In the light of the above said admission, it cannot be
\nsaid that the findings of the Courts below to the effect that the appellant was
\nentitled to the portion that lies on the west of and inclusive of the compound
\nwall marked in blue in Ex.C.2-Commissioner’s plan alone and not entitled to any
\nportion on the east of the said wall, is against the preponderance of evidence
\nand that in any event the said finding cannot be termed based on no evidence or
\notherwise perverse.\n<\/p>\n
\t\t13. The next contention raised by the appellant is that the first
\nrespondent has put up a compound wall enclosing a portion of the public street
\non the west of his property. The said contention has been correctly negatived by
\nthe Courts below. The Commissioner has noted the compound wall of the first
\ndefendant to be in alignment with the compound wall constructed by the owner of
\nthe property that lies on the north of the first respondent’s property. The fact
\nthat the first respondent’s compound wall is in alignment with the compound wall
\nof the northern property has also been admitted by P.W.1. Taking into account
\nall these aspects, the Courts below have arrived at a correct conclusion that
\nthe appellant had got title and possession only in respect of the portion lying
\non the west of the compound wall marked in blue in Ex.C.2-Commissioner’s plan
\nand that the portion lying on the east of the said wall was a community land, a
\npart of which was used as a street and the remaining portion was used as a space
\nfor parking carts of the villagers. The concurrent findings of the Courts below
\nin this regard cannot be interfered with, as they cannot be said to be based on
\nno legal evidence or against the preponderance of evidence. There is no
\nmisreading or misinterpretation of any document. At no stretch of imagination,
\nthe said finding can be stated to be perverse. The appellant has not proved the
\ninvolvement of a substantial question of law in the second appeal. All the
\nquestions of law framed at the time of admission of the second appeal, according
\nto the considered view of this Court, are not, in fact, substantial questions of
\nlaw. Even assuming that those three questions framed at the time of admission of
\nthe second appeal are substantial questions of law, all the questions have got
\nto be answered in negative and against the appellant.\n<\/p>\n
\t\t14. For all the reasons stated above, this Court comes to the
\nconclusion that the appellant has not made out a case for interference with the
\nconcurrent judgments of the Courts below. There is no merit in the second appeal
\nand the same deserves to be dismissed with costs.\n<\/p>\n
\t\t15. Accordingly, the Second Appeal is dismissed with costs.
\nConsequently, the connected miscellaneous petition is also dismissed.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
1.The Sub Court,
\n Devakottai.\n<\/p>\n
2.The District Munsif,
\n  Devakottai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Srinivasan vs Seenikonar on 13 November, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-210033","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSrinivasan vs Seenikonar on 13 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/srinivasan-vs-seenikonar-on-13-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Srinivasan vs Seenikonar on 13 November, 2007 - 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