Murugesa Gounder v. Narayanasamy2.Govindaraj3.Arumugam4.Ramasamy5.Pavanambal6.Rasiammal7.Senbagam

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 04.04.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANISecond Appeal Nos.1078 to 1080 of 1994Murugesa Gounder... Appellant in S.A.No.1078,1079, 1080/94Vs.1.Narayanasamy2.Govindaraj3.Arumugam4.Ramasamy5.Pavanambal6.Rasiammal7.Senbagam... Respondents in S.A.No.1078,1079, 1080/94PRAYER IN S.A.No.1078 of 1994: Second Appeal against the Judgment anddecree dated 31.10.1991 made in A.S.No.32 of 1988 on the file of theSubordinate Judge, Court of Tiruvannamalai in confirming the judgement anddecree dated 24.02.1988 made in O.S.No.1380 of 1980 on the file of theCourt of the District Munsif of Tiruvannamalai. PRAYER IN S.A.No.1079 of 1994: Second Appeal against the Judgment anddecree 31.10.1991 made in A.S.No.46 of 1988 on the file of the Court ofSubordinate Judge of Tiruvannamalai in confirming the judgement and decreedated 24.02.1988 made in O.S.No.1381 of 1980 on the file of the DistrictMunsif of Tiruvannamalai. PRAYER IN S.A.No.1080 of 1994: Second Appeal against the Judgment anddecree dated 31.10.1991 made in A.S.No.23 of 1989 on the file of theSubordinate Judge of Tiruvannamalai in confirming the Judgement and decreedated 24.02.1988 made in O.S.No.1388 of 1980 on the file of the DistrictMunsif of Tiruvannamalai. For Appellant: Mr.P.Mani Mr.N.Srinivasan For Respondent : No appearanceCOMMON JUDGEMENTThe unsuccessful defendant in O.S.Nos.1380 of 1980, 1381 of 1980 andl388 of 1980 in both the Courts below is the appellant in all these threeappeals, namely, Second Appeal Nos.1078, 1079 & 1080 of 1994. The https://hcservices.ecourts.gov.in/hcservices/ original plaintiff in O.S.No.1380 of 1980 and 1381 of 1980 MunusamyGounder whose legal representatives are the respondents herein, has filedthe suit in O.S.No.1380 of 1980 against the defendant/appellant for adeclaration in respect of the ownership of A Schedule property comprisedin Survey No.106/1A to the total extent of 1.12 acres and also forpossession in respect of B Schedule property comprised of 22 cents whichis formed part of A Schedule property stated to have been encroached bythe defendant/appellant. The said suit was filed by the said MunusamyGounder, who is no one else than the paternal-uncle of theappellant/defendant, on the ground that he purchased the suit propertyunder a sale deed Ex.A.1 dated 24.02.1928. 2. Likewise he has also filed O.S.No.1381 of 1980 for the same reliefof declaration and injunction in respect of a 1.18 acres of land out ofthe total extent of 1.54 acres comprised in Survey No.87/6 stating thatthe defendant/appellant has encroached 47 cents of land. 3. On the other hand, the defendant/appellant filed O.S.No.1388 of1980 for a declaration and possession against the said Munusamy Gounder,plaintiff in the other suit, in respect of 47 cents of land comprised inSurvey No.87/6 and 33½ cents of land comprised in Survey No.106/1A. Boththe Trial Court as well as the First Appellate Court on elaborate trialhave decreed the suits filed by the Munusamy Gounder and dismissed thesuit filed by the defendant/appellant as against which the present appealsare filed. 4. While it was the case of the plaintiff Munusamy Gounder inO.S.No.1380 of 1980 that in respect of Survey No.106/1A he is the absoluteowner of the entire A Schedule property measuring 1.12 acres claiming tohave purchased the same under Ex.A.1 sale deed dated 24.02.1928 andtherefore, the conduct of the appellant/defendant in encroaching 22 centsdescribed in B Schedule out of the said 1.12 acres of A Schedule amountsto trespass and therefore, he was entitled for possession. In respect ofSurvey No.87/6 it was the case of the plaintiff that the total extent of1.54 acres in the said Survey number is a joint family property originallybelonged to the plaintiff’s father Pachaiyappa Gounder and thereafterthere was a partition between the brothers and the plaintiff. The saidPachaiyappa Gounder died leaving behind him, the plaintiff in the saidsuit Munusamy Gounder and the father of the defendant/appellant KistaGounder and thereafter there was a partition between the brothers, namely,the plaintiff and the said Kista Gounder and the properties in the entireSurvey No.87/6 was divided into 9 parts out which the G portion wasaccepted to be a common passage and out of the remaining 1.48 acres ofland, 74 cents stated as ACF was taken by the plaintiff Munusamy Gounderand the other 74 cents of land stated as BDEH was given to the share ofKista Gounder. The said Kista Gounder who left out of the countryreturned in 1931 and agreed to sell the said 74 cents allotted to himunder Survey No.87/6 under the above said partition to the plaintiffMunusamy Gounder under a sale deed dated 18.09.1946. However the salecould not be completed and there was a panchayat in which it was agreed https://hcservices.ecourts.gov.in/hcservices/ that the said Kista Gounder and his son the appellant/defendant shouldsell 44 cents of land in Survey No.87/6 to the plaintiff for Rs.77/- andthe balance amount should be returned by the plaintiff and accordingly theplaintiff has returned the balance amount of Rs.123/- and the said KistaGounder and his son the defendant/appellant by oral sale have given the 44cents of land to the said Munusamy Gounder and thereafter he has been inejoyment of the said property for a long time and has also obtained titleby adverse possession. However, when the defendant has unauthorizedelyattempted to encroach upon the property belonging to the plaintiff inSurvey No.106/1A, the present suit in O.S.No.1381 of 1980 was filed by theplaintiff for a declaration and also injunction. 5. It is the case of the defendant/appellant in the written statementthat in respect of Survey No.106/1A, subject matter of suit in O.S.No.1380of 1980 there was a family partition 50 years ago by which 55½ cents wasgiven to plaintiff’s family and 55½ cents was given to the defendants.While so the plaintiff in O.S.No.1380 of 1980 has encroached upon the saidallotted lands to the defendants to the extent of 33½ cents in SurveyNo.106/1A for which the defendant/appellant has filed O.S.No.1388 of 19980for declaration and recovery of possession. 6. Likewise it was his case in O.S.No.1381 of 1980 in the writtenstatement that the plaintiff has encroached upon 47 cents in SurveyNo.87/6 after the partition and therefore, he has filed the suit forrecovery of possession against the plaintiff in O.S.No.1388 of 1980. As Ihave stated earlier the suit filed by the plaintiff in O.S.No.1380, 1381of 1980 was decreed by both the courts below while the suit filed by thedefendant/appellant in O.S.No.1388 of 1980 was dismissed by both thecourts below against which the above three appeals have been filed by thedefendant Murugesa Gounder. 7. At the time of admission of the Second Appeal the followingsubstantial questions of law was framed: Question of Law in S.A.No.1078 of 1994a) Whether the plaintiff is entitled to the suit property byprescription when admittedly the plaintiff and the defendant areco-sharers and when in law there cannot be any adverse possessionagainst co-owner?b) Whether the judgement and decree of the lower appellate courtare sustainable in law when the lower appellate court has failedto frame necessary points for determination as required underOrder 41, Rule 31 of C.P.C.?c) Whether the courts below erred in law and misdirectedthemselves in holding that the plaintiff has perfected his rightover the entire suit property by adverse possession whenadmittedly the defendant and his father have been in possessionand enjoyment of 'B' schedule property for more than thestatutory period by personally cultivating the same and paying https://hcservices.ecourts.gov.in/hcservices/ kist?d) Whether in law the judgement and decree of the courts belowsustainable when they have failed to appreciate the oral anddocumentary evidence record in their proper perspective?e) Whether in law the defendant is entitled to castern 55 1/2cents in the suit property by adverse possession when he and hisfather have been in open, continuous and uninterrupted possessionand enjoyment of the said portion of the suit property for morethan the statutory period eversince the allotment of the same inthe family partition?Question of Law in S.A.No.1079 of 1994a) Whether the courts below erred in law and misdirectedthemselves in holding that the plaintiff is entitled to the suitproperty by adverse possession when the plaintiff claims to theproperty as if he has purchased the same orally as in law onecannot claim absolute right as well as right by prescriptionsimultaneously?b) Whether the judgement and decree of the lower appellate courtare sustainable in law when the lower appellate court has failedto frame necessary points for determination as required underOrder 41, Rule 31 of Code of Civil Procedure? c) Whether the courts below erred in law and misdirectedthemselves in holding that the plaintiff has perfected his titleover the entire suit property by adverse possession whenadmittedly the defendant and his father have been in possessionand enjoyment of 77 cents on the Western side in S.No.87/6 formore than the statutory period in their own right by personallycultivating the same and paying kist? d) Whether in law the judgement and decree of the courts beloware sustainable when they have failed to appreciate the oral anddocumentary evidence on record in their proper perspective?"Question of Law in S.A.No.1080 of 1994a) Whether the courts below erred in law and misdirectedthemselves in holding that the defendant is entitled to the landsin S.No.87/6 by adverse possession when the plaintiff put forwardhis claim as if he has purchased the same orally as in law onecannot claim absolute right as well as right by prescriptionsimultaneously?b) Whether the defendant is entitled to the lands in S.No.106/1by prescription when admittedly the plaintiff and the defendantare co-sharers? c) Whether the courts below erred in law and misdirectedthemselves in holding that the defendant has perfected his titleover the entire suit properties by adverse possession?d) Whether the judgement and decree of the lower appellate courtare sustainable in law when the lower appellate court has failedto frame necessary points for determination as required under https://hcservices.ecourts.gov.in/hcservices/ Order 41, rule 31 C.P.C.?e) Whether in law the judgement and decree of the courts beloware sustainable when they have failed to appreciate the oral anddocumentary evidence on record in their proper perspective?"8. In respect of Survey No.106/1A subject matter of suit inO.S.No.1380 of 1980 both the courts below have found that the plaintiffMunusamy Gounder has purchased the said property to the extent of 1.13acres of land under Ex.A.1 sale deed dated 24.02.1928, after the familypartition which took place in 1926 and the plaintiff’s property to thesaid extent of 1.13 acre is on the Northern side of the total extent of2.24 acres of land while the Southern side to the extent of 1.13 acres ofland has been purchased by Lakshmana Gounder on the same date, namely,24.02.1928 marked as Ex.A.33 and from the date of the said purchase by theplaintiff under Ex.A.1 he has been in absolute possession of the propertyby paying kist and everything in respect of the land and holding that theplaintiff has purchased the said property from out of his own income andalso finding categorically that the defendant has not produced anydocument to show otherwise, that the plaintiff’s witnesses have statedabout the continuous possession of the plaintiff in Survey No.106/1A andboth the courts have come to the conclusion that the plaintiff is entitledfor the decree of declaration and possession in respect of 22 cents inSurvey No.106/1A which was mentioned as A Schedule and the encroachment of22 cents mentioned in B Schedule in O.S.No.1380 of 1980. 9. Likewise in respect of Survey No.87/6, subject matter of suit inO.S.No.1381 of 1980 on appreciation of evidence both the courts below havefound that the father of the defendant Kista Gounder has given 44 cents ofland by oral sale to the plaintiff and from the said date on wards theplaintiff has been paying the kist and everything and that was related toEx.A.31 sale deed executed by the defendant’s father in favour of theplaintiff and on that basis both the courts have come to the conclusionthat in Survey No.87/6 the plaintiff is entitled for 1.18 acres anddecreed the said suit in O.S.No.1381 of 1980 and consequently dismissingthe suit filed by the defendant in O.S.No.l388 of 1980 in respect of thesaid two items of properties. 10. In these appeals it is seen that the respondents 1,3 and 5 havebeen served and there is no appearance and in respect of respondents 6 and7 the appeal was already dismissed by the order dated 28.09.2007. Inrespect of respondents 2 and 4 even though it is stated that they havedied no steps taken and therefore, the appeal is dismissed as against R2and R4. 11. A perusal of the First Appellate Court judgement would show thatin fact the first Appellate Courts has framed the points for considerationand discussed the same in detail and therefore, no question of violationof Order 41 and Rule 31 of Code of Civil Procedure. On the factualposition, both the courts below have found that in respect of Survey https://hcservices.ecourts.gov.in/hcservices/ No.87/6 the defendant’s father has given 44 cents by oral sale in favourof the plaintiff and thereafter the plaintiff has been enjoying for morethan statutory period and perfected a title by adverse possession. 12. In view of the above said factual position there is nosubstantial question of law involved and therefore, the Second Appealsfail and the same are dismissed. No Costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.nbjTo1. The Subordinate Judge, Tiruvannamalai.2. The District Munsif, Tiruvannamalai.3. The Record Keeper, VR Section, High Court, Madras.+ 1 CC To Mr. P.Mani, Advocate SR NO.21418S.A.No.1078 of 1994vc[co]Gp/28.5.