Srinivasan v. Kunju

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.4.2008C O R A MThe Honourable Mr. Justice M.JAICHANDRENS.A.No.130 of 1996Srinivasan .. AppellantVersusKunju (died)2.Pushpavalli3.Sakthivel4.Malathi5.Kalavathi6.Valarmathmi7.Revathi(RR2 to 7 are brought on recordas legal representatives of the deceasedsole respondent vide order of this Courtdated 8.3.2007 made in C.M.P.Nos.17582 to17584 of 1999) .. RespondentsPRAYER: This second appeal has been filed u/s 100 ofC.P.C. against the judgment and decree dated 30.8.1995 inA.S.No.65 of 1994 on the file of the Court of SubordinateJudge, Mayiladuthurai reversing the Judgment and Decreedated:11.3.94 in O.S.No.167/90 on the file of theDistrict Munsif, Sirkali. For Appellant : Mrs.P.Srividhya For Respondents : Mr.A.Gouthaman for R2 to R7 J U D G M E N TThis second appeal has been filed against the judgment anddecree, dated 30.8.1995, made in A.S.No.65 of 1994, on the file ofthe Subordinate Judge, Mayiladuthurai, reversing the judgment anddecree, dated 11.3.1994, made in O.S.No.167 1990, on the file of theDistrict Munsif, Sirkali. https://hcservices.ecourts.gov.in/hcservices/

2. The plaintiff had filed a suit in O.S.No.167 of 1990, on thefile of the District Munsif Court, Sirkali, praying for the relief ofpermanent injunction with regard to A schedule property and for therelief of recovery of possession with regard to B schedule propertyas described in the plaint.3. The defendant in the suit is the appellant in the presentsecond appeal. 4. For the sake of convenience, the parties are referred to asthey have been arrayed in the original suit O.S.No.167 of 1990. 5. The facts of the case, as stated by the plaintiff, are asfollows:The suit property in survey No.341, having an extent of 0.66cents in Madirvelur village, belongs to MadhaliswaraswamiDevasthanam. The plaintiff has been cultivating the suit property formany years as a recorded tenant. The defendant had illegallyencroached on the suit property by setting up a Cycle Shop in thesaid property. Further, in spite of the defendant acknowledging therights of the plaintiff in the suit property, he had trespassed intothe B schedule property to an extent of 1 cent. In suchcircumstances, the plaintiff has filed the suit praying for thereliefs as stated therein.6. In the written statement filed by the defendant, the claimsmade by the plaintiff are denied. The fact that the suit property issituated in Madirvelur village has not been disputed. The defendanthad further stated that the suit property does not belong toBalaviswaraswami Devasthanam. The plaintiff had filed the suit withthe wrong intention of taking illegal possession of 3 cents of landunder the possession and enjoyment of the defendant for the past 20years. The defendant is living in a hut put up in 2 cents of land inS.No.342 and 1 cent of land in S.No.341 belonging to ArulmiguMadhaliswaraswami Devasthanam for the past 20 years paying PanchayatBoard Tax. Thus, the defendant has all rights to reside in the saidproperty. The defendant is a poor agricultural coolie and he and hiswife are eking out their livelihood by having a petty shop. Theplaintiff has filed the suit with the unlawful intention ofdispossessing the property from the defendant. The defendant isresiding in the hut along with his family members. He has put up thehut spending a sum of Rs.5,000/-, approximately, and the defendanthas also obtained electricity connection. The Government has alsoprovided an electricity lamp for the use of the defendant. https://hcservices.ecourts.gov.in/hcservices/

7. Based on the pleadings, the trial Court had framed thefollowing issues for consideration:-"1. Whether the plaintiff was in possession ofthe suit property on the date of filing of thesuit?2. Whether the defendant is entitled to thebenefit of tenancy Act?3. Whether the plaintiff is entitled to therelief of injunction as prayed for?4. What reliefs the plaintiff is entitled to?"8. The additional issues framed by the trial Court are asfollows:"1. Whether the plaintiff is entitled torecovery of possession with regard to B scheduleproperty?2. Whether the plaintiff has obtained titleto the suit properties?3. Is there a cause of action for the suit?"9. The trial Court, after analysing the evidence adduced onbehalf of the plaintiff as well as the defendant, had dismissed thesuit holding that the defendant has not encroached into the land inthe possession of the plaintiff and the trial Court had also heldthat the plaintiff is in possession of the land under his cultivationand the defendant is entitled to the protection of the tenancy lawsto reside in the property in which he is living by putting up a hut.Since it is not shown by the plaintiff that the defendant hasencroached in the B schedule property, the relief of recovery ofpossession sought for by the plaintiff cannot be granted. 10. The trial Court had also found that the plaintiff had filedthe suit without having any cause of action for the same. Thedefendant had shown, by documentary as well as oral evidence, that heis residing in 1 cent of land belonging to MadhaliswaraswamiDevasthanam and 2 cents of land in the Government poramboke byputting up a hut. Thus, it was held that the plaintiff does not havea cause of action to file the suit. In such circumstances, the trialCourt had dismissed the suit. 11. Aggrieved by the said judgment and decree of the trial Court,dated 11.3.1994, made in O.S.No.167 of 1990, on the file of theDistrict Munsif Court, Sirkali, the plaintiff in the suit had filedan appeal in A.S.No.65 of 1994, on the file of the Subordinate Judge,Mayiladuthurai. https://hcservices.ecourts.gov.in/hcservices/

12. Based on the claims made by the plaintiff as well as thedefendant and the evidence available on record, the first appellateCourt, had framed the following points for consideration:-"1. Whether the entire suit property is inthe possession of the plaintiff for 20 years asclaimed by him?2. Whether the plaintiff is entitled to therelief of injunction as prayed for?3. Whether the defendant has constructed abuilding by illegally encroaching on 0.01 cent ofland claimed to be in the plaintiff's possession?Therefore, whether the plaintiff is entitled tothe possession of the property?4. Whether the defendant is entitled to thebenefit of tenancy Act?"13. The first appellate Court had held that the claim of thedefendant that he has been living in the house built in the propertysaid to be in his possession, for nearly 25 years cannot be believed,considering the report of the Advocate Commissioner.14. The first appellate Court had also found from the evidenceavailable on record that the plaintiff had proved his claims bysufficient oral as well as documentary evidence. On the other hand,the defendant has not been in a position to show that he has been inoccupation of the property, said to be in his possession, for a longtime as claimed by him. 15. The first appellate Court had also found that the defendanthad encroached on 0.01 cent in 0.66 cents in the possession of theplaintiff. Thus, the first appellate Court had allowed the appeal byreversing the judgment and decree of the trial Court. 16. Aggrieved by the judgment and decree, dated 30.8.1995, madein A.S.No.65 of 1994, on the file of the Subordinate Judge,Mayiladuthurai, the present second appeal has been filed before thisCourt by raising various grounds.17. The second appeal had been admitted on the followingsubstantial question of law:-"Whether the lower appellate Court erred inlaw in holding that the defendant has trespassedupon B schedule property when the defendant hasproved his possession from 1966 onwards underExhibit B.1 and by the payment of lease amount,electricity charges and property tax?" https://hcservices.ecourts.gov.in/hcservices/

18. The appellant/defendant had stated that the first appellateCourt had erred in not holding that the plaintiff should have provedthat the survey No.341 measuring 0.66 cents was in his possession andthat a portion of the said extent of land was not in his possession. 19. It was also contended that the first appellate Court hadfailed to note that one cent of land described in the B schedulebelongs to Madhaliswaraswami Devasthanam as seen from the lease deedExhibit B.1 and Exhibits B5 to B.8. 20. It was also contended that Exhibits B.2 to B.4 would showthat the defendant has put up a superstructure and has been living inthe property claimed to be in his possession for nearly 25 years.Exhibits B.2 to B.4 shows the payment of electricity charges by thedefendant. While B memo had been issued to the defendant, it is clearthat the defendant is in possession of the poromboke land in which hehas been residing for a long time and that he has been paying theproperty tax for the building in his occupation under Exhibits B.12and B.13. 21. The learned counsel appearing for the respondent/plaintiffhad contended that the first appellate Court had come to the rightconclusion based on the evidence available and it was also contendedthat the plaintiff had sufficiently proved that he is in possessionof A schedule property and that the defendant had encroached in aportion of the B schedule property.22. Based on the submissions made by the the learned counselsappearing for the parties concerned and on a perusal of the recordsavailable, this Court is of the considered view that the firstappellate Court had found that the plaintiff is in possession andenjoyment of the 0.66 cents of land under his cultivation. On theother hand, the defendant has not been in a position to prove that heis in occupation of 0.01 cent in the B schedule property for nearly25 years as claimed by him by putting up a hut and building and bygetting electricity connection. The first appellate Court, based onthe second Commissioner's report, had found that the building said tohave been constructed by the defendant is not old as it is claimed tobe. The defendant had not proved his claims by sufficient evidence toshow that he is in occupation of the portion of the B scheduleproperty for a long time as claimed by him. In such circumstances,the substantial question of law raised on behalf of the defendant isdecided in favour of the plaintiff, who is the respondent in thesecond appeal. 23. For the reasons stated above, this Court finds that there isno ground for interference with the judgment and decree rendered bythe lower appellate Court and therefore, the second appeal stands https://hcservices.ecourts.gov.in/hcservices/ dismissed. Consequently, connected C.M.P.No.729 of 1996 is alsodismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.lanTo:1. The Subordinate Judge, Mayiladuthurai2. The District Munsif, Sirkali,3. The Section Officer, VR Section,High Court, Madras.+ 1 CC To Mr. T.R.Rajaraman, Advocate SR NO.21666+ 1 CC To Mr.S.Viswanathan, Advocate SR NO.21290S.A.No.130 of 1996ck[co]sky/29.4.