Kannammal v. 1.Ayyanan2.Narayanan3.Kuppusamy4.Arumugam5.Kittan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 18.09.2007CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMSecond Appeal No.983 of 2007Kannammal .. Appellant-Vs-1.Ayyanan2.Narayanan3.Kuppusamy4.Arumugam5.Kittan .. RespondentsAPPEAL filed under Section 100 of Code of Civil Procedure againstthe judgment and decree, dated 16.12.2006, made in A.S.No.21 of 2005on the file of the Principal Subordinate Judge, Gopichettipalayam,confirming the judgment and decree dated 13.4.2006 made inO.S.No.389 of 2004 on the file of the District Munsif,Sathyamangalam. For Appellant : Mr.M.S.Velusamy J U D G M E N TThe unsuccessful plaintiff in O.S.No.389 of 2004 on the file ofthe District Munsif Court, Sathyamangalam, who lost the first appealin A.S.No.21 of 2005 on the file of the Principal Subordinate Court,Gopichettipalayam has filed the above second appeal.2. For the sake of convenience, the parties are referred to asper their ranking in the suit.3. The case of the plaintiff is as follows:The first defendant is the brother of the plaintiff and thedefendants 2 to 5 are the children of the first defendant; theplaintiff has another brother by name Kodiyan and three otherbrothers died after their marriage; the suit property originallybelonged to the plaintiff's mother and in a family arrangement, thesame was allotted to the plaintiff in 1970; the plaintiff is inpossession of the suit property for the past 34 years by payingkist. The defendants are not willing to abide by the familyarrangement. They are only entitled for 1/6th share in the suit https://hcservices.ecourts.gov.in/hcservices/ property, but, the defendants are trying to encroach into the entireproperty. Hence the suit.4. The suit was contested by the defendants inter aliacontending as follows:The suit property has not been properly described in the plaintschedule; Survey No.5/1B measuring to an extent of 1.61 hectaresbelongs to the first defendant; the first defendant's wife name isKaruppayee and the name of the plaintiff's mother is also Karuppayeeand taking advantage of the similarity in the name, the plaintiff ismaking a false claim towards the suit property; the familyarrangement pleaded by the plaintiff is not true; in 1970 theplaintiff was only 16 years old and there was no family arrangementas pleaded by the plaintiff; the claim of the plaintiff that she wasin possession of the suit property for 34 years is false; thealleged trespass by the defendant is false; the plaintiff is not inpossession of the entire suit property whereas the first defendantis in possession of the same; the first defendant has been issuedwith Patta No.424 and the first defendant is paying the kist; thereis no cause of action for the suit and on the above said pleadings,the defendants prayed for dismissal of the suit.5. After framing appropriate issues, the suit was taken up fortrial and during trial, on the side of the plaintiff, the plaintiffwas examined as P.W.1 and one Adaikan was examined as P.W.2, but, ashe did not subject himself for cross-examination, his evidence hasnot been taken into consideration and on the side of the plaintiff,Exhibits A1 to A11 were marked. On the side of the defendants, firstdefendant has been examined as D.W.1 and one Kuppusamy has beenexamined as D.W.2 and Exhibits B1 to B.4 have been marked. TheTrial Court on a careful consideration of the oral and documentaryevidence adduced in the case, held that the plaintiff is not inpossession of the suit property and dismissed the suit. Beingaggrieved by that, the appellant has filed an appeal in A.S.No.21 of2005 on the file of the Principal Subordinate Court,Gobichettipalayam. The lower Appellate Court also on an independentconsideration of the evidence on record and the reasoning of thetrial court agreed with the findings of the trial court anddismissed the appeal. Being aggrieved by that, the appellant isbefore this Court in the above second appeal.6. Heard Mr.M.S.Velusamy, learned counsel for the appellant.7. In the memorandum of second appeal the following questionsof law have been framed as substantial questions of law:-"1. Whether the Courts below are right inconsidering the Exhibits A1 to A11 in a perspectivemanner? https://hcservices.ecourts.gov.in/hcservices/

2. Whether the Courts below are right in sayingthat Ex.A.3 is not relating to the suit property?3.Whether the reason for rejecting the Ex.A.3by the Courts below are correct in law?4.Whether the Courts below is correct inrejecting the Ex.A.1 to Ex.A.11, which proved theabsolute possession and enjoyment of the appellant?5.Whether the non-mentioning of theboundaries of the suit property is having anyrelevance over the issue of the identity, when theappellant had properly and correctly proved theidentity of the suit property?8. The learned counsel appearing for the appellant submittedthat the Courts below have not properly considered the evidence onrecord; the Courts below are not right in rejecting the Ex.A.3 Pattaissued in the name of the plaintiff and six others. The learnedcounsel further submitted that in Ex.A.3, the names of thedefendants are not mentioned. Except the above said submission, noother submission has been made.9.I have carefully considered the submissions made by thelearned counsel for the appellant and perused the materialsavailable on record and the judgments of the Courts below. 10.The Trial Court has pointed out that the suit property hasnot been properly described by the plaintiff in Ex.A.1 and in Ex.A.1not only the name of the Karuppayee is mentioned, the names of threeothers are also mentioned. Similarly, in Ex.A.3 patta also, besidesthe name of the plaintiff, the names of seven other persons havebeen mentioned and on that basis, the Trial Court has observed thatthe patta in respect of the suit property has not been issued in thename of the plaintiff alone. On perusal of Ex.A4 to A.9, the TrialCourt has pointed out that in the said documents, the name of theplaintiff's brother Kodiyan alone is mentioned and the name of theplaintiff is not mentioned. In Ex.A.10 Adangal also besides thename of the plaintiff, the names of others have also been mentioned.The Trial Court has rightly pointed out that the Revenue Recordscannot be considered to be a title deeds. The Trial Court on aconsideration of a oral and documentary evidence adduced on the sideof the plaintiff has recorded a finding that the plaintiff has notproved her case that she is in possession of the suit property rightfrom 1970. Since Ex.A.11 Kist Receipt has been issued after filingof the suit, no importance has been attached to the same. The TrialCourt has pointed out that it is the specific case of the plaintiffthat she claims 1/6th share in the suit property and as such, the https://hcservices.ecourts.gov.in/hcservices/ case that she is in exclusive possession of the suit property for 34years cannot be true.11.The Lower Appellate Court has independently considered theevidence and also the reasonings of the Trial Court. The LowerAppellate Court has pointed out that the plaintiff claims to be inpossession of the suit property for 34 years and now the age of theplaintiff is 50 years and as such, if the claim of the plaintiff isto be accepted, she should have obtained possession of the suitproperty, when she was 16 years old and therefore, the LowerAppellate Court has pointed out that such a claim of the plaintiffis not believable. The Lower Appellate Court has also pointed outthat the plaintiff has not produced any acceptable documents toprove her possession for 34 years. Further, the suit property hasnot been properly described with four boundaries. Hence, injunctioncannot be granted as prayed for by the plaintiff.12.Thus, it could be seen that both the Courts below haveconsidered the entire evidence on record and recorded that theplaintiff has not proved her possession in the suit property. In asuit for injunction, unless the plaintiff proves her possession, sheis not entitled to get injunction. Therefore, this Court whileexercising power under Section 100 CPC, cannot re-appreciate theevidence and come to a different conclusion. A perusal of thejudgment of the Courts below shows that both the courts below havecarefully considered the oral and documentary evidence adduced bythe parties and recorded a concurrent finding that the plaintiff hasnot proved her possession of the suit property for 34 years andaccordingly, dismissed the suit. Hence, this Court finds no reasonto interfere with such concurrent findings of fact. The abovequestions of law framed in the memorandum of grounds of secondappeal in the considered view of this Court cannot be considered assubstantial questions of law and except the above said submission,no other submission touching upon any substantial questions of lawwere advanced and this Court finds no reason to interfere with thejudgment and decree of the courts below. Hence, the above secondappeal fails and the same is dismissed. However there will be noorder as to costs.13.At this juncture, the learned counsel appearing for theappellant submitted that since the Courts below have made certainobservations regarding the family arrangement pleaded by theplaintiff, unless such observations are deleted, it will affect theright of the plaintiff in seeking proper relief to declare her titletowards the suit property.14. In the decision reported in AIR 2007 Supreme Court 900(Ramji Rai and another v. Jagadish Mallah (Dead) through L.Rs. andanother), the Apex Court has held that there can be a suit only forinjunction and in a suit for bare injunction, if the plaintiffs have https://hcservices.ecourts.gov.in/hcservices/ failed to show that they were in possession, the suit is liable tobe dismissed and any observation regarding title of the plaintiff isunwarranted. Therefore, the above request of the counsel for theappellant has to be considered in the light of the above saidobservation of the Apex Court. Though the plaintiff has based herclaim on the family arrangement pleaded, the suit has been dismissedmainly on the ground that the plaintiff has not proved herpossession and as such the observations that have been made by theCourts below on the family arrangement will not stand in the way ofthe plaintiff seeking declaration of her title to the propertybefore a competent court. With the above observation, the SecondAppeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsiTo1. The Principal Subordinate Judge, Gopichettipalayam.2. The District Munsif, Sathyamangalam.S.A.No.983 of 2007KA (CO)GSK 31.10.2008.