IN THE HIGH COURT OF JUDICATURE AT MADRAS          

DATED: 10/09/2005

CORAM  

THE HON'BLE MR.JUSTICE M.CHOCKALINGAM          

S.A. NO.192 OF 1994

Rameswari
(Legal representative of the
first defendant impleaded
after the disposal of the suit)         ..  Appellant

-Vs-

1.R.Arumugham  
2.Gnanammal  
3.Samundeeswari
4.Sumathi (minor)
5.Jayakanthan (minor)
6.The Executive Officer,
  Kurichi Town Panchayat
  Pothanur Post,
  Coimbatore
  (RR4 and 5 minors
   rep. by Guardian R2)                         ..  Respondents

        This appeal is preferred under Section 100 CPC  against  the  judgment
and  decree  dated  20.12.1993  made  in  AS  No.2  of 1990 on the file of the
Principal Subordinate Judge, Coimbatore, reversing  the  judgment  and  decree
dated  17.11.1987  made  in  OS  No.75  of  1981  on the file of the Principal
District Munsif, Coimbatore.

!For Appellant :  Mr.T.R.Rajaraman

^For Respondents:  Mr.S.S.Mathivanan
                for M/s.V.V.Lakshmi Puh
                for RR1 to 5
                Mr.N.Subburayalu for R6

:JUDGMENT  

        This second appeal has been brought forth from  the  judgment  of  the
learned  I  Additional  Subordinate Judge, Coimbatore made in AS No.2 of 1990,
wherein the judgment of the trial court, namely  District  Munsif,  Coimbatore
made in OS No.75 of 1981 for permanent and mandatory injunction was reversed.

        2.The  plaintiffs/respondents  filed a suit seeking the said relief of
permanent injunction against the  first  defendant  and  mandatory  injunction
against the second defendant with following allegations:
        The  first  plaintiff  purchased  the  property  by a sale deed, dated
25.6.1945 under Ex.A.1 and from that time onwards, he was  in  continuous  and
uninterrupted possession  of the same.  Originally, there was an old house and
the same was demolished in the year 1957.  He  obtained  necessary  permission
from  the  second defendant Town Panchayat and he made certain modification in
the house and continue to enjoy the same.  While so, the first defendant  made
an  attempt  to trespass into the property three months prior to the filing of
the suit, but the same was thwarted.  In  view  of  the  old  age,  the  first
plaintiff was  living  with his son, who is having a residence nearby.  Taking
advantage of the said situation, the first  defendant  attempted  to  trespass
into the property.  Under the stated circumstances, the first plaintiff issued
notice, which  resulted in reply notice with false allegations.  The plaintiff
filed a plan for approval before the  second  respondent  Town  Panchayat  for
construction  of  a  house  and for the untenable objections made by the first
defendant, the second defendant has not issued approval yet.  Under the stated
circumstances, there arose a cause of action for the plaintiff to file a  suit
for  permanent  injunction  against the first defendant and also for mandatory
injunction against the second defendant, directing him to issue approval for a
new construction proposed by the plaintiff.

        3.The suit was resisted  by  the  first  defendant  stating  that  the
plaintiff  had  no  right  or interest over the properties, in question and it
belonged to the  first  defendant;  that  the  properties,  in  question,  are
situated  abutting  the  first  defendant's property and that these two plots,
which are situated on the West and North, formed part of the first defendant's
property and he has been in enjoyment of the same  all  along  and  under  the
stated  circumstances,  it  is a false case preferred by the plaintiff and the
plaintiff is not entitled for the reliefs asked for.    The  second  defendant
remained ex parte.

        4.Pending suit, the first plaintiff died and her legal representatives
were added  as  plaintiffs 2 to 7.  Likewise, the first defendant died and her
legal representative was added as third defendant.   The  trial  court  framed
necessary issues.  On trial, the suit was dismissed.  Aggrieved the plaintiffs
took it  on  appeal in AS No.2 of 1990.  On enquiry, the first appellate Court
reversed the judgment of the trial court and granted decree in favour  of  the
plaintiffs.  Hence, this second appeal at the instance of the third defendant,
who was added as legal representative of the first defendant.

        5.At the time of admission, the following substantial questions of law
were formulated for consideration:
        "1.When   the  boundary  description  found  in  the  plaintiffs'  own
documents namely Ex.A-2 and Ex.A-11 and the oral evidence of P.Ws.2 and 3  are
clear  that  the  defendant is entitled to the property in the eastern side of
the plaintiffs, is not the learned Subordinate Judge wrong  in  decreeing  the
suit  in  toto  depriving  the  defendant's well recognised right and title in
respect of the portion to suit property in front of her own house?
        2.Is the learned Principal Subordinate Judge right  in  decreeing  the
suit  based  on Ex.A-1 when it is not established how the vendors who executed
the document Ex.A-1 derived their title to the suit properties?
        3.Is the learned Principal Subordinate Judge right  in  accepting  the
measurements  found  in  the  documents  without  adverting  to the well known
principle of law that the boundary will prevail over the extent?
        4.When the documents Ex.B-1  and  the  oral  evidence  of  defendant's
witnesses  and  plaintiff's  witnesses clearly establish that the defendant is
entitled to the portion of suit property, in front of her house and  that  the
same  is  being  enjoyed by the defendant as per separate lane, is the learned
Principal Subordinate Judge wrong in negativing the case of the defendant?
        5.When the plaintiffs plead adverse possession,  is  not  the  learned
Principal Subordinate Judge wrong in decreeing the suit without any proof that
the  plaintiffs  are  in  exclusive  possession  of the suit properties to the
knowledge of the defendant for more than the suit property?"

        6.This Court has heard the learned counsel for the appellant and  also
the respondents.

        7.As  could  be  seen  above,  it  was a suit for permanent injunction
against the first defendant, whose legal representative  was  added  as  third
defendant   and   mandatory  injunction  against  the  second  defendant  Town
Panchayat.  The case of the plaintiffs was that the first plaintiff  purchased
the  property,  in  question,  in  the  year 1945 under Ex.A.1 sale deed; that
originally, there was a house property and he made certain modification in the
year 1957 on permission granted by the second defendant and  he  has  been  in
continuous  enjoyment  of the same; that taking advantage of the fact that the
property of the first defendant is situated abutting  the  suit  property,  he
attempted  to  interfere  with  the  possession and enjoyment and the same was
thwarted.  Before filing the suit, the first plaintiff  filed  an  application
before  the second defendant, seeking permission for a new construction in the
site belonged to him, but on the untenable  objections  raised  by  the  first
defendant, the  second  defendant  has  not  issued  approval.    The case was
resisted by the first defendant stating that the suit property did not  belong
to the  first  plaintiff,  but it belonged to the first defendant.  The second
defendant remained ex parte.

        8.This Court made a thorough scrutiny of the materials available.  The
first plaintiff has sought for the relief of permanent injunction against  the
first  defendant,  stating  that he purchased the property under Ex.A.1 in the
year 1945 and he got title to the property  and  he  has  been  in  continuous
possession of  the  same.    The first appellate Court has clearly pointed out
that both the description of the property under Ex.A.1  and  the  property  in
respect  of  which the relief was sought for, on comparison, found to be same.
Apart from that, in the instant case, originally there was an occasion for the
first plaintiff to file an application before the  second  defendant  and  got
permission for  modification.    Insofar  as  the  first  defendant's case was
concerned, there was a denial of title of the plaintiff.  From  the  available
materials,  it could be seen that the suit properties are situated on the West
and North of the first defendant's property and the first defendant, as D.W.1,
has categorically admitted that originally, the first plaintiff's property  is
a  house  and  the same was situated on the West of his house and the property
covered under Ex.B.1 is situated on the East of the suit property and thus, it
was a clear admission made by the first defendant at the time  of  examination
in Court.

        9.Added  circumstance  is  that  it  was  brought to the notice in the
judgment of the first appellate court that  though  the  first  defendant  has
claimed  that  the  property belonged to him and he is having his house and he
has been paying tax, he has not produced any receipt  in  that  regard.    The
learned  counsel  for  the  appellant  would  submit  that the application for
appointment of Commissioner was filed by the first defendant and the same  was
dismissed.   If  the first defendant was aggrieved over the order of dismissal
of the said application  for  appointment  of  Commissioner,  he  should  have
approached this  Court by filing revision, but not done so.  Equally, when the
suit was originally filed, no door number was  given  by  the  plaintiff,  but
subsequently an application for amendment was filed to include the door number
and on  contest, the application was allowed.  The plaint was also amended and
the door number was included.  The first appellate Court  has  marshalled  the
evidence proper and has come to the conclusion that the property, in question,
belonged to  the plaintiff.  On perusal of the materials available, this Court
is of the considered opinion that the judgment of the  first  appellate  Court
has got  to  be  sustained.    This  Court  is  unable to notice any reason to
interfere with the judgment of the first appellate court and the second appeal
has got to be dismissed.

        10.In the result, this second appeal is dismissed, leaving the parties
to bear their costs.

Index :  Yes
Internet :  Yes

vvk

To

1.The Principal Subordinate Judge,
Coimbatore.

2.The Principal District Munsif,
Coimbatore.