(Second Appeal is filed under Section 100 of Civil Procedure Code against the Judgment and Decree, dated 18.06.2018 passed in A.S.No.29 of 2015, on the file of the learned Subordinate Judge, Arakkonam, reversing the Judgment and Decree, dated 07.12.2014 passed in O.S.No.107 of 2004, on the file of the learned District Munsif, Arakkonam.)
1. This appeal is directed against the Judgment and Decree passed in A.S.No.29 of 2015 by the Sub Court, Arakkonam.
2. The unsuccessful plaintiff in O.S.No.114 of 1998 is the appellant herein. The suit was filed for declaration of title of the plaintiff over the suit property and for permanent injunction. It is the case of the plaintiff that the suit property originally belonged to one Ranganayaki Ammal, by virtue of a registered sale deed, dated 15.12.1952 and she was in undisrupted possession and enjoyment of the same. On her death, her legal-heirs acquired the right and enjoyed, thereafter vide registered sale deed dated 29.10.1959, sold it to one Saraswathiammal, who is none other than the plaintiff's mother. She was also in possession and enjoyment of the property and by a registered settlement deed, dated 30.08.1978, her mother Saraswathiammal joining with her husband Bakthavatchalu Naidu, settled the suit schedule property in favour of the plaintiff. As such, she became the absolute owner of the property and she is in possession and enjoyment of the same.
3. It is further averred in the plaint that the plaintiff got building plan approval in the year 1991 and by spending huge amount, she demolished the existing building and constructed the shops in the property in dispute. It is also stated that she has been paying necessary property tax and other taxes for the suit property. While so, on 09.06.1997, the second and third defendants along with their subordinates attempted to demolish the suit mentioned property saying that it was encroached in the streets. It is alleged that the building is in existence in the very same location for more than 60 years and at no point of time, any claim has been made by the defendants and even if there is any encroachment, an opportunity should be given to the plaintiff by serving notice under Section 7 of the Tamil Nadu Land Encroachment Act. But no notice was served on her nor any enquiry was conducted. Hence, she filed a Writ Petition No.8404 of 1997 and as per the order of this Court, dated 07.01.1998, the present suit has been filed. The plaintiff had withdrawn the earlier suit in O.S.No.99 of 1997.
4. The suit was resisted by the defendants disputing and denying the averments made in the plaint. It is contended that the plaintiff is not entitled to the Western portion of the suit property measuring East-West 1.50 meters on the South and 4.10 meters on the North to South, 6.90 meters on the West and 7.40 meters on the East. According to the defendants, this portion was encroached by the plaintiff. The plaintiff was informed about the encroachment when measurement was taken on 05.06.1997. It is also stated that the suit is barred by res-judicata in view of the earlier suit in O.S.No.99 of 1997 and prayed for dismissal of the suit.
5. Based on the above pleadings, necessary issues were framed by the trial Court. In order to prove the case of the plaintiff, she examined herself as P.W.1 and examined her father as P.W.2 and one of the tenants as P.W.3. and marked Exs.A1 to A55. On the side of the defendants, D.W.1 was examined and Exs.B1 to B5 were marked.
6. The trial Court, after analyzing evidence adduced by the parties, decreed the suit. However, the appellate Court reversed the finding of the trial Court and dismissed the suit. Assailing the judgment, the present appeal has been filed.
7. Mr.J.R.K.Bhavanatham, learned counsel for the appellant submitted that the title of the plaintiff in the property was not at all disputed by the respondents, but it was contended that the western portion was encroached in T.S.No.20, which belongs to Highways Department. However, in order to prove the encroachment, except Exs.B1 and B5, no other evidence was produced. It is also argued that as per the approved plan Ex.A19, the appellant constructed superstructure, but the lower appellate Court found deviations without any material. According to the learned counsel, the construction put up by the appellant as per Ex.A19 is of lesser area, though the appellant is entitled for a larger area as per the Ex.A3-settlement deed. It is also argued that the existing drainage channel would show that there is no encroachment on the land of the Highways Department.
8. Per contra Mr.Y.T.Aravind Gosh, learned Government Advocate appearing for the respondents 1 & 2 and Dr.S.S.Swaminathan, learned counsel appearing for the third respondent would urge that the suit was filed for declaration and permanent injunction and hence, the burden of proof is always on the plaintiff to establish her case. It is further argued that nowhere in the plan or in the evidence, it has been stated what was the extent conveyed to the plaintiff and the actual extent in possession and enjoyment of the plaintiff. But, by misquoting the sale deed and settlement deed, which are marked as Exs.A1 and A3, the appellant attempted to intervene at the time of removing the encroachment made in T.S.No.20. It is the contention of the learned counsel for the respondents that the defendants by producing Exs.B1 and B5 proved that the appellant had encroached the land belonging to the Highways Department, but no step was taken by the appellant to prove the construction was made strictly in accordance with Ex.A19 approved plan and there is no encroachment in the road. It is the submission of the learned counsels that the first appellate Court rightly dismissed the suit and no substantial question of law is raised for interference in this appeal.
9. Heard the rival submissions and perused the materials available on record.
10. It is relevant to note that the appellant has framed the following substantial questions of law, however the appeal is not yet admitted and no questions of law framed by the Court. By consent, the main appeal is taken up for final disposal.
"(i) Whether the finding of fact is perverse?
(ii) Whether in the absence of any proof for deviation of approved plan in Ex.A19 the lower Court is right in dismissing the suit?
(iii) Whether the respondents are estopped from making claim for the alleged encroached portion having acquiescence by their own conduct?
(iv) Whether the observations made while disposing of the writ petitions to seek remedy in the civil Court will not affect her right to the construction made by the appellant?
(v) Whether the burden of proof was shifted on the defendants / respondents?"
11. In the instant case from a perusal of the plaint schedule, it is seen that the plaintiff claimed title over the property measuring East to West on the Southern side 51 feet and on the Northern Side 46 feet, North to South on the Western side 25 feet and on the Eastern side 16 feet. As rightly contended by the learned counsel for the respondents, nowhere in the plaint plan, it has been stated that what was the extent originally owned by Ranganayaki Ammal as per the registered sale deed, dated 15.12.1952 and what was conveyed to the subsequent purchasers.
12. The title is sought not only based on title deeds Exs.A1 to A3, but also on the ground of adverse possession. In the written statements, the defendants in clear terms denied the right claimed by the plaintiff and it has been specifically stated that the Western portion of the suit property measuring an extent of 1.50 meters on the South and 4.10 meters on the North to South, 6.90 meters on the West and 7.40 meters on the East was encroached by the plaintiff. It is also stated that the deviation was found out during measurement carried out on 05.06.1997.
13. It is fairly well settled that in a suit for declaration and permanent injunction, the burden is always on the plaintiff to establish his / her case and even if there are loopholes in the case of the defendants, it cannot be taken advantage of by the plaintiff. But, the trial Court wrongly placed the burden of proof on the defendants and decreed the suit holding that the defendants did not file any application for appointment of Advocate Commissioner to prove the encroachment made by the plaintiff in T.S.No.20. The appellant Court, in my view, rightly held that the onus is always on the plaintiff to prove her case and reversed the finding of the trial Court.
14. It is also relevant to note that in the application C.M.P.No.1591 of 2020 taken out by the appellant seeking an order of interim injunction, by consent of both the parties, this Court directed the District Surveyor to conduct survey and file a report. The report filed by the Surveyor and the plan attached to the report would show that the appellant had encroached on the western side of the property, which belongs to the Highways Department. An objection to the Commissioner's report was filed stating that no proper notice was given before conducting survey and the title deeds of the appellant was not verified.
15. Though the issues involved in this Second Appeal are not decided based on the report and plan submitted by the District Surveyor, it is noted only to record the fact of filing of report of the District Surveyor. It is to be noted that the suit was instituted contending that the constructions were made strictly in accordance with the approved plan Ex.A19. The plaintiff had relied on the demand notice and payment of property tax, which are marked as Exs.A4 to A18 to establish her case. In my view, those documents are no way helpful to the case of the appellant as there is no dispute with regard to the existence of building, but the core issue is whether the building is constructed in the patta land of the appellant / plaintiff. On a perusal of records, it is evident that the appellant / plaintiff failed to prove her case. Further, admittedly challenge made to the removal of encroachment was negatived by the writ Court.
16. As rightly pointed out by the appellate Court that mere possession however long does not necessari
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ly means that it is adverse to the true owner. In the matter on hand, no specific averment is made to satisfy the legal requirement to prove the case of adverse possession. 17. Insofar as the contention of the learned counsel for the appellant with regard to existence of drainage channel, the learned counsel wants us to presume that the drainage channel belongs to the municipality, and there can be no encroachment on the land of the Highways. I do not find any substance in the said contention for the reasons firstly there is no pleading and evidence on record to that effect and secondly no material is available to show that at the time of forming the drainage channel proper measurement was carried out. In my considered view, the first appellate Court on proper appreciation of pleadings and evidence rightly non-suited the plaintiff. 18. For the aforesaid reasons, I find no merits in the appeal. No substantial question of law is made out to upset the findings of the Court below. In fine, the Appeal fails and stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.