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Kalyani, Rep. by her Power Agent, Sankaran, Thiruvarur v/s Bhuvaneswari, Rep. by her Power Agent, Sudha Ka. Porchezhiyan, Thiruvarur

    S.A. No. 1311 of 2008

    Decided On, 16 March 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAVINDRAN

    For the Appellant: P.T. Rama Devi, Advocate. For the Respondent: A. Ilango, Advocate.



Judgment Text

(Prayer: The second appeal has been filed under Section 100 of C.P.C. against the judgment and decree dated 02.06.2008 passed in A.S.No.33 of 2007 on the file of the Subordinate Court, Mannargudi, reversing the judgment and decree dated 22.11.2007 passed in O.S.No.80 of 2003 on the file of the District Munsif Court, Thiruthuraipoondi).

1. Challenge in this second appeal is made to the judgment and decree dated 02.06.2008 passed in A.S.No.33 of 2007 on the file of the Subordinate Court, Mannargudi, reversing the judgment and decree dated 22.11.2007 passed in O.S.No.80 of 2003 on the file of the District Munsif Court, Thiruthuraipoondi.

2. The second appeal has been admitted on the following substantial questions of law:

"a. Whether the first appellate Court right in reversing the judgment of the trial Court, without framing necessary issues and giving reasons for reversing the judgment in total violation of Order 41 Rule 31 C.P.C.?

b. Whether the Court below right in holding that the appellant/Defendant admitted the possession of the plaintiff/respondent in total misreading of evidence and the finding is perverse and liable to be set aside?"

3. Considering the scope of the issues involved in the matter as regards the subject matter between the parties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

4. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

5. Suit for permanent injunction.

6. The parties are not in issue that the suit property originally belonged to the plaintiff's grandfather Ponnudurai Pillai and the same could also be evidenced from the sale deed marked as Ex.A2. From the relinquishment deeds marked as Exs.A3 to 5, it is found that the daughters of Ponnudurai Pillai had relinquished their right and interest in respect of the suit property in favour of their brothers and therefore, for claiming title to the suit property, the plaintiff mainly relies upon the abovesaid documents. The document marked as Ex.A6 is the transfer of patta in the name of the plaintiff and one Kandasamy. The kist receipt has been marked as Ex.A7 and the house tax receipt and the electricity receipts have been marked as Exs.A10, A11, A12, A13 & A14. On the basis of the abovesaid set of documents, the plaintiff claims to be in the possession and enjoyment of the suit property. According to the plaintiff, inasmuch as the defendant attempted to interfere with her possession and enjoyment, she has been necessitated to institute the suit against the defendant for the relief of permanent injunction.

7. The defendant having admitted that the suit property originally belonged to the plaintiff's grandfather Ponnudurai Pillai, would only raise the plea that the plaintiff's grandfather had given the suit property to her father-in-law Kandasamy and based on the enjoyment of the suit property by Kandasamy, the patta had been issued in his favour and on that footing, the defendant would put forth the case that it is only she, who is in the possession and enjoyment of the suit property.

8. Considering the materials placed on record, both oral and documentary on the part of the plaintiff through PW1 and the documents marked as Exs.A1 to A14 and the evidence adduced by the defendant through DWs 1 to 3 and the documents marked as Exs.B1 to B14 as well as Exs.C1 & C2, the trial Court was pleased to dismiss the plaintiff's suit. On appeal by the plaintiff, the first appellate Court has set aside the judgment and decree of the trial Court and by way of allowing the appeal preferred by the plaintiff, granted the relief in favour of the plaintiff. Challenging the same, the second appeal has been laid by the defendant.

9. As above pointed out, the plaintiff claims title to the suit property through her grandfather Ponnudurai Pillai. Whereas, according to the defendant, Ponnudurai Pillai, who is admittedly the original owner of the suit property, had given the same to her father-in-law Kandasamy and thereby, she is in the possession and enjoyment of the suit property. However, as rightly held by the first appellate Court, the defendant has not come forward with the specific plea as to how her father-in-law had obtained title to the suit property, whether the same had been gifted in his favour by Ponnudurai Pillai or obtained by way of sale and when she has not come forward clearly as to how come her father-in-law had derived title to the suit property, the claim of title, possession and enjoyment of the suit property by the defendant through her father-in-law does not merit acceptance as determined by the first appellate Court.

10. The defendant seems to have mainly relied upon the boundary recitals contained in Ex.B2 and on that basis, would put forth the claim that the suit property is the property of her father-in-law. However, when as above pointed out, the defendant has not come forward as to how her fatherin- law had acquired the suit property and when no document of title is forthcoming on the part of the defendant pointing to the same, the reliance on the boundary recitals found in Ex.B2 on the part of the defendant for claiming title to the suit property and for contending that consequentially, it is only the defendant, who is in the possession and enjoyment of the suit property, as such, cannot be countenanced in any manner and the same had been rightly rejected by the first appellate Court.

11. The first appellate Court has also considered the evidence of DWs2 & 3 and when DW2, in particular, is unable to say anything about in his alleged affidavit marked as Ex.B14 and when he pleads complete ignorance about Ex.B14 and further having admitted that he had not appeared before any advocate for Ex.B14 and when he has clearly admitted that he has not run any shop in the suit property during 2003, as rightly held by the first appellate Court, the evidence of DW2, as such, cannot be accepted in any manner and similarly, the genuineness of Ex.B14 also cannot be sustained. Similar is the evidence of DW3, who would only depose that the suit property had been prima facie given to Kandasamy by the original owner Ponnudurai Pillai. It is thus noted that even as per the version of DW3, Ponnudurai Pillai had not transfered his right, interest qua the suit property in favour of Kandasamy, the father-in-law of the defendant. Therefore, as rightly concluded by the first appellate Court, the defendant has miserably failed to establish her claim of title, possession and enjoyment of the suit property.

12. On the other hand, as above pointed out, when the plaintiff has based her title to the suit property through the lawful owner Ponnudurai Pillai and when it is also noted that the patta had been effected only in favour of the plaintiff and the plaintiff has also filed the other documents evidencing her possession and enjoyment of the suit property, in such view of the matter, the defendant is found to be not entitled to disturb the plaintiff's possession and enjoyment of the suit property without establishing her claim of title, possession and enjoyment of the suit property.

13. To cap it all, DW1 the husband of the defendant has clearly admitted that during the course of cross examination, he and one Narayanan had laid the suit qua the suit property in O.S.No.35 of 2006 for declaration and possession and considering the abovesaid evidence tendered by DW1, inasmuch as the suit property is not in the possession of the defendant and her men at any point of time and accordingly, the suit in O.S.No.35 of 2006 has also come to be laid by the defendant's husband. The first appellate Court is found to be justified in placing reliance upon the abovesaid admission of DW1 for upholding the plaintiff's claim of possession and enjoyment of the suit property. Therefore, it is found that the first appellate Court has not misread the evidence adduced by the parties in the matter and on the other hand, had correctly appreciated the oral and documentary evidence projected by the respective parties in the matter and come to the conclusion that the defendant herself having admitted the plaintiff's possession and enjoyment of the suit property and furthermore, when there is no acceptable and reliable material on the part of the defendant to hold that it is she, who is in the possession and enjoyment of the suit property at any point of time and when the defendant's claim of title to the suit property by way of adverse possession having not been substantiated with acceptable and reliable materials, all put together, the first appellate Court is justified in upholding the plaintiff's case by setting aside the judgment and decree of the trial Court.

14. The contention has been raised that the first appellate Court has not formulated the various points for determination while disposing the first appeal. However, as rightly contended by the plaintiff's counsel, considering the reasonings and conclusions of the first appellate Court, the first appellate Court has adverted to the facts and the issues between the parties in its judgment under the main point for determination and accordingly, after analysing the evidence let in by the respective parties both oral and documentary in detail rightly concluded that it is only the plaintiff, who is in the possession and enjoyment of the suit prop

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erty lawfully and that the defendant has not established her title as well as the possession and enjoyment of the suit property in any manner and therefore, the contention raised by the defendant's counsel that the first appellate Court has erroneously setting aside the judgment and decree of the trial Court cannot at all be accepted in any manner. 15. For the reasons aforestated, in my considered opinion, no substantial questions of law is involved in the second appeal. Be that as it may, the substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiff and against the defendant. In conclusion, the judgment and decree dated 02.06.2008 passed in A.S.No.33 of 2007 on the file of the Subordinate Court, Mannargudi, reversing the judgment and decree dated 22.11.2007 passed in O.S.No.80 of 2003 on the file of the District Munsif Court, Thiruthuraipoondi, are confirmed and resultantly, the second appeal is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
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