IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-06-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.565 of 2010 and M.P.No.1 of 2010 S.Pappu .. Appellant (Plaintiff) Versus 1.Anthoni Ammal 2.Mahimai Doss 3.Simiyon 4.Michel 5.Chinnappan .. Respondents. (Defendants) PRAYER: Appeal against the judgment and decree made in A.S.No.19 of 2007, dated 30.9.2009, on the file of the Subordinate Judge, Chidambaram, confirming the judgment and decree made in O.S.No.92 of 2005, dated 12.9.2006, on the file of the Additional District Munsif, Chidambaram. For Appellant : Mr.G.S.Mohan For Respondents: Ms.R.Meenal (R1 & R2) JUDGMENT This second appeal has been filed against the judgment and decree, dated 30.9.2009, made in A.S.No.19 of 2007, on the file of the Subordinate Court, Chidambaram, confirming the judgment and decree, dated 12.9.2006, made in O.S.No.92 of 2005, on the file of the Additional District Munsif Court, Chidambaram. 2. The plaintiff in the suit, in O.S.No.92 of 2005, is the appellant in the present second appeal. The defendants in the said suit are the respondents herein. The plaintiff had filed the suit on the file of the Additional District Munsif Court, Chidambaram, praying for a judgment and decree granting permanent injunction against the defendants 1 and 2 from interfering with the possession and peaceful enjoyment of the suit schedule property in the occupation of the plaintiff and the defendants 3, 4 and 5. https://hcservices.ecourts.gov.in/hcservices/ 3. The plaintiff had stated that the suit property is a fallow land belonging to the Government. The plaintiff and his brothers, who are the defendants 3, 4 and 5 in the suit have been in occupation of the suit schedule property, from the year, 1962. They have spent huge sums of money to improve the land and they have been carrying on cultivation in the said property. Thus, they are having possessory title in respect of the said property. While so, the defendants 1 and 2 were attempting to interfere with the peaceful possession and occupation of the suit property by the plaintiff and the defendants 3, 4 and 5. 4. In the written statement filed on behalf of the first defendant the claims and the allegations made by the plaintiff have been denied. It has been stated that, neither the plaintiff, nor the defendants 3, 4 and 5 have been in possession and occupation of the suit schedule property, at any point of time. The plaintiff had made a false statement stating that huge sums of money have been spent on improving the land by planting trees and making it fit for cultivation. In fact, it is the first defendant and his family members who had planted eucalyptus trees in the year, 1984. The father of the second defendant had spent a huge amount of money in improving the land, after having occupied the same, in the year, 1950. The State Government had also issued `B’ memos to the second defendant, in respect of the said property. He had also paid necessary kist for the said property. 5. The first defendant had taken the suit property, in an auction conducted by the State Government, for a sum of Rs.700/-. The said amount had also been paid, on 20.3.1981. Since, the document regarding the confirmation of auction had not been given to the first defendant, he had made a representation to the authority concerned. While so, the plaintiff had made a representation stating that he was willing to pay Rs.3,150/- for the suit property and therefore, he had requested for the cancellation of the auction. Since, the District Revenue Officer, South Arcot, had cancelled the auction by his order, dated 8.3.1990, a writ petition came to be filed before the High Court of Judicature at Madras in W.P.No.4409 of 1990, challenging the said order. It had also been stated that the suit filed by the plaintiff is based on false documents created for the purpose of filing the said suit. It had also been stated that since, the suit property had been in the continuous possession and enjoyment of the defendants 1 and 2, for a long period of time, the claim made by the plaintiff in the suit, in O.S.No.92 of 2005, is unsustainable in the eye of law. 6. In view of the averments made on behalf of the plaintiff, as well as the defendants 1 and 2, the trial Court had framed the following issues for consideration: https://hcservices.ecourts.gov.in/hcservices/ 1) Whether the claim of the plaintiff that he is in possession and enjoyment of the suit property is true? 2) Whether the claim of the defendants that they are in possession and enjoyment of the suit property is true? 3) What other relief the plaintiff is entitled to?” 7. Based on the evidence available on record the trial Court had come to the conclusion that the plaintiff had not been in a position to show that he was in possession and enjoyment of the suit schedule property, as claimed by him. It had also been noted that, admittedly, the property in question belonged to the State Government. The trial Court had also found that Exs.A-1 to A-5, marked on behalf of the plaintiff, did not relate to the suit property. It was also found that an endorsement had been made by the plaintiff, below the description of the suit property, in the plaint, stating that even though in the `B’ memos issued to the plaintiff, in the year, 1983, the survey number of the property had been shown as S.No.134/3A, the property concerned has been shown as 134/3B in the 1392, 1393 and 1394 adangal copies. 8. It had also been noted by the trial Court that Exs.A-1 to A-5, the kist receipts marked on behalf of the plaintiff, did not relate to the suit property. On the contrary it had been found from the extract of the `A’ register that the property belonged to the State government till it had been auctioned, on 13.3.1981. In fact, the trial Court had come to the conclusion that the defendants were in possession of the suit property, at the relevant point of time. In such circumstances, the trial Court had dismissed the suit filed by the plaintiff, stating that the plaintiff was not entitled to the reliefs sought for by him in the suit, in O.S.No.92 of 2005. Aggrieved by the judgment and decree of the trial Court, dated 12.9.2006, made in O.S.No.92 of 2005, the plaintiff had filed an appeal on the file of the Subordinate Court, Chidambaram, in A.S.No.19 of 2007. 9. The First Appellate Court had framed the following points for consideration: 1) Whether the appeal is to be admitted? Whether the judgment and decree, dated 12.9.2006, made in O.S.No.92 of 2005, is to be set aside? 2) What reliefs the appellant is entitled to? 10. On the basis of the evidence available on record and in view of the averments made on behalf of the appellant, as well as the respondents in the said appeal, the First Appellate Court had confirmed the judgment and decree of the trial Court. At the stage of the first appeal the appellant had marked Exs.A-6 and Ex.A-7. Ex.A-6 is the legal notice sent by the respondents to the https://hcservices.ecourts.gov.in/hcservices/ appellant. Ex.A-7 is the proceedings issued by the District Revenue Officer, South Arcot District. 11. Exs.B-58 to Ex.B-60 had been marked on behalf of the respondents. Ex.B-58 is the patta relating to the suit property issued in favour of the second defendant in the suit. Ex.B-59 is the `A’ register relating to S.No.134/3B. Ex.B-60 is the certificate issued by the Tahsildar, Kattumannarkoil, to Anthoni Ammal, the first defendant in the suit. 12. In view of the evidence already available on record and on considering the additional documents filed on behalf of the appellant, as well as the respondents, the First Appellate Court had held that the claim of the appellant that he was in possession of the suit schedule property cannot be accepted. On the contrary, it was found that the respondents were in possession of the suit schedule property. Even though it was seen that the District Revenue Officer, South Arcot District, had cancelled the auction, dated 13.3.1981, by his proceedings, dated 8.3.1990, no fresh auction had been conducted in respect of the property concerned. As such, the First Appellate Court had come to the conclusion that the appellant was not entitled to the relief of permanent injunction, in respect of the suit schedule property, as prayed for by him. 13. Aggrieved by the judgment and decree of the First Appellate Court, dated 30.9.2009, made in A.S.No.19 of 2007, the present second appeal has been filed before this Court raising the following questions, as substantial questions of law: “1) Whether the lower Appellate Court has considered the evidence with regard to the proceedings pursuant to the auction which failed to consider that the High Court has set aside the auction and directed the Revenue Divisional Officer to re-auction the suit property in W.P.No.4409of 1990, dated 14.9.1998.? 2) Whether the Lower Appellate Court has based its judgment solely on the statement of the appellant regarding the survey number of the suit property.? 3) Whether the Lower Appellate Court has considered the entire evidence of the parties and based its finding relevant to the issue involved in the suit property?” 14. In view of the averments made by the learned counsels appearing on behalf of the appellant, as well as the respondents and on a perusal of the records available, this Court is of the considered view that the appellant has not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. It is clear that the appellant in the present second appeal, who had filed the suit, in O.S.No.92 of 2005, had not been in a https://hcservices.ecourts.gov.in/hcservices/ position to show that he was in continuous possession and enjoyment of the suit schedule property from the year, 1962, as claimed by him. Further, the documents marked on behalf of the appellant to show that he was in possession of the suit schedule property did not relate to the property in question. On the contrary, the Courts below had found that the respondents were in possession of the suit property, at the relevant point of time. 15. Further, it is an admitted fact that an auction had been conducted, on 13.3.1981, and the suit property had been assigned to the first respondent. Even though the auction had been confirmed only in the year, 1988, there is nothing on record to show that the possession of the respondents had been disturbed. Even though the auction, dated 13.3.1981, had been cancelled, on 8.3.1990, it is an admitted fact that no further auction had conducted, in respect of the suit property. Further, from the concerned `A’ register it was clear that the suit schedule property had belonged to the Government, till it had been auctioned, on 13.3.1981. Further, by the additional document filed on behalf of the respondents, marked as Ex.B-58, before the First Appellate Court, in A.S.No.19 of 2007, it was seen that the patta in respect of the suit property was in favour of the second respondent. In such circumstances, the conclusions arrived at by the Courts below cannot be said to be erroneous or illegal. As such, the second appeal is liable to be dismissed, as devoid of merits. Hence, it stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. csh To 1) The Subordinate Judge, Chidambaram 2) The Additional District Munsif, Chidambaram. 1 cc to Mr.G.S. Mohan, Sr. 46059 1 cc to M/s. R. Meenal, Sr. 46031 S.A.No.565 of 2010 and M.P.No.1 of 2009 MBS (CO) KK 14/9 https://hcservices.ecourts.gov.in/hcservices/