1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA (MD) No.142 of 2011 and MP(MD)No.1 of 2011 S.Sivakumar .. Appellant/Plaintiff Vs. 1.K.Rajaguru 2.The Pandapuli Panchayat rep.by its President, Sankarankoil Panchayat Union Sankarankoil-Taluk Tirunelveli District. 3.The Block Development Officer, Sankarankoil Panchayat Union Sankarankoil-Taluk Tirunelveli District. .. Respondents/Defendants Second Appeal filed under section 100 of CPC against the Judgment and decree dated 30.09.2010 passed in Appeal Suit No.18 of 2010 by the Sub Court, Sankarankoil confirming the Judgment and decree dated 22.02.2010 passed in Original Suit No.36 of 2007 by the Principal District Munsif Court, Sankarankoil. For Appellant : Mr.F.X.Eugine For Respondents : No appearance JUDGMENT This second appeal has been directed against the concurrent Judgments and decrees passed in Original Suit No.36 of 2007 by the Principal District Munsif Court, Sankarankoil and in Appeal Suit No.18 of 2010 by the Sub Court, Sankarankoil. 2. The appellant as plaintiff has instituted Original Suit No.36 of 2007 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as defendants. 3. The material averments made in the plaint are that the suit property is originally belonged to the father of the plaintiff by name Sarangapani and he executed a gift deed in favour of the plaintiff with regard to suit property and now the plaintiff has been enjoying the same. The plaintiff and his predecessors have had enjoyed the suit property for more than a statutory period and thereby perfected title to the suit property by adverse possession. In the suit property the defendants are not having any manner of right, title and interest and now the defendants 1 and 2 have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 2 4. In the written statement filed on the side of the first defendant it is averred that it is false to contend that the suit property is originally belonged to the father of the plaintiff and he executed a gift deed in favour of the plaintiff and since then the plaintiff is in possession and enjoyment of the same. The suit property is comprised in Survey No.671/2 and its old survey number is 171/2. The suit property is nothing but a Government poramboke, wherein so many constructions are in existence for the benefit of general public. The plaintiff has shown a different place and thereby fraudulently obtained permission from the village panchayat and put up a small shed in the suit property. The plaintiff is not the owner of the suit property and there is no merit in the suit and the same deserves to be dismissed. 5. In the written statement filed on the side of the second defendant it is averred that all the averments made in the plaint are false. The plaintiff has encroached a portion of school playground. The plaintiff is not the owner of the suit property and therefore, the present suit deserves to be dismissed. 6. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.18 of 2010 on the file of the first appellate Court. 7. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. 8. Even though the present second appeal has been posted today finally, the learned counsel appearing for the respondents 1 and 2 is not present and under the said circumstances the present second appeal is disposed of on merits on the basis of the contention urged on the side of the appellant /plaintiff. 9. On the side of the appellant/plaintiff the following substantial questions of law have been raised for consideration: (a) Whether both the lower Courts are correct in holding that all natham lands are belonging to the Government as natham poramboke? (b) Whether both the lower Courts could fix a specific door number for building shown in schedule for which no door number is given either in the pleading or in the schedule description? 10. Before perpending the argument advanced by the learned counsel appearing for the appellant/plaintiff, the Court has to narrate the description of suit property as mentioned in the plaint as well as the reliefs sought for therein. In the plaint description it has been specifically stated that the suit property is comprised in Survey No.171/2. The present suit has been instituted for the reliefs of declaration and perpetual injunction. https://hcservices.ecourts.gov.in/hcservices/ 3 11. In the written statements filed on the side of the defendants 1 and 2 it has been specifically averred to the effect that neither the plaintiff nor his father is the owner of the suit property and the suit property is nothing but a Government poramboke land and therefore, the present suit deserves to be dismissed. 12. The Courts below have uniformly accepted the contention urged on the side of the defendants 1 and 2 and ultimately non suited the plaintiff. Under the said circumstances, apart from the substantial questions of law raised in the present second appeal, the following points have to be looked into: (a) Whether the plaintiff is the owner of the suit property? (b) whether the plaintiff is entitled to get the reliefs sought for in the plaint? (c) Whether the Courts below are perfectly correct in non-suiting the plaintiff? 13. The learned counsel appearing for the appellant/plaintiff has repeatedly contended that the suit property is nothing but a natham kudiyiruppu and the same is comprised in Survey No.171/2 and the suit property is originally belonged to the father of the plaintiff and he voluntarily executed a gift deed dated 08.06.1994 in favour of the plaintiff and as per gift deed dated 08.06.1994 the plaintiff has become absolute owner of the suit property and by way of obtaining necessary permission he constructed a house and in the suit property the defendants are not having any semblance of right, title and interest and now they tried to make interference with the peaceful possession and enjoyment of the plaintiff. Under the said circumstances the present suit has been instituted. But the Courts below have erroneously non-suited the plaintiff and therefore, the concurrent Judgmnents and decrees passed by the Courts below are liable to be interfered with. 14. As stated earlier, the suit property is comprised in Survey No.171/2. 15. The consistent case of the defendants 1 and 2 is that the suit property is nothing but a natham poramboke land and the plaintiff has encroached a portion of school playground and put up a small construction. 16. Since the alleged title of the plaintiff to the suit property has been clearly denied on the side of the defendants 1 and 2, entire burden lies upon the plaintiff to prove that he is the owner of the suit property. 17. The entire case of the plaintiff is based upon the gift deed dated 08.06.1994, alleged to have been executed by the father of the plaintiff in his favour and the same has been marked as Ex.A1, wherein the suit property has been dealt with. Apart from Ex.A1, on the side of the plaintiff some other documents have been filed so as to prove his alleged possession in the suit property. In the plaint description it has been simply mentioned a house and no door number has been given to it. In the remaining documents, it has been mentioned as door No.4/1C1 and 3/1C. Considering the fact that no door number has been assigned in the house property mentioned in the plaint and also considering the fact that the plaintiff has not filed any document so as to prove that he obtained https://hcservices.ecourts.gov.in/hcservices/ 4 necessary permission from the concerned authority for putting up construction of the alleged house, on the basis of the documents filed on the side of the plaintiff, the Court cannot automatically come to a conclusion that the plaintiff is the owner of the suit property. 18. At this juncture, it would be more useful to look into Ex.X2. Ex.X2 is nothing but an extract of adangal relating to Survey No.171/2, wherein it has been simply mentioned that Survey No.171/2 is a Government poramboke and no where it is stated that the plaintiff has put up construction of a house and the said house is bearing either door No.4/1C1 or 3/1C1. Therefore, it is very clear that the plaintiff has virtually failed to prove that he is the owner of the suit property. 19. As adverted to earlier, the consistent defence taken on the side of the defendants 1 and 2 is that the plaintiff is not the owner of the suit property. Therefore, the entire burden lies upon him. But as taunted earlier, the plaintiff has not filed any vital document so as to come to a conclusion that he is the owner of the suit property. As stated earlier, the sheet anchor of the case of the plaintiff is Ex.A1. Ex.A1 is nothing but a self serving document. On the basis of Ex.A1, the Court cannot come to a conclusion that the plaintiff is having title to the suit property. 20. The Courts below after considering the available evidence on record have rightly non suited the plaintiff. In view of the discussion earlier, this Court has not found any force in the argument advanced on the side of the appellant/plaintiff and further the substantial questions of law raised in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed at the stage of admission. 21. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. Connected Miscellaneous Petition is also dismissed. The concurrent Judgments and decrees passed by the Courts below are confirmed. SD/- Deputy Registrar(LA) /True copy/ Assistant Registrar To 1.The Subordinate Judge, Sankarankoil 2.The Principal District Munsif, Sankarankoil +1 CC to M/s. F.X.Eugene, Advocate, SR.No.18067 mj SA (MD) No.142 of 2011 10.06.2011 TR : 24.06.2011 : 4p/4c https://hcservices.ecourts.gov.in/hcservices/