1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:14.03.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.118 of 2011 Peri.Sunthammal (died) A.Jaganathan :Appellant/Defendant -Vs- A.Sivagami :Respondent/Plaintiff (cause title accepted vide order dated 23/02/2011) Second Appeal filed under section 100 of CPC against the Judgment and decree dated 20.10.2009 passed in Appeal Suit No.204 of 2008 by the First Additional Sub Court, Madurai (Madurai Camp Court) confirming the Judgment and decree dated 30.09.2008 passed in Original Suit No.60 of 2006 by the District Munsif Court, Melur. For Appellant:Mr.V.Sitharanjandas JUDGMENT The concurrent Judgments and decrees passed in Original Suit No.60 of 2006 by the District Munsif Court, Melur and in Appeal Suit No.204 of 2008 by the First Additional Sub Court, Madurai (Madurai Camp Court) are being challenged in the present second appeal. 2.The respondent herein as plaintiff has instituted Original Suit No.60 of 2006 on the file of the trial Court for the relief of perpetual injunction, wherein the present appellant has been shown as sole defendant. 3.It is averred in the plaint that the plaintiff has purchased the suit properties under three registered sale deeds dated 20.02.1984, 26.02.1990 and 12.10.2004. The plaintiff has been in possession and enjoyment of the suit properties. The defendant is having her property immediately on the eastern side of the suit properties and she purchased the same under a registered sale deed dated 13.10.1985. Now the defendant has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff. Under the said circumstances the present suit has been instituted for the relief sought for in the plaint. 4.In the written statement filed on the side of the defendant it is averred that the plaintiff has not given proper description to the suit properties. It is true that the suit properties are comprised in Survey No.77/2b and its total extent is 35 cents. The sale deeds mentioned in the plaint are not correct and the recitals mentioned therein have to be proved only by the plaintiff. The extent mentioned in the plaint is not in existence on ground. One Rama Konar and his brothers have effected a partition and after partition there is no place for effecting sale. It is false to say that even prior to 18 years a house has been in existence in the suit properties. There is no merit in the suit and the same deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 2 5.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.204 of 2008 on the file of the first appellate Court. 6.The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal, whereby and whereunder 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. 7.On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration: (a)Whether the suit for permanent injunction is maintainable in the absence of relief of declaration especially when the plaint schedule is not tallying with the documents of title? (b)Is not the bounden duty of the plaintiff to prove her possession for the relief of permanent injunction? (c)Are not the Courts below have committed a grave error in coming to the conclusion that the defendant has failed to prove the encroachment? (d)Is not the initial burden to the plaintiff to discharge her initial burden to prove the title especially when there is no evidence to prove possession? (e)Whether non appearance of the defendant to give evidence is fatal to the case especially when her adopted son gave evidence since she was aged and suffering with several ailments? (f)Whether there is any bar for the defendant to allow her adopted son as a witness to give evidence? (g)Whether the burden is shifted to the defendant merely because she has failed to submit herself to give evidence? (h)Whether the lower appellate Court is not bound to dispose of the appeal by considering the pleading, documents, evidence especially when the same is a final court of facts? 8.Considering the nature of the relief sought for in Original Suit No.60 of 2006 as well as the nature of the concurrent Judgments and decrees passed by the Courts below, this Court is of the view that notice need not be sent to the respondent /plaintiff and this second appeal is disposed of on merits at the stage of admission. 9.The sum and substance of the case of the plaintiff is that the suit properties are comprised in Survey No.77/2b and the plaintiff has purchased the entire suit properties under three registered sale deeds dated 20.02.1984, 26.02.1990 and 12.10.2004. The defendant has purchased the property which situates immediately on the eastern side of the suit properties under a registered sale deed dated 13.10.1985. From the date of purchase the plaintiff has been in possession and enjoyment of the suit properties and in the suit properties there is a house which is in existence https://hcservices.ecourts.gov.in/hcservices/ 3 even prior to 18 years. Since the property of the defendant is situate immediately on the eastern side of the suit properties, she has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff in the suit properties. Under the said circumstances, the present second appeal has been instituted so as to restrain the defendant by means of perpetual injunction. 10.The consistent stand taken on the side of the defendant is that the sale deeds mentioned in the plaint are not correct and on the basis of the sale deeds mentioned in the plaint, the plaintiff cannot claim any right, title and interest over the suit properties and the defendant has purchased her property under a registered sale deed dated 13.10.1985 and the same is situate immediately on the eastern side of the suit properties and further it is false to contend that the plaintiff has been in possession and enjoyment of the suit properties and therefore, the present suit deserves to be dismissed. 11.As pointed out earlier, the Courts below have concurrently rejected the defence taken on the side of the defendant. Under the said circumstances the only point that has now winched to the fore in the present second appeal is as to whether the concurrent Judgments and decrees passed by the Courts below are perfectly correct or the same require interference. 12.The learned counsel appearing for the appellant/defendant has repeatedly contended that the plaintiff has claimed her alleged title to the suit properties by virtue of three sale deeds dated 20.02.1984, 26.02.1990 and 12.10.2004 and in the plaint no proper description has been given to the suit properties and the defendant has purchased her property under a registered sale deed dated 13.10.1985 and by way of filing the present suit the plaintiff has endeavoured to encroach a portion of the property covered in the sale deed dated 13.10.1985 and the Courts below without considering the evil design of the plaintiff and also improper description of the suit properties, have erroneously rejected the defence put forth on the side of the appellant/defendant and therefore, the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 13.For considering the submission made by the learned counsel appearing for the appellant /defendant, it would be more useful to look into the documents filed on the side of the plaintiff. The sale deeds dated 20.02.1984, 26.02.1990 and 12.10.2004 have been marked as Exs.A1 to A3 and a copy of registration sale deed which stands in the name of the defendant has been marked as Ex.A17. In the plaint it has been specifically stated that the property of the defendant is situate immediately on the eastern side of the suit properties. Even in Ex.A17 it has been clearly mentioned that the shed and house property of the plaintiff are situate immediately on the western side of the property mentioned therein. Therefore, it is needless to say that immediately on the eastern side of the suit properties, the property which is covered under Ex.A17 is situate. https://hcservices.ecourts.gov.in/hcservices/ 4 14.The only grouse expressed on the side of the appellant/defendant is that by way of filing the present suit, the plaintiff has been making arrangement to encroach a portion of the property which is covered under Ex.A17. In fact, this Court has groped the entire averments made in the written statement. In the written it has not been specifically stated that the plaintiff has encroached a portion of the property which is mentioned in Ex.A17. Further it is not the case of the plaintiff that the defendant has encroached a portion of the suit properties. Therefore, it is needless to say that the present suit has been instituted only on the basis of Exs.A1 to A3 and the property of the defendant has been purchased under Ex.A17 and there is no encroachment either by the plaintiff or by the defendant. Under the said circumstances it is very clear that the relief of permanent injunction sought for in the plaint can easily be granted in favour of the plaintiff. 15.The Courts below after considering the divergent pleadings raised on either side have rightly rejected the defence taken on the side of the appellant/defendant. In view of the discussion made earlier this Court has not found any error in the concurrent Judgments and decrees passed by the Courts below and the substantial questions of law raised on the side of the appellant/defendant are not having substance at all and altogether, the present second appeal deserves to be dismissed. 16.In fine, this Second Appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission and the concurrent Judgments and decrees passed by the Courts below are confirmed. However, it is made clear that under the guise of permanent injunction granted in favour of the respondent/plaintiff in Original Suit No.60 of 2006, upheld in Appeal Suit No.204 of 2008, the respondent/plaintiff is strictly directed not to encroach the property which is covered under Ex.A17. Sd/- Deputy Registrar (LA) / TRUE COPY / Assistant Registrar To: 1.The First Additional Sub Judge, Madurai (Madurai Camp Court) 2.The District Munsif, Melur. +1CC to Mr.V.Sitharanjandas, Advocate. SR.No.6164. Mj RP/30.05.2011/4P/4C. SA (MD) No.118 of 2011 14.03.2011 https://hcservices.ecourts.gov.in/hcservices/