IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.11.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.Nos.606 and 810 of 2001 1.Karuppamoopan @ Karuppannasamy Appellant in SA.606/01(Defendant) 2.Raju Appellant in SA.810/01 (Plaintiff) Vs 1.Valliammal 2.S.Rajagopal 3.S.Raju 4.Karuppayee 5.Samiathal 6.R.Mani 7.Subramaniam 8.Kannammal 9.Chinnammal Respondents in SA.606/01 (Plaintiffs 4 to 12) 1.Karupannasamy 2.Valliammal 3.Rajagopal 4.Kannati @ Raja 5.Karuppayee 6.Samiathal 7.Mani 8.Chinnammal 9.Subramaniam 10.Kannammal Respondents in SA.No.810/01 (Defendants 4 to 13) Prayer:- These Second Appeals are filed against the Judgement and Decree dated 2.11.2000 passed in AS.Nos.114 and 113/2000 by the learned Principal District Judge, Erode, confirming the Judgement and Decree dated 3.4.2000 passed in OS.No.196 and 240/96 by the learned District Munsif cum Judicial Magistrate, Perundurai. For Appellants : Mr.A.K.Kumaraswamy-Both SAs For Respondent : Mr.V.Bharathidasan-RR1to3 & R9 in SA.No.606/2001 and RR2 to 4 & R8 in SA.No.810/2001 https://hcservices.ecourts.gov.in/hcservices/ JUDGEMENT The respondents in SA.No.606/2001/the plaintiffs 4 to 12 and three others have filed the suit in OS.No.196/1996 for permanent injunction restraining the appellant in SA.NO.606/2001/the defendant from interfering with their peaceful possession and enjoyment of the suit property. The appellant in SA.No.810/2001/the plaintiff has filed the suit in 240/96 for permanent injunction restraining the defendants therein from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. 2. The case of the Plaintiffs as set out in the plaint in OS.NO.196/1996 is as follows:- a. The suit property originally was a Government Poramboke land. On 18.8.1924 the Tahsildar, Erode granted patta to one Sengoda Moopan, son of Chinna Moopan for the suit property. The said Sengoda Moopan took possession of the suit property on the date of patta itself. He continued to enjoy the same till his demise in or about 1926 leaving behind a son by name Chinna Moopan, who was enjoying the suit property by paying kist as absolute owner till his death in 1962. The plaintiffs are the sons of said Chinna Moopan. Ever since the date of death of Chinna Moopan, the plaintiffs are in possession and enjoyment of the suit property as absolute owners by paying kist to the Government. The plaintiffs are along cultivating the suit property. b. While things are as such, the defendant suddenly attempted to trespass in the suit property about a month ago claiming that the patta for the suit property stands in his name. On verification of records, the plaintiffs came to know that the suit property stands in the name of one Nachimoopan, the father of the defendant, who died 13 years ago. The said Nachimoopan had never been in possession of the suit property and he was a total stranger to the suit property. The inclusion of the name of Nachimoopan in the chitta register during resurvey appears to be an inadvertent mistake. The plaintiffs were not served with any notice as contemplated under the Tamil Nadu Survey and Boundaries Act nor they were heard before its finalization. The plaintiffs have already moved the Tahsildar for rectification of the records and they were given to understand that the rectification will be done very soon. The defendant again attempted to trespass into the suit property on 9.1.1991, which was prevented by the plaintiffs. The defendant has no right in the suit property. In such circumstances, the suit has been filed. 3. In the Written Statement filed by the Defendant in OS.No.196/1996, it is averred as follows:- a. Originally the suit property was a Government Poramboke. https://hcservices.ecourts.gov.in/hcservices/ In 1971, the patta was assigned in the name of the father of defendant, namely, Nachimoopan. The original patta issued in the name of said Nachimoopan was produced in the connected suit in OS.No.1202/1991. Thereafter, Nachimooppan was in possession and enjoyment of the suit property till his death. About 17 years back, the said Nachimoopan died leaving behind his two sons, i.e. Ramasamy and the defendant as his legal heirs. After the death of his father, the defendant and his elder brother Ramasamy were in possession and enjoyment of the suit property. About 14 years back, the brother of the defendant also died leaving behind his only son Raju as his only legal heir. After the death of his brother, the defendant and his brother's son are in joint possession and enjoyment of the suit property. b. In the month of Chithrai 1991, the defendant and his brother's son had a oral partition with regard to their ancestral properties in which the suit property was allotted to the defendant's brother's son Raju. The suit property is still kept in the name of Nachimoopan in the revenue records. As per the oral partition, now the said Raju along with his mother are in possession and cultivating the suit property. While so, since the plaintiffs attempted to interfered with the possession of the suit property, the said Raju filed OS.No.1202/1991 for permanent injunction, wherein an order of status quo was obtained. The said Raju is a necessary party to be impleaded to the above suit. The suit is not maintainable for non-joinder of necessary party. Hence, the suit is liable to be dismissed. 4. The case of the Plaintiff as set out in the plaint in OS.NO.240/1996 is as follows:- a. The suit property was a Government Poramboke land. In 1971, the plaintiff's grand father was assigned the suit property. About 13 years back, the grand father of the plaintiff died leaving his two sons, namely, Ramasamy (father of the plaintiff) and the 4th defendant herein as his legal heirs. The grand father of the plaintiff was possession and enjoyment of the suit property till his demise. Thereafter, the said two sons were in possession and enjoyment of the suit property. About 10 years back, the father of the plaintiff died leaving behind the plaintiff as his only legal heir. The plaintiff and the 4th defendant had an oral partition in which the suit property was allotted to the plaintiff. The plaintiff and the 4th defendant were paying the tax to the suit property. The suit property is still kept in the name of Nachimoopan in the revenue records. b. From 1971, the grand father of the plaintiff, after his demise his sons were in possession and enjoyment of the suit property without any interruption whatsoever. Since the father of the plaintiff died about 10 years back, the plaintiff and the 4th defendant were in possession and enjoyment jointly till last “chithirai” month. After the said oral partition between the plaintiff and the 4th defendant, the plaintiff is in possession and enjoyment of the suit property by cultivating the same. On the https://hcservices.ecourts.gov.in/hcservices/ southern side of the suit property, there a stream in which seepage water is available. With the help of the seepage water, the plaintiff has started transplanting the paddy seedling in the suit property from 20.10.1991 onwards. Now, almost half of the land is transplanted. All of a sudden, the defendants 1 to 3 trespassed into the suit property on 23.10.1991 and proclaimed that the plaintiff should not cultivate the land. The defendants 1 to 3 do not have any right or title to the suit property. Hence, the the suit has been filed for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. 5. The defendants 1 and 2 in OS.NO.240/1996 are the plaintiffs 1 and 2 in OS.No.196/1996. After the death of the said plaintiffs, their legal heirs were brought on record as the defendants 4 to 7 and 11 to 13. The defendants 1 to 7 filed a written statement reiterating their contentions referred in the plaint in OS.No.196/1996 and prayed for dismissal of the suit. 6. Before the Trial Court, on the side of the Plaintiffs, Ex.A1 to A17 were marked and PW.1 to PW.4 were examined. On behalf of the Defendants, Ex.B1 to B27 were marked and DW.1 to DW.4 were examined. The report and the plan of the Advocate Commissioner were marked as Ex.C1 and C2. 7. On consideration of the oral as well as the documentary evidence, the Trial Court decreed the suit in OS.NO.196/1996 and dismissed the suit in OS.No.240/1996 and the appeals filed as against the same were dismissed confirming the Judgement and Decree of the Trial Court, as against which, these Second Appeals have been filed. 8. These Second Appeals have been entertained on the following substantial questions of law:- (a)Are the courts below justified in going into the title of the suit property overlooking that the suit is for a bare injunction and the appellant is proved to be in possession at least since 1971? (b)Whether the lower appellate court being the final court of first appellate court is justified in not adverting to or considering the oral evidence let in by the appellant to prove his possession of the suit property on the date of suit? 9. This court heard the submissions of the learned counsel on either side and also perused the judgements of the court below and the materials on record. 10. The appellant in SA.NO.606/2001 is the defendant in OS.No.196/1996 and the 4th defendant in OS.No.240/1996. The suit property is a Government Poramboke land of an extent of two acres and https://hcservices.ecourts.gov.in/hcservices/ 42 cents. The case of the appellants is that in the year 1971, patta to the suit property in RS.No.74/15 was given to the father of the appellant in SA.No.606/2001, namely, Nachi Moopan and he was in possession and enjoyment till his death and after him, his two sons Ramasamy and the appellant were in possession and enjoyment of the suit property. The said Ramasamy died 14 years back leaving his only son Raju the 3rd respondent in SA.No.606/2001/the plaintiff in OS.No.240/96. The said Raju and the appellant orally partitioned the suit property along with the other properties and the suit property was allotted to Raju, the 3rd respondent herein. Since the respondents interfered with their possession, Raju filed the suit in OS.No.240/1996 for permanent injunction. 11. On the other hand, the respondents contended that the Tahsildar, Perundurai Taluk granted patta in favour of one Sengoda Moopan on 18.8.1924 and he was in possession and enjoyment till the year 1926. After his demise, his son Chinna Moopan was in possession and after him, the respondents were in possession as legal heirs of Chinna Moopan. According to the respondents, the appellants attempted to interfere with their peaceful possession and enjoyment on 9.1.1991. Hence, the suit in OS.No.196/1996 was filed by the respondents against the appellant. 12. Both the parties claimed to be in possession and enjoyment of the suit property. There is no dispute regarding the identity of the property, though the 3rd respondent has not given the extent of the suit property in the suit filed by him in OS.No.240/1996. Admittedly, all those documents filed on the appellant's side are only after the period 1971. Ex.B7 to B24 are the adangal extracts admittedly in the name of Nachimoopan. Ex.B7 relates to the Fasli year 1991, Ex.B8 for Fasli year 1389, Ex.B9 and B10 for Falsi 1390, Ex.B11 for the Fasli 1391, Ex.B12 for the Fasli 1393, Ex.B13 for the Fasli 1394, Ex.B14 for the Fasli 1395, Ex.B15 for the Fasli 1396, Ex.B16 and B17 for the Fasli 1400, Ex.B18 for the Fasli 1401, Ex.B19 for the Fasli 1391, Ex.B20 for the Fasli 1388, Ex.B21 for the Fasli 1389, Ex.B22 for the Fasli 1387, Ex.B23 for the Fasli 1397, Ex.B24 for the Fasli 1385 and Ex.B25 is the chitta also in the name of Nachimoopan issued for the Fasli year 1401. 13. Though the above said adangal extracts relate to the different periods, but all those documents have been issued only in the year 1991. Even according to the appellants, Nachimoopan died in or about 1984 and the suit property was in possession and enjoyment of Ramasamy and the appellants. But, none of the said documents are in their name and as already pointed out, only Nachimoopan's name is entered as the person cultivating the land. The trial court has rejected the above said documents Ex.B7 to B24 on the ground that they did not reflect the true state of affairs. Exs.B2 to B6 and Ex.B26 kist receipts will not be of any avail to the appellant, as there is no document to show the possession of the appellant or the said Raju, the 3rd respondent herein. Ex.B1 is a notice issued to https://hcservices.ecourts.gov.in/hcservices/ Nachimoopan directing him to appear for an enquiry before the Assistant Settlement Officer. 14. The trial court has also disbelieved the evidence of DW.4 and has given valid reasons to reject his evidence. DW.4 has admitted in his evidence that the revenue records were not properly maintained and the said aspect has been taken note of by the trial court. 15. On the other hand, it is seen that by virtue of Ex.A1 assignment deed (referred to as patta by the respondents) the suit property had been granted to the predecessor-in-title of the respondents by the Government and pursuant to Ex.A1, Sengoda Moopan was in possession and enjoyment of the suit property. Ex.A2 to A5 are the kist receipts evidencing the kist paid by the respondents and their predecessors. It is not the case of the appellant that the said assignment was cancelled by the Government and thereafter, in resurvey patta was granted to Nachimopan. 16. In Ex.A17 sale deed filed by the respondents the eastern boundary is shown to be that of Chinnamoopan, the son of Sengoda Moopan which is also testified by PW.2 the owner of the property in the sale deed Ex.A17 in his evidence. This fact is not disputed by the appellants. Indisputably, Ex.A1 to A15 are earlier in point of time and also anterior documents. The appellants have not disputed those documents. There is no explanation from the appellants as to the circumstances under which the patta was granted in the name of Nachimoopan. It is also pertinent to note that no such patta issued in favour of the appellant has been filed in this case. In such view of the matter, in the absence of any reliable evidence on the side of the appellant, it is difficult to hold that they are in possession and enjoyment of the suit property and the courts below have rightly held that the appellants are not entitled to permanent injunction as prayed for by them. 17. In the result, these Second Appeals are dismissed. However, in the circumstances of the case, there will be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Srcm https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Principal District Judge, Erode 2.The District Munsif cum Judicial Magistrate, Perundurai 3.The Record Keeper, VR Section, High Court, Madras 1 cc to Mr.V. Bharathidasan, Advocate, Sr. 85363 SA.Nos.606 and 810 of 2001 JRG (CO) kk 7/3 https://hcservices.ecourts.gov.in/hcservices/