IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.04.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.69/2001 1.S.Sanna 2.S.Beema 3.R.Raju 4.R.Nanja Appellants/Plaintiffs Vs 1.B.Harjie 2.B.Ramu Respondents/Defendants Prayer:- This Second Appeal is filed against the Judgement and Decree dated 27.04.2000 passed in AS.No.7/1998 by the learned Subordinate Judge, OOty, confirming the Judgement and Decree dated 23.10.1997 passed in OS.No.436/1996 by the learned District Munsif Court, Ooty. For Appellant : Mr.Suresh Viswanath For Respondent : No Appearance JUDGEMENT The Plaintiffs, who lost their case before both the courts below, has filed this Second Appeal. 2. The case of the Plaintiffs, as set out in the plaint, is as follows:- a. The Plaintiff 1 and 2 are the sons of one late Sevana and the Plaintiffs 3 and 4 are the sons of one late Ranga. The suit property/agricultural land in S.No.212 measuring about 50 cents of Kadanadu Village was purchased under document No.227/1915 by the grand-fathers of the Plaintiffs by name one Andi and Kullan from one Kari, son of Johi. The suit property was bounded by the property of the vendor on the Southern side, the property of Bellan on the Eastern Side, the property of Belli Gowder and Odai on the western side and the part of the said property on the Northern side. Since the suit property was transferred to many persons subsequently, the said four boundaries are not in existence. While so, on 13.9.1996, in the notice sent by the Plaintiffs to the Defendants, the 1st Plaintiff wrongly mentioned the four boundaries, which is divided into two parts without taking into account the road running east west in the suit property. In the suit property of 50 cents, now the Kadanadu-Odayaratti Road is running dividing the same by 35 cents https://hcservices.ecourts.gov.in/hcservices/ on the southern side and 10 cents on the northern side and the said Road is occupying 5 cents out of 50 cents. b. The grand father Kullan died without any issues. The father of the Plaintiffs 1 and 2 and the father of the Plaintiff 3 and 4 died before 8 and 15 years respectively. The father of the Plaintiffs were in possession and enjoyment of the suit property till their death and therefore, the Plaintiffs are in possession and enjoyment of the suit property. The Defendants have no right, title or interest in the suit property and they are strangers. Taking advantage of the fact that their community is majority in number, with the help of police they threatened the Plaintiffs. On 24.9.1996, the Defendants attempted to dispossess the Plaintiffs from the suit property and hence, the present suit has been filed for permanent injunction and costs. 3. The case of the Defendants, as set out in the Written Statement, is as follows:- a. Out of 40 cents, only 42 1/2 cents is available and the Defendants are in possession and enjoyment of the same. The suit property was purchased by the father of the Defendants late G.Belli Gowder under Document No.38/1934 and till his death, he was in possession and enjoyment of the same. On 23.6.1994, the father of the Defendants and one Kuttananjan sold 1.50 acres of land out of 7.67 acres and out of the said 1.50 acres, 75 cents belonged to the father of the Defendants and 75 cents belonged to Kuttan Nanajan. The said 1.50 acres was sold to Madhan, Bellie, D.Madhan under Document No.666/49. The grand father of the Defendants was in possession of remaining 52.5 cents, which is the suit property. After the demise of G.Bellie Gowder, the Defendants and the heirs of G.Bellie Gowder are in possession and enjoyment of the same. The boundaries of the suit property shows that the Plaintiffs are not in possession and enjoyment of the suit property. The boundaries of the suit property given by the Plaintiff are not correct. The Kadanadu-Odayaratti Road is running through the suit property. The father of the Plaintiffs had gifted 10 cents of land in the suit survey number to the Kadanadu Panchayat by document dated 7.7.1949 to lay road, which runs through 50 cents dividing into two parts 10 cents and 32 1/2 each. There is no cause of action and the suit is not maintainable in law and the same is liable to be dismissed. 4. On the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, the Plaintiffs had marked Exs.A1 to A7 and examined the 2nd Defendant as PW.1. The Defendants had marked Exs.B1 to B8 and examined Harijii, Halan and Ramaiah and Raman DWs.1 to DW.4. 5. The Trial Court, after considering both the oral and documentary evidence, dismissed the suit and the appeal filed as against the Judgement and Decree of the Trial Court was also dismissed by the lower Appellate Court. Hence, this second appeal has been filed by the Plaintiffs. https://hcservices.ecourts.gov.in/hcservices/ 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. This court, while admitting this second appeal, had formulated the following substantial questions of law:- (a) Whether the inconsistent plea raised by the Defendants regarding co-ownership as well as title to the specific property is a valid plea in the eye of law? (b)Whether not framing of issues regarding the nature of possession by this Appellant when he claims right over the suit property as absolute owner does not vitiate entire judgements of courts below? (c)Once a plea of co-ownership is made and when it is alleged by the Defendants that the suit properties are not partitioned, is he not estopped to refer the various transaction? 8. The suit property as claimed by the Plaintiff is in S.No.212 of an extent of 50 cents with the following four boundaries:- "On the north bounded by a part of land in S.No.212, on the south by the vendor's remaining land in S.No.212, on the east by Usabellan's Land and on the west by Mavukal Belli's land." 9. The above said property of an extent of 50 cents with the aforesaid boundaries are said to have been purchased by their grand fathers by name Andi and Kullan under Ex.A1 sale deed dated 27.4.1915. But, in the said notice sent by the Plaintiffs immediately preceding the suit, different boundaries are shown as bounded by on Krishnan's land on the north, land of Kivida Nanjan on the south, Appannu's land on the east and the land belonging to Nanjan and Chandran on the west. Even though the Plaintiffs claimed to be in possession from the date of purchase that is from 27.4.1915, by their predecessors in title and thereafter by the Plaintiffs, they have not stated about the road running east- west into the suit property dividing it into two parts. The Plaintiffs have admitted that in Ex.A7 notice, they have given the incorrect particulars of boundaries without taking into account the road running into the suit property resulting in division of two parts. 10. Whereas the documents filed by the Defendants are consistent with the features available on ground. Ex.B1 is the sale deed dated 20.12.1933 by which the Defendants' father Belli had purchased 1 acres 27 1/2 cents in suit survey number 212 and had gifted 10 cents to the Kadanadu Panchayat for laying road by gift settlement deed dated 7.7.1949. The said road divides the suit property into two parts. https://hcservices.ecourts.gov.in/hcservices/ 11. The inconsistent statement of the Plaintiffs regarding the description of boundaries clearly demonstrates that they were not in possession of the suit land. Both the courts below have adverted to the above said facts and have rightly held that the Plaintiffs have failed to establish their possession of the suit property and refused to grant the relief of injunction. 12. The High Court cannot substitute its own opinion for that of the courts below, unless this court finds that the conclusions arrived at by the courts below are erroneous, contrary to law and based upon inadmissible evidence or no evidence, as has been held by the Honourable Supreme Court in the case of Hero Vinoth Vs. Seshammal [AIR-2006-SC-2234]. I am of considered view that in the present case, the conclusion arrived at by the courts below is based on proper analyse of evidence available on record and hence, no interference is warranted by this court. Accordingly, the substantial questions of law are answered against the Appellants. 13. In the result, this Second Appeal is dismissed. No costs. Srcm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1.The Subordinate Judge, OOty 2.The District Munsif Court, Ooty KA(CO) SR/3.6.2010 SA.No.69/2001 https://hcservices.ecourts.gov.in/hcservices/