IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.4.2008 C O R A M The Honourable Mr. Justice M.JAICHANDREN S.A.No.130 of 1996 Srinivasan .. Appellant Versus Kunju (died) 2.Pushpavalli 3.Sakthivel 4.Malathi 5.Kalavathi 6.Valarmathmi 7.Revathi (RR2 to 7 are brought on record as legal representatives of the deceased sole respondent vide order of this Court dated 8.3.2007 made in C.M.P.Nos.17582 to 17584 of 1999) .. Respondents PRAYER: This second appeal has been filed u/s 100 of C.P.C. against the judgment and decree dated 30.8.1995 in A.S.No.65 of 1994 on the file of the Court of Subordinate Judge, Mayiladuthurai reversing the Judgment and Decree dated:11.3.94 in O.S.No.167/90 on the file of the District Munsif, Sirkali. For Appellant : Mrs.P.Srividhya For Respondents : Mr.A.Gouthaman for R2 to R7 J U D G M E N T This second appeal has been filed against the judgment and decree, dated 30.8.1995, made in A.S.No.65 of 1994, on the file of the Subordinate Judge, Mayiladuthurai, reversing the judgment and decree, dated 11.3.1994, made in O.S.No.167 1990, on the file of the District Munsif, Sirkali. https://hcservices.ecourts.gov.in/hcservices/ 2. The plaintiff had filed a suit in O.S.No.167 of 1990, on the file of the District Munsif Court, Sirkali, praying for the relief of permanent injunction with regard to A schedule property and for the relief of recovery of possession with regard to B schedule property as described in the plaint. 3. The defendant in the suit is the appellant in the present second appeal. 4. For the sake of convenience, the parties are referred to as they have been arrayed in the original suit O.S.No.167 of 1990. 5. The facts of the case, as stated by the plaintiff, are as follows: The suit property in survey No.341, having an extent of 0.66 cents in Madirvelur village, belongs to Madhaliswaraswami Devasthanam. The plaintiff has been cultivating the suit property for many years as a recorded tenant. The defendant had illegally encroached on the suit property by setting up a Cycle Shop in the said property. Further, in spite of the defendant acknowledging the rights of the plaintiff in the suit property, he had trespassed into the B schedule property to an extent of 1 cent. In such circumstances, the plaintiff has filed the suit praying for the reliefs as stated therein. 6. In the written statement filed by the defendant, the claims made by the plaintiff are denied. The fact that the suit property is situated in Madirvelur village has not been disputed. The defendant had further stated that the suit property does not belong to Balaviswaraswami Devasthanam. The plaintiff had filed the suit with the wrong intention of taking illegal possession of 3 cents of land under the possession and enjoyment of the defendant for the past 20 years. The defendant is living in a hut put up in 2 cents of land in S.No.342 and 1 cent of land in S.No.341 belonging to Arulmigu Madhaliswaraswami Devasthanam for the past 20 years paying Panchayat Board Tax. Thus, the defendant has all rights to reside in the said property. The defendant is a poor agricultural coolie and he and his wife are eking out their livelihood by having a petty shop. The plaintiff has filed the suit with the unlawful intention of dispossessing the property from the defendant. The defendant is residing in the hut along with his family members. He has put up the hut spending a sum of Rs.5,000/-, approximately, and the defendant has also obtained electricity connection. The Government has also provided an electricity lamp for the use of the defendant. https://hcservices.ecourts.gov.in/hcservices/ 7. Based on the pleadings, the trial Court had framed the following issues for consideration:- "1. Whether the plaintiff was in possession of the suit property on the date of filing of the suit? 2. Whether the defendant is entitled to the benefit of tenancy Act? 3. Whether the plaintiff is entitled to the relief of injunction as prayed for? 4. What reliefs the plaintiff is entitled to?" 8. The additional issues framed by the trial Court are as follows: "1. Whether the plaintiff is entitled to recovery of possession with regard to B schedule property? 2. Whether the plaintiff has obtained title to the suit properties? 3. Is there a cause of action for the suit?" 9. The trial Court, after analysing the evidence adduced on behalf of the plaintiff as well as the defendant, had dismissed the suit holding that the defendant has not encroached into the land in the possession of the plaintiff and the trial Court had also held that the plaintiff is in possession of the land under his cultivation and the defendant is entitled to the protection of the tenancy laws to reside in the property in which he is living by putting up a hut. Since it is not shown by the plaintiff that the defendant has encroached in the B schedule property, the relief of recovery of possession sought for by the plaintiff cannot be granted. 10. The trial Court had also found that the plaintiff had filed the suit without having any cause of action for the same. The defendant had shown, by documentary as well as oral evidence, that he is residing in 1 cent of land belonging to Madhaliswaraswami Devasthanam and 2 cents of land in the Government poramboke by putting up a hut. Thus, it was held that the plaintiff does not have a cause of action to file the suit. In such circumstances, the trial Court had dismissed the suit. 11. Aggrieved by the said judgment and decree of the trial Court, dated 11.3.1994, made in O.S.No.167 of 1990, on the file of the District Munsif Court, Sirkali, the plaintiff in the suit had filed an appeal in A.S.No.65 of 1994, on the file of the Subordinate Judge, Mayiladuthurai. https://hcservices.ecourts.gov.in/hcservices/ 12. Based on the claims made by the plaintiff as well as the defendant and the evidence available on record, the first appellate Court, had framed the following points for consideration:- "1. Whether the entire suit property is in the possession of the plaintiff for 20 years as claimed by him? 2. Whether the plaintiff is entitled to the relief of injunction as prayed for? 3. Whether the defendant has constructed a building by illegally encroaching on 0.01 cent of land claimed to be in the plaintiff's possession? Therefore, whether the plaintiff is entitled to the possession of the property? 4. Whether the defendant is entitled to the benefit of tenancy Act?" 13. The first appellate Court had held that the claim of the defendant that he has been living in the house built in the property said to be in his possession, for nearly 25 years cannot be believed, considering the report of the Advocate Commissioner. 14. The first appellate Court had also found from the evidence available on record that the plaintiff had proved his claims by sufficient oral as well as documentary evidence. On the other hand, the defendant has not been in a position to show that he has been in occupation of the property, said to be in his possession, for a long time as claimed by him. 15. The first appellate Court had also found that the defendant had encroached on 0.01 cent in 0.66 cents in the possession of the plaintiff. Thus, the first appellate Court had allowed the appeal by reversing the judgment and decree of the trial Court. 16. Aggrieved by the judgment and decree, dated 30.8.1995, made in A.S.No.65 of 1994, on the file of the Subordinate Judge, Mayiladuthurai, the present second appeal has been filed before this Court by raising various grounds. 17. The second appeal had been admitted on the following substantial question of law:- "Whether the lower appellate Court erred in law in holding that the defendant has trespassed upon B schedule property when the defendant has proved his possession from 1966 onwards under Exhibit B.1 and by the payment of lease amount, electricity charges and property tax?" https://hcservices.ecourts.gov.in/hcservices/ 18. The appellant/defendant had stated that the first appellate Court had erred in not holding that the plaintiff should have proved that the survey No.341 measuring 0.66 cents was in his possession and that a portion of the said extent of land was not in his possession. 19. It was also contended that the first appellate Court had failed to note that one cent of land described in the B schedule belongs to Madhaliswaraswami Devasthanam as seen from the lease deed Exhibit B.1 and Exhibits B5 to B.8. 20. It was also contended that Exhibits B.2 to B.4 would show that the defendant has put up a superstructure and has been living in the property claimed to be in his possession for nearly 25 years. Exhibits B.2 to B.4 shows the payment of electricity charges by the defendant. While B memo had been issued to the defendant, it is clear that the defendant is in possession of the poromboke land in which he has been residing for a long time and that he has been paying the property tax for the building in his occupation under Exhibits B.12 and B.13. 21. The learned counsel appearing for the respondent/plaintiff had contended that the first appellate Court had come to the right conclusion based on the evidence available and it was also contended that the plaintiff had sufficiently proved that he is in possession of A schedule property and that the defendant had encroached in a portion of the B schedule property. 22. Based on the submissions made by the the learned counsels appearing for the parties concerned and on a perusal of the records available, this Court is of the considered view that the first appellate Court had found that the plaintiff is in possession and enjoyment of the 0.66 cents of land under his cultivation. On the other hand, the defendant has not been in a position to prove that he is in occupation of 0.01 cent in the B schedule property for nearly 25 years as claimed by him by putting up a hut and building and by getting electricity connection. The first appellate Court, based on the second Commissioner's report, had found that the building said to have been constructed by the defendant is not old as it is claimed to be. The defendant had not proved his claims by sufficient evidence to show that he is in occupation of the portion of the B schedule property for a long time as claimed by him. In such circumstances, the substantial question of law raised on behalf of the defendant is decided in favour of the plaintiff, who is the respondent in the second appeal. 23. For the reasons stated above, this Court finds that there is no ground for interference with the judgment and decree rendered by the lower appellate Court and therefore, the second appeal stands https://hcservices.ecourts.gov.in/hcservices/ dismissed. Consequently, connected C.M.P.No.729 of 1996 is also dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan To: 1. The Subordinate Judge, Mayiladuthurai 2. The District Munsif, Sirkali, 3. The Section Officer, VR Section, High Court, Madras. + 1 CC To Mr. T.R.Rajaraman, Advocate SR NO.21666 + 1 CC To Mr.S.Viswanathan, Advocate SR NO.21290 S.A.No.130 of 1996 ck[co] sky/29.4. https://hcservices.ecourts.gov.in/hcservices/