The unsuccessful defendants in O.S.No.170 of 1996 have approached this Court challenging the judgment and decree dated 31.08.2010 made in A.S.177 of 2008 on the file of Subordinate Judge, Perambalur confirming the Judgment and Decree dated 25.10.2007 passed in O.S.No.170 of 1996 on the file of District Munsif Court, Perambalur.
2. The plaintiffs, who are the respondents herein filed a suit for permanent injunction in O.S.No.170 of 1996 before the District Munsif Court, Perambalur, restraining the defendants in any manner interfering with the peaceful possession of the first plaintiff with respect to the 1st and 2nd items of the suit property and that of the 2nd plaintiff with respect to the 3rd item of the suit property on the basis of Exhibits A1 and A2-assessment properties and also based on Ex.A4 and Ex.A6-patta.
3. The case of the respondents/ plaintiffs is that the land measuring acre 0.13 cents in S.F.No.327/15 of Nannai Village was assigned in favour of the first plaintiff by the Government of Tamil Nadu on 30.04.1980, vide Ex.A1/the original assignment order and further assignment of an extent of acre 0.33 cents in survey No.327/11 of Nannai Village vide A2 was made in favour of the 1st plaintiff. Out of the total extent of land, the first plaintiff has gifted acre 0.12 cents in the said land measuring acre 0.13 cents in S.F.No.327/15 and acre 0.04 cents in the said land measuring acre 0.33 cents in S.F.No.327/11 to Veppur Panchayat Union for the purpose of constructing a Middle School in Nannai Village by means of a registered gift/settlement deed dated 07.10.1982. A portion measuring acre 0.06 cents in the said land measuring acre 0.033 cents in S.F.No.327/11 is already given by the plaintiff for forming Labbaikudikadu Road. The remaining acre 0.01 cent after gifting and acre 0.12 cents in S.F.No.327/15 (New S.F.No.93/15) are described as 1st item of suit properties. The remaining acre 0.23 cents after giving acre 0.06 cents for road and after gifting acre 0.04 cents to Veppur Panchayat Union in S.F.No.327/11 (New S.F.No.93/91) is described hereunder as 2nd item of suit properties. The third item in the suit property is a portion of poramboke land in S.F.No.327/12 of Nannai Village (New S.F.No.93/12) and the same is lying adjacent to South of the 1st item of the suit properties.
4. The defendants filed a written statement before the Court below stating that the suit properties were originally Government poramboke lands and that one Appasamy Udayar, grand father of the first plaintiff and first defendant were in enjoyment of the same and after his life time, his sons viz., the first plaintiff's father viz.,(1) Sengamalai Udayar; first defendant's father viz., (2)Ramasamy and (3) Thangavel were in possession and enjoyment of the same. The first plaintiff's father Sengamalai Udayar being one of the eldest members of the joint family, was maintaining the entire property as a joint family kartha. While so, the above mentioned Thangavelu conveyed his share of the property in favour of the first defendant's mother. In the meanwhile, the first defendant left for North India. During that time, the first plaintiff had abruptly obtained patta suppressing the nature of enjoyment of the family members. Therefore, according to the defendants, the first defendant is entitled to 2/3rd share in the suit properties. Hence, they prayed that the suit filed by the plaintiff may be dismissed.
5. Before the trial Court, the first plaintiff examined himself as P.W.1 and one Arumugam was examined as P.W.2 and Exhibits A-1 to A-11 were marked. The first defendant was examined as D.W.1 and one Arumugam was examined as D.W.2 and yet another Arumugam was examined as D.W.3, and the Village Administrative Officer was examined as D.W.4 and Exhibits B.1- B.16 were marked to rebut the contentions of the plaintiff. According to the appellants/ defendants, the entire suit property belongs to their family and that he is entitled to 2/3 rd of the share.
6.The trial Court after framing necessary issues, by a judgment and decree dated 25.10.2007 decreed the suit in favour of the plaintiffs in item Nos.1 & 2 and dismissed the suit in respect of 3rd item of the suit property. Aggrieved by the said judgment and decree, the appellants/defendants preferred A.S.No.144 of 2008 before the Subordinate Judge, Ariyalur with respect to item No.3 of the suit properties. The lower Appellate Court, by a judgment and decree dated 31.08.2010, dismissed the appeal filed by the appellants/defendants and confirmed the judgment and decree of the Lower Court. Since the 3rd item is a poramboke land, the respondents / plaintiffs have not chosen to prefer any Second Appeal and the judgment and decree, insofar as item 3 of the suit properties is concerned, became final. Aggrieved by the judgment and decree of the lower Appellate Judge in A.S.No.177 of 2008 confirming the judgment and decree of the Trial Court in OS.No.170 of 1996, the appellants/defendants preferred this second appeal.
7. In this Second Appeal, two substantial questions of law have been raised which were framed by this Court:-
(i)Whether the trial Court was right in not discussing and referring a finding on a issue that has been framed?
(ii) Whether the learned appellant Court was right in confirming the judgment and decree of the Lower Court without framing any issue and rendering any finding?
8. Learned counsel for the appellants/defendants submitted that the second defendant is the wife of the first defendant and the first defendant is the son of the 1st plaintiff's deceased paternal uncle Ramasamy Udayar. There was a partition of the suit properties between the 1st plaintiff's father deceased Sengamalai Udayar, 1st defendant's father deceased Ramasamy Udayar and one Thangavel Udayar, another paternal uncle of the 1st plaintiff in the year 1931 and pursuant to the partition, Sengamalai Udayar, Ramasamy Udayar and Thangavel Udayar have taken their respective shares and they were in possession of the suit properties till the death of first defendant's father, late Ramasamy Udayar. After the death of the defendant's father, the share allotted to late Ramasamy Udayar was inherited by the 1st defendant and his sisters and the 1st defendant exclusively sold a major portion of the properties inherited by him from his father to some other third party. It is contended by the appellants/defendants that the plaintiffs have no rights or title over suit properties, which instigated the plaintiffs to file O.S.No.170 of 1996 before the District Munsiff, Perambalur for the relief of permanent injunction.
9. In support of his case, learned counsel for the appellants/defendants relied upon
Section 38(3) of the Specific Relief Act and Order 41 Rule 31 CPC apart from Section 2 of the Tamil Nadu Land Encroachment Act, which are extracted below:-
Sections 38(3) of the Specific Relief Act 38).......
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely;-
(a) Where the defendant is trustee of the property for the plaintiff;
(b)where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. Order 41 Rule 31 CPC Appeals from Original Decrees .....31. Contents, date and signature of Judgment:-
The judgment of the Appellate Court shall be n writing and shall state -
(a) The points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or carried, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the judge or by the Judges concurring therein. Section 2 of the Tamil Nadu Land Encroachment Act 2.Right of property in public roads, etc. waters and lands. -
(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nalas, lakes and tanks and all backwaters, canals and water-courses and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property -
(a) of any zamindar, poligar, mittadar, jagirdar, shrotriemdar or inamdar or any person claiming through or holding under any of them; or
(b) of any person paying kist, kattubadi, jodi, poruppu or quit-rent to any of the aforesaid persons; or
(c) of any person holding under ryotwari tenure, including that of a janmi in the Gudalur taluk of the Nilgiri District and in the transferred territory or in any way subject to the payment of land-revenue direct to Government; or
(d) of any other registered holder of land in proprietary right; or
(e) of any other person holding land under grant from the Government otherwise than by way of license, and, as to land, save also in so far as they are temple-site or owned as house-site or backyard, are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force subject always to all rights of way and other public rights and to the natural and easement right of other land-owners, and to all customary rights legally subsisting.
(2) All public roads and streets, vested in any local authority shall, for the purposes of this Act, be deemed to be the property of Government.
10. Learned counsel for the appellants further submitted that house sites will not come under the purview of
Section 2 of the Tamil nadu Land Encroachment Act and hence, both the Courts below ought to have dismissed the suit and granted relief in entirety. He further contended that the assignment of Ex.A.1. title is invalid and the findings of the Courts below are perverse and hence this Court is entitled to interfere with the findings rendered.
11. In reply, the learned counsel appearing for the respondents/ plaintiffs submitted that the Lower Appellate Court has rendered a finding that Exs.A.1 and A2 are valid and that the assignment is valid and they are in possession of the property. It is submitted by the plaintiffs that the issue that has been framed by the lower appellate Court was not at all raised in the written statement.
12. It is seen that issues were framed and a finding has been rendered against the Appellants/Defendants and the contention that the Courts below have not framed any proper issues and rendered a finding, is not at all correct. That apart, the Appellants/Defendants have not filed any counter claim and the fact that there was a partition earlier and the property has been vested with the plaintiff's father and the defendant's father and one Thangavel Udayar based on the assignment deeds and out of 0.13 cents in Survey No.327/15, 0.12 cents have been settled for construction of School, 0.04 cents of additional land have been given in S.No.327/11 for additional construction of School, apart from the fact that 0.46 cents have been settled and in S.No.327/11 for construction of road and that the plaintiff retained a total of 24 cents of land in S.No.327/15 and 327/11 put together. The contention of the appellants/defendants that the assignment is invalid and that the finding of the trial Court as confirmed by the Lower Appellate Court is perverse, cannot be accepted.
13.In this regard, admittedly, issues have been framed by the Lower Appellate Court and duly discussed and necessary findings have been rendered. Hence, I find that there is no reason to grant the relief sought by the Appellants/Defendants in the Second appeal. There is no perversity in the findings of the lower Court and the lower Appellate Court. That apart, the concurrent findings of the Courts below do not warrant any interference by this Court under Section 100 CPC. It is settled law from a catena of decisions of the Supreme Court and this Court that the findings of facts concurrently recorded by the trial court, as also by the lower appellate court, could not be legally upset by this Court, sitting in Second Appeal under Section 100 CPC, unless it is shown that the findings are perverse, being based on no evidence or that on the evidence on record, no reasonable person could come to that conclusion. Further, the scope for interference with the concurrent findings of fact, while exercising jurisdiction under Section 100 CPC, is very limited, and re-appreciation of evidence is not permissible, and if the trial court and the first appellate court misdirected themselves in appreciating the question of law or placed the onus on the wrong party, certainly, there is a scope for interference under Section 100 CPC.
14. Hence, this Court finds no illegality or perversity in the concurrent findings of both the Courts below, and hence, they are liable to be confirmed. While dismissing the Second Appeal, this court confirms the judgment and decree of the trial Court as confirmed by the Lower Appellate Court. No costs. Consequently, connected miscellaneous petition M.P.No.1 of 2011 is closed.
29.06.2017 Speaking order/non-speaking order : Yes / No Index : Yes/no Internet : Yes/no sts To:
1) The Subordinate Judge, Perambalur,
2) The District Munsiff, Perambalur.
3) The Section Officer, V.R. Section, High Court, Madras.
S.VAIDYANATHAN, J sts Judgment in S.A.No.1596 of 2011 29.06.2017