-vs-
M.S.Farook ... Respondent in S.A.No.304 of 1998 & Appellant in S.A.No.853 of 2000 / Plaintiff PRAYER (S.A.No.304 of 1998): Appeal is filed under Section 100 of the Civil Procedure Code against the Judgment and Decree made in A.S.No.39 of 1997, dated 14.10.1997, on the file of the Subordinate Judge Court at Pudukkottai partly reversing the Judgment and Decree made in O.S.No.201 of 1994, dated 12.04.1996, on the file of the Principal District Munsif Court at Pudukottai.
PRAYER (S.A.No.853 of 2000): Appeal is filed under Section 100 of the Civil Procedure Code against the Judgment and Decree of the learned Subordinate Judge, Pudukkottai, dated 14.10.1997 in Cross Objection in A.S.No.39 of 1997, confirming the Judgment and Decree of the learned Principal District Munsif, Pudukottai, dated 12.04.1996 in O.S.No.201 of 1994.
Since both the second appeals have been directed as against the same Judgment and Decree of the Lower Appellate Court, they were clubbed together, heard together and are being disposed of by this common Judgment.
2. The respective plaintiff and the defendant are the appellant and respondent in both the appeals.
3. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
4. The plaintiff filed the suit, in O.S.No.201 of 1994, before the learned Principal District Munsif, Pudukottai, for the relief of permanent injunction.
5. After contest, the learned Principal District Munsif, Pudukottai, by Judgment and Decree, dated 12.04.1996, decreed the suit in respect of the land wherein the plaintiff has constructed a house and disallowed the suit in respect of 6 Feet vacant land.
6. Aggrieved by allowed portion of the Judgment and Decree passed by the learned Principal District Munsif, Pudukottai, the defendant preferred an appeal, in A.S.No.39 of 1997, before the learned Subordinate Judge, Pudukottai and in the said appeal, the plaintiff had also filed a cross objection in respect of the disallowed portion of the suit.
7. After contest, the learned Subordinate Judge, Pudukottai, by Judgment and Decree, dated 14.10.1997, dismissed the appeal as well as the cross objection and confirmed the Judgment and Decree of the Trial Court.
8. Challenging the correctness of the Judgment and Decree passed by the learned Subordinate Judge, Pudukottai, as stated supra, the respective parties have preferred the second appeals.
9. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The suit property was originally belonged to Adaikkammai, wife of Subramanian. She paid the necessary kists and was in possession of the suit property. The said Adaikkammai along with her son sold the suit property to the plaintiff on condition basis. Since the vendors had not handed over the possession of the suit property to the plaintiff as per the conditional sale, he filed a suit in O.S.No.739 of 1983, before the learned District Munsif, Pudukottai and the same was dismissed and challenging the same, he preferred an appeal in A.S.No.6 of 1986 and the same was allowed in favour of the plaintiff. Thereafter, the suit property was auctioned in E.P.No.316 of 1986 and in the said auction, one Thangappan was the successful bidder and he took the possession of the suit property. The plaintiff purchased the suit property from the said Thangappan and is in possession and enjoyment of the suit property. The plaintiff put up a fencing leaving 6 Feet on the southern side as vacant. The defendant is residing in the southern side of the suit property. She defendant has no right, title or interest over the suit property. Since the defendant tried to interfere with the plaintiff's peaceful possession and enjoyment of the suit property, the plaintiff filed the suit.
10. The brief averments of the written statement filed by the defendant that are necessary to decide this appeal are as follows:
It is incorrect to state that the suit property was originally belonged to Adaikkammai. The rough sketch, which has been filed along with the written statement, has to be taken as a part of the written statement. The suit property is mentioned in the rough sketch as ?ABHC? and in which ?ABCD? is comprised in Survey No.4701. The property marked as ?CDGH?, which is lying on the southern side of the Manipallam Road, is comprised in Survey No.4702. The plaintiff constructed a house in ?ABFE? in a hasty manner. The defendant has right in ?CDEF? and ?EFG?. The land in Survey No.4702 was assigned in favour of poor people by the Government in the year 1977 as house-sites. Accordingly, Plot No.294 was sold to one Chellammal. On 05.10.1980, the said Chellammal sold the said Plot No.294 in favour of one Mangayarkarasi, who inturn sold the said plot to the defendant on 28.02.1982. Ever since the date of purchase, the defendant became the absolute owner of Plot No.294. Since the aforesaid sales were unregistered and the cost of the land was increased, on 04.05.1988, the said Chellammal registered her sale in order to avoid unnecessary litigations. The defendant has right, title and interest over the plot bearing No.294, which is situated on the southern side of the land in Survey No.4701 and in which, the plaintiff has no right, title or interest. The plaintiff tried to put up construction in the road margin of the land in Survey No.4701. Since the access of the defendant to the road was obstructed, she prevented the plaintiff from putting up construction. However, when the defendant was out of station, the plaintiff put up construction. Since the defendant raised objection, the plaintiff could not proceed with the construction. The plaintiff or his predecessors have no right, title or interest over the suit property. It is incorrect to state that the plaintiff purchased the suit property from one Thangappan. Therefore, the suit is liable to be dismissed with costs.
11. Based upon the above pleadings, the Trial Court had framed as many as many as three issues for consideration.
12. The plaintiff, in order to substantiate his plea, had examined himself as P.W.1 and examined Thangappan and Pattammal as P.Ws.2 and 3 and marked Exs.A1 to A10 and on the side of the defendant, Thyagarajan and Vaiyapuri were examined as D.Ws.1 and 2 and marked Exs.B1 to B3. Besides, the Advocate Commissioner was examined as C.W.1 and marked Exs.C1 to C3.
13. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiff is in possession of ?EFCD?, wherein he has constructed a house and partly decreed the suit in respect of the said ?EFCD? and dismissed the suit in respect of 6 Feet vacant land on the southern side.
14. Aggrieved by the same, the defendant preferred an appeal in A.S.No39 of 1997, before the learned Subordinate Judge, Pudukkottai and in which as stated above, aggrieved by the disallowed portion of the Judgment and Decree of the Trial Court, the plaintiff filed a cross objection and the learned First Appellate Judge, by Judgment and Decree, dated 14.10.1997, as stated above, dismissed the appeal and confirmed the Judgment and Decree of the Trial Court.
15. Challenging the correctness of the Judgment and Decree of the First Appellate Court, as stated above, the respective parties have filed the present second appeals.
16. At the time of admission of S.A.No.304 of 1998, the following substantial questions of law were framed for consideration:
1. Whether the Judgment and Decree of the courts below are sustainable in law when the Trial Court has categorically found that the respondent has not established the possession of the property described in the plaint by producing any Government records and patta and plan?
2. Whether the Judgment and Decree of the Courts below are sustainable in law when the Trial Court has held that the suit property has not been identified by the respondent in the context of the description of the property given in the plaint and on the basis of the Commissioner's report?
17. At the time of admission of S.A.No.853 of 2000, the following substantial questions of law were framed for consideration:
1. Whether the Courts below committed an error in brushing aside Exs.A1 to A3, without appreciating their evidentiary value under
Section 13 of the Evidence Act?
2. Whether the Judgment of the Lower Appellate Court is against law and not in accordance with order 41 Rule 31 C.P.C?
3. Whether the Courts below committed an error in not applying the rule of evidence contained in
Section 110 Evidence Act?
18. These two appeals are arisen from the Judgment and Decree made in O.S.No.201 of 1994, on the file of the learned Principal District Munsif, Pudukkottai, filed by M.S.Farooq / respondent in S.A.No.304 of 1998, wherein he sought the relief of permanent injunction to an extent of 1102 sq.ft., of land, comprised in T.S.No.4702, on the ground that he had purchased the same from P.W.2 Thangappan, who had purchased the same in a Court auction sale under Exs.A1 to A3. The appellant in S.A.No.304 of 1998 is a person in occupation of the property situated on the western side of the suit property. According to the plaintiff, as the defendant trying to interfere with his land, he has sought the relief of permanent injunction.
19. As stated supra, after contest, the suit was decreed to a limited extent of EFCD in Ex.C2 Sketch i.e., after disallowing 6 Feet vacant land on the southern side and the relief of permanent injunction was granted only in respect of EFCD. As against the grant of decree, the defendant preferred an appeal in A.S.No.39 of 1997, before the learned Subordinate Judge, Pudukkottai, and in respect of the disallowed portion of 6 Feet vacant land on the southern side of the suit property, the plaintiff filed a cross objection in the said appeal.
20. As against the Judgment and Decree made in A.S.No.39 of 1997, the defeated defendant has preferred S.A.No.304 of 1998 and the unsuccessful plaintiff in respect of the disallowed portion under the cross-objection has preferred S.A.No.853 of 2000.
21. The admitted factual matrix are as follows:
The plaint proceeds on the basis that the suit property was originally belonged to one Adaikkammai, wife of Subramani and she had been paying the kists. In order to meet the family expenses, she along with her son Muthiah had executed a conditional sale for Rs.3,650/- in favour of the plaintiff. The conditional sale was not completed which resulted in filing of O.S.No.739 of 1983, before the learned District Munsif, Pudukkottai and the same was dismissed and challenging the same, appeal was preferred in A.S.No.6 of 1986 and the same was allowed in favour of the plaintiff and thereafter, in pursuance of the execution proceedings in E.P.No.316 of 1986, the suit property was sold in a Court auction and in which, P.W.2 Thangappan, son of Mari, was the successful bidder and he took the possession of the suit property and on 08.06.1987 the sale was confirmed and a sale certificate was issued in his favour. Thereafter, Thangappan sold the said property in favour of the plaintiff, under Ex.A6 Sale Deed, dated 30.12.1987 and ever since the date of purchase, he is in possession of the suit property and he has been paying the house tax under Exs.A4, A5 and A8.
22. Per contra, the defendant resisted the claim of the plaintiff on the ground that she had purchased Plot No.294, from Mangayarkarasi.
23. Before the Trial Court, in order to resolve the issue, one Mr.A.Pooranachandran was appointed as Advocate Commissioner and he examined himself as C.W.1 and he marked his Report, Sketch and the Statement of Revenue Inspector given during the time of inspection as Exs.C1, C2 and C3 respectively.
24. The Trial Court, based upon the evidence of C.W.1 Advocate Commissioner, Ex.C2 Sketch, wherein it is stated that ?V, gp, N, v|g; gFjpia thjp fy; Cd;wp fhk;gt[z;lhf itj;J mDgtpf;fpwhh;. ??V, gp, N, v|g?; gFjp o.v!;.vz;.4701y; mlA;fp cs;sJ. tHf;F brhj;J o.v!;.vz;.4702y; fl;Lg;gl;Ls;sJ vd;gijj; jtpu, ve;j cl;gphptpy; tUfpwJ vd vd;dhy; brhy;y KoahJ and Ex.C3 Statement given by the Revenue Inspector before the Advocate Commissioner during inspection, wherein it is stated that jhth nlj;jpd; vy;iyia mse;J fhz;gpg;gjw;F, efuhl;rpapy; cs;s g[yg;gl efypy; cl;gphpt[ bra;J mst[fs; vJt[k; Fwpg;gplg;glhjjhy;, jhth nlj;ij mse;J vy;iy fhz;gpf;f naytpy;iy. BkYk; jhth nlkhdJ o.v!;.vz; 4702 efuhl;rpapy; cs;s fzf;Ffspd;go xBu KG g[ykhf 9 Vf;fh; 80 brz;l; tp!;jPuzk; cs;sJ vd;W gjpt[fs; Bkw;bfhs;sg;gl;Ls;sJ decreed the suit to a limited extent ?EFCD?, wherein the plaintiff has constructed a house and rejected the suit in respect of 6 Feet vacant land situated on the southern side of ?EFCD?.
25. On perusal of Exs.A1 to A3 it is seen that Exs.A1 to A3 are Confirmation Certificate, Delivery Order and Sale Certificate respectively issued by the learned District Munsif, Pudukkottai, in O.S.No.739 of 1983 in E.P.No.316 of 1986 and on perusal of Ex.A6 it is seen that the suit property was sold by Thangappan, who is the Successful Bidder in the Court Auction, to the plaintiff, who constructed a house thereon thereafter and has been paying house tax as it could be seen from Exs.A4, A5 and A8.
26. At this juncture, it is relevant to refer the Section 114 (e) of the Indian Evidence Act, which is extracted as under:
?114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case- .......
.......
(e) That judicial and official acts have been regularly performed;?
27. On perusal of Ex.C2 Sketch, it is seen that there is a barbed fencing on the southern side of the property. On a combined reading of the presumption clause as envisaged in the Indian Evidence Act coupled with the physical features noted by the Advocate Commissioner in Ex.C2 Sketch, this Court finds that the measurement given by the plaintiff in the plaint and the Confirmation Certificate, Delivery Order and Sale Certificate issued by the learned District Munsif, Pudukkottai, under Exs.A1 to A3 duly stands corroborated. The Revenue Authorities have not issued Patta to the suit property, since according to them, it is a Government Poromboke land. Admittedly, the defendant is a neighbour, whose land also falls under the same survey number and she has also not produced any document to show that she has title on herself in respect of the disputed property. Asfar as the plaintiff is concerned, he has better title as against the defendant, since he has purchased the suit property from P.W.2 Thangappan, who is the Successful Bidder in the Court Auction, which was reflected in Exs.A1 to A3 for a total extent covered under the plaint. Both the Trial Court as well as the Appellate Court have not gone into this issue and they have swayed away by the fact of the statement given by the Municipal Sub Inspector, who was not examined before the Court nor subjected to the cross-examination of the parties to elicit the features of the suit property. His statement given to the Advocate Commissioner during the time of inspection of the suit property has been marked as Ex.C3. It has neither negatived the possession of the plaintiff nor supported the defendant's rival claim.
28. Both the Courts below have taken note of the fact that as per Ex.C2 Sketch, the property of the plaintiff is ?EBCD?, wherein he has constructed a building on the southern side and back of it 6 Feet was left as vacant and thereafter a barbed fencing is found. However, both the Courts below have negatived the relief of injunction in respect of the 6 Feet vacant land on the ground that there was no entrance from the southern side to the building and therefore, both the Courts below have wrongly come to the conclusion that the plaintiff was not in possession of the 6 Feet vacant land, which cannot be accepted, because as per Exs.C1 and C2 Advocate Commissioner's Report and Sketch, ?ABCD? covers the place as given in Exs.A1 to A3 and it is also pertinent to note that the defendant has also marked Ex.B1 Sale Deed in respect of the vacant land. But, both the parties have not produced Patta.
29. Furthermore, though the defendant claimed that she has obtained a Sale Deed from Chellammal, she has failed to produce the same before the Court. As per Ex.C2, the total extent of T.S.No.4702 is 8 Acres and that was not sub-divided and therefore, which part the defendant had purchased could not be identified nor she has adduced evidence to identify her alleged possession. In such circumstances, defendant cannot disturb the plaintiff in respect of 6 Feet vacant land on the southern side. At the risk of repetition, but for the sake of clarity, it is to be stated that both the Courts below have found that barbed fencing exists upto the land as prescribed in Ex.C1 Advocate Commissioner's Report and therefore, they ought to have decreed the suit instead of restricting to a limited extent. In this view of the matter, this Court is of the considered view that ?ABCD? in Ex.C2 Sketch, which reflecting the extent and measurement of the land in Exs.A1 to A3, is found to be in possession of the plaintiff and therefore, the Courts below ought to have granted the relief of injunction to the extent covered in Exs.A1 to A3 and the rejection of the cross objection of the plaintiff without assigning any reason is against the provisions of Order XLI Rule 31 C.P.C., and both the Courts below have not considered the evidenciary value of Exs.A1 to A3 being relevant fact as reflected in
Section 13 of the Indian Evidence Act and hence the 1st and 2nd substantial questions of law in S.A.No.853 of 2000 are answered in favour of the appellant / cross objector / plaintiff and the 3rd substantial question of law does not arise, since it is not a suit for declaration of title.
30. For the reasons stated in the preceding paragraphs and in view of Exs.A1 to A3, the 1st substantial question of law in S.A.No.304 of 1998 does not arise in view of the specific fact that they are Court documents and the 2nd substantial question of law in S.A.No.304 of 1998 is held against the appellant / defendant. The plaintiff is entitled for the relief of injunction in respect of the entire extent of land covered in ?ABCD? in Ex.C2 Sketch and accordingly, S.A.No.853 of 2000 is allowed and the Judgment and Decree of both the Courts below rejecting the relief in respect of 6 Feet vacant on the southern side are set aside and the suit is decreed in its entirety and thereby injunction is granted in favour of the plaintiff as prayed for in respect of the entire property covered under ?ABCD? in Ex.C1 Advocate Commissioner's Report.
31. In fine, i. S.A.No.304 of 1998 is dismissed and the Judgment and Decree, dated 14.10.1997, made in A.S.No.39 of 1997, by the learned Subordinate Judge, Pudukkottai, partly reversing the Judgment and Decree, dated 12.04.1996, made in O.S.No.201 of 1994, by the learned Principal District Munsif, Pudukottai, are set aside.
ii. S.A.No.853 of 2000 is allowed and the Judgment and Decree, dated 14.10.1997, made in Cross Objection in A.S.No.39 of 1997, by the learned Subordinate Judge, Pudukkottai, confirming the Judgment and Decree, dated 12.04.1996, made in O.S.No.201 of 1994, by the learned Principal District Munsif, Pudukottai, are reversed and modified.
iii. The suit in O.S.No.201 of 1994, on the file of the learned Principal District Munsif, Pudukkottai, is decreed as prayed for. iv. No costs. Consequently, connected civil miscellaneous petition is closed.
To:
1.The Subordinate Judge, Pudukottai.
2.The Principal District Munsif, Pudukottai..