Allowed

Karthikeyan v. Chinnan

Madras HC16 Dec 2016SA/1743/1998

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for permanent injunction over land with coconut trees, the High Court restored the trial court's judgment. The court held that the appellate court erred in dismissing the plaintiff's claim based on post-suit exhibits and B memos, noting the plaintiff's established possession and the defendants' recent allotment.

What did the court decide?

The judgment and decree of the first appellate court were set aside, and the trial court's judgment and decree in O.S.No.594 of 1993 were restored. No costs.

Karthikeyan Vs Chinnan — Property and Title | Madras HC (2016)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

Reserved on :14.12.2016 Pronounced on :16.12.2016

¶3

CORAM

¶4

THE HON'BLE DR. JUSTICE G.JAYACHANDRAN

¶5

Second Appeal No.1743 of 1998

¶6

Karthikeyan ..Appellant/Plaintiff

¶7

/vs/

¶8

1.Chinnan 2.Raman 3.Government of Tamil Nadu, Rep.by District Collecotr, Erode.

¶9

(R-3 is given up in the appeal) (deleted vide order of Court dated 21.11.2011 made in C.M.P. No.1089 of 2011 in S.A. No.1748/98) ..Respondents/Defendants

¶10

Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree of the learned Subordinate Judge, Bhavani, Erode District in A.S.No.23 of 1998 dated 28.08.1998 preferred against the judgment and decree of the learned Additional District Munsif of Bhavani in O.S.No.594 of 1993, dated 22.12.1997.

¶11

For Appellant :Mr.A.K.Kumarasamy For Respondents 1 & 2 :Mr.T.Murugamanickam

¶12

JUDGMENT

¶13

The plaintiff is the appellant herein. The suit in O.S.No.594 of 1993 for permanent injunction against the defendants was allowed by the trial Court. Whereas, appeal in A.S.No.23 of 1998 preferred by the defendants 2 and 3, was allowed and the trial Court's judgement was reversed. Aggrieved by the dismissal of the suit, the present Second Appeal is filed.

¶14

For convenient sake, the parties are described, as per their status and ranking in the trial Court.

¶15

https://hcservices.ecourts.gov.in/hcservices/

¶16

According to the plaint, the plaintiff is the owner of 5.82 acres land in R.S.No.63 of the suit Village. On the northern side of his property, the residential colony of the defendants 2 and 3 is located. The plaintiff has putup a livefencing on the northern boundary 50 years ago and had planted coconut saplings 22 years ago. The coconut trees are now grown up and yielding. The defendants 2 and 3, due to political enmity, are inciting the Harijan Colony residents to trespass into the plaintiff's land.

¶17

The 1^st defendant, in his written statement, has denied the averments made in the plaint, including existence of the livefence and coconut trees lying on the northern boundary of the plaintiff. The fence and coconut trees are not in the plaintiff's land. Without serving Section 80 CPC notice, the suit has been filed and hence, liable to be dismissed.

¶18

The defendants 2 and 3 in their counter besides denying the plaint averments, has avered that Government assigned housesites to Harijans in S.No.14/3. The plaintiff has encroached the open space left on the southern portion of the colony and has put up fence. The plaintiff has therefore, not mentioned in the suit schedule, where exactly the fence and coconut trees lie on the field. The coconut saplings were planted by the Harijan colony people and they are enjoying its usufructs. At request, the plaintiff was allowed to put up fence on his northern boundary to prevent cattles entering into his field. Since misunderstanding erupted regarding wage, the plaintiff has filed the suit, without any right over the 23 coconut trees planted by the harijan colony residents.

¶19

The trial Court has framed the following issues:(1) Whether the plaintiff is entitled for the relief of permanent injunction? (2) What other relief?

¶20

After examining two witnesses on behalf of the plaintiff, one witness on behalf of the defendants, admitting Seven(7) Exhibits for plaintiff and Eight (8 )Exhibits for defendants through these witnesses and Exs.C1 and C2 through Advocate Commissioner, the trial Court granted injunction and allowed the suit as prayed. On appeal by the defendants 2 and 3, the first appellate Court has allowed the appeal and dimissed the suit.

¶21

At the time of admission, this Court framed the following Substantial Questions of Law:

¶22

(1)Whether the lower appellate Court is right in relying on Ex.B.4 to Ex.B6 to negative the relief to the plaintiff

¶23

https://hcservices.ecourts.gov.in/hcservices/

¶24

overlooking that Ex.B.4 to B.6 are after the suit and hence no value can be attached to the same?

¶25

(2)Whether the lower appellate Court after having found that Government has no right to issue B memos. after assignment and grant of patta to third party is justified in relying on the B memos to negative the reliefs to plaintiff?

¶26

In this suit for injunction, the short point involved is, whether the plaintiff has proved possession of the suit property and has better title over it than the defendants. The defendants admit that the plaintiff has put up the fence in his northern boundary to protect cattles from entering into his land. It is also not the case of the respondents that the land, in which the fence is put up, is owned by them.

¶27

The Commissioner's report reveals that on the northern side of the plaintiff's land, 23 trees in row similar in size and age, are found. The defendants though claim that these trees were planted by them, it is beyond any truth, because the defendants were allotted the house sites very recently, whereas the trees are more than 25 years old.

¶28

The learned counsel for the appellant submitted that it is not the case of the respondents that the land on which the livefence and coconut trees are grown, is assigned to them. Their only claim right over the property on the ground they planted and are in enjoyment of the usufructs of coconuts. The plaintiff was permitted to put up fence to protect his field from cattles. While the trial Court has right in granting relief of injunction, the appellate Court has erronously reversed the trial Court judgment shifting the burden on the plaintiff to establish the fence is not in S.No.14/3.

¶29

Per contra, the learned counsel appearing for the respondents submitted that in a suit for permanent injunction, the description of the property, which requires protection, is very essential. In the absence of description adequate to identify the property, injunction cannot be granted. In this case, the plaintiff has failed to describe the property as required under the law, on this point itself, the appeal has to be dismissed.

¶30

On scrutiny of exhibits, deposition and the judgments of the Courts below, this Court finds that the trial Court has rightly understood the pleadings, evidence and relief sought and granted injunction in favour of the plaintiff based on his possession. At the same time, the trial Court has given liberty to the defendants to approach the surveyor and measure

¶31

https://hcservices.ecourts.gov.in/hcservices/

¶32

the field to ascertain, whether the fence and coconut trees fall within the area allotted to Harijan colony. The first appellate Court has reversed the trial Court's finding by holding that through Exs.B4 to 6, it could be inferred that the plaintiff has encroached unauthorisedly into S.No.14/3 and the coconut trees fall under S.No.14/3.

¶33

No doubt, in the plaint schedule, the suit property and its northern boundary are not morefully described. However, the Advocate Commissioner on inspection of the suit property has provided with Sketch and Report about the physical feature of the property. Moreover the respondents admit that the plaintiff has put up fence on his northern boundary. Their claim is only to enjoy the coconut trees, which is on the south of the fence. The Advocate Commissioner's report mention that the fence is old and coconut trees are grown up and yielding. The trees are in row and impossible for the residents on the further north, who have been allotted sites recently to have planted it. The patta for the defendents 2 and 3 and people alike, only for a part of S.No.14/3. It is not the case of the defendents that the portion, in which the plaintiff's fence and coconut trees lie, is granted patta to any of the beneficiary.

¶34

Only in case, whether the fence and trees are in the patta land of others, the possession and enjoyment of the plaintiff is not liable to be protected by way of injunction. Otherwise so long the land is not assigned to anyone and 'B' memo is in favour of the plaintiff, the plaintiff is entitled to enjoy it on payment of 'B' memo kist. The admission of the defendants in respect of the fence found in the north of the plaintiff's land is overlooked by the lower appellate Court and the probative value of 'B' memo (Exs.B3 to B6) has not been given due weightage by the lower Appellate Court, when no other better document is available in respect of the suit property. For the foregoing reasons, the Substantial Questions of Law are answered in favour of the appellant.

¶35

In the result, the Second Appeal is allowed and the judgment and decree of the first appeallte Court in A.S.No.23 of 1998, dated 28.08.1998 are set aside. The judgment and decree of the trial Court in O.S.No.594 of 1993 dated 22.12.1997 are restored. No costs.

¶36

-s/dAssistant Registrar

¶37

True Copy

¶38

Sub-Assistant Registrar

¶39

ari

¶40

https://hcservices.ecourts.gov.in/hcservices/

¶41

¶42

1.The Subordinate Judge, Bhavani, Erode District.

¶43

2.The Additional District Munsif, Bhavani.

¶44

coy to

¶45

The Section Officer VR Section High Court Madras +1 cc to Mr.A.K.Kumarasamy Advocate sr 73824 +1 cc to Mr.T.Murugamanickam Advocate sr73522 S.A.No.1743 of 1998 pa(co) aa24/01/2017

¶46

https://hcservices.ecourts.gov.in/hcservices/

Karthikeyan v. Chinnan

Case brief

What is this about?

What did the court decide?

Karthikeyan v. Chinnan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Varavenappa Vs Maravenappa

Kuttiporichankandy Kelan Vs Mandrolil Usman

Thiagaraja Gurukkal, Vs District Collector

Mrs. Hamsa Bai (Deceased) Vs Dharanibai @ Prema

V.Karuppannan Vs Ponnammal

M/S Kalpaka Transport Vs M/S United India