Partly allowed

1. Pappal v. Kuttiappa Gounder(Deceased)

Madras HC16 Apr 2019SA/1428/1997

Case brief

AI extract

What is this about?

The High Court partly allowed the second appeal, modifying lower courts' judgments to clarify title boundaries. The Court held the plaintiffs only own a specific patta land portion and part of surrounding poramboke land, while rejecting their claim over a shed and a stone wall based on adversarial admissions and survey reports showing the wall lay within the defendants' land.

What did the court decide?

Decree modified: Plaintiff is entitled to declaration and injunction over 1.03.5 hectares in S.F.No.687/2E and poramboke land in S.F.No.688 adjacent to patta land. Suit dismissed regarding the shed an

1. Pappal Vs Kuttiappa Gounder(Deceased) — Property and Title | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 04.04.2019 PRONOUNCED ON : 16.04.2019

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CORAM

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THE HONOURABLE Mr.JUSTICE P.RAJAMANICKAM

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S.A.No.1428 of 1997

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and CMP.No.14318 of 1997

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Pappal 2 Marappa Gounder 3.Velumani ...Appellants/ Appellants/Defendants Vs. 1. Kuttiappa Gounder (Deceased) 2. Sellammal (died) 3. Palanisamy 4. Pavayee @ Mayili 5. Selvamani 6. Easwari ... Respondents/Respondents/Plaintiffs (RR2 to RR6 brought on record as LRs of the deceased sole respondent vide order of Court dated 10.12.2018 made in CMP.Nos.164 & 165 of 2010)

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PRAYER : Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 21.03.1997 on the file of the Subordinate Judge, Bhavani in A.S.No.41 of 1996 preferred against the Judgment and Decree of the District Munsif, Bhavani, in O.S.No.333 of 1989 dated 27.09.1996.

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For Appellants : M/s.J.Prithvi

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& M/s. A.K. Kumarasamy

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For Respondents : Set exparte

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JUDGMENT

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This Second Appeal has been filed by the defendants against the judgment and decree passed by the Sub-Judge, Bhavani, in A.S.No.41 of 1996 dated 21.03.1997 modifying the judgment and decree passed by the District Munsif, Bhavani, in O.S.No.333 of 1989 dated 27.09.1996.

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The first respondent herein had filed a suit in O.S.No.333 of 1989 on the file of the District Munsif, Bhavani, to declare his title over the item No.1 of the suit properties and for permanent injunction restraining the defendants, their

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men, etc., from interfering with his peaceful possession and enjoyment of item Nos.1 and 2 of the suit properties. The learned District Munsif, Bhavani, by the judgment dated 27.04.1996, had decreed the suit as prayed for. Aggrieved by the same, the defendants had filed an appeal in A.S.No.41 of 1996 on the file of the Sub-Judge Bhavani. The learned Sub-Judge, Bhavani, by the judgment dated 21.03.1997 had partly allowed the said appeal and modified the judgment and decree passed by the trial court and declared the stone wall as common to both the parties and also declared that the property admeasuring 1.03.5 hectares in S.No.687/2E and the thatched house shown as H2 in Ex.C4 plan as belong to the plaintiff and granted permanent injunction in respect of the aforesaid properties and also the properties situated in S.No.688 on the western side of the thatched shed shown as H2 in Ex.C4 plan. In respect of other reliefs, the suit has been dismissed. Further, it was ordered that Exs.C3 and C4 shall form part of the decree. Feeling aggrieved, the defendants filed the present second appeal. For the sake of convenience, the parties are referred to as described before the trial court.

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The averments made in the plaint are in brief as follows: The first defendant is the wife of the second defendant. The third defendant is the son of the defendants 1 and 2. The plaintiff is the owner of the land admeasuring 1.03.05 hectares comprising in S.F.No.687/2E of Sennampatti Village, Bhavani Taluk. He also owns land in S.F.Nos.687/2A and a common ½ share in S.No.687/2B and 687/2C wherein well, vari etc., are situated. S.No.687/2E is a garden land and it is an ancestral property allotted to the plaintiff in the partition which took place on 05.03.1968. To the north of S.F.No.687/2E is S.F.No.687/1B which belongs to the first defendant. She purchased the same from one Kuttiappan on 16.06.1980. S.F.No.688 is a poramboke land which is situated on the west of S.No.687/1B and 687/2E. The plaintiff constructed a thatched house in the poramboke land (S.F.No.688) adjoining his patta land about 30 years ago. The plaintiff's encroachment in S.F.No.688 is about 0.05.0 hectare. He is paying penal charges to the Government. The first defendant also encroached S.F.No.688 which is to the north of the portion encroached by the plaintiff. It appears that the encroachment is booked in the second defendant's name. The plaintiff is enjoying his patta land as well as the encroached poramboke land as a single block. So also the first defendant and her husband are enjoying their patta land and the encroached poramboke land in a single block. The plaintiff's land and the defendant's land were divided by a stone wall and a fence with row of unja trees in line with the stone wall. The said wall is marked as 'ABCD' in the plaint rough plan. The stone wall was constructed by Kuttiappan the first defendant's

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vendor about 20 years ago. The plaintiff has been in possession and enjoyment of block of land south of 'ABCDE' all along for the past twenty years.

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Even if a portion of S.No.687/1B lies to the South and West of the stone wall, the plaintiff has prescribed his title to the same by adverse possession since he has been in possession and enjoyment of the same peacefully, openly, as of right, continuously and without any interruption for more than 20 years. The land south of 'ABCDE' is described in the plaint as suit property, patta land being described as Item No.1 and poramboke land as Item No.2. Due to recent enmity, the defendants are attempting to trespass into the suit properties and as a prelude on 26.06.1989, the defendants dismantled and removed the stone wall from C to D and hence the plaintiff was constrained to file the above suit for the relief of declaration and permanent injunction.

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The averments made in the written statement filed by the defendants 1 to 3 are in brief as follows:

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The ownership of the plaintiff over his land in S.No.687/2E is admitted. It is also admitted that S.F.No.687/1B is situated to the north of S.No.687/2E and the said S.F.No.687/1B belongs to the first defendant, having purchased the same from one Kuttiappan on 16.06.1980. It is also admitted that S.F.No.688 adjoining 687/1B and 687/2 E on the West is a poramboke land. It is not correct to say that the plaintiff constructed the thatched house in a poramboke land in S.F.No.688 adjoining his patta land about 30 years ago and the plaintiff's encroachment is about 0.05.0 hectares. It is not correct to say that the plaintiff is enjoying his patta land as well as encroached poramboke land as a single block and the first defendant and her husband also are enjoying their patta land and encroached poramboke land in a single block. It is not correct to say that the plaintiff's block of land and the defendants block of land are divided by a stone wall and a fence with a row of unga trees in line with stone wall. The rough plan filed along with the plaint is not correct and the same is not depicting the correct picture. The alleged ABCD and fence trespassing the wall are not in line with the wall marked as D.E. It is false to say that the defendants a week ago had removed a stone wall between the points C and D. It is false to say that the stone wall was constructed by the Kuttiappan, the first defendant's vendor and the plaintiff about 20 years ago. It is false to say that even if a portion of S.F.No.687/1B lies to south and west of the stone wall, the plaintiff had prescribed his title to the same by adverse possession. After purchase of S.F.No.687/1B the defendants constructed the said stone wall to prevent the land sliding and soil erosion. Therefore, the plaintiff cannot claim any right over the said

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wall. The thatched shed marked as H2 in the Commissioner's plan has not been constructed by the plaintiff. It was constructed by the defendants and hence the plaintiff cannot claim any right over the same. Therefore, the defendants 1 to 3 prayed to dismiss the suit.

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Based on the aforesaid pleadings, the learned District Munsif, Bhavani, had framed necessary issues and tried the suit. During trial, on the side of the plaintiff, the plaintiff examined himself as PW1 and he also examined two more witnesses as PWs2 and 3. He has marked Exs.A1 to A7 as exhibits on his side. On the side of the defendants, the second defendant was examined as DW1 and Exs.B1 to B8 were marked as exhibits. The Advocate Commissioner's reports and plans were marked as Exs.C1 to C6.

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The learned District Munsif, Bhavani, after considering the materials placed before him, found that the plaintiff and the defendants had jointly constructed the said stone wall between their lands. He further found that the thatched shed which is in existence on the north western corner of the plaintiff's patta lands had been constructed by the plaintiff and he has been in possession and enjoyment of the same and he perfected title by adverse possession. Accordingly, he decreed the suit as prayed for. He has also ordered that the Advocate Commissioner's report and plan dated 11.04.1990 shall form part of the decree.

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Aggrieved by the judgment and decree of the trial court, the defendants had filed an appeal in A.S.No.41 of 1996 on the file of the Sub-Judge, Bhavani. The learned Sub-Judge, Bhavani, had allowed the said appeal partly and modified the judgment and decree passed by the trial court and declared that the stone wall as common wall. He also declared that the item No.1 of the suit properties and H2 thatched shed mentioned in Ex.C4 Commissioner's plan belong to the plaintiff and also granted permanent injunction in respect of aforesaid properties. Further, he granted injunction in respect of the property situated on the western side of the H2 thatched house in S.F.No.688. In respect of the other reliefs, he dismissed the suit. He also ordered Exs.C3 and C4 shall form part of the decree. Feeling aggrieved, the defendants have preferred the present second appeal.

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This court at the time of admitting the second appeal has formulated the following substantial questions of law:

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“(1) Whether the courts below are right in holding that the disputed cattle shed belongs to the plaintiff overruling a vital admissions of P.W.1

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thus rendering the judgments of the court below perverse?

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(2) Are the findings of the courts below sustainable which are not based on evidence omitting and misreading the evidence of P.W.1?”

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During pendency of the second appeal, the first respondent died leaving behind the respondents 2 and 3 and three more persons as his legal representatives and they have been impleaded as respondents 4 to 6. Subsequently, the second respondent also died and her legal representatives are already on record as respondents 3 to 6.

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The postal notices were served on the respondents 3 to 5 and their names also printed in the cause-list, but they have not appeared either in person or through counsel. Postal notice which was sent to the respondent No.6 returned as 'not claimed' and hence it was declared as 'service sufficient' for respondent No.6 and her name also printed in the cause-list but she also not appeared either in person or through counsel and hence the respondents 3 to 6 called absent and set exparte. Hence, after hearing the arguments of Ms.J.Prithvi for Mr.A.K.Kumarasamy, learned counsel for the appellants and perusing the records, judgment is being passed in the second appeal.

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Substantial questions of law 1 and 2:

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The learned counsel for the appellants has submitted that the courts below failed to appreciate the rival contention of parties in a proper perspective. She further submitted that the Commissioner's reports and plans would show that the stone wall under dispute is situated within the boundaries of the defendants' property. She further submitted that the PW1 has admitted in his evidence that the land of the defendants is situated in higher level than the plaintiff's land and in such a case, to prevent the land sliding and soil erosion, it is only the defendants who have constructed the said stone wall. She further submitted that the thatched shed which is shown as H2 in the Commissioner's plan is situated in the poramboke land in S.F.No.688 just on the west of the defendant's patta land and as such the said thatched shed would have been constructed only by the defendants.

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The learned counsel for the appellants further submitted that the plaintiff while examining himself as PW1 has stated in his evidence that he constructed the said house only with the permission of the first defendant's vendor and in such a case, even assuming that the plaintiff had constructed the said H2 shed, he cannot take a plea of adverse possession. She

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further submitted that admittedly a portion of the said house comes within the first defendant's patta land and another portion comes within the poramboke land (S.F.No.688) and in such a case, in the absence of the Government as a party, the courts below ought not to have come to the conclusion that the plaintiff had perfected title over the said house. She further submitted that the plaintiff failed to prove that the stone wall which is under dispute was constructed by him and the first defendant jointly and therefore she prayed to allow the second appeal and set aside the judgments and decrees passed by the courts below and dismiss the suit.

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The plaintiff had filed the above suit to declare his title over item No.1 of the suit properties and for granting a permanent injunction, restraining the defendants, their men etc., from in any manner interfering with his possession and enjoyment of the Item Nos.1 and 2 of the suit properties. Item No.1 of the suit properties is a patta land admeasuring 1.03.5 hectares situated in S.F.No.687/2 E and a portion of land, if any, in S.No.687/1B which lies south of 'AB' and west of 'BC' in the plaint plan and marked in red colour and ½ share in 'ABCDE' wall and fence. Item No.2 of the suit properties is admeasuring 0.05.0 hectares situated in S.F.No.688 on the south of 'CE' in plaint plan and marked in blue colour.

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Though the trial court has decreed the suit as prayed for in respect of both the items of the suit properties, the first appellate court has modified the said judgment and decree and declared that the said stone wall is a common wall. Further, it declared that the plaintiff is the owner of the property admeasuring 1.03.5 hectares in item No.1 of the suit properties. It also declared that the plaintiff is the owner of the thatched shed which is mentioned as H2 in Ex.C4 plan. Further it granted permanent injunction in respect of the aforesaid properties and also the portion of the poramboke land which is situated in S.F.No.688 on the west of H2 house. In respect of other reliefs, the first appellate court has dismissed the suit.

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The plaintiff while examining himself as PW1 has deposed that the said stone wall was constructed by him and the first defendant's vendor viz., Kutiappan and hence he is having ½ share in the said stone wall. According to the defendants, the said stone wall was constructed by them to prevent the land sliding and soil erosion of their property. At this juncture, it would be relevant to refer to the averments made in paragraph No.4 of the plaint which reads thus:

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“ The stone wall was constructed by Kuttiappan the first defendant's vendor about 20 years ago. The plaintiff has been in possession and

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enjoyment of the block of land south of A B C D E all along for the past 20 years.”

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A perusal of the aforesaid averments would show that the plaintiff has categorically admitted that the said stone wall was constructed only by the first defendant's vendor viz., Kuttiappan about 20 years ago. Contrary to the said admission, the plaintiff cannot claim that he and the first defendant's vendor Kuttiappan had constructed the aforesaid wall. It is also to be pointed that the PW1 has admitted in his crossexamination that the defendant's land is lying in 1 to 1 ½ feet higher level than his land. In such a case, the contention of the defendants that they only constructed the said wall to prevent the land sliding and soil erosion of their land appears to be acceptable. Further the Advocate Commissioner's reports and plans also would show that the entire stone wall has been built within the boundary of the defendants' patta land. The said physical feature also would probabalise the case of the defendants. Further, the first appellate court has held that the plaintiff is entitled for declaration and injunction only in respect of the property admeasuring 1.03.5 hectares situated in S.F.No.687/2E but the Advocate Commissioner's report and plan would show that the aforesaid stone wall built within the boundary of S.F.No.687/1B. In such a case, the first appellate court should not have declared that the aforesaid stone wall is common to both the parties.

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The plaintiff claims that he constructed a thatched shed which is shown as H2 in Ex.C4, 30 years ago and hence he perfected title by adverse possession over the said thatched house. But he has not produced any documentary evidence to show that he has constructed the said house 30 years ago and he has perfected title to the said house by adverse possession. The plaintiff while examining himself PW1 has admitted in his cross examination that his patta land is situated in S.No.687/2E and the first defendant's patta land is situated in S.F.No.687/1B. He further admitted that the first defendant's patta land is situated on the north of his patta land and that on the west of patta land of both the parties, a poramboke land admeasuring 0.46.5 hectares is situated in S.F.No.688. He also admitted that he is enjoying his patta land as well as encroached poramboke land which is situated on the west of his patta land as a single block and likewise, the defendants also enjoying their patta land as well as encroached poramboke land which is situated on the western side of their patta land as a single block. In such a case, the thatched house which is shown as H2 in Ex.C4 would have been constructed only by the defendants because a portion of the said house is situated in the defendants' patta land and also in a portion of the poramboke land which is situated on the west of their patta land. But the courts below without taking

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into consideration of the aforesaid facts, had granted a decree in favour of the plaintiff in respect of the aforesaid thatched house also. Therefore, the judgments and decrees passed by the courts below have to be modified to the effect that the plaintiff is entitled for declaration and consequential relief of permanent injunction only in respect of the property admeasuring 1.03.5 hectares situated in S.F.No.687/2E and he is entitled for injunction in respect of the portion of the poramboke land which is situated in S.F.No.688 just adjacent to his patta land on the western side. In respect of other portions of the properties, the plaintiff's suit has to be dismissed. Accordingly, the substantial questions of law are answered.

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In the result, the second appeal is partly allowed and consequently connected miscellaneous petition is closed and the judgments and decrees passed by the courts below are modified to the effect that the plaintiff is entitled for the relief of declaration and consequential relief of permanent injunction only in respect of the property admeasuring 1.03.5 hectares situated in S.F.No.687/2E and he is entitled for the relief of permanent injunction in respect of the poramboke land situated in S.F.No.688 just adjacent to his patta land on the western side. In respect of other portions of the suit properties, the suit is dismissed. The parties are directed to bear their respective costs. -s/dAssistant Registrar(CCC) True Copy Sub-Assistant Registrar To 1. The Subordinate Judge, Bhavani. 2. The District Munsif, Bhavani. 3. The Section Officer, V.R.Section, Madras High Court, Chennai. +1 CC to Mr. Kaithamalai Kumaran, advocate sr 38086. S.A.No.1428 of 1997 and CMP.No.14318 of 1997 MP(CO) SP(05/02/2020)

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1. Pappal v. Kuttiappa Gounder(Deceased)

Case brief

What is this about?

What did the court decide?

1. Pappal v. Kuttiappa Gounder(Deceased)

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

Coram

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