In this second appeal concerning a suit for possession, the Madras High Court upheld the dismissal of the plaintiff's claim. Finding the plaintiff failed to prove the disputed shop lay on their land, the court confirmed that the Highways Department owned the property.
Second Appeal dismissed; Judgment and Decree of first appellate court confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.02.2021 PRONOUNCED ON : 09.03.2021
CORAM
THE HONOURABLE MR. JUSTIC E T.RAVINDRAN
S.A.No. 1474 of 2008 and M.P.No.1 of 2008
Golden Hills Estates Pvt. Ltd., A Private Limited Company having its registered office at Visalakshi Nagar Madurai District 625 401 rep. by Power of Attorney Holder and Manager of Erinkadu Estate M.K. Maniah Erinkadu Estate, Karumpalam, Nilgiris District 643 102
...Appellant/Respondent/Plaintiff Vs. 1. Ponnan (deceased) ... 1st Defendant 2. Palaniswamy S/o. Ponnan ... Respondent/Appellant/2nd Defendant
Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the judgment and decree dated 21.01.2008 in A.S.No.56 of 2007 of the learned subordinate judge of Udhagamandalam, reversing the judgment and decree of the trial court dated 22.08.2007 in O.S.No.36/90 on the file of the District Munsif Court, Coonoor.
For Appellant : Mr. S. Jayaraman For Respondents : Ms. Mythili Suresh for M/s. Sarvabhauman Associates
JUDGMENT
Challenge in this second appeal is made to the judgment and decree dated 21.01.2008 passed in A.S.No.56 of 2007 on the file of the subordinate Court, Udhagamandalam, reversing the judgment
and decree dated 22.08.2007 passed in O.S.No.36/90 on the file of the District Munsif Court, Coonoor.
2.For the sake of convenience, the parties are referred to as per their rankings in the trial court.
4.Suit for possession, arrears of licence fee and damages.
informing the same to the plaintiff and also apprising the plaintiff that he is not liable to pay the fees for the occupation of the land and also stopped paying the ground rent to the plaintiff. The defendant's son Palaniswamy is in the actual possession and enjoyment of the suit property and his son Palaniswamy is the temporary worker under the plaintiff for several years and he had applied to the Labour Officer, Coonoor to confirm his employment under the plaintiff and after serving a notice to the plaintiff, a settlement was reached between the defendant's son and the plaintiff on 23.05.1988 whereunder it was agreed that on survey of the suit property in case the suit property is in the land belonging to the plaintiff, Palaniswamy should vacate and hand over the vacant possession to the plaintiff and on the contrary, if the suit property is in the Highways land, than the plaintiff should not disturb the possession of Palaniswamy qua the suit property and accordingly, the RDO has deputed the district surveyor to survey the suit property to find out in which survey number the suit property is situated and in that survey it was found that the suit property is situated in R.S.No.746/1 belonging to the Highways department and not to the plaintiff and therefore, the plaintiff has no right, title or interest over the suit property and the defendant is not liable to pay any licence fee for the occupation of the same and the suit has been falsely laid by the plaintiff and hence, the plaintiff's suit is liable to be dismissed.
further put forth that in the settlement arrived at between the plaintiff and his son Palaniswamy before the labour officer, Coonoor, it has been agreed that if the suit property is lying in the plaintiff's land, on survey, the first defendant's son Palaniswamy, who is actually in the occupation of the suit property should vacate and hand over the possession to the plaintiff and in the event of the abovesaid shop and room is lying on the ground not belonging to the plaintiff, the plaintiff should not disturb his possession and enjoyment and according to the defendant, on survey, it was noted that the shop and the room bearing door No.10/126 is lying only in Survey No.746/1 belonging to Highways department and therefore, the plaintiff has no cause of action to lay the suit and the suit is liable to be dismissed.
It is found that the advocate commissioner had inspected the suit property with the help of the surveyor and filed his report and informed that the shop and the room bearing door No.10/126 lies only in Survey No.746/1 of the suit village. The plaintiff has filed the objection to the commissioner's report marked as Ex.A7, whereunder he would contend that prior to the survey by the advocate commissioner, the surveyor had inspected the ground and put up the marks on the ground with the help of the defendant's men and therefore, according to the plaintiff, the commissioner's report should not be relied upon. However, the abovesaid objection having not been substantiated by the plaintiff with acceptable and reliable materials, the objection put forth by the plaintiff had been rejected and the first appellate court had rightly placed reliance upon the commissioner's report and plan. In fact, it is seen that the plaintiff's endeavour of seeking for the appointment of another commissioner by way of an application in I.A.No.75/95 has come to be dismissed by the trial court and as against the dismissal, no challenge has been made by the plaintiff to the higher forum.
to the order passed by the RDO dated 27.04.1990 and also when the plaintiff has not endeavoured to examine the Tahsildar, Coonoor as to how come he had submitted the report that the shop and the room bearing door No.10/126 is lying in Survey Nos. 746/3 and 4 and when there is no clear indication in Ex.A3 communication of the RDO as to when the Tahsildar had inspected the suit property, whether he had inspected and measured the suit property with the help of any surveyor and whether any notice had been issued to the defendant and the plaintiff prior to the same qua the date of inspection and whether the plaintiff and the defendant had been invited to file any objection to the report of Tahsildar, Coonoor and when with reference to the abovesaid factors there is no clear picture particularly, as above noted, the plaintiff having failed to summon the necessary files from the RDO and also not examined the Tahsildar, who is said to have submitted the report to the RDO, in such view of the matter, no safe reliance could be placed on EX.A3 to conclude that the portion of the shop and the room bearing No.10/126 is lying in survey No.746/3 and 4, particularly, when as above pointed out, the advocate commissioner, on inspection of the suit property with the help of the surveyor, had come to the conclusion that the shop and room bearing No.10/126 is lying only in Survey No.746/1 and not in the survey numbers belonging to the plaintiff. In such view of the matter, when the plaintiff has come forward with the suit seeking for necessary reliefs on the footing that the defendant has occupied only the survey numbers belonging to the plaintiff and when the same is controverted by the defendant, it is for the plaintiff to establish its case by placing the best evidence to conclude that the defendant is occupying the survey numbers belonging to the plaintiff. When with reference to the same other than Ex.A3 order of the RDO, there is nothing forthcoming on the part of the plaintiff to sustain its case, when as above discussed, no safe reliance could be attached to the RDO communication Ex.A3, particularly when the commissioner's report totally belies the plaintiff's case and when the plaintiff has also not substantiated the objections put forth by it to the commissioner's report by adducing acceptable and reliable evidence and when the evidence of P.W.2, examined on behalf of the plaintiff, cannot be relied upon, particularly, when it is seen that he had been in the services of the plaintiff's estate for several years and when P.W.2 has clearly admitted that no strangers could enter into the plaintiff's estate without the permission of the plaintiff and measure the suit property, therefore, the case of the plaintiff that prior to the inspection of the suit property by the advocate commissioner, the surveyor has already inspected the suit property and put up the marks with the help of the defendant's men, as such, cannot be accepted in any manner and it is thus found that accordingly, the plaintiff is unable to substantiate its objections by
placing reliable and convincing materials.
Sd/-
Assistant Registrar(CS III)
//True Copy//
Sub Assistant Registrar
bga
To
+1CC to M/s.Sarvabhauman Associates, Advocate, Sr.No.14665
S.A.No.1474 of 2008
SPD (CO) K.RK. (09.09.2021)
2 issues framed by the court
Whether the lower appellate court was justified in non-suiting the appellant for failing to establish ownership of the disputed shop over Highway land.
Whether the Revenue Divisional Officer's later report is reliable when challenged by the statutory commissioner's inspection report.
Golden Hills Estates Pvt. Ltd.
Palaniswamy
E T Ravindran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
