Second appeal dismissed holding that plaintiff could not recover possession of land in S.No.387/1A as it was not contiguous to his retained land in S.No.387/1C2. Court upheld lower courts' findings on possession and enjoyment based on commissioner's report.
Second Appeal dismissed; no order as to costs.
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
Dated : 26.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.173 of 2011
Chellamuthu
...Appellant/Plaintiff
Vs.
1.Azhagamuthu (Died)
2.Sadasivam
3.Vijayan
4.Nallammal
5.Manimuthu
6.Rathinammal
7.Pachiammal
...Respondents/Defendants
(RR2 to RR7 brought on records as LRs of the deceased 1st respondent vide Court order dated 15.06.2021 in C.M.P.Nos.2670 & 2671 of 2016 in S.A.No.173 of 2011).
Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 24.09.2010 passed in A.S.No.5 of 2010 on the file of the Sub Court, Mettur confirming the Judgement and Decree dated 20.11.2009 passed in O.S.No.61 of 2004 before the District Munsif Court, Mettur.
For Appellant : Mrs.R.Meenal For Respondent 1 : Died For Respondents 2 &3 : Served For Respondents 4 to 7 : Mr.T.Murugamanickam Senior Counsel for Ms.Zeenath Begum
JUDGMENT
The plaintiff is the appellant before this Court. The Second Appeal arises against the concurrent Judgement and Decree in A.S.No.5 of 2010, Subordinate Court, Mettur and O.S.No.61 of 2004, District Munsif, Mettur. The suit O.S.No.61 of 2004 which was instituted on the file of the District Munsif, Mettur was originally filed for the relief of permanent injunction and thereafter the plaint was amended to include the relief of declaration and recovery of possession in respect of 24 cents. The subject matter of the suit was an extent of 1.48 acres comprised in S.No.387/1.
2.It is the case of the plaintiff that he and the 1st defendant are brothers and the 2nd and 3rd defendants are his nephews. The plaintiff had purchased the suit property under a registered sale deed dated 02.03.1988 and his brother had purchased a land in the very same survey number measuring an extent of 3 acres on 18.02.1984. The plaintiff would submit that he was in enjoyment of an extent of 1.48 acres and his brother 3 acres. A portion of the land belonging to the 1st defendant was acquired by the Government for the purpose of constructing a channel and the compensation was made over to the 1st defendant. Thereafter, the lands had been subdivided and joint patta given in respect of S.No.387/1A.
4.The 3rd defendant had filed a written statement which was adopted by the other defendants inter alia contending that the suit property is situate to the west and south of the land belonging to the 1st defendant. The defendants had not trespassed into any portion of the suit property belonging to the plaintiff. The plaintiff's land is lying south of the lands of the 1st defendant and his lands were subdivided as S.No.387/1C2 and he has been in possession only with reference to this land. To the North of the said survey number the lands in S.No.387/1C1 and 387/1A belongs absolutely to the 1st defendant. The plaintiff and 1st defendant have not purchased the lands jointly but had purchased independent of each other. The old survey number of the suit property was S.No.387/1 and since the plaintiff and 1st defendant had purchased property in the same survey number but under separate sale deed joint patta was issued.
5.East of the land in question is the land belonging to the Forest Department. The channel was dug in the forest land from
Sekkarapatty water storage for irrigation purposes and after the acquisition by the Government, lands in S.No.387/1 was subdivided as 387/1A, 387/1B, 387/1C1 and 387/1C2. The lands north of the channel was demarcated as S.No.387/1A. The categoric case of the defendants was that the plaintiff did not own any lands beyond S.No.387/1C2. Infact, there was a well defined boundary between S.No.387/1C1 and S.No.387/1C2 by coconut trees and also a stone revetment. Therefore, the contention of the plaintiff that they own lands beyond the said boundaries was totally inconceivable.
Sd/Assistant Registrar
//True Copy//
Sub Assistant Registrar
kan
To
Mettur.
+1cc to M/s.R.Meenal, Advocate, S.R.No.35495
+1cc to M/s.Zeenath Begum, Advocate, S.R.No.35445
S.A.No.173 of 2011
SS(CO) SU(16/11/2021)
3 issues framed by the court
Whether a plaintiff can recover possession of land in survey number 387/1A which is not contiguous to his land in 387/1C2.
Whether any substantial question of law arises to interfere with the concurrent findings of fact on ownership and possession.
Whether the trial court's dismissal of the suit for lack of recovery of possession deserves interference in second appeal.
Chellamuthu
Azhagamuthu (Died)
Sadasivam
Vijayan
Nallammal
Manimuthu
P.T. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
