Second appeal by plaintiff in a possession suit claiming defendants encroached 250 sq.ft. of her purchased property. Courts below found she failed to prove title to 630 sq.ft. or the alleged encroachment, tracing both parties' title to a partition decree. Substantial question of law answered against plaintiff; appeal dismissed.
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S.A.No.473 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.01.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No. 473 of 2021
M.Jaanaki ...Appellant
Vs.
1.Uthriyadoss
2.Govindammal ...Respondents
Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 11.03.2020 passed in A.S.No.383 of 2018 on the file of the VI Additional Judge, City Civil Court, Chennai confirming the Judgement and Decree dated 25.07.2018 in O.S.No.4156 of 2015 on the file of the XIV Assistant Judge, City Civil Court, Chennai.
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: For Appellant Mr. R.Karunagaran. For Respondent 1: Mr. K.Kannan For Respondent 2: No Appearance.
JUDGMENT
The plaintiff in a suit for recovery of possession is the appellant before this Court. The plaintiff seeks to challenge the concurrent Judgement and Decree passed against her. The facts are briefly set out herein below and for ease of understanding, the parties are referred to in the same ranking as before the Trial Court.
of the XIV Assistant City Civil Court, Chennai seeking a direction to the defendants 1 and 2 to quit and handover possession of the suit property in favour of the plaintiff.
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“All the piece and parcel of land and hut situated at D.No.14, Cox Street, Chindathripet, Chennai – 600 002, comprised in RS.No.-149/19 Part, Block No.5, Chindathripet Village, Mylapore – Triplicane Taluk, having an extent of 250 ft., land out of 630 sq.ft., encroached.
Bounded on the
North by : Common way leading to Cox Street,
South by : House belongs to Gurumoorthy,
East by : House belongs to Doss,
West by : House belongs to Venkatesh.
Admeasuring
North to South on both sides – 15 feet
East to West on both sides – 15 feet
situated within the Sub Registration District of
Periamedu and Registration District of Central Chennai.”
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had taken possession of the suit property. The plaintiff would state that
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she came to learn that the defendants 1 and 2 who are the owners of adjacent property had encroached an extent of 250 sq.ft., over the suit property by putting up temporary structure over it. The plaintiff had lodged a police complaint which did not yield any result. Since patta had also been issued, the plaintiff had approached the defendants on 15.07.2010 to hand over the encroached portion. Though the defendants had agreed to handover the vacant possession of the property within 12 months, however, contrary to this assurance they had taken out an application before the District Revenue Officer, Chennai, for cancellation of patta. After enquiry, the DRO, Chennai found that the defendants had encroached into the property without any valid title and declined to cancel the patta by order dated 13.03.2012. Therefore, the plaintiff having waited so long has come forward with the present case.
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It is their contention that the property comprised in R.S.No.149/19 at Chindadiripet Village which was bounded on the North by S.No.149/15 7 149/18, East by S.No.148, South by S.Nos. 149/20, 149/21, 149/22 and West by S.Nos.149/11, 149/12 & 149/13, belonged to one Athimoolam who is the grand father of the 1st defendant. On his demise, his legal representatives (five of them) have filed a suit for partition in O.S.No.7519 of 1983 on the file of the IV Assistant City Civil Judge, Chennai, seeking for a partition of the property into 6 shares and to allot a share to the 2nd defendant herein. A preliminary decree was passed and thereafter a final decree was passed, wherein the Commissioner was appointed to divide the property into 6 shares and allot it to the respective parties. The 2nd defendant is the mother in law of the 1st defendant.
the Commissioner's report, the 1st defendant mother was alloted the B – Schedule property. The 2nd defendant was allotted the C - Schedule property. A – Schedule property was allotted to Yesammal. The other 6/14
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legal representatives, namely, Natarajan and Visvanathan had died during pendency of final decree proceedings. Therefore, the final decree proceedings in respect of the deceased was dismissed. Natarajan had died issueless (However, the plaintiff has come to Court stating that her vendors are the wife and daughter of the said Natarajan's son Udayakumar). Therefore, they would submit that the plaintiff cannot claim title through the deceased Natarajan and the said claim is baseless. The defendants would submit that the vendors of the plaintiff, namely, U.Vinayagi was total stranger to the deceased Natarajan
possession of the property without any interference in possession. The defendants would further submit that as per division effected by the Commissioner, each sharer was entitled to an extent of 180 Sq.ft., and would therefore submit that even assuming that the said Natarajan was allotted a share his share was only an extent of 180 sq.ft. However, the
plaintiff would contend that she had purchased 630 sq.ft. Therefore, the
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contention that the defendants have encroached into the property is absurd. The defendants would submit that even as per the schedule to the plaint, the suit property only measures an extent of 15 X 15 = 225 sq.ft., and not 250 sq.ft. Therefore, the plaintiff has not proved her title to the extent of 630 sq.ft and that there has been an encroachment. They therefore sought for the dismissal of the suit.
“(i)Whether the plaintiff is entitled for direction
directing 1st and 2nd defendants to quit and handover the
possession of the suit schedule property as prayed for?
(ii)Whether the plaintiff is entitled for cost?
(iii)What other relief?”
examined himself as D.W.1 and had marked Ex.B.1, which is the final
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decree in I.A.No.1725 of 1985 in O.S.No.7519 of 1983.
the outset would point out the discrepancy in the measurement of the alleged encroachment. In the pleadings, the plaintiff had stated that an extent of 250 sq.ft., has been encroached, but however in the schedule an extent of 225 Sq.ft., is claimed to be the encroached area.
as to Whether the defendants are encroachers or not . Therefore, in the
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absence of proof of the encroachment and also since the plaintiff was not able to prove the measurement of the encroached land co-relating it with the survey number and boundaries, the trial court had dismissed the said suit.
“Is not trial Court and more particularly First
Appellate Court being a Court of fact after returning factual findings that defendants’ title has not been established and that their denial of plaintiff's title is evasive, non suiting the plaintiff i.e., passing decree run
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into the factual findings and contrary to the factual findings making judgments of Courts below so perverse warranting interference under Section 100 of The Code of Civil Procedure, 1908?”
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250 square feet had been encroach.
the final decree proceedings (Ex.B.1) would clearly and categorically show that the plaintiff's vendor is not entitled to an extent of 630 square feet and the plaintiff has not made out the case that 250 square feet had been encroached by the defendants. The Courts below which are the courts of facts have appreciated and re-appreciated the facts, evidence on record both oral and documentary to come to the conclusion to hold that the plaintiff is not entitled to a decree. Therefore, the substantial question of law is answered against the plaintiff.
24.01.2024
Index : Yes/No Internet : Yes/No kan
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To
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P.T. ASHA, J,
kan
S.A.No.473 of 2021
24.01.2024
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1 issue framed by the court
Whether the courts below erred in dismissing the plaintiff's suit for recovery of possession despite findings that the defendants' title was not established and their denial of plaintiff's title was e
1 provisions across 1 enactments
M.Jaanaki
Uthriyadoss
Govindammal
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
