M.NARAYANASWAMY(died)1.N.KARPAGAVALLI Vs P.Rajasekaran

court order dated 04.03.2024 made in CMP.Nos.5125, 5126 & 5130 of 2024] ... Appellants Vs. 1 P.Rajasekaran S/o Ponnudurai Sp.min Apt No.18 New Bog Road, T.Nagar, Chennai. ... Respondent

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PRAYER: Second Appeal is filed under Section 100 of C.P.C against the judgement and decree of dismissal passed in Appeal Suit in A.S.No.15 of 2005, dated 05.03.2009 by the Subordinate Judge, Ponneri thereby confirming the judgement and decree passed in OS.No.1033 of 1997, dated 19.03.2004 by the District Munsiff cum Judicial Magistrate Court, Thiruvottiyur.

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For Appellants : Mr.R.Munusamy For Respondent : Mr.R.Vivekanandan for Mr.R.Subramanian

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JUDGEMENT

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The appellant is the plaintiff who filed a suit seeking the relief of permanent injunction restraining the defendant from interfering with his possession over the suit property. The trial Court dismissed the suit and on the First Appeal preferred by the defendant also got dismissed by confirming

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the judgement and decree of the trial Court. Aggrieved over that the defendant has filed this Second Appeal.

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2.The short facts pleaded in the plaint are as follows:

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The plaintiff is the owner of the suit property. The plaintiff's predecessors and thereafter, the plaintiff are in continuous possession and enjoyment of the suit property. The plaintiffs' forefathers and subsequently, the plaintiff had spent huge amount on the suit property and they have been in exclusive possession and enjoyment. The defendants have no rights whatsoever in the suit property and he is restrained to interfere with the peaceful possession of the plaintiff. The door number of the suit property is No.24 and previously there was a thatched shed in it. At that point of time there was no assessment of house tax on the property as the plaintiff has been in settled possession of the suit property and he has filed the suit for

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permanent injunction.

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3.The short facts pleaded in the written statement filed by the defendant are as follows:

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The suit property forms part of S.No.73/1 which is ancestral property of this plaintiff. In a partition among the members of the plaintiff's family in 1982, Part of S.No.73/1 fell to the share of this defendant. While so, the claim made by the plaintiffs as though he is the owner of the property is preposterous. It is false to state that the defendant has no right over the suit property. The claim of the plaintiff is a bold one. The plaintiff was a farm servant of the defendant's uncle. After the partition of 1982 the plaintiff sought permission of the defendant to put up a small hut in a portion of S.No.73/1 and had put up a hut measuring an extent of 10'x10'. He was permitted to put up a hut only on a condition that he would remove the hut whenever he was called upon to do so. As he is only a licensee in respect of a portion 10'x10' which is situated in the south-western portion of the defendant's land measuring 80' North to South and 25' East to West on the South and 29' on the North. The defendant has plotted out S.No.73/1 in bits and sold them to various individuals. The plaintiff is aware of the various

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sales effected by the defendant in respect of the said survey number. Hence, the suit of the plaintiff is liable to be dismissed .

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4 .The defendant has also filed a suit in OS.No.1033/1997 seeking relief of declaration and recovery of possession for 120 sq.ft. that has been decreed and confirmed by the First Appellate Court and the execution of the decree has also been made. In fact the plaintiff who was the defendant in the said suit has filed second appeal challenging the above decree in S.A.No.1279/2013 and the same was dismissed as infructuous in view of the delivery effected by recording a joint compromise memo between the plaintiff and the defendant. In fact the judgment of the Trial Court was a common judgment for both the Original Suits in O.S.No.185/97 in which the present appellant is the plaintiff and and other suit in O.S.No.1033/97 in which the defendant is the plaintiff. So far as this suit is concerned, the

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Court below has framed the following issues:

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"1.thjpf;F/ gpujpthjpf;F vjpuhf epue;ju cWj;Jf;fl;lis

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cWj;Jf;fl;lis bgw jFjpg;gilj;jtuh>

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2.thjp tpsk;g[if ghpfhuk; nfhuhky;/ cWj;Jf;fl;lis nfhu ,ayhJ vd;gJ rhpah>

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3.ntW vd;d ghpfhu';fs;>"

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5 . During the course of the joint trial on the side of the plaintiff, one

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witness has been examined as P.W.1 and Exs.A1 to A5 were marked. On the side of the defendant, two witnesses were examined as D.W.1 and D.W.2 and Exs.B1 to B5 were marked. The Commissioner's report and plan have been marked as Ex.C1 and C2.

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6. After the conclusion of the trial and on considering the materials available on record, the trial Court has dismissed the suit filed by the plaintiff and decreed the suit filed by the defendant in OS.No.1033/1997. The first appeal preferred by the present appellant /plaintiff before the First Appellate Court also got dismissed by confirming the judgment of the trial Court and now the Second Appeal has been preferred.

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7. The learned counsel for the appellant submitted that the plaintiff has claimed possession in respect of 2000 sq.ft as shown in the plaint schedule. The defendant who has filed another suit in O.S.No.1033/97 has sought relief in respect of only 120 sq.ft and the possession of which has

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been given to the defendant through the execution proceedings. So far as the remaining portion in the suit property, the defendant has not taken any steps. Neither has he sought any relief of declaration for the whole of 2000 sq.ft. The Commissioner has stated in his report that the appellant is in enjoyment of whole of 2000 sq.ft and hence, it is not right on the part of the Courts below to dismiss the suit of the plaintiff in entirety.

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8. The learned counsel for the respondent submitted that the plaintiff has been in possession of the thatched shed and that was when the suit was filed. He has stated that the suit property belonged to his ancestors and the plaintiff had been in possession only in respect of 120 sq.ft,. The defendant has filed a suit in respect of the same and now the plaintiff is not in possession of any portion of the suit property and the suit property remains vacant.

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9. The learned counsel for the appellant submitted that the defendant is trying to dispossess the plaintiff from the entire property despite he filed a suit for recovery in respect of an extent of 120 sq.ft alone. The plaintiff has

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filed a suit only for permanent injunction and not for claiming any title. According to the plaintiff he is in the enjoyment of 25' x 80' of the suit property. Even in the allegations of the plaint, he has stated that he has put up a small hut and at no stretch the hut can be for the entire 2000 sq.ft. It is claimed that the settled possession of the plaintiff cannot be disturbed though he is a trespasser.

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10 . In the averments of the plaint, the appellant has stated that he has been in possession of the suit property from the time of his ancestors. He has not stated anything as to the ownership of the property. The respondent/defendant claims that he is the owner about which the appellant/plaintiff did not deny. Even now the claim of the appellant is that the plaintiff without seeking relief for the entire 2000 sq.ft, cannot be presumed to dispossess him from the entire suit property. The plaintiff who pleads possession over the suit property has got the primary responsibility or burden to prove that he has been in possession of the entire 2000 sq.ft,. At no stretch of imagination, the Commissioner's report can be considered as evidence to prove possession of either of the party over the suit property.

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The document produced by the plaintiff does not have any extent as specially pleaded by the plaintiff.

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11. Even according to the respondent/ defendant, the appellant / plaintiff had been in possession of the property but over a limited portion of an extent of 120 sq.ft and for which, he sought a relief of recovery of possession and that has been rightly granted to him. The appellant cannot be allowed to thrust a cause of action on the defendant when he has filed a suit as the plaintiff in OS.No.1033/1997 and expect him to file a suit for recovery of possession in respect of 2000 sq.ft. So far as the respondent who is the plaintiff in OS.No.1033/1997, he has got the cause of action only in respect of 10' x 12' (120 sq.ft ) and hence, he has limited his relief only in respect of the same.

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12. The appellant cannot be allowed to set up a case in respect of the remaining portion i.e. 1880 sq.ft. (2000 sq.ft -120 sq.ft) on the basis of the plaintiff's suit for recovery of possession, with regard to 120 sq.ft. The plaintiff has to categorically give positive evidence to show that he had been

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in possession of entire 2000 sq.ft. and that he is entitled to the relief of permanent injunction or for the relief of recover of possession. Admittedly

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the appellant plaintiff has not sought for any relief of declaration. When the plaintiff claimed that he has perfected title in respect of whole of 2000 sq.ft, it is also obligatory on his part to file a suit seeking for relief of declaration in respect of the entire 2000 sq.ft and the appellant also did not seek a relief of declaration in that manner.

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13 . The learned counsel for the appellant submitted that in the oral evidence of the appellant, he has stated that he has built a house in the whole of the one ground even before 1968. The evidence of the appellant has been dealt by the trial Court, but the trial Court has not convinced on that aspect. Even in the plaint pleadings the appellant has not made any categorical avernments that he has been in possession of a particular extent by building a house in a particular extent. The appellant's claim cannot be presumed to mean that they have been in possession of the entire suit property merely because they built a house on it.

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14. It is settled proposition of the law that no amount of evidence can

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be admitted on which no pleading is made in the plaint. It could have been a better case if the plaintiff had sought a relief of declaration by producing any acceptable documents and by making specific pleadings to show that he has been in enjoyment of whole of the suit property. As the appellant has not made out a case for possession of the entire suit property, it is right for the trial Court and the First Appellate Court to dismiss suit for the plaintiff.

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15. In the result, the second appeal stands dismissed . No costs. The judgement and decree of dismissal passed in Appeal Suit in A.S.No.15 of 2005, dated 05.03.2009 by the Subordinate Judge, Ponneri is confirmed and the judgement and decree passed in OS.No.1033 of 1997, dated 19.03.2004 by the District Munsiff cum Judicial Magistrate Court, Thiruvottiyur is upheld. No costs.

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jrs

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Index: Yes/No Speaking: Non-Speaking Order Internet: Yes/No Neutral:Yes/No

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