Janarthanan v. Muthu Odayar

JUDGMENT The unsuccessful plaintiff before both the Courts below has filed the present second appeal.

¶2For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present second appeal would also be indicated.

¶3The case of the plaintiff in a nutshell is as follows : The plaintiff filed the suit in O.S.No.430/2007 for a permanent injunction, restraining the defendants, their men and agents from interfering with his peaceful possession and enjoyment of the suit 'B' Schedule property which is described as a 9 feet wall, situate in 'A' schedule property. The plaintiff purchased 'A' schedule property as a vacant site from one Jeeva through his power agent under a registered sale deed, dated 27.04.1995 (Ex.A1), with a rectification deed, dated

18.03.1996. The plaintiff also constructed a residential building during December 1999 after getting necessary approval. The defendants are attempting to interfere with the plaintiff's possession over the 'B' schedule property and one such attempt was made on 14.03.2007. Hence the suit.

¶4The suit was resisted by the defendants on the following grounds: i. The plaintiff's vendor, Jeeva purchased an extent of 3 Kuzhies, 4 veesams from the first defendant and his wife Latha through a registered sale deed, dated 21.11.1981. The said document was registered on 03.12.1981. ii. On the Southern east side of the property, there is a strip of land originally owned and possessed by the first defendant and his wife. They had settled the said property in favour of their daughter, the third defendant through a Settlement deed, dated 06.07.2004. iii. The property settled in favour of the third defendant is in T.S.No.36/DA/1D and T.S.No.36/DA/1E. A Vinayagar temple is situated on the southern side of the said strip of land. The plaintiff is attempting to encroach upon the property of the third defendant which forced the defendants to give representations before the Member Secretary, Puducherry Planning Authority, the Collector cum Member Secretary, Land Grab cell and the Director of Survey and Land Records, Puducherry for taking necessary steps for demarcation of the properties. iv. The plaintiff has made wrong and distorted description of the property in order to grab the property of the third defendant. Therefore the suit filed by the plaintiff is liable to be dismissed.

¶5On the basis of the above pleadings, the trial Court framed the following issues: i. Whether the plaintiff is in possession and enjoyment of suit property? ii. Whether the plaintiff's remedy is to approach the Directorate of Survey and Land Records and that the suit is not maintainable? iii. Whether the plaintiff is entitled for permanent injunction as prayed for? iv. To what relief is the plaintiff entitled?

¶6In the trial Court, the plaintiff examined himself and marked Ex.A1 to Ex.A8. The defendants examined themselves and marked Ex.B1 to Ex.B14.

¶7After full contest, the learned III Additional District Munsif, Puducherry, vide his decree and judgment dated 15.07.2011, dismissed the suit filed by the plaintiff on the following grounds:- : i. The plaintiff in his evidence admitted that he did not measure the properties at the time of his purchase. ii. FMB (Ex.B14) clearly shows that T.S.No.36/3A/1E and T.S.No.36/3A/1D are situate on the southern and eastern side of T.S.No.36/3A/1C. iii. Admittedly the plaintiff has no title over T.S.No.36/3A/1E and T.S.No.36/3A/1D. iv. T.S.No.36/3A/1D is situate between the pump house and the plaintiff's property and T.S.No.36/3A/1E is situate between the Varasithi Vinayagar Temple and the plaintiff's property. v. The third defendant is the title holder of both T.S.No.36/3A/1D and T.S.No.36/3A/1E as per the settlement deed dated 18.12.2009 (Ex.B1). vi. The plaintiff is taking advantage of the boundary description mentioned in his sale deed and is attempting to put up construction in the property of the defendants.

¶8Aggrieved over the decree and judgment passed by the trial court, the plaintiff filed an appeal in A.S.No.21/2011, before the Additional Subordinate Judge, Puducherry. The learned Additional Subordinate Judge, after analysing the oral and documentary evidence adduced on both sides, upheld the findings recorded by the trial court vide her decree and judgment dated 13.02.2018, as against which the present second appeal is filed.

¶9The second appeal is admitted by this Court on 13.09.2019 on the following substantial questions of law: i. Whether or not the plaintiff established his title and possession vide Ex.A1 sale deed read with the instructions on computation and adjustment of areas as contained in Paragraph - VII of the Government of Puducherry instructions for maintenance of survey marks and land records? ii. Whether or not the findings of the Trial Court and the first appellate Court perverse in the teeth of the boundaries contained in Ex.A1 and Ex.A8 sale deeds?

¶10Heard Mr.T.Sai Krishnan, learned counsel for the appellant and Dr.S.S.Swaminathan, learned counsel for the respondents 1 and 2.

¶11At the outset, it may be observed that the plaintiff has filed the suit for a permanent injunction, restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the suit 'B' Schedule property, which is described as a Wall. According to the plaintiff, as per sale deed (Ex.A1), 'B' Schedule property belongs to him. The plaintiff has purchased his property as a vacant land from one Jeeva through his power agent which is in T.S.No.36/3A/1C. The first defendant has executed a settlement deed in favour of the third defendant in respect of his properties in TS.No.36/3A/1E and TS.No.36/3A/1D. FMB Sketch (Ex.B14) shows that TS.No.36/3A/1E and TS.No.36/3A/1D are on the southern and eastern side of TS.No.36/3A/1C.

¶12It is pertinent to point out that the plaintiff has not mentioned the total extent of 'A' Schedule property i.e., the property purchased by him. However, the plaintiff has admitted during the course of cross examination that he did not measure the property at the time of his purchase and has also deposed that he is in possession of the property as per the boundaries described in his sale deed. It is to be seen that the original vendor, the first defendant had executed a settlement deed in favour of his daughter, the third defendant in respect of 'B' Schedule property and Patta also stands in her name. The first appellate Court in its well reasoned Judgment had come to a definite conclusion that the plaintiff has not established his possession over 'B' schedule property. The observation made by the first appellate Court is extracted hereunder: "13. Ex.A1 is the certified copy of sale deed, dated

27.04.1995 executed by the power agent of one Jeeva and Ex.A2, the rectification deed dated 18.03.1996 executed by Jeeva in favour of the plaintiff. In Ex.A1 and Ex.A2, the property is described as follows: In Ex.A1: g[Jit up/o. g[Jit rg;/up/o/ g[Jit Kdprpghypl;oiar; nru;e;j Kjypahu;ngl;il bfhk;a{d;. fpuhk be/37. g[Jg;ghisak; bubtd;a{ fpuhkk; mz;zh efu; tpupthf;fj;jpy; thu;L $p gpshf; be/2. lt[d;ru;nt be.36. uP ru;nt be/8/5 fjh!;ju; be/1545y; ml';fpa fpHf;F nkw;F 31 1-4 mo. bjw;F tlf;F 60 mo gug;gst[ 1872 rJuo mst[s;s fhypkid/ In Ex.A2: g[Jit up/o. g[Jit rg;/up/o/ g[Jit Kdprpghypl;oiar; nru;e;j Kjypahu;ngl;il bfhk;a{d;. fpuhk be/37. g[Jg;ghisak; bubtd;a{ fpuhkk; mz;zh efu; tpupthf;fj;jpy; thu;L vr; gpshf; be/2. lt[d;ru;nt be/36/3(a) rP ru;nt be/8-5 fjh!;ju; be/1545y; ml';fpa 3FHp 4 tPrk; mst[s;s fhypkid/

¶14Ex.A1 and Ex.A2 would reveals that the appellant / plaintiff has purchased East-west 31 1/4 feet and North south 60 feet total extent of 1872 sq.feet, Ex.B10, the settlement register for the land in town which stands in the name of the plaintiff to a total extent of 1872 sq.ft." ehd; fpuak; th';fpa gj;jpuj;jpy; ,lk; 1872 mo gug;pg vd;W fhz;gpf;fg;gl;Ls;sJ/ ehd; ,e;j tHf;fpy; me;j ,lj;jpw;F jhd; cupik nfhUfpnwd;/ Ex.A1f;F vGjg;gl;l jpUj;jy; gj;jpuk; Ex.A7 MFk;/ Ex.A7y; gug;gpYk; mstpYk; ve;j jpUj;jKk; bra;ag;gltpy;iy/ Ex.A1. Ex.A7y; ehd; fpuak; th';fpa kidf;F bjw;fpy; $Pthtpw;F kpFjp ,lk; cs;sjhf vGjg;gl;Ls;sJ. $Pth ahuplk; fpuak; th';fpdhu; vd;why; tHf;fpd; 3k; gpujpthjp Kj;J cilahuplkpUe;J fpuak; th';fpdhu;/ ehd; Puducherry Planning Authority-y; approval th';fpa[s;nsd;/ me;j mg;Ut;L gpshdpy; fpHf;F nkw;F 31 1-4 mo fhz;gpf;fg;gl;Ls;sJ/ bjw;F tlf;fpy; 60 mo fhz;pgf;fg;gl;Ls;sJ/ fpiuak; th';Fk;nghJ msg;gjw;F eltof;if vJt[k; vLf;ftpy;iy/ mjw;F fhuzk; gk;g; cwtprpw;Fk; ehd; th';fpa kidf;Fk; ,ilna brhe;j ,lk; cs;sJ/ ehd; vd;Dila bgaUf;F 1872 r/mo gl;lh th';fpa[s;nsd;/ vd;Dila kidf;Fk; gk;g[ cwt[rpw;Fk; ,ilg;gl;l ,lj;jpw;F gl;lh ahu; bgaupy; cs;sJ vd;gJ bjupahJ/ me;j Jz;L ,lj;jpw;F kl;Lk; jdpahf T.S.No.36/3A/1D vd;W gl;lh bfhLj;Js;shu;fs; v;why; me;j tpguk; vd;fF bjupahJ/

¶15According to evidence of P.W.1, he had claimed the property situate in T.S.No.36/3A/1D, which is situated on the eastern side of the plaintiff's property. The property purchased by the plaintiff has been identified with T.S.No.36/3A/1C. The plaintiff admitted that original owner of the suit property is Muthu Udayar, the first defendant herein.

¶16On perusal of Ex.B1, Muthu Udayar and his wife had settled the property in favour of his daughter, third defendant. D.W.2 has clearly deposed that Ex.B1 is the settlement regarding T.S.No.36/3A/1C, which stands in the name of the plaintiff. The plaintiff has also admitted that he had changed patta in his name. FMB of the plaintiff and the defendant's property is Ex.B14, marked through D.W.3.

¶17In Ex.B14, it reveals that the plaintiff's property T.S.No.36/3A/1C, total extent is marked as North south 22.9 meters i.e., 60 feet, East West 9.65 meters, i.e., on the northern side and 9.5 meters on the southern side 31 1/2 feet. According to plaintiff, he purchased the property under sale deed Ex.A1 total extent of 1872 sq.feet. The extent purchased under Ex.A1 tallying with the extent show in R.S.No.36/3A/1C under Ex.A1. In the plaintiff, the plaintiff has not mentioned the total extent of 'A' schedule property. As per Ex.B14, T.S.No.36/3A/1D is existing between pump house and the plaintiff's property. The third defendant is the title holder of T.S.No.36/3A/1D and T.S.No.36/3A/1E as per Exs.B1, B11, and B14. P.W.1 admitted in his cross examination that he has measured the property at the time of purchase and after purchase. But, claiming to be in possession and enjoyment of the property as per boundaries described in the sale deed as well as his vendor's sale deed. Exs.A1 and B10 would clearly reveals that the plaintiff has been in possession and enjoyment of the property mentioned in Ex.A1 sale deed. Therefore, the plaintiff is not having any title or right over the 'B' schedule mentioned property.

¶18The learned counsel for the appellant has argued that where difference between the actual and registered area of either entire survey adopted or its component sub division more does not exceed 5% and no alteration should be in the registered area. But, in this case, the original owner, the first defendant executed the settlement deed in favour of the third defendant and 'B' schedule property has been in possession of the third defendant and the patta is also stands in the name of the third defendant. Therefore, the plaintiff has no claim or right over the 'B' schedule property.

¶19In view of the above discussion, this Court comes to conclusion that the trial court has rightly held that the plaintiff is not entitled for permanent injunction the respondents/defendant, their men and successors from obstructing the completion of the construction of the wall, interfering with the plaintiffs possession and enjoyment of the suit property. Therefore, this Court is not inclined to interfere the judgment and decree in O.S.No.430/2007, dated

15.07.2011 passed by the learned III Additional District Munsif, Puducherry. The point is answered accordingly."

¶13All the observations of the first Appellate Court are based on facts. In the circumstances, the substantial questions of law 1 and 2 are answered against the appellant.

¶14In the result, i. The Second Appeal is dismissed. No costs. ii. The decree and judgment dated 13.02.2018 passed in A.S. No.21/2011, on the file of the Additional Subordinate Judge, Puducherry and the decree and judgment dated 15.07.2011 passed in O.S.No.430/2007, on the file of the III Additional District Munsif, Puducherry, are upheld.

11.11.2024 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order vum To

¶1The Additional Subordinate Judge, Puducherry.

¶2The III Additional District Munsif, Puducherry.

¶3The Section Officer, VR Section, Madras High Court, Chennai.

R. HEMALATHA, J. vum

11.11.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.11.2024 CORAM THE HONOURABLE MRS. JUSTICE R.HEMALATHA Janarthanan ... Appellant Vs. 1. Muthu Odayar 2. Sridharan 3. Venmathi ... Respondents Prayer : Second Appeal filed under Section 100 r/w. Order 41 of CPC, 1908 against the decree and judgment dated 13.02.2018 passed in A.S.No.21/2011, on the file of the Additional Subordinate Judge, Puducherry, upholding the decree and judgment dated 15.07.2011 passed in O.S.No.430/2007, on the file of the III Additional District Munsif, Puducherry. For Appellant : Mr.T.Sai Krishnan For R1 & R2 : Dr.S.S.Swaminathan For R3 : No appearance