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Judgment
S. Rajeswaran, J.—The defendants 1, 3 and 5 in O.S. No. 77 of 1996 on the file of the District Munsif, Devakottai are the appellants before this Court.
For the sake of convenience, the parties are referred to as per their rankings in the suit.
O.S. No. 77 of 1996 was filed by the plaintiff for declaration as well as for mandatory injunction and for recovery of possession of the suit schedule property. According to the plaintiff, the suit schedule property originally belonged to the sixth defendant Government and it was Government''s Punja Land. The Survey Number of the suit property is 1/3 and its extent is 0.92.0 Ares and it was assigned to the plaintiff in Assignment No. 1125 of 1995 as per the order dated 05-07-1990. From the date of assignment, the plaintiff has been in possession of the suit property cultivating Punja Crops. Patta has been issued in her name and she is also paying the tax.
The defendants 1 to 5 have no rights, title or interest over the suit property and all of them belong to the Melamanakudi village. Since it was not possible to implead all the 200 persons belonging to that village, the defendants 1 to 5 have been impleaded as the representatuves of the villagers and an application was filed under Order I, Rule 8 of CPC in this regard. It is the case of the plaintiff that the defendants 1 to 5 colluded with the other village people and demanded the plaintiff to sell away the property which was refused by her. Therefore, they started giving trouble and prevented her from cultivating the lands. Hence, the suit was filed for permanent injunction only. Pending Suit, the suit property was encroached upon and a thatched shed was put up in the suit property. Therefore, the plaintiff asked for the relief of declaration as well as mandatory injunction and also for possession of the suit property by way of amendment.
The first defendant filed a written statement which was adopted by the defendants 2 to 5. According to the defendants, the main supply channel to the Melamankudi Kanmoi is passing through the suit property. Further, there are houses of the villagers in the properties for a number of years and it is not a punja land as contended by the plaintiff. As the plaintiff is an affluent person, she managed to get the records and the plaintiff cannot claim any relief against the defendants who are in possession and enjoyment of the property.
The sixth defendant Government filed a written statement stating that the suit property was assigned to the plaintiff and she has been in possession of the same by cultivating punja crops. The sixth defendant admitted that patta was issued in the name of the plaintiff and the plaintiff is paying the tax. The sixth defendant further conceded that the suit property has not been a channel at any point of time and they have no objection for decreeing the suit as prayed for.
The trial Court framed the following issues and additional issues:
1) Whether the suit property is in the possession of the plaintiff?
2) Whether the plaintiff is entitled to get the relief of permanent injunction as prayed for?
3) Whether the suit is bad for non-joinder of Government as a party?
4) To what other reliefs the plaintiff is entitled to?
Additional Issues:
1) Whether the plaintiff is entitled to the relief of declaration of title over the suit property?
2) Whether the defendants 1 to 5 have to directed to handover vacant possession of the suit property to the plaintiff?
3) Whether the plaintiff is entitled to be the relief of mandatory injunction as prayed for?
The plaintiff examined herself as PW.1 and marked the Exs.A1 to A8 on her side. Five witnesses were examined on the side of the defendants 1 to 5 and Exs.B1 to B5 were marked on their side.
The trial Court, has gone into Ex.A1 which is the assignment order granted in her favour, considered Exs.A2 to A4, which are Tax Receipts for Fasali 1399,1400,1402 and 1404. It took note of Ex.A5 which is the Adangal and Ex.A6 which is the Adangal for Fasali 1401 to 1404. The trial Court has also adverted to the fact that no evidence was let in by the defendants 1 to 5 to prove their claim that the main supply Channel to the Melamanakudi Kanmoi is passing through the suit property. The trial Court has also considered the stand of the sixth defendant/Government that the property was assigned to the plaintiff and she has been in possesion and enjoyment of the suit property. On the basis of the above said evidence, the trial Court came to the conclusion that the suit property belongs to the plaintiff and she is entitled to the relief of permanent injunction. The trial Court has also granted the mandatory injunction after considering that encroachment has been made after filing the suit and houses have been constructed after filing of the suit. In the result, the suit was decreed as prayed for.
Aggrieved by the judgment of the trial Court, the defendants 1 to 5 filed an appeal in A.S. No. 19 of 2001. The lower appellate Court reconsidered the entire evidence and came to the conclusion that the suit property belongs to the plaintiff who was put in possession and enjoyment of the same by the Government/sixth defendant. It adverted to the fact that there was a valid assignment and the same is still in force. The lower appellate Court has also found that pending suit, the suit property was encroached upon by the defendants and the plaintiff is entitled to the mandatory injunction. Therefore, it concurred with the findings, of the trial Court and dismissed the appeal.
Aggrieved by the judgments of the both the Courts below the above second appeal was filed in the year 2002 itself and for some reasons, the same was not numbered and only now, it was numbered and posted before this Court i.e., in the year 2009.
The following substantial questions of law were raised in the Second Appeal:
a) Whether the suit property, which is not a punja land and is a channel can be assigned to the Plaintiff?
b) Whether the Courts below are correct in granting a decree for declaration, mandatory injunction and recovery of possession on the basis of Ex.A1?
c) Whether the Courts below are correct in not considering the report of the Commissioner which shows a channel in the suit property?
Heard the learned Counsel for the appellants and the learned Counsel for the respondent/plaintiff. I have also gone perused the entire records, in particular, the judgments of both the Courts below:
The case of the plaintiff is that, the suit property belongs to her on the basis of the assignment order given by the Government, dated 05-07-1990. She has been in possession and enjoyment of the same since then and in fact, she is cultivating punja crops on the said land. When the villagers attempted to interfere with her property she filed O.S. No. 77 of 1996 for a permanent injunction to protect her possession. Pending suit, some encroachment was made and constructions were put up by the defendants. Therefore, she prayed for recovery of possession as well as mandatory injunction besides seeking a declaratory reliefs. The case of the defendants 1 to 5 is that there is a channel in the suit property which is the main supply channel to the Melamankudi Kanmoi. When the plaintiff was able to establish her title and possession by necessary documents, the defendants 1 to 5 were not able to establish that there was a channel as claimed by them by letting in acceptable evidence. That apart, the Government which was impleaded in the suit later on as the sixth defendant, accepted the case of the plaintiff and denied that there was a channel in the suit property as contended by the defendants 1 to 5.
On the basis of the above evidence, both the Courts below accepted the case of the plaintiff and rejected the case of the defendants 1 to 5. From the above, it is very clear that the entire controvery was decided and settled in favour of the plaintiff on the basis of factual aspects only.
In such circumstances, I do not find any question of law much less substantial questions of law that arise for consideration in the second appeal. Therefore, I do not find any merits in the appeal and the same is dismissed accordingly.
In the result, the Second Appeal is DISMISSED. No costs. Consequently, connected MP. No. 1 of 2009 is dismissed.