Full Judgment
Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree passed by the Civil Judge, Senior Division at Kallakurichi dated 21.4.1999 in A.S.No.14 of 1997, reversing the judgment and decree passed by the I Additional District Munsif Court at Kallakuruchi made in O.S.No.861 of 1990 dated 3.1.1997.
JUDGMENT
1. This appeal is directed against the judgment and decree passed by the first appellate Court in A.S.No.14 of 1997 dated 21.4.1999 in reversing the judgment and decree passed by the trial Court made in O.S.No.861 of 1990 dated 3.1.1983 in dismissing the suit.
2. The appellant herein was the first defendant and the respondents 1 to 3 were the plaintiffs. The respondents 4 to 7 were the defendants 2 to 5 in the suit before the trial Court. For convenience, the rank of the parties before the trial court are maintained, infra.
3. The case of the plaintiffs before the trial court in the plaint would be as follows:
a. The plaintiffs are brothers and are the sons of one Kattayakonder. The property in R.S. No.177 of Moolakkadu Village is classified as Government unassessed Tharisu lands at the disposal of the Government. It has not been assigned or granted patta to anybody. The suit property is part of R.s.177 of Moolakkadu Village. The suit property has been in possession of Kattaya Konder and thereafter, the plaintiffs have been in possession of the suit property. The plaintiffs family has been in possession and enjoyment of the suit property for over 20 years. In fact the plaintiffs have constructed a thatched house in the suit property and are residing there. For the house of plaintiffs in the suit property, power supply has also been obtained from the Tamil Nadu Electricity Board and the Ist plaintiff has got the service connection No.16 in his name for the suit property. The east of the suit property is the patta land of the plaintiffs family in R.S.194/2, in patta No.30 in the name of the plaintiffs' father Kattaya Kounder. There are electric motor and pumpset in the wells in R.S.No.194/2 and service connection No.22 and 38 are in the name of Kattaya Konder, the father of the plaintiffs.
b. The plaintiffs have been irrigating the suit property with water from the well in R.S.No.194/2 and they have been raising nanja crops therein. The possession and enjoyment of the plaintiffs suit property has also been recognised by the Government by the issuance of 'B Memos' to the plaintiffs and by collection of Sivajima kist from the plaintiffs for their possession and enjoyment of the suit property. The plaintiffs are producing herewith the available 'B memos' from the year 1980 onwards and also producing the kist receipts for payment of 'Sivajima kist' for the suit property. The plaintiffs are not in possession of any other 'Tharisu' lands and the payment of 'Sivajina' kist by the plaintiffs relates only to the suit property. Therefore, the possession and enjoyment of the plaintiffs of the suit property are perfect and complete. The plaintiffs have been raising paddy, groundnut Topiaco crops and other nanja crop in the suit property with the aid of water from the well in their adjacent patta lands. Thus, the plaintiffs are entitled to be in possession and enjoyment of the suit property until evicted by the Government by due process of law. Nobody else is entitled to object to the peaceful possession and enjoyment of the suit property of the plaintiffs. Therefore, the plaintiffs under law are entitled to protect their possession against third party, interferers. The defendants have no right or interest in respect of the suit property. They are not competent to dispute the possession of the plaintiff or to disturb the same. Out of enmity, since 05.09.1990, some of the defendants have been attempting to interfere with the possession and enjoyment of the plaintiffs and they are trying to forcibly trespass into the suit property and dispossess the plaintiffs. Unless the defendants are restrained, the plaintiffs will be put to irreparable loss and damage. Hence, this suit for permanent injunction restraining the defendants and their men and agents from in any manner interfering with the plaintiffs' possession and enjoyment of the suit property and for costs.
4. The objections raised by the first defendant in the written statement as adopted by the other defendants would be as follows:
The plaintiffs are not in possession and enjoyment of 8 acres in the suit property. The family of the plaintiffs have cultivable lands of 0.40.0 ares, i.e., 1.00 acre in the suit property. Apart from that, the plaintiffs have two houses and a cow shed in the suit property and the extent of the houses and cow shed is 0.07.0 ares i.e., 0.17 cent only. Therefore, totally, the plaintiffs are in possession and enjoyment of 1 acre 17 cents only. Only to get benefit, the plaintiffs have shown that they are in possession and enjoyment of 8 acres of land in the suit schedule property. The defendants 1 and 2 have raised crops in three acres of the suit property. The said three acres are situated west of plaintiffs land, east of Kuppusamy Achari's land, north of vacant land, south of the pathway to Mayavan's land. The plaintiffs did not send any notice to the defendants but they have stated falsely as if they have sent a notice to the defendants and the defendants refused to receive the same and they also got interim stay against the defendants 1 and 2 and destroyed the crops raised by the defendants 1 and 2. The act of the plaintiffs are illegal. The averment in the plaint are all false. Hence, the suit has to be dismissed.
5. The trial Court framed necessary issues and entered trial. After appraising the evidence adduced before it, it had come to the conclusion of dismissing the suit without costs. Aggrieved by the judgment and decree passed by the trial Court, the plaintiffs preferred an appeal before the first appellate Court in A.S.No.14 of 1997. The first appellate Court heard the arguments of both parties, and came to a conclusion of allowing the appeal and thereby the judgment and decree passed by the trial Court were set aside with costs and the suit was consequently, decreed with costs.
6. Challenging the said judgment and decree passed by the first appellate court, the aggrieved first defendant, preferred the second appeal before this Court.
7. On admission of the second appeal, this Court has framed the following substantial questions of law for consideration in this appeal.
"1. Whether the lower appellate Court is correct in law in granting a decree for injunction in respect of the entire suit property, when admittedly none of the documents filed by plaintiffs/respondents 1 to 3 would prove their possession over the entire suit property?
2. Whether the lower appellate court is correct in law in miscontruing the admission of P.Ws 1 and 2 and D.w.1 and Exs.A1 and A2 in holding that the respondents 1 to 3 are in possession of the suit property?
3. When the imperative requirements of sections 101 and 102 of the Evidence Act, 1872, are not satisfied by the respondents 1 to 3 / plaintiffs, whether the lower appellate Court is correct in law in decreeing the suit?"
8. Heard Mrs.Mythili Srinivasan, learned counsel appearing for the appellant/first defendant and Mr.A.K.Kumarasamy, learned counsel appearing for the respondents 1 to 3/ plaintiffs. No appearance for other respondents except the 5th respondent who was given up by the appellant.
9. Learned counsel for the appellant/ first defendant would submit in her argument that the suit was originally filed before the trial court for bare injunction in respect of 8 acres which is situated in R.S.No.177 in Moolakadu Village, Kallakurichi Taluk which land was classified by Government, as unassessed Tharisu land. He would also submit that the entire Tharisu belonging to Government was not given with patta to anybody. She would also submit that the plaintiffs' case that they were in possession and enjoyment of the suit property for over 20 years after their father Kattaiya Gounder, was not substantiated by producing any 'B-memos' since they were stated to have been issued. She would also submit that the appellant along with other defendants would contend that the plaintiffs were in enjoyment of 1 acre 17 cents only and not, in 8 acres as put forth by the plaintiff whereas the defendants 1 to 5 are in possession and enjoyment of 3 acres of land on the western side of the plaintiffs' 1 acre 17 cents. The said property in possession of the defendant was bounded on the west of Kuppu Asari, north of Mayavan land, south by remaining Tharisu land.
10. She would further submit that the first appellate Court had failed in appreciating the evidence in a correct perception and it has interfered with the judgment and decree passed by the trial Court without any valid reason. She would further submit that it is a settled principle that the plaintiff has to succeed on the strength of his own case and not on the weakness of the defendant's case and the said principle was not followed by the first appellate Court but it had cast the burden of establishing the case on the defendants. She would also submit that the plaintiffs have established their possession in respect of 1 acre 17 cents only but the first appellate court had countenanced their case over the entire suit property. She would also submit that the evidence of both P.Ws. 1 and 2 were considered without any support from discriminatory evidence and was decreed wrongly in favour of the plaintiffs. While casting the burden upon the defendant, the first appellate court had not followed the mandatory provisions of Sections 101 and 102 of the Evidence Act. She would also submit that the law following the maxim " ie incumbit probatio qui dicit, non qui negat" should have been followed and on that basis the person who rests upon certain facts must assert and prove those facts. She would also submit that the name of the first defendant was found in the 'B-memo' issued and produced by the plaintiff himself and therefore, the case of the plaintiff ought not to have been relied upon by the first appellate court. She would also submit that the evidence produced in Exs.A3 to A6 do not relate to the suit property, however, it was accepted by the first appellate court.
11. She would further submit in her argument that the documents produced in Exs.B1 and B2 by the defendants ought to have been relied upon by the first appellate court in accepting the case of the defendant. She would also submit that the plaintiff was not found in possession of the entire extent of the property and therefore, the injunction decree cannot be granted in favour of the plaintiff as done by the first appellate court. She would also submit that the interference made by the first appellate court in the well considered judgment of the trial court was without any reason and therefore, the judgment and decree passed by the first appellate court may be set aside and thus, the judgment and decree passed by the trial court may be restored.
12. Learned counsel for the respondent/ plaintiff would submit in his argument that the plaintiff was having a patta land on the eastern side of the suit property and was having a well and motor pump set in the said property in R.S.No.194/2 and has been irrigating the suit property with water from the said well and was raising Nanja crops. He would also submit that the plaintiff was given with 'B-memos' for the enjoyment of the entire suit property measuring 8 acres and the defendants who were jealous over the plaintiff on raising of crops in the suit property attempted to interfere with the possession and enjoyment of the plaintiffs and attempted to trespass into the suit property. He would also submit that the plaintiffs were not in possession of any other government Tharisu land and therefore, the B-memos produced by the plaintiff were in relation to the suit property only. He would also submit that the trial court did not find that the documents produced by the plaintiff were not helpful to prove his possession to the suit properties and therefore, the suit was wrongly dismissed. He would also submit that the first appellate court had considered all the evidence and found the possession of the plaintiffs in the suit property and had reversed the judgment and decree passed by the trial court and thus decreed the suit. He would further submit that the inclusion of name of the first defendant in the B-memos issued is in respect of fraction of landed property which is lying south of the suit property and the defendant was not in possession and enjoyment of any part of the suit property. He would also submit that the other B-memo holders would also be in possession of the properties lying in south of the suit properties and there is no proximity for the suit property towards their enjoyment. He would therefore submit that the first appellate court has corrected the judgment of the trial court and it was pronounced by the lower appellate court after thoroughly considering the evidence produced by the parties on sound reasons. Therefore, he would request the court that the appellant has not placed any reason to interfere with the judgment and decree passed by the first appellate court and therefore, the appeal may be dismissed confirming the judgment and decree passed by the first appellate court.
13. I have given anxious thoughts to the arguments advanced on either side.
14. The suit was filed by the plaintiff for the following reliefs:
(i) For permanent injunction restraing the defendants ans their men and agents from in any manner interfering with the plaintiffs' peaceful possession and enjoyment of the suit property.
(ii) for costs.
15. The plaintiffs who are said to be in possession and enjoyment of the suit property measuring about 8 acres within the definite boundaries described in the plaint. The nature and character of the property was 'Government Tharisu' and therefore, whoever in possession of the said property by showing any documentary and oral evidence would have better case to resist their possession and enjoyment against any third parties. The only person who can challenge the right to possession of the said property would be the Government and no one else. The Government used to issue 'B memos' towards the collection of penalties for the unlawful occupation of Government lands.
16. According to the plaintiffs, the suit property namely the entire 8 acres (3.20.9 hectares) with thatched house and electric service connection No.16 in the name of the first plaintiff is in possession of the plaintiffs and the defendants who are in possession of the same area in the same survey number lying to the south of the suit property were attempting to interfere with the possession and enjoyment of the suit property. The plaintiff who have come to the court ought to have proved his case that they are in possession of the suit property. For that, the plaintiff had produced Exs.A1, A2 series, the 'B memos' contained 8 and 15 respectively. The plaintiffs had also produced electricity charges paid by the plaintiffs and also the patta book to show the lie of his land on the eastern side of the suit property. No doubt those documents would go to show that the plaintiffs were in possession of the suit property as mentioned in the said 'B memos', whenever B-memos were issued.
17. The defendants have also claimed to be in possession of the suit property. For that, the defendants have produced Exs.B1 and B2 , the B-memos numbering about 8 to show their possession. On a careful perusal of these documents namely, B-memos, which would normally show the possession and enjoyment of the Government Tharisu lands held by parties, I could not find what extent of the suit property the parties are in possession. Similarly, in the B-memos produced by the plaintiffs, the name of the first defendant was also shown to have been in possession of certain extent of properties in Government Tharisu.
18. It was submitted by the learned counsel for the plaintiff that the said properties mentioned in the name of the first defendant in the B-memo of the plaintiff were located on the southern side of the suit property and they are not in relation to the suit property. As already discussed, the plaintiffs could not show that they are in possession of the entire 8 acres of the suit property by showing that they are in possession of certain extent of properties within the 3 boundaries lying on the east, north and west. However, the southern boundary was not shown to have occupied by one Chinnakannu as stated in the plaint. But it is stated to be as Government Tharisu. The defendants have categorically admitted in their written statement that the plaintiffs were in possession and enjoyment of 1 acre 17 cents in the suit property and not the entire 8 acres. In the said circumstances, the plaintiffs as well as the defendants have not adduced evidence to enable the Courts below to come to a correct conclusion in respect of possession of the suit property and its identification.
19. The first appellate court had without any support of documentary evidence to the oral evidence had decreed the entire suit property in favour of the plaintiffs and the said judgment and decree ought to have been reversed. At the same time, the judgment and decree passed by the trial court cannot be restored since the trial Court did not understand the case and dismissed the entire suit. If really, the admitted pleas of the defendants have been considered, the plaintiffs would have been given a decree for an extent of 1 acre 17 cents on the basis of admission given by the defendants in the written statement. But the trial Court had dismissed the suit in its entirety. Therefore, the said judgment and decree passed by the trial court also cannot be approved for restoration. Therefore, it has become necessary for this Court to set aside both the judgment of the trial court as well as the first appellate Court in order to give opportunities to both parties to putforth the additional pleas and adduce further evidence in support of their case for the purpose of enabling the Court to come to a correct conclusion. For that purpose, it has become necessary to remand the matter to the trial Court for receiving the additional pleadings and to record further evidence of parties and to pronounce the judgment on that basis without any confusion in the mind of the trial Court.
20. Therefore, I am of the considered view that the appeal has to be allowed and thereby, the judgment and decree passed by the trial court are set aside and the case is remanded back to the trial court for enabling the parties to file additional pleadings and to produce further evidence or documents as the case may be for the purpose of clarifying the case so as to enable the trial Court to pass a correct judgment.
21. Accordingly, the second appeal is allowed, setting aside the judgment and decree of trial court as well as the first appellate Court and the case is remanded back to the trial Court for fresh disposal in accordance with law. The parties are directed to appear before the trial court on 22.8.2012.