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Madras High CourtSA/996/2016dismissed

Kalaiselvi v. Marakkal

2022-02-10Honourable Mr Justice N. Anand Venkatesh3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.02.2022

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH Second Appeal No.996 of 2016 and CMP No.20505 of 2016 Kalaiselvi ... Appellant/Appellant/Plaintiff Vs.

1. Marakkal

2. Shanmugam

3. Subramanian ... Respondents/Respondents/Defendants Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 04.12.2015, passed by I Additional District Judge, Salem, in AS No.44 of 2014 confirming the judgment and decree dated 06.01.2014 passed by II Additional Subordinate Judge, Salem in OS No.106 of 2008.

For Appellant : Mr.A.Tamilvanan For Respondent : Mr.Kaithamalai Kumaran, for R1 No appearance for R2 R3 Left.

JUDGMENT

The plaintiff is the appellant in the Second Appeal.

2. The plaintiff filed a suit against the defendants seeking for the relief of declaration of title, permanent injunction and for mandatory injunction.

3. The case of the plaintiff is that originally the suit property along with other properties belonged to the third respondent. He sold the suit property to one Kamalam under a registered Sale Deed dated 19.02.1990. The said Kamalam,

executed a registered Power of Attorney dated 20.12.2007. The power of attorney agent sold the suit property in favour of the plaintiff by virtue of the Sale Deed dated 04.02.2008.

4. The further case of the plaintiff is that the first defendant has purchased the same property from the third defendant who was represented by the power of attorney agent second defendant. According to the plaintiff, the first defendant has encroached upon the property and has put up construction. Hence the present suit came to be filed against the defendants seeking for various reliefs.

5. Both the Courts below on consideration of the facts and circumstances of the case and also on appreciation of oral and documentary evidence found that the property in which the plaintiff is claiming title has not even been properly described or identified and hence the burden of proof is upon the plaintiff to identify the property and to establish the title over it. Both the Courts below also found that even when the plaintiff purchased the suit property, there was a construction in the suit property and hence the theory that was set up by the plaintiff as if it was encroached later and construction was put up by D1, was found to be untenable. Both the Courts below also found that the plaintiff did not even properly mention the cause of action based on which the suit was filed and reliefs were sought for. For proper appreciation, paragraph VII of the plaint is extracted here under:

"VII. The cause of action for the suit arose on 19.2.1990 when the suit property was sold to Kamalam on 20.12.2007 when the power of Attorney was executed and on 04.02.2008 when the same was purchased by the plaintiff and on February 2008 when the 1st defendant claimed right in the property."

6. It is clear from the above that there is not even a pleading with regard to the cause of action based on which the suit was filed by the plaintiff. On this ground alone, the suit ought to have been rejected even at the inception under Order VII Rule 11 of the Code of Civil Procedure Code. Unfortunately the suit has travelled up to this Court and was pending by way of a Second Appeal for the last six years.

7. This Court does not find any ground to interfere with the findings rendered by both the Courts below and there are no substantial questions of law involved in the Second Appeal. In the result the Second Appeal is dismissed. Considering the facts

and circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS-IV) // True Copy // Sub Assistant Registrar Jeni/jv To 1.The I Additional District Judge, Salem.

2. The II Additional Subordinate Judge, Salem.

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

+1cc to Mr.S.Kaithamalai Kumaran, Advocate SR.No.8889 Second Appeal No.996 of 2016 and CMP No.20505 of 2016 AK-II(CO) CB(18/04/2022)