P.R. Shivakumar, J.@mdashThe second appeal is directed against the judgment and decree of the learned District Judge, Ramanathapuram dated 28.07.1994 made in A.S.No.44 of 1993 confirming the judgment and decree of the learned District Munsif, Ramanathapuram dated 15.04.1993 made in O.S.No.43 of 1990. The plaintiff in the suit who proved to be unsuccessful before both the Courts below is the appellant in the present second appeal. The appellant herein had filed the original suit initially for declaration and injunction. Subsequently the plaint was amended and a prayer for declaration and recovery of possession was introduced as an alternate relief. According to plaint averments, the suit property measuring an extent of 1.35 acres, forming the northern part of survey number 110 in Thiruppalakkkudi village, Thiruvadani Taluk, Ramanathapuram District originally belonged to one Muthu Thevan @ Muniyandi Thevar. The said Muthu Thevan @ Muniyandi Thevar sold it to Mohammed Seithakkadhi Rawther under a registered sale deed dated 16.10.1923. After the death of the said Mohammed Saithakkadhi Rawther, his sons Hameed Ibrahim and Mohammed Ismail sold it to Hayadhudheen, the father of the appellant/plaintiff under a sale deed dated 24.12.1968 and the appellant/plaintiff got the suit property as gift under a gift settlement deed dated 24.10.1985 from her father. Contending that the respondents 1 and 2/defendants 1 and 2, who did not have any title or right in respect of the suit property, were making attempts to trespass into the same, the appellant/plaintiff had initially prayed for the relief of declaration and injunction. Contending further that the respondents 1 and 2/defendants at last succeeded in their attempt during the pendency of the suit, the appellant/plaintiff amended the prayer part of the plaint seeking declaration and injunction and in the alternative for declaration and recovery of possession.
2. The suit was resisted by the respondents 1 and 2/defendants denying the plaint averments and contending that the suit property originally belonged to Arulmighu Mandhiranatha Swamy temple and the same was in the possession and enjoyment of the family of the defendants as they had Kudiwaram right as cultivators. It was their further contention before the trial Court that the entire extent comprised in survey number 110 was enclosed with fences on all sides and was enjoyed as a single unit; that there was no demarcation on ground into northern plot and southern plot; that there was only one gate on the eastern side to gain access to the entire extent >comprised in the suit survey number; that there was no separate entrance for the northern part of survey number 110 shown in the plaint as the suit properly and that at no point of time either the appellant/plaintiff or her predecessors-in-interest were in possession and enjoyment of the suit property.
3. The trial Court framed necessary issues and conducted trial in which two witnesses were examined as PW1 and PW2 and Ex.A1 to E19 were marked on the side of the plaintiff. On the side of the defendants, two witnesses were examined as DW1 and DW2 and Ex.B1 to B13 were marked. The report, plan and additional report submitted by the advocate-commissioner were marked as Exs.C1, C2 and C3 respectively. At the conclusion of trial, the learned District Munsif heard the arguments advance on either side, considered the pleading and evidence in the light of the arguments advanced and, upon such consideration, held that the appellant/plaintiff was not entitled to any one of the reliefs sought for in the plaint. Consequently, the suit was dismissed by the trial Court. The appeal A.S.No.44 of 1993 filed by the plaintiff on the file of the lower appellate court (District Court, Ramanathapuram) was also dismissed confirming the judgment and decree of the trial Court. Hence, the present second appeal was filed by the appellant/plaintiff against the respondents 1 and 2/defendants. During the pendency of the second appeal the first respondent/first defendant passed away and respondents 3 to 9 were impleaded as the legal representatives of the deceased first respondent.
4. This Court heard the arguments advanced by Mr. D. Rajagopalan, advocate on behalf of the appellant and the arguments advanced by Mr. V. Sitharanjandas, advocate on behalf of the respondent 2 to 9 and paid its anxious considerations to the same. This Court also perused the materials available on record.
5. The unsuccessful plaintiff, having lost her case in both the courts below has brought forth this second appeal. Claiming title to the suit property the appellant/plaintiff had prayed for a declaration to the effect that she was the absolute owner of the suit property. As a consequential relief, she had prayed for an injunction not to disturb her possession and enjoyment of the suit property or in the alternative for recovery of possession. Her prayer was totally turned down by both the courts below. At the time of admission of the second appeal, two substantial questions of law were formulated. They are:
1) Whether the Courts below have erred in dismissing the suit despite the grant of Ryotwari Patta in favour of the plaintiff''s father in respect of the suit S.No.110?
2) Whether the Courts below have erred in law is not holding that the release deed executed by Abdul Khader and Amanulla under Ex.B2 dated 06.04.1988 is not binding on the plaintiff, especially when Hayadhudheen, the father of the plaintiff has not released his rights available to him under Ex.A3 dated 15.11.1973?
6. In support of her contention that she is the absolute owner of the suit property, the appellant/plaintiff has relied on Ex.A1 sale deed dated 16.10.1923, Ex.A2 sale deed dated 24.12.1968 and Ex.A4 settlement deed dated 24.10.1985 as title deeds. Apart from the said title deeds she has also produced the order of the Assistant Settlement officer, Sivanganga dated 15.11.1973 as Ex.A3, patta pass book issued to Hayadhudheen as Ex.A6 and U.D.R. Patta issued to Abdul Kader, Amanulla and Hayadhudheen dated 24.02.1984 as Ex.A12. The other documents produced by her are the kist receipts, documents relating to the proposed land acquisition that was later on given up and the copies of the judgments and decrees passed by the trial Court and appellate Court in a former suit concerning another property lying on the north of the present suit property.
7. The learned counsel for the appellant contended that the Courts below erred in not accepting Ex.A1, the earliest document of title relied on by the appellant/plaintiff to prove her title to the suit property; that the courts below ought to have believed the said document as the same happened to be an ancient document regarding the genuineness of which presumption u/s 90 of the Evidence Act would be attracted and that the claim of title made by the appellant/plaintiff, in the absence of production of any title deed on the part of the defendants, should have been accepted.
8. It is true that the defendants did not produce any title deed like sale deed, settlement deed et cetera. But the nature of the plea made by the defendants would negative the justification of expecting any such title deed. It is the clear case of the respondents that the suit property was originally a temple land belonging to Arulmighu Mandhiranatha Swamy temple and their family members were cultivating the same in exercise of their Kudiwaram right from time immemorial. They have relied on Ex.B1-Settlement Register extract to show that patta stood in the name of the temple during samasthanam period. It can be seen from Ex.B1 that the land measuring 2.35 acres comprised in S.No.110 had been registered in the name of the local ruler Ragunatha (Sethupathy) before settlement and only in survey settlement joint patta was issued in patta No.217 to 1) Mohammed Abdul Kader, 2) Amanullah and 3) Hayadhudheen. The respondents contend that the issue of patta to the above said persons in the settlement proceedings was erroneous. In fact an appeal was preferred against the order of the Assistant Settlement Officer and during the pendency of the appeal the resurvey came into effect and U.D.R. Patta came to be issued to those three persons. But subsequently as evidenced by Ex.B2 to Ex.B4, out of the above said three persons Mohammed Abdul Kahader and Amanullah have released their right under the patta stating that they were not in possession of the property at any point of time and admitting the possession and enjoyment of the defendants. Of course, the third joint pattadhar through whom the appellant/plaintiff derived her title has not executed similar release deed. Therefore, the learned counsel for the appellant has rightly contended that the release deed executed by those two persons will not take away the right of the appellant in respect of the suit property. At this juncture, it shall be appropriate to point out that the appellant/plaintiff has to establish her case for getting the reliefs and the weakness of the defence case of the respondents alone will not help her in this regard.
9. The case of the appellant/plaintiff is that having valid title to the suit property her predecessors-in-interest were, and at the time of filing of the suit she was, in possession and enjoyment of the same. On the other hand, the respondents contend that at no point of time the suit property was in the possession and enjoyment of the appellant/plaintiff or her predecessors-in-title. All the documents produced by the appellant/plaintiff to prove possession were the document that came into existence subsequent to the order of the Assistant Settlement Officer dated 15.11.1973 marked as Ex.A3. The settlement pattas marked as Ex.A5 and Ex.A6 and kist receipts marked as Ex.A7 and Ex.A10 were the documents that came into existence subsequent to Ex.A3. Subsequently U.D.R. Patta was also issued while the appeal against the order of the Assistant Settlement Officer was pending before the Tribunal. Hence, the respondents 1 and 2 challenged the same in an appeal before the Revenue Divisional Officer. Ultimately the same was decided against the appellant/plaintiff and in favour of the defendant as evidenced by the orders of the Revenue Divisional Officer marked as Ex.B12 and B13. Therefore, the fact that patta had been issued in the settlement proceedings in favour of the appellant''s/plaintiff''s predecessor in interest shall not be enough to prove either her title or possession. The very same observation shall be applicable in respect of the U.D.R. Patta marked as Ex.A12. So far as the land acquisition proceeding is concerned, it is obvious that notice was served on the persons whose names were found in the Revenue records as pattadhars. In fact, the said acquisition proceedings were dropped ultimately and hence the same will not help the appellant/plaintiff to prove her case. As such, the claim of title to the suit property by the appellant/plaintiff has to be tested with reference to the title deeds relied on by her, namely Ex.A1, A2 and A4.
10. Ex.A4 depends upon Ex.A2 and Ex.A2 depends upon Ex.A1. The earliest document relied on by the appellant/plaintiff is Ex.A1 sale deed dated 16.10.1923 by which Mohammed Seithakkadi Rawthar was said to have purchased the suit property from one Muthu Thevan @ Muniyandi Thevar. The learned counsel for the respondent would contend that the reliance made by the appellant/plaintiff on Ex.A1 was rightly rejected on the grounds that the property conveyed under Ex.A1 was not proved to be the suit property and that the vendor under the sale deed was not proved to have title to be conveyed. On the other hand the learned counsel for the appellant/plaintiff would contend that the said document being an ancient document, its genuineness should be presumed. No doubt Ex.A1 is an ancient document, the genuineness of which has got to be presumed u/s 90 of the Evidence Act. The scope of such presumption is limited to the aspects of execution and attestation of the document and of the persons who are said to have written, signed and attested the same. Beyond the said limits, it cannot be stretched further to presume that the author of the document did have valid title which was sought to be conveyed. In this regard, the Courts below have appreciated the evidence and came to the conclusion that the vendor under Ex.A1 was not proved to have title to the suit property. Of course, the trial Court had incidentally observed that the appellant/plaintiff had not proved how the vendor under Ex.A1 became entitled to the property conveyed therein. It is true that the said observation of the trial Court was a mistake since Ex.A1 contains a recital to the effect that the property was the ancestral property of the vendor therein (Muthu Thevan @ Muniyandi Thevar). But the lower appellate Court reappraised the evidence and came to the conclusion that the property conveyed under Ex.A1 was not correlated with the suit property and hence Ex.A1 was not proved to be a document relating to the suit property. The said finding of fact by the final Court of appeal on fact is supported by reasons and hence the same cannot be termed a perverse finding. Such a finding of fact cannot be interfered with by the second appellate Court. That is why, this Court also, at the time of admission, did not frame any question regarding the said finding and was content with the framing of the two substantial questions of law indicated supra.
11. We have seen in the foregoing paragraphs that the finding of the Courts below to the effect that the property conveyed under Ex.A1 was not proved to be the suit property could not be disturbed as the same happened to be a finding of fact which cannot be termed a perverse finding. The other documents of title relied on by the appellant/plaintiff are Ex.A2-sale deed dated 24.12.1968 and Ex.A4-settlement deed dated 24.10.1985. As the parent deed Ex.A1 has not been proved to be a document relating to the suit property, the other two documents namely Ex.A2 and Ex.A4 will not help the appellant/plaintiff in establishing her title to the suit property. On the other hand, the appellant/plaintiff very much relied on the ryotwari patta issued in favour of her father by the Assistant Settlement Officer. It is true that after the Inams Abolition Act, 1963 and Minor Inams Abolition Act, 1963 came into force, the Assistant Settlement Officer, Sivaganga granted ryotwari patta in favour of Hayadhudheen, the father of the appellant/plaintiff, Mohammed Abdul Kader and Amanullah in respect of S.No.110. Patta was issued jointly in the name of all the three persons as evidenced by the order of the settlement officer dated 15.11.1973 marked as Ex.A3. Joint patta issued in the name of Mohammed Abdul Kader, Amanullah and Hayadhudheen under patta number 217 for the entire extent of 2.35 acres comprised in S.No.110 has been marked as Ex.A5 patta pass book issued in the name of Hayadhudheen has been marked as Ex.A6. Ex. A12 is the UDR patta issued in favour of Mohammed Abdul Kader, Amanullah and Hayadhudheen under patta number 383.
12. It is a fact not in dispute that as against the order of the Assistant Settlement Officer, the original defendants preferred an appeal before the tribunal and the same was said to be pending during the pendency of the suit. What was the fate of the said appeal has not been brought to the notice of the Court by either of the parties to this case. However, as against the issue of patta under UDR to the above said three persons, the original defendants (respondents 1 and 2) preferred an appeal before the Revenue Divisional Officer, who after enquiry, passed an order directing issuance of patta for the entire extent of 2.35 acres comprised in S.No.110 in favour of respondents 1 and 2 cancelling the patta issued in the name of Mohammed Abdul Kader, Amanullah and Hayadhudheen. The said order dated 27.09.1989 has been marked as Ex.B12. As a prelude to the above said order of the Revenue Divisional Officer, two out of the three joint pattadars had disowned their right in respect of the property comprised in S.No.110 and admitted mat patta had been issued in their names by mistake. Incorporating such an admission and admitting further that the property had been all along in the possession and enjoyment of the respondents 1 and 2, they executed a document styled as deed of release of the rights under the patta (gl;lh ghj;jpa tpLjiyg;gj;jpuk;) on 06.04.1988. The said document has been produced and marked as Ex.B2. Along with the said document, the above said Mohammed Abdul Kader and Amanullah also surrendered the patta pass books issued in their favour to the respondents 1 and 2 and the same have been marked of the defendants as Ex.B3 and Ex.B4. Exs.B5 to Bll are the kist receipts to show that the respondents 1 and 2 were paying kist in respect of the entire extent of the property comprised in S.No.110. Though the joint patta issued in the name of Mohammed Abdul Kader, Amanullah and Hayadhudheen was cancelled and a direction was issued by the Revenue Divisional Officer to issue patta in the name of respondents 1 and 2, since the said order was passed in respect of S.No.110/1 Ex.B13 order came to be passed on 22.03.1990 to the effect that there was no division of survey number 110 into sub divisions; that by mistake the property regarding which patta was directed to be issued was shown to be S.No.110/1 and hence it become necessary to pass an order to the effect patta for the entire S.No.110 should be issued in the name of the respondents 1 and 2 (Original defendants).
13. Ex.B1 is the settlement register relied on by the respondents 1 and 2. From Ex.B1 it is obvious that prior to the order of the Assistant Settlement Officer directing issue of patta jointly in the name of Mohammed Abdul Kader, Amanullah and Hayadhudheen, the land had been registered in the name of Regunatha Sethupathy. The respondents 1 and 2 had contended that the entire property comprised in S.No.110 had been a temple land belonging to Arulmighu Mandhiranatha Swamy Temple and on behalf of the said temple the patta had been issued in the name of trustee, who was the local Ruler. The local Ruler was represented by the Diwan and Administrative secretary Raghavendra before Assistant Settlement Officer as seen from Ex.A3.
14. By virtue of the order of the Revenue Divisional Officer marked as Ex.B12 and Ex.B13 patta issued in the name of Hayadhudheen, the father of the appellant/plaintiff has been nullified. Of course, it is the contention of the learned counsel for the appellant that the order of the Revenue Divisional officer is erroneous in so far as neither the appellant/plaintiff nor her father gave consent for the cancellation of the patta issued in the name of Hayadhudheen; that they did not execute any release deed releasing their right under the patta as was done by the other two joint pattadars (Mohammed Abdul Kader and Amanullah); that the said order was obtained pursuant to the collusion between the respondent 1 and 2 and the other two joint pattadars as they were won over by the respondents 1 and 2 and that Ex.B2 was brought into existence in order to defeat the right of the appellant/plaintiff.
15. It is a fact not in dispute that the respondents before the Revenue Divisional Officer in the appeal filed by the respondents 1 and 2 against the issue of U.D.R. Patta jointly in the name of Mohammed Abdul Kader, Amanullah and Hayadhudheen in respect of 0.95.0 hectares (2.35 acres) comprised in S.No.110 were none other than the appellant/plaintiff and her father Hayadhudheen.
16. From Ex.A12 it is obvious that the appellant/plaintiff and her father were represented by Thiru. T.S. Ramanujam, advocate and only after contest, Ex.B12 order was issued. As against the said order passed by the Revenue Divisional Officer, the appellant/plaintiff has not filed any further appeal or revision.
17. On the other hand, the appellant/plaintiff has approached the civil Court by way of the present suit for a declaration that she is the absolute owner of the suit property and for a consequential injunction to protect her possession and in the alternative for recovery of possession.
18. As pointed out supra, the UDR patta issued in the name of the father of the appellant/plaintiff stands cancelled by Ex.B12 order. As the said order directed issuance of patta in respect of the entire extent of 0.95.0 hectares (2.35 acres) in favour of respondents 1 and 2, the appellant/plaintiff can no longer rely on Ex.A12 UDR patta. For the very same reason, Ex. A5- joint patta issued in the name of Mohammed Abdul Kader, Amanullah and Hayadhudheen also will not be helpful to the appellant/plaintiff to establish her title. As pointed out supra, the fate of the appeal against the order of the Assistant Settlement Officer marked as Ex.A3 filed before the Tribunal, Sivaganga is not known. Under such circumstances, claim of title made by the appellant/plaintiff to the suit property which is the northern part of S.No.110 based on the settlement patta cannot be upheld. In this regard attention of this Court has been drawn to the following judgments to show that the finding of the parties under the Inams Abolition Act, 1963 and Minor Inams Abolition Act, 1963 are not conclusive and that the civil Court can entertain the suit for declaration of title and injunction and go into the question of title despite the fact that the settlement authority had issued patta in favour of a particular person.
19. A Full Bench of the Madras High Court in
A careful analysis of the scheme underlying these Abolition laws would go to show that the vesting on abolition under everyone of these legislations is subject to the pre-existing rights of the occupants, except in respect of what are known as public or communal properties, meant for common use and the grant of patta has been always considered and held to be in recognition of their pre-existing rights. The provisions relating to abolition and vesting, of the properties do not have the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public or communal properties and the rights which inhere are the basic and fundamental rights which entitle a person to preferentially get patta under these legislations, and the same could not be equated to the grant of patta by way of assignment under the Revenue Standing Orders or under rules of assignment outside the scope of the statutory enactments. Similarly, a meticulous analysis of the scheme underlying the provisions of the Act dealing with the nature of rights dealt with by the various authorities, the manner in which such authorities adjudicate such rights and the consequences of such adjudication, disclose that they do not mean and even intend to be a substitute or alternate mode of resolution of the ordinary civil right of a citizen or for that matter person asserting competing claims, in their attempt to project a claim for patta.
20. Similarly the Honourable Supreme Court in
21. It is obvious from Ex.A3 that even before the Assistant Settlement officer, the properties were claimed to be the temple properties belonging to Arulmighu Mandhiranatha Swamy temple and the respondents 1 and 2 were in the possession and the enjoyment of the property. From the judgment of the Full Bench of the Madras High Court cited above it is quite clear that adjudications made by the authorities under the Inams Abolition Act, 1963 and Minor Inams Abolition Act, 1963 are not intended to be a substitute or alternate mode of resolution of ordinary civil rights of a citizen and they do not have the effect of ousting the jurisdiction of the civil courts. When the person in whose name settlement patta has been issued continues to be in possession of the property, the same may give rise to a presumption that she/he had a pre-existing title. On the other hand, if it is proved that some other person had pre-existing title then the claim of title in whose favour settlement patta had been issued will necessarily fail. In this case, the appellant/plaintiff has approached the Court for declaration of her title to the suit property. The mere fact that she had been issued patta by the authorities under the Inams Abolition Act, 1963/Minor Inams Abolition Act, 1963 is not enough for the appellant/plaintiff to succeed in the suit. She has to establish her pre-existing title. Of course it is true that the appellant/plaintiff has relied on Ex.Al-sale deed in this regard. She has also relied on Ex.A2-sale deed to prove the derivation of title. It is not her case that the Tamil Nadu Minor Inams Abolition Act, 1963 or Inams Abolition Act, 1963, her predecessor-in-interest had been issued patta. If at all the suit property happened to be a ryoti land and not an inam estate or a minor inam, patta could have been issued to the appellant''s/plaintiffs predecessor-in-title during the Samasthanam period or under the Estate Abolition Act, 1948. Admittedly, till 1973 when the Assistant Settlement Officer under the Inams Abolition Act, 1963/Minor Inams Abolition Act, 1963 directed issuance of patta under Ex.A3, no patta had been issued in favour of Mohammed Abdul Kader, Amanullah and Hayadhudheen. All the kist receipts produced on behalf of the appellant/plaintiff are subsequent to Ex.A3 order. Absolutely there is no scrap of paper to show any payment of kist before the said date.
22. On the other hand, the respondents 1 and 2/defendants were able to produce a vital document/namely SLR extract as Ex.B1, to show that the land had been registered in the name of the local ruler as trustee of Arulmighu Mandhiranatha Swamy Temple. It has also been printed out in para 14 of this judgment that the trustee was represented by Diwan and Administrative secretary Raghavendra in the proceedings before Assistant Settlement Officer. When such is the case, this Court has to come to the conclusion that the grant of ryotwari patta by the Assistant Settlement Officer under Ex.A3 jointly in favour of Hayadhudheen and two other persons is not enough to establish the pre-existing title of the appellant or the persons through whom she claiming to have derived title. Absolutely, there is no document to show the pre-existing title of any of the persons through whom the appellant/plaintiff claims to have derived title.
23. On the other hand, as pointed out supra, the respondents 1 and 2/defendants were able to prove that the property had been registered in the name of the temple prior to ryotwari settlement under Inams Abolition Act and Minor Inams Abolition Act (1963). Therefore, the contention of the appellant that the Courts below should have accepted and acted upon the Ryotwari patta granted in favour of the plaintiff''s father and decreed the suit cannot be accepted. There is no legal impediment for the Court to go into the question of pre-existing title to the suit property despite the grant of ryotwari patta by the Assistant Settlement Officer in favour of the plaintiff''s father in respect of the suit S.No.110. Therefore, the first substantial question of law has got to be answered against the appellant/plaintiff and in favour of the respondents and the challenge made to the judgments and decrees of the lower Courts on the basis of the contentions incorporated in the said question is bound to be rejected as untenable.
24. The next substantial question of law framed at the time of admission is based on the contention of the appellant that the Courts below should have held that the release deed executed by Mohammed Abdul Khader and Amanullah under Ex.B2 is not binding on the appellant/plaintiff especially when the father of the appellant had not released his right under the order of the Assistant Settlement Officer marked as Ex.A3. It is pertinent to note that the Courts below non-suited the appellant/plaintiff not on the ground that the release deed executed by Mohammed Abdul Khader and Amanullah could be used against Hayadhudhueen also or the appellant/plaintiff, but on the ground that the pre-existing title of the appellant''s/plaintiff''s predecessor was not established and the defendants were able to prove the pre-existing title of the temple. Only in order to come to the conclusion that the appellant/plaintiff was not able to prove her pre-existing title, the fact that the other two joint pattadars has chosen to release their rights under the patta issued by the Assistant Settlement Officer was relied on by the Courts below. As the Courts below have come to a right conclusion that the appellant/plaintiff failed to prove her pre-existing title and on that score alone she should be non-suited for the relief of declaration. Hence the fact that neither Hayadhudheen nor the appellant/plaintiff executed any release deed available to him under the order of the Assistant Settlement Officer marked as Ex.A3 is of no consequence. Therefore, this Court finds no defect or infirmity in the finding of the Courts below that the appellant/plaintiff has not proved her title to the suit property, despite the fact that neither the appellant/plaintiff nor her father executed any release deed as it was done by the other two joint pattadars. Hence the second substantial question of law framed by this Court has got to be answered against the appellant/plaintiff and in favour of the respondents/defendants.
25. So far as the question of possession and enjoyment of suit property is concerned, apart from the admission that the respondents 1 and 2/defendants were in possession and enjoyment, there are other materials available to show at no point of time the appellant/plaintiff could have been in possession of the suit property. Admittedly, the entire extent in S.No.110 is enclosed by fence. There is clear evidence to the effect that on ground, there is no demarcation of the property into northern portion measuring 1.35 acres and southern portion measuring 1.00 acre. Clear evidence has been adduced on the side of the respondents 1 and 2/defendants to the effect that the entire extent of land comprised in S.No.110 has been enclosed by fence and is enjoyed as a single unit; that there is no demarcation on ground into northern plot and southern plot; that there is only one gate on the eastern side to gain access to the entire extent comprised in the suit survey number and that there is no separate entrance for the northern part of survey number 110 shown in the plaint as the suit property.
26. It has also been clearly pleaded and proved that the entire extent is in possession and enjoyment of the respondents 1 and 2/defendants; that the eastern portion of the S.No.110 is lower in level where as the western portion is higher in level; that the low lying portion has been divided into five small plots and used for cultivation, whereas the western portion, which is higher in level, is used as a thrashing floor and a place for keeping the haystack. The said contention of the respondents 1 and 2/defendants is supported by the evidence adduced by them as well as the reports and plan of the Advocate Commissioner marked as C1 to C3. The Commissioner''s report and plan clearly show that access to the suit property can be had only through the gate in the fence on the eastern side. It has also been admitted by PW1. The same will give a clear inference that the property could not have been in possession and enjoyment of the plaintiff or the persons through whom she claims to have derived title. The said factual finding cannot be termed a perverse one. There is no scope for interference with the same. Therefore, the Court finds no defect or infirmity in the judgment of the lower appellate Court confirming the judgment and decree of the trial Court by which the suit filed by the appellant/plaintiff was dismissed. There is no scope whatsoever for inference with the same in the second appeal. There is no merit in the second appeal and the same deserves to be dismissed. Accordingly, the second appeal is dismissed. No order as to costs.
