Madras High Court
Mrs.Alagu Meenal vs R.M.Sivaji on 4 February, 2021
S.A.No.512 of 1995
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.512 of 1995
and C.M.P.No.6031 of 1995
Mrs.Alagu Meenal ... Appellant
Vs.
1.R.M.Sivaji
2.Sivaraj (Died)
3.Ramasamy Ambalam
4.Jothi
5.Sakthi Meiyappan
6.Chitradevi
7.Koppathai
(R4 to R7 are brought on record as Lrs
of the deceased 2nd respondent as per order
dt., 06.02.2019 in C.M.p.No.11941 to 11943 of 2018) ... Respondents
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 30.11.1994 passed by the learned
Subordinate Judge, Devakottai in A.S.No.97 of 1992 confirming the decree and
judgment dated 07.04.1992 passed by the learned District Munsif, Devakottai in
O.S.No.596 of 1989.
1/16
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S.A.No.512 of 1995
For Appellant : Mr.H.Lakshmi Shankar
For Respondents : Mr.R.G.Shankar Ganesh
JUDGMENT
Aggrieved over the concurrent findings of the Courts below, dismissing
the suit filed for permanent injunction, the present Second Appeal is filed.
2.The parties are referred to as per their rank before the trial Court.
3.The brief fact, leading to file this Second Appeal, reads as follows:-
The suit property was originally in possession and enjoyment of one
Periyakaruppan Servai and his ancestors. The above property was vested with
Karaikudi Nattars Estate. The said Periyakaruppan has purchased the suit property
from the Receiver of Karikudi Nattars in the year 1980. Thereafter, on
25.12.1982, the plaintiff has purchased the suit property from the said
Periyakaruppan, through a unregistered sale deed. After the purchase, the plaintiff
has constructed a house thereon and also put up a fence in the suit property. The
plaintiff is regularly paying the tax to the suit property and enjoying the same.
The defendants have never in possession and enjoyment of the property nor title to
the suit property. On 24.10.1989, the defendants have tried to interfere with the
plaintiff's possession. Hence, the suit.
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S.A.No.512 of 1995
4. It is the contention of the first defendant in the written statement that
four boundaries of the suit property are incorrect and on the northern side of the
suit property, there is no Karaikudi Kanmai and in fact, on the northern side of the
suit property one reserved plot belonging to Karaikudi Nattars is situated and one
plot belongs to S.Subbiah Ambalam. Similarly, on the western side, there is not
only M.K.Thanner Pandal, but also Nellikai Oorani is situated. However, it is
admitted that there is 66 feet East-West Road. It is the contention of the first
defendants that plaintiff is not in actual possession and enjoyment of the property
and the correct T.S.No is 429/part-I and not 429. The correct extent of the suit
property is measuring about 1 acre 45 cents and not 40 cents. The contention of
the plaintiff that she has purchased the property on 25.12.1982 is also disputed and
denied by the defendants in the written statement. At the time of filing the suit,
there is no construction put up by the plaintiff in the suit property and it is the
contention of the first defendant that he has purchased the suit property through a
unregistered sale deed, dated 16.09.1982 and also filed a kist receipt and the
proceedings of the Commissioner of Karaikudi Municipality also shows that the
plaintiff is not in possession of the suit property. The suit property originally
belongs to Karaikudi Nattars and they are the original and true owners and they
have not been impleaded in the suit and hence, prays for dismissal of the suit.
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S.A.No.512 of 1995
5. Based on the above pleadings, the trial Court has framed the following
issues:
1) Whether the plaintiff is in possession of the suit property?
2) Whether the plaintiff is entitled to get permanent injunction? and
3) To what other reliefs, the plaintiff is entitled?
6. On the side of the plaintiff, P.W.1 to P.W.3 were examined and Ex.A1
to A8 were marked. On the side of the defendants, D.W.1 and D.W.2 were
examined and Ex.B1 to B12 were marked. After considering the oral and
documentary evidence, the trial Court found that on the date of filing of the suit,
the plaintiff was originally in possession of 20 cents and thereafter, she also came
into possession of another 20 cents. However, non-suited the plaintiff on the
ground that the title has not been proved. Similarly, Ex.A1 to Ex.A3-tax receipts
relating only to 20 cents and Ex.A6 and Ex.A7-tax receipts relating to another 20
cents, which was paid after filing of the suit. Hence, non-suited the plaintiff. The
first appellate Court has also concurred with the finding of the trial Court. The
Courts below also considered that the boundaries are not properly set out in the
plaint and dismissed the suit. As against which, the present Second Appeal is
filed.
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S.A.No.512 of 1995
7. While admitting the Second Appeal, the following substantial
questions of law have been framed:
“1. Whether the Courts below were correct in dismissing
the suit for bare injunction on the ground that the plaintiff's sale
deed was an unregistered one, even though the plaintiff was in
possession of 20 cents before the filing of the suit?
2. Whether the Courts below were correct in dismissing
the suit after given a finding that the plaintiff was in possession of 20
cents of land by putting up a superstructure prior to the filing of the
suit and came into possession in another 20 cents of land after the
suit was filed, especially when the defendant also claimed the title
over the suit property under an unregistered sale deed?
8. The learned counsel appearing for the appellant contended that though
the plaintiff has claimed title through an unregistered document, the defendants
also claimed that they purchased the property much prior to the plaintiff, which is
also an unregistered one. Even de-horsing those unregistered documents, the suit
was filed for bare injunction based on the possession of the plaintiff. The lower
Court having found that the plaintiff is in possession of the property and the
defendants are never in possession of the suit property nor established title, ought
to have granted an order of injunction. The first defendant claims to have sold the
property in the year 1987 to the third defendant. The third defendant remained ex-
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S.A.No.512 of 1995
parte and never contested the suit, whereas, the tax receipts filed in the name of
the first defendant even after the alleged sale deed was executed in favour of the
third defendant. Those tax receipts also related to some other assessment number
and survey number. Hence, his contention is that the Courts below have not
properly appreciated the description of the boundaries. The plaint boundaries
only relates to 40 cents, whereas, the defendants show the boundaries for the entire
1 acre and 45 cents. Hence, the identity of the property is not disputed and the
plaintiff was also proved her possession over the suit property and hence, prays for
allowing of the appeal.
9. The learned counsel appearing for the respondent would contend that
though Ex.B1 and Ex.B2 are un-registered documents, Ex.B7 and Ex.B10 to
Ex.B12, which are the tax receipts filed much prior to the plaintiff's purchase,
clearly show that the defendants are in possession of the property. Further his
contention is that the plaintiff has not proved the description of the property
properly even in her admission. The same would clearly show that the plaintiff
has not proved her case, whereas, the defendant is having a better title. Hence, the
plaintiff is not entitled to any injunction. The Courts below have rightly analyzed
the entire facts and appreciated the documents and arrived at such a conclusion.
Hence, prayed for dismissal of the appeal and in support of his submission, the
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S.A.No.512 of 1995
learned counsel has relied upon the following judgments:
1. Kammavar Sangam Vs. Mani Janagarajan reported in 1999 (3)
CTC 304;
2. Muniammal Vs. Muthu Gounder reported in 2003 (1) CTC 475; and
3.Nair Service Society Limited Vs. K.C.Alexander reported in 1968 AIR
(SC) 1165.
10. Heard the learned counsel appearing for the appellant, the learned
counsel appearing for the respondents and perused the materials available on
record carefully.
11. The suit has been laid for permanent injunction on the basis of the
possession of the plaintiff. The suit has been laid for an extent of 40 cents. It is
the main contention of the plaintiff that she has purchased the property on
25.12.1982 from one Periyakaruppan, who was infact, purchased the same from
the Receiver of the Karaikudi Nattars Estate in the year 1980. Though the plaintiff
claims title on the basis of the unregistered documents, it cannot be looked into for
any other purpose, except for collateral transaction. De-horse those documents, to
establish the title of the plaintiff, no other documents were filed. However, the
suit has been filed only for bare injunction. The specific case of the plaintiff is
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S.A.No.512 of 1995
that after purchase, she has put up a house in the suit property and residing in the
same by errecting fences. The defendants have also claimed title on the basis of
the purchase said to have been made under Ex.B1, dated 16.10.1982.
Subsequently, Ex.B2 said to have been executed by the first defendant infavour of
the third defendant for the sale of the suit property. This document also cannot be
looked into for any other purpose, since the document is an unregistered
document. Now, it has to be seen whether the plaintiff has established the
possession over the suit property?
12. It is the specific case of the plaintiff that she has put up a house in
the suit property and has also residing in the said house by erecting the proper
fence. On a perusal of the entire plaint, it is seen that the plaintiff's claim that she
is in possession of the suit property, whereas, the defendants have taken a stand
that the boundaries of the suit property are not correct and except denying the
same in an evasive manner, there is no specific assertion made in the written
statement that they are in enjoyment of the suit property.
13. In the light of the above, when other materials and documents filed,
the lower Court has considered the documents filed on the side of the plaintiff,
besides the documents, the admission made on the side of the defendants, found
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S.A.No.512 of 1995
that the plaintiff is in possession of the suit property. However, the lower Court
has non-suited the plaintiff, merely on the ground that the boundaries are not
tallied. It is to be noted that the suit property is measuring only an extent of 40
cents. The extent is not disputed. Though the boundaries are disputed seriously
by the defendants in the written statement in paragraph No.4, in its entirety, the
boundaries set out in the written statement relates to 1 acre and 45 cents and not
for 40 cents. It is the contention of the defendants that in the western side, there is
not only M.K.Thaneer Pandal, but also Nellikai Oorani is situated. Hence, it his
contention that since the plaintiff has not stated anything about the said Nellikai
Oorani in the plaint, the boundaries mentioned in the plaint are not correct.
14. It is to be noted that the plaint schedule property never relates to 1
acre and 45 cents. Be that as it may, parties went on trial only in respect of 40
cents and the identity of the property has not been disputed. Evidence of D.W.2,
in fact, considered by the trial Court. D.W.1 viz., Raman, father of the first
defendant in his evidence, has categorically admitted that he or his son are never
in possession of the suit property, at the time of filing of the suit. Though they
have claimed possession and title over the suit property on the basis of the sale
deeds Ex.B1 and Ex.B2, his evidence clearly indicates that Ex.B1 and Ex.B2
could not have come into existence in the year 1989, as alleged by the defendants.
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S.A.No.512 of 1995
The very admission of the defendants to the effect that the above documents came
into possession only 10 days prior to his evidence fortified the above reasoning.
15. Further, much emphasis was also made by the defendants with regard
to the tax receipts said to have been filed in respect of the suit property. On a
perusal of the same, it is seen that those tax receipts relates to some other survey
number and not with regard to the suit property, whereas, the plaintiff has filed
Ex.A1 to Ex.A3, Ex.A6 and Ex.A7, which are infact pertaining to the suit
property. That apart, the very categorical evidence of the plaintiff that there was a
house constructed and she is residing there, have not been denied in its entirety,
not only in the evidence, but also in the written statement. In such view of the
matter, the lower Court having found that the plaintiff is in possession of the
property, her possession ought to have been protected by granting decree of
injunction, at least for a limited extent by due process of law, till the defendants
establish their title over the property by way of filing a separate suit, whereas
having found that the plaintiff is in possession of the property, non suited the
plaintiff. It is to be noted that, the defendants have neither established the title
over the suit property nor the possession. Plaintiff's possession has been accepted
by the Courts below. A person, who is in possession of the property, can resist
interference from any one except the true owner. It is well settled that even the
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S.A.No.512 of 1995
true owner can get back his possession only by resorting to due process of law.
Such being the position, when the defendants have failed to establish their title
and possession, the plaintiff is certainly entitled to decree of injunction.
16. In Kammavar Sangam Vs. Mani Janagarajan reported in 1999 (3)
CTC 304, this Court has held as follows:
“22. Learned counsel for respondent submitted that even
no title is proved, he is entitled to continue in possession of the
property and the finding of the Courts below to that extent is to be
confirmed. The argument is based on the decision reported in
M.K.Setty Vs. M.V.L.Rao. Relying on the decision learned senior
counsel argued that in the case before Honourable Supreme Curt
also the question was similar that the title was found against. But,
defendant was permitted to agitate the question as to whether he is
entitled to injunction on the basis of his possession. In para 5 of the
judgment, their Lordships held thus,
“2....The plaintiff can on the strength of his possession
resist interference from persons who have no better title than
himself to the suit property. Once it is accepted, the trial Court
and the first appellate Court have done, that the plaintiff was in
possession of the property even since 1947 then his possession
has to be protected as against interference by someone who is
not proved to have a better title than himself, to the suit property.
On the findings arrived at by the fact finding Courts as regards
possession, the plaintiff was entitled to the second relief asked
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for by him even if he had failed to prove his title satisfactorily.
Therefore, in our opinion, the High Court was not right in
interfering with the judgment of the trial Court as affirmed by
the first appellate Court regarding relief No.2 (Italics supplied)”
23.But I do not think that the above decision will help the
respondent in any way. In that very decision Their Lordships have
held that injunction cannot be granted against a person who has got
a better title to the suit property. In this case, I have held that as per
Ex.B-1, the appellant has got better title than the plaintiff. In a
recent decision of the Honourable Supreme Court reported in
Prataprai N.Kothari V.John Braganza, similar question came for
consideration. In paragraph 11 of the judgment, their Lordships
have said thus:
“...It is quite obvious that the learned single Judge
had not taken note of the principle of possessory title or the
principle of law that a person who has been in long continuous
possession can protect the same by seeking an injunction against
any person in the world other than the true owner. It is also
well-settled that even the owner of the property can get back his
possession only by resorting to due process of law. (Italics
supplied)”
17. Similarly in Muniammal Vs. Muthu Gounder reported in 2003 (1)
CTC 475, this Court has held as follows:
“18.In Premji Ratansey Shah V. Union of India, the
Supreme Court held as follows:
“Issuance of an order of injunction is absolutely a
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discretionaly and equitable relief. In a given set of facts,
injunction may be given to protect the possession of the owner
or person in lawful possession. It is not mandatory that for
mere asking such relief should be given. Injunction is a
personal right under Section 41(j) of the Specific Relief Act,
1963: the plaintiff must have personal interest in the matter.
The interest or right not shown to be in existence, cannot be
protected by injunction, the possession of a person who had no
lawful right was wholly unlawful possession of a trespasser
and an injunction cannot be issued in favour of a trespasser of
a person who gained unlawful possession as against the
owner”.
18. The above judgments cannot be applied in the facts of the present
case. It is not the case of the defendants in the written statement that the plaintiff
has trespassed and encroached into the property. However, it is also to be noted
that the defendants have the right to establish their independent title to the
property, however, they have failed to establish their title to the property. In such
view of the matter, the above judgments also cannot be made applicable.
19. In Nair Service Society Limited Vs. K.C.Alexander reported in 1968
AIR (SC) 1165, this Court has held as follows:
“20. To summarize, the difference between (1865) 1 QB 1 and
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(1849) 13 QB 945 is this: In (1849) 13 QB 945 the principle settled was
that it is quite open to the defendant to rebut the presumption that the
prior possessor has title, i.e., seisin. This he can do by showing that the
title is in himself; if he cannot do this he can show that the title is in
some third person. (1865) 1QB 1 lays down that a person in possession
of land has a good title against all the world except the true owner and
it is wrong in principle for any one without title or authority of the true
owner to dispossess him and relying on his position as defendant in
ejectment to remain in possession. As loft in his Maxim No.265 puts it
possessio contra omnes valet praeter eur cui jus sit possessions (He that
hath possession hath right against all but him that hath the very right)
see Smith V. Oxenden, (1663) 1 Cas in Ch.25. A defendant in such a
case must show in himself or his predecessor a valid legal title, or
probably a possession prior to yhe plaintiffs and thus be able to raise a
presumption prior in time. It is to be noticed that Ames (Harvard Law
Review Vol III p. 313 at 37): Carson (Real Property Statutes and Ed. p.
180); Halsbury [Laws of England. Vol 24, 3rd Ed. p. 255 f.n (o)]. [Leake
(Property in Land, 2nd Ed. PP 440). (Lightwood (Time Limit on Actions
pp 120-133). Maitland (supra) Newell (Action in Ejectment. Amercian
Ed. PP 433-434); Pollock (Law of Torts, 15th Ed. p. 279). Salmond (Law
of Torts (supra) and William and Yates (Law of Ejectment 2nd Ed pp.218,
250) hold that (1849) 13 QB 945 does not represent true law. Winer (to
whom I am indebted for much of the information) gives list of other
writers who adhere still to the view that jus tertii can be pleaded.”
20. It also makes it clear that the person in possession of land has good
title against all the word except true owner. Further, it is also to be noted that the
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S.A.No.512 of 1995
first defendant claims to have sold the property to the third defendant. Third
defendant remained ex-parte throughout. That apart, even after such sale under
Ex.B2, the defendants claim to have paid kist receipts. It is also for the different
assessment and different survey numbers. That itself shows that the defendants
are never in possession of the suit property. Further, the first defendant never
entered into the witness box. Only his father was examined as D.W.1. All these
facts clearly shows that the plaintiff has proved their possession. The lower Court
having found that the plaintiff is in possession of the property, had negatived the
relief of injunction mainly on the ground that the identity of the property is not
established. It is to be noted that the boundaries set out in the written statement is
only with regard to 1 acre and 45 cents, not with regard to 40 cents. Therefore, the
above description cannot be a ground to non-suit the plaintiff . Hence, all the
questions of law are answered in favour of the plaintiff.
21. Accordingly, this Second Appeal is allowed. The suit is decreed for
permanent injunction as prayed for. No costs. Consequently, connected
miscellaneous petition is closed.
04.02.2021
Index : Yes/No
Internet : Yes/No
vsm
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S.A.No.512 of 1995
N.SATHISH KUMAR, J.
vsm
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Subordinate Judge, Devakottai.
2.The District Munsif, Devakottai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
S.A.No.512 of 1995
and C.M.P.No.6031 of 1995
04.02.2021
http://www.judis.nic.in
