Madras High Court
Anjammal vs Kanniyan Chettiar (Died) on 16 July, 2021
S.A.No.1263 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1263 of 2009
and
M.P.No.1 of 2009
1.Anjammal
2.Navaneethakrishnan
3.Karthikesan
4.Sundarambal ... Plaintiffs/Appellants/Appellants
Vs.
1.Kanniyan Chettiar (died)
2.The Tahsildar,
Nagapattinam,
Office at Nagapattinam Town,
Taluk and District Munsif.
3.Tamil Nadu State
rep.by the District Collector,
Nagapattinam,
Office at Nagapattinam Town,
Taluk and District Munsif.
1/12
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S.A.No.1263 of 2009
4.Arulmighu Navaneetheswara Swami Devasthanam,
Sikkal rep. by the Executive Officer,
The Temple premises at Sikkal Village,
Nagapattinam Taluk and District Munsif.
5.Indirani
6.Jothy
7.Mariyappan
8.Sakthivel ...Defendants/Respondents/ Respondents
(R5 to R8 were brought on record as legal representatives of he
deceased 1st respondent, namely, Kannaiyan Chettiar vide Order of
Court dated 06.06.2019 in M.P.Nos.1 to 3 of 2015 in S.A.No.1263 of
2009 by NSSJ)
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 18.08.2009 in
A.S.No.24 of 2008 on the file of the learned Subordinate Judge,
Nagapattinam confirming the Judgment and Decree dated 11.03.2008
in O.S.No.251 of 2004 on the file of the learned District Munsif,
Nagapattinam.
For Appellants : Ms.R. Meenal
For Respondents : Mr.A.E. Ravichandran,
Government Advocate
for R2 to R4
Mr.G. Krishnamoorthy
for R5 to R8
R1 - died
2/12
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S.A.No.1263 of 2009
JUDGMENT
The plaintiffs are the appellants before this Court. The appeal
arises against the Judgment and Decree in A.S.No.24 of 2008 on the
file of the learned Subordinate Judge, Nagapattinam confirming the
Judgment and Decree dated 11.03.2008 in O.S.No.251 of 2004 on the
file of the learned District Munsif, Nagapattinam.
The facts in brief that have culminated in the Second Appeal are
as follows:
2.The appellants had filed the above suit for a declaration of their
possessory right to the suit schedule property and for a consequential
injunction. The appellants would contend that the site belonged to the
4th respondent herein which was taken on lease (gFjp) by the 1st
appellant's husband and the father of appellants 2 to 4 herein one
Muthukumaraswami, 40 years ago. It was their case that he had been
enjoying the property by paying lease rental to the Temple/ In the year
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S.A.No.1263 of 2009
1996, he had put up a thatched house in the suit and that all the
plaintiffs have been residing therein. All of a sudden, on the basis of
the complaint given by the 1st defendant, the 2nd respondent had issued
a notice to the said Muthukumaraswami on 27.08.2003 directing him to
be present for enquiry on 29.08.2003. After enquiry, the complaint
given by the 1st respondent was dismissed. Thereafter, on 07.05.2004,
the said Muthukumaraswami died due to cardiac arrest and except for
the suit property, he had no other property.
3.While so, on 26.03.2004, the 1st respondent all of a sudden
came to the suit property and claimed that the house belonged to him
and directed the appellants to vacate it. This attempt was successfully
prevented and when the complaint was lodged with the Keevalur Police
Station the appellants were asked to seek remedy from the 1st
respondent. When they had gone to the 1st defendant they were asked
to vacate the suit property. Therefore, left with no other option the
appellants had filed the suit.
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S.A.No.1263 of 2009
4.The 1st respondent filed the Written Statement inter alia
contending that the property belonged to the 4th respondent, however,
the house in the suit property belonged to them. It is the 1st
respondent's case that Muthukumaraswami had initially taken on lease
the vacant suit property from the Temple. Thereafter, he had put up a
thatched house. On 15.06.1982, the said Muthukumaraswami had sold
the thatched house in the suit property to the 1st respondent for a sum of
Rs.200/- on 01.07.1982. He had also sold the gFjp right (leasehold
right to the suit property) to the 1st respondent for a consideration of
Rs.525/-. On the basis of this Sale Deed/transfer, the 4th respondent
had also changed the entries in the Temple Records regarding the right
of the 1st respondent. Thereafter, Muthukumaraswami had shifted his
residence to Puducherry Village and it was the 1st respondent who was
paying the ground rent to the 4th respondent Temple.
5.After some time, Muthukumaraswami had returned to the suit
Village and requested the 1st respondent to give the suit property to him
which was refused. Thereafter, he started causing interference to the
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S.A.No.1263 of 2009
defendant's enjoyment. In the light of the above, the 1st respondent had
filed a suit O.S.No.156 of 1996 against the said Muthukumaraswami
before the learned District Munsif, Nagapattinam for a bare injunction.
The documents were also filed and the suit was decreed in favour of the
1st respondent. The Appeal preferred by Muthukumaraswami before
the learned Additional Subordinate Judge, Nagapattinam in A.S.No.86
of 1997 was also dismissed. Since Muthukumaraswami refused to
obey the orders of this Court the defendants constrained to file
E.P.No.206 of 2001 for the arrest of the said Muthukumaraswami and
in it, the Court had held that the suit property belonged to the 1st
respondent, however, these details have been cleverly suppressed by
the plaintiffs in the earlier Judgment. After the death of the 1st
respondent, the respondents 5 to 8 were brought on record.
6.The 2nd respondent had filed the Written Statement which was
adopted by the 3rd respondent in which they had contended that the 1st
respondent had sent a petition to the Chief Minister's Special Cell
complaining that Muthukumaraswami had trespassed into the suit
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S.A.No.1263 of 2009
property and to recover it and that petition has been sent to the District
Collector of Nagapattinam. The 2nd respondent had enquired into the
matter on 29.08.2003. The said Muthukumaraswami gave a letter
enclosing the documents. The defendants came to know that
Muthukumaraswami is residing in the suit property, but however, the
1st respondent had claimed that Muthukumaraswami trespassed into the
suit property. Since the property does not belong to the respondents 2
and 3 they are not in possession to intervene and decide the possession.
It is only for the Civil Court to decide title and possession and they are
unnecessary parites to the suit.
7.On the side of the plaintiffs, 1st appellant had examined herself
as P.W.1 and examined three other witnesses in support of her case and
had also marked Ex.A.1 to Ex.A.6. The 1st respondent had examined
himself as D.W.1, the 2nd respondent as D.W.2 and one Selvaraj as
D.W.3. and Ex.B1 to Ex.B.8 were marked on the side of the
defendants. The trial Court on considering the oral and
documentary evidence had dismissed the suit. Aggrieved over which,
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S.A.No.1263 of 2009
the Appeal A.S.No.24 of 2004 came to be filed by the appellants before
the learned Subordinate Judge, Nagapattinam. The Appellate Court
had also confirmed the Judgment and Decree of the learned District
Munsif, Nagapattinam. Challenging this concurrent Judgment and
Decree, the appellants are before this Court.
8.Ms.R.Meenal, learned counsel for the appellants would make
her submissions that once the Court had come to the conclusion that the
appellants are in possession of the properties either as a trespasser or
otherwise their possession needs to be protected and in support of her
contention, she had relied on the Judgment of the Hon'ble Supreme
Court in Rame Gowda (D) by legal representatives v. M.Vadadappa
Naidu (D) by legal representatives and another [2004-3-L.W.143],
wherein the Hon'ble Supreme Court at paragraph 9 had observed as
follows:
“9....If the trespasser is in settled possession of the
property belonging to the rightful owner, the rightful
owner shall have to take recourse to law; he cannot take
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S.A.No.1263 of 2009
the law in his own hands and evict the trespasser or
interfere with his possession. The law will come to the
aid of a person in peaceful and settled possession by
injuncting even a rightful owner from using force or
taking law in his own hands, and also by restoring him
in possession even from the rightful owner (of course
subject to the law of limitation), if the latter has
dispossessed the prior possessor by use of force.”
9.Despite this Court posting this appeal on two dates, the learned
counsel for the respondents had not appeared. The learned
Government Pleader had submitted that he is only a formal party.
10.From the documents before this Court, it is clearly evident
that the appellants have suppressed the earlier round of litigation which
has ended in an Execution Petition being filed against the said
Muthukumaraswami who is the husband of the 1st appellant and the
father of the appellants 2 to 4. After suffering a Decree against him,
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S.A.No.1263 of 2009
the said Muthukumaraswami appears to have trespassed into the
property and thereafter, his legal representatives have attempted to
commence a second round of litigation. Even in the Judgment cited by
the learned counsel for the appellants, the Hon'ble Supreme Court has
clearly held that the 'settled possession' must be (i) effective, (ii)
undisturbed, and (iii) to the knowledge of the owner or without any
attempt at concealment by the trespasser.
11.In the instant case, none of the ingredients of the settled
possession is available as the appellants' possession had been disturbed
by an earlier round of litigation which had gone in favour of the 1st
respondent herein. Further, in a suit for bare injunction it is an
axiomatic principle of Law that the plaintiffs should approach the
Court with the clean hands. The appellants have suppressed the facts
about the earlier round of litigation which had been agitated upto the
appeal and confirmed in favour of the 1st respondent. Therefore, I do
not find any infirmity in the Judgment and Decree of both the Courts
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S.A.No.1263 of 2009
below. The Judgment cited by the appellants could not come to their
aid. There is no question of law much less the Substantial Questions of
Law involved in the Second Appeal. Hence, the Second Appeal is
dismissed, however, there shall be no order as to costs. Consequently,
connected Miscellaneous Petition is closed.
16.07.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Subordinate Judge,
Nagapattinam.
2.The District Munsif,
Nagapattinam.
3.The Tahsildar,
Nagapattinam,
Office at Nagapattinam Town,
Taluk and District Munsif.
https://www.mhc.tn.gov.in/judis/
S.A.No.1263 of 2009
P.T. ASHA, J,
mps
4.The District Collector,
Nagapattinam,
Office at Nagapattinam Town,
Taluk and District Munsif.
5.The Executive Officer,
Arulmighu Navaneetheswara Swami Devasthanam,
Sikkal,
Temple premises at Sikkal Village,
Nagapattinam Taluk and District Munsif.
S.A.No.1263 of 2009
and
M.P.No.1 of 2009
16.07.2021
https://www.mhc.tn.gov.in/judis/
