Kaliya Perumal vs Dharmaraj
2021 Latest Caselaw 11651 Mad

                                                                                 S.A.No. 237 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 15.06.2021

                                                        CORAM

                                      THE HON'BLE MR. JUSTICE S.S.SUNDAR

                                                S.A.No. 237 of 2017

                    Kaliya Perumal                                                   ..Petitioner


                                                         Vs

                    Dharmaraj                                                    ... Respondent
                    '

                              Second Appeal filed under Section 100 of CPC., r/w Order XLI

                    Rule 1 of CPC., against the Judgment and decree dated 23.01.2015 in

                    A.S.No.29 of 2012 on the file of the Subordinate Judge, Mannargudi

                    reversing the judgment and decree passed in O.S.No.104 of 2010 dated

                    29.02.2012 on the file of The District Munsif, Mannargudi.


                              For Appellant         :      Mr. P.B. Ramanujam

                              For Respondent        :      Ms. P.T. Ramadevi

                                                         ----




https://www.mhc.tn.gov.in/judis/
                                                                                   S.A.No. 237 of 2017



                                                     JUDGMENT

The defendant in the suit in O.S.No.104 of 2010 on the file of the

District Munsif Court, Mannargudi is the appellant in this second appeal.

The respondent in this second appeal filed the suit in O.S.No.104 of 2010

on the file of the District Munsif Court, Mannargudi for permanent

injunction restraining the defendant from interfering with the plaintiff's

peaceful possession and enjoyment of the suit property. The suit property

is a land measuring an extent of 2.5 ares out of an extent of 11.5 ares in

Survey Number 282B/4B in Mukkulam Sathanur Village, Mannargudi

Taluk.

2. The case of the plaintiff is that the suit property is the

ancestral property of his father. A patta was given to the plaintiff's father

on 10.07.1991. The plaintiff claimed title to the property by succession.

It is also the case of the plaintiff that the patta was transferred in the name

of the plaintiff by Deputy Tahsilar on 29.04.2004. It is stated that he is in

peaceful possession and enjoyment of the suit property. It is contended

that the defendant has no right or title or interest over the suit property and

that the defendant who was unable to purchase the suit property from the https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

plaintiff, with an intention to grab the suit property, attempted to encroach

into the suit property by putting up fence on 30.06.2010. Therefore, the

plaintiff has filed the suit for permanent injunction against the appellant.

3. The defendant filed his written statement denying the

averments in the plaint. It is contended by the defendant that the plaintiff

cannot maintain the suit for the relief of bare injunction. It is further

stated that there is a dispute between the plaintiff and the defendant over

the suit property for a long time and the plaintiff has come forward with

the suit for bare injunction. The specific case of the defendant is that the

suit property is the ancestral property of defendant's family and it was

allotted to the defendant in a family arrangement in 1925. The defendant

is having a house in the suit property and he was residing there for more

than 50 years.

4. Based on the objections raised by the defendant, it is stated

that the request of the plaintiff to the Revenue Officials to survey the land

had been refused. The appellant claimed title over the suit property

through one Mr.Pazhaniyappa Thackiliyar. The appellant contended that

there was a family arrangement in the year 1925 and that the property was https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

allotted to one Ramaiyah and Lakshmanaiya who enjoyed the suit property

by putting up constructions independently. The appellant claimed to have

obtained ownership and enjoyment of the suit property through

Lakshmanaiya. It is the case of the appellant that he is in possession by

putting up a residential house in the suit property. Though the appellant

admitted grant of patta in respect of the suit property in favour of the

plaintiff, it is stated in the written statement that the appellant is taking

steps to cancel the patta that was issued in the name of the plaintiff.

5. On the side of the plaintiff PW1 to PW5 were examined and

Ex.A1 to Ex.A5 were marked. On the side of the defendant DW1 and

DW2 were examined and Ex.B1 to Ex.B35 were marked.

Mr.Pazhanidurai, was examined as DW2 to support the case of the

defendant. He admitted that the plaintiff is related to the defendant and

the defendant is his brother. The Trial Court after framing of necessary

issues, dismissed the suit on the ground that the plaintiff has failed to

prove his physical possession and enjoyment of the suit property. The

Trial Court considering the discrepancy in the oral evidence of the

plaintiff's witness found that the plaintiff is not entitled to the relief of

permanent injunction. Since the suit property is located in front of the https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

house of the defendant and the plaintiff's house is located in a different

place, the Trial Court after considering the evidence of PW1, PW2 and

PW4, came to the conclusion that the plaintiff is out of possession and the

defendant is in possession of the suit property. The Trial Court has also

relied upon the documents produced by the defendant which are property

tax receipts and receipts for electricity consumption charges.

6. Aggrieved by the judgment and decree passed by the Trial

Court, the plaintiff has preferred an appeal in A.S.No. 29 of 2012 before

the Subordinate Judge, Mannargudi. The First Appellate Court set aside

the findings of the Trial Court and came to the conclusion that the plaintiff

has proved the title over the suit property and he is entitled to the decree

for permanent injunction as the suit property is only a vacant land.

Aggrieved by the judgment and decree passed by the learned Subordinate

Judge, Mannargudi, the above Second Appeal has been preferred by the

defendant.

https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

7. At the time of admitting the Second Appeal, the following

substantial questions of law were framed by this Court:-

(a) Whether the Lower Appellate Court was right in ignoring the vital admissions regarding possession in a suit for permanent injunction?

(b) Whether the Lower Appellate Court was right in requiring the defendant to establish his title in a suit for permanent injunction being defended by him?

8. Though the learned counsel appearing for the appellant

pointed out some discrepancies in the deposition of the witnesses, this

Court is of the considered view that substantial questions of law were

framed by this Court did not carry any weight in view of the admitted

facts and the findings of Lower Appellate Court in this case. Admittedly,

the suit property is a vacant land. Even according to the learned counsel

appearing for the appellant, the suit property is a house site which is a

vacant land situate adjacent to the property of the defendant where the

defendant has put up a residential building. The documents filed by the

defendant did not relate to the suit property but relates to the house that

has been constructed by the defendant adjoining the suit property. Even

in the written statement, it is stated that the plaintiff has obtained patta in https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

2004 and the defendant has filed a petition to cancel the patta. Thus, it is

admitted that patta has been given in the name of the plaintiff.

9. When the suit property is a vacant land, the principle

"possession follows title" should be applied and the plaintiff will succeed

in getting a decree for permanent injunction if he establishes the title over

the suit property. Though the defendant has not produced any document

or the learned counsel could place reliance upon any document to support

the plea of the defendant regarding title, the Trial Court considered the

only issue whether the plaintiff has proved physical possession over the

suit property and dismissed the suit. It is the case of the plaintiff that the

plaintiff acquired the property from his father one Selvam. From the

documents that were filed, it is seen that the suit property was standing in

the name of the plaintiff's father named Selvam and the plaintiff got the

property and transferred the patta in his name after the life time of his

father. The "A" Register, Patta, Chitta and Adangal were produced by the

plaintiff in respect of the suit property which shows that the property

stands in the name of the plaintiff's father and he was shown as the

registered land owner of the suit property. By transferring the patta in

favour of the plaintiff, the plaintiff established that he is the person who https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

is recognized as the registered owner of the property as per the Revenue

records. Though patta is not a document of title as declared by this Court

in several decisions, in the absence of any evidence contrary to the patta,

a patta issued by the Revenue Officials under Tamil Nadu Patta Pass

Book Act will be considered as a document of title in respect of ryatwari

lands. In the present case, no document has been produced by the

defendant to prove the defendant's ownership of the property. The

documents or receipts for electricity consumption charges or the house

tax receipts are in respect of the building owned by the defendant.

Merely because the defendant's house is situated adjoining the property of

the plaintiff, there cannot be a presumption that the suit property is also in

enjoyment of the defendant or it can be presumed that the defendant is the

real owner. On the other hand, the plaintiff by filing documents, proved

his ownership over the suit property.

10. The Trial Court in the present case, based on the oral

evidence of witnesses examined on behalf of the plaintiff concluded that

the plaintiff's witnesses have admitted that the defendant enjoyed the suit

property. After scrutiny of the oral evidence, the trial court concluded

that the plaintiff was prevented by the defendant from enjoying the suit https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

property. When the property is a vacant land and when no document or

oral evidence is adduced to prove the physical possession by the

defendant, it cannot be presumed that the defendant has proved his

possession and enjoyment over the property. Mr.Pazhanidurai (DW2)

examined on behalf of the defendant states that the defendant is in

possession of the property by putting up a residential building. When the

defendant himself admits that he has not put up any construction in the

suit property and the construction is adjoining the suit property, the

evidence of DW2 is not helpful to the defendant to establish his

possession. When the defendant in the course of his examination admits

that the suit property is a vacant land, he cannot claim to be in possession

of the property without any document to prove the overt act by the

defendant to claim physical possession. In the absence of any evidence in

favour of the defendant to prove physical possession, it should be

presumed that the possession is with the actual owner of the property.

The plaintiff who is the registered owner has produced documents to

prove his title. In the absence of any evidence to suggest physical

possession by the defendant, it can be held that possession of vacant site

is with the true owner. Therefore, this Court is unable to interfere with

the findings of the Appellate Court by setting aside the Judgment and https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

Decree passed in O.S.No.104 of 2010 on the file of District Munsif,

Mannargudi. There is no substance in the questions of law framed in view

of the findings of Lower Appellate Court.

11. In view of the foregoing discussions, this Court is unable to

entertain this second appeal. The Second Appeal is dismissed. However,

there shall be no order as to costs. Accordingly, the Judgment and Decree

passed by the First Appellate Court in A.S.No.29 of 2012 on the file of

the Subordinate Judge, Mannargudi reversing the Judgment and Decree

passed in O.S.No.104 of 2010 dated 29.02.2012 on the file of the District

Munsif, Mannargudi is confirmed.

15.06.2021

Index:Yes / No Internet: Yes / No Speaking / Non-Speaking order msm

https://www.mhc.tn.gov.in/judis/ S.A.No. 237 of 2017

S.S.SUNDAR, J.

msm

To

1. The District Munsif, Mannargudi.

2. Subordinate Judge, Mannargudi.

3. The Section Officer, V.R.Section, High Court, Madras.

S.A.No. 237 of 2017

15.06.2021

https://www.mhc.tn.gov.in/judis/