Madras High Court
Suppathal vs K. Mani on 8 October, 2021
S.A.No.1357 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.10.2021
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1357 of 2007
and
M.P. No.1 of 2007
Suppathal ...Appellant
Vs.
K. Mani ...Respondent
Prayer : Second Appeal filed under Section 100 of CPC, 1908 against the
decree and judgment dated 21.02.2006 passed in A.S. No.213 of 2005,
on the file of the II Additional Subordinate Judge Coimbatore, reversing
the decree and judgment dated 08.09.2005 passed in O.S. No.1837 of
2000, on the file of the II Additional District Munsif Court, Coimbatore.
For Appellant : Mr. M. Baskar
For Respondent : Mr. A.E. Ravichandran
for M/s. Usha
Page 1 of 10
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S.A.No.1357 of 2007
JUDGMENT
The appellant Suppathaal is the plaintiff in O.S.No.1837 of
2000 on the file of the II Additional District Munsif, Coimbatore. She
filed the suit for a permanent injunction restraining the
respondent/defendant from interfering with her peaceful possession and
enjoyment of the suit property.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their ranking
in the present appeal would also be indicated.
3. The suit property as described in the plaint is a vacant land
bearing Site No.10, S.F.No.534/1 Agrahara Samakulam Village,
Coimbatore North, within the boundaries stated therein.
4.The case of the plaintiff is that the suit property was assigned
in her favour by Tahsildar, Coimbatore, on 30.12.1994 (Ex.A1) and that
since then she has been in possession and enjoyment of the same. Her
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S.A.No.1357 of 2007
further contention is that the defendant, who does not have any right over
the suit property, attempted to trespass upon the suit property on many
occasions and one such attempt was made on 04.08.2000 and the same
was successfully prevented by her. She, therefore, filed the suit against
the defendant for bare injunction.
5.The suit was resisted by the defendant on the following
grounds:
a) The suit property is the property of the defendant's sister Paapathi.
b) The said Paapathi permitted the defendant to occupy the suit
property.
c) The allegation of the plaintiff that the defendant attempted to
trespass upon the suit property is absolutely false.
d) In fact, the defendant put up a thatched shed in the suit property
and has been in possession and enjoyment of the same.
e) It is only the plaintiff who attempted to dispossess the defendant
on 04.08.2000 and based on the complaint given by the defendant,
the police warned the plaintiff.
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S.A.No.1357 of 2007
f) Subsequently, on 31.08.2000 similar attempt was made by the
plaintiff with rowdy elements and the police again intervened on
the complaint by the defendant. The plaintiff gave a written tender
of pardon.
g) There is no cause of action for filing the suit.
Therefore, the defendant prayed for dismissal of the suit.
6. The trial court after framing appropriate issues and after full
contest, decreed the suit filed by the plaintiff vide its decree and
judgment dated 08.09.2005 and also directed the defendant to remove all
the construction put up by her in the suit property.
7. Aggrieved over the same the defendant filed an appeal in
A.S. No.213 of 2005 before the II Additional Subordinate Court,
Coimbatore. The learned II Additional Subordinate judge vide his decree
and judgment dated 21.02.2006 reversed the findings recorded by the
trial court and dismissed the suit filed by the plaintiff.
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S.A.No.1357 of 2007
8. Aggrieved over the same the present second appeal is filed
by the appellant/plaintiff on the following substantial question of law.
"Whether the court below is right in dismissing the suit by not
accepting the settled law that possession follows title more
particularly when the appellant proved both the possession and
the title to the suit property?"
9. The trial court, mainly based on the Assignment Patta Ex.A1
issued in favour of the plaintiff, had held that the plaintiff is in
possession of the suit property. A perusal of Ex.A1 shows that the suit
property was assigned in favour of the plaintiff by Tahsildar,
Coimbatore, on 30.12.1994. One of the conditions attached to Ex.A1
patta is that the assignee must put up a house in the property assigned in
her favour within six months from the date of issuance of the same. In the
plaint, the plaintiff had specifically averred that she was residing with her
son at Athipalayam Village and that she wanted to put up a hut in the suit
property. Her another contention is that the defendant on several
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S.A.No.1357 of 2007
occasions attempted to dispossess her from the suit property and one
such attempt was made on 04.08.2000. It is in evidence that on two
occasions i.e., on 04.08.2000 and 31.08.2000 the defendant lodged a
complaint against the present appellant/plaintiff before Kovilpalayam
Police Station contending that the plaintiff attempted to remove the
construction put up by the defendant in the suit property and that at the
intervention of the police it was prevented. This was not specifically
denied by the plaintiff in her deposition. The Sub Inspector of police,
Kovilpalayam Police Station, was examined on the side of the defendant
and she has clearly spoken to about the complaints given by the
defendant on 04.08.2000 and 31.08.2000. The Sub Inspector of police
had also contended that since the plaintiff gave a written tender of pardon
(Ex.A3), the complaints given by the defendant were closed. Absolutely,
there is no reference about Ex.B1 to Ex.B3 in the plaint.
10. Mr. M. Baskar, learned counsel appearing for the appellant
contended that when the plaintiff has filed the suit stating that she has
been in possession and enjoyment of the suit property and the trial court
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S.A.No.1357 of 2007
has also decreed the suit, the first appellate court should not have
reversed the findings recorded by the trial court. His specific contention
is that the entire plaint should be read in whole. He relied on the decision
in Palaniammlal Vs. Pechimuthu & Others reported in (1991) 31 MLJ 1.
In that case the plaintiff upon finding the defendants trespassing into the
suit property lodged a complaint against them before the police. Though
the defendants had been warned by the police, they started putting up
construction and immediately the plaintiff filed a suit for permanent
injunction and for a mandatory injunction against the defendants. It was
not the case where the defendants encroached upon the property and
squatted on the same for some time and thereafter, began to construct
thereon. The fact that the defendants were putting up the construction in
the suit property was also specifically mentioned in the plaint. In such
circumstances, it was held that the plaintiff need not seek declaration of
title to the suit property and for recovery of possession. The facts of the
present case are entirely different. In the case on hand, the plaintiff had
averred in the plaint that the defendant attempted to trespass into the suit
property on various dates including 04.08.2000 and 31.08.2000. As
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S.A.No.1357 of 2007
already observed it was only the plaintiff who attempted to dispossess the
defendant from the suit property. The plaintiff except filing Ex.A1 has
not adduced any evidence to show her possession over the suit property.
In fact the trial court had found the defendant in possession of the suit
property and directed the defendant to remove the construction put up by
him within one month from the date of decree.
11. The plaintiff who has filed the suit for bare injunction must
prove her possession over the suit property by adducing acceptable
evidence. In the instant case, the plaintiff had not adduced any evidence
to hold that she is in possession of the suit property. Apart from that, the
plaintiff has not also come to court with clean hands. She has not
narrated the events that took place on 04.08.2000 and 31.08.2000 as is
seen from Ex.B1 and Ex.B3 and from the evidence of D.W.2 in her
plaint. In the circumstances, the plaintiff is not entitled to get the
equitable relief of permanent injunction restraining the defendant from
interfering with her possession and enjoyment of the suit property and
accordingly, the substantial question of law is answered against the
appellant.
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S.A.No.1357 of 2007
12. In the result,
i. the second appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is
closed.
ii. the decree and judgment dated 21.02.2006 passed in
A.S. No.213 of 2005, on the file of the II Additional
Subordinate Judge cum Appellate Authority,
Coimbatore, are upheld.
iii. the decree and judgment dated 08.09.2005 passed in
O.S. No.1837 of 2000, on the file of the II Additional
District Munsif, Coimbatore, are set aside.
08.10.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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S.A.No.1357 of 2007
R. HEMALATHA, J.
bga
To
1. The the II Additional Subordinate Judge, Coimbatore
.
2. The II Additional District Munsif, Coimbatore.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No .1357 of 2007
08.10.2021
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