Madras High Court
K.Hassaini Beevi vs S.Shenbagam Pillai on 30 September, 2021
1 S.A.No.886 OF 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.886 of 2002
K.Hassaini Beevi ... Appellant / Appellant /
Plaintiff
Vs.
S.Shenbagam Pillai ... Respondent / Respondent /
Defendant
Prayer: Second appeal filed under Section 100 of C.P.C.,
against the judgment and decree of the learned I Additional
Sub Judge, Tirunelveli, in A.S.No.92 of 1996, dated 06.03.2002
preferred against the judgment and decree of the learned
Additional District Munsif, Tirunelveli, in O.S.No.714 of 1990,
dated 28.02.1996.
For Appellant : Mr.H.Arumugam,
for Mr.S.Kumar.
For Respondent : Mr.Veerapandian
***
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2 S.A.No.886 OF 2002
JUDGMENT
The plaintiff in O.S.No.714 of 1990 on the file of the
Additional District Munsif Court, Tirunelveli, is the appellant
in this second appeal.
2. The suit was for permanent injunction restraining the
defendant from interfering with the plaintiff's possession and
enjoyment of the suit property. The case of the plaintiff was
that the suit property originally belonged to one Beema John.
The plaintiff purchased the suit property from Beema John
vide Ex.A.1 dated 15.04.1981. Her husband was running a tea
shop near the suit property. She was using the suit property
for stacking firewood. Since the defendant attempted to
encroach upon the northern side of the suit property, the
plaintiff filed the said suit.
3. The defendant filed written statement controverting
the plaint averments. The defendant submitted that the suit
property belonged to Wakf Board and that it cannot be a
subject matter of alienation. The suit property is in the
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possession of the defendant for over 40 years. He is running a
Saw mill. It is the plaintiff who attempted to interfere with the
defendant's possession and enjoyment. The defendant further
claimed that the Wakf Board filed O.S.No.88 of 1968 and
E.P.No.451 of 1984 and that in the said proceedings, the
defendant succeeded. The defendant called for dismissal of
the suit.
4. Based on the divergent pleadings, the trial Court
framed the necessary issues. On the side of the plaintiff, two
witnesses were examined. Ex.A.1 to Ex.A.7 were marked. On
the side of the defendant, two witnesses were examined.
Ex.B.1 to Ex.B.27 were marked. After a consideration of the
evidence on record, by judgment and decree dated
28.02.1996, the trial Court dismissed the suit. Aggrieved by
the same, the plaintiff filed A.S.No.92 of 1996 before the I
Additional Sub Court, Tirunelveli. The first appellate Court
confirmed the decision of the trial Court and dismissed the
appeal vide judgment and decree dated 06.03.2002.
Challenging the same, this second appeal came to be filed.
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5. The second appeal was admitted on the following
substantial questions of law:-
“ a) Whether the lower appellate Court is
right in holding that the appellant did not prove
his title to the suit property by virtue of Ex.B.7
whereas it has been held by the trial Court that
Ex.B.7 and B.4 would prove that the appellant
has got title to the suit property?
b) Whether the Courts below are right in
dismissing the suit for injunction on the ground
that on the date of the suit the appellant was not
in possession without properly appreciating the
evidence of the appellant to the effect that she
was in possession of the suit property and after
the filing of the suit the respondent encroached
upon the same? ”
6. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
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questions of law in favour of the appellant and set aside the
impugned judgment and decree and decree the suit as prayed
for.
7. Per contra, the learned counsel appearing for the
respondent submitted that the suit itself is not maintainable.
He would contend that the title of the plaintiff had been
seriously questioned by the defendant and therefore, the
plaintiff ought to have included the declaratory relief also. He
also would point out that possession is basically a question of
fact. He would further point out in his evidence that the
plaintiff's husband himself admitted that on the date of filing
of the suit, the defendant was in possession. Admission is the
best form of proof. Therefore, when both the Courts below
concurrently found in favour of the defendant, this Court
ought not to interfere with the same in exercise of jurisdiction
under Section 100 of C.P.C. He would further state that the
suit suffered from the vice of non-joinder of necessary party.
According to him, the Tamil Nadu Wakf Board is a necessary
party and the plaintiff failed to implead the same. He also
would call upon to take note of the fact that though the
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plaintiff was originally granted interim injunction,
subsequently, it was vacated. The suit was filed in the year
1990. For more than 31 years, the suit property has been in
the possession and enjoyment of the defendant. Even before
the filing of the suit also, the defendant was in possession and
enjoyment of the suit property. Therefore if at this point of
time, the judgment of Court below is reversed, it would
unsettle the settled possession of the defendant. He submitted
that no substantial question of law arises for determination.
He also called for dismissal of the second appeal.
8. I carefully considered the rival contentions and went
through the evidence on record.
9. There can be no dispute that the suit property was
actually a Wakf property. The Tamil Nadu Wakf Board filed
O.S.No.88 of 1968 on the file of the District Munsif, Tirunelveli
for declaration and recovery of possession. The plaintiff's
vendor figured as the fourth defendant in the said suit. The
defendant herein figured as the fifth defendant. The suit was
decreed as against the plaintiff's vendor as well as the
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defendant and few others vide judgment and decree dated
15.12.1971. It is stated that the appeal filed against the said
judgment and decree also suffered dismissal. To execute the
decree, the Tamil Nadu Wakf Board filed E.P.No.451 of 1984
on the file of the District Munsif, Tirunelveli. The property
occupied by the plaintiff's vendor was set out in the second
item. It reads as follows:-
“ jpUney;Ntyp hpb> i\ [hapz;L II-k; eph;
rg;b rufk;> jpUney;Ntyp f];gh> i\ Kdprpgy;
18tJ thh;L> gioa Ngl;il njd;fhrp NuhL>
tlrpufpy; lTz; rh;Nt thh;L 8> gpshf;F 13y;
T.S.1998 eph; ghfk; fhypkid fpoNky; mb 35¾
njd;tly; mb 121 cs;s kidf;F nrz;L 10
cs;s fhyp kidAk; ,jw;F vy;if:-
tlf;Nf : T.S.1998 eph; ghfk; gs;spthry;
ijf;fh eQ;ir
fpof;Nf : T.S.1998 eph; ghfk; ehsJ Njjpapy;
md;th; gh\hTf;F ehd; fpiuak;
nra;J nfhLj;jpUf;fpw kid tPL
nghJr;Rth;
njw;Nf : T.S.2014 eph; njd;fhrp NuhL
Nkw;Nf : T.S.1998 eph; ghfk; Kfk;kJ n\hpg;
rh`pg; kid.
,jw;Fs;gl;lJk;. jgrpy; tpguk; rhp. i\ nrhj;J
jpUney;Ntyp Kdprpgy; vy;iff;Fl;gl;lJ. i\
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nrhj;jpd; jw;fhy khh;f;nfl; kjpg;G &.5000/-. ”
10. It is relevant to note here that Shenbagam Pillai
filed written statement in O.S.No.88 of 1968 but later
remained ex-parte. The plaintiff's vendor Minor Beema
John was shown as the fourth defendant in the said suit.
It is mentioned in the judgment and decree dated
15.12.1971 in O.S.No.88 of 1968 that she was in
possession of the suit item by virtue of a registered sale
deed dated 04.03.1961. The said sale deed has been
marked as Ex.A.2. The description of the property set
out in Ex.A.2 is as follows:-
“ jpUney;Ntyp b];l;hpf;L> i\ [hapz;L II
eph; rg;b rufk;> jpUney;ntyp f];gh Kd;rpgy; 18tJ
thh;L> gioa Ngl;il> njd;fhrp NuhL tlrpufpy;
T.S.W-8, B-10-y;> T.S.No.1998 ghfk; ijf;fh kid
fpof;Nf> T.S.No.1999 ikjPd; gPtp kid tPL nghJ
KLf;Ff;F njw;Nf> T.S.No.2014 njd;fhrp NuhL
Nkw;Nf> T.S.No.1998/ ghfk; vd; tifawh
kid ,jw;Fs;gl;l kid. fpoNky; 22> njd;tly; 44
jr;RKsk; cs;s fhypkid cs;gl jgrpy; tpguk;
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rhp. ”
11. The property described in Ex.A.2 and the property
described as suit item No.2 in E.P.No.451 of 1984 broadly tally
as regards the dimensions. The suit filed by the Wakf Board
was decreed, but E.P.No.451 of 1984 suffered a dismissal,
since it was not filed within the period of twelve years. The
defendant herein who was the fifth defendant in O.S.No.88 of
1968 did not controvert the stand of the other parties that the
suit item No.2 of E.P. schedule was also under occupation.
That was never the stand of the defendant herein. The
property was purchased by the plaintiff from her vendor vide
Ex.A.1 dated 15.04.1981. Thus, a portion of the property
described as second item in the schedule to E.P.No.451 of
1984 was purchased. Therefore, one can safely assume that
atleast till 19.07.1984, even according to the defendant
herein, he was in possession or in occupation of the property
described as the second item in the schedule to E.P.No.451 of
1984. The defendant has not claimed that thereafter he
physically took over the possession of the suit property. When
that is not the case of the defendant, the Courts below ought
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to have assumed that the same position continued even
thereafter. If the defendant had claimed that some time in the
year 1985, he had taken over the possession of the suit
property, then things would be different. That was not the case
of the defendant.
12. Though neither of the parties may not have any
pucca title, still one is entitled to protect one's possession
even against the true owner. The defendant admittedly has not
placed even a scrap of paper to show his title over the suit
property. Therefore, the plaintiff was not obliged to include
any prayer for declaration. The plaintiff marked Ex.A.1 to
support her title over the suit property. The plaintiff's vendor
in turn traced her title to Ex.A.2 which is of the year 1961.
13. It is true that the plaintiff's husband while in the
witness box stated that the defendant encroached on the suit
property on 20.08.1990. The evidence of any party should be
read as a whole. A stray sentence in one's testimony cannot be
picked out of context. A careful reading of the entire evidence
of the plaintiff's husband indicates that the stand of the
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plaintiff is that she is in possession and enjoyment of the suit
property and that the defendant is attempting to interfere with
her possession. Admittedly, the suit property remained vacant
on the date of filing of the suit. Possession over a vacant site
follows title. The plaintiff by marking Ex.A.1 had shown better
title compared to the defendant. Therefore, I answer the
substantial questions of law in favour of the appellant.
14. The judgment and decree passed by the Courts below
are set aside and the suit is decreed. This second appeal is
allowed. No costs. Consequently, connected miscellaneous
petition is closed.
30.09.2021
Index : Yes / No
Internet : Yes/ No
PMU
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.
2. Web copy of this order shall be
uploaded on 21.01.2022.
https://www.mhc.tn.gov.in/judis
Note : Web copy of this order
shall be uploaded on
21.01.2022.
G.R.SWAMINATHAN,J.
PMU
To:
1. The I Additional Sub Judge,
Tirunelveli.
2. The Additional District Munsif,
Tirunelveli.
3. The Record Keeper, V.R.Section,
Madruai Bench of Madras High Court, Madurai.
S.A.(MD)No.886 of 2002
30.09.2021
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https://www.mhc.tn.gov.in/judis
