Madras High Court
Raja @ Karuppiah vs Ramar (Died) .. 1St on 16 June, 2022
S.A.(MD) No.784 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2022
CORAM : JUSTICE N.SESHASAYEE
S.A.(MD) No.784 of 2016
1.Raja @ Karuppiah
2.Velammal
Padrakali (Died)
3.Sakthi Kumar .. Appellants 1 to 3/Respondents 1 to 4/
Defendants
4.Guruvu
5.Sivagurunathan .. Appellants 4 & 5/Respondents 5 & 6/
LRs of deceased D3
Vs
1.Ramar (Died) .. 1st Respondent/Appellant/Plaintiff
2.Vadivu
3.Jayakumar
4.Rohini
5.Priya .. Respondents 2 to 5/
LRs of deceased sole respondent
[Respondents 2 to 5 are brought on record as LRs of the
deceased sole respondent vide order dated 02.02.2022
made in C.M.P.(MD) No.304/2022 in S.A.(MD) No.784
of 2016]
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S.A.(MD) No.784 of 2016
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree passed by the Sub Court, Sankarankovil, in
A.S.No.33 of 2011 on 19.01.2016 in reversing the judgment and decree
passed by the District Munsif cum Judicial Magistrate Court, Sivagiri, in
O.S.No.131 of 2008 on 17.03.2011.
For Appellants : Mr.M.Jothi Basu
For R2 to R5 : Mr.R.Maheswaran
JUDGMENT
The defendants in O.S.No.131 of 2008, a suit for bare injunction laid before
the District Munsif cum Judicial Magistrate, Sivagiri, having been
successful before the trial Court but suffered a reversal before the first
appellate court are the appellants herein. Pending appeal, the sole
respondent died and his LRs were brought on record.
2.1. The dispute essentially is relating to identity of a plot of land over
which the plaintiff asserts his right, and in relation to which he seeks a
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S.A.(MD) No.784 of 2016
decree for bare injunction against the defendants and the identity of a
property which the defendants claim under a certain sale deed.
2.2. The necessary facts for the current purpose may be stated below:
● The suit property is described as a vacant plot measuring 60 feet East-
West x 36 feet North-South with a total extent of 2,160 sq.ft. in
Natham Survey No.627/2044 of Sivagiri Village correlated to R.S.No.
672/2044B1A.
● According to the plaintiff, the aforesaid suit property belonged to the
erstwhile Sivagiri Zamin, that the then Zamindar Senthatti Kalai
Pandiya Chinna Thambiar suffered a money decree in C.S.No.326 of
1947 on the file of this Court, pursuant to which his some of the
zamin properties including the suit property were brought to sale. In
the said auction, a certain Rao Bahadur V.S.Subramania Iyer was the
successful purchaser. Ext.A1 is the sale certificate dated 16.03.1961,
in which the suit property was described as Lot-2 property.
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S.A.(MD) No.784 of 2016
● However, possession of the property was not immediately taken, not
even during the life time of the auction purchaser. After his demise,
his heirs had obtained possession on 31.08.1974.
● On 09.05.1980, vide Ext.A2-sale deed, the heirs of auction-purchaser
Subramaniya Iyer had sold the property to one Sankarapandian.
● On 17.09.2003, the heirs of Sankarapandian had executed a Power of
Attorney in favour of one Ramachandran, who on the strength of the
said Power of Attorney, had executed a sale deed pertaining to the suit
property, in favour the plaintiff Vide Ext.A4, dated 08.10.2003.
When faced with some threat to his possession, the plaintiff rushed to the
Court with the suit for injunction.
3.1. The case of the defendants is that the defendant in C.S.No.326 of 1947
viz., Senthatti Kalai Pandiya Chinna Thambiar, the erstwhile Zamindar of
Sivagiri Zamin, had executed Ext.B1-sale deed, dated 05.02.1975 in favour
of one Sakthivel Thevar.
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3.2. Subsequently, on 25.04.1975, vide Ext.B2-sale deed, the same Sivagiri
Zamindar had sold a plot of land to a political party, Dravida Munnetra
Kazhagam. This plot is stated lie to the immediate east of the property
covered under Ext.B1. On 03.05.1975, the other sharers of the vendor of
Ext.B1 had executed a deed of relinquishment in favour of Sakthivel Thevar
vide Ext.B4.
3.3. On purchase of the properties covered under Ext.B1, Sakthivel Thevar
is stated to have put up a residential building therein, and later sold part of
the property to one Muthammal, vide Ext.B3-sale deed, dated 11.09.1979.
Muthammal in turn had sold that property which she purchased under
Ext.B3 to one Kulanthaivelu Tailor. During trial, he was examined as P.W.2.
3.4. Sakthivel Thevar had four daughters which includes defendants 2 and
3. The 1st defendant is stated to have married both second and the third
defendants, and through the former he had a son, the fourth defendant
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S.A.(MD) No.784 of 2016
herein. (The other two daughters of Sakthivel Thevar are not parties to the
suit)
4.1. The dispute fundamentally relates to identity of the property. According
to the plaintiff, the suit property corresponds to Lot-2 property in Ext.A1
and according to the defendants, this is the very property that Sivagiri
Zamindar had sold to Sakthivel Thevar. The dispute went to the trial,
during which the plaintiff examined himself as P.W.1. As already indicated,
he had also examined P.W.2, a part owner of the property purchased by
Sakthivel Thevar under Ext.B1. The plaintiff had produced Ext.A1 to
Ext.A5 all of which have already been introduced. For the defendants, the
2nd defendant examined herself as D.W.1 and she examined a certain
Palanichami as D.W.2. She had produced Ext.B1 to Ext.B7 of which, some
of the documents have already been referred to.
4.2. On appreciating the evidence, the trial Court dismissed the suit on the
ground that the plaintiff ought to have gone for a suit for declaration. But
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the first appellate Court in an appeal preferred by the plaintiff, re-appraised
the evidence and decreed the suit. The first appellate Court identified that
the suit property and the property covered under Ext.B1 are the same, and in
as much as the plaintiff has based his title to Ext.A1-sale certificate of the
year 1961, he has a better title. It may be mentioned here that while the
plaintiff did not produce any document showing delivery of property
covered under Ext.A-1 to the heirs of auction purchaser, before the first
appellate court he produced the same Vide I.A.Nos.203 of 2014 and 121 of
2013 in A.S.No.33 of 2011. The first appellate Court has dismissed these
applications, it however, did not constrain the court from allowing the first
appeal.
5. Challenging the decree of the first appellate court, the defendants have
preferred this appeal, for considering the following substantial questions of
law:
“i) Whether the first Appellate Court is correct in
finding in favour of the plaintiff and passed an order of
permanent injunction against the defendants, when title
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S.A.(MD) No.784 of 2016
of the suit schedule property itself under dispute or in
other words whether suit for mere injunction is
maintainable without the relief of declaration when
defendants disputing title of the plaintiff?
ii) Whether the first Appellate Court is correct in respect
of deciding the title of the plaintiff in a mere suit for
permanent injunction? and
iii) Whether the first Appellate Court is correct in
shifting the burden of proof to the appellants/defendants,
in non-production and marking of the judgment and
decree passed in A.S.No.361 of 1966, it is the duty of the
respondent/plaintiff to prove his case by oral and
documentary evidence, the burden shall not be shifted
the defendants?”
6. Heard both sides. The learned counsel for the appellants would submit
that when once the defendants claim title to what they consider as the
identical plot over which the plaintiff claims title, it is not a bald denial of
the plaintiff's title but a substantive denial, and hence the plaintiff ought to
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have gone for a suit for declaration. He relied on the ratio of this Court in
Arulmigu Velukkai Sri Azhagiya Singaperumal Devasthanam, Rep., by its
Trustees vs. G.K.Kannan (Dead) by LRs and others [2020 (3) CTC 69].
He also submitted that the vendor of Ext.B1 indeed has recited that he has
secured his title to the property sold under Ext.B1, Vide decree in A.S.No.
361 of 1966.
7. The learned counsel for the respondents on the other hand would submit
that, in a suit for bare injunction, the only criterion that must prevail upon
the Court is if the plaintiff's claim of possession over the suit property is
lawful, and in the present case since the property involved is a vacant land,
it has to be decided on the basis of the presumption that possession follows
title. He submitted that the first appellate Court's approach in holding that
the plaintiff had a better title than the defendants cannot be disturbed, and
he relied on the authority of the Hon'ble Supreme Court in Anathula
Sudhakar vs. P.Buchi Reddy (Dead) by LRs and Others [(2008) 4 SCC
594].
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8. Rival submissions are carefully weighed. For ascertaining whether the
first appellate Court has identified the suit property and also the property
covered under Ext.B1, this Court engaged the counsel on either side to
organise the boundaries of properties covered under Ext.A-1 and Ext.B-1,
and also those covered under Exts.B2 and B3. A close reading of the
boundaries of these properties indicate that there is a great possibility that
both the properties covered under Exts.A-1 and B-1 might exist in different
places. This could have been resolved if an Advocate-Commissioner was
appointed, but none was appointed, and this Court is of the first view that it
may have denied the Court a definite advantage. This Court now proposes
to do and decides to remand the matter back to the District Munsif cum
Judicial Magistrate Court, Sivagiri.
9. The learned counsel for the respondents now made a statement on
instruction that the respondents may be granted permission to amend the
prayer enabling them to seek declaration of their title over the suit property.
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S.A.(MD) No.784 of 2016
Since the suit is in litigation and it is also going to be in litigation in view of
the proposed remand by this Court, this Court only considers that it would
be in the best interest of both the sides that the suit is converted into one of
declaration, and both the parties are at liberty to seek the prayer for
declaration, if they are so desirous.
10. In view of the foregoing reasons, this appeal is allowed, the judgment
and decree dated 19.01.2016 made in A.S.No.33 of 2011 on the file of the
Sub Court, Sankarankovil, is set aside and the suit is remanded back to the
trial Court, which is now in the newly formed Tenkasi District. The learned
Munsiff is now required to appoint an Advocate Commissioner, who has
reasonable standing on the civil side and also is regular in his appearances
before the Court as Commissioner and such remuneration as may be
considered just, and the Commissioner is required to plot all the properties
covered under Ext.A1, Ext.A2 and Ext.A4 along with Ext.B1, Ext.B2 and
Ext.B3 with the assistance of a qualified Surveyor. Either of the parties are
also required to provide a copy the correlation register, and if they find it
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S.A.(MD) No.784 of 2016
difficult, then the trial Court itself is required to suo motu summon the same
from the revenue officials to help itself for a fair and proper adjudication of
the lis. The trial Court shall endeavour to dispose of the matter within a
period of six months from the date on which it receives the papers. Both the
sides are required to appear before the trial Court on 08.08.2022. Both the
sides will also be at liberty to adduce necessary oral and documentary
evidence to aid their case. Notwithstanding the dismissal of I.A.Nos.203 of
2014 and 121 of 2013 in A.S.No.33 of 2011 by the first appellate Court, this
Court considers that the documents produced by the plaintiff before the first
appellate Court are relevant, and the plaintiff will be now at liberty to
produce them before the trial Court, since this Court has granted liberty to
the parties to adduce evidence. No costs.
16.06.2022
Internet:Yes
Index:Yes/No
Note: Issue order copy on 25.07.2022
abr
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S.A.(MD) No.784 of 2016
To
1.The Sub Court,
Sankarankovil.
2.The District Munsif cum
Judicial Magistrate Court,
Sivagiri.
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S.A.(MD) No.784 of 2016
N.SESHASAYEE, J.
abr
S.A.(MD) No.784 of 2016
16.06.2022
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