Madras High Court
N.Gunasekar vs P.Meenakshi on 28 March, 2022
S.A.(MD) No.226 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.03.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
S.A.(MD) No.226 of 2022
and
C.M.P.(MD) No.2706 of 2022
1.N.Gunasekar
2.Maruthayee ... Appellants/Appellants/
Defendants
-vs-
P.Meenakshi ... Respondent/Respondent/
Plaintiff
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree of the Subordinate and Assistant Sessions Court,
Devakottai passed in A.S.No.21 of 2012 dated 04.09.2012 by confirming
the judgment and decree of the Additional District Munsif, Karaikudi in
O.S.No.100/2008 dated 08.06.2011.
For Appellants : Ms.S.Vijayashanthi
For Respondents : Mr.V.R.Shanmuganathan
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S.A.(MD) No.226 of 2022
JUDGMENT
The Second Appeal has been instituted against the concurrent
judgments and decrees passed both by the trial court and the first appellate
court.
2. The facts in nutshell for consideration for admitting the second
appeal are that the plaintiff instituted the suit for permanent injunction in
O.S.No.100 of 2008 on the file of the Additional District Munsif Court,
Karaikudi.
3. The contention of the plaintiff is that she is in possession of the
suit property. Her mother was the assignee by the Government.
Accordingly, she continues in the suit property, which was assigned
originally in favour of her mother. However, the plaintiff has not claimed
title in respect of the suit schedule property. Only based on her possession
in the property, she has instituted the suit for permanent injunction with a
contention that she should not be evicted without due process of law.
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S.A.(MD) No.226 of 2022
Therefore, the plaintiff at no circumstances claimed title in respect of
property. Pertinently, the defendants in the suit admitted the possession of
the plaintiff in the suit schedule property. Even during evidence, the
defendants deposed that the plaintiff and her family are in possession of the
suit schedule property.
4. The trial court considered the documents and evidence filed by
the parties to the lis and made a finding that “in a suit for injunction
simpliciter the predominant consideration has to be given only to the factum
of possession, in this case, the defendants have unequivocally admitted the
possession of the plaintiff over the suit property. The consistent case of the
plaintiff is that she should not be evicted by the defendants by unlawful
means and without due process of law”. Further the trial court proceeded by
stating that “if really the defendants wanted to establish their title, there is
no legal impediment for them to file a comprehensive suit to prove their title
in the manner known to law”.
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S.A.(MD) No.226 of 2022
5. The findings of the trial court as stated above were re-examined
by the first appellate court, which also affirmed the views by holding that
the defendants in the suit themselves admitted the possession of the
plaintiff. In unambiguous terms, the defendants reiterated that the plaintiff
and her husband are residing in the suit schedule property. Further, it is
stated that prior to that, the plaintiff and her mother were residing in the suit
property and they are continuing in possession. Thus, based on the
deposition of D.W.1, the trial court and the first appellate court formed an
opinion that when the possession of the plaintiff is admitted by the
defendants, the plaintiff is entitled for the relief of permanent injunction and
accordingly, granted the relief subject to the condition that the plaintiff, if at
all is in illegal possession, she is liable to be evicted only by following the
due process of law.
6. The learned counsel appearing for the appellants in this second
appeal raised a substantial question of law by stating that “whether the
courts below are right in decreeing the suit for bare injunction as sought for
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S.A.(MD) No.226 of 2022
by the plaintiffs based on title when the plaintiff's title is disputed by the
defendants”.
7. With reference to the substantial question of law, this Court has
to consider whether in a suit for permanent injunction, an adjudication of
title is imminent or not.
8. No doubt, in any suit instituted, the plaintiff at the first instance
is bound to establish his/her right. In the absence of establishing any right,
no suit needs to be decreed in favour of the plaintiff.
9. Let us consider what is the nature of right to be established by
the plaintiff with reference to the relief sought for in the suit. It is needless
to state that the right is to be considered with reference to the relief sought
for in the suit and it cannot be extended any further in a civil proceedings.
Once the rights are restricted, even by the plaintiff, then it is sufficient if
those rights are established for the purpose of granting the relief.
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S.A.(MD) No.226 of 2022
10. For example, if a suit is instituted for recovery of money, then
it is sufficient if the plaintiff establishes that he has given money to the
defendants. So also, in a suit for possession, it is sufficient if the plaintiff
establishes that he/she is in possession of the suit schedule property.
Contrarily, it is not absolutely necessary to establish a title in respect of the
suit for permanent injunction. To grant the relief of permanent injunction,
the trial court has to adjudicate whether the plaintiff is in possession or not.
Once the possession is established, then the relief of permanent injunction
can be granted. However, such permanent injunction would be subject to
the condition that the defendant if at all claim title, he can evict the plaintiff
by due process of law. In other words, the defendant may institute a suit for
eviction or declaration of title and eviction or otherwise, as the manner
known to law. However, the defendant cannot say in a suit for permanent
injunction, the plaintiff is bound to establish the title and in the absence of
establishing title, the trial court cannot grant the relief of permanent
injunction. Such a proposition if considered by the High Court, then the
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S.A.(MD) No.226 of 2022
very purpose and object of the suit for permanent injunction is defeated. A
person, who is approaching the Court is asking a limited prayer that he
wants an injunction not to be evicted illegally by the other parties.
Therefore, to that extent, the rights are to be crystallised and once the rights
are crystallised, then the plaintiff is entitled for the relief of permanent
injunction. In the present case, the defendants admittedly deposed that the
plaintiff is in possession of the suit property. The first appellate court also
considered the deposition of D.W.1 and formed an opinion that once the
defendants admitted the possession of the plaintiff, then the trial court is
right in granting the relief of permanent injunction. Both the subordinate
courts have concurrently arrived a conclusion that the plaintiff can be
evicted with due process of law, if any other person is claiming title or right
in respect of the suit schedule property. Therefore, there is no bar for the
defendants to institute an appropriate suit for declaration of title or eviction
of title in the manner known to law. However, this Court is of the opinion
that the trial court has not committed any perversity or otherwise in respect
of granting the relief of permanent injunction, as the defendants themselves
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S.A.(MD) No.226 of 2022
admitted the possession of the plaintiff and the first appellate court also
rightly appreciated the findings of the trial court and confirmed the same.
11.With reference to the substantial question of law raised in this
appeal, this Court is of the considered opinion that in a suit for bare
injunction, when it is specifically prayed that a person could not be evicted
without due process of law, there is no adjudication of title become
imminent. However, the Courts are at liberty to go into the title to
appreciate the facts and circumstances of the case. The civil courts are well
within its powers to adjudicate the issues relating to title in a suit for
permanent injunction. However, those issues will not be a determining
factor for grant of relief. Thus, in a suit for permanent injunction, the title
need not be the deciding factor, but will be the guiding factor.
12. With the above observations, this Court is of the considered
opinion that the substantial of question of law raised is of no substance and
deserves no further consideration and there is no infirmity or perversity in
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S.A.(MD) No.226 of 2022
respect of the concurrent judgments and decrees passed by the subordinate
courts. Accordingly, the judgment and decree of the Subordinate and
Assistant Sessions Court, Devakottai passed in A.S.No.21 of 2012 dated
04.09.2012 confirming the judgment and decree of the Additional District
Munsif Court, Karaikudi in O.S.No.100 of 2008 dated 08.06.2011 are
confirmed. Consequently, the Second Appeal in S.A.(MD) No.226 of 2022
stands dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
28.03.2022
Index:Yes
Speaking Order
abr
To
1.The Subordinate and Assistant Sessions Judge,
Devakottai.
2.The Additional Munsif, Karaikudi.
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S.A.(MD) No.226 of 2022
S.M.SUBRAMANIAM, J.
abr
S.A.(MD) No.226 of 2022
28.03.2022
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