Madras High Court
Pavazhakodi vs Rajagopal on 19 January, 2023
S.A.No.1081 of 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.1081 of 1999
1.Pavazhakodi
...Appellants
-Vs-
1. Rajagopal
2.Kaithoon Beevi
(Second appellant is transposed as
second respondent vide Court order
dated 27.01.2022 made in
C.M.P(MD) No.10602 of 2021 in
S.A.No.1081 of 1999)
3.The Thasildar,
Alangudi Taluk.
(R3 impleaded vide Court order
dated 24.03.2022 made in
S.A.No.1081 of 1999) ... Respondents
1/10
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S.A.No.1081 of 1999
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree made in A.S.No.140 of 1997 on
the file of the Subordinate Judge at Pudukkottai, dated 27.07.1998 confirming the
judgment and decree made in O.S.No.465 of 1993 on the file of the District
Munsif Court, at Aranthangi, dated 28.06.1996.
For Appellants : Mr.K.Baalasundharam
For Respondent : No Appearance
JUDGMENT
The defendants 1 and 2 are the appellants. The respondent/plaintiff filed
a suit for declaration and injunction in respect of land situated in Survey No.87/2,
Inaam Cheriyaloor Village, Alangudi Taluk, with an extent of 1 Hectare and 1
Are. The suit was decreed in part to the extent of 31 Ares in Survey No.87/2 and
aggrieved by the same, the appellants/defendants filed an First Appeal in A.S.No.
140 of 1997 and the same was dismissed. Aggrieved by the same, the defendants
are before this Court.
2. Pending Second Appeal, the second appellant was transposed as the
second respondent in Second Appeal. The Tahsildar of Alangudi Taluk was
impleaded as the third respondent.
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S.A.No.1081 of 1999
3. According to the first respondent/plaintiff, the suit property is a patta
land belongs to various pattadhars including the grandfather of the first
respondent. The suit property was wrongly classified as a 'Government
Poramboke' and taking advantage of the same, the second respondent/second
defendant obtained revenue documents in her name. The first appellant claiming
right under the second respondent tried to interfere with possession of first
respondent over the suit property and hence, he was constrained to file a suit for
declaration for title and for injunction.
4. The first appellant herein and the transposed second respondent, who
were arrayed as defendants in the suit filed a written statement and denied the
claim of the first respondent that the property originally belonged to first
respondent's grandfather and others. It was claimed by the appellant and second
respondent that the suit property was in possession of the second respondent and
no other person had any right or possession over the same. It was also pleaded in
the written statement that the appellant had no objection for enjoyment of the suit
property by the second respondent. The defendants also raised the plea of non-
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S.A.No.1081 of 1999
joinder of the Government.
5. Before the trial court, the first respondent/plaintiff examined three
witnesses and marked eleven documents as Ex.A.1 to Ex.A.11. On behalf of the
appellant and second respondent/defendant, two witnesses were examined and
fifteen documents were marked as Ex.B1 to Ex.B.15.
6. On appreciation of oral and documentary evidences available on
record, the trial court came to the conclusion that up to the Fasli Year 1398
relevant to the year 1996, the entire extent in Survey No.87/2 stood in the name of
the second respondent/second defendant in the revenue records Adangal.
However, from the Fasli Year 1399 onwards, the name of the first respondent was
added in the Adangal only for the portion of the extent in the survey number,
namely, 31 Ares and consequently granted a decree for injunction alone in respect
of 31 cents of land in Survey No.87/2. Aggrieved by the same, the appellant and
second respondent filed the First Appeal before the Subordinate Court,
Pudukottai, in A.S.No.140 of 1997 and the First Appellate Court confirmed the
findings of the trial court. Challenging the said judgment and decree, the
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S.A.No.1081 of 1999
appellant and second respondent have come up by way of this Second Appeal.
Subsequently, the second respondent was transposed as such from the original
rank of second appellant. At the time of admission, the following substantial
question of law was framed by this Court:-
“Whether the decree of injunction granted by the
Courts below is sustainable when the suit filed for declaration
has been dismissed?”
7. The learned counsel appearing for the appellant assailed the
judgments passed by the Courts below on the ground that when the first
respondent/plaintiff filed a suit for declaration of title and injunction, the Courts
below having negatived the claim for declaration ought not to have granted the
prayer for injunction in respect of portion of the suit property. The learned
counsel further submitted that to substantiate the title of the first respondent over
the suit property, he failed to file any documents and whereas, the defendants in
the suit filed Ex.B.1/ 'A' Register to prove that the suit property is classified as a
'Sarkar Poramboke'. The learned counsel further submitted that all the revenue
documents and kisth receipts filed by the first respondent/plaintiff were
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S.A.No.1081 of 1999
subsequent to the filing of the suit and hence, those documents are not useful to
prove the possession of the first respondent over the suit property on the date of
presentation of the plaint.
8. Though first respondent is served and represented by a counsel, there
is no representation for the first respondent/plaintiff. The respondents 2 and 3
were also served and their names appear in the list and there is no representation
on behalf of them.
9. The first respondent herein had presented a suit seeking declaration
of title and for injunction. It was his specific case that the suit property was
originally belonged to his grandfather and other pattadhars and the same was
wrongly classified as a Government land in the revenue records. However, in
order to substantiate the title of the first respondent, he failed to lead any
acceptable evidences and consequently, both the Courts below declined to grant
the relief of declaration of title. Though the first respondent failed to prove his
title, the Courts below granted a relief of injunction on a finding that he proved
his possession over 31 Ares of land in the suit survey number. When the first
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S.A.No.1081 of 1999
respondent prayed for declaration of title and injunction, having failed in the main
relief, it is not open to the first respondent to maintain the consequential relief of
injunction. Further, both the Courts below found by virtue of Adangal extract
produced before it, the first respondent proved his possession over the portion of
the suit property, namely, 31 Ares of land. However, what is the four boundaries
of the lesser extent is not at all mentioned in the decree passed by the Court
below. Further, in order to succeed in the prayer for injunction, the first
respondent must prove his exclusive possession over the suit property on the date
of presentation of the plaint. In the case on hand, the suit is of the year 1993. The
vital revenue document, namely, the Adangal extract up to the Fasli Year 1399
relevant to the year 1990 stood exclusively in the name of the second respondent,
only thereafter, the name of the first respondent was added for a lesser extent of
31 Ares in the suit survey number. Therefore, it is clear entire suit property was
not in exclusive possession of first respondent/plaintiff on the date of suit. Hence,
the Courts below ought not to have granted injunction in respect of lesser extent
of 31 Ares, that too, without defining the four boundaries of the lesser extent.
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S.A.No.1081 of 1999
10. It is not desirable to grant decree for injunction without defining
four boundaries for 31 Ares in respect of which Adangal entry was made in favour
of first respondent. The first respondent had given four boundaries for an extent
of 1 Hectare and 1 Ares. The relief of injunction cannot be granted unless four
boundaries of extent in possession of plaintiff is proved. In the case on hand,
there is no evidence to locate lesser extent of 31 Ares with four boundaries. There
cannot be a decree for injunction without proper location of said 31 Ares. Such a
decree will lead to ambiguity and confusion. Therefore on this ground also, the
decree passed by the Courts below are liable to be set aside.
11. Therefore, the question of law formulated at the time of admission is
answered in favour of the appellant and the judgments and decrees passed by the
Courts below are set aside.
12. In fine,
(i) The Second appeal is allowed by setting aside the judgment and
decree made in A.S.No.140 of 1997 on the file of the learned Subordinate Judge
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S.A.No.1081 of 1999
at Pudukkottai, dated 27.07.1998, confirming the judgment and decree made in
O.S.No.465 of 1993, on the file of the learned District Munsif, at Aranthangi,
dated 28.06.1996; and
(ii) The suits stand dismissed in its entirety.
(iii) In the facts and circumstances of the case, there will be no order as
to costs.
19.01.2023
NCC : Yes
Index : Yes / No
Internet : Yes / No
PKN
To
1.The Subordinate Judge,
at Pudukkottai.
2. The District Munsif Court, at Aranthangi,
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.No.1081 of 1999
S.SOUNTHAR, J.
PKN
S.A.No.1081 of 1999
19.01.2023
https://www.mhc.tn.gov.in/judis
