Madras High Court
Vinaiyathan vs Raman (Died) ... Plaintiff ... on 9 March, 2023
S.A.No.2109 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.2109 of 2003 &
C.M.P.Nos.19407 of 2003 & 3584 of 2007
1.Vinaiyathan
2.Aiyavoo
3.Arumugham
... Defendants/Respondents/Appellants
vs.
1.Raman (died) ... Plaintiff /Appellant/Respondent
2.R.Gopal
3.R.Periyasamy
4.R.Sagunthala
5.Ayyaru
7.Singaram
8.Ammani ...Respondents
(R2 to R8 brought on record as
LRs of the deceased sole
respondent vide of this Court on
07.08.2019 in C.M.P.Nos.6797 to
6799 of 2018 in S.A.No.2109 of
2003)
Prayer: Second Appeal filed under Section 100 of CPC against the
judgment and decree of the Subordinate Judge's court at Kallakurichi dated
1/15
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S.A.No.2109 of 2003
19.09.2003 in A.S.No.27/1999 reversing the Judgment and Decree of the I
Additional District Munsif Court at Kallakurichi dated 18.11.1998 in
O.S.No.122/1992.
For Appellants : Mr.S.Mukund, Senior Counsel
for M/s.Sarvabhauman Associates
For Respondents 2 to 8 : Mrs.Sujatha
R1-Died
JUDGMENT
The defendants have filed this appeal against the judgment and decree
of the Court of Subordinate Judge, Kallakurichi in A.S.No.27 of 1999 dated
19.09.2003 in reversing the Judgment and decree of the Trial Court in
O.S.No.122 of 1992 on the file of the First Additional District Munsif at
Kallakurichi.
2. The first respondent (Plaintiff) filed O.S.No.122 of 1992. It is a suit
for permanent injunction restraining the defendants from interfering with
peaceful possession and enjoyment of the suit property. The suit property is
15 cents out of 30 cents purchased by the plaintiff under Ex.A1 from one
Palaniammal. The total extent of purchase is 30 cents. The plaintiff has
constructed a house and is in occupation of 15 cents. The remaining vacant
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S.A.No.2109 of 2003
portion of 15 cents on the northern side is the suit property. The plaintiff
had purchased this property on 06.06.1984. Since the defendants sought to
interfere with the possession of the plaintiff, he came forward with a suit for
bare injunction.
3. The defendants filed a written statement stating that they had
purchased the suit property from one Sathappan by way of two registered
sale deeds dated 20.03.1984 and 28.08.1984. It is their plea that the sale
deed covered under the document dated 20.03.1984 is the suit property.
They also denied the title of the plaintiff.
4. The following issues were framed by the Trial Court:
"1/ 06/06/1984 Kjy; jhth brhj;J ,e;j thjpapd;
mDgtj;jpy; jhd; cs;sJ vd;W brhy;tJ cz;ikah>
2/ jhth brhj;J 1k; gpujpthjpapd; RthjPdj;jpYk;.
mDgtj;jpYk; kl;Lk; jhd; cs;sJ vd;W brhy;tJ
cz;ikah>
3/ tHf;Fiuapy; bfhLf;fg;gl;l brhj;J tpguk; jtW
vd;gJ rhpah>
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S.A.No.2109 of 2003
4/ jhth brhj;J Fwpj;J thjp nfhUk; epue;ju
cWj;Jf;fl;lis ghpfhuk; mtUf;F fpilf;ff;Toajh>
5/ thjpf;F fpilf;fyhFk; ,ju ghpfhuk; vd;d>"
5. The Trial Court dismissed the suit on the ground that there was a
discrepancy in the schedule of the property as given in the plaint and the
sale deed produced by the plaintiff. This was carried in appeal to the learned
Subordinate Judge, Kallakurichi.
6. Learned Subordinate Judge, Kallakurichi allowed the First Appeal
and decreed the suit on the basis of identification of the property by the
Advocate Commissioner under Ex.C1 and Ex.C2 and on the categorical
admissions made by the defendants which is extracted hereunder:
"jhth brhj;Jf;F tlf;nf thjpapd; tPL cs;sJ/
jhth brhj;Jf;F tlf;F gf;fk; cs;s thjpf;F brhe;jkhd
,lKk; 15 brz;L jhd; thjpapd; tPL bjw;F gf;fk;
ghh;j;j thry;go/ jhth brhj;Jf;F fpHf;F gf;fk; 60
brz;l; epyk; fpuak; th';fpndd;/ me;j 60 brz;l;
epyj;Jf;F fpHf;Fgf;fk; khhpapd; epyk; cs;sJ/ 60
brz;Lf;F fpHf;F gf;fk; gHdpak;khSf;F epyk; vJt[k;
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S.A.No.2109 of 2003
,y;iy/ 60 brz;L epyj;jpw;F nkw;F gf;fk; khhpf;F epyk;
vJt[k; ,y;iy/ gp/rh/M/2y; gHdpak;khs; ghf epyj;jpw;F
gf;fj;jpy; vd;W ehd;bfy;iy nghl;L th';fpa[s;nsd;/"
"gp/rh/M/2y; ehd;bfy;iyapy; 50 brz;Lf;Fz;lhd
ehd;bfy;iyapy; khhp epyj;Jf;F fpHf;F vd;W cs;sJ/
Mdhy; epyj;Jf;F mJ khhp epyj;Jf;F nkw;F vd;W
,Uf;f ntz;Lk;/ mnjnghy gHdpak;khs; epyj;Jf;F nkw;F
vd;Ws;sJ/ gHdpak;khs; epyj;Jf;F fpHf;F vd;W ,Uf;f
ntz;Lk;/"
7. The Second Appeal was admitted on the following substantial
questions of law:
1.When the trial court has given several categorical findings in favour
of the appellants, whether the Lower Appellate Court is justified in law in
reversing the judgment of the trial court, without setting aside the findings
rendered by it?
2. When in a suit for bare injunction, the title of plaintiff is denied in
categorical terms, whether the plaintiff is entitled to maintain the suit
without seeking the relief of declaration of title?
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S.A.No.2109 of 2003
8. Heard Mr.S.Mukund, learned Senior Counsel appearing on behalf
of the Appellants/Defendants and Mrs. Sujatha, learned counsel appearing
on behalf of the respondents 2 to 8 who are the legal representatives of the
deceased first respondent/Plaintiff.
9. This Second Appeal was heard on the aforesaid substantial
questions of law.
10. Mr.S.Mukund, learned Senior Counsel appearing on behalf of the
Appellants would submit that as the property has not been properly
identified, the respondents 2 to 8 who are the legal representatives of the
deceased plaintiff are not entitled for a decree of injunction and secondly, as
the title of the plaintiff had been denied by the defendants specifically, the
plaintiff ought to have filed a suit for declaration of title and not a suit for
bare injunction which in any event is not maintainable. He would further
rely upon the Advocate Commissioner's report filed in O.S.No.24 of 1954
on the file of the Sub Court, Cuddalore, the orders passed therein and a
compromise decree decreed in S.A.No.383 of 1959 in order to state that the
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S.A.No.2109 of 2003
localisation of the property should be done on the basis of the additional
documents.
11. I am afraid that I am not agreeable to any of the contentions made
by the learned counsel for the Appellants.
12. On the first issue as to whether the plaintiff should have filed a
suit for declaration of title is no longer res integra, I would rely upon the
classic Judgment of Hon'ble Mr.Justice.Ravindran in the case of Anathula
Sudhakar vs. P.Buchi Reddy reported in (2008) 4 SCC 594. In the said
judgment, the learned Judge had held that it is not necessary for a party
should file a suit for declaration of title in every case of denial. I am
extracting the said paragraph hereunder:
"We may however clarify that a prayer for declaration
will be necessary only if the denial of title by the defendant
or challenge to plaintiff's title raises a cloud on the title of
plaintiff to the property. A cloud is said to raise over a
person's title, when some apparent defect in his title to a
property, or when some prima facie right of a third party
over it, is made out or shown. An action for declaration, is
the remedy to remove the cloud on the title to the property.
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S.A.No.2109 of 2003
On the other hand, where the plaintiff has clear title
supported by documents, if a trespasser without any claim
to title or an interloper without any apparent title, merely
denies the plaintiff's title, it does not amount to raising a
cloud over the title of the plaintiff and it will not be
necessary for the plaintiff to sue for declaration and a suit
for injunction may be sufficient. Where the plaintiff,
believing that defendant is only a trespasser or a wrongful
claimant of title, files a mere suit for injunction, and in such
a suit, the defendant discloses the details of his right or title
claimed by him, which raises a serious dispute or cloud over
plaintiff's title, then there is a need for the plaintiff, to
amend the plaint and convert the suit into one for
declaration. "
13. The position of law has been clearly and categorically laid down.
Single line denial of title of the plaintiff does not mean the plaintiff would
have to expend the money and file an expensive suit for declaration of his
title. Therefore, I reject the plea that the plaintiff ought to have filed a suit
for declaration of title or should have amended the plaint after filing of the
written statement.
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S.A.No.2109 of 2003
14. Insofar as the second plea on the identification of the property, the
learned Senior Counsel for the Appellants would refer to Order VII Rule 3
of CPC to argue that the Code of Civil Procedure demands that the plaint in
the description of the property should be sufficient to identify it and in case,
such property can be identified with boundaries or numbers in the record of
settlement or service, the plaint shall specify such boundaries/numbers. A
glance at the schedule of the property in the plaint shows that the plaintiff
had given the survey numbers, the extent and the boundaries which are
sufficient to identify the property.
15. Perhaps the learned Senior Counsel for the Appellants was invited
to make a submission on account of the findings given by the Trial Court.
The findings given by the Trial Court had been rightly reversed by the
Lower Appellate Court whereby the learned Subordinate Judge has taken a
pains to identify the property on the basis of the sale deed under Ex.A1 as
well as the schedule given by the plaintiff. Furthermore, there is no dispute
in the identity of the property and it had not been an issue raised in the
written statement nor an issue raised before the trial court. The pleadings
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S.A.No.2109 of 2003
were completed, the issues were framed and the parties went to trial on the
basis of understanding the case they were facing. In this light, the
admissions made by the defendants looms large. The very first sentence that
has been extracted above would show that the defendants have admitted that
to the north of the suit schedule property is the plaintiff's house. This
validates the case of the plaintiff. Therefore, the arguments of so called mis-
description is an attempt to produce a smoke screen hoping that the appeal
would be received in the high court.
16. Another crucial factor is that though it is only a suit for permanent
injunction. The plaintiff had taken out an application for appointment of an
Advocate Commissioner. An Advocate Commissioner was also appointed.
The Commissioner went over the suit property and submitted a report on
21.10.1998. In the said report, he has not only localised the property, but has
also found that the suit property was within four boundaries mentioned in
the schedule. Sadly for the Appellants, to this report, there was no objection,
nor had they taken effort to summon the Advocate Commissioner to cross
examine him as a witness.
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S.A.No.2109 of 2003
17. I draw strength from Order XXVI Rule 10 CPC to reject the
objection on localisation. By the said provision, a report of the Advocate
Commissioner which is reduced into writing shall itself form a part of the
evidence in the suit and it can be read as evidence when taken together with
this report. When the Advocate Commissioner has identified the suit
property and had given a report and when the plaintiff had not objected to it,
it is too late, especially in the second appellate stage to object to the same.
18. With respect to the additional documents filed in CMP.No.3584
of 2007, they are a copy of the report of the Advocate Commissioner in
another suit, the order passed in the said application and a certified copy of
the order passed in S.A.No.383 of 1959. These documents were very much
available or could have been procured, with due diligence, at the time of
trial or at least at the time of hearing of the first appeal. It is beyond doubt
that this Court has power under Order XXI Rule 27 read with section 103 of
the Code of Civil Procedure to permit additional evidence. However, the
high threshold of Order XLI Rule 27 should be crossed before I exercise
that power. It is essential that the party producing additional evidence
establishes that despite due diligence, he was not in a position to get the
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S.A.No.2109 of 2003
documents or this Court should feel that those documents are necessary for
the purpose of pronouncing the Judgment.
19. The report of the Advocate Commissioner in a different suit, even
if it were in a case between the predecessors-in-title of the plaintiff and
defendants, is not evidence as per Order XXVI Rule 10 of CPC. Here, the
Advocate Commissioner's report dated 21.10.1998 is very much available
and the defendants have not gone ahead to examine the Advocate
Commissioner or even suggested that the plan filed by the Advocate
Commissioner is false and misleading. When there is sufficient evidence on
records to decree the suit, in my view as rightly done by the lower appellate
court, there is no necessity to look into the documents which had come into
effect at least three decades before the purchase made by the plaintiff on
06.06.1984 or by the defendants on 20.03.1984. Therefore, I reject
C.M.P.No.3584 of 2007 as unnecessary for the disposal of the appeal.
20. Learned Senior Counsel for the Appellants apprehended that
under the guise of this decree, the plaintiff would claim a larger right than
what he is entitled to. This fear is unfounded. The property has been
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S.A.No.2109 of 2003
identified and localised by the Advocate Commissioner. It has been properly
described in the schedule to the sale deed as well as in the suit. The plaintiff
cannot claim an inch over what the decree has been granted.
21. In any event, I feel if the commissioner's plan is made a part of the
decree, it will allay the fears of the Appellants.
22. I would therefore hold the substantial questions of law against the
Appellants and would dismiss this Appeal. I am not granting costs because
the counsel for the respondents was not called upon to answer the appeal.
23. In fine, this Second appeal is dismissed. The decree and judgment
passed in A.S.No.27 of 1999 dated 19.09.2003 on the file of the learned
Subordinate Judge, Kallakurichi stands confirmed and the suit in
O.S.No.122 of 1992 on the file of the learned first Additional District
Munsif, Kallakurichi stands decreed. The plan of the Advocate
commissioner filed under Ex.C2 shall form part of the decree. No costs.
Consequently, C.M.P.No.19407 of 2003 is closed.
09.03.2023
nl
Index: Yes/No
Speaking order/Non-Speaking Order
Neutral Citation : Yes/No
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S.A.No.2109 of 2003
To
1.The Subordinate Judge, Kallakurichi.
2.The First Additional District Munsif, Kallakurichi.
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S.A.No.2109 of 2003
V.LAKSHMINARAYANAN, J.
nl
S.A.No.2109 of 2003
09.03.2023
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