Madras High Court
Selvaraj vs Kalyani on 10 March, 2023
S.A.No.1314 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2023
CORAM
THE HONOURABLE Mr. JUSTICE V.
LAKSHMINARAYANAN
S.A.No.1314 of 2009
Selvaraj ...Appellant/Respondent
/Plaintiff
Vs.
1.Kalyani
2.Dharman @ P.Dharmaraj
3.Gomathi
4.Muthu @ Muthulakshmi ...Respondents/Appellants
/Defendants 2 to 5
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 19.10.2009 in
A.S.No.19 of 2009 on the file of the learned Principal Subordinate
Judge, Gobichettipalayam, reversing the Judgment and Decree dated
29.11.2005 in O.S.No.96 of 2000 on the file of the learned District
Munsif, Gobichettipalayam.
1/18
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S.A.No.1314 of 2009
For Appellant : Ms.G.Sumithra
for M/s.R.T.Duraisamy
For Respondents : Mr.N.Manokaran
JUDGMENT
The plaintiff is the appellant. He has preferred this appeal,
against the Judgment and Decree dated 19.10.2009 in A.S.No.19 of
2009 on the file of the learned Principal Subordinate Judge,
Gobichettipalayam. The learned Principal Judge had reversed the
Judgment and Decree dated 29.11.2005 in O.S.No.96 of 2000 on the
file of the learned District Munsif, Gobichettipalayam.
2. O.S.No.96 of 2000 was the suit presented for mandatory
injunction to remove the fence put up by them in the “BC” line of the
plaint plan. According to the plaintiff, the property originally
belonged to the Government. His grandfather, Muniappa Pannadi,
was given a patta by the Government and the said Muniappa Pannadi
was in possession and occupation of the property.
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S.A.No.1314 of 2009
3. Muniappa Pannadi had only one son by name Ramasamy
Pannadi. Ramasamy Pannadi succeeded to the property. On
15.10.1991, Ramasamy Pannadi and the plaintiff partitioned the
property with each of them having half share. On that very day, the
father Ramasamy Pannadi released the property in favour of the
plaintiff, after receiving a valuable consideration of Rs.2,600/-. It is
the case of the plaintiff that on and from that date, he had become the
absolute owner of the property. It is his further case that he had put
up a superstructure after getting permission from Gobichettipalayam
Municipality. The Plaint proceeds that he had a set back of 2 ½ ft on
all sides of the property. The dispute relates to a thatched fence,
erected by him on the Western side of his house. According to the
plaintiff, the thatched fence put up by him was removed by the
defendants and they had put up a new thatched fence. Under the guise
of removing the thatched fence and putting up a new one, the
defendants had encroached an extent of 2 ½ ft by 58 ½ ft.
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S.A.No.1314 of 2009
Consequently, he filed the suit for the aforesaid relief.
4.The defendants entered appearance and filed a Written
Statement opposing the claim of the plaintiff. They claimed that it is
their own property and had denied the right of the plaintiff to the
extent claimed by him - 2 ½ ft feet by 58 ½ ft. On the contrary, it is
their case that the plaintiff had encroached 1½ ft by 34 ft.
5.The trial Court framed the following issues for its
consideration:
"(1)tpsk;g[if kw;Wk; RthjPdg; ghpfhuk;
nfhuhky; jhf;fy; bra;Js;s ,t;tHf;F
epiyf;fj;jf;fjh?
(2)thjp jhthtpy; nfhhpago
braYWj;Jf; fl;lisg; ghpfhuk;
bgwj;jFjpbgw;wtuh?
(3)ntW VnjDk; ghpfhuk;
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S.A.No.1314 of 2009
bgwj;jf;ftuh?"
6.The plaintiff had examined himself and two other witnesses
and marked Ex.A.1 to Ex.A.7. Pending the suit, an Advocate
Commissioner who had been appointed and examined, had marked his
report dated 19.04.2000 together with the Plan. He filed an
Additional Report on 28.08.2000. These were marked as Ex.C.1 to
Ex.C.3. The 2nd defendant examined himself as DW1. No documents
were marked on behalf of the defendants.
7.The Trial Court decreed the suit on the ground that the
plaintiff has filed his title documents and the defendants have not
produced any document. It caused a burden of proof on the defendants
to disprove the case of the plaintiff and decreed the suit.
8.Aggrieved by the Decree for mandatory injunction, the
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S.A.No.1314 of 2009
respondents herein filed a regular Appeal. The learned Appellate
Judge after considering the documents filed by the plaintiff held that
he is not in agreement with the trial Judge on the following points:
(1) In a suit for mandatory injunction, it is the duty of
the plaintiff to prove his case and the burden
cannot be passed on/cast the defendants.
(2)That the plaintiff, despite denial of title by the
defendants, had not sought for a declaration of title
and therefore, he is not entitled to any relief.
On these grounds, he allowed the appeal and dismissed the suit.
9. The following Substantial Questions of Law were framed at
the time of admission:
(i)Whether the Lower Appellate Court is correct in
its conclusion without considering the fact that the
dispute is with regard to encroachment of 1 ½ ft feet
width of land by the defendants but not with regard to
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S.A.No.1314 of 2009
title of the properties?
(ii)Whether the Lower Appellate Court is correct
in insisting the document for ancestral property and
rejecting the patta issued to the land?
(iii)Whether the Lower Appellate Court is correct
in holding that the plaintiff has not proved his case
without considering the documents Ex.A.1 to Ex.A.3 and
Ex.A.7?”
10. I have heard Ms.G.Sumithra, learned counsel appearing for
Mr.R.T.Duraisamy for the appellants and Mr.N.Manokaran, the
learned counsel appearing for the respondents.
11.The facts set forth above would clearly show that the plaintiff
relies upon a revenue patta issued by the Government under Ex.A.3
for the purpose of claiming title. It is not an assignment patta but a
revenue patta. Such a patta is not a document of title and therefore,
the plaintiff cannot make a claim only on that basis. Secondly, the two
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documents on the basis of which he claims a right, namely, the
Partition Deed between his father and himself and the Release Deed
by the father – these are self serving documents between the plaintiff
and his father.
12. According to the plaintiff, the Court cannot insist on the
documents for the purpose of proving that it is the ancestrtal property.
First, a property admittedly belonging to the Government cannot be an
ancestral property. No doubt, in some cases with respect to ancestral
property, there would be no documents to that effect. That is not the
case here. The specific case of the plaintiff is that the property is his
own, on the basis of Ex.A.3, which has already stated is only the patta
granted by the Tahsildar. The documents of release and partition are
self serving documents executed within the family are not documents
of title. Even a poramboke land can be a subject of partition. These
documents will not bind a third party.
13. In the case like this where the plaintiff states that there is an
encroachment of the 2 ½ ft and the defendants state that there is an
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S.A.No.1314 of 2009
encroachment of 1 ½ ft ft by the plaintiff, the least should have been
done is to appoint an Advocate Commissioner with the help of the
surveyor. Here, the Advocate Commissioner did not take such an
assistance nor does his report give the prior measurement. The
findings of the Lower Appellate Court that the plaintiff had not
objected to the Commissioner's report is wrong, but it is not such an
error which requires interference in Second Appeal. The Court has
non-suited the
plaintiff only on the ground that the plaintiff has not sought for
declaration of title, despite the denial in the Written Statement and at
the time of cross examination. Further, for a decree for mandatory
injunction, the plaintiff should have given a clear cut measurement as
the Commissioner's Plan with linear measurement forms a part of a
Decree. Otherwise it will create the situation where a Decree is
granted & later on, it becomes incapable of execution. Therefore, in a
suit for mandatory injunction, as in a case like this, where there is a
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clear cut denial of title, the plaintiff ought to have filed the title
documents as well as given proper measurements in order to enable
the Court to appreciate the situation.
14. The reason for not accepting the Commissioner's report is
that he has not taken the assistance of the Surveyor for the purpose of
identifying and localizing the property in dispute. There was no
dispute in the Northern, Southern and Eastern side of the property and
the Advocate Commissioner has taken pains to point out those issues.
The primary dispute is with respect to the encroachment of the 2 ½ ft
on the Western side of the property and on that the evidence is not
sufficient for the purpose of coming to a conclusion that the plaintiff is
entitled to a decree of mandatory injunction.
15. I do not agree with the Lower Appellate Court that in all
cases of mandatory injunction, there should be a suit for title. Such a
finding flies against the Judgment of the Supreme Court in Anathula
Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and others (2008) 4
Supreme Court Cases 594. I would like to refer to paragraph No.13
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wherein it has been held as follows:
"13. The general principles as to when a mere suit
for permanent injunction will lie, and when it is
necessary to file a suit for declaration and/or
possession with injunction as a consequential relief, are
well settled. We may refer to them briefly.
13.1) Where a plaintiff is in lawful or peaceful
possession of a property and such possession is
interfered or threatened by the defendant, a suit for an
injunction simpliciter will lie. A person has a right to
protect his possession against any person who does not
prove a better title by seeking a prohibitory injunction.
But a person in wrongful possession is not entitled to
an injunction against the rightful owner.
13.2) Where the title of the plaintiff is not
disputed, but he is not in possession, his remedy is to
file a suit for possession and seek in addition, if
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necessary, an injunction. A person out of possession,
cannot seek the relief of injunction simpliciter, without
claiming the relief of possession.
13.3) Where the plaintiff is in possession, but his
title to the property is in dispute, or under a cloud, or
where the defendant asserts title thereto and there is
also a threat of dispossession from defendant, the
plaintiff will have to sue for declaration of title and the
consequential relief of injunction. Where the title of
plaintiff is under a cloud or in dispute and he is not in
possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for
declaration, possession and injunction."
11.The marked portion would show that where the plaintiff is
not in possession of the property and his title has been denied, he
ought to have filed the suit for declaration of title and for recovery of
possession. That not having been done, the Lower Appellate Court
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rightly reversed the appeal. However, the other finding that in all
cases of mandatory injunction, declaration of title should be sought for
is erroneous and it is vacated. I would also rely upon the Judgment of
this Court in Arulmigu Velukkai Sri Azhagiya Singaperumal
Devasthanam v. G.K. Kannan and others [2020 6 MLJ 625]. I
would like to refer to paragraph No.22, wherein it has been held as
follows:
“22. Ideally, the Court may engage in a certain
process to achieve a certain degree of balance between a
bona fide denial of title and a colourable denial of title:
Firstly, it may independently evaluate the plaintiff's
title based on the evidence he produces, and then evaluate
the resistance to it in terms of the defendant's case. Then
it may try viewing the conclusion arrived on the plaintiff's
case through the conclusion arrived in defendants case
(something like holding a glass in between the eye and the
object).
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S.A.No.1314 of 2009
If the vision to the plaintiff's title is not obstructed
or blurred, then there is no cloud on plaintiff's title, and
if it is not, then there is one (though in actual working,
the mind works faster and enables an understanding
instantaneously). And if after this process, the Court
holds that the suit is maintainable without a relief of
declaration, then subject to the rule of res judicata, the
defendant may institute a suit to establish his title.”
16. Moving on to the title of the plaintiff , I have already found
that the plaintiff has not filed any title documents. Therefore, I am
saved from the trouble of finding out whether the plaintiff has title to
2.47 cents of the property. The factum that the defendants did not let
in any evidence is irrelevant. I will go to the extent of stating that
even if the defendants had remained ex parte, it is the duty of the
plaintiff to prove his title, prima facie, in a suit for mandatory
injunction. A deep examination for title is not necessary but at least a
prima facie proof should be put forward. The plaintiff should have
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taken efforts to appoint an Advocate Commissioner to be accompanied
by a Surveyor in order to localise the area. A general statement that 2
ft has been encroached is not sufficient for the grant of a decree of
mandatory injunction.
13.Insofar as the Substantial Questions of Law that have been
framed, Ex.A.1 to Ex.A.3 and Ex.A.7, as pointed out above, Ex.A.3 is
the Patta, Ex.A.7 is the Plan for the house, Ex.A.1 and Ex.A.2 – are
the Partition Deed and the Sale Deed executed by the father in favour
of his son. These two, without any antecedent documents, are merely
self serving documents and are not documents of title in themselves.
Ex.A.3 is the Patta which is certainly not a document of title. The
other two documents are the house tax receipts which does not carry
the plaintiff's case further. Ex.A.7 is the house construction plan. It is
seen from the report of the Advocate Commissioner, the construction
is not a newly made one but an old one. Ignoring all other aspects,
taking this aspect alone for consideration, the fact that the alleged
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encroachment had been made several years ago, the plaintiff would
still not be entitled to the relief of mandatory injunction. It is trite that
the delay defeats injunction and more so in a case of mandatory
injunction. For this proposition, I would rely upon the Judgment of
the Supreme Court in Krothapalli Satyanarayana v. Koganti
Ramaiah and others [AIR 1983 Supreme Court 452]. I fail to
understand how Ex.A.7 can be treated as a document of title.
Therefore, I answer all the Substantial Questions of Law framed, at
the time of admission, against the plaintiff/appellant.
14. Accordingly, this Second Appeal is dismissed. The decree of
the Principal Subordinate Judge at Gobichettipalayam in A.S.No.19 of
2009 dated 19.10.2009 in reversing the judgment and decree in
O.S.No.96 of 2000, on the file of learned District Munsif,
Gobichettipalayam is confirmed. Since the plaintiff is being non-
suited on the ground that he has not sought for title, I am not imposing
any costs.
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10.03.2023
Index : Yes/No
Neutral citations : Yes/No
Speaking order / Non speaking order
mps
V. LAKSHMINARAYANAN, J,
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S.A.No.1314 of 2009
mps
To:
1.The Principal Subordinate Judge,
Gobichettipalayam.
2.The District Munsif,
Gobichettipalayam.
S.A.No.1314 of 2009
10.03.2023
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