Madras High Court
Tmt.Victoriasamy vs V.Rajdendran on 5 April, 2024
S.A.(MD)No.152 of 2015
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 05.04.2024
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.(MD)No.152 of 2015
Tmt.Victoriasamy ... Appellant
Vs
V.Rajdendran ... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C. against the
judgment and decree dated 14.11.2014 made in A.S.No.16 of 2014 on the
file of Additional Sub Judge, Dindigul, confirming the judgment and
decree dated 10.02.2014 made in O.S.No.250 of 2011 on the file of
District Munsif, Nilakottai.
For Appellant : Mr.R.Suriya Narayanan
For Respondent : Mr.K.Kevin Karan
https://www.mhc.tn.gov.in/judis
1/11
S.A.(MD)No.152 of 2015
JUDGMENT
The plaintiff is the appellant. She laid a suit for bare injunction.
The suit was dismissed by the trial Court and the findings of the trial
Court was affirmed by the first appellate Court. Aggrieved by the
concurrent findings against her, the plaintiff is before this Court.
2. According to the appellant/plaintiff, she purchased the suit
property under Ex.A1, dated 30.10.1981 as a vacant site. Thereafter, she
had put up superstructure and let out the same to 9 tenants and she had
been in possession and enjoyment of the suit property as such. The
respondent/defendant without having any right over the suit property,
issued a lawyer notice to the tenants of the appellant and attempted to
interfere with her possession and hence, she was constrained to file a suit
for bare injunction.
3. The respondent herein filed his written statement denying the
title as well as the possession of the appellant over the suit property. It
was the specific case of the respondent that the property purchased by the
appellant was totally a different property and the same is located in S.No.
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411, which is a Highway. The respondent raised an averment in the
written statement that the suit property located in S.No.413/1 is nothing
to do with the property purchased by the appellant under Ex.A1. The
respondent also raised a plea that he purchased the suit property located
in S.No.413/1, by a registered a sale deed dated 20.09.2011 and he has
been in possession and enjoyment of the same. On these pleadings, the
respondent sought for dismissal of the suit.
4. Before the trial Court, the appellant's power agent was examined
as P.W.1 and one Ashok was examined as P.W.2. On behalf of the
appellant/plaintiff, 15 documents were marked as Ex.A1 to Ex.A15. The
respondent was examined as D.W.1 and one Kottairaj was examined as
D.W.2. On behalf of the respondent, 13 documents were marked as
Ex.B1 to Ex.B.13.
5. The trial Court, on appreciation of oral and documentary
evidence available on record, came to a conclusion that the appellant
failed to prove her title as well as possession and dismissed the suit.
Aggrieved by the same, the appellant preferred an appeal. The first
appellate Court also affirmed the findings of the trial Court. Hence,
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challenging the concurrence findings against her, the appellant is before
this Court.
6. At the time of admission, this Court formulated the following
substantial questions of law, as per the order dated 02.07.2015:
“(i) Whether the Courts below are right in holding that
the suit for permanent injunction without a prayer for
declaration of title is not maintainable?
(ii) Whether the Courts below committed an error in not
rendering a finding as to the claim of the plaintiff to be in
possession of the suit property through the tenants?”
7. The learned counsel appearing for the appellant, elaborating the
substantial questions of law framed at the time of admission, submitted
that the appellant purchased the suit property under Ex.A1 with specified
four boundaries and the boundary description mentioned in the plaint
tallies with the boundaries description found in Ex.A1. In such
circumstances, the Courts below ought not to have non-suited the
appellant by pointing out discrepancy in the survey number. The learned
counsel further submitted that when the appellant proved the title over
the suit property, by producing EX.A1, with four boundaries which
tallies with the description found in the plaint, the Courts below ought
not to have observed that the suit for bare injunction without a prayer for
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declaration was not maintainable.
8. In support of the said contention, the learned counsel for the
appellant relied on the judgment of the Apex Court in Ananthula
Sudhakar Vs. P.Buchi Reddy reported in (2008) 4 SCC 594. The
learned counsel further submitted that by producing revenue documents,
like patta and natham adangal extract, the appellant proved the
possession over the suit property. The Courts below failed to take into
consideration the revenue documents filed by the appellant in proper
perspective and hence, the findings of the Courts below are liable to be
set aside.
9. The learned counsel appearing for the respondent submitted that
when there is a discrepancy in the survey number mentioned in the title
document of the appellant, the suit for bare injunction filed by her is not
maintainable and hence, the Courts below were justified in non suiting
the appellant on the ground that there was no prayer for declaration of
title. The learned counsel for the respondent, by taking this Court to the
findings rendered by the trial Court as well as the first appellate Court,
submitted that the findings of the Courts below that the appellant failed
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to establish her right and possession over the suit property is based on
proper appreciation of evidence available on record and therefore, the
same requires no interference by this Court,
Answer to the substantial questions of law (i) and (ii).
10. The appellant claims that she purchased the suit property as a
vacant site under Ex.1 and had put up superstructure thereon. A perusal
of Ex.A1 would suggest that the appellant purchased 1050 sq. ft., of
vacant house site with East-West measurement of 50 feet and North-
South measurement of 21 feet in S.No.411. Now the suit has been laid
by the appellant mentioning the new survey number of the suit property
as 413/1. As rightly pointed out by the Courts below, the appellant failed
to lead any evidence to corollate the old S.No.411 with the new S.No.
413/1. In fact, Ex.A3 patta and Ex.A4 Natham Adangal extract produced
by the appellant would go against her own case. Ex.A3 is a patta issued
in the name of plaintiff for new S.No.413/1. In the second column of the
document, old survey number for 413/1 is mentioned as “413 part”.
Therefore, the contention of the appellant that old S.No.411 was
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subsequently changed as 413/1 gets falsified by her own document viz.,
Ex.A3.
11. Even in Ex.A4, Natham Adangal extract produced by the
appellant, the old survey number for S.No.413/1 is mentioned as 413
part. Therefore, the contention of the appellant that old S.No.411 is
changed as new S.No.413/1 is not acceptable to this Court. Under
Ex.A1, the appellant purchased the property in old S.No.411. However,
new S.No.413/1 is not relating to old S.No.411. In such circumstances,
the Courts below rightly came to the conclusion that when there is a
serious discrepancy with regard to survey number found in Ex.A1, suit
for bare injunction without a prayer for declaration is not maintainable.
12. The learned counsel appearing for the appellant submitted that
the four boundaries mentioned in the title document tallies with the
boundary description in the plaint schedule and when there is a dispute
between the boundaries and survey numbers, the boundaries will prevail
over the survey numbers. The said submission made by the learned
counsel for the appellant cannot be pressed into service in a suit for bare
injunction. If at all, it is for the appellant to file a suit for declaration of
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her title and establish the property purchased by her under Ex.A1, lies in
new Survey number 413/1. When there is a discrepancy in the survey
number of the property in the title document of the appellant, it creates a
cloud over the title and hence, suit for bare injunction is not at all
maintainable. In view of the same, reliance placed by the learned
counsel for the appellant in Ananthula Sudhakar's case will not advance
his case in view of the fact that a cloud is created over the title of the
appellant. The question of law “(i)” is answered accordingly against the
appellant and in favour of the respondent.
13. The appellant in the plaint mentioned that the superstructure
put up by her in the suit property were orally let out to tenants and they
have been in enjoyment and possession of the property under oral
arrangements. However, in order to prove the alleged tenancy
arrangements, the appellant/plaintiff produced written tenancy
agreements entered into with the alleged tenants as Ex.A7 to Ex.A12. All
these written tenancy arrangements filed by the appellant came into
existence subsequent to the suit. Therefore, the written tenancy
documents filed by the appellant will not advance the case of the
appellant. In order to prove the possession, the appellant produced patta
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and natham adangal extract as Ex.A3 and Ex.A4. As mentioned earlier,
in Ex.A3 and Ex.A4, the old survey number was mentioned as “413 part”
not as “411”. In such circumstances, it is not safe to rely on Ex.A3 and
Ex.A4 and come to the conclusion that the appellant proved her
possession over the suit property based on the said document. Ex.B10 is
“A” register extract filed by the respondent. A perusal of the same would
indicate that S.No.411 is described as a Sarkar Porambokku in Villalge
“A” Register. If S.No.411 is described as Sarkar Porambokku, how the
appellant could claim title over the suit property under Ex.A1 is also not
clear. In such circumstances, the question of law “(ii)” is also answered
against the appellant.
14. In view of the answer to substantial questions of law “(i) and
(ii)”, this second appeal fails and the same is dismissed with liberty to the
appellant to establish her title by filing a suit for declaration and
appropriate consequential relief. There shall be no order as to costs.
05.04.2024
NCC : Yes / No
https://www.mhc.tn.gov.in/judis
Index : Yes / No
vsm
To
1.The Additional Sub Judge, Dindigul.
2.The District Munsif, Nilakottai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
vsm
05.04.2024
https://www.mhc.tn.gov.in/judis
