Madras High Court
Thommaiyarkoil vs Muthiah Vaidhyar (Died) on 1 July, 2024
S.A.No.478 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.07.2024
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.478 of 2001
Thommaiyarkoil,
through its Administrator,
J.Rubert,
Peikulam- 628 613. ...Appellant
-Vs-
Muthiah Vaidhyar (Died)
2.Thresal
3.S.Santhanamarial
4.Anthoniammal
5.S.Pragasi
6.S.Glori ... Respondents
(The Administrator of the appellant Thommaiyarkovil was substituted vide
order of this Court, dated 23.01.2024 made in C.M.P.(MD)No.563 of 2024.
Respondents 2 to 6 were brought on record as legal representatives of the
deceased sole respondent, vide order of this Court, dated 23.01.2024 made in
M.P.(MD)Nos.1 to 3 of 2008)
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree, dated 31.08.1998 in A.S.No.
202 of 1995 on the file of the Principal District Judge, Tuticorin confirming
the judgment and decree in O.S.No.69 of 1972, dated 12.10.1995 on the file
1/12
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S.A.No.478 of 2001
of the District Munsif Court, Srivaikundam.
For Appellant :Mr.V.Sasikumar
R1 :Died
R2, R3 and R5 :No representation
For R4 :Mr.S.Jeyakarthick
For R6 :Mr.R.Ponkarthikeyan
****
JUDGMENT
The defendant in the suit is the appellant. The plaintiff filed the suit
for bare injunction. The suit was decreed by the trial Court and the findings
of the trial Court were affirmed by the first appellate Court. Aggrieved by
the concurrent of the Courts below, the defendant has come by way of this
appeal.
2.Pending Second Appeal, the respondent/sole plaintiff died and his
legal representatives were brought on record as respondents 2 to 6.
3.According to the plaintiff, the suit 'A' schedule property belonged to
one Thommai Savarimuthu Fernando and he sold the property to the plaintiff
40 years back for a sale consideration of Rs.85/- by way of oral sale. The
possession of the property was delivered to the plaintiff. The plaintiff has
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been in possession and enjoyment of the suit 'A' schedule by paying land tax.
The plaintiff permitted one Jebamalai Poobalarayar to enjoy four cents of
suit 'A' schedule on the southern side. The remaining ten cents on the
northern side has been in possession and enjoyment of the plaintiff. The
plaintiff is also having his natham land on the west of the suit property and
he is having his house on the western side. The plaintiff let out five cents of
the land on the northern side to one Rathinapandi Nadar on 06.01.1988 for
the purpose of running a shop and he vacated the suit property in the year
1990. Thus, the plaintiff has been exercising his right over the suit property
and in enjoyment of the same. The northern 10 cents of suit 'A' schedule
property is shown as suit 'B' schedule. The defendant, who is in possession
of the property on the eastern side of the suit property attempted to interfere
with plaintiff's possession without having any manner of right and hence, the
plaintiff was constrained to file a suit for injunction.
4.The defendant filed a written statement denying the right and
possession of the plaintiff over the suit property. The defendant claimed that
the suit property was purchased by Thommai Savarimuthu Fernando on
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behalf of the defendant and hence, the defendant has got title over the suit
property. It was also claimed by the defendant that the plaintiff obtained
revenue records in his name fraudulently and later, the defendant approached
the Tahsildar and got the same cancelled. The defendant also obtained patta
in his name subsequently and paid land tax to the Government. The
defendant also contended that Jebamalai Poobalarayar was allowed by the
defendant to put up superstructure on the southern side of the suit property.
On these pleadings, the defendant sought for dismissal of the suit.
5.Before the trial Court, the plaintiff was examined as PW-1 and two
witnesses were examined on behalf of the defendants as DW-1 and DW-2.
On behalf of the plaintiff, 8 documents were marked as Ex-A1 to Ex-A8 and
on behalf of the defendant, 7 documents were marked as Ex-B1 to Ex-B7.
6.The trial Court, on appreciation of oral and documentary evidence
available on record, came to the conclusion that the plaintiff had proved his
possession over the suit property and granted a decree for injunction.
Aggrieved by the same, the appellant/defendant preferred an appeal in
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A.S.No.202 of 1995 on the file of the Principal District Court, Tuticorin.
The first appellate Court affirmed the findings of the trial Court and
aggrieved by the concurrent findings, the defendant is before this Court.
7.At the time of admission, this Court formulated the following
substantial question of law, by order, dated 16.04.2001:
“Whether the suit having shown to have been filed in a
representative capacity is hit by Order I Rule 8 C.P.C.?”
8.The learned Counsel for the appellant submitted that he is not
pressing the question of law formulated at the time of admission. However,
he assailed the judgments of the Courts below on other grounds. The learned
Counsel for the appellant submitted that there is a serious doubt with regard
to the title of the plaintiff and hence, a simple suit for injunction simpliciter
is not maintainable. The learned Counsel further submitted that the patta
granted in favour of the plaintiff was cancelled as per Ex-B7 and hence, the
revenue documents produced by the plaintiff to prove his possession over the
suit property are not useful.
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9.Based on the submission of the learned Counsel for the appellant,
the following substantial question of law is taken up for consideration:
“Whether the suit for injunction simpliciter is
maintainable without prayer for declaration?”
10.The learned Counsel for the respondents was heard on the above
said question of law. The learned Counsel for the respondents submitted that
the possession of the plaintiff over the suit property has been proved by
producing revenue documents in the name of the plaintiff and the order
produced by the defendant, marked as Ex-B7, was not passed after due
enquiry and proper notice to the plaintiff and hence, the same would not
advance the cause of the defendant. The learned Counsel for the respondents
also submitted that the defendant has not produced any evidence to show that
the plaintiff's vendor Thommai Savarimuthu Fernando purchased the suit
property on behalf of the defendant Church and hence, no cloud is created
over the right of the plaintiff. In such circumstances, the learned Counsel
submitted that the suit for bare injunction based on lawful possession of the
plaintiff was very well maintainable.
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11.It is the case of the plaintiff that the suit property originally
belonged to one Thommai Savarimuthu Fernando and he purchased the same
40 years back for a sale consideration of Rs.85/- by way of oral sale. The
plaintiff also produced revenue documents like, 'A' register, Adangal and tax
receipts to prove his possession over the suit property. The defendant
admitted that the suit property was purchased by the the plaintiff's vendor
Thommai Savarimuthu Fernando from one Gurusamy Nadar. The sale deed
in favour of Thommai Savarimuthu Fernando has been marked as Ex-B1.
However, it is the case of the defendant that Thommai Savarimuthu
Fernando purchased the suit property on behalf of the defendant Church. A
perusal of Ex-B1 would suggest that Thommai Savarimuthu Fernando
purchased the suit property in his own name and it has not been purchased by
him on behalf of the defendant. In such circumstances, the title of the
plaintiff's vendor is an admitted one.
12.The plaintiff claims that he purchased the suit property orally from
his vendor for a sale consideration of Rs.85/-. Conveyance of immovable
property for value of less than Rs.100/- need not by way of registered
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document. A perusal of Ex-B1 would suggest that the plaintiff's vendor
purchased the suit property in the year 1930 for a sale consideration of
Rs.50/-. The plaintiff claims that he purchased the suit property from his
vendor in the year 1935. Therefore, it is probable that after five years, the
plaintiff's vendor would have sold the property for a sale consideration
Rs.85/-. When the sale was for a consideration of less than Rs.100, it is not
necessary to execute a registered document.
13.It is the assertion of the plaintiff that he has been in possession and
enjoyment of the suit property from the date of sale. Ex-A2 is the patta
issued in the name of the plaintiff, dated 28.10.1986. Ex-A3 is the tax
receipt in the name of the plaintiff for the Fasli year 1398 relevant to 1988.
Ex-A4 is the 'A' register copy. A perusal of the same would suggest that the
suit survey number stands in the name of the plaintiff. Ex-A5 is the Adangal
extract for the Fasli year 1399 relevant to the year 1989. Ex-A5 is also
standing in the name of the plaintiff. Ex-A6 is also Adangal for the year
1992. Therefore, Ex-A1 to Ex-A6 revenue records proved that the plaintiff
has established his possession for nearly six years immediately preceding the
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presentation of the plaint.
14.The revenue documents produced by the plaintiff were assailed by
the defendant on the ground that patta granted in favour of the plaintiff was
cancelled by the Tahsilar under Ex-B7 and therefore, no significance can be
attached to the revenue documents in the name of the plaintiff. It is pointed
out by the Courts below that in Ex-B7, the seal of the Tahsildar is not
available. Further, copy of Ex-B7, order was not marked to the plaintiff and
the same was marked only to the defendant. DW-1 in his evidence also
admitted that he obtained copy of Ex-B7 from the Tahsildar Office and the
copy of Ex-B7 order was not sent to the plaintiff. In such circumstances,
there is no evidence available on record to show that the patta issued to the
plaintiff was cancelled after proper notice and due enquiry. Therefore, both
the Courts below correctly ignored Ex-B7 and relied on revenue documents
produced by the plaintiff to come to a conclusion that the plaintiff's
possession over the suit property was proved on the date of the suit.
15.Further, DW-1 in his evidence admitted that there was no fence line
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between the natham property of the plaintiff on the western side and the suit
property. He has also gone to the extent of admitting that the suit property
and the plaintiff's natham property on the western side were situated in one
block. Taking into consideration the said admission of the DW-1 and the
revenue documents produced by the plaintiff, the Courts below came to the
conclusion that the plaintiff had proved his possession over the suit property
and the said finding is based on proper appreciation of evidence available on
record. Hence, it requires no interference by this Court.
16.The plaintiff claims right over the suit property under an oral sale
from the admitted owner, Thommai Savarimuthu Fernando. The defendant
claims that the said Thommai Savarimuthu Fernando had purchased the suit
property on behalf of the defendant Church. As mentioned earlier, in Ex-B1,
sale deed, the suit property was purchased by Thommai Savarimuthu
Fernando in his individual capacity and not on behalf of the defendant. In
such circumstances, any semblance of right of the defendant over the suit
property is not established, so as to create any serious doubt or cloud over
the title of plaintiff. In such circumstance, I do not think that the prayer for
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declaration is necessary and the plaintiff is entitled to maintain a suit for
injunction simpliciter without a prayer for declaration. The question of law
framed is answered accordingly and the Second Appeal stands dismissed by
confirming the judgments and decrees passed by the Courts below. No costs.
17.It is made clear that the dismissal of the Second Appeal will not
come in the way of defendant filing appropriate suit for declaration of title
and establish his right.
01.07.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
cmr
To
1.The Principal District Judge, Tuticorin.
2.Tthe District Munsif, Srivaikundam.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SOUNTHAR, J.
cmr
01.07.2024
https://www.mhc.tn.gov.in/judis
