Madras High Court
G.Radhakrishnan(Deceased) vs D.Neelamegam on 10 January, 2012
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2012
CORAM
THE HONOURABLE MR.JUSTICE S.TAMILVANAN
S.A.No.1085 of 2009
and
M.P.No.1 of 2009
1.G.Radhakrishnan(Deceased)
2.T.Umadevi .. Appellants
Vs.
1.D.Neelamegam
2.Tmt.Rupavathi .. Respondents
The Second Appeal is filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree dated 31.03.2009 made in A.S.No.395 of 2008 on the file of the learned VI Additional City Civil Judge, Chennai reversing the Judgment and Decree dated 31.10.2007 made in O.S.No.6559 of 2005 on the file of the VIII Assistant City Civil Judge, Chennai.
For Appellants : Ms.D.Tamilselvi
For Respondents : Mr.P.Venkatesan
JUDGMENT
The Second Appeal has been preferred against the Judgment and Decree dated 31.03.2009 made in A.S.No.395 of 2008 on the file of the learned VI Additional City Civil Judge, Chennai, reversing the Judgment and Decree dated 31.10.2007 made in O.S.No.6559 of 2005 on the file of the VIII Assistant City Civil Judge, Chennai.
2. The Appellants herein are the plaintiffs in the suit. They filed the suit before the Court below seeking permanent injunction restraining the defendants who are the respondents herein, their agents, servants etc., from in any way interfering with the plaintiffs peaceful possession and enjoyment of property bearing No.31,M.G.R. Nagar, Kolathur, Chennai-99. According to the appellants/plaintiffs, the land belonged to the Government which is a poromboke land and a superstructure therein was put up by the plaintiffs, for which "B" memo was issued by the Government. The suit property consisting of ground floor and first floor having two shops in each floor. In the plaint, the appellants herein have stated that the first plaintiff has been in possession of the suit property since 1980 without any hindrance and he obtained electricity service connection and also paying periodical consumption charges. According to the appellants, the suit property is also assessed for property tax by the Corporation of Chennai.
3. As per the case of the appellants/plaintiffs, the first plaintiff executed a settlement deed in favour of the second plaintiff, who is the daughter of the first plaintiff, and hence she is the absolute owner of the suit property from the date of the settlement deed dated 11.08.2005. However, the respondents/defendants without having any legal right or title had started interfering with the plaintiffs peaceful possession and enjoyment of the suit property. Hence, the suit was filed by the appellants/plaintiffs seeking the prayer as stated supra.
4. The first defendant filed his written statement and the second defendant has adopted the same. In the written statement, the first defendant had admitted the possession and enjoyment of the suit property by the appellants/plaintiffs. In the written statement, it has been specifically stated that the first plaintiff had been in occupation of the suit property. However, the respondents/defendants has stated that the suit property belonged to Arulmighu Sri Muthu Mariamman Kovil Trust and the first plaintiff was tenant under the Temple. However, he failed to pay the rent in spite of several demands made and in order to maintain peace and happiness among the residents of the area, the temple administration had not taken any stringent action against the appellants/plaintiffs. Hence, he prays for dismissal of the suit.
5. After the trial, the suit was decreed by the trial Court in favour of the appellants/plaintiffs. Aggrieved by which, an appeal was preferred by the respondents herein before the VI Additional Judge, City Civil Court, Chennai. The lower Appellate Court allowed the appeal dated 31.03.2009 and dismissed the suit filed by the appellants herein. Aggrieved by which, the second appeal has been preferred by the plaintiffs in the suit. While the matter was pending, the first appellant/first plaintiff was reported dead. Considering the grounds raised by the appellants/plaintiffs, the following substantial questions of law have been framed for disposal of the appeal.
i) Whether the first appellate Court is right in allowing the appeal and dismissing the suit when the defendants themselves have admitted the possession of the plaintiffs in the suit property and not claiming any title to the property?
ii) Whether the findings of the first appellate Court is correct when the same has held that the appellants/plaintiffs have established their possession in the suit property and the plea of the respondents is only that the property belongs to a temple, when the temple is not a party to the suit?
6. Ms.D.Tamilselvi, learned counsel appearing for the appellants/ plaintiffs drew the attention of this Court to the Written Statement filed by the respondents/defendants, wherein they have admitted the possession and enjoyment of the suit property by the appellants/laintiffs. The defence raised by the respondents herein is that the suit property belongs to Arulmighu Sri Muthu Mariamman Kovil Trust and the first respondent is the Founder and President of the temple and the temple trust.
7. Learned counsel appearing for the respondents has further submitted that it is a private temple. The appellants herein along with the villagers had constructed the temple for the worship of people residing nearby the suit property. It is seen that before the trial Court, the first plaintiff examined himself as P.W.1 and on the side of the respondents, the respondents examined themselves as D.Ws.1 & 2. On the side of the appellants/plaintiffs, the receipt for payment of tax dated 19.03.1990 was marked as Ex.A1. The "B" memo issued by the Village Administrative Officer, Purasavakkam-Perambur Taluk for the year 1990 was marked as Ex.A2. The Area Sketch dated 20.09.1990 was marked as Ex.A3. Settlement Deed dated 11.08.2005 executed by the first plaintiff in favour of the second plaintiff was marked as Ex.A4. It is further seen that Provisional Demand notice, Rental Value work sheet, payment receipts, copy of the complaint given by the second plaintiff to Inspector of Police, Rajamangalam Police Station, E.B. Test report, letter with quotation sent by Devarajan, Notice issued by Corporation of Chennai, Summons issued by Corporation of Chennai, Receipt Issues by E.B, White Meter Card and Xerox copy of white meter card respectively were marked as Ex.A5 to A15. On the side of the respondents/defendants, the Sketch, xerox copy of notice, xerox copy of No objection certificate, Urban Land Tax Receipts, Payments receipts, Eerox copy of E.B. Card, House site ownership certificate, Xerox copy of Registered Trust Deed and photos respectively were marked as Exs.P1 to P12.
8. Learned counsel appearing for the appellants submitted that the documents marked on the side of the respondents are also the documents relating to the temple and other documents relating to some other properties and not the suit property. It is an admitted fact that the respondents herein are not in occupation of the property and they neither claim title nor possession of the property. If the temple had constructed the superstructure, it could have impleaded itself as one of the defendants and raised counter claim in the suit or otherwise the temple could have filed an independent suit seeking declaration of title and for other consequential reliefs. As per the documents available, it is clear that the appellants/plaintiffs are in possession and enjoyment of the suit property. After the demise of first appellant, his daughter/the second appellant herein is in possession and enjoyment of the suit property. Learned counsel appearing for the appellants further submitted that the second appellant is in possession and enjoyment of the property being legal heir of the first plaintiff, she is entitled for the relief of injunction restraining the respondents/defendants herein from interfering with her peaceful possession and enjoyment of the suit property.
9. As the respondents/defendants are strangers to the property, the trial Court granted permanent injunction in favour of the appellants. However, the lower appellate Court without considering the factual and legal aspects has reversed the judgment and dismissed the suit though the respondents/defendants have not claimed neither title nor right of possession of the property. The appellants have established their legal right to seek the remedy of permanent injunction against the respondents, who are strangers to the property. Learned counsel for the appellants in support of her contention, relied on the judgments reported in 2004-3-L.W.143 in the case of Rame Gowda (D) by Lrs Vs. M.Varadappa Naidu (D) by LRs and another Judgment reported in 2010(6)CTC 279 in the case of S.K.Balaguru Pandian Vs. 1.S.K.Murugesan Nadar, 2)R.Kumaravel wherein the Hon'ble Apex Court has held that a person in peaceful possession of the property is entitled to retain his possession and in order to do so, he may even use reasonable force to keep out a trespasser. In the absence of proof of better title or right of possession, the respondents/defendants cannot contest the matter against the appellants/plaintiffs, who is admittedly in possession and enjoyment of the property. It is well settled that a person who is legal possession is entitled to protect his possession even as against the true owner, who is attempting to disposes the person in possession of the property.
10. In the instant case, admittedly, the contesting 2nd appellant, who is the daughter of the deceased first appellant is in possession and enjoyment of the property. It is not the case of the respondents that they have title to the property or they are in possession of the property. As held by the Hon'ble Apex Court in the decision cited, law will come to the aid of a person who is in peaceful possession and enjoyment of the property against third parties. Even a rightful owner using force or taking law in his own hands cannot dispose a person in legal possession. In the instant case, it is an admitted fact that the land belonged to the Government and "B" memo was issued by the Revenue Department in favour of the appellants/plaintiffs. After having build a superstructure, the appellants have obtained electricity service connection and also paying electricity consumption charges and paying the property tax to Corporation of Chennai.
11. Learned counsel appearing for the respondents submitted that the deceased first appellant in order to create evidence and make a false claim, executed settlement deed in favour his daughter, the second appellant herein though he could not confer any title. In the instant case, it is seen that no relief of declaration of title sought for by the appellants/plaintiffs, therefore there is no need for the Court to decide their title to the property. However, the available evidence on record would clearly show that the contesting second appellant is in legal possession of the property and the land belongs to the Government being a poramboke land, for which "B" memo has been issued and necessary "B" memo charges are collected from the appellants. On the aforesaid facts and circumstances, the appellant is entitled to protect the property from any third party including the respondents herein. In S.K.Balaguru Pandian Vs. 1.S.K.Murugesan Nadar, 2)R.Kumaravel case, this Court (G.M.Akbar Ali.J) clearly held that in a suit for injunction simplicitor, the Court can look into the title incidentally and the conclusive determination of the title to the property is not called for. Based on various decisions rendered by the Hon'ble Supreme Court and this Court, it is well settled that a person who is in legal possession of the property is entitled to get protection by way of injunction against any third party. In case of default in payment of rent, even landlord can only resort to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act or the Transfer of Property Act, as the case may be, to get eviction of the tenant. Even a land lord is not entitled to forcibly evict such a tenant without following the due process of law. Here in this case the respondents are not landlords.
12. Learned counsel appearing for the respondents further submitted that as per the evidence available on record, the property in question is measuring an extent of 12 x 12 = 144 sq.ft. having ground floor and first floor. However, the second appellant has got document for a larger extent. Therefore, the said fact cannot be decided based on the allegations raised by a third party, the respondents herein. Since the respondents have raised the defence stating that Arulmighu Sri Muthumariamman Temple let out the property and the appellants are tenants, it is for the temple to seek appropriate remedy and the defence raised by the respondents third parties to the property is legally not sustainable. Considering the facts and circumstances of the case, the Trial Court had granted an injunction in favour of the appellants/plaintiffs, however, the same was erroneously reversed by the lower Appellate Court. When the second appellant is in legal possession of the property and there is cause of action raised by the plaintiff stating that the respondents are disturbing the peaceful possession and enjoyment of the property by the contesting second appellant, the lower appellate Court ought to have confirmed the injunction granted by the trial Court and dismissed the appeal. On the facts and circumstances, I am of the view that both the substantial questions of law raised in the second appeal are to be answered in favour of the appellants and against the respondents and accordingly the substantial question of law are answered.
13. In the result, the Second appeal is allowed and the impugned judgment and decree rendered by the lower Appellate Court in A.S.No.395 of 2008 dated 31.03.2009 is set aside and consequentially the Judgment and decree passed by the Trial Court in O.S.No.6559 of 2005 dated 31.10.2007 is confirmed. However, considering the facts and circumstances, there shall be no order as to costs. Consequently, connected M.P. is closed.
rrg To
1. The VI Additional Judge, City Civil Court,
2. The VIII Assistant Judge, City Civil Court, Chennai