Madras High Court
Jayanthi vs Rajkumar on 28 July, 2025
S.No.888 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 23.06.2025
Pronounced on 28.07.2025
Coram:
The Honourable Mrs.Justice K.GOVINDARAJAN THILAKAVADI
Second Appeal No.888 of 2019
C.M.P.No.18707 of 2019
Jayanthi .. Appellant
versus
Rajkumar .. Respondent
Prayer: Second Appeal is filed under Section 100 CPC, praying to set aside
the judgment and decree dated 25.02.2019 made in A.S.No.59 of 2017 on
the file of Subordinate Judge, Chidambaram, reversing the judgment and
decree dated 05.06.2017 made in O.S.No.26 of 2014 on the file of learned
District Munsif cum Judicial Magistrate, Parangipettai.
For Appellant : Mr.M.Balasubramanian
For Respondent : Mr.S.Suresh
1
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S.No.888 of 2019
JUDGMENT
This Second Appeal arises out of the judgment and decree dated 25.02.2019 in A.S.No.59 of 2017 passed by the learned Sub Judge, Chidambaram, reversing the judgment and decree dated 05.06.2017 in O.S.No.26 of 2014 passed by the learned District Munsif cum Judicial Magistrate, Parangipettai.
2.The plaintiff is the appellant in this regular second appeal.
3.For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
4.The plaintiff has filed the above suit in O.S.No.26 of 2014 on the file of District Munsif cum Judicial Magistrate, Parangipettai for the following relief:
a. Pass a decree for permanent injunction restraining the defendants, their men, agents and persons claiming right under them, from, in any manner interfering with the plaintiff's peaceful possession, enjoyment of the suit property.2
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5. The defendants 1 to 3 remained ex-parte.
6. The 4th defendant alone filed the written statement resisting the claim of the plaintiff.
7. Based on the materials placed on record the trial Court decreed the suit in favour of the plaintiff. Aggrieved by this, the 4 th defendant preferred the appeal suit in A.S.No.59 of2017 before Sub Court, Chidambaram which had reversed the judgment and decree of the trial Court. Aggrieved by such judgement the plaintiff filed the present second appeal.
8. The second appeal has been admitted on the following substantial questions of law:
1.Whether the first appellate Court is right in negativing the relief of permanent injunction admittedly, the appellant/plaintiff is in absolute possession and enjoyment of the suit property by adducing positive oral and documentary evidence in P.W.1 to P.W.3 and Exhibit A4 to A14?
2.Whether the first appellate Court is a final Court of fact and law, not appreciating the oral and documentary 3 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 evidence adduced by the parties and relied on speculative invalid sale between the defendants 1 to 3 with the 4th defendant and erred in dismissing the suit that the appellant/plaintiff ought to have asked for a declaration of title and injunction instead of permanent injunction suit?
3.Whether the clandestine sale deed obtained by the fourth defendant from the second wife of Masilamani (while his first wife is alive) without possession and without for minors the permission is hit by Guardian and Wards Act and Transfer of property Act is considered as a dispute over title of the suit property?
9. It is the specific case of the plaintiff that the suit property is the ancestral property of Gopalsamy who had two sons namely Masilamani and Ayyanar. After the demise of Gopalsamy and his wife, the property was inherited by Masilamani and Ayyanar. The said Masilamai married one Valli and they had a daughter who died unmarried. Thereafter, Masilamani died in the year 2011 leaving his wife Valli as his only legal heir. The 4 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 plaintiff is the wife of Ayyanar who also died in the same year leaving his wife-the plaintiff, his two sons and a daughter as his legal heirs. The plaintiff is residing in the ancestral joint family house, which is the suit property. Thus, the plaintiff is in possession and enjoyment of the suit property. While so, in the first week of September 2014 the 4 th defendant threatened the plaintiff to vacate the suit house by stating that he purchased the property from the defendants 1 to 3. According to the plaintiff, the defendants 1 to 3 are not the legal heirs of the deceased Masilamani and that the sale deed dated 12.09.2011 is not a valid document and that the said document was created to grab the property from the plaintiff. On 01.10.2014 the 4th defendant attempted to put up fence around the house property. Hence, the plaintiff was constrained to file the suit for permanent injunction as against the defendants.
10. Per contra, the 4th defendant claims that the 1st defendant is the legally wedded wife of Masilamani and defendants 2 and 3 are the children of Masilamani. His further contention is that the suit property is not the ancestral property of Gopalsamy. The suit property is a Natham property 5 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 enjoyed and possessed by Masilamani and so the Government has issued patta in the name of Masilamani as he was alone in possession and enjoyment of entire extent of 0.279 sq. metre in the year 1982 where neither Gopalsamy the father of Masilamani nor Ayyanar the brother of Masilamani had any right or title over the suit property or in the remaining extent of the suit property. The said Gopalsamy and his wife Povunambal were residing in 0.33 cents contained in R.S.No.229 which is the ancestral property of Gopalsamy. Since the paternal uncle of Ayyanar and Masilamani, the brother of Gopalsamy named Venkatesan fired the hut in R.S.No.229/1 for the demand of partition in the ancestral property, a complaint was given by Masilamani on 04.06.2002 in which Masilamani mentioned joint possession with Ayyanar. The name of 1st defendant and the name of plaintiff was also mentioned in the complaint. The said Venkatesan and Masilamani sold their share to one Govindasamy. After the death of her husband Ayyanar the plaintiff sold the shares of her husband in the year 2011. The plaintiff filed a suit against Govindasamy as that she is in possession and enjoyment of the said property in total. The said case ended in favour of purchaser Govindasamy. The plaintiff having sold the said property and now with 6 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 intention to grab the entire extent of Masilamani property has come forward with the vexatious suit by stating that the defendants are not the legal heirs of Masilamani. The sale deed in favour of the 4th defendant executed by the legal heirs of Masilamani for valid consideration is true and valid. The plaintiff is residing in the brick hut of Masilamani only from 2005. After the death of Gopalsamy the family of Ayyanar went to Chennai for their avocation and thereafter, the plaintiff returned back to the native village. The suit property is the separate property of Masilamani. After purchase the defendant was in possession and enjoyment of the suit property by putting fence and dumping haystick. Patta also stands in the name of the 4 th defendant. Hence, prayed for dismissal of the suit.
11.The trial Court by its judgment and decree dated 05.06.2017 has held that since the plaintiff has established her possession and enjoyment in the suit property by oral and documentary evidence she is entitled for the relief of permanent injunction. The trial Court also held that the sale deed in favour of the 4th defendant is not valid.
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12.Whereas, the 1st appellate Court reversed the findings of the trial Court by stating that, the plaintiff has not let in any evidence to prove that the suit property is an ancestral property of her father-in-law Gopalsamy and when the 4th defendant was countered, the plaintiff by way of a sale deed stated that the suit property is a self acquired property of Masilamani, hence a suit for mere injunction does not lie, rather the plaintiff ought to have filed a suit seeking declaration of title.
13.In this second appeal, the learned counsel for the plaintiff submits that the plaintiff is in absolute possession and enjoyment of the suit property and the same is established by oral and documentary evidence adduced on the side of the plaintiff. Where the plaintiff is in lawful or peaceful possession of a property and if 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.
14.His further submission is that, the plaintiff has produced Exs.A4 to 8 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 A.14 documents to establish her possession in the suit property. According to the plaintiff, Patta was issued in the name of the eldest son Masilamani as per local custom. However, patta does not confer title on the defendants. The defendants failed to establish that the suit property is the separate property of Masilamani. The first wife of Masilamani was examined as P.W.4 and thereafter, she was threatened by the defendant and therefore, she did not subject herself for cross examination. The deceased Masilamani and the defendants 1 to 3 were permanently residing at Chennai and they were never in possession of the suit property. The factum of marriage between Masilamani and Valli was not disputed by the defendants. While so, the 1 st defendant claiming to be the legally wedded wife of Masilamani cannot be accepted. The defendants failed to establish that the defendants 1 to 3 are the legal heirs of the deceased Masilamani and also failed to establish better title and possession in the suit property. The sale deed executed in favour of the 4th defendant by the defendants 1 to 3 is only speculative in nature and moreover the sale deed executed on behalf of the minor, the 3rd defendant without sanction from a competent Civil Court is not valid. He would further contend that when a document is valid, no question arises of its 9 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity. Hence, a prayer for cancellation of sale deed in favour of the 4th defendant is not required as the same is a void document. To support his contention, he has relied upon the judgement reported in 2006 (5) SCC 353. The 1st appellate Court without appreciating the above facts in a proper perspective manner, erred in setting aside the well reasoned judgment rendered by the trial Court, which warrants interference by this Court.
15.On the other hand, the learned counsel appearing for the 4th defendant / respondent submits that, where the plaintiff is in possession, but her title to the property is in dispute or under a cloud, or where the defendants assert title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. He would submit that the Hon'ble Supreme Court in catena of decisions clearly held that when there is a denial of title by the defendant or a challenge to the title of the plaintiff which 10 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 raises a cloud on the title of the plaintiff to the suit property, it would only be appropriate that the parties are relegated to institute a suit for declaration of title and seek injunction. To support his contention, he has relied upon the following judgments:
(1) S.A.No.778 of 20052 dated 18.08.2022 (2) Civil Appeal No.722 of 2012
16.The learned counsel for the defendants / respondents would also contend that if the suit is based on title and if the plaintiff failed in proving her title, the suit ought to have been dismissed by the trial Court without regard to the fact that the plaintiff was in possession and whether the defendant had succeeded in proving her title or not. The First Appellate Court has rightly interfered in the findings of the trial Court and dismissed the suit which calls for any interference. The learned counsel for the respondent / defendant relied on the decision in Anathula Sudhakar vs. P.Buchi Reddy reported in (2008) 4 SCC 594 and the decision rendered by this Court in S.A.No.778 of 2005 and submitted that in the absence of declaration of title having been sought for, the suit filed by the plaintiff / 11 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 appellant was not maintainable and liable to be dismissed solely on this ground.
17.Heard on both sides and records perused.
18.The undisputed facts are as follows:
(i) The suit property is 180 sq. meters of land in S.No.360/10 in Ariyakosti Chakkarapani Mandapam Village.
(ii) One Gopalsamy had two sons namely Masilamani and Ayyanar and all three are not alive.
(iii) The plaintiff is the wife of Ayyanar.
19.The contention of the plaintiff is that:
(i) The suit property is the ancestral property of Gopalsamy.
(ii) She is in possession and enjoyment of the suit property.
(iii) The defendants 1 to 3 are not the legal heirs of Masilamani.
(iv) The alleged sale deed in favour of the 4th defendant is only speculative in nature. The defendants 1 to 3 have no right whatsoever to 12 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 execute a sale deed in favour of the 4th defendant.
(v) The 4th defendant is not in possession and enjoyment of the suit property.
20.The contention of the 4th defendant is that
1. The defendants 1 to 3 are the wife and children of Masilamani.
2. The suit property is a Natham land and recognizing his possession and enjoyment in the suit property, patta was issued in his favour and therefore, the suit property is the separate property of Masilamani.
3. The defendant is in possession and enjoyment of the property purchased by him under Ex.A.2 sale deed dated 12.09.2011.
21.Admittedly, the suit property, a piece of land, is situated in Sakkara Palli Mandabam Ariyakoshti Village, Chidambaram Taluk. The dispute between the parties is that the plaintiff claims the subject matter as ancestral property whereas, the 4th defendant claims the same to be a separate property of Masilamani. However, the fact remains, and that is relevant for the purpose of adjudication that the piece of land which forms the subject matter of the suit is in the possession of the plaintiff / appellant. 13 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 The trial Court found that the plaintiff had succeeded in proving her possession over the suit property. On this finding the trial Court issued an injunction restraining the defendants / respondents from interfering with the peaceful possession and enjoyment of the plaintiff / appellant over the suit property. However, the first Appellate Court held that the suit itself was defective in as much as declaration of title which was not sought for though it was in dispute. The Hon'ble Supreme Court in Rame Gowda vs. M.Varadappa Naidu reported in (2004) 1 Supreme Court Cases 769 as held that:
''A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. "Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)". In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. When the defendant fails in proving his title to 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Supreme Court in Puran Singh case, (1975) 4 SCC 518, 527, para 12, has laid down tests which may be adopted as a working rule for determining the attributes of "settled possession".
In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. The person in peaceful 15 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
It is contended by the learned counsel for the defendant-appellant that the suit filed by the plaintiff was based on his title. The suit itself was defective inasmuch as declaration of title was not sought for though it was in dispute. Next, it is submitted that if the suit is based on title and if the plaintiff failed in proving his title, the suit ought to have been dismissed without regard to the fact that the plaintiff was in possession and whether the defendant had succeeded in proving his title or not. We find no merit in both these submissions so made and with force.
5. Salmond states in Jurisprudence (12th Edn.), 16 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 "few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection....
Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term interests of society in general. But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder." (at pp. 265-66) "In English law possession is a good title of right against anyone who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to 17 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law."
(Salmond, ibid., pp. 294-95) "Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit)." (Salmond, ibid., p.
295)
6. The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy¹ Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court.
7. The thought has prevailed incessantly, till date, the 18 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 last and latest one in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwani. In between, to quote a few out of several, in Lallu Yeshwant Singh v. Rao Jagdish Singh³ this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to court and obtain an order for possession before he could eject the lessee. The Court quoted with approval the law as stated by a Full Bench of the Allahabad High Court in Yar Mohd. v. Lakshmi Das (AIR at p. 4):
"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause." (AIR p. 5, para 13) In the oft-quoted case of Nair Service Society Ltd. v. K.C. Alexander this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership 19 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The Court quoted Loft's maxim "Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)" and said:
(AIR p. 1175, para 20) "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time."
In M.C. Chockalingam v. V. Manickavasagam this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale v. Shobha Venkat Rao it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat Singh this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit 20 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful 21 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions.
Illustratively, we may refer to Munshi Ram v. Delhi 22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 Admn., Puran Singh v. State of Punjab10 and Ram Rattan v. State of U.P.11 The authorities need not be multiplied. In Munshi Ram case it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case 10 the Court clarified that it is difficult to lay down any hard-and-fast 23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 rule as to when the possession of a trespasser can mature into settled possession. The "settled possession"
must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession" (SCC p. 527, para 12):
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be 24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession. 10. In the cases of Munshi Ram and Puran Singh 10 the Court has approved the statement of law made in Horam v. R.12 wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.
22.Thus, even when the title is not clear, a suit for bare injunction is maintainable and the question of title will have to be kept open without denying the plaintiff's claim for injunction in view of the fact that the plaintiff has been in possession and there is nothing to show that the 25 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 plaintiff has gained possession by any unfair means just prior to the suit. It is not necessary for the person to claim his injunction to prove his title to the suit land. It would be suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no better title thereof. [Ref: Kallappa Rama Londa vs. Nagappa Aparaj and Others reported in (AIR 1995 KANT 238) ].
23. In this case, the plaintiffs have established their possession in the suit property by adducing oral and documentary evidence. Moreover, only when the title of the plaintiff is under a cloud or in dispute or that she is not in her possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. The trial Court having regard to the averments made in the plaint and the materials placed on record has rightly held that the plaintiff is entitled to the relief of permanent injunction and accordingly, decreed the suit of the plaintiff. No doubt, the question of title of the parties cannot be gone into in a suit for bare injunction as held by the 1st appellate Court. However, what was required to be considered by the 1st appellate Court was as to whether the 26 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 plaintiff, undisputably was in possession of the suit property and has been in lawful possession of the suit property on the date of the suit and as to whether the defendants were attempting to interfere with the possession of the suit property, stating to have better title in the suit property. At the most the question of title ought to have been kept open. The First Appellate Court ought to have relegated the contending parties to file a declaratory suit. The First Appellate Court dismissed the suit of the plaintiff finding it to be perverse. Each of the two contending parties would be at liberty to plead all relevant facts directed towards establishing their titles, as respectively claimed, and proving the same in duly constituted legal proceedings. By way of abundant caution, it is clarified that the impugned judgement shall not be taken to have decided the question of title to the suit property for or against any of the contending parties. Hence, the judgment and decree passed by the First Appellate Court warrants interference by this Court.
24.In this result, the Second Appeal is allowed with costs. However, the parties are relegated to file a suit for declaration of title and seek consequential reliefs.
27 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019
25.The judgment and decree dated 25.02.2019 made in A.S.No.59 of 2017 on the file of the learned Subordinate Judge, Chidambaram is set aside and the judgment and decree dated 05.06.2017 made in O.S.No.26 of 2014 on the file of learned District Munsif cum Judicial Magistrate, Parangipettai is Confirmed. Consequently, connected miscellaneous petition is closed.
28.07.2025 vsn Index: Yes/No Speaking order / Non-speaking order To
1.The Subordinate Judge, Chidambaram
2.The District Munsif cum Judicial Magistrate, Parangipettai
3.The Section Officer, VR Section, High Court, Madras 28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm ) S.No.888 of 2019 K.GOVINDARAJAN THILAKAVADI,J.
vsn Second Appeal No.888 of 2019 C.M.P.No.18707 of 2019 28.07.2025 29 https://www.mhc.tn.gov.in/judis ( Uploaded on: 09/09/2025 02:03:51 pm )