Madras High Court
Sundaram vs Lakshmikantham on 22 March, 2007
Author: A.C. Arumugaperumal Adityan
Bench: A.C. Arumugaperumal Adityan
JUDGMENT A.C. Arumugaperumal Adityan, J.
1. This appeal has been preferred against the Judgment and decree in A.S. No. 1 of 1996 on the file of the Court of the Subordinate Judge, Thiruvannamalai. The defendant, who lost his defence before the trial Court in O.S. No. 1086 of 1982 but succeeded in the appeal in A.S. No. 1 of 1996 before the Subordinate Judge, Thiruvannamalai against the said Judgment of the first appellate Court, the defendant has preferred this second appeal.
2. The averments in the plaint in brief for the purpose of deciding this appeal sans irrelevant particulars are as follows: The suit is for bare injunction in respect of door No. 56C, Big Street, Thiruvannamalai. The plaint schedule property originally belonged to Kundrakudi Tiruvannamalai Adinam Anjikoil Devasthanam of Kundrakudi. The plaintiff has put up a thatched house over the vacant site at his own cost and has been paying the site rent alone at Rs. 10/- per month from 1974 onwards. The present door number is 46C. Kundrakudi Tiruvannamalai Adinam in its communication in O.Mu.HL.973/80 had recognised the possession of the plaintiff in respect of the suit property. In addition to it, the plaintifif has also produced a ration card issued by the Civil Supplies Department to the plaintiff for door No. 56C. The defendant who has no right or title in respect of the suit property has approached the plaintiff demanding to execute a rent deed in his favour. The plaintiff has informed that he is a tenant in respect of the vacant site under Kundrakudi Tiruvannamalai Adinam but the defendant was insisting the plaintiff to execute the rent deed in favour of him and also trying to remove the plaintiff forcibly from the plaint schedule property, unless the defendant establishes his right over the suit property, he has no locus standi to demand the plaintiff to execute any rent deed in respect of the suit property. Hence to protect his interest in respect of the suit property, the plaintiff has filed the suit for injunction.
3. The defendant has filed a written statement with the following averments:
The suit is not maintainable. The plaintiff is not residing in the suit property. The plaint schedule house is situate in Survey No. 1159/1 which does not belong to Kundrakudi Tiruvannamalai Adinam. The door No. 56C is situate in a road poramboke. One Rajammal Ammal was residing in the house door No. 56C for a long time and was paying municipal house tax to door No. 56C as per the Tax Assessment No. 1847. Subsequent to Rajammal Ammal, the defendant is in occupation of the door No. 56C and he was paying house tax to the Municipality. After the death of Rajammal Ammal, the house tax assessment has been transferred in the name of the defendant. As per the resolution passed by Tiruvannamalai Municipality dated 13.10.1981(Resolution No. 242), the Municipality has recommended for assigning the land in which door No. 56C stands in favour of the defendant. Th plaintiff has no cause of action to file the suit. Hence the suit is liable to be dismissed with costs.
4. On the above pleadings, the learned trial Judge has framed five issues for trial. Before the trial Court, the plaintiff has examined himself as P.W.1 and exhibited Exs A1 to A15. The defendant has examined himself as D.W.1 and Exs B1 to B5 were marked. A Commissioner was appointed in this case to locate the plaint schedule property, who after visiting the property, the learned Commissioner has filed his Report Ex C1 and plan Ex C2.
5. After going through the available oral and documentary evidence let in by both sides, the learned trial Judge has come to a conclusion that the plaintiff has failed to prove that he is in possession of the plaint schedule properpty and accordingly dismissed the suit filed by the plaintifif. Aggrieved by the Judgement of the learned trial Judge, the plaintiff has preferred an appeal in A.S. No. 1 of 1996 on the file of the Subordinate Judge, Tiruvannamalai. The learned first appellate Judge has held that since the defendant has failed to prove his title and possession in respect of the suit survey number property, allowed the appeal filed by the plaintiff thereby setting aside the decree and Judgment of the trial Court granting an order of permanent injunction which necessitated the defendant to approach this Court by way of second appeal.
6. The substantial questions of law involved in this appeal are
1. In the light of the admission of the respondent/plaintiff that the suit property is comprised in Survey No. 1159/1 and in view of the uncontroverted materials that survey No. 1159/1 is a Government Poramboku, whether the Judgment of the Appellate Court which ignores the aforesaid admission is sustainable in law?
2. Whether the Judgment of the Lower Appellate Court which has granted a decree in favour of the respondent ignoring and overlooking the admission of the respondent, which disentitles him to any relief is sustainable in law?
3. Whether the Lower Appellate Court has not committed an error in ignoring a well-settled principle that the respondent /plaintiff has got to succeed on his own merits?
4. In view of the facts and circumstances of the case based on materials, whether the respondent/plaintiff who has come forward with false case is entitled to suitable relief of injunction? 5. Whether the finding of the lower appellate Court that the respondent/plaintiff could be in possession of the property belonging to the Adeenam is not based on surmises and deserves to be set aside in law
7. The Points:
The first appellate Judge in his Judgment at Paragraph 8(typed set page No. 32) has given a reasoning for coming to the conclusion that the plaintiff is not entitled to get an order of permanent injunction by saying that the defendant has failed to prove his possession in respect of the suit property and that the defendant is not the owner of the suit property. The first appellate Court has failed to consider whether the plaintiff is lawful possession of the plaint schedule property and is there any attempt made by the defendant to interfere with the possession and enjoyment of the plaint schedule property by the plaintiff to grant an order of injunction restraining the defendant from interfering with the possession of the plaintiff in respect of the suit property.
7a) On the other hand, the trial Court has meticulously gone into every document produced by the plaintiff and has come to a conclusion that the plaintiff has failed to prove that he is not in possession of the plaint schedule property including Door No. 56C in Big Street, Tiruvannamalai.
7b) A Commissioner was appointed to fix the plaint schedule survey number property on land. The Commissioner in his report Ex C1 at paragraph 2 in crystal clear terms has stated that Survey No. 1159/1 is a road poramboke in which the suit survey Number property is situate. The learned Commissioner has measured the suit property with the help of a Surveyor and has stated that the suit survey number property does not come within T.S. No. 1179/2A or in 1179/2B and that the plaintiff's house door No. 56 C comes within the road poramboke in T.S. No. 1159/1.
7c) The case of the plaintiff is that he is a lessee under Kundrakudi Tiruvannamalai Adinam in the suit land without referring to any survey number. To substantiate his contention that he is a lessee under the said Adinam, he has produced Exs A12,A13 and A14. In Ex A12 receipts for a plot in Kalayana Kinathu Theyru, a sum of Rs. 10/- has been collected from the plaintiff by Kundrakudi Tiruvannamalai Adinam. The Commissioner in his plan Ex C2 has located the plaintiff's house situate in east of Big Street in Road Poramboke. Even though the plaintiff would claim that his house is in Big Street, in Ex C2, the Commissioner has noted that Big Street comes in Survey No. 1177 and not in 1159/1 or in 1179/2A or 1179/2B. According to Plaintiff, as P.W.1, he would claim that he is a lessee under Kundrakudi Tiruvannamalai Adinam even from 1974 onwards and has put up a hut over the land leased out from the said Adinam. But the Commissioner in his report Ex C1 would observe that the hut of the plaintiff over T.S. No. 1159/1 road poramboke seems to be a newly constructed house with Bamboo and coconut dry leaves. The said thatched house of the plaintiff has also been earmarked in Ex C2 plan as situate in road poramboke in survey Number 1159/1. In one place in the pleading in the plaint, the plaintiff has stated his door Number as 46 C whereas in the plaint schedule, he would state that his door Number is 56 C. So far the plaint has not been amended. In Ex A1, the survey numbers mentioned are 1176/2A,1176/2B and 1159/1.
7d) Ex A1 notice has been issued by Kundrakudi Tiruvannamalai Adinam to the plaintiff for the removal of encroachment. The Commissioner in his report Ex C1 has not stated that the plaintiff's hut with door No. 56C is in survey Nos. 1176/2A or 1176/2B or in Survey No. 1159/1. In Ex A3, there is no door number mentioned. Ex A3 has been issued by the Municipality asking the plaintiff to vacate the encroachment from Big Street. Ex A4 is in the name of Jagadambal and not in the name of the plaintiff. Exs A5,A6 and A7 are also in the name of one Jagadambal. It is seen from Ex A8, Jagadambal is the mother of the plaintiff and that they are residing in door No. 56C but no street name is given in Ex A8. In Ex A9, Door No. 56C in the name of resident have been written with carbon pencil but Big Street has been written in Ballpoint pen.
7e) On the other hand, the defendant has produced Ex B2 to show that he is residing in Door No. 56C in which( At this juncture, the learned Counsel appearing for respondent Mr. Lakshminarayanan represents that he has not been served with the papers. Neither this was represented when the matter was heard yesterday nor it was heard in the morning, only a pause over was asked for by the Junior counsel and the matter was paused over nearly half an hour. Mr. Lakshminarayanan wants this Court to record this, even yesterday night , he went to the other side counsel's chamber and requested him to furnish a copy of typed set of papers. The other side counsel Mr. Jinasanan represents that he asked the counsel to come to his house and collect the type set of papers, but he never turned up. I am sorry to state by way of raising his voice, the advocate concerned cannot get favourable orders from this Court without any merit) the municipal tax has been collected from 1973-74 till 1977-78 in the name of Rajammal Ammal and subsequent to that from 1978-79 till 1982-83 in the name of the defendant/appellant Sundaram. Even in Ex A11 ration card produced by the plaintiff which is of the year 1988, the address given in the same is 56C Big Street, Tiruvannamalai but the Commissioner in his report Ex C1 has clearly stated that the plaintiff's house is situate in a road poramboke in Survey No. 1159/1 and not in Big Street.
8. The learned Counsel appearing for the appellant relying on P. Thangavelu v. R. Dhanalakshmi ammal and Ors. 95 Law Weekly,708 and would contend that the plaintiff can succeed in the suit only on his pleading and not lapse on the defendant. The exact observation in the above said dictum runs as follows:
The plaintiff can succeed in the suit for declaration under the plaint as amended only on the basis of a valid title to the property. If he did not have any title to the property, then he cannot pick holes in the title of the defendants and try to succeed. That the plaintiff can succeed only on the basis of the proof of his own allegation in the plaint as regards his title and he cannot suceed by picking holes in the title of the defendants is too well established to need citation of any authority. The plaintiff having failed to make out a case of valid title to the suit property cannot succeed in getting a declaration as prayed for in the plaint. The suit was rightly dismissed by the trial Court, and the confirmation of the decree by this Court cannot be open to any interference.
The abovesaid ratio decidendi applies to the present facts of the case in all four corners. The learned trial Judge after going through the documents produced by the plaintiff as well as the defendant has come to a conclusion that the plaintiff has failed to prove his possession in respect of the suit survey number property more particularly the door No. 56C and has come to a conclusion that the plaintiff is not entitled to get an order of injunction. Under such circumstances, I am of the view that the findings of the learned first appellate Court is necessarily to be interferred with since it is not based on any evidence,but only pick holes on the title of the defendant. Points are answered accordingly.
9. In fine, the appeal is allowed , decree and Judgment in A.S. No. 1 of 1996 on the file of the Court of Subordinate Judge, Tiruvannamalai is set aside thereby decree and Judgement of the trial Court in O.S. No. 1086 of 1982, is restored and the suit is dismissed with costs through out.