Madras High Court
Grace Samuel vs Rani @ Porkilai on 20 February, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.02.2012 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL SECOND APPEAL No.902 of 2001 Grace Samuel ... Appellant/Defendant vs. 1. Rani @ Porkilai 2. Gandhi 3. Devaki 4. Vimala 5. Vanitha 6. Veeramurugan 7. Veerakumar 8. Veerasaravanan ... Respondents/Plaintiffs Second Appeal filed under Section 100 C.P.C. against the Judgment and Decree dated 21.10.1998 made in A.S.No.58 of 1996 on the file of the II Additional District Judge, Pondicherry, confirming the Judgment and Decree dated 25.10.1995 passed in O.S.No.868 of 1992 on the file of the First Additional District Munsif, Pondicherry. For Appellant : Mr.S.K.Rakhunathan For Respondents : Mr.T.R.Rajaraman .. .. .. .. .. J U D G M E N T
The Appellant/Defendant has filed the present Second Appeal as against the Judgment and Decree dated 21.10.1998 in A.S.No.58 of 1996 passed by the Learned Second Additional District Judge, Pondicherry in confirming the Judgment and Decree dated 25.10.1995 in O.S.No.868 of 1992 passed by the Learned First Additional District Munsif, Pondicherry.
2. The First Appellate Court, viz., the Learned Second Additional District Judge, Pondicherry, while passing the Judgment in A.S.No.58 of 1996, has observed that "trespasser is a person in wrongful possession, who has hostile animus against the person, who is entitled to legal possession of the property. By no stretch of imagination, the Respondents can be called as trespassers of the Suit property because, they claim title to the property on the basis of the Agreement for Sale and produce documents prima facie to prove the same. Since they have legal basis to fortify their possession, they cannot be considered as trespassers. Therefore, they would be entitled to perpetual injunction against the Appellant. If the Appellant has got valid title to the property, it is for him to sue the Respondents for eviction. Likewise, if the Respondents seek to enforce the Agreement for sale on the basis of Exs.14 and 15, they will have to file a Suit for Specific Performance. In this bare Suit for injunction, the Respondents having proved their legal possession of the Suit property would be entitled for perpetual injunction till they are legally evicted therefrom" and resultantly, the First Appellate Court dismissed the Appeal with costs, thereby confirming the Judgment and Decree dated 25.10.1995 in O.S.No.868 of 1992 passed by the Learned I Additional District Munsif, Pondicherry.
3. Before the trial Court, in the main Suit, 1 to 4 issues have been framed for determination. On behalf of Respondents/Plaintiffs, witness P.W.1 has been examined and Exs.A1 to A9 have been marked. On the side of the Appellant/Defendant, witnesses D.Ws.1 to 3 have been examined and Exs.B1 to B9 have been marked.
4. The trial Court, on an analysis of the oral and documentary evidence on record, has come to a definite conclusion that the Respondents/Plaintiffs are in possession of the Suit Schedule property and they are entitled for injunction against the Appellant/Defendant and consequently decreed the Suit with costs.
5. At the time of admission of the Second Appeal, the following Substantial Question of Law has been formulated for determination:
"Whether the Courts are precluded from going into the question of prima facie title while granting relief of permanent injunction based on possession?"
The Contentions, Discussions and Findings on Substantial Question of Law :
6. The Learned Counsel for the Appellant/Defendant submits that the trial Court as well as the First Appellate Court have failed to appreciate the fact that the Suit property belonged to Late James Desigar absolutely by means of a Court Auction Sale, and as such, the Respondents/Plaintiffs, who are trespassers cannot have a decree of permanent injunction against the rightful owner.
7. The Learned Counsel for the Appellant/Defendant projects a plea that the Respondent/Plaintiff being trespassers and in unlawful possession of the Suit property are not entitled to get the equitable remedy of injunction protecting their illegal possession through the process of Court.
8. Advancing his arguments, the Learned Counsel for the Appellant/Defendant urges before this Court that the trial Court which tried the two Suits and delivered Judgments on the very same day, viz., O.S.No.868 of 1992, the subject matter of the present Appeal and O.S.No.23 of 1993 in respect of another property of Late James Desigar, the trial Court held that in respect of the Suit property, two different persons are owners of the property, which would clearly establish the non-application of mind on the part of the trial Court.
9. Lastly, it is the submission of the Learned Counsel for the Appellant/Defendant that the Respondents/Plaintiffs claim title to the property on the basis of the Sale Agreement and proved prima facie case and the findings so rendered by the trial court as well as the First Appellate Court in this regard are faulty.
10. In response, the Learned Counsel for the Respondents/Plaintiffs submits that both the Courts below have concurrently held that the Respondents/Plaintiffs cannot be called as trespassers of the Suit property because of the simple fact that they claim title to the property based on the Sale Agreement and they have established to prove their case and since the Respondents/Plaintiffs have proved their legal possession of the Suit property, the relief of perpetual injunction in their favour has been rightly granted, which need not be interfered with by this Court sitting in Second Appeal, at this distant point of time.
11. For better appreciation of the history of the facts, this Court opines that following necessary facts are essential to dispose of the present Second Appeal.
12. The Respondents/Plaintiffs in their Plaint have averred that the first Respondent/first Plaintiff is the Wife of Late Virane and Respondents/Plaintiffs 2 to 8 are her sons and daughters born through Late Virane, who worked as a Fireman in JIPMER, Gorimedu, Pondicherry. The said Virane retired from service during March 1991 and died on 20.07.1991. The Suit property originally belonged to Late Notoire Paul Latouree, who entered into an Agreement for the Sale of the Suit Schedule Item in favour of the deceased Virane on 07.02.1976 and Late Paul Latouree has received an amount of Rs.500/- on the date of the Agreement.
13. The Respondents/Plaintiffs submits that possession has been given in favour of Late Virane. Another sum of Rs.500/- has been given in favour of Paul Latoure on 05.05.1977.
14. It is the case of the Respondents/Plaintiffs that Late Paul Latoure has promised to get permission from the competent authority to sell the plot in favour of Late Virane and further agreed to register a Sale Deed as soon as permission has been accorded. The Plaint Schedule Property is a part of large extent of land which has been converted into 14 plots and the schedule of the property is Plot No.3. Furthermore, Late Paul Latoure has entered into a similar Agreement of Sale in respect of other plots also to and in favour of others. Some plot owners have put up permanent constructions in their plots. In the scheduled items, there is a thatched hut.
15. The Respondents/Plaintiffs have come to know that proceedings under the Land Ceiling Act has been initiated against Paul Latoure and as such, he has instructed his agent one James Desigar to receive another sum of Rs.500/- on his behalf and further directed him to execute a Deed. Accordingly, the said person executed a Deed on 28.03.1982. Later, Paul Latoure and his agent have expired.
16. According to the Respondents/Plaintiffs, they are willing to purchase the plot by paying the balance sale consideration with the legal heirs of Paul Latoure, if they come with necessary title deeds and permission from the Competent Authority.
17. The Appellant/Defendant, who is no way connected with the property disturbs the possession of the property held by the Respondents/Plaintiffs with the help of Odiyan Salai Police and the Respondents/Plaintiffs have given a complaint on 12.12.1992 before the Police, who informed that they can seek the relief before the Civil Court. Therefore, the Respondents/Plaintiffs have laid the Suit for permanent injunction against the Appellant/Defendant, restraining her men or agents or anyone claiming through her from interfering with the possession and enjoyment of the Suit property.
18. The Appellant/Defendant, in the Written Statement, has denied that the Suit property originally belonged to Paul Latoure and that Paul Latoure entered into a Sale Agreement in respect of the Suit property in favour of the deceased Virane on 07.02.1976 and he has received a sum of Rs.500/- on the date of Agreement. The averment that possession has been given in favour of Late Virane, that another sum of Rs.500/- has been given in favour of Paul Latoure on 05.05.1977 and that Paul Latoure has promised to get permission from the competent Authority to sell the plot in favour of Late Virane and further agreed to register a Sale Deed as soon as permission was given are also false.
19. It is the plea of the Appellant/Defendant that Paul Latoure is not the owner of the Suit property since he cannot convey title to the Suit property in favour of Late Virane. Hence, the legal heirs of Paul Latoure cannot convey title in respect of the Suit property to the legal heirs of Late Virane. Moreover, the Suit property initially belonged to James Desigar only and not Paul Latoure, he having purchased the same in the Court Auction Sale on 13.02.1966 for a sum of Rs.8,405/- and the said Sale has been transcribed with the Registrar of Pondicherry on 15.02.1967. James Desigar has been in possession and enjoyment of the property till his expiry on 22.06.1984, leaving one Pushparajan James as well as his brother Soundarrajan James as his sole legal heirs. In O.S.No.900 of 1990, the aforesaid legal heirs have obtained a Decree from the Learned II Additional District Munsif Court, Pondicherry on 13.02.1991. Later, on 11.05.1991, the said Soundarrajan expired, leaving his wife Indira, his son Kennedy and his daughter Saroja as his legal heirs. As such, only Pushparajan James, Indira, Kennedy and Saroja are the legal heirs of James Desigar and they are entitled to possession and enjoyment of the Suit property, because of inheritance. Without any manner of right, Late Virane made attempts to trespass into the Suit property and after his death, the first Respondent/first Plaintiff has trespassed into the Suit property and constructed a hut made of coconut leaves. When their possession has been disturbed, a complaint has been lodged with Station House Officer, Odien Salai and a Lawyer's notice dated 06.08.1990 and 20.04.1991 have been issued. But the Defendant has not issued any reply. Since the Respondents/Plaintiffs are only trespassers and are not in lawful possession of the Suit property, they are not entitled to get the relief of injunction against the lawful owners. The Suit Agreement of Sale cannot be enforced against the owners of the Suit property based on the plea of limitation. There is no legal right in favour of the Respondents/Plaintiffs and no legal injury caused by the Appellant/Defendant. Therefore, the Suit is liable to be dismissed.
20. The term 'trespass' is a wrong in another's possession and the proper person to sue is the person who is in actual or constructive possession. Every trespass will not amount to dispossession as opined by this Court. The term 'dispossession' applies only to a case when the person in enjoyment of land has, by the act of some person, altogether lost his dominion over the land itself or the receipt of its profits, as per the decision in Gobind Lall Seal and others vs. Debendranath Mullick reported in (1881) ILR 6 Cal. 311.
21. This Court aptly points out a decision reported in (1908) 19 MLJ 309 (Sundra Vs. Govinda), wherein, it is held that "In order to constitute dispossession, there must in every case based on acts which can be referred only to the intention of acquiring exclusive control".
22. This Court worth recalls a decision of the Honourable Supreme Court reported in AIR 1989 SC 2097 (Krishna Ram Mahale (Dead), by his L.Rs. vs. Shoba Venkat Rao), wherein, it is held that "where the possession of such a person has been peaceful, long, anterior or accomplished and he has been in settled possession of property with no right to remain in his possession or has acquired ownership by adverse possession, he cannot be ousted or dispossessed by a owner of the property except by due process of law".
23. Apart from the above, this Court cites a decision in Narayanappa vs. Hanumanthappa reported in (1931) MWN 487, wherein, it is held that "a person in long anterior and peaceful possession at the time of threat of dispossession is until the control is shown entitled to maintain his possession against all, but the true owner".
24. Admittedly, the present Suit has been filed by the Respondents/Plaintiffs seeking the relief of bare injunction only. Before the trial Court, on behalf of the Respondents/Plaintiffs, Exs.A14 to A17 have been marked. It transpires that there has been an Agreement of Sale relating to the Suit property by Paul Latoure to and in favour of Late Virane, the husband of the first Respondent and James Desigar has been aware of the said fact and has also received Rs.500/- by means of Ex.A15 as sale consideration. Where a person is entitled to get the relief of Specific Performance on the basis that there has been a valid Sale Agreement in favour of Late Virane cannot be gone into in a Suit for injunction. A Court of Law in a Suit for injunction is to look into the aspect of possession of the Respondents/Plaintiffs as a prima facie evidence.
25. The main thrust of arguments put forward by the Learned Counsel for the Appellant before this Court is that a trespasser in law is not entitled to get the relief of perpetual injunction against the real owner of the property. But, an important fact which has to be borne in mind is that the Respondents/Plaintiffs in the present Suit Plaint averments have clearly averred that they claimed title to the property by virtue of the Sale Agreement. They can justify or protect their possession, if they are considered to be trespassers in an approprite proceedings. It is for the Appellant/Defendant to establish his legal and valid title to the property and to evict the Respondents/Plaintiffs from the Suit property by means of due process of law. In a similar fashion, if the Respondents/Plaintiffs are to enforce an Agreement of Sale on the basis of Exs.A14 and A15, they have to file a Suit for Specific Performance only.
26. In the instant case on hand, the Respondents/Plaintiffs have established their legal possession. Therefore, they are entitled to get the relief of injunction as prayed for in the Plaint. At this juncture, it cannot be lost sight of that in a Suit for injunction, primarily, a Court of Law is not entitled to traverse in detail regarding the controversy pertaining to the title of the Suit property. However, the issue of title can be gone into incidentally, in the considered opinion of this Court.
27. Also, in the present case, it is the contention of the Learned Counsel for the Respondents/Plaintiffs that necessary proceedings have been issued against Paul Latoure as per the Land Ceiling Act and further, in some plots, permanent construction has been raised. It is not in dispute that the Schedule of a property is a portion of a larger/wider extent of land, which has since been converted into 14 plots and Plot No.3 has been agreed to be sold to Late Virane.
28. The case of the Respondents/Plaintiffs is that the said Virane has been put into possession of the property and an assurance/promise has been given by Paul Latoure that he will obtain permission from the competent authority to sell the property.
29. Be that as it may, as far as the present case is concerned, both the trial court as well as the First Appellate Court have clearly come to a categorical conclusion that the Respondents/Plaintiffs are in possession of the Suit property. Indeed, in a Suit for bare injunction, the ambit of the Suit is very much limited and a Court of Law is enjoined upon to find out as to the possession of the property by the Respondents/Plaintiffs. As stated supra, since the Respondents/Plaintiffs are found to be in possession of the Suit property as on date of filing of the Suit. As such, this Court comes to an irresistible and inescapable conclusion that the Respondents/Plaintiffs are entitled to get the relief of injunction till they are duly evicted from the Suit property except by a due process of law. It cannot be gainsaid that if the Respondents/Plaintiffs are to enforce the Sale Agreement by means of Exs.A14 and A15 in law, they have to lay a Suit for Specific Performance.
30. Looking at from any angle, on going through the Judgment and Decree of the trial Court in O.S.No.868 of 1992 dated 25.10.1995 and that of the First Appellate Court in A.S.No.58 of 1996 dated 21.10.1998, this Court does not find any material error or patent illegality committed by the Courts below. Also, there is no misreading of evidence and also there is no perversity of approach by both the Courts below in arriving at a concurrent finding of fact, which requires no interference by this Court sitting in Second Appeal.
31. In law, there is no need for both the trial Court as well as the Appellate Court to go into the question of prima facie title either substantially or materially in a Suit for bare injunction simpliciter and the issue of title can be traversed or looked into by the trial Court as well as by the First Appellate Court either ancillarily or incidentally and accordingly, the Substantial Question of Law is so answered. The Second Appeal is devoid of merits and consequently, it fails.
32. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court dated 21.10.1998 in A.S.No.58 of 1996 on the file of the Learned II Additional District Judge, Pondicherry and the trial Court dated 25.10.1995 in O.S.No.868 of 1992 on the file of the First Additional District Muncif Court, Pondicherry are affirmed by this Court for the reasons assigned in this Appeal.
33. It is made clear that the dismissal of the Second Appeal by this Court will not preclude the parties herein to work out their remedies before the appropriate Courts either for the relief of Specific Performance or for any other relief in the manner known to law or in accordance with law.
abe To :
1. The Fist Additional District Muncif, Pondicherry.
2. The Second Additional District Judge, Pondicherry