Madras High Court
T.R.Thangappan vs Chitra on 11 February, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1046 of 2007 and M.P.Nos.1 of 2007 and 1 of 2011 T.R.Thangappan .. Appellant vs. Chitra .. Respondent This second appeal is focussed as against the judgment and decree dated 17.04.2007 passed in A.S.No.653 of 2005 on the file of Fast Track Court No.II Additional District Judge, City Civil Court, Madras confirming the judgment and decree in O.S.No.3125 of 2003 dated 14.07.2005 on the file of XII Asst. Judge, City Civil Court, Madras. For Appellant : Mr.V.K.Elango For Respondent : Mr.R.Rajamanickam J U D G M E N T
This second appeal is focussed by the original plaintiff animadverting upon the judgement and decree dated 17.04.2007 passed in A.S.No.653 of 2005 by the l Fast Track Court No.II Additional District Judge, City Civil Court, Madras, reversing the judgment and decree of the learned XII Asst. Judge, City Civil Court, Madras in O.S.No.3125 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. The merits relating to the factual matrix would lie within a narrow campus, which could tersely and briefly be set out thus:
(a) The plaintiff filed the suit seeking the following relief:
- To grant permanent injunction restraining the defendant and her men, agents, servants or any other persons from encroaching or trespassing into the suit property or in any manner interfering with the plaintiff's peaceful possession and enjoyment of scheduled property till the disposal of this suit.
(extracted as such)
(b) The written statement was filed resisting the suit.
(c) Whereupon the trial Court framed the relevant issues.
(d) The plaintiff-Thangappan examined himself as P.W.1 and Exs.A1 to A7 were marked. On the side of the defendant, one Mr.S.Marudamuthu was examined as D.W.1 and Exs.B1 to B6 were marked.
(e) Ultimately the trial Court dismissed the suit as against which appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court.
3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that the Courts below gave an erroneous finding as though the western side owner of the plaintiff's property encroached an extent of 10 feet and as such the suit was a misconceived one, even though absolutely there is no iota or shred, shard or miniscule extent of evidence to justify and fortify such finding by both the Courts below.
4. The following substantial questions of law are found suggested in the grounds of appeal:
"(1) Whether the courts below have properly considered the material evidence in the case while dismissing the suit for injunction filed by the plaintiff?
(2) Whether the courts below have properly applied the law relating to grant of permanent injunction under the Specific Relief Act 1963 when the plaintiff's title to the suit property measuring 26'X62' is admitted and not disputed by the defendant?
(3) Whether the courts below have properly followed the settled principle of law that possession follows title?
(extracted as such)
5. My learned Predecessor framed the following substantial question of law:
"Whether the Courts below are right in holding that a suit for bare injunction without seeking the relief of declaration is not maintainable is correct in the light of the decision rendered in the case of Ramji Rai v. Jagadish Mallah, reported in AIR 2007 Supreme Court 900? (extracted as such)
6. Heard both sides.
7. The learned counsel for the plaintiff/appellant would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(a) Absolutely there is no title dispute involved in this case. The plaintiff would claim title over plot No.21, whereas the defendant would claim title over plot No.22 and plot No.21A. Both are situated to the east of the plaintiff's property. In such a case, the plaintiff was not duty bound to pray for the relief of declaration of title, but both the Courts below fell into error in holding that the suit was bad for want of prayer for declaration of title.
(b) Both the Courts without any evidence, merely based on the ipse dixit of the defendant that the western side owner of the plaintiff's property encroached into the plaintiff's property to an extent of 10 feet East to West, simply gave the finding in support of the defendant warranting interference in the Second Appeal.
(c) The learned counsel also inviting the attention of this Court to the Miscellaneous Petition filed by him for getting an Advocate Commissioner appointed would submit that if the Advocate Commissioner visits the suit property and locates it, then the real facts would come to limelight and that would put an end to this lis.
Accordingly, the learned counsel for the plaintiff/appellant would pray for setting aside the judgments and decrees of the Courts below.
8. In an attempt to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant, the learned counsel for the respondent/defendant would advance his arguments, which could pithily and precisely be set out thus:
(a) In paragraph No.5 of the plaint it is clearly and categorically found spelt out that as on the date of the filing of the suit itself the plaintiff was not in possession of the suit property.
(b) Over and above that adding fuel to the fire, P.W.1 during cross examination admitted that in plot No.22 which the plaintiff claims, a Surveyor of the Tahsildar office informed him that there was encroachment to an extent of 10 feet. In such a case, the plaintiff was not justified in simply filing a suit for injunction.
(c) In the Second Appeal the plaintiff cannot try to fish out evidence by getting an Advocate Commissioner appointed.
Accordingly, the learned counsel for the respondent/defendant would pray for the dismissal of the Second Appeal.
9. The germane facts in nut shell would run thus:
The property concerned is situated in Villivakkam in an approved lay out. The defendant happens to be the owner of the property situated to the east of the plaintiff's property. It is a trite proposition of law that as on the date of the filing of the suit, the plaintiff if at all is in possession of the suit property he could pray for bare injunction and that there should not be any title dispute also existing.
10. At this juncture, I would like to recollect the following decision of this Court reported in 2007(4) CTC 70 [Chinna Nachiappan and another v. PL.Lakshmanan],an excerpt from it would run thus:
"14. Not to put too fine a point on it, right at the outset, I may proceed to refer to the averments in the plaint at paragraph Nos.4,5,6,7 and 8 which unambiguously and unequivocally referred to a serious title disputes between the plaintiff and the defendants. Paragraph No.8 is extracted hereunder for ready reference:
"Though joint patta had been issued to the plaintiff and his pangalis have been and are in possession as per the partition among themselves. Thus the suit property continues to be in the possession and enjoyment of the plaintiff."
15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trait proposition of law that if the plaint itself contains the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a Suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2, Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted hereunder for ready reference:
"2. Suit to include the whole claim Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the Suit within the jurisdiction of any Court."
16. Hence, in this view of the matter, the substantial question of law could rightly be decided to the effect that the original Suit is bad for absence of a prayer for declaration of title."
The aforesaid decision would highlight and spotlight the fact that when there is dispute between the parties relating to title over a specific extent of property, then the prayer for declaration is a must. In this case, even though in very many words the plaintiff did not set out in the plaint that the defendant was disputing his title over plot No.21, virtually the averments in the plaint would adumbrate and also exemplify that relating to a specific area of 10 feet on ground the defendant disputes the title of the plaintiff even though virtually each one might rely upon their respective title deeds. No step was also taken to get the disputed property located. In such a case, in order to obviate all misgivings, the plaintiff should have filed a suit for declaration and for recovery of possession of the suit property and merely filing a suit for injunction would lead to further complications.
11. A cumulative reading of the averments in paragraph No.5 of the plaint with that of the deposition of P.W.1 during cross examination which would run thus:
VERNACULAR (TAMIL) PORTION DELETED would clearly demonstrate and convey that as on the date of the filing of the suit, the plaintiff was not in possession of an extent of 10 feet from east to west in his plot No.21. When such was the position, it is plainly and pellucidly clear that he was under the constraint to seek for removal of encroachment necessarily and the suit should have been framed and filed for declaration and for recovery of possession after removal of superstructure, if any, but that was not done so.
12. The learned counsel for the plaintiff would appropriately and appositely, correctly and convincingly bring a point to my notice that without any evidence both the Courts below based on the ipse dixit of the defendant that the western side owner of the plaintiff's property encroached to an extent of 10 feet east to west into the plot No.21 rendered the finding. When this Court asked the learned counsel for the defendant to pinpoint as to whether there is any evidence placed before the Court below, he in all fairness would admit that of course there is no objective evidence placed before the Courts below, but the version of the defendant was taken into consideration and that the unmarked survey reports are there. I am of the view that the civil Court cannot place reliance simply on oral evidence when documentary evidence as well as other best evidence, could be produced by the parties concerned. As such I could see considerable force in the submission made by the learned counsel for the plaintiff that the findings given by both the Courts below that the western side owner of the plaintiff's property encroached on the western portion of plot No.21 to an extent of 10 feet has to be eschewed as it is not based on any sound reasons. However, in view of my findings supra it is clear that the suit filed for bare injunction was not maintainable and in the Second Appeal relating to such a suit no Advocate Commissioner could be appointed While holding so I am fully aware of the fact that the dispute still subsists and because of technicalities the plaintiff should not be deprived of his right to seek remedy in the proper manner . Hence I would observe that it is open for the plaintiff to file appropriate suit seeking necessary reliefs and also adding necessary parties in the way known to law and that he is also at liberty to get an Advocate Commissioner appointed to get his property located and demarcated. Accordingly, the Second Appeal is disposed of deciding the substantial question of law in favour of the defendant and as against the plaintiff. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
Gms To
1. The Fast Track Court No.II Additional District Judge, City Civil Court, Madras.
2. XII Asst. Judge, City Civil Court, Madras