Madras High Court
D. Anjappa vs Marappa on 3 June, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.06.2014 Coram THE HONOURABLE MR.JUSTICE R.KARUPPIAH S.A.No.642 of 2005 1.D. Anjappa 2. C.Anjappa 3. Gowramma 4. Anjappa 5. Munirathinam .. Appellants Vs. Marappa .. Respondent Prayer:- Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and decree dated 28.06.2004 made in A.S.No.13 of 2003, on the file of Subordinate Court, Hosur, in which partly reversing the judgment and decree dated 29.06.2001 made in O.S.No.125 of 1998 on the file of District Munsif Court, Denkanikottai. For Appellants : Mr.V.Raghavachari For Respondent : Mr.T.Pappaiah Dharmaraj JUDGMENT
The appellants, who are the defendants in the original suit filed this second appeal against the Judgment and decree dated 28.06.2004 made in A.S.No.13 of 2003, on the file of Subordinate Court, Hosur, wherein partly reversing the judgment and decree dated 29.06.2001 made in O.S.No.125 of 1998 on the file of District Munsif Court, Denkanikottai.
2. For the sake of convenience, the defendants in the original suit are referred as appellants and the plaintiff in the original suit is referred as respondent hereafter.
3. The respondent/plaintiff filed a suit for declaration and permanent injunction. Briefly the case of the respondent is that the suit property item-1 is Poramboke land belongs to the Government and it is assessed as waste dry land. Originally the above said item No.1 was in possession and enjoyment of the respondent's father namely Chandirappa @ Sanjeevappa. After his death, the respondent is in possession over the suit property. The respondent growing ground nut and other crops in the above said property. The respondent also had patta lands adjacent to the suit property and in the patta land, the respondent had dig a well through which taking water and cultivating item 1 of the suit property. The respondent also paying B-memo charges to Government and in the Adangal Register stands in the name of respondent. The suit item No.2 is odai Poramboke land and it is also belongs to Government. The respondent is in possession and enjoyment of the suit item 2 and also paying S.T.Charges to the Government. Therefore, the respondent is absolute possession and enjoyment of both the suit properties. The 1st appellant purchased portion of patta land from the respondent and the appellants offered to purchase the suit properties, but, the respondent declined to sell the same. Hence, the appellants have denied the title and disputed the possession and enjoyment of the respondent. Hence, the suit.
4. The appellants have filed a detailed written statement and in which, it is stated that the boundaries on the East and West of item No.1 are wrongly given instead of krishnappa patta land on the east and podiappa land on the west. Likewise the boundaries on the east, west and north of item No.2 are wrongly given instead of third respondent/third defendant patta land on the east Veera padrappa poramboke land on the west and pappanna land on the north. The respondent has not disputed that the suit item No.1 is assessed waste dry land and it was originally in possession of the respondent's father and after that the respondent herein was in possession till October 1991. According to the appellants, the respondent is not at all in possession of suit item No.1 from October 1991 onwards and the respondent does not have landed property to the vicinity of the suit properties. Further, the respondent and his father sold all the adjacent properties under various sale deeds dated 24.01.1983, 26.10.1984, 21.08.1986 and 14.03.1988, in favour of the appellants 3 and 4 and therefore, neither the respondent nor respondent's family own or possess any landed property anywhere surrounding the suit properties. Further, the alleged well does not belongs to the respondent. The respondent has not paying B-memo charges to the Government in respect of the suit properties and only the appellants have paid 2A charges to the Government till 1997, in the name of 4th appellant. The respondent influenced the revenue authorities and wrongly made in Adangal records. Further, the alleged B-memo receipts not related to the suit properties. Out of total extent of 0.75 acres, in item 1, one Lagumappa is in possession of 20 cents on the north and the appellants are in possession of 0.55 acres on the south. Since the respondent sold away all his patta lands, the respondent has given up his possession of suit item 1 in favour of 3rd appellant, by way of Muchalika dated 12.10.1991 and therefore, the respondent is estopped from questioning the possession of suit item No.1 and the appellants alone in possession from 1986 onwards. It is true that the suit item 2 is odai Poramboke. The appellants owns and possessed patta lands on the east side of the suit item 2 and they are in occupation of suit item 2, to an extent of 55 cents of Poramboke land approximately along with patta lands. The alleged S.T.Charges collected from the respondent could not be the trees in the suit item 2. According to the appellants, they built a Mangalore tiled house in suit item 2 about 10 years ago and they are in possession over the said property. Since the suit properties are Government Poramboke lands there is no possibility of the respondent sold the same to this appellants. Further, it is false to state that the appellants attempted to trespass the suit properties on 10.08.1988. The valuation and Court fee paid in the suit is also not correct. Therefore, the respondent is not entitled any relief as prayed for in the plaint.
5. The trial court on the basis of the above said pleadings framed four issues. On the side of the respondent examined four witnesses as PWs 1 to 4 and marked four documents as Exs.A1 to A4. On the side of the appellants examined three witnesses as DW1 to DW3 and marked six documents as Exs.B1 to B6.
6. The trial court has considered the above said oral and documentary evidence and decreed the suit as prayed for by the respondent. Aggrieved over the above said decree and judgment passed by the trial court, appellants preferred the first appeal in A.S.No.13 of 2003. The first appellate court set aside the relief of declaration granted by the trial court, but confirmed the permanent injunction granted by the trial court and thus, partly allowed the first appeal. Aggrieved over the relief of permanent injunction granted by the first appellate court, the appellants, who are the defendants in the suit alone preferred this second appeal. The respondent/plaintiff has not preferred any appeal as against the rejection of relief of declaration by the first appellate court.
7. This Court admitted the second appeal on the following substantial question of law :-
"Whether the lower appellate court is right in granting a decree of injunction while denying the primary relief of declaration ?"
8. Heard the learned counsel appearing on either side and perused the materials available on records.
9. The respondent/plaintiff filed a suit for declaration and permanent injunction in respect of two items of suit properties. The 1st item of suit property is Survey No.104/2, to an extent of 0.30.0 hectare padugai Poramboke dry land and 2nd item of suit property consists of nine fruit yielding coconut trees and six coconut saplings in Survey No.103 odai Poramboke. The learned counsel appearing for the appellants submitted that both suit properties are admittedly Poramboke lands and the title vest only with the Government and hence the respondent is not entitled to the relief of declaration as prayed for in the suit. The learned counsel further pointed out that the respondent is not entitled to any relief especially, when the property belongs to the Government and the Government is not impleaded as a party in the suit. Therefore, the respondent/plaintiff is not entitled to any relief of declaration as rightly held by the first appellate court. The learned counsel appearing for the appellants further submitted that without considering the contention of the appellants, the trial court has granted both the relief of declaration and injunction but, the first appellate court has accepted the contention of the appellants that unless the owner of the property i.e., Government not impleaded as a party, the respondent/plaintiff is not entitled to the relief of declaration. Therefore, the first appellate court rejected the main relief of declaration but, the first appellate court has wrongly granted the consequential relief of permanent injunction alone and hence, it is illegal.
10. Per contra, the learned counsel appearing for the respondent would submit that even though, the relief of declaration was rejected by the respondent, the first appellate court has correctly considered the possession over the suit properties and granted the relief of permanent injunction against the appellants, who are third parties and therefore, the above said findings of the first appellate court is not perverse or illegal.
11. The learned counsel appearing for the appellants submitted that if the main relief of declaration is dismissed, the consequential relief of injunction alone cannot be granted. To that effect, the learned counsel for the appellants relied on the following decisions. Firstly the decision of the Hon'ble Supreme Court reported in (2006) 12 SCC 709 (State of Punjab and another v. Balkaran Singh), in which para 17 reads as follows:-
"17. Once the prayer for declaration sought for in the suits is found to be barred by limitation, it has to be noticed that the prayer that follows is only consequential on the relief of declaration. That prayer is to the effect that the plaintiff is entitled to the pay scale of Rs.1200-1850 as against the scale of pay of Rs.940-1850 with effect from 1.1.1978 and entitled for payment of all other service benefits including yearly increments, arrears and interest thereon at the rate of 18 per cent per annum up to the date of payment with effect from 1.1.1978. It must be noticed that there is no independent prayer for recovery of arrears of pay and the prayer is couched in such a manner that it can be understood only as consequential on the grant of the first relief. In other words, it is not an independent relief that could be granted even if the main prayer is declined. In that view, it has to be held that a consequential relief could not be granted in view of the fact that the main relief of declaration sought for has been held to be barred by limitation.''
2. 2004 (1) SCC 769 (Rame Gowda (dead) by Lrs., v. M.Varadappa Naidu(dead) by LRs., and another), in which, para 11 reads as follows:-
''11. In the present case the trial court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.''
3. 2008 (6) MLJ 597 (Udayakumar and others v. [email protected]), in which para 21 as follows:-
''21. The relief of injunction sought forby the plaintiff is consequential to the declaratory relief and when the larger relief was negatives, the consequential relief ought not to have granted."
4. 1998 (2) LW 171 (The State of Tamil Nadu represented by the District Collector, Thiruchirappalli v. K.Purushothaman), in which para 15 reads as under:-
''15. Plaintiff has also sought for injunction restraining the Government from interfering with plaintiff's possession and enjoyment of the suit property. The suit is not for injunction alone. The prayer for injunction is consequential. If the plaintiff is not entitled to get the declaration sought for, naturally, the consequential relief which flows from the main relief, also cannot be granted. Therefore, for the reasons stated above, the judgments of both the Courts below are set aside. The suit is dismissed.''
12. Per contra, the learned counsel appearing for the respondent relied on a decision of this Court reported in AIR 1968 SCC 1165 (Nair Service Society Ltd., v. K.C.Alexander and others), in which, para 17 reads as under:-
17. .... Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessor suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which, the question of title could be raised.''
13. As rightly pointed out by the learned counsel appearing for the appellants, the facts of the above said decision relied on by the learned counsel for the respondent are not applicable to the facts of the present case. In the above said case, the plaintiff has not seeking relief of declaration and consequential relief of permanent injunction as pleaded in the present suit. The above said suit is filed only for possession, mesne profits alone and not seeking relief of declaration and consequential relief of permanent injunction as prayed for in the present suit. Further, in the present suit, the first appellate court rejected the prayer of declaration and the above said finding was not challenged by the respondent and therefore, the above said finding becomes final. In the above said circumstances, the above said decisions are not helpful to the respondent.
14. The learned counsel appearing for the respondent also relied on another decision of Bombay High Court, reported in AIR 1951 Bombay 380 (Fakirbhai Bhagwandas and another v. Maganlal Haribhai and another). On a perusal of the decisions revealed that the facts of the above decision is not applicable to the facts of the present case. In the above said decision, in para 11 it is clearly stated as ''This is the title of the plaintiffs to the suit land and we are satisfied that the plaintiffs have succeeded in establishing the same''. Further, the above said suit is not filed for declaration and consequential relief of permanent injunction as prayed for in the present suit. Therefore, the above said decision is not applicable to the facts of the present case as rightly pointed out by the learned counsel appearing for the appellants. From the above said decisions relied on by both sides revealed that the consequential relief of permanent injunction alone cannot be granted while the main relief of declaration was rejected by competent Court.
15. The learned counsel appearing for the appellants further submitted that the respondent himself admitted that the suit properties belongs to the Government. In the above said circumstances, the respondent/plaintiff filed suit for declaration and consequential relief of permanent injunction, only against the appellants but not impleaded the owner of the property (i.e.,) Government and on that ground alone, this suit is not maintainable. To substantiate the above said contention of the appellants, the learned counsel appearing for the appellants relied on a decision of this Court reported in MANU/TN/2594/2009 in S.A.No.1329 of 1995 (Barbers represented by their Representatives, Gopalakrishnan and Pavadaisamy v. Kalyanasundaram), dated 10.09.2009, in which, in para 16 reads as under:-
"16. When it is clear from the Government records that the suit property is a Government Poramboke the plaintiffs ought to have impleaded the Government, as a party to the suit. Non impleading of a necessary party is fatal to the maintainability of the suit. Further, it is found that Jaganatha Pandithar the father of the plaintiff has requested for a patta being granted to him in respect of the suit property. However, the request had been rejected on the ground that the suit property is a Government Poramboke. While so, it is not open to the plaintiffs to claim customery rights of fishing and of using the pond, which is said to be known as Ambattam Kuttai'', in the suit property, without impleading the Government as a party.''
16. As rightly pointed out by the learned counsel appearing for the appellants, the respondent filed the above suit seeking relief of declaration of title over the suit properties and also consequential relief of permanent injunction without impleading the admitted owner of the property i.e., Government as a party in this suit. Further, the first appellate court rejected the main relief of declaration but, the respondent has not challenged the above said finding. In the above circumstances, the suit filed by the respondent without impleading Government as a party is not maintainable, as rightly contended by the learned counsel appearing for the appellants. Therefore, the decree and judgment passed by the first appellate court granting consequential relief of permanent injunction alone while denying the preliminary relief of declaration of title is not valid in law and also perverse finding as contended by the learned counsel appearing for the appellants and therefore, the second appeal is liable to be allowed and answered the substantial question of law accordingly.
17. In the result, the second appeal is allowed and the consequential relief of permanent injunction alone granted by the first appellate court is set aside and the original suit filed by the respondent is dismissed. No order as to costs.
03.06.2014 Index: Yes / No Internet: Yes / No ssn To
1. The Subordinate Court, Hosur.
2. The District Munsif Court, Denkanikottai.
R.KARUPPIAH, J., ssn Judgment in S.A.No.642 of 2005 03.06.2014