Madras High Court
Muthu Pillai vs Kasi Pillai on 6 July, 2015
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.07.2015 CORAM THE HONOURABLE MS. JUSTICE R.MALA S.A.No.1884 of 2004 and C.M.P.Nos.15136 of 2004 and 143 of 2015 Judgment reserved on 30.06.2015 Judgment pronounced on 06.07.2015 1.Muthu Pillai 2.Vinayagam .. Defendants/Appellants/Appellants Vs 1.Kasi Pillai 2.Varadhan .. Plaintiffs/Respondents/Respondents Prayer: Second appeal filed under Section 100 of CPC against the Judgment and Decree dated 26.03.2004 in A.S.No.23 of 2000 on the file of the learned Additional District Judge, Fast Track Court-II, Kancheepuram, confirming the Judgment and Decree dated 24.12.1999 in O.S.No.157 of 1999 on the file of the District Munsif Court, Uthiramerur. For Appellants : Mr.Y.Jyothish Chander For Respondents : Mr.B.Vijayakumar JUDGMENT
This second appeal arises out of the Judgment and Decree 26.03.2004 in A.S.No.23 of 2000 on the file of the learned Additional District Judge, Fast Track Court-II, Kancheepuram, confirming the Judgment and Decree dated 24.12.1999 in O.S.No.157 of 1999 on the file of the District Munsif Court, Uthiramerur.
2.The averments made in the plaint are as follows:-
The suit property is a Natham Poromboke. The plaintiffs have put up a hut for their dwelling purpose as late in the year 1965 and they are in possession and enjoyment of the suit property measuring East to West 60 feet and North to South 100 feet. The plaintiffs were also paying the property tax for the said hut. The Special Tahsildar, Natham Survey, Uthiramerur, issued patta in favour of the first plaintiff in the year 1996. While so, on 05.10.1997 the defendants who have no manner of right, title or interest over the suit property, attempted to interfere with the peaceful possession and enjoyment of the plaintiffs and removed the Velikathan trees from the suit proeprty. The plaintiffs have also lodged a police complaint against the defendants. The plaintiffs have also apprehend that the defendants would interfere with their peaceful possession and enjoyment of the suit property. Hence, they filed a suit for permanent injunction restraining the defendants and their men from in any manner interfering with the plaintiffs' peaceful possession and enjoyment of the suit property.
3.The gist and essence of written statement filed by the first defendant which was adopted by the second defendant are as follows:
The classification, survey number, boundaries and the measurements given in the plaint are incorrect. The suit filed against the defendants is not maintainable as the property purchased by the first defendant situated at No.46, Uthiramerur Somanathapuram comprised in Punja S.No.1222/9 in Patta No.2784. The Gramanatham whole survey number is 1228/1 and the new survey number is 1757/4 and there is no Gramanatham in S.No.1222/9 as described in the plaint schedule. It is false that the plaintiffs have put up a hut for dwelling purpose as late in the year 1965. The first defendant purchased an extent of about 0.7-1/2 cents on 04.07.01997 comprised in Punja S.No.1222/9 measuring East to West 14'' North to South 179''. Ever since the date of purchase, the first defendant is in possession and enjoyment of the said property and the plaintiffs have no right in the Punja S.No.1222/9 at all. The plaintiffs have obtained interim injunction against the defendants by giving wrong classification in respect of punja S.No.1222/9. Further, the defendants have filed Chitta for Fasli 1407 in respect of Punja S.No.1222/9 issued by the Village Administrative Officer, Uthiramerur Town, Patta No.2784 standing in the name of the defendants' vendor and the documents filed by the plaintiffs do not relate to S.No.1222/9. Hence, he pray for dismissal of the suit.
4.The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1, D.W.1, D.W.2 and Exs.A1 to A6 and Exs.B1 to B3, decreed the suit. Aggrieved against the judgment and decree of the trial court, the defendants preferred an appeal in A.S.No.23 of 2000 on the file of the learned Additional District Judge, Fast Track Court-II, Kancheepuram.
5.The learned First Appellate Court has considered the argument advanced on either side and framed necessary point for consideration and confirmed the Judgment and Decree passed by the Trial Court and dismissed the appeal. Against the Decree and Judgment of the first Appellate Court, the present second appeal has been preferred by the defendants.
6.At the time of admission of the above second appeal, the following substantial questions of law were framed for consideration.
"(i)Whether the Courts below were right in interpreting that Ex.B1 does not relate to S.No.1222/9 at all which is a patent mistake in appreciation of available evidence on record?
(ii)Whether the Courts below were right in not considering Ex.A1 and evidence of D.W.2 in its proper perspective?
(iii)Whether the Courts below were right in not considering Exs.C1 and C2 properly and granting decree for injunction for larger extent of boundaries (22.5 cents) more than the suit schedule which is of 13.5 cents?"
7.Challenging the concurrent judgment and decree of both the Courts below, the learned counsel for the appellants/defendants would submit that the suit property is a Gramanatham and the plaintiffs were in possession and enjoyment of the same and patta has been issued. But the appellants attempted to interfere with their possession and hence, the plaintiffs filed a suit. But whereas the plaintiffs have not let in any evidence that the first plaintiff was an adopted son of Poochandra Pillai and he got the property by inheritance and he was in possession and enjoyment of the suit property. That factum was not considered by both the Courts below. He further submitted that the First Appellate Court has held that the appellants herein has not proved that they purchased the property under Ex.B1 was related to S.No.1222/9 and granted the decree. But, both the Courts below have failed to consider that the respondents/plaintiffs must prove their case and should not sought for decree on the basis of the defects and loopholes in the case of the defence. He would further submit that the appellants filed the document Ex.B1 and also filed the written statement to show as to how they got the property.
8.Originally, the suit property belongs to one Ananda Pillai and he is having three sons, namely, Gopal Pillai, Poochandra Pillai and Munusamy. Raja Pillai is the son of Munusamy Pillai, who was examined as D.W.2 to substantiate the defence. The total extent of property in Punja Survey No.1222/9 is 22-1/2 cents and each entitled to 7= cents. Munusamy Pillai has relinquished his right in the property to Poochandra Pillai and so, he is entitled to 15 cents. Gopal Pillai is entitled to 7-1/2 cents. The daughter of Gopal Pillai is Muthammal, her husband is Balarama Pillai and they are having two sons and two daughters, namely, Pachayappan, Chinnakulandai, Kasiammal and Sakunthala, from whom, he purchased the property under Ex.B1. During the lifetime of Poochandra Pillai, he executed the settlement deed on 14.12.1968 in favour of his daughters, namely, Chellammal, Melkatammal and Rajammal. In S.No.1222/9, 14-1/2 cents has been given to Chellammal. Her husband is Muniya Pillai and their children are Kasi Pillai/1st plaintiff, Rajendran and Varadhan/2nd plaintiff and they have filed a suit. Even though in the plaint it was stated that they are entitled to only 13-1/2 cents, the Trial Court has decreed the suit in respect of entire 22-1/2 cents without considering the fact that the classification of property, description and boundaries are wrong. Hence, he pray for setting aside the judgment and decree of both the Courts below.
9.At the time of filing the appeal, the learned counsel appearing for the appellants filed a petition in C.M.P.No.15136 of 2004 under Order 41 Rule 27 CPC for reception of additional evidence stating that in paragraph No.18 of the Appellate Court judgment, the Appellate Judge has held that Survey number has been different from suit survey number and to prove that the property mentioned in Ex.B1 is S.No.1222/9, he filed the registration copy of the document. Hence, he prayed for allowing the petition.
10.During the pendency of the appeal another petition in C.M.P.No.143/2015 under Order 41 Rule 27 CPC has been filed for reception of additional evidence stating that to prove that Poochandra Pillai executed the settlement deed in favour of his daughters, Chellammal, Melkatammal and Rajammal, registration copy of the settlement deed has been filed and to prove that the respondents/plaintiffs have not come to the Court with clean hands. Both the Courts below have deviated from the pleadings of the respondents/plaintiffs. Hence, he pray for allowing the petition and also setting aside the judgment and decree of both the Courts below. To substantiate his arguments, the learned counsel appearing for the appellants relied upon the following decisions:
1.2014 (2) CTC 421 (Ratna Kounder vs. Annamalai and others) 2.2006 (2) CTC 24 ((Lalitha and another vs. Selvaraj) 3.2000 (3) LW 521 (Kamalammal and 3 others vs. Indirani Ammal) 4.2004 (3) CTC 682(Jayaramdas and Sons vs. Mirza Rafatullah Baig and others)
11.Resisting the same, the learned counsel appearing for the respondents would submit that the plaintiffs filed the documents, Exs.A1 to A6. Patta issued in favour of the first plaintiff/first respondent was marked as Ex.A2. The respondents/plaintiffs have constructed two tiled house and house tax receipts were marked as Exs.A3 and A4, Kist receipt was marked as Ex.A5 and Adangal was marked as Ex.A6. That factum was rightly considered by both the Courts below and came to the correct conclusion. He further submitted that the suit is maintainable since the appellants themselves admitted that the plaintiffs are entitled to 14-1/2 cents and the Commissioner report also prove the same. Hence, he prayed for dismissal of the appeal.
12.Considered the rival submissions made on both sides and also perused the typed set of papers.
13.The genealogy is necessary for the disposal of the case, which is as follows:
Ananda Pillai |
-------------------------------------------------------------------------------------
| | |
Gopala Pillai Poochandra Pillai Munusamy Pillai
| | |
Muthammal ------------------------------------------ Raja Pillai
= | | |
Balarama Pillai (Husband) Chellammal Melkatammal Rajammal
| =
------------------------------------------------ Munipillai (Husband)
| | | | |
Pachyappan Chinnakulandai kasiammal Sakunthala ---------------------------------
| | |
Kasipillai Rajendran Varadhan
(1st plaintiff) (2nd plaintiff)
14.First, this Court has to decide whether C.M.P.No.15136 of 2004 is liable to be allowed and whether the document is necessary for disposal of the appeal. Likewise the petition in C.M.P.No.143 of 2015.
15.According to the appellants, the suit property belongs to one Ananda Pillai and he is having three sons, namely, Gopal Pillai, Poochandra Pillai and Munusamy. Raja Pillai, son of Munusamy was examined as D.W.2. Gopal Pillai had no male issues and had one daughter, Muthammal. Her husband is Balarama Pillai and they had four children, namely, Pachayappan, Chinnakulandai, Kasiammal and Sakunthala. Poochandra Pillai had three daughters, Chellammal, Melkatammal and Rajammal. Chellammal's husband was Muniya Pillai and they had three sons, Kasi Pillai, Rajendran and Varadhan. The appellants herein have purchased the property from the legal heirs of Muthammal and Balarama Pillai under Ex.B1 on 04.09.1997. To prove that the property originally belonged to Ananda Pillai, D.W.2 was examined. D.W.2, in his evidence, has stated that the suit property was owned by Gopal Pillai, Poochandra Pillai and Munusamy. The total extent of land is 22-1/2 cents and each entitled to 7-1/2 cents. In his cross examination, he has stated that after purchase by the appellants, they were in possession and enjoyment of the same. D.W.2 is the attestor of Ex.B1. The genealogy is proved by way of examining D.W.2. But, admittedly, in the Appellate Court judgment, in paragraph No.18, it was stated as follows:
18...........It is not in respect of S.No.1222/9. But it is in respect of S.No.1220/9 or 1229/9 S.No.1220/9 or 1229/9 has been corrected as S.No.1222/9. Therefore, it did not relate to the Schedule mentioned property.
16.In Ex.B1, there was over writing in survey number and hence, the First Appellate Court has given the above finding. Hence, to rectify the defect that the appellants purchased the share of Gopal Pillai from his legal heirs under Ex.B1, registration copy of Ex.B1 has been filed. Hence, to dispose of the case, additional evidence is necessary. So, I am of the view that petition is liable to be allowed. The registration copy of Ex.B1 is marked as Ex.B4.
17.C.M.P.No.143/2015 is concerned, the learned counsel appearing for the appellants would submit that in the plaint pleadings, the plaintiffs have stated that they got the property by way of enjoyment and patta has been issued in their favour. To prove that the appellants got the property from Chellammal, who in turn got the same from her father Poochandra Pillai, settlement deed is necessary to establish the case and to prove that the respondents/plaintiffs have not come to the Court with clean hands. It is true that as per Order 41 Order 27 CPC for reception of additional evidence, the respondents/plaintiffs should establish three ingredients and then only, they were entitled to mark the same. The three ingredients which are essential are as follows:
(a)the evidence has been tendered by him before the Trial Court and that has been refused to admit;
(b)Based on his due diligence, he is entitled to obtain and produce before the Trial Court; and
(c)Document is necessary for pronouncing the judgment.
18.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel appearing for the appellants reported in 2004 (3) CTC 682 (Jayaramdas and sons vs. Mirza Rafatullah Baig and ohters), wherein it was held that ends of justice would also met by accepting such evidence. Considering the citation along with the facts of the present case, I am of the view that the document is necessary for pronouncing the judgment. Hence, the petition is allowed. The registration copy of the Settlement deed in favour of Chellammal and two others by Poochandra Pillai is marked as Ex.B5.
Substantial Question of Law No.(i)
19.According to the the evidence of P.W.1, D.W.1 and D.W.2, the total extent of the property in S.No.1222/9 is 22-1/2 cents. According to the appellants and D.W.2, Gopal Pillai, Poochandra Pillai and Munusamy were entitled to 7-1/2 cents each. D.W.2, in his evidence has stated that his share has been given to Poochandra Pillai and he is not claiming any share in the property. The appellants have purchased the property from the legal heirs of Gopal Pillai. In Ex.B1, there was over writing in Survey No.1222/9 and so, the First Appellate Court has given the above said finding as stated in paragraph No.15. But to prove that the appellants have purchased the property in S.No.1222/9, 7-1/2 cents, they filed Ex.B4, which is a registration copy of Ex.B1 wherein it was specifically mentioned as S.No.1222/9, 7-1/2 cents within the said boundaries. In such circumstances, I am of the view that the Courts below have erroneously held that the property in Ex.B1 is different from the suit property. Thus, the Substantial Question of Law No.(i) is answered in favour of the appellants.
Substantial Question of Law No.(ii):
20.The learned counsel appearing for the appellants would submit that in Ex.A1, it was specifically mentioned that the appellants purchased the share of Balarama Pillai for Rs.500/- for more than 25 years and he is in possession. But whereas in the plaint pleadings, paragraph No.3, it is stated as follows:
3.The plaintiffs submit that the property morefully described in the plaint schedule is in Natham Poromboke. The plaintiffs submit that their family has put up a hut for their dwelling purpose as late in the year 1965. The plaintiffs submit that they are in possession and enjoyment of the plaint schedule mentioned property measuring East to West 60feet and North to South 100 feet. The plaintiffs submit that in the said site, they have put up a hut to an extent of 16' to 32' and they are using the remaining extent by storing mannure and for kalam purpose. The plaintiffs further submit that they are enjoying the Velikathan trees in the suit property. So, the plaint pleading is contra to Ex.A1.
21.It is appropriate to consider the settlement deed executed by Poochandra Pillai, grandfather of P.W.1 in favour of his three daughters. In the settlement deed, Ex.B5 it was specifically mentioned that his ancestral and self acquired property has been settled. 'A' schedule property has been given to Chellammal, 'B' schedule property has been given to Melkatammal and 'C' schedule property has been given to Rajammal. In 'A' schedule property, it was mentioned as Dry Survey No.1222/9, out of 22-1/2 cents, Eastern 14-1/2 cents hs been settled in favour of his daughter Chellammal and in that survey number has been wrongly mentioned. It is appropriate to consider the cross examination of P.W.1, wherein he has stated that he got the property from Poochandra Pillai and he is the adopted son of Poochandra Pillai since he had no children and Muthammal and Balarama Pillai are servants under his grandfather Poochandra Pillai. So, the evidence of P.W.1 is contradict with Ex.A1 and paragraph No.3 of the plaint averments. Hence, his evidence is not trustworthy and hence, it is not reliable.
22.Now, this Court has to consider the description of the property in the plaint, wherein it was specifically mentioned that the property situated in Kancheepuram District, Uthiramerur Block, No.46 Uthiramerur Village, Uthiramerur Madura Somanathapuram, Grama Natham Survey No.1222/9, East of Valliammal's site, South of Salai Street, West of Muthu's site and North of Pappammal site. Within these boundaries, East to West 60 feet, North to South 100 feet, there is a hut measuring 16'' x 32'' inclusive of trees. But whereas, as per the documents Exs.B4 and B5, it is only a Dry Survey No.1222/9. It is well settled principle of law that the respondents/plaintiffs ought to have proved his case and he cannot sought for relief on the basis of the defects and loopholes in the case of the defendants. In such circumstances, I am of the view that the plaintiffs ought to have amended the prayer as soon as they came to know that the description of the property has not been correctly given. Furthermore, it is pertinent to note that classification itself is wrong. Once the person coming to the Court for discretionary relief of injunction, he must come to the Court with clean hands. In Ex.A1, the plaintiffs purchased the share of Balarama Pillai and were in possession. But whereas in the plaint pleadings, in paragraph No.3, it is stated that it is a Natham Poromboke, they were in possession and enjoyment of the property and recognizing their possession, patta has been granted. Further, in the cross examination, P.W.1 has stated that the property belongs to Poochandra Pillai and he is the adopted son of the said Poochandra Pillai and hence, he got the property by inheritance. So, I am of the view that both the Courts below have not considered Ex.A1 and the evidence of D.W.2. Thus, Substantial Question of Law No.(ii) is answered against the respondents.
Substantial Question of Law No.(iii):
23.The learned counsel appearing for the respondents would submit that the appellants themselves admitted that they are entitled to 14-1/2 cents in the suit property and now they cannot turned out and question the same. At this juncture, the learned counsel appearing for the appellants would submit that in the description of the property though it was mentioned that they are claiming injunction in respect of 13-1/2 cents but whereas both the Courts below have granted the decree in respect of entire 22-1/2 cents. It is pertinent to note that Commissioner was appointed at the Appeal stage and he has given the report Exs.C1 and C2. He has also given three sketches. The first sketch is the replica of field map before updating of Revenue Registry for Punja Survey No.1222/9, it measures East to West 15 metres on the South, 14.2 metres on the North, North to South 55 metres on the West and 53.8 metres on the East. After UDR, i.e. in the second sketch, the same measurement has been mentioned. The third sketch deals with physical features and in that house 5.8 metres has been kept as vacant on the west of plaintiffs house. It is pertinent to note that eastern side of appellants house is the suit property. The appellants are the owners of S.No.1222/8B and so, there was a property for 5.8 metres. But in their claim itself, the plaintiffs have stated that they are entitled to 600 X 100 ft, which comes to 13.75 cents. But whereas the decree has been granted for the entire 22-1/2 cents which is against law. So, I am of the view that the First Appellate Court has not considered the Exs.C1 and C2 properly. Thus, Substantial Question of Law No.(iii) is also answered against the respondents.
24.11.It is well settled dictum of the Hon'ble Apex Court that if there is any cloud on the title, suit for bare injunction is not maintainable and they ought to have sought for relief of declaration and injunction. At this juncture, it is appropriate to consider the decision reported in AIR 2008 SC 2033 (Anathula Sudhakar v. P.Buchi Reddy (dead) by legal heirs and others), wherein it was specifically held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. Para-17 is extracted hereunder:
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
25.The same proposition has been followed in the decision of this Court relied upon by the learned counsel appearing for the appellants in 2014 (2) CTC 421 (Ratna Kounder vs. Annamalai and others).
26.He has also relied upon the decision reported in 2006 (2) CTC 24 (Lalitha and another vs. Selvaraj) wherein that injunction has been granted on lawful possession. But he has not proved his lawful possession and hence, he is not entitled to injunction. But here, there is a cloud on the title and hence, the suit ought to have filed for declaration and injunction. Those facts has not been considered by both the Courts below and so the suit for permanent injunction is not maintainable. Both the Cours below have committed error by considering the evidence without pleading and also the description of the property, classification of the property is wrong. Further, the plaintiffs/respondents have claiming injunction only in respect of lesser extent but injunction has been granted for larger extent. Both the Courts below have taken the loopholes and defects in the case of the defendants and granted the decree as if the appellants/defendants have to prove their case. So, I am of the view that the decree and judgment of injunction granted by both the Courts below is perverse without considering the documentary evidence and oral evidence and the settled proposition of law. Hence, the decree and judgment passed by both the Courts below is perverse and hence, the same are hereby set aside. The second appeal is liable to be allowed and it is hereby allowed.
27.In fine, Second appeal is allowed.
Judgment and decree passed by both the Courts below are hereby set aside.
Consequently, O.S.No.157 of 1999 on the file of the District Munsif Court, Uthiramerur stands dismissed.
C.M.P.Nos.15136 of 2004 and 143 of 2015 were also allowed.
There is no order as to costs.
06.07.2015 Index:Yes Internet:Yes cse Documents now marked:
1.Ex.B4 04.09.1997 Sale Deed in favour of the first appellant Muthu Pillai by Pachyappan, Chinnakulandai, Kasiammal and Sakunthala.
2.Ex.B5 14.12.1968 Registration copy of Settlement Deed in favour of Chellammal and two others by Poochandra Pillai.
R.MALA, J.
cse To
1.The Additional District Judge, Fast Track Court-II, Kancheepuram.
2.The District Munsif Court, Uthiramerur
3.The Record Keeper, V.R.Section, High Court, Chennai.
Pre-delivery Judgment in S.A.No.1884 of 2004 and C.M.P.Nos.15136 of 2004 and 143 of 2015 06.07.2015