Madras High Court
John Pushparaj vs Kasi Nadar
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.(MD)Nos.201 of 2004 and 994 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 23.01.2020
Delivered on 30.01.2020
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD)Nos.201 of 2004 and 994 of 2007 and
M.P.(MD)Nos.1 of 2007 and 1 of 2008 in
S.A.(MD)No.994 of 2007
S.A.(MD)No.201 of 2004:
John Pushparaj : Appellant
vs.
1.Kasi Nadar
2.Lakshmi (deceased)
3.Jaya George
4.Annamary
5.T.Selvaraj
6.T.Paulraj
7.T.Rajam
8.T.Mary Saroja
[R-5 to R-8 were brought on record
as Legal Representatives of the deceased
second respondent vide order of this Court
dated 19.12.2016, made in M.P.(MD)No.1 of 2010]
: Respondents
PRAYER: Second Appeal is filed under Section 100 of the Code of
Civil Procedure, against the judgment and decree passed by the
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S.A.(MD)Nos.201 of 2004 and 994 of 2007
learned Subordinate Judge, Kuzhithurai, in A.S.No.14 of 1999,
dated 20.03.2003, confirming the judgment and decree in O.S.No.
397 of 1996, on the file of the learned District Munsif, Kuzhithurai,
dated 14.01.1999.
For Appellant : Mrs.J.Anandhavalli
For Respondents 1,5to8 : Mr.T.S.R.Venkatramana
For Respondent No.2 : Died
For Respondents 3&4 : No Appearance
********
S.A.(MD)No.994 of 2007:
1.Lakshmi (Died)
2.T.Selvaraj
3.T.Rajam
4.T.Paulraj
5.T.Mary Saroja
[Appellants 2 to 5 were brought on record
as Legal Representatives of the deceased
sole appellant vide order of this Court
dated 17.08.2011, made in M.P.(MD)Nos.2&3 of 2010]
: Appellants
vs.
1.John Pushparaj
2.Annameri
3.Jeyageorge
4.Pushparani : Respondents
PRAYER: Second Appeal is filed under Section 100 of the Code of
Civil Procedure, against the judgment and decree of the learned
Subordinate Judge, Kuzhithurai, in A.S.No.71 of 2004, dated
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S.A.(MD)Nos.201 of 2004 and 994 of 2007
26.04.2007, reversing the judgment and decree of the learned
Second Additional District Munsif, Kuzhithurai, in O.S.No.630 of
1993, dated 06.07.2004.
For Appellants : Mr.T.S.R.Venkatramana
For Respondent No.1 : Mrs.J.Anandhavalli
For Respondents 2to4 : No Appearance
********
COMMON JUDGMENT
*********** Second Appeal in S.A.(MD)No.201 of 2004 is filed as against the concurrent finding of the Trial Court granting permanent injunction in favour of the plaintiffs.
2. Second Appeal in S.A.(MD)No.994 of 2007 is filed as against the reversed finding of the first Appellate Court dismissing the suit filed by the plaintiff.
3. Since in both the suits, the parties are one and the same and the subject matter of the suit property is also one and the same, this Court is of the view that though both the suits were tried separately and judgments were pronounced separately, both these appeals can be disposed of in a common judgment, in order to give quietus to the matter in controversy.
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4. S.A.(MD)No.201 of 2004 is arising out of the original suit in O.S.No.397 of 1996 filed by the plaintiffs.
5. S.A.(MD)No.994 of 2007 is arising out of the original suit in O.S.No.630 of 1993.
6. It is relevant to note that the plaintiff in O.S.No.630 of 1993 is the second plaintiff in O.S.No.397 of 1996. O.S.No.630 of 1993 was filed for declaration and injunction in respect of 11/2 cents with a house situated thereon in the suit survey field. Whereas, O.S.No.397 of 1996 was filed by both the plaintiffs for permanent injunction in respect of the entire extent.
7. The brief facts leading to the filing of the suit in O.S.No. 630 of 1993 are as follows:
It is the case of the plaintiff in the above suit that the suit property is a small plot of land about 1 1/2 cents which stands the tiny Cottage belonged to the plaintiff. The plaintiff and her family have been in exclusive and undisputed possession of the suit property ever since she was born. The plaintiff has perfected title 4/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 over the suit plot of land by virtue of her long, continuous, undisputed and exclusive possession for more than 75 years. The plaintiff is residing in a building bearing Door No.16/4B and also got electricity connection. Originally, the entire plot was in possession and enjoyment of the plaintiff's family continuously for several decades. However, the defendants, taking advantage of the old age of the plaintiff, by physical force, took possession of the major portion of 10 cents of the land and integrated that part with the adjoining remaining area. The plaintiff was dispossessed from the property on 07.03.1993. The defendants also enclosed their area by a barbed wire fencing on 07.03.1993. With the result, the plaintiff has now been left with her small hut and about 1 1/2 cents surrounding the same. This is the suit property.
8. It is the contention that by the decision of the Court in O.S.No.158 of 1962 and O.S.No.397 of 1996, the suit property does not belong to the defendants. Hence, the suit was filed seeking the relief of declaration and permanent injunction. The above suit has been laid only in respect of 11/2 cents south western portion of the suit property comprised in house bearing door No.16/4B, Unnamalai Kadai Town.
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9. The defendants 1 to 3 in the above suit filed a statement that the suit property was originally allotted to the husband of the first defendant in O.S.No.339 of 1960. The land allotted measures about 13 cents 250 square feet. After the death of Gnanaprakasam, the husband of the first defendant, the rights over the plot devolved on these defendants and they have continued to be in possession in respect of the property. The first defendant's husband Gnanaprakasam permitted the plaintiff to put up a small hut on the southern side of the plot that was only out of sympathetic consideration. The plaintiff has never been in possession of the remaining part of the plot.
10. The fourth defendant filed a written statement contending that after the death of Gnanaprakasam, the defendants 1 to 3 had been in possession of the property. On 08.04.1996, the defendants 1 to 3 sold 12 Cents to the fourth defendant and put him possession. He has put up compound walls around 12 cents and obtained licence from the Panchayat. The plaintiff has no manner of possession over the 12 Cents lying within compound walls. Though a shed is available in the suit property, the plaintiff 6/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 was not in possession of the same. The allegation that the plaintiff was dispossessed on 07.03.1993 is also false and she was evicted long ago. She was not in possession of the property.
11. In the reply statement, it is stated by the plaintiff that the actual possession of the entire extent of 13.250 Cents was with one Kasi Nadar and another Thirumal, the husband of the plaintiff in the suit. The deceased Gnanaprakasam was not in possession of any portion of plot A 4a and after his death, the heirs did not get any possession at any time. In O.S.No.158 of 1962, the Court granted declaration of title alone in favour of Gnanaprakasam, but the possession was found in favour of the defendants therein. Therefore, it is the contention that the suit property was originally in possession and enjoyment of Thirumal, the husband of the plaintiff. Hence, she prayed for dismissal of the suit.
12. On the basis of the above pleadings, the following issues were framed by the Trial Court in the above suit:
"(i) What is the actual area in the possession of the plaintiff?
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(ii) Is the permissive possession alleged by the defendants?
(iii) Is the plaintiff entitled to the declaration and injunction claimed? and
(iv) Reliefs and costs?
13. On the side of the plaintiff, the plaintiff herself was examined as P.W.1 and another witness was examined as P.W.2 and Exs.A.1 to A.23 were marked. On the side of the defendants, the fourth defendant himself was examined as D.W.1 and Exs.B.1 to B. 13 were marked. Besides, Advocate Commissioner was examined as C.W.1 and Exs.C.1 and C.2 were also marked.
14. Based on the above materials and evidence, the Trial Court has decreed the suit in favour of the plaintiff. However, on appeal, the first Appellate Court reversed the above finding and dismissed the suit, as against which, S.A.(MD)No.994 of 2007 came to be filed.
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15. While admitting the Second Appeal, the following substantial questions of law were framed for consideration:
"(i) Whether the defence plea of the respondents/defendants that the plaintiff's possession in respect of the suit property was only permissive is barred by the principle of res judicata by Ex.A.10 judgment?
(ii) Whether the lower appellate Court has committed an error in rejecting the plea of the appellant/plaintiff for perfection of title by adverse possession disregarding the earlier judgment especially Ex.A.10?
(iii) Whether the purchase made by the first respondent/4th defendant is hit by the principle of lis pendens?"
16. The brief facts leading to the filing of the suit in O.S.No.397 of 1996 are as follows:
The present suit was filed by one Kasi Nadar as the first plaintiff and Lakshmi as the second plaintiff. It is to be noted that 9/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 the second plaintiff was the plaintiff in the earlier suit in O.S.No. 630 of 1993. It is the specific case of the plaintiffs in this suit that the suit plot measuring 13 cents 250 square feet is in possession of the first plaintiff as its absolute owner. The second plaintiff is residing in a small house within the plot on permissive possession from the first plaintiff. There was a suit in O.S.No.158 of 1962 for the suit property filed by one Gnanaprakasam, S/o.Chellakkannu Nadar, for declaration of title, possession and other reliefs, wherein the first plaintiff was the fifth defendant. In the above suit, a decree for title alone was passed and the suit was dismissed in respect of possession and other claims on 12.03.1963. Possession was found with the fifth defendant, the present first plaintiff and he is still in possession. The defendants 1 and 2 are the son and widow of Gnanaprakasam, who was the plaintiff in O.S.No.158 of 1962. They have no possession in respect of the suit property. They have created a fraudulent document in favour of the third defendant. On the strength of such documents, the third defendant sought permission to put up compound walls around the plot. The Panchayat Authorities have served a notice on the plaintiffs on 04.06.1996. However, these defendants were also repeatedly making attempts to trespass into the suit property by force. The 10/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 defendants are not entitled to take such possession or put up any compound wall. They are to be restrained from resorting to such illegal means by an order of permanent injunction. Hence, the suit for permanent injunction.
17. Denying the allegations made in the plaint, it is the contention of the defendants that though the Court found possession of the suit property with the first plaintiff herein, in O.S.No.158 of 1962, the actual physical possession of the suit property was always with the defendants 1 and 2. The defendants 1 and 2 were in possession of the suit property till the date of the sale deed executed in favour of the third defendant. The third defendant is in possession of southern 12 Cents except the portion wherein the second plaintiff's shed lies in the suit property from the date of the sale deed dated 08.04.1996. It is the further contention that the suit property was originally allotted in O.S.No.339 of 1960 in favour of Gnanaprakasam. The delivery was also taken on 01.02.1962. After the death of Gnanaprakasam. his rights over the plaint schedule property devolved on the defendants 1 and 2 and they were in possession and enjoyment of the said plot till 08.04.1996, the date of execution of the sale deed in favour of the 11/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 third defendant. The plaintiffs have no right in the suit property, but, it is true that the second plaintiff has got a small cottage situated on the south-eastern portion of the suit property. The defendants 1 and 2 and late Gnanaprakasam were enjoying the suit property and the second plaintiff was permitted to occupy a small portion on the south-eastern portion of the suit property. Now, the third defendant is in possession of the suit property. The plaintiffs 1 and 2 are colluded together and filed a suit.
18. In the reply statement, it is stated by the first plaintiff that the defendants 1 and 2 were never in possession of the suit property till the date of sale deed in favour of the third defendant. The third defendant is not in possession of the property from the date of the sale deed as alleged. It is false to contend that the judgment and decree in O.S.No.158 of 1962 were modified or invalidated by long and continuous enjoyment of the property. The plaintiffs have perfected title by adverse possession. It is further contended that the suit in O.S.No.630 of 1993 was filed by the second plaintiff. Since she is an illiterate, she did not know as to the particulars given in the plaint. It is also stated that the dead body of Gnanaprakasam was allowed to be buried on sympathetic 12/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 ground with the permission. Thus, he denied all the allegations made in the written statement.
19. On the side of the plaintiffs, P.W.1 was examined and Exs.A.1 to A.5 were marked. On the side of the defendants, D.W.1 was examined and Exs.B.1 to B.13 were marked. Exs.C.1 and C.2 were also marked.
20. Based on the above pleadings, the Trial Court has famed as many as 11 issues and finally, decreed the suit in favour of the plaintiffs, as against which, an appeal was also filed. The first Appellate Court has also confirmed the finding of the Trial Court. Challenging the same, S.A.(MD)No.201 of 2004 is filed.
21. While admitting the Second Appeal, the following substantial questions of law were framed for consideration:
"(i) When there is delivery of property by Court Amin and subsequent documents confirms the fact of possession, can a decree for possession be issued in respect of the same property?
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(ii) When the plaintiff in the earlier suit who claims permissive possession filed another suit for declaration of title, can the appellate Court modify the earlier decree?"
22. In addition to that, after hearing the parties, one more substantial question of law is framed for consideration, which is as follows:
"Whether a person is entitled to
injunction, without establishing the
possession, merely on the basis of the earlier judgment, wherein the first plaintiff was found in possession?"
23. The learned counsel appearing for the appellant in S.A.(MD)No.201 of 2004 and the first respondent in S.A.(MD)No. 994 of 2007 vehemently contended that the suit property was originally allotted to one Gnanaprakasam in earlier partition suit in the year 1960. The delivery was also taken by the said Gnanaprakasam. After taking delivery, the husband of the second 14/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 plaintiff and other defendants put up a small hut in one corner of the suit property. Therefore, the suit was filed by Gnanaprakasam for declaration and possession in O.S.No.158 of 1962. In the above suit, the Court has granted declaration in respect of the suit property in favour of Gnanaprakasam. However, relief of possession was negatived, since the fifth defendant therein said to be in possession. Though such finding was recorded in the year 1963, it is her contention that the property was all long in continuous possession of the defendants. Admittedly, the property is a vacant site. Now, the legal heirs of Gnanaprakasam had transferred the property to the third defendant in O.S.No.397 of 1996 and he is in possession of the property. The present suits were filed for injunction and declaration mainly taking advantage of the earlier judgment passed in O.S.No.158 of 1962. Whereas, there is no piece of evidence available on record to show that the plaintiffs in both the suits are continued to enjoy the property. The plaint in O.S.No. 630 of 1993 itself clearly shows that the defendants have forcibly taken possession of 10 cents in the year 1993 itself. Therefore, on the date of filing the suit for bare injunction, the plaintiff is not in possession of the entire extent, except 11/2 cents with small building, where the second plaintiff in O.S.No.397 of 1996 is 15/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 residing. Therefore, in the absence of any evidence to show that they are continuously enjoying vacant land, merely on the basis of the finding in the earlier suit, they cannot establish their possession. Though in the earlier suit in O.S.No.158 of 1962, possession was with the fifth defendant, own pleadings of the plaintiffs shows that the possession is disturbed and the defendants have taken possession of 10 cents in the vacant land. Therefore, when the possession is already disturbed, the finding in the earlier suit in O.S.No.158 of 1962 cannot be taken advantage by the plaintiffs to contend that they are continuously in possession of the suit property. Hence, it is contended that absolutely there is no scrap of paper to prove the possession of the plaintiffs in entire vacant site.
24. It is the further contention of the learned counsel that the fifth defendant in the earlier suit in O.S.No.158 of 1962 has not come before this Court to assert his possession. Only his daughter was examined as P.W.1 in O.S.No.397 of 1996. Hence, it is contended that the entire property is a vacant site and the defendants are in possession of the property and compound wall is also constructed. This is also clear from the evidence and the 16/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 Commissioner's report and further, the evidence of P.W.1 in both the suits clearly shows that the dead body of Gnanaprakasam, who was the plaintiff in O.S.No.158 of 1962, was buried in the suit property. There was a cemetery built in the suit property. These facts clearly show that despite the finding in the earlier suit in O.S.No.158 of 1962 as to the possession, the defendants continued to enjoy the possession of the property. The legal heirs of Gnanaprakasam had sold the property to the third defendant in O.S.No.397 of 1996. Therefore, it is contended that the Trial Court has not analysed these facts and decreed the suits filed by both the plaintiffs. Whereas, on appeal against O.S.No.630 of 1993, the first Appellate Court has properly analysed those facts and dismissed the suit. Hence, it is contended that the appeal in S.A.(MD)No.201 of 2004 is liable to be allowed and the appeal filed by the plaintiffs in S.A.(MD)No.994 of 2007 is liable to be dismissed.
25. Whereas, the learned counsel appearing for the contesting respondents in S.A.(MD)No.201 of 2004 and the appellants in S.A.(MD)No.994 of 2007 submitted that Ex.A.1 filed in O.S.No.397 of 1996/ Ex.A.7 in O.S.No.630 of 1993 is a copy of the judgment in O.S.No.158 of 1962. The above judgment makes it 17/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 clear that only the first plaintiff in O.S.No.397 of 1996 was found to be in possession of the suit property. The above judgment is reached finality and only the declaration relief was granted in favour of Gnanaprakasam. After the judgment, the first plaintiff was continuously in possession over a period of 12 years and the possession was not recovered by true owner. Thus, the defendants' predecessor lost their right to the property by operation of law of limitation. If such possession was shown to be continuous and established, then any sale made by the legal heirs of Gnanaprakasam, after a period of limitation, would not convey any better title to the third defendant in O.S.No.397 of 1996. Thus, on the basis of such sale deed, he cannot claim any right over the property. The documents filed on the side of the plaintiffs clearly show that the defendants have made an attempt to trespass into the suit property. The Trial Court and the first Appellate Court in O.S.No.397 of 1996 have thoroughly analyzed the facts and granted permanent injunction. Hence, his contention is that now the defendants cannot go beyond the judgment already passed in O.S.No.158 of 1962 and seek any right over the property. Hence, it is submitted that as far as S.A.(MD)No.994 of 2007 is concerned, he submitted that the plaintiff is only entitled to permanent 18/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 injunction and since she was in permissive possession of the first plaintiff in O.S.No.397 of 1996, no relief of declaration is necessary. Hence, he prayed for allowing the said appeal partly and dismissing the appeal in S.A.(MD)No.201 of 2004.
26. In the light of the above submissions, when the materials perused, it is seen that the suit property having an extent of 13 Cents 250 square feet is a vacant site, in which, a small house situated around 11/2 cents in both the suits. O.S.No.630 of 1993 was filed by the second plaintiff in O.S.No.397 of 1996, seeking declaration and injunction in respect of 11/2 cents including the house thereon situated in the larger extent of 13.250 Cents. O.S.No.397 of 1996 was filed for permanent injunction in respect of the entire extent of 13 Cents 250 square feet by both the plaintiffs. It is an admitted fact from the perusal of the records that the suit property was originally allotted to Gnanaprakasam, the husband of the first defendant in O.S.No.630 of 1993, in a partition suit in O.S.No.339 of 1960. According to him, he has also got the delivery of the property on 01.02.1962. When the matter stood thus, he has filed a suit in O.S.No.158 of 1962, against four defendants and the fifth defendant was impleaded on his own, who is the first plaintiff 19/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 in O.S.No.397 of 1996. It is also an admitted fact that the second defendant in the above suit is the husband of the second plaintiff. The suit has been originally filed alleging that the defendants 1 and 2 put up a small hut on the southern side to an extent of 2 cents. The new construction made by the first defendant is an extension from his house on the western side. Though the suit was filed primarily for declaration and possession in respect of 2 cents allegedly encroached upon by the defendants 1 and 2, in the previous suit, the schedule of property is shown as entire property, namely 13 cents 250 square feet. In the above suit, the present first plaintiff was impleaded as fifth defendant. The above suit was, after contest, decreed for declaration of title in respect of the plaint schedule property therein in favour of Gnanaprakasam, the husband of the first plaintiff. Whereas, it is the contention of the fifth defendant that he is in possession of the property. According to him, he has redeemed the mortgage and he is in possession of the property. The Court, in the above suit, has finally held that only the fifth defendant is in possession of the property on the date of the suit, therefore, granted decree for declaration in favour of Gnanaprakasam. As far as the recovery of possession is concerned, the suit was dismissed and other relief of mandatory injunction was 20/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 also dismissed. This fact is not in dispute. The above judgment made it clear that the suit property was originally allotted to one Gnanaprakasam, the husband of the first defendant in O.S.No.630 of 1993, thereafter, his title was also declared. Ex.A.1 in O.S.No. 397 of 1996/ Ex.A.7 in O.S.No.630 of 1993 makes it clear that the above judgment was passed on 12.03.1963. The above judgment reached finality, as no appeal whatsoever filed. Now, on the basis of the above judgment, the parties in two suits have claimed right over the suit property. Whereas, it is the contention of the defendants that despite the finding in the earlier suit about the possession, they are in possession and possession was all along continued with Gnanaprakasam and after his death, the property devolved upon the legal heirs, who sold the property in favour of the third defendant in O.S.No.397 of 1996.
27. It is also relevant to note that the second defendant in the earlier suit is none other than the husband of the second plaintiff in O.S.No.397 of 1996 and the fifth defendant in whose favour the possession was found by the Court on earlier occasion in O.S.No.158 of 1962, is the first plaintiff herein. Normally, any finding with regard to the title and any issue, which was directly 21/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 and substantially an issue in the former suit and reached finality, such finding will operate as res judicata in respect of the same issue in subsequent litigation between the parties or their legal heirs.
28. Now, the suit in O.S.No.397 of 1996 was filed only for permanent injunction on the basis of earlier judgment in O.S.No. 158 of 1962. Though the earlier judgment declared the title of Gnanaprakasam, there is no evidence available on record to show that he has filed any suit to recover the alleged possession after the judgment. But, at the same time, it is the specific case of the defendants that the plaintiffs are never in possession of the property even after the finding by Court in earlier suit. The present suit has been filed only on the basis of the alleged possession pursuant to the earlier finding. Therefore, a person, who was seeking injunction on the basis of the alleged possession, must establish his possession on the date of suit at least. The suit in O.S.No.397 of 1996 was not filed for declaration of title on the basis of prescription of title by adverse possession. What the plaintiffs sought is only permanent injunction on the basis of the alleged possession. Whereas, as stated above, it is the specific 22/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 contention of the defendants that despite the finding in the earlier suit about the possession, only Gnanaprakasam was continued in possession of property.
29. In the above background, the evidence adduced, when carefully seen, the fifth defendant in the earlier suit, namely O.S.No.158 of 1962, who is the first plaintiff in O.S.No.397 of 1996 has not come before the Court, whereas, his daughter was examined as P.W.1. On perusal of entire evidence of P.W.1 in O.S.No. 397 of 1996, particularly, her cross-examination, it is found that she has categorically admitted that Gnanaprakasam died eight years back from the date of the deposition when she was examined on 07.12.1998. She has also admitted that only in the suit property, the dead body of Gnanaprakasam was buried and there was a cemetery built in the suit property. It is also stated by her that she is residing one kilometre away from the suit property. It is categorically admitted that Gnanaprakasam was buried and a cemetery is very much available in the suit property. The above evidence makes it clear that if really the fifth defendant said to be in possession, his possession also recognized by the Court as early as 1962, there was no reason as to why the cemetery of 23/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 Gnanaprakasam still built in the suit property. Though an explanation was given in the re-examination that his body was buried, with the permission granted by the first plaintiff, such contention is highly improbable for the reasons of the own pleadings of the plaintiff in O.S.No.630 of 1993. The specific pleading of the plaintiff in her own suit in O.S.No.630 of 1993 is that the defendants forcibly took possession of 10 cents and integrated that part with the adjoining remaining area and the forcible dispossession of the plaintiff was done on 07.03.1993. It is also pleaded in the plaint that the defendants enclosed their area by a barbed wire fencing on 07.03.1993 itself. With the result, she has now been left with a small hut at about 11/2 cents surrounding the same. It is the suit property. The very own pleading of the second plaintiff in O.S.No.397 of 1996 clearly indicated that the possession of the first plaintiff was disturbed and interrupted and there was a forcible dispossession and the defendants took possession of 10 cents of land in the suit property as early as on 07.03.1993 itself. It is further fortified by the fact that as per the evidence of the second plaintiff in her own suit, in cross- examination, she has admitted that in 13.250 cents of land, cemetery of Gnanaprakasam was built and the above area is 24/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 around 5 cents and in the remaining area, compound was also built. These facts clearly show that though the judgment in O.S.No. 158 of 1962, which was marked as Exs.A.1 and A.7 respectively in both the suits, show that the first plaintiff was found to be in possession at the relevant point of time, his possession was interrupted at a later point of time and he was dispossessed and he was not in continuous possession of the property. To show that the first plaintiff is continuously occupying the suit property, except Ex.A.1, previous judgment in O.S.No.158 of 1962, no other materials whatsoever available to prove the possession.
30. Exhibits filed on the side of the plaintiffs in O.S.No. 397 of 1996, when carefully seen, Exs.A.1 and A.2 are the Judgment and Decree in O.S.No.158 of 1962. Ex.A.3 is the tax receipt in the name Gnanammai, D/o.Packiyam, said to have been paid in the year 1990. Similarly, Ex.A.4 is also the tax receipt said to have been paid in the year 1996 in the name of Gnanammai. Ex.A.5 is the notice issued by the Executive Officer to the plaintiffs to show any document to prove the title in respect of their objection for construction of the compound by the defendants. Except these two documents, namely the tax receipts, no other 25/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 documents whatsoever filed by the plaintiffs to show that even after the judgment and decree of the earlier suit in O.S.No.158 of 1962 [Exs.A.1 ad A.2], they continued to enjoy the suit property.
31. Admittedly, the suit property is a vacant site, except a small house, where the second plaintiff in O.S.No.397 of 1996 is residing. The first plaintiff in whose favour the decree was passed in earlier occasion did not enter into the box. Though the first plaintiff's possession was recognized in the earlier litigation, to prove his continuous possession and enjoyment, there is no evidence whatsoever available on record, except two tax receipts, that too, in the name of Gnanammai. Further, the pleadings and evidence, as discussed above, clearly show that though the defendants have not filed any suit for recovery of possession, possession of the predecessor-in-title was declared in previous suit, and they appear to have taken forcible possession of the plot in the year 1993 itself and the evidence that Gnanaprakasam's dead body was buried in the same plot and pucca cemetery was built also shows that despite the finding in the earlier suit, the plot was under
the control of the predecessor-in-title of the defendants. It is not the case of the plaintiff that the original land title holder has lost 26/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 the title. The plaintiffs sought only injunction restraining the defendants from entering into the suit property, based on the finding in the previous suit. Whether or not, possession was continued till the filing of the suit, after the judgment in O.S.No.158 of 1962, there is no evidence. Whereas, their own admission and pleadings clearly indicate that they have not enjoyed or they have no actual control over the property.
32. Admittedly, the suit plot is a vacant site. Normally, as far as the vacant site is concerned, possession follows title. In the given case, it is not the case of the plaintiffs that they perfected title by adverse possession. They just claimed that based on the earlier finding, they are entitled to injunction. Therefore, when the suit is filed for injunction, the party claiming injunction should establish that on the date of suit, they are in possession of the suit property. No doubt, the third defendant in O.S.No.397 of 1996 claims to have purchased the property in the year 1996 from the legal heirs of original title holder. Whether they have acquired valid title or not, is not an issue in this case. Whether the real title holder has lost the title, is also not an issue. Whether the third defendant in O.S.No.397 of 1996 did not derive any title is not an issue in this 27/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 case. The suit in O.S.No.397 of 1996 is for permanent injunction. Therefore, the primary concern is who is in possession of the suit property on the date of the suit.
33. As discussed above, the pleadings and the admission of the plaintiffs clearly show that despite the first plaintiff found to be in possession in the year 1962, he did not continue his possession and his possession has been interrupted and in fact, forcible possession was already taken by the defendants as per the own pleading of the second plaintiff in her own suit. Admittedly, the compound wall was also put up by the third defendant in O.S.No. 397 of 1996. This has been established on record. Only after putting up compound wall, the suit came to be filed. Therefore, the above facts clearly indicated that on the date of the suit, both the plaintiffs were not in possession of the entire extent of the vacant land, which was the subject matter of the earlier suit, on the date of the present suit, except the second plaintiff's possession in respect of the house comprised in 11/2 cents. It is to be noted that the earlier suit itself was mainly filed for declaration and for possession alleging that around 2 cents a building was put up by the first and second defendants in the previous suit. The second 28/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 defendant in the previous suit i.e., O.S.No.158 of 1962 is none other than the husband of the second plaintiff herein. The above facts clearly indicated that house in respect of which declaration sought in O.S.No.630 of 1993, which is the subject matter of S.A.(MD)No. 994 of 2007, was very much existence at that point of time and the second plaintiff has also filed a separate suit in O.S.No.630 of 1993 only in respect of the house situated in 11/2 cents. The Commissioner has also identified the house in the suit property. The defendants have also admitted that on the southern side, the plaintiff's house is situated. Though it is stated as permissive possession, Ex.A.1/Ex.A.7 makes it clear that the said house was already the subject matter in the earlier suit. Therefore, it cannot be said that only recently the house has come up and the Commissioner's report also clearly shows that the house was more than 30 years. The house tax receipts and receipts for electricity charges marked as Exs.A.1 to A.6 filed by the plaintiff in O.S.No. 630 of 1993 clearly show that she is in possession of the suit property, namely house in 11/2 cents. Though she sought declaration, in view of the fact that she do not know who was the original owner and she claims to be in permissive possession of the first plaintiff, this Court is of the view that the declaration cannot 29/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007 be granted in the absence of evidence to show that she perfected title by adverse possession as against the real owner. At the same time, her possession is long and continuous and house was very much available even in the previous suit and still house is in possession, as admitted by the defendants. Thus, she is certainly entitled to injunction in respect of 11/2 cents with house thereon bearing Door No.16/4B, as specifically set out in the plaint schedule in O.S.No.630 of 1993.
34. Accordingly, S.A.(MD)No.994 of 2007 has to be partly allowed in respect of the relief of injunction. As far as S.A.(MD)No. 201 of 2004 is concerned, injunction granted by the Court below in O.S.No.397 of 1996 in respect of the land having an extent of 13.250 Cents, has to be interfered with, as it is not established that on the date of the suit, the plaintiffs were in possession of the entire vacant land, except a small house, which was the subject matter in O.S.No.630 of 1993. Accordingly, all the substantial questions of law are answered.
30/32 http://www.judis.nic.in S.A.(MD)Nos.201 of 2004 and 994 of 2007
35. In the result,
(i) S.A(MD)No.994 of 2007 is allowed in part and permanent injunction is granted in respect of 11/2 cents with house thereon, as stated in the schedule of the plaint in O.S.No.630 of 1993. No costs. Consequently, the connected miscellaneous petitions are closed.
(ii) S.A.(MD)No.201 of 2004 is allowed and the judgment and decree in O.S.No.397 of 1996 are, hereby, set aside and the suit is dismissed. No costs.
30.01.2020
Index : Yes/No
Internet : Yes/No
SML
To
1.The Subordinate Judge,
Kuzhithurai.
2.The Second Additional District Munsif,
Kuzhithurai.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)Nos.201 of 2004 and 994 of 2007
N.SATHISH KUMAR, J
SML
Common Judgment made in
S.A.(MD)Nos.201 of 2004 and 994 of 2007
Delivered on:
30.01.2020
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