Madras High Court
Chellathurai And Five Ors. vs Perumal Nadar on 15 April, 1998
Equivalent citations: (1998)3MLJ567
JUDGMENT S.S. Subramani, J.
1. Defendants in O.S. No. 265 of 1980, on the file of District Munsif's Court, Nagercoil, are the appellants.
2. Plaintiff filed the suit for bare injunction restraining the defendants from interfering with his possession of the property which he purchased under Ex.A-1, dated 11.7.1977. It is his case that defendants who are prominent members of the locality are attempting to interfere with his possession. He also said that immediately after the purchase of the property, he installed some idols and was offering prayers. In view of the interference by the defendants, he filed the suit for injunction.
3. In the common written statement filed by the appellants, they admitted the title of the plaintiff. But their case is that these defendants who are members of an Association, wanted to put up a Temple. It is their case that on 1.12.1977, Hindu Nadars of Alankottai decided to establish a new temple for their worship, for which they elected certain members as trustees, the first defendant being the Managing Trustee. Pursuant to the decision on 1.12.1977, the trustees selected 17 1/2 cents in Survey No. 9690 for establishing the temple. In the said 17 1/2 cents, plaint schedule having an area of 5 cents was also included. On 6.12.1977, plaintiff also agreed to sell the property to the Nadar Sangam for a sum of Rs. 1,150 and received a sum of Rs. 850 as advance, and the balance was agreed to be paid at the time of actual sale. When the advance amount was paid, possession was also handed over. Thereafter, in the entire property including the plaint schedule, some idols were installed, the details of which are given in paragraph 7 of the written statement. Except the plaintiff and one Arumugha Perumal Nadar, all others executed sale deed, and when attempt was made to get sale deed from plaintiff, he filed the suit and got an injunction. Defendants have already issued a notice seeking enforcement of the oral agreement for sale, for which a reply was sent denying the agreement. It is said that the exclusive possession is with the defendants, and the suit for injunction is not maintainable.
4. The trial court, as per judgment dated 23.6.1981, held that the plaintiff has miserably failed to prove his possession, and, taking into consideration the lie of the property as verified and reported by the Commissioner, the case of the defendants is more probable. It dismissed the suit.
5. Before the trial court, the plaintiff examined himself as P.W.1 and an independent witness was examined as P.W.2, and documents Exs.A-1 to A-4 were marked. On the side of the defendants, Exs.B-1 to B-12 were marked. Commissioner's Report and Plan were marked as Exs.C-1 and C-2. After evaluating the evidence, both oral and documentary, the trial court dismissed the suit as stated above. Against that, plaintiff preferred A.S. No. 5 of 1982, on the file of Sub Court, Nagercoil, lower appellate court found that the agreement for sale as alleged by the defendants was not proved and, therefore, possession must be with the plaintiff. The judgment of the trial court was set aside. The appeal was allowed. The suit was decreed as prayed for. It is against the said judgment, defendants have preferred this second appeal on the following substantial questions of law:
(1) Whether the learned Judge is correct in relying upon Exs.A-1 to A-4, the documents subsequent to the suit for giving a finding with regard to possession? and (2) Whether the court below is right in giving a finding with regard to possession without Considering the Commissioner's report and the plan Exs.C-1 and C-2?
6. Learned senior counsel for the appellant submitted that the lower appellate court has not considered material evidence which has vitiated the entire decision. Learned Counsel submitted that even though the lower appellate court has referred to Exs.C-1 and C-2, no reference was made to them while discussing the evidence. It has decreed the suit only for the reason that the oral agreement for sale was not proved. Learned senior counsel submitted that it is only a suit for injunction and it is for the plaintiff to prove that he was in possession on the date of suit. If the circumstances show that the plaintiff has no possession, even if the agreement for sale is not proved, the suit can only be dismissed.
7. As against the said submission, learned Counsel for the respondent submitted that when title and possession of the plaintiff was admitted under Ex.A-1, and when defendants claimed possession only on the basis of the agreement of sale and if the same is not substantiated, the normal inference is that the plaintiff continues to be in possession. So, the decision of the lower appellate court is correct.
8. As I said already, the suit is not for declaration of the title and for consequential reliefs. The suit is only for bare injunction alleging that the plaintiff is in exclusive possession on the basis of Ex.A-1. In a suit for injunction, it is the duty of the plaintiff to prove that he continued to be in possession on the date of suit. Only when evidence on both sides are even, title to the property will have some relevance.
9. According to me, Ex.C-1 report and Ex.C-2 plan will have a great bearing in deciding the issue in this case. Unfortunately, the lower appellate court has not taken into consideration that material evidence, except for a mere statement that a Commissioner's report has been filed. There is no discussion about Exs.C-1 and C-2 report and plan. Why I am referring to Ex.C-1 report is because, nobody has got any objection to the lie of the property as identified by the Commissioner. It is an impartial report even according to both parties, and the same has been prepared by an independent person. All the other piece of evidence are interested. I am not saying for a moment that the Commissioner's report has to be relied on for the purpose of proving possession. I am relying on the Report and Plan only for the purpose of proving the physical features of the property, from which certain inference can be drawn.
10. The Commissioner has identified AJLNBDEMFGKH as 17 1/2 cents of land which is claimed by the temple as belonging to them or under their possession. Out of this area, more or less in the middle portion is situated the JLMK Plot, which has been identified as the plaint Schedule property. The Commissioner has further said the western most AJKH Plot as belonging to the temple and surrendered by one Chellappan Nadar. It is not disputed by anyone. Likewise, LMNE Plot is also in possession of the Temple which belongs to one Krishna Vadivu Nadar. This point is also not disputed by any one. It is in between these two plots, plaint schedule property is situated. East of LMNE Plot, there is another Plot NBDE. The said plot belongs to four persons. From three of them, defendants have obtained title. The same has also been identified by the Commissioner. On the northern side of the entire AB line, there is a channel and also a strip of waste land full of thorny plants, In the plaint schedule property, the Commissioner has identified that certain idols have been installed within V1, V2, V3, V4 Plot. This V1, V2, V3, V4 is a thatched shed facing east on the eastern side, there are five small gates, and in continuation of the sheds, there is also another thatched shed as W1, W2, W3, W4. That shed is admittedly included in the plaint schedule and in the land belonging to the temple and further goes east within the NBDE plot. It has also come out in evidence from the Report that access to the temple is only from the eastern road situated east of BD Line. The Commissioner has also said that there is no access from any other source unless persons cross the channel and also the thorny plants. The Commissioner has also stated that from B-1 point upto the temple, he found footsteps.
11. Along with the same, some of the idols are installed in the admitted portion of the temple also. Out of 12 idols, 3 idols are kept outside the plaint schedule property. Five idols are within V1, V2, V3, V4, and some of them are outside the shed. From the physical features, it is clear that for access to the temple, it should be from the eastern road. One has to cross the admitted temple property and through the shed admittedly situated within the temple's property, and from it, there is access to the plaint schedule. There is also no separating boundary on the eastern and western sides of the plaint schedule property. According to me, the physical features show that the case of the appellants is more probable. The lower appellate court has not taken into consideration this impartial evidence which has a material bearing to decide the case. Exs.B-4 to B-8 are the various sale deeds which the temple has taken pursuant to the decision on 1.12.1977. It is true that the plaintiff has not executed the sale deed. Exs.B-10, B-11 and B-12 are documents showing that there is a Nadar Samudhayam, and its account books. The members of the community are also subscribers to the Samudhayam and Ex.B-12 evidences the same. It is true that the lower appellate court has said that Exs.B-11 and B-12 cannot be believed as they have been written at a stretch. Even if we ignore Exs.B-10 to B-12, circumstances show that the case of the defendants is more probable. In civil litigation, the preponderance of probability alone need be considered. The Commissioner's report and plan will prove the case of the defendants that they are in possession.
12. The plaintiff, except for the production of Ex.A-1, has not adduced any evidence to show that he is in possession. Exs.A-2 to A-4 are only documents that came into existence subsequent to the institution of the suit. Even according to the plaintiff, he has put up a Temple and he is worshipping there. When the access to the plaint schedule property is through the admitted property of the Samudhayam, and the property on the West and East also admittedly belonging and is lying in one block to the Samudhayam, it can be inferred that they are in possession of the defendants. When the property is not separated by any boundary and when there is continuous construction of sheds which pass through both the properties, it also show that all these items can be in the possession of only one person. Plaintiff has no explanation as to how the defendants put up the construction in W1, W2, W3, W4 encroaching into his property.
13. The lower appellate court has found fault with the trial court stating that it has decided the suit as one for declaration of title. The criticism made by the lower appellate court is not correct. For the purpose of proving possession, a detailed discussion is made by the trial court, mainly relying on the Commissioner's Report and Plan. At the same time, the lower appellate court disbelieved the evidence of the defendant regarding the oral agreement for sale, which, according to me, is irrelevant. Merely because the defendant has failed to prove his case, it does not follow that the plaintiff is in possession. As I said earlier, in a suit for injunction the burden is only on the plaintiff to prove that he is in exclusive possession of the property. In this case plaintiff has miserably failed to prove the same.
14. I am fully aware that under Section 100, C.P.C. there are limitations for this Court to interfere with the finding of fact entered by the lower appellate court. But when the lower appellate court has failed to consider a material piece of evidence, I think that this Court is justified in interfering in such cases. Question No. 2 is found in favour of the appellants.
15. In the result, I set aside the judgment of the lower appellate court and restore the judgment and decree of the trial court. Consequently, O.S. No. 265 of 1980, On the file of Additional District Munsif's Court, Nagercoil, will stand dismissed, however, without any order as to costs. The second appeal is allowed. No costs.