Madras High Court
M.Thiruppathy vs R.Vijayakumar on 3 January, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/01/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.751 of 1996 M.Thiruppathy ... Appellant / Plaintiff Vs 1.R.Vijayakumar 2.R.Murugan ... Respondents / Defendants Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 16.11.1995, in A.S.No.69 of 1994, on the file of the Principal District Judge, Madurai, confirming the judgment and decree dated 15.03.1994 in O.S.No.556 of 1992 on the file of the District Munsif, Madurai Taluk, at Madurai. !For Appellant : Mr.S.Subbiah ^For Respondents : Mr.R.Subramanian :JUDGMENT
This appeal is directed as against the judgment and decree dated 16.11.1995, in A.S.No.69 of 1994, on the file of the Principal District Judge, Madurai, confirming the judgment and decree dated 15.03.1994 in O.S.No.556 of 1992 on the file of the District Munsif, Madurai Taluk, at Madurai.
2. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.
3. Broadly but briefly, precisely and concisely, niggard of details, the re'sume' of facts absolutely necessary for the disposal of the second appeal could be portrayed thus:
The appellant in the second appeal filed the suit seeking permanent injunction so as to restrain the defendants and their men from interfering with his alleged peaceful possession and enjoyment of the suit property, which is a house, on the main ground that the suit property originally belonged to one Annathammal under whom the plaintiff anterior to the filing of the suit, took on lease for the monthly rent of Rs.75/-; the lessor died on 28.12.1984 issueless; in fact, the suit property after her death was expected to devolve on one S.Ganapathia Pillai; the defendants without any justification or legality claiming as though they purchased the suit property from her, started giving trouble to the plaintiff in enjoying the suit property as a tenant.
4. Per contra, challenging and disputing, gainsaying and denying the allegations/averments in the plaint, the defendants filed the written statement, the gist and kernel of it, could be expatiated to the effect that the plaintiff without any manner of right unlawfully trespassed into the suit property and in occupation of it after the death of the lessor who had only life interest over the suit property. After the death of Annathammal, the said Ganapathia Pillai became the absolute owner as per the settlement deed dated 07.04.1960; the plaintiff wanted to purchase the suit property, but the defendants purchased the property from the vested remainder Ganapathia Pillai; hence, the plaintiff focussed his attention as against the defendants who purchased the suit property from the said Ganapathia Pillai and that the plaintiff is not a tenant in the suit property.
5. The trial Court framed the relevant issues and during trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.8 were marked on the side of the plaintiff. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B.1 to B.15 were marked. Exs.C.1 was marked as a Court document.
6. The trial Court ultimately dismissed the suit with the finding that the plaintiff was a trespasser liable to be evicted from the suit property. As against which the appellant preferred the appeal and Ex.A.9 was marked as additional evidence during trial.
7. The first appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal with costs and dismissed the original suit.
8. Being aggrieved by the said judgment and decree of both the Courts below, the appellant/plaintiff preferred this second appeal on the following main grounds among others:
(i) The first appellate Court should have held that the status of the plaintiff in the suit property was that of a tenant; inasmuch as the plaintiff is in possession of the suit property, the appellate Court should have allowed the appeal; none the less it dismissed the appeal with costs.
(ii) The first appellate Court erroneously disbelieved the receipts acknowledged by the deceased Annathammal in the pocket note book. The address No.5, Sevalaya Street, of the appellant as found in other correspondence, was taken as the one sufficient to disbelieve the theory of the plaintiff's possession in the suit property during such period, forgetting for the moment that a person could have his office at one place and his residence in another place and accordingly, he prayed for decreeing the suit.
9. This second appeal was admitted by my learned predecessor to decide the following substantial questions of law:
"(i) Is not the rental receipt issued by the lawful owner amounting to proof of tenancy?
(ii)Is the continuous occupation of a person after the death of lawful owner amounting to an act of trespass, when there was permissible occupation?
(iii) Has the lower Appellate Court acted illegally in deciding the title to the suit property of the respondents in a suit for permanent injunction?
10. Point Nos.(i) to (iii) are taken together for discussion in view of the fact that they are interwoven and inter-linked with one another. Point Nos:(i) to (iii)
11. Right at the outset, I may proceed to state that this is a case in which the trial Court and the first appellate Court were not expected to probe into various aspects relating to the rights of the defendants and the terms of the settlement deed as in Ex.B.6, dated 12.04.1960 and the subsequent sale deeds as in Ex.A.7 dated 20.12.1980 and Ex.A.1 dated 13.07.1984. The plaintiff filed a bare suit for injunction without any prayer for declaration of his status as that of a tenant, etc. His endeavour is only to protect the possession and nothing more.
12. In the written statement, the defendants would unambiguously and unequivocally, candidly and openly, admit that the plaintiff as on the date of filing of the suit was in possession of the suit property. However, they hastened to add that he was a trespasser without specifying on what date, he trespassed into the suit property. An excerpt from paragraph No.9 of the written statement would run thus:
"Regarding the house tax and electricity charges the plaintiff has stealthily removed it after the death of Annathammal. After her death, he has trespassed into the property. Incidentally, the house tax is now changed in the name of the plaintiff."
13. It is therefore crystal clear that both the Courts below misdirected themselves in harping on various irrelevant matters and ultimately in dismissing the suit.
14. The perusal of the judgments of both the Courts below would evince that they gave various findings relating to the exhibits which are also not warranted. They proceeded on the assumption as though only a person who is legally in occupation of the suit property should be protected by granting injunction as per the law.
15. It is a trait proposition of law that even a trespasser who continues in possession for a considerable time is entitled to insist that he should be evicted only by due process of law and not forcibly.
16. In this connection, the decision of the Honourable Apex Court in Sadhuram Bansal v. Pulin Behari Sarkar reported in 1984 (3) Supreme Court Cases 410, could fruitfully be cited and an excerpt from it would run thus:
"23. Coming back to the facts, the respondents claimed before the learned trial Judge for investigation of their right to be in possession of the disputed premises by virtue of the leave or licence granted by one or two of the co- owners. The investigation of that point on evidence did not take place though there are passing observations in the decision of the learned Single Judge that Smt.Malati Das and Jitendra Kumar Das had no title or interest to create any licence in their favour and that one of them further denied having given any such licence. It has to be borne in mind that there has been no investigation of the respondents' right to be in the premises; even a trespasser cannot be thrown out of his occupation or possession except by due process of law. The owners appeared in these proceedings and supported the appellant. In fact, in the affidavit filed on behalf of the Receiver it has been made clear that they leave the matter to this Hon'ble Court." [emphasis supplied.] The aforesaid decision posits the proposition that even a trespasser's possession could be protected till he is evicted by due process of law.
17. The learned Counsel for the defendants would submit that if a person suddenly trespass into a property and immediately, thereafter files the suit to protect his possession whether he would be entitled to injunction. The answer is at once in the negative. Such a trespasser cannot be taken to be in possession of the suit property at all. The term 'Possession' has been well- defined and recognised in the famous treatise "Salmond on Jurisprudence". A mere casual trespass would not at once amount to possession and would not attract any civil remedy. Chapter 9, under the heading 'Possession', the famous treatise 'Salmond on Jurisprudence', Twelfth Edition, by P.J.Fitzgerald, would expound adequately the query raised by the learned Counsel for the defendants. Certain excerpts from it, would run thus:
"But the concept of possession is as difficult to define as it is essential to protect." ..
"So far no distinction has been made between the mental and physical aspects of possession. Many jurists have distinguished two such elements. Salmond considered that possession consisted of a corpus possessionis and an animus possidendi. The former, he thought, comprised both the power to use the thing possessed and the existence of grounds for the expectation that the possessor's use will not be interfered with. The latter consisted of an intent to appropriate to oneself the exclusive use of the thing possessed."
"We have seen that in any society some protection of possession is essential. This being so, the law must needs provide such protection, and this it can do in two different ways. First, the possessor can be given certain legal rights, such as a right to continue in possession free from interference by others. This primary right in rem can then be supported by various sanctioning rights in personam against those who violate the possessor's primary right: he can be given a right to recover compensation for interference and for dispossession, and a right to have his possession restored to him. Secondly, the law can protect possession by prescribing criminal penalties for wrongful interference and for wrongful dispossession. By such civil and criminal remedies the law can safeguard a man's de facto possession."
18. In the light of above excerpts, it has to be scrutinized as to whether from the evidence available on record, the possession of the plaintiff could be terms as that of a casual trespass. In the written statement itself, the defendant would state that the house tax for the property got changed in the name of the plaintiff. The plaint was presented on 4th March 1985 and Exs.A.2 and A.3 are the tax receipts showing that for the suit property, the plaintiff paid the tax even before the filling of the suit. In such a case, the plaintiff cannot be termed as a sudden trespasser, who immediately filed the suit for protecting his possession. In such a case, injunction could be granted only to the limited extent of protecting his possession till he is evicted by due process of law.
19. The learned Counsel for the defendants during arguments has submitted that already the suit for recovery of possession was filed and decree was obtained and E.P is pending and if that be so, as per law, they are entitled to proceed to evict the plaintiff herein who is the second appellant and there could be no embargo.
20. The point Nos:(i) to (iii) are decided accordingly and the judgment and decree of both the Courts below are liable to be set aside.
21. In the result, the judgment and decree of both the Courts below are set aside and the second appeal is allowed granting injunction only to the limited extent that the appellant/plaintiff is entitled to be in possession till he is evicted by due process of law and in order to avoid any complication, it is made clear that if according to the learned Counsel for the plaintiff already there is a decree for eviction as against the plaintiff/appellant herein, it is open for the defendants/respondents to evict him accordingly and till then his possession is protected by this injunction.
To
1. The Principal District Judge, Madurai.
2. The District Munsif, Madurai Taluk, at Madurai.