Madras High Court
P.P. Srinivasa Battachariar vs Paramasivam And Ors. on 6 January, 1999
Equivalent citations: (1999)3MLJ47
JUDGMENT A. Ramamurthi, J.
1. The unsuccessful plaintiff is the appellant.
2. The case in brief is as follows: The plaintiff filed a suit for permanent injunction. The suit property is a portion situate in Periyeri Village, Salem Town, Ward D, Block 19 T.S. No. 36. The property originally belonged to one Maruthai Ammal, wife of Seguva Pillai and Sakunthala and Lakshmi are two daughters. They are the legal heirs of one Dhanalakshmi Ammal. The 1st defendant entered into an agreement with the owners of the property to purchase the entire area measuring 59 cents. He is a real estate dealer, doing business. The property was put in possession of the 1st defendant by the owners in pursuance of the agreement of sale. The 1st defendant levelled the lands and divided into house plots and laid roads. He entered into an agreement with the plaintiff to sell plot No.70 as vacant site at the rate of Rs. 6 per sq.ft. on 21.6.1977. The plaintiff paid Rs. 501 by way of advance and entered into an agreement with the 1st defendant to purchase Plot No.71 on 12.1.1980 and paid an advance of Rs. 6,750. The plaintiff was put in possession of pilots in pursuance of the agreements of sale on the respective dates. The plaintiff is in possession and enjoyment of these properties: He dug a well and constructed building and also a compound wall. The building was assessed for property tax by Salem Municipality. The plaintiff has been paying the property tax also. He is in lawful possession and enjoyment of the property. The 1st defendant has to execute sale deed after receiving the balance sale price within six months. After the agreement, there was dispute between defendants 2 to 5 and there were suits. The plaintiff is always ready and willing to pay the balance of sale price and to take the sale deed. As the first defendant has not yet got title from defendants 2 to 5 the performance of the contract is pending. The defendants have no right to interfere in the possession and enjoyment of the plaintiff and, hence, the suit.
3. Defendants 2 and 3 resisted the suit. The total extent of the property is 59 cents. The entire area originally belonged to one Alagammal, wife of Karupanna Pillai and daughter of Mariappa Pillai alias Gurnatha Pillai. The said Alagammal as the sole and exclusive owner of the 59 cents including the suit property has executed a registered Will dated 23.5.1952 in favour of her daughter Murugayee Ammal and her grand daughter Sakunthala, Lakshmi and Dhanalakshmi. Item No. 1 of the property is a house bearing door Nos.94, 95 in Madhavaraya Chetti Street, Shevapet, Salem. Item 2 is the land viz., 59 cents and the suit property is a part of the said item 2 in the Will dated 23.5.1952. By virtue of the will, Murugayee Ammal was not given any right in the suit property for the entire 59 cents and she was given only a right of management on behalf of her daughter. Murugayee Ammal died some 11 years age. By virtue of the said will, defendants 4, 5 and Dhanalakshmi became the full owners. Dhanalakshmi died some 14 years back. They are the heirs of the said Dhanalakshmi Ammal. Defendants 2 to 5 are exclusively entitled to the properties. Murugayee Ammal has no power of alienation.
4. There was no agreement of sale between the owners of 59 cents and the 1st defendant at any point of time. The fact that the plaintiff has not chosen to give the date of agreement of sale and other particulars is proof positive, to show that the alleged agreement is only a myth. Defendants 2 to 5 never entered into any agreement with the 1st defendant at any point of time. They did not receive any advance amount. They never handed over possession of the property to the 1st defendant. The partner of the 1st defendant by name Chinnappan is a very influential estate broker. Chinnappan cajoling them that he would sell their property of 59 cents as house plots for such a very high price. The said Chinnappan talked to Murugayee Ammal and stated that their thumb impressions were necessary for that purpose and on that false representation took the thumb impression in blank papers and they suspected that the 1st defendant must have concocted some agreement with these thumb impressions. They are not aware of the alleged agreement of sale between the plaintiff and the 1st defendant and the alleged payment of advance. Even if there is any such agreement, it does not bind defendants 2 to 5 who are the owners of the suit properties. The plaintiff is only a trespasser and he is bound to surrender vacant possession to defendants 2 to 5 removing the superstructure. The plaintiff is not in lawful possession of the suit property and is not entitled to be protected against a lawful owner by a decree of injunction. The agreement between the 1st defendant and the plaintiff is also barred by limitation, even if it is true. The suit is liable to be dismissed with exemplary costs.
5. The trial Court framed two issues and on behalf of the plaintiff, Exs.A-1 to A-6 were marked and P.Ws. 1 to 3 were examined. On the side of the defendants, no documents were filed and no evidence was adduced. The trial court decreed the suit and aggrieved against this, defendants 2 and 3 preferred A.S. No. 9 of 1995 on the file of District Court, Salem and the appeal was allowed and the judgment and decree of the trial court were set aside and the suit was dismissed. Aggrieved against this, the plaintiff has come forward with the present second appeal.
6. At the time of admission of the second appeal, the following substantial question of law was framed.
Whether lower appellate court erred in law in not granting injunction when its own finding is that the appellate had been inducted into possession lawfully?
7. The points that arise for consideration are: (1) Whether the plaintiff is entitled to the relief of permanent injunction? and (2) To what relief?
8. Points: The plaintiff filed a suit for permanent injunction alleging that the suit property originally belonged to one Maruthai Ammal. The 1st defendant entered into an agreement with the owners of the property to purchase the entire area measuring 59 cents and he was put in possession in pursuance of an agreement of sale. The 1st defendant divided into house plots and laid roads. He also entered into an agreement with the plaintiff to sell plot No.70 as well as plot No.71 and paid the advance also. The plaintiff was put in possession of these two plots in pursuance of the agreements of sale on the respective dated viz., 21.6.1977 and 12.1.1980. He constructed a building and the same was assessed to property tax by Salem Municipality and he has been paying the tax also. He is in lawful possession and enjoyment of the property and now the first defendant has to execute the sale deed after receiving the balance of sale consideration. It appears that there were some disputes between defendants 2 to 5 and the first defendant. Defendants 2 to 4 have no right whatsoever, to interfere in his possession and enjoyment.
9. The contesting defendants pointed out that there was no agreement of sale between the owners of 59 cents and the 1st defendant at any point of time. Murugayee Ammal had no power, whatsoever, to alienate any property. Defendants 2 to 5 also never entered into any agreement with the 1st defendant at any point of time and they also did not receive any advance also. And they never handed over possession of the property to the first defendant. The partner of the first defendant viz., Chinnappan made attempts to sell the property of 59 cents as house sites for a higher price and he had taken the thumb impressions from Murugayee Ammal and it must have been used for the purpose of creating the document with the help of these thumb impressions. Since the plaintiff is not in lawful possession of the property, he is not entitled to the relief of permanent injunction and that too, against the real owner.
10. The learned Counsel for the plaintiff contended that there is a finding by both the courts below relating to the agreement of sale and also the possession of the property is only with the plaintiff. Based upon this possession, the relief of permanent injunction ought to have been granted. Exs.A-5 and A-6 receipts were also pressed into service in order to show that the plaintiff was put in possession of the property. Now the first defendant died and the second defendant is the legal heir already on record. The contesting defendants further pointed out that the plaintiff himself has purchased about 5086 sq.ft. from the contesting defendants and other co-owners under two registered documents dated 23.9.1994 and in view of this, it is no longer open to the plaintiff to take shelter under the alleged agreement with the 1st defendant, who had no right, whatsoever, in the property. Further more, the remaining extent of 2345 sq.ft. has been conveyed by the contesting defendants and other co-owners in favour of one Manickam Chettiar. The plaintiff having purchased the property in his wife's name from the real owners in respect of portion of the property, cannot now seek the relief of permanent injunction in respect of the entire property as he himself had given up the right under the alleged agreement. This has not been seriously disputed by the learned Counsel for the plaintiff relating to the purchase of an extent of 5086 sq.ft. by his wife. The plaintiff has also not filed any document to show that he had entered into an agreement of sale with the real owners of the property and he was also let into possession by the lawful owner. Now, it appears that the plaintiff has got possession from the person, who has no valid authority and under the circumstance, he cannot use Section 53-A of the Transfer of Property Act. Further more, the possession, if any, given under Section 53-A of the Transfer of Property Act can be used only as a shield but not as a sword to protest the possession. Even assuming that the plaintiff is in possession of the property, he is only in unlawful possession of the property and, as such, he is not entitled to get the relief of permanent injunction against the true owner. In the absence of any material to show that the plaintiff got possession from the lawful owner at any rate, the present possession of the plaintiff can be equated only as a trespasser.
11. The learned Counsel for the contesting defendants also relied upon a decision of this Court in Alamelu Achi v. Ponniah , wherein it is observed that, "A person in wrongful possession of property is not entitled to be protected against the lawful owner by an order of injunction. When once a court finds that a plaintiff's possession of property is wrongful such possession cannot be protected by assistance of Court". This decision is applicable to the case on hand.
12. Reliance is also placed upon a Bench decision of this Court in Padmanabhan v. M.A. Narasimian , wherein it is observed that "The passive equity as provided under Section 53-A of the Act shall be available as a shield against any interference by the defendant who is either the transferor himself or any other person claiming through the transferor but would not become active equity without there being something more."
13. They also relied upon a decision of the Apex Court in Premjji Ratansey Shah v. Union of India (1994) 2 L. W. 735, wherein it is stated as follows:
It is equally settled law than injunction would not be issued against the true owners. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner.
This decision is exactly applicable to the case on hand in all fours.
14. The lower appellate court rightly appreciated the contentions raised by both sides and came to the correct conclusion that the plaintiff is not entitled to the relief of permanent injunction. The learned Counsel for the plaintiff is not in a position to point out any infirmity or there is any erroneous application of law and, hence, no interference is called for.
15. For the reasons stated above, the second appeal fails and is dismissed with costs. Consequently, C.M.P. No. 14854 of 1997 is also dismissed.