Andhra HC (Pre-Telangana)
Maddu Tatha And Ors. vs Uttaravilli Nagamani on 10 February, 1995
Equivalent citations: 1995(1)ALT766
JUDGMENT B.K. Somasekhara, J.
1. The judgment of the learned Sub-Judge, Rajam in A.S. No. 9/1991 dated 21-3-1994 is assailed in this appeal. That appeal was against the judgment and decree passed by the learned District Munsif, Rajam in O.S. No. 179/86, dated 2-4-1991. The suit was filed by the present respondent against the present appellants for permanent injunction restraining the appellants from interfering with her peaceful possession and enjoyment of the plaint schedule property which is described as Survey No. 152 of O. Punja (mettu) with an extent of Ac.2.00 situate in Boddam village in Srikakulam district. That was contested by the appellants. They denied the plaintiff's possession and the lawful possession of the suit property in addition to setting up their own right and possession over the same. The parties went to trial wherein the plaintiff examined herself as P.W.1 and got examined two witnesses as per P.Ws.2 and 3 whereas defendant No3 got himself examined as D.W.1 and defendant No. 1 as D.W.2 and two witnesses as per D.Ws.3 and 4 respectively. By way of documentary evidence the plaintiff got marked Exs.A-1 and A-2 and none by the defendant. An Advocate-Commissioner was appointed for local inspection and he submitted his report which was read as evidence in the case. The learned Munsif after hearing both sides and on the basis of the evidence produced before him, held that the plaintiff is not entitled to permanent injunction and consequently dismissed the suit without costs. Aggrieved by the same, the plaintiff preferred the appeal A.S.No. 9/91before the learned Sub-Judge. He after hearing both the sides set aside the findings of the learned Munsif and held that the plaintiff was in lawful possession of the suit property and consequently allowed the appeal and decreed the suit for permanent injunction restraining the defendants from interfering with her possession. Costs were also awarded to her. That has resulted in the present appeal. The reference to parties as plaintiff and defendants in the suit would be convenient and that will be done.
2.The following grounds styling as substantial questions of law are raised in this appeal:
(a) Whether the suit for injunction as prayed for by the plaintiff in respect of schedule land with the stated boundaries could be decreed in spite of the report of the Commissioner that such land with such boundaries is not identifiable.
(b) Whether the appellate Court is justified in ignoring the Commissioner's report on the ground that he has travelled beyond the warrant without any issue to that effect in the suit and without such a point being raised by the plaintiff.
(c) Whether the Commissioner report which form part of Court record could be ignored on the ground that the Commissioner travelled beyond the warrant when the Commissioner takes pain to identify the land with revenue records and Field Measurement Book and reported that Ex.A-1 patta is not available in the revenue records and the disputed land is recorded as Koneru in revenue records.
3. The facts, controversies, evidence and the findings of the trial Court and the appellate Court may require a brief record in the light of the grounds of appeal. The plaintiff claimed to be the D. Patta holder in Rc. No. 2378/82 and Survey No. 153 P. Punja (Mettu) with an extent of Ac.2.00 situate in Boddam village which is comprised in the suit property. The patta was issued to her in the year 1982. She claimed to be cultivating the land since the year 1982 and continued to be in possession till the date of the suit. Ex.A-1 is the D-patta issued to the plaintiff by the concerned authorities dated 2-5-1982. She paid land revenue to the suit land for the faslies 1392-94 under land revenue receipt Ex.A-2 dated 10-11-85. She alleged interference to her possession and cultivation of the suit land by the defendants. The defendants not only denied the issue of D-patta to the plaintiff in regard to the suit property but also the legality of the same. They also denied the possession of the plaintiff regarding the suit property much less her cultivation at any time till the date of the suit. On the other hand, they contended that the suit property forms part of the Koneru/water tank for the benefit of the village people regarding which no patta could have been issued to the plaintiff. They also setup their own right and possession over the suit property. The correctness of the suit schedule was also challenged. The following issues were framed by the learned Munsif:
(1) Whether the plaintiff is entitled for permanent injunction as prayed for?
(2) Whether the plaint schedule is correct?
(3) To what relief?
The learned Munsif held issues 1 and 2 against the plaintiff and consequently did not give any relief to her by virtue of the finding, on issue No. 3. The learned Sub-Judge raised the following points for determination in the appeal:
(1) Whether the plaintiff is entitled to the permanent injunction?
(2) Whether the appeal can be allowed?
(3) To what relief?
Points land 2 were held in favour of the plaintiff resulting in allowing the appeal and decreeing the suit for permanent injunction.
4. Admittedly, an Advocate-Commissioner was appointed for local inspection and he submitted the report in regard to certain aspects about the suit land. The learned munsif doubted the correctness of the boundaries of the suit property given in the plaint and also found in the evidence as they are absent in the D-patta Ex.A-1. Such a doubt is supported due to the Commissioner's report. The learned Munsif has found that the plaintiff is not a resident of Boddam, she did not file any adangal to show her cultivation or possession of the suit property and Ex.A-2 being the land revenue receipt was only for three years paid at one time. He also found that the suit property is a Koneru or part of a water tank and not a cultivable land. He also found that the evidence of D.Ws.1 to 4 including the Sarpanch of the Gram Panchayat of Boddam against the plaintiff regarding the possession of the suit land which is styled as Madduvani Koneru. The learned Munsif called Ex.A-1 as not a valid document. It is further held by the learned Munsif that by virtue of the Board Standing Order No. 15 the revenue authorities were no empowered to issue patta of assignment of poramboke and reserve lands and therefore, the plaintiff had failed to prove her possession and the lawful possession in regard to the suit property. The learned Sub-Judge while reappreciating the evidence accepted the testimony of the plaintiff and her brother-in-law P.W.2 that she was cultivating the land by raising jute and other dry crops and also found corroboration of their evidence through the testimony of another local witness PW. 3. While appreciating the evidence of the defendants, the learned Sub-Judge has found that their case is inconsistent regarding their own right over the suit property or the possession inasmuch as their right to take water from the Koneru as members of the public. The learned Sub-Judge has also found that the Surveyor measured the land and delivered possession of the same to the plaintiff as per her testimony. In regard to the Commissioner's report the learned Sub-judge has come to the conclusion that the Commissioner was appointed only to find out the identity of the property and also to make out the boundaries and to find out whether it is cultivated or not, but he has gone beyond the scope of the Commission work. He has also come to the conclusion based on certain rulings that the suit merely for permanent injunction based on possession had sufficient evidence to prove the possession because according to him only a portion of the tank has come to the plaintiff on its extreme end, the publicrights if any in regard to the water in the tank are not proved to be affected due to the plaintiff's possession or cultivation of the land; unless and until the patta is cancelled the plaintiff is entitled to be in possession of the property and defendants cannot interfere with the possession. It is concluded by the learned Sub-Judge that when the plaintiff was not interfering with the public rights of using the rest of the tank, the trial Court erred in holding that the plaintiff is not entitled to injunction.
5. On a proper approach of the matter in a Second Appeal, this Court feels that in a simple suit for permanent injunction based on D-patta issued by the Governmental authorities to the plaintiff and the possession based upon the same, the learned Sub-Judge appears to have dealt with the matter in a most improper and incorrect manner as against the correct and the proper approach of the matter by the learned Munsif in giving clear findings of the real questions involved in the suit. The Courts below are to be reminded that in a suit for permanent injunction particularly with reference to the contentions raised in the pleadings, the issues ought to have been framed as follows:
(1) (a) Whether the plaintiff was in possession of the suit property on the date of the suit?
(b) If so whether such a position is lawful?
(2) Whether the defendants interfered with the possession of the plaintiff regarding the suit property or whether they were justified in interfering with such a possession?
(3) Whether the plaintiff is entitled to the permanent injunction sought for?
(4) To what order?
Surprisingly, both the Courts below have adopted a very easy and short cut means of simply raising an issue or a point for determination whether the plaintiff is entitled to permanent injunction. However, they may not by themselves put the judgments into illegality, because the incidental questions covered by the real issues 1 and 2 stated above are considered and covered by the ultimate finding on issue No. 3 supra.
6. The learned Munsif based his finding that the plaintiff was not in possession of the suit property on the date of the suit with the support of evidence and circumstances. Firstly D-patta Ex.A-1 is found of be doubtful about the land which was actually assigned to the plaintiff. It did not contain any boundaries where as the plaint schedule gave the boundaries. It was also found that the suit property was part of Madduvani Koneru a tank. The commissioner's report supported such a fact. The Field Measurement Book (F.M.B.) further confirmed the same. The eastern boundary in the plaint schedule is given as Koneru. The Commissioner has found the total area of Madduvani Koneru as Ac. 4.00 and that the area of the suit property mustbe the western portion of the Koneru. The oral evidence in the case also bring out such a probability. The learned Sub-Judge has also held that the suit land form part of Koneru. It is not the conclusion therein that boundaries of the suit property are established to cover Ex.A-1 D-patta to make it beyond Koneru. The case of the plaintiff as if the land under Ex.A-1 was given quite beyond or independent of Madduvani Koneru is found to be improper. In other words, the plaintiff has tried to show that she came into possession of the suit property not forming part of the Koneru but adjacent to it by virtue of Ex.A-1. When Ex.A-1 itself is silent about it, her basis for the claim is not well supported. If Ex.A-1 is the basis on which the plaintiff claims to be in possession of the suit property, her case falls beyond any probability.
7. There is no evidence to show that the plaintiff was actually put into possession of the suit property by virtue of Ex.A-1. There is no document under which she was put into possession by virtue of Ex.A-1 by the revenue authorities who were acting under the Tahsildar who granted the patta Ex.A-1. No Adangal or any document is produced to prove that the plaintiff actually cultivated the suit property either immediately after Ex. A-1 was issued or subsequently till the suit was filed in the year 1986. The Commissioner has reported that in No. 2 Adangal there was an entry as: "U. Nagamani, Ac.2.00, D.C. No. 2328 /82 there is no cultivation". This would be inconsistent with the case of the plaintiff that she cultivated the suit property by virtue of Ex.A-1 till the date of the suit. The Commissioner has reported that the F.M.B. (Field Measurement Book) did not disclose that survey No. 152 was divided into parts to think that the plaintiff could have come into possession of that part which is covered by Ac.2.00 out of the Koneru on the western portion. If that is read with the entry in No. 2 Adangal that there was no cultivation of the land for the relevant years, it means that the plaintiff never cultivated the land nor came into possession of the same.
8. Not only the identity of the suit property was not established by the plaintiff but also the cultivation of any portion in the Koneru was impossible or improper as found from the Commissioner's report. Paras IV to IX of the Commissioner's report may be repeated for convenience as hereunder:
IV.S. No. 152 is a Koneru by name Madduvani Koneru, the extent of the said Koneru is Ac.4.48 cents as found in the F.M.B. the boundaries of the said Koneru are as follows:
East: 1. Kattayya Tank South: Wet lands of 1. Maddu Asiri Naidu
2. Batna Chandrinaidu
3. Maddu Appa Rao West: Wet lands of
1. Maddu Sayannamma
2. Batna Chinna Appanna
3. Maddu Asirinaidu
4. Gunda Adernma
5. Reddy Appanna
6. Maddu Chinnavadu
7. Maddu Lakshminarayana
8. Maddu Dalinaidu North: Bhagavan Sagar Tank Water Channel. This water channel is found to be part and parcel of S.No. 152 i.e., Madduvani Koneru.
V. The suit land is specifically stated part of S.No. 152 (part) Measuring Ac.2.00 said to have been assigned under 'D' form patta. The main purpose and scope of the commission is to identify the suit schedule land in S.No. 152 of Boddam village with reference to village records, plaint schedule. At the time of my inspection almost the entire S.No. 152 viz., Madduvani Koneru is filed with water touching the bounds of the Koneru on East, South and the southern bund of the Bhagavan Sagar Tank Channel lying in the extreme northern portion of S.No. 152. The line of S.No. 152 is from west to east therefore at the time of inspection the water in the Koneru is found to be close to western bund of the Koneru. But the water is not touching the western bund as in the case of other bunds of the Koneru.
VI. At the time of my inspection I did not find any part of S.No. 152 cultivated, 1 did not find any distinct part in S.No. 152 as being cultivated. S.No. 152 on my observation gave me to understand that it is not made up of any parts or divided into parts, by any demarcation such as bunds or survey stones. In the F.M.B. also I did not find that S.No. 152 is divided into any parts, therefore, I can safely say that it is not possible for me to identify S.No. 152 distinctly on the land on a perusal of the suit schedule. The suit land must be the western part of the S.No. 152 since the western boundary and northern boundary as stated in the schedule are tallying, the southern boundary of the schedule did not tally, as there is no wet land belonging to Konna Surinarasimhulu.
VII. Further the eastern boundary of the suit land is mentioned as Koneru obviously referring to Madduvani Koneru. Hence I must say again that I did not find any field bunds raised in S.No. 152 and that the western portion of S.No. 152 has been brought under cultivation there are also no traces of cultivation of any part of S.No. 152 much less the western portion.
VIII. At the time of my inspection when I enquired of any bund being raised dividing the Koneru into western and eastern parts, the respondent tried to impress upon me that he raised a bund across the Koneru and that the same was submerged into the Koneru and hence it could not be found distinctly on land. I did not find any traces of such a bund touching the southern bund of the Koneru and the southern bund of Bhagavan Sagar Tank Water Channel which is serving as the northern bund of the Koneru. IX. The Bhagavan Sagar Tank Water Channel lying in the northern portion of S.No. 152 leads to Katarnayya tank in the said channel I found a small cross bund at the time of my local inspection Sri K. Kondala Rao, Advocate representing Sri D. Chandrinaidu, Advocate for respondent wanted me to note the said fact.
.........."
In substance there were no boundary marks or bunds to show the cultivation of the suit property by the plaintiff or traces of any portion which was under cultivation at any time. The whole area was submerged in water by the Koneru and it was impossible to cultivate any portion of the tank. This observation gains strength in view of the entry in No. 2 Adangal as stated above. Therefore, the learned Munsif had to come to the conclusion that the plaintiff could not have come into possession of the land much less cultivated the same. Even the learned Sub-Judge while referring to the Commissioner's report has not doubted the correctness of the contents of the report and the observations of the Commissioner. On the other hand, it is pointed out by the learned Sub-Judge that "in view of the admission of P.W.1 before the Commissioner as well as in the evidence and the findings of the Commissioner, there is no possibility to find any signs of demarkation of dividing the suit property from the rest of the tank". Therefore, from the consistent findings of the learned Munsif and the learned Sub-Judge based on evidence, the plaintiff could not have come into possession of the suit property much less cultivated it at any time much less by the time of filing the suit.
9. The learned Munsif appears to have mostly depended upon the report of the Commissioner in addition to other materials to hold the finding of possession against the plaintiff. Except observing that the Commissioner was directed in the warrant to identify the suit schedule land with reference to the survey No. 152/P and boundaries and whether it is cultivated by the petitioner-plaintiff and also for his report and so this is the limited purpose for which the Commissioner was appointed. There is nothing to indicate that the report of the Commissioner was either not relied upon or rejected by the learned Sub-Judge. He has not reasoned that the report of the Commissioner would lead to any other inference than what was drawn by the learned Munsif regarding the possession or cultivation of the suit property by the plaintiff. On the other hand, it appears that the learned Sub-Judge has totally accepted the report of the Commissioner. Moreover in law, the report of the Commissioner could not have been ignored as it is a piece of evidence, to examine and draw inferences by the Court. Admittedly, the Commissioner was appointed under Order 26 Rule 9 of C.P.C. to make local investigation of the suit property to submit the report. The report shows that the Commissioner executed the warrant following all the required procedure in law. Both the parties and their learned Advocates were notified and they were present at the time of local investigation. Work memos were also filed by both the sides which were answered by Commissioner. Both the sides had the knowledge of the Commissioner's report as it was submitted to the Court by the Commissioner. There is nothing to indicate that anybody objected to the contents of the report of the Commissioner. Nobody wanted the Commissioner to be examined either to clarify the contents of the report or to challenge his observations. There was nothing in the report of the Commissioner for the Court to be dissatisfied with the proceedings of the Commissioner. Order 26 Rule 10(1) and (2) of C.P.C. reads:
"10(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.
(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record, but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation."
Therefore, the proceedings of the Commissioner in this case having been covered by Order 26 Rules 9 and 10, the report and other evidence namely, F.M.B. etc., became the evidence in the suit and form part of the record. In other words, the report of the Commissioner being the evidence in the case discredited the testimony of the plaintiff and her witnesses regarding her possession to the suit property on the date of the suit on the basis of the patta Ex.A-1 issued to her. The learned Munsif was totally justified in law in acting upon such a report of the Commissioner as evidence and in drawing inferences against the plaintiff. The learned Sub-Judge although accepted the report of the Commissioner and the findings therein and although did not come to different conclusions, was totally unjustified in holding the possession of the suit property with the plaintiff, when the positive evidence of the Commissioner disproved the possession of the plaintiff over the suit property.
10. It is true that both the Courts below have found that the defendants have failed to prove their rival claim over the suit property. Their claim is found to be inconsistent. Their contention that the suit property is a part of Koneru confers no individual right or possession for them. That the Koneru is a private tank of their ancestors finds no proof whatsoever. Their resistance to plaintiff's claim has no basis. But the plaintiff has to fail or succeed on her own case, but not on the weakness of the defendants.
11. The learned Advocate for the appellants has contended that even if the plaintiff's possession is proved, it is not lawful. According to him, it is unlawful violating the law and rule of assignment thereby becoming repugnant to Section 23 of the Indian Contract Act making it void confering no right on her. This contention has all the force. The suit property being the part of Madduvani Koneru which is a tank, presumably a Government tank or a public tank and at any rate not a private tank. Patently Ex.A-1 was issued to the plaintiff by the Tahsildar by virtue of the powers conferred on him under the Andhra Pradesh Board of Revenue Standing Orders. Such Standing Orders were issued by the Board of Revenue under the Andhra Pradesh (Andhra Area) Board of Revenue Regulation,1803 and it appears that even now such Standing Orders are in force in Andhra Area except with the jurisdiction, powers and duties of the Board under the said Regulations are transferred and vested in and exercised by the Commissioner concerned by virtue of Section 3 of Andhra Pradesh Board of Revenue (Replacement by Commissioners) Act, 1977 (Act 8/77) which came into force on 29-4-1977. The Act succeeded an Ordinance No. 3 of 1977 which was repealed Under Section 10 of the Act. Section l0 of the Act contemplates that in the application, notification, scheme, form or order, any reference to the Board or Member shall, unless the context otherwise requires, be deemed to be a reference to the Commissioner concerned. Therefore, the board of Revenue Standing Orders which were in force as on the date of the Act coming into force wherever it mentions Board or Member, should be deemed to be a reference to the Commissioner for the purpose of enforcement. Thereby the statutory status given to such Standing Orders can be envisaged. It is true that whether the Board Standing Orders has the statutory force or not, was a vexed question before the Courts holding some times in the positive and some times in the negative depending upon the context and the purpose for which such Standing Orders were sought to be enforced or interpreted. Now in view of Katta Rattamma and Ors. v. Gannamaneni Kotaiah,1975 (2) An.W.R. 122, Meghraj Kothari v. Delimitation Commission, , K. Nagarathnammal v. Ibrahim Sahed, , Pasupuleti Krishnamurty v. Annadasu Bapanayya, 1956 ALT 556 and Anji Raju v. State of Andhra Pradesh, the law appears to be that all that is found in the form of Board of Revenue Standing Orders may not have the force of law, but such of the orders which are issued by virtue of the statutory powers of the Board will have the force of law. In State of Andhra Pradesh v. N. Venu Gopal, , the Supreme Court was considering whether the Police Standing Orders have got the force of law. Such Orders like the Board's Standing Orders are a mixtures me times issued under the statutory orders, some times as administrative incorporations. In such a situation, the Supreme Court held that the Standing Order which was not issued under the Madras District Police Act but issued by the Government Order of the Home Department does not have the force of law. Drawing analogy from this precedent and also Katta Rattamna's case1 it can be safely concluded that the Board's Standing Orders are both statutory and non-starutory depending upon the fact whether they are issued under any statute or whether they are issued in the form of a Government Order by the Government in exercise of their executive power to issue instructions under Article 162 of the Constitution of India. Standing Order No. 15 relating to disposal of land found in Part II of the Board or Revenue Standing Orders are admittedly issued by virtue of the statutory powers of the Board of Revenue under the Regulations supra concerning the Revenue administration, It is significant to note that the Board of Revenue which was constituted under the Andhra Pradesh (Andhra Area) Board of Revenue Regulation, 1803 which was in charge of the general superintendence of the revenue from whatever source they may arise were also entrusted with many functions including the administration of justice and Courts. Admittedly, no other rule or statute is pointed out to deal with the disposal of lands by the Board of Revenue and now the Commissioner which is equivalent to Standing Order No. 15 and therefore, it must be taken to be the rule having force of law regarding disposal of lands. Therefore, the law now settled appears to be that orders regarding assignment of lands are to be disposed of in a quasi-judicial manner and even the rules contained in the Standing Orders envisages disposal of applications for assignment in the same manner. The Officer who is competent to order the assignment is thus bound by Standing Order No. 15 in regard to disposal of land by way of assignment or otherwise. In sum and substance, the legality, propriety and the correctness of disposal of land by way of assignment or otherwise are to be decided with reference to Standing Order No. 15. Para (4) of Standing Order No. 15 contemplates two aspects viz., lands that may be assigned and that may not be assigned. Sub-clause (i) of Para (4) of Standing Order No. 15 reads as follows:
"All lands at the disposal of Government except those hereinafter prohibited may be assigned. The assignment of lands shall generally be free of market value except in the case of project affected lands in which case market value shall be collected Sub-clause (ii) of the same para of the Standing Order No. 25 reads as follows:
"The assignment of the following classes of lands is prohibited:
(a) Poramboke (tank-beds, foreshore of tank beds, cattle stands, grazing lands and reserved lands) xxxx xxxx xxxx."
There is a clear prohibition to assign the poramboke tank-beds by the assigning officer and if an assignment is contrary to this prohibition, the same cannot be termed as legal. There will be failure of duty on the part of the officer assigning such a land despite the prohibition. Therefore, even in the normal result of illegal consequences such assignment would become void and unenforceable. The consideration of the object of D-patta Ex.A-1 being the assignment is forbidden by law and if permitted would defeat the Standing Order No. 15 Para 4(i) and (ii) having force of law and therefore, would not be lawful. It would be a flagrant violation of and repugnant to Section 23 of the Indian Contract Act. The operative portion of Section 23 of the Contract Act makes such transaction of which the object or consideration is unlawful, void. In other owrds Ex.A-1 would be void since inception (void ab initio) conferring no right on the plaintiff. Her claim of possession over the suit property based on such void document Ex.A-1 could never thus be lawful. The learned Munsif appears to be very conscious and judicious in considering such a legal position and applying it whereas the learned Sub-Judge is not. Surprisingly he has not even adverted to this either to agree or disagree with the learned Munsif. Therefore, in law, the possession of the plaintiff regarding the suit property even if true as on the date of the suit, is not proved to be lawful.
12. The equity jurisprudence afford guidelines regarding the injunctive remedies a centuary back. In Doharty v. Allman, (1873) 3 Appeal Cases 709, the House of Lords edicted that the grant of injunction is an act depending upon the discretion of the Court. It is not a matter of ex debito justitke, but one which is purely within the sound discretion of the Court (Story's Equity Jurisprudence Section 1183). It cannot be demanded as of right (Winfield on Tort 6th Edn. Page 189). Undoubtedly it is judicial discretion. Discretion when applied to a Court of law, says Lord Mansfield, means discretion guided by law. It must be governed by rule and not by human. It must not be arbitrary, vague and fanciful, but legal and regular (Wilkin's case, 4 Burr 2539 cited in Hurbans v. Bhasiro 50265). It will not be allowed against public convenience (Lewis and Spelling on Injuction Section 16). As distinguished from arbitrary discretion and from lack of discretion sound discretion consists in an observance of the rules and considerations which have generally guided and influenced Courts in granting injunctions (H.C. Joyce on Injunctions Section 318). Such a discretion, must be exercised with extreme caution and only in very clear cases (Chunilal v. Surat City Municipality, 27 Bombay 403). AH these settled principles are to be read in Sections 36, 38 and 41 of the Specific Relief Act, 1963 (Act No. 47/63). The repetition of the relevant portions of these provisions would be of clear guidance. Section 36 reads preventive relief is granted at the discretion of the Court, temporary or perpetual. The law makers appears to have been quite conscious of the judicial interpretation of discretion supra while vising such an expression in this provision. Section 38(1) to be read as:
"Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour.
The existence of an obligation to prevent the breach alleged is mandatory to exercise such a discretion by the Court. Sub-clause (3) of Section 38 reads:
"when the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases:
(a) xxxxxx
(b) xxxxxx
(c) xxxxxx
(d) xxxxxx"
Here again the plaintiff's right to the property and enjoyment of the same is warranted to be established to exercise such a discretion by the Court Under Section 36 of the Specific Relief Act to provide the injunctive remedy. It appears that the proof of lawful possession by the plaintiff in a suit for permanent injunction attracts all these implications by law. Section 41(f) of the Specific Relief Act prohibits granting of an injunction when the plaintiff has no personal interest in the matter. Patently Ex. A-1 cannot confer any personal right on the plaintiff and if at all she along with defendants and similarly placed persons could have a common community or public right over the suit property. Therefore, the learned Munsif was totally justified in not only not granting the permanent injunction to the plaintiff but also in refusing the same to be within Sections 36, 38 and 41 of the Specific Relief Act. The learned Sub-Judge has totally ignored the implications of these provisions.
13. The learned Sub-Judge while accepting the findings of the learned Munsif that the suit property is a portion of Madduvani tank and that the Commissioner was not able to find out the traces of demarcation of the tank which was filled with water; came to the conclusion that the plaintiff is given only a portion which is on the western end of the tank and that may not interfere with the defendants customary right to get water from the tank like other villagers and the decision in the suit rendered by him would give them a cause of action to file a suit against the plaintiff on the ground that plaintiff interfered with their right of suing water and he concluded as follows:
"Unless and until the patta is cancelled the plaintiff is entitled to be in possession of the plaint schedule property and the defendants cannot interfere with her possession merely on the ground that it is a private tank which the defendants failed to prove and that the entire villages are using the tank, when the plaintiff is not interfering with their rights of using the rest of tank."
On the face of it, such expressions by the learned Sub-Judge are beyond all rudimentary principles and a total negation of the legal principles. Thereby the learned Sub-Judge appears to have given a piece of legal advice to the defendants to file a suit against the plaintiff for such reliefs and in particular for cancellation of D-patta Ex.A-1. It was totally unwarranted Chapter V of Specific Relief Act, 1963 deals with cancellation of instruments. It comprises Sections 31 to 33. The relevant provision is Section 31(1) of Act which read as follows:
"Any person against whom a written instrument is void or voidable,, and who has reasonable apprehension that such instrument, is left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled."
It is the choice of the person affected by void or voidable document to file a suit for cancellation of a written instrument where he or she has reasonable apprehension that such instrument if left outstanding, may cause serious injury unless it is adjudged void or voidable. Even then it is for the Court to exercise the discretion to adjudge the document void or voidable and to cancel it. The suit property belongs to public at large. The defendants as members of public are not parties to Ex. A-1. The Government is not a party to the suit. It is not a representative suit for the public to have public notice. Ex.A-1 is a void document since inception (void ab initio) conferring no right on the plaintiff nor affecting the persons interested in the suit property including the defendants. There is no question of cancellation of a document which is not in existence. The law is that if a transaction is void, no question of cancellation or setting it aside would not arise, but if it is only a voidable transaction, that is a transaction valid until rescinded, then it is necessary to set it aside before possession of the property can be claimed. (Ramachandran Jivaji v. Laxman, 1994 PC 54). Unless there is a cloud of doubt in order to remove it, no such suit for cancellation of the document is warranted as laid down in Muppudathi Pillai v. Krishnaswamy Pillai, AIR 1960 Mad. 1 (F.B.). The learned Sub-Judge appears to be not conscious of these settled principles of law.
14. In a matter concerning the discretion or the Court in granting or rejecting the relief of permanent injunction where the findings of facts were actually accepted by the learned Sub-Judge sitting in the Court of first appeal, interference with such findings of the trial Court appears to be totally unjustified and opposed to law. The sum and substance of the precedents in this regard can be noted for proper guidance.
"Interference in appeal:- Pigot., J., observed in Baddam v. Dhunput Singh, (1889) 1 CWN 429, that the power of granting an injunction is one which has been perhaps a little lavishly bestowed upon the Courts in this country. It is a tremendous power and one which the superior Courts must carefully guard themselves from exercising hastily or without solid grounds. When both the Courts below have held that the case is a fit one for an injunction, the decision will not generally be interfered with in second appeal. If the lower Court has exercised its discretion judicially, the mere fact that any one else sitting as the Court of first instance might have come to a different conclusion is not sufficient for interference in appeal. If the discretion was exercised on erroneous principles, interference in appeal would be justified. There is a sound exercise of judicial discretion when the judge rightly appreciates the facts and applies to those facts the true principles of law. The fact that the judges of the appellate Court might have taken a different view is not sufficient for interference with the discretion of the lower Court.
(Quoted at page No. 772 of the Law of Specific Relief, Second Edition by G.C.V. Subba Rao).
The contrary rule equally applies when the trial Court withholds the discretion for sound and justifiable reasons, the appellate Courts cannot interfere with the same lightly unless the order is perverse or capricious.
15. As a whole, the learned Sub-Judge not only ignored the fundamental principles of law in dealing with such a matter but also landed in erroneous conclusion on certain principles of law stated above and therefore, this Court is justified in interfering with the Judgment of the learned Sub-Judge and further restoring the judgment and decree of the learned Munsif.
16. For the reasons stated above, the appeal is allowed. The judgment and decree of the learned Sub-Judge in A.S. No. 9/1991 dated 21-3-1994 is hereby set aside. Consequently, the judgment and decree of the learned Munsif in O.S. No. 179/86 dated 2-4-1991 are hereby confirmed. In the peculiar circumstances of the case, the parties shall bear thier respective costs throughout.