Madras High Court
Anthonisamy vs Thattuvatheethan on 23 July, 2021
Author: C.Saravanan
Bench: C.Saravanan
S.A.No.205 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 13.07.2021
Pronounced On 23.07.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
S.A.No.205 of 2012
and M.P.No.1 of 2012
(Through Video Conferencing)
1.Anthonisamy
2.Gnanasekaran ... Appellants
vs.
1.Thattuvatheethan
2.Selvarajan ... Respondents
Second Appeal filed under Section 100 of Civil Procedure Code,
1908 against the Judgment and Decree dated 25.04.2011 passed in
A.S.No. 64 of 2010 by the Subordinate Judge, Mannarkudi, Tiruvarur
District, by confirming the Judgment and Decree dated 30.11.2009
passed in O.S.No.49 of 2009 by the Principal District Munsif,
Vlangaiman.
______________
https://www.mhc.tn.gov.in/judis/
Page No 1 of 26
S.A.No.205 of 2012
For Appellants : Mr.M.Balasubramanian
For Respondents : Mr.N.Damodaran
JUDGMENT
The successful plaintiffs are the appellants in this Second Appeal. They are aggrieved by the impugned Judgment and Decree dated 25.04.2011 passed by the Court of Subordinate Judge, Mannargudi (hereinafter referred to as First Appellate Court) in A.S.No.64 of 2010.
2. By the impugned judgment, the First Appellate Court reversed the Judgment and Decree passed by the Court of Principal District Munsif, Valangaiman (hereinafter referred to as Trial Court) in O.S.No.49 of 2009 on 30.11.2009. The Trial Court had decreed the suit filed by the appellants.
3. The appellants/plaintiffs filed the above suit on 15.04.2009 for a permanent injunction to restrain the respondents/defendants from interfering with the alleged peaceful possession and enjoyment of the suit schedule property, i.e. agricultural land measuring about 37½ cents of ______________ https://www.mhc.tn.gov.in/judis/ Page No 2 of 26 S.A.No.205 of 2012 land.
4. The suit was filed on the strength of the alleged possession over the disputed property, in respect of which, the appellants'/plaintiffs' father and the respondents'/defendants' father had allegedly entered into a Sale Agreement vide Ex.A1 dated 11.06.1981 for a total sale consideration of Rs.4,028/-.
5. It is the specific case of the appellants/plaintiffs that the possession of the suit schedule property was handed over to the appellants/plaintiffs father by the respondents'/defendants father on 26.12.1981 and after receiving the entire sale consideration a patta was also issued in the name of the appellants'/plaintiffs' father in Ex.A3 in the year 1981 itself. In support of the above suit, the appellants/claimants had marked Kist in Ex.A4 and other documents.
6. Before the Trial Court, the first appellant/first plaintiff has examined himself as P.W.1, and one Krishnaswamy as P.W.2and the Village Administrative Officer as P.W.3.P.W.2 is said to be a common ______________ https://www.mhc.tn.gov.in/judis/ Page No 3 of 26 S.A.No.205 of 2012 friend of both the appellants/plaintiffs and the respondents/defendants fathers, who had allegedly witnessed the execution of Ex.A1 Sale Agreement dated 11.06.1981.
7. On the other hand, the respondents/defendants had produced Ex.B1 Land Ownership Notebook, Ex.B2 Original Copy of Chitta Certificate, Ex.B3 Original of Adangal, Ex.B4 Joint Patta and Ex.B5 Order of transfer of Patta dated 08.05.2008 in support of the present case.
8. The Trial Court after considering the evidences on record and the deposition of the witnesses had decreed the suit as prayed for by its Judgment and Decree dated 30.11.2009.
9. The Trial Court has concluded that the defence of the respondents/defendants that Ex.A1 was a fake document because apart from the name of the respondents' father S.Samynatha Veludaiyar, the respondents name were also there in the said sale agreement cannot be accepted.
10. The Trial court further concluded that the possession of the suit ______________ https://www.mhc.tn.gov.in/judis/ Page No 4 of 26 S.A.No.205 of 2012 schedule property was with the appellants/plaintiffs inasmuch as the kist indicates that the kist amounts were paid by the appellants' father eventhough the kist was in the name of the respondents' father. Therefore, the possession was with the appellants herein.
11. The Trial Court has further concluded that the respondents have not produced any evidence to show that the amount was not paid by the appellants' father for on their behalf. If the suit schedule property was in the possession of the respondents/defendants, then it was the responsibility of the respondents/defendants or their father to pay the kist.
12. However, the respondents/defendants have not filed any kist receipts. On the other hand, the kist payments were made by the appellants father and therefore respondents/defendant had not substantiated possession with them.
13. Thus, the Trial Court declined to accept the defence of the respondents/defendants and upheld the contention of the appellants/plaintiffs. Thus, the Trial Court has concluded that the ______________ https://www.mhc.tn.gov.in/judis/ Page No 5 of 26 S.A.No.205 of 2012 possession of the suit schedule property was with the appellants/plaintiffs herein.
14. Aggrieved by the same, the respondents/defendants had filed A.S.No.64 of 2010 before the Subordinate Court, Mannargudi which came to be allowed on 25.04.2011.
15. The First Appellate Court reversed the Judgment and decree passed by the Trial Court with the following observations:-
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16. Noting the content of the deposition of P.W.3 who has categorically stated that he was not aware whether the appellants/plaintiffs were in possession of the suit schedule property, The First Appellate Court in the impugned Judgment and Decree dated 25.04.2011 in A.S.No.64 of 2010 reversed the judgment and decree of the Trial Court.
17. The First Appellate Court has also noted that no steps were taken by either the father of the appellants/plaintiffs or by the appellants/plaintiff for executing Sale Deed in terms of Ex.A1 Sale Agreement dated 11.06.1981 nor any suit no suit for specific performance ______________ https://www.mhc.tn.gov.in/judis/ Page No 7 of 26 S.A.No.205 of 2012 was filed by them. The First Appellate Court has also noted that the contradiction in the evidence of P.W.3.
18. Aggrieved by the same, the appellants/plaintiffs have filed this appeal. This case was not admitted when it was originally listed for admission. Instead, notice of motion was ordered on the respondents as was the practice prevailing then. Thus, the respondents are represented by their counsel today. With the consent of both the counsel, this appeal is taken up for final hearing.
19. The learned counsel for the appellants submitted that the following questions of law can be taken up for consideration under Section 100 of C.P.C for a final disposal of this appeal:-
“(i) Whether the First Appellate Court is correct in law in reversing the well considered findings and decisions arrived at by the trial Court based on concrete facts and documentary evidence?
(ii) Whether the First Appellate Court is correct in law in observing that the Appellants/Plaintiffs ought to have filed a suit for specific performance, when the cause of action for the suit itself arose only on 9-4-2009, that too for protecting the long, continuous and settled ______________ https://www.mhc.tn.gov.in/judis/ Page No 8 of 26 S.A.No.205 of 2012 possession and enjoyment of the suit property with the Appellants/Plaintiffs?
(iii) Is the First Appellate Court right in ignoring the well settled legal dictum that even a belated Sale Agreement, supported by consideration can be relied on and used as a shield to seek the equitable relief of possession?
(iv) Is the First Appellate Judge justified or correct in law in simply ignoring the unimpeachable documentary evidences adduced during the trial on the side of Appellants/Plaintiffs to establish their right to claim the protective injunction relief, when admittedly, the Agreement or Sale is time barred one, although it is supported by payment of full consideration and coupled with physical possession?”
20. The learned counsel for the appellants/plaintiffs submits that ever since 1981, the appellants/plaintiffs have been cultivating banana plantation in the suit schedule property and were in peaceful possession without any disturbance and that on 09.04.2009, the respondents/defendants interfered with their possession and therefore they were entitled for a permanent injunction.
21. The Judgment and Decree passed by the Trial Court was reversed primarily on the ground that the respondents'/defendants' father ought to have filed the suit for specific performance and therefore it does not lie in the mouth of the appellants'/plaintiffs' to claim possession based ______________ https://www.mhc.tn.gov.in/judis/ Page No 9 of 26 S.A.No.205 of 2012 on the documents filed in support of the alleged possession.
22. On behalf of the respondents/defendants, Mr.N.Damodaran, the learned counsel would submit that Kist marked as Ex.A4 was issued only on 04.02.2009 which was few days prior to filing of O.S.No.49 of 2009 on 15.04.2009 and the Kist was also obtained only in the name of the father of the appellants/plaintiffs and not in the name of respondents/defendants though their father had died long back.
23. The learned counsel for the respondents further submitted that the suit schedule property originally consisted of 79 cents which was partitioned equally on 18.05.1961 between the respondents/defendants father Samynatha Veludaiyar and his younger brother Kailasa Veludaiyar equally.
24. It was further submitted that the appellants/plaintiffs were allegedly in possession of 50% of the land measuring about 39 ½ cents of the respondents'/defendants' uncle KailasaVeludaiyar( i.e. younger brother of S.SamynathaVeludaiyar) and that the balance 39 ½ cents of the ______________ https://www.mhc.tn.gov.in/judis/ Page No 10 of 26 S.A.No.205 of 2012 respondents'/defendants' father was in their fathers possession and thereafter with them and that after their father death. It was further submitted after death of their father S.SamynathaVeludaiya, the name of their mother Ramavidhan as substituted in the joint patta.
25. The learned counsel for the respondents/defendants relied on the following decisions of this Court:-
i. RajaramaIyer alias LakshminarayanaIyer Vs. PalanivelAmbalakarar (died) and others, 1999 (1) CTC 641.
ii. T.S.Govindarajan Vs. M.Govindarajan, 2020 (40 CTC 61.
26. The Trial Court further observed that Ex.A5 Certificate of Village Administrative Officer (V.A.O.) and the evidence of P.W.3, the V.A.O. indicated that the appellants/plaintiffs were in possession of the suit schedule property even though Exs.A6 and A7 (Chitta and Adangal respectively) were in the names of both the appellants’/plaintiffs’ father and the respondents’/defendants’ father. ______________ https://www.mhc.tn.gov.in/judis/ Page No 11 of 26 S.A.No.205 of 2012
27. The Trial Court has further concluded that the Exs.A6 and A7 (Chitta and Adangal respectively) were in the names of the appellants’/plaintiffs’ father and the respondents’/defendants’ father and therefore, the appellants/plaintiffs was in possession of the suit schedule property.
28. The Trial Court has also concluded that only because no sale deed was executed pursuant to Ex.A1 Sale Agreement dated 11.06.1981, the names of the appellants/plaintiffs and the respondents/defendants were in Exs.A6 and A7.
29. The Trial Court has further concluded that Ex.B1 produced by the respondents was in the name of respondents/defendants father S. SamynathaVeludaiyar was prior to the execution of Ex.A1 Sale Agreement and therefore did not further case of the respondents/defendants that they were only in possession of the suit schedule property.
______________ https://www.mhc.tn.gov.in/judis/ Page No 12 of 26 S.A.No.205 of 2012
30. It was further observed by the Trial Court that Ex.B2 original of Chitta also indicated the names of the appellants/plaintiffs and the respondents/defendants and therefore did not further case of the respondents/defendants that they were in possession of the suit schedule property.
31. It was further held that Ex.B3 Adangal was only in the name of appellants’/plaintiffs’ father and therefore Ex.B3 also did not further the case of the respondents/defendants that the appellants/plaintiffs were in possession of the suit schedule property.
32. The Trial has further concluded that Ex.B4 and Ex.B5 dated 08.05.2008 (Joint Patta and order of transfer of Patta respectively) were also in the name of both the appellants’/plaintiffs’ father and the respondents'/defendants' father. Thus, it has been concluded that respondents/defendants were not in joint possession of the suit schedule property between along with the appellants/plaintiffs. ______________ https://www.mhc.tn.gov.in/judis/ Page No 13 of 26 S.A.No.205 of 2012
33. The Trial Court has further observed that P.W.2, a common friend of the appellants’/plaintiffs’ father and the respondents’/defendants’ father who had deposed that the suit schedule property was in the possession of the appellants/plaintiffs and that P.W.3 V.A.O in his Ex.A5 Certificate has also stated that the appellants/plaintiffs were cultivating banana plantation in the suit schedule property and that even though the D.W.1 (the second respondent/second defendant) in his deposition has stated that he was cultivated the banana plantation in the suit schedule property, the second respondent/second defendant has not produced any evidence to substantiate the same.
34. I have considered the arguments advanced by the learned counsel for the appellant and the learned counsel for the respondent. I have also perused the impugned judgement and decree passed by the appellate court and that of the Trial Court allowing the suit filed by the appellant herein.
35. Though the learned counsel for the appellant had attempted to ______________ https://www.mhc.tn.gov.in/judis/ Page No 14 of 26 S.A.No.205 of 2012 persuade this Court has to dispose this appeal based on the draft substantial questions of law which was filed and has been reproduced in para 11 of this order, this Court is of the view, the substantial questions of law that arises for consideration in this appeal is whether the appellants /plaintiffs were entitled to file a suit for a mere permanent injunction simplicitor without establishing a prayer for declaration of title by legal dejure rights over the suit schedule property?
36. The appellants here had not filed a suit for specific performance. On the other hand, the appellants had filed a suit for a mere permanent injunction. If the appellants wanted to perfect their title and alleged possession, they should have filed a suit for specific performance within the period of limitation. Such a remedy was obviously not available to the appellants at a distant point of time in 2009.
37. The categorical case of the respondents/defendants before the Trial Court was that after the property was partitioned between the respondents’/defendants’ father Samynatha Veludaiyar and his younger brother Kailasa Veludaiyar on 18.05.1961, the respondents/defendants ______________ https://www.mhc.tn.gov.in/judis/ Page No 15 of 26 S.A.No.205 of 2012 continued to be in possession of the property and they continued to be cultivated banana plantation.
38. It has been further submitted that the appellant/plaintiffs were in possession of the share that was allotted to their paternal uncle in the Partition Deed dated 18.05.1961. This aspect ought to have been probed by the Trial Court.
39. If the father of the appellants/plaintiffs was in possession of the share that was allotted to the respondents’/defendants’ paternal uncle Kailasa Veludaiyar it is quite natural that joint patta would have been issued in the name of the fathers of the respective parties to the litigation. Therefore, exclusive possession by the appellants cannot be inferred based on the exhibits marked before the Trial Court.
40. Further, there are no records to substantiate that the appellants/plaintiffs have perfected their title as no sale deed was executed pursuant to the alleged execution of Ex.A1 Sale Agreement dated 11.06.1981 between the respective fathers of the ______________ https://www.mhc.tn.gov.in/judis/ Page No 16 of 26 S.A.No.205 of 2012 appellants/plaintiffs and respondents/defendants.
41. A suit for a mere a permanent injunction cannot lie if there is no legal rights over the property. At best, it was open, for the appellants to have filed a suit, for perfecting their title on account of adverse possession as per the decision of the Hon’ble Supreme Court in Ravinder Kaur Grewal Vs. Manji Kaur, (2019) 8 SCC 729.
42. As per the above decision of the Hon'ble Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453, a suit for declaring title based on the adverse position is also maintainable. It held as follows:
“ 62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file ______________ https://www.mhc.tn.gov.in/judis/ Page No 17 of 26 S.A.No.205 of 2012 a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.”
43. In Mademsetty Satyanarayana v. G. Yelloji Rao, (1965) 2 SCR 221: AIR 1965 SC 1405, the Hon'ble Supreme Court pointed out the difference between the law in England and in India.
44. It observed that the fundamental difference between the two systems — English and Indian — qua the relief of specific performance is that in England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no ______________ https://www.mhc.tn.gov.in/judis/ Page No 18 of 26 S.A.No.205 of 2012 period of limitation for instituting a suit for the said relief and therefore, mere delay — the time lag depending upon circumstances — may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation.
45. If the suit was in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time; in either case, no question of equity arises. It further observed that “While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression “waiver” in its legally accepted sense, namely, “waiver is contractual, and may constitute a cause of action: it is an agreement to release or not to assert a right”; see ______________ https://www.mhc.tn.gov.in/judis/ Page No 19 of 26 S.A.No.205 of 2012 Dawson's Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha [(1935) LR 62 IA 100, 108.”
46. The Court further observed that it is neither possible nor desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief.
47. In Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 : 2008 SCC OnLine SC 550 at page 607, the Hon’ble Supreme Court summarised the position in regard to suits for prohibitory injunction relating to immovable property, is as under in para 21:-
“ a. Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but ______________ https://www.mhc.tn.gov.in/judis/ Page No 20 of 26 S.A.No.205 of 2012 he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
b. As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
c. But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in AnnaimuthuThevar [AnnaimuthuThevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
______________ https://www.mhc.tn.gov.in/judis/ Page No 21 of 26 S.A.No.205 of 2012 d. Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
48. As the appellants have not perfected their title over the property, mere a suit for a permanent injunction was not sufficient. The appellants have also not sued for specific performance as such a suit would have been hopelessly time barred in the year 2009 on the strength of Ex. A1.
49. In this case, the appellants have not pleaded adverse ______________ https://www.mhc.tn.gov.in/judis/ Page No 22 of 26 S.A.No.205 of 2012 possession. However, they claim to be in possession of the suit schedule property and therefore had filed the above suit.
50. Since the appellants did not perfect their title either based on aforesaid agreement Ex A or on account of any adverse position, the appellants cannot asks for a relief of permanent injunction.
51. This court by an order dated 28.3.2012 has granted an interim injunction restraining the respondents from in any manner interfering with the peaceful possession and enjoyment of the suit schedule property pending disposal of the above appeal.
52. If the appellants/plaintiffs are allegedly in possession of the suit schedule property, appellants ought to have filed a suit for declaring title over the suit schedule property and as a consequential relief, they should have asked for a relief for permanent injunction.
53. As per the decision of the Hon’ble Supreme Court in Prataprai ______________ https://www.mhc.tn.gov.in/judis/ Page No 23 of 26 S.A.No.205 of 2012 N.Kothari vs. John Braganza, (1999) 4 SCC 403, it was held that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also settled that the owner of the property can get back the possession by resorting into due process of law. In this case, the appellant has not established that the respondents/defendants were not the true owners of the property.
54. Since there are no records to substantiate that any right over the property as a significant owner, the appellants/plaintiffs are not entitled for a relief of permanent injunction. Therefore, it cannot be said that the First Appellate Court has come to an erroneous conclusion. Thus, this appeal filed by the appellants/plaintiffs has to fail.
55. Therefore, the substantial questions of law is answered against the appellants.
56. The appeal stands dismissed with the above observation. No costs. Consequently, connected miscellaneous petition is closed. ______________ https://www.mhc.tn.gov.in/judis/ Page No 24 of 26 S.A.No.205 of 2012 23.07.2021 Internet : Yes/No Index : Yes / No kkd To
1.The Subordinate Judge, Mannarkudi, Tiruvarur District,
2.The Principal District Munsif, Vlangaiman. ______________ https://www.mhc.tn.gov.in/judis/ Page No 25 of 26 S.A.No.205 of 2012 C.SARAVANAN, J.
kkd Pre- Delivery Judgment in S.A.No.205 of 2012 23.07.2021 ______________ https://www.mhc.tn.gov.in/judis/ Page No 26 of 26