Madras High Court
Kulasekarapattinam Panchayat vs Narayanavadivu on 14 July, 2021
Author: S.S.Sundar
Bench: S.S.Sundar
S.A.(MD).No.592 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 14.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Second Appeal(MD)No.592 of 2015
and
C.M.P.(MD)No.1 of 2015
Kulasekarapattinam Panchayat,
Rep. by its President,
Panchayat Office,
Kulasekarapattinam – 628 206,
Tiruchendur Taluk,
Tuticorin District. : Appellant/Appellant/2nd Defendant
-Vs-
1.Narayanavadivu
2.Jyothi Vinayagam
3.Annamugam
4.Shanmuganathan
5.Balasaraswathi
6.Nithiyananda Eswaran : Respondents 1 to 6/Respondents 1 to 6/
Plaintiffs
7.Madasamy
8.Commissioner,
Udangudi Panchayat Union,
Udangudi – 628 101.
9.Block Development Officer,
Collectorate,
Tuticorin – 628 101.
10.Government of Tamil Nadu,
Rep. by its District Collector,
Tuticorin District,
Tuticorin – 628 001. : Respondents 7-10/Respondents 7-10/
Defendants 1 and 3 to 5
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S.A.(MD).No.592 of 2015
Prayer: Second Appeal filed under Section 100 of the Code of the
Civil Procedure, praying to set aside the decree and the judgment
dated 29.11.2013 rendered in A.S.No.29 of 2010 on the file of the
Subordinate Judge, Tuticorin, confirming the decree and the judgment
dated 12.08.2009 rendered in O.S.No.62 of 2005 on the file of the
Additional District Munsif of Tiruchendur, by allowing this Second
Appeal.
For Appellants : Mr.S.Subbiah
Senior Counsel
for Mr.G.Aravindan
For Respondents 1 to 6 : Mr.M.P.Senthil
For Respondent 7 : No appearance
For Respondents 8 to 10 : Mr.R.Sethuraman
Special Government Pleader
***
JUDGMENT
The second defendant in the suit in O.S.No.62 of 2005 on the file of the Additional District Munsif Court, Tiruchendur, is the appellant in the above Second Appeal.
2.The respondents 1 to 6 in this appeal filed the suit in O.S.No. 62 of 2005 for declaration of their title to the suit property and for consequential relief of mandatory injunction to remove a T.V. room constructed by the second defendant and for removal of a well that had been dug by the third defendant in the suit.
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3.The appellant/second defendant is the local body, namely, Panchayat of Kulasekarapattinam. The third defendant is the Commissioner of Udangudi Panchayat Union. The fourth defendant is the Block Development Officer and the fifth defendant is the State represented by the District Collector.
4.The suit property is described as an extent of 5 7/8 cents (72 ft east-west x 35 ft. north-south) out of a larger extent in Natham Survey No.239 in Kulasekarapattinam Village within the Udangudi Sub Registration District. The property is described as land and thatched house bearing Door No.3A within Kulasekarapattinam Town Panchayat.
5.The plaintiffs stated in the plaint that the suit property was purchased by the husband of first plaintiff and father of plaintiffs 2 to 6 by way of registered sale deed dated 22.06.1981 from one Pattani, son of Kovilpillai for a valid consideration and that the property was fenced on all sides at the time when the property was purchased. It is also stated that the thatched house bearing Door No.3A was there in the suit property and that the first plaintiff was paying kist and tax for the building. Stating that their father Thiru.Yacob died on 27.12.1994 3/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 leaving behind the plaintiffs as his legal representatives, the plaintiffs claimed absolute title to the suit property. It is also admitted in the plaint that the thatched house was destroyed and that the property was kept as a vacant land with boundary stones on all sides. They contended that the Udai trees grown in the suit property were periodically cut and removed by the plaintiffs.
6.It is the specific case of the plaintiffs that the defendants have no semblance of right over the property and that the second defendant at the instance of first defendant put up a T.V. room in a small portion of suit property without the permission of the plaintiffs in October, 2002. It is also contended by the plaintiffs that the third defendant, during May, 2003 dug a well without the permission of the plaintiffs. Stating that the construction of T.V. room and digging of well by defendants 2 and 3 respectively are illegal, the plaintiffs contended that the illegal construction by encroaching into the property of plaintiffs should be removed. It was also alleged that the defendants 2 and 3 are trying to remove the trees standing in the other part of the property and that therefore, the defendants should be restrained from interfering with the possession and enjoyment of the suit property by the plaintiffs. It was on this background, the suit 4/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 came to be filed for declaration of title and consequential permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property by putting up construction or by other manner. As stated earlier, the relief of mandatory injunction to remove the T.V. room and the well were the consequential reliefs.
7.The suit was contested by the second defendant alone. It appears that other defendants jointly endorsed the written statement filed by the second defendant. In the written statement, it was contended by the second defendant that the suit property measuring an extent of 0.01.69 ares in Survey No.256/40 belong to an organisation by name Mutharamman F.R.C. Kovil Dussehra Kuzhu. It is further stated that the second defendant with the permission of the said Dussehra Kuzhu constructed a T.V. room under Jawahar Employment Scheme. It is also stated that the well was also dug by the third defendant. Since the second defendant believed that the suit property belongs to a third party, it is also contended by the second defendant that the said third party is also a necessary party to the suit. Since the second defendant took a stand that the suit property lies in a different survey field, it was further contended that the suit 5/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 property, as per the description of the plaint, cannot be identified on ground. The case of the plaintiffs relying upon the sale deed dated 22.06.1981 and the plaintiffs' contention about their enjoyment were specifically denied by the second defendant in the written statement. Stating that the plaintiffs are not in enjoyment of the suit property, it is contended by the second defendant that the suit for declaration of title and for mandatory injunction cannot be granted in favour of the plaintiffs. The second plaintiff examined himself as P.W.1. P.W.2 was examined to support the case of the plaintiffs regarding their enjoyment and existence of super structure. Plaintiffs filed Ex.A1 – the original sale deed dated 22.06.1981. The plaintiffs also marked Ex.A2 and A3 which are the tax receipts for the super structure. The appellant or other defendants did not file any document. However, the first defendant was examined on behalf of the defendants. It is very important to note that the only witness examined on behalf of the defendants has given evidence quite contrary to the plea of second defendant, which was adopted by other defendants. During cross examination, it was admitted by first defendant that there is no document to show that the suit property belong to Madasamypuram Mutharamman F.R.C. Kovil Dussehra Kuzhu and that they have no record to show either patta or kist for the suit property. The witness 6/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 almost pleaded ignorance and state that he did not know on what basis or under what right the second defendant constructed the T.V. room and dug the well. It is to be remembered that the plaintiffs have specifically come forward with the plea that the second defendant has encroached into the property at the instigation of the first defendant. After framing necessary issues, the trial Court on the basis of the documents and the evidence of P.Ws.1 and 2, came to the conclusion that the plaintiff has proved their right and title over the suit property. Therefore, the trial Court granted a decree declaring the title of plaintiffs. The trial Court also examined the issue whether suit for mandatory injunction can be granted without the relief of recovery of possession. After distinguishing a few two judgments of this Court cited by the appellant, the trial Court held that the encroachment by putting up a small construction by the second defendant cannot be taken into consideration for denying the relief to the plaintiffs, as the plaintiffs are in enjoyment of the property. The trial Court also granted relief of permanent injunction after holding that the plaintiffs have established their possession and enjoyment of the property in respect of the remaining portion. Though the defendants prayed that the T.V. room was constructed by the second respondent long prior to the filing of the civil suit, the trial Court also held that the 7/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 construction of T.V. room and digging of well was just prior to the suit and that the plaintiffs are entitled to mandatory injunction for removal of the small T.V. room and the well.
8.Aggrieved by the judgment and decree of the trial Court, the second defendant alone preferred an appeal in A.S.No.29 of 2010 before the Sub Court, Tuticorin. The lower appellate Court also fell in line with the trial Court and dismissed the appeal after independently holding that the plaintiffs have proved their title and enjoyment of the suit property. Aggrieved by the concurrent findings of the Courts below, the above Second Appeal is preferred by the second defendant.
9.Before this Court, the appellant has raised the following substantial question of law:-
(a) When the title of the plaintiffs came to be disputed by the defendants and when the defendants set up a third party as the real owner, whether the suit is bad for non-
joinder of necessary parties under Order I, Rule 9 of Code of Civil Procedure ?
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(b) When the contesting defendants set up a title over the suit property, in favour of a third party, whether the contesting defendants are bound to establish the title of the third party not impleaded as a party to the suit and for such failure to prove the title of the third party, whether a decree for declaration could be passed as against the defendants so made as parties to the suit ?
(c) When the plaintiffs themselves had admitted that the defendants had put up the constructions in portions of the suit property, whether a suit for a mere declaration and permanent injunction without a decree for the relief of possession is maintainable under Section 34 of the Specific Relief Act ?
(d) When the plaintiffs acquiesced the constructions put up by the defendants over their property and when they filed the suit for mandatory injunction to remove the construction, nearly after 2 and ½ years, whether the plaintiffs are entitled to the relief of mandatory injunction ?
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(e) When the constructions were put up by the public authority for the benefit of the general public and the villagers, in particular, whether a decree of mandatory injunction after 2 and ½ years, could be granted under Section 39 of the Specific Relief Act, so as to affect injuriously the public interest ?
10.While considering the questions of law raised by the appellant, this Court has to narrate the facts as borne out from records. The suit was filed for declaration of title and for consequential mandatory injunction to remove the super structure and the well that were constructed and dug by the appellant in a portion of the suit property. The plaintiffs' case is very simple that the father of the respondents 2 to 6 purchased the property by a registered sale deed in the year 1981 under Ex.A1. To show that there was a super structure in the suit property and that the husband of first respondent and father of respondents 2 to 6 was residing there, the property tax that was paid to the local body for the super structure is marked as Ex.A2 and A3. The second plaintiff was examined as P.W.1. Apart from P.W.1, P.W.2 was also examined to support the case of the plaintiffs. The appellant came up with a 10/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 peculiar case that the suit property itself is not lying in the survey field as given by the plaintiffs in the plaint. It is the case of the second defendant that the suit property lies in Survey No.256/40 and it belonged to one Mutharamman F.R.C. Kovil Dussehra Kuzhu. The dispute raised by the second defendant is therefore by claiming right to a property which is not his property. It should be noticed that the second defendant has raised an issue regarding identity of suit property. However, no attempt was made to dislodge the case of the plaintiffs with regard to the title of plaintiffs to the suit property in natham survey field No.239. Admittedly, from the description of the property, the suit property is described as a property classified as natham. Even in the written statement, it is admitted that the property is classified as natham. The property which is classified as natham does not vest with the Government. Any person who is residing in the property will be recognised as the owner of the property. Though the second defendant filed written statement as if there is a rival claim, from the specific stand with regard to the identity of suit property, it has to be taken that the first defendant has no rival claim to the property which is described as a property comprised in natham survey field No.239 in Kulasekaranpattinam Village. From the documents Ex.A2 and A3 and the evidence, this 11/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 Court has no reason to interfere with the findings of the trial Court holding title and enjoyment in respect of the suit property in favour of plaintiffs.
11.Before considering the issue whether the suit is bad for non- joinder of necessary party, this Court has to see the legal basis for the contention from the pleadings. It is the specific case of the defendants in the written statement that the suit property as described in the plaint with reference to the survey number and measurements cannot be identified on ground. The appellant in the written statement has stated that a third party, namely, Mutharamman F.R.C. Kovil Dussehra Kuzhu is the owner of property in Survey No.256/40. The suit property does not lie in Survey No. 256/40. As stated in the plaint, the property, which is the subject matter of suit, is an extent of 5 7/8 cents in natham survey field No. 239 in Kulasekaranpattinam Village, which is described with reference to the survey number and measurement. Hence, this Court is unable to find a plea in the written statement disputing the plaintiffs' title. The second defendant presumed that the suit property lies in Survey No.256/40 and that with the permission of the owner of Survey No.256/40, namely, Mutharamman F.R.C. Kovil Dussehra 12/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 Kuzhu, they have put up a small T.V. room and dug a well. Since the defendants have not made any attempt to prove that the suit property lies in Survey No.256/40, there is no scope for construing the pleading in the written statement filed by the second defendant as one disputing the title of plaintiffs over the suit property, which lies in Survey No.239. Secondly, the trial Court has relied upon the evidence of D.W.1 disowning the connection between the suit property and Mutharamman F.R.C. Kovil Dussehra Kuzhu. The second defendant's own witness says that he did know under what basis the said third party claimed right over the suit property. The plaintiffs cannot be directed to implead a third party who has no semblance of right as far as the suit property is concerned. Therefore, the first question of law regarding non-joinder of necessary party has to be answered against the appellant.
12.The second question of law is also related to the first question of law. In this case, the second appellant has assumed some kind of right over the suit property by setting up title in favour of a third party. When the appellant failed to lead any evidence suggesting that the suit property belonged to a third party, he cannot insist on the plaintiffs to implead such third party, as the plaintiffs are the dominus 13/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 litis to choose the person against whom he seeks relief When the plea itself indicate that the third party is the owner of some other property by raising some doubt with regard to the identity of property, the second question of law also cannot have any significance.
13.The third question of law raised by the appellant is on the basis of Section 34 of the Specific Relief Act. The question is whether the suit for declaration of title and mandatory injunction without a prayer for recovery of possession is maintainable? In this case, the plaintiffs have come forward with the case that they are the absolute owners of the suit property and in possession and enjoyment of the property except a small portion over which a T.V. room has been constructed and a well had been dug. The plaintiffs have prayed for declaration of title and consequential injunction in respect of a portion of the suit property in which the super structure has been put up by appellant and the plaintiffs have also prayed for mandatory injunction to remove the construction and the well. Section 34 of the Specific Relief Act is based on public policy to avoid multiplicity of proceedings and whatever the relief the plaintiffs are entitled to at the time of filing the suit the plaintiffs must plead and pray. In the present case, 14/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 the plaintiffs claimed to be in possession and enjoyment of the suit property which is a vacant land. Therefore, the relief is for declaration of title and consequential injunction in respect of the portion in which the plaintiffs are in possession or deemed to be in possession. In respect of other portion, the plaintiffs sought for mandatory injunction to remove the super structure put up by the second defendant. If the relief of mandatory injunction is granted, the plaintiffs need not ask for recovery of possession as such, as the prayer will be redundant. Having regard to the facts and circumstances as pointed out, this Court is unable to hold that the suit without a prayer for possession is not maintainable in view of Section 34 of the Specific Relief Act.
14.The next question of law raised by the appellant is on the basis of doctrine of acquiescence. It is well settled that the Court can consider the issue only if there is proper plea. In the whole written statement, there is no plea of acquiescence. That apart, the defendant who set up a title in favour of third party has pleaded that the construction was with the permission of real owner, has to plead and prove that the suit property belonged to a third party. Disputing the identity of suit property, the appellant/second defendant filed a 15/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 written statement to the effect that the other property, which according to the appellant, is the suit property, belonged to a third party and that he has put up construction and dug well with the permission from the said third party. The issue based on the written statement to be resolved is, whether the defendants' plea has any bona fides. The appellant has not even made an attempt that he has done something with good faith and that the plaintiffs were put to some hardship by their negligence in believing that the suit property belonged to a third party. Absolutely, there is no document and no evidence to show that the defendants were driven by good faith. The conduct and attitude of the appellant shows that there was an attempt to grab the land of plaintiffs taking advantage of their economic conditions.
15.The appellant who has made an attempt to grab the land of plaintiffs has now come forward with the plea that the appellant has done something in public interest and that therefore, a decree for mandatory injunction need not be given. For a person like the appellant, a plea, based on equity, cannot be considered. 16/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015
16.The learned Senior Counsel appearing for the appellant submitted that it is a well settled principle that in a suit for declaration of title, the plaintiffs could succeed only on the strength of their own title and that no relief can be given on the weakness of the defendants. The learned Senior Counsel relied upon the judgment of Hon'ble Supreme Court in the case of Union of India vs. Vasavi Co- op. Housing Society Ltd. and others reported in 2014 (4) CTC 471 wherein the Hon'ble Supreme Court has held as follows:-
“15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.”
17.This Court has no quarrel with the legal proposition, as this Court and the Hon'ble Supreme Court, has time and again reiterated the principle. However, the settled legal position can be applied only if the facts also fit into. In the present case, this Court has seen that the defendants have not raised any plea disputing the title of plaintiffs over the suit property. The appellant presumed that the suit property, 17/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 as described in the plaint, is not the property in which the defendants claimed right under a third party. From the plea raised in the written statement and the evidence of D.W.1, this Court is unable to agree with the submission of the learned Senior Counsel appearing for the appellant, relying upon the above judgment of the Hon'ble Supreme Court. The learned Senior Counsel submitted that the plaintiffs who are not found to be in possession of the property cannot seek mandatory injunction as a consequential relief instead of a suit for recovery of possession. The learned Senior Counsel relied upon a judgment of the Hon'ble Supreme Court in the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar vs. Chandran and others reported in 2017 (2) CTC 678 wherein the Hon'ble Supreme Court has held as follows:-
“35. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. versus Smt. Ganga Devi, AIR 72 SC 2685, wherein para 1 & 4 following was stated:
"1. This is a plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the 18/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.
4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-
finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable.”
36. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.”
18.From the reading of the judgment of Hon'ble Supreme Court, this Court is persuaded to hold that the issue should be considered in the light of principles reiterated by this Court and the Hon'ble 19/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 Supreme Court on the interpretation of Section 34 of the Specific Relief Act. As it has been discussed by this Court in the earlier paragraphs, this Court is fully convinced that the plaintiffs are in possession of the entire suit property except the small portion over which the second defendant has put up construction and dug a well just prior to the suit. In such circumstances, the Courts below granted the relief of declaration and permanent injunction in respect of the vacant land which was held to be the property of plaintiffs by granting declaratory relief in favour of the plaintiffs. In such circumstances, it is not necessary that the plaintiffs should be driven to file a suit for recovery of possession in respect of the encroached portion. The Courts below have granted a decree of mandatory injunction in favour of the plaintiffs and this Court has no reason to interfere with the findings. The learned Senior Counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court in the case of Karnataka Board of Wakf vs. Government of India and others reported in (2004) SCC 779 for the proposition that the plaintiffs who files a suit for title should be very clear about the origin of title over the property and that he must specifically plead. This Court, after reading paragraphs 11 and 12 of the judgment, is of the view that the said judgment has been cited out of context and that the 20/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 principles reiterated in the said judgment has no application to the facts of this case.
19.The learned Senior Counsel appearing for the appellant relied upon a judgment of this Court in the case of Kammavar Sangam through its Secretary R.Krishnasamy vs. Mani Janagaranaj reported in 1999 (III) CTC 304 for the proposition that the relief of permanent injunction cannot be availed by a person claiming possessory title against a person having better title, and that reliance on patta cannot be made to prove title as patta cannot convey or extinguish right over the property. This Court is unable to apply the principle reiterated in the said judgment to the present case in view of the admitted facts and the peculiar circumstances indicated above.
20.The learned Senior Counsel relied upon a judgment of this Court in the case of K.Thirunavukkarasu and others vs. Loganathan (deceased) and others reported in 2018 (5) CTC
883. The learned Senior Counsel relying upon the judgment advanced his arguments in the following lines:
(a) the plaintiff must stand on their own legs and prove their case and cannot grant relief to the plaintiff by relying upon the defendants' failure to establish their title.
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(b) Mere revenue documents cannot be construed as document of title.
That was a case where the plaintiffs filed a suit for declaration of title and for permanent injunction and also for possession in the year 1990 based on the sale deed dated 12.10.1989. Defendants disputed the tile of plaintiff. Except the sale deed, no other document was filed. It was found that the chitta extract filed by plaintiff therein was after suit. This Court found that the plaintiff filed no document to show that at any point of time plaintiff's vendor or his vendor's father had been in possession of 'A' schedule property. 'B' schedule was in the possession and enjoyment of defendants therein. Though plaintiff stated that patta was given to his vendor, no revenue document was produced. The defendants therein examined two witnesses to support their case regarding possession and enjoyment of property by putting up constructions long prior to suit. In the present case, no document was filed by defendants. Only witness examined on behalf of defendants has admitted that defendants have no document to show their right and that he did not know on what basis appellant claim right or put up a T.V. room or dug a well in the suit property. The evidence of D.W.2 indicates that the appellant came up with a false 22/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 plea claiming right under a third party without producing any evidence to sustain the plea.
21.The learned Senior Counsel reiterated his arguments by relying upon few judgments for the proposition that the plaintiffs who are out of possession has to seek declaration of title and recovery of possession, not for declaration of title and injunction. He relied upon the judgment of this Court in the case of Cheventhipaul Nadar vs. Srinivasa Nadar and others reported in 1982 (2) MLJ 348 and the judgment of this Court in Saravanan Pillai vs. A.S.Mariappan and others reported in 2002 (1) MLJ 419. In the first case, this Court has held that a suit for declaration of title and injunction is not maintainable by the plaintiff who is out of possession. In the second judgment, it was held that the plaintiff who is found to be out of possession cannot file a suit for declaration and injunction without asking for recovery of possession. Both the judgments relied upon by the learned Senior Counsel for the appellant is on the basis of Section 34 of the Specific Relief Act.
22.This Court has already held that the suit as such is not affected by Section 34 of the Specific Relief Act having regard to the 23/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 admitted facts and circumstances of the case, where the courts below have found that the plaintiffs are in possession of suit property except the small portion where the defendants have encroached by putting up a T.V. room and there is a prayer for mandatory injunction to remove the encroachment.
23.To support his arguments by advancing the doctrine of acquiescence, the learned Senior Counsel relied upon a judgment of this Court in the case of R.S.Muthuswami Gounder vs. A.Annamalai and others reported in AIR 1981 Madras 220. This Court in the said judgment applied the principle of acquiescence holding that the plaintiff residing very near the property did not raise any objection at the time when the construction was made and that he started complaining the construction asserting his right over the property later when he filed the suit. This Court has already pointed out that there is no specific plea enabling the plaintiff to file a reply statement in the course of trial explaining why he could not make his objection at the time when the encroachment was made by the second defendant. Secondly, the second defendant/appellant is the local body. Having regard to the peculiar stand taken in the written statement claiming derivative title to the property and the substance 24/27 https://www.mhc.tn.gov.in/judis/ S.A.(MD).No.592 of 2015 of the pleadings, there is no scope for the plaintiffs stopping the appellant from putting up a small T.V. room and the well at the relevant time. Finally, the judgment relied upon by the learned Senior Counsel in the case of Kandasamy and others vs. Savithiri (Died) and another reported in 2005 (3) MLJ 495 will not help the appellant having regard to the facts and circumstances narrated by this Court earlier while answering the points raised by the learned Senior Counsel in this appeal. In view of the specific findings of the Courts below and the nature of plea set up by the appellant disputing the plaintiffs' case of title and possession, this Court is unable to find any merit in any of the questions of law raised by the appellant.
24.As a result, this Second Appeal has no merits and, therefore, is dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.
Index : Yes/No 14.07.2021
Internet : Yes/No
SRM
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To
1.The Sub Judge,
Tuticorin.
2.The Additional District Munsif,
Tiruchendur.
3.The Commissioner,
Udangudi Panchayat Union,
Udangudi – 628 101.
4.The Block Development Officer,
Collectorate,
Tuticorin – 628 101.
5.The District Collector,
Tuticorin District,
Tuticorin – 628 001
6.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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S.S.SUNDAR, J.
SRM/dixit
Second Appeal(MD)No.592 of 2015
14.07.2021
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