Madras High Court
S.S.Narayanan vs Shanmuga Raj on 10 April, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/04/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.495 of 2001 S.S.Narayanan .. Appellant/Respondent Plaintiff Vs 1.Shanmuga Raj 2.Ponusamy 3.Iyyadurai 4.Ganesan .. Respondents/ Appellants/Defendants Prayer Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 14.12.2000 in A.S.No.234 of 1999 on the file of the learned Principal District Judge, Tirunelveli, in reversing the judgment and decree dated 06.10.1999 in O.S.No.861 of 1996 on the file of the learned Principal District Munsif, Tirunelveli. !For Appellant ... Mr.M.R.Srinivasan ^For Respondents ... Mr.G.Ravisankar (No appearance) :JUDGMENT
This second appeal is focussed as against the judgment and decree dated 14.12.2000 in A.S.No.234 of 1999 on the file of the learned Principal District Judge, Tirunelveli, in reversing the judgment and decree dated 06.10.1999 in O.S.No.861 of 1996 on the file of the learned Principal District Munsif, Tirunelveli.
3. Heard the learned counsel appearing for the appellant. Despite printing the name of the learned counsel for the respondents, no one appeared.
3. The parties are referred to hereunder in the same order as they were arrayed before the trial Court.
4. Broadly but briefly, precisely but narratively, the case of the plaintiff as stood exposited from the plaint would run thus:
The plaintiff is in occupation of an extent of 20' x 9' in Survey No.49/2 in Sindhupoondurai Village, in which he has put up a bunk shop with the assistance of Government loan, under the scheme for handicapped personnel, as the plaintiff happened to be a handicapped person. As such he has been in possession and enjoyment of the said area ever since 1979. While so, the defendants without any manner of right attempted to oust the possession of the plaintiff, whereupon the suit was come to be filed.
5. Impugning and challenging, denying and refuting the allegations/averments in the plaint, the second defendant filed the written statement before the trial Court, which was adopted by the defendant Nos.1, 3 and 4; the gist and kernel of it would run thus:
The plaintiff is having no right over the suit property and he is not in possession of it also. The defendants are having title over the suit property and they are in possession and enjoyment of it. Accordingly, they prayed for the dismissal of the suit.
6. The trial Court framed the relevant issues and during trial, the plaintiff examined himself as P.Ws.1 along with P.W.2 and Exs.A.1 to A.8 were marked. The second defendant examined himself as D.W.1 and Exs.B.1 to B.8 were marked.
7. The trial Court ultimately decreed the suit to the extent that 20' x 9' in R.S.No.49/2, so as to protect the possessary right of the plaintiff.
8. Being aggrieved by and dissatisfied with the Judgment and decree of the trial Court, the defendants preferred the first appeal, whereupon the first appellate Court reversed the Judgment and decree of the trial Court and dismissed the original suit.
9. Challenging the Judgment and decree of the first appellate Court, the plaintiff filed this second appeal on the following main grounds among others:
The suit itself is for the limited extent of 20' x 9' feet in the said Survey Number and not to the entire extent of 2 Ares. The first appellate Court without addressing itself to the actual point in issue assumed as though the plaintiff claimed title to the large extent of land, over and above the area under his occupation. Accordingly, he prayed for restoring the Judgment and decree of the trial Court after setting aside the Judgment and decree of the first appellate Court.
10. The following substantial questions of law were framed by my learned Predecessor at the time of admitting this second appeal:
"1. Whether the lower appellate Court erred in law and misdirected itself in coming to a conclusion that the respondents have got title in a suit for bare injunction?
2. Whether the lower appellate Court erred in law in holding that the suit is barred by resjudicata and in rejecting the plea of adverse possession?"
11. Heard the learned counsel for the appellant/plaintiff. I am of the considered opinion that the substantial question of law could be reframed in replacement of the above by virtue of Section 100(3) of C.P.C:
"Whether the first appellate Court was justified in dismissing the original suit after arriving at the conclusion that the plaintiff is physically in possession of a lesser extent of land, so to say 20' x 9' area based on documents?"
12. The learned counsel for the appellant/ plaintiff by drawing the attention of this Court to Ex.A1 to A8 would advance his arguments to the effect that even though the defendants falsely contended as though the plaintiff is not in possession of any extent of land in S.No.49/2, nonetheless the aforesaid documents would clinchingly establish and demonstrate that ever since the year 1979, the plaintiff has been in possession and enjoyment of it and his possessary right should not be disturbed except otherwise in accordance with law. I could see considerable force in the submission made by the learned counsel for the appellant/plaintiff. The trial Court clearly gave a finding to the effect that the plaintiff has been in possession of the smaller extent 20' x 9' land and the identity of the property also is not in dispute.
13. Ex.A1, is the letter addressed by the District Collector, Tirunelveli to the Commissioner of Municipality, sponsoring loan facility to be accorded to the plaintiff, who is a handicapped person for setting up a bunk shop. No doubt, in that there is no reference to any Survey Number. However, by way of supplying additional facts, Ex.A2 and A3 series, the receipts evidencing payment of penalty to Government would fortify and buttress the claim of the plaintiff that he is in possession of the smaller extent of land in S.No.49/2. As such, the trial Court's finding of fact is beyond doubt. The first appellate Court did not choose to upset such a finding. But the first appellate Court misdirected itself, by looking askance at the genuineness of the plaintiff in allegedly claiming possessary right over the entire extent of 2 Ares in S.No.49/2.
14. The learned counsel for the appellant/ plaintiff would convincingly submit that in the schedule of property, the Tamil letter "k;;" after "rh;Bt vz;.49/2 - 0.02.0" is wrongly used instead of the Tamil letter "y;" and he would draw the attention of this Court to the body of the plaint and highlight that it was never the intention of the plaintiff to lay possessary claim over the entire extent of 2 Ares. But his intention was to get injunction only to the smaller extent of 20' x 9' land as set out supra. The plaint has to be read as a whole and not in piece meal. The reading of the plaint would clearly demonstrate that the suit is only for the said smaller extent of land only. As such, the first appellate court's view about the plaintiff's case is not tenable.
15. Furthermore, the defendants by way of lead loosing red hearings referred to the earlier suit in O.S.No.97 of 1987 instituted by the defendants as against the Government to the effect that the entire extent of S.No.49/2 belonged to them and not to the Government. So far this case is concerned, absolutely there is no necessity to give any finding as to whether the Government is the actual owner of the entire S.No.49/2 or the defendants.
16. The only point to be decided is as to whether the plaintiff is in established possession of the said smaller extent. There is overwhelming evidence to demonstrate and prove that ever since the year 1979, the plaintiff has been in established possession of such smaller extent of land and such a possession could rightly be protected; instead of doing so the first appellate Court simply dialated on irrelevant facts, which were not germane for adjudicating the lis before it. My mind is redolent with the decision of the Hon'ble Apex Court in Rame Gowda(D) by Lrs. v. M.Varadappa Naidu(D) by Lrs. & Anr. reported in 2004-3-LW-P.143. An excerpt from it would run thus:
"It is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase settled possession does not carry any special charm or magic in it. Nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of settled possession.
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains and element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been growth the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."
17. The aforesaid decision would clearly highlight that established possession of an individual could be protected by the Court. In this case, the handicapped person viz., the plaintiff has set up that bunk shop availing loan from the Government and he has been paying penalty also to Government and such possessary right has to be protected. While holding so, I make it clear that this injunction order would not be an embargo for the real owner from taking legal steps to evict the plaintiff in accordance with law and accordingly the substantial question of law is answered.
18. By way of clarity I would reiterate that the Judgment and decree of the trial Court should be construed only to the limited extent that the injunction would be operative only relating to 20' x 9' of land and the plaintiff shall not be evicted otherwise in accordance with law by the real owner of the suit property.
19. With the above observation, the second appeal is allowed setting aside the Judgment and decree of the first appellate Court and the Judgment and decree of the trial Court is restored. However, in the facts and circumstances of the case, there is no order as to costs.
smn To
1. The Principal District Judge, Tirunelveli.
2. The Principal District Munsif, Tirunelveli.