Madras High Court
C.K.Babdoss vs R.S.Asokan on 16 September, 2014
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.9.2014 CORAM: THE HONOURABLE MR. JUSTICE T.MATHIVANAN S.A.No.856 of 2005 C.K.Babdoss ... Appellant/Plaintiff vs. 1.R.S.Asokan 2.Rajeswari 3.Rukmani ... Respondents/Defendants PRAYER: This Second Appeal is filed under Section 100 C.P.C. against the judgment and decree dated 30.12.2004 and made in A.S.No.47 of 2003 on the file of the I Additional District Court Salem confirming the judgement and decree dated 18.7.2001 and made in O.S.No.296 of 1999 on the file of the I Additional District Munsif Court, Salem. For Appellant :Mr.Dr.C.Ravichandran For Respondents:Mr.N.S.Sivakumar J U D G M E N T
Challenge is made in this memorandum of second appeal to the judgement and decree dated 30.12.2004 and made in A.S.No.47 of 2003 on the file of the learned I Additional District Court, Salem confirming the judgement and decree dated 18.7.2001 and made in O.S.No.296 of 1999 on the file of the learned I Additional District Munsif, Salem.
2. The appellant is the plaintiff in O.S.No.296 of 1999. Whereas, the respondents 1 to 3 are the defendants 1 to 3.
3. For easy reference and for the sake of convenience, the appellant as well as the respondents herein may hereinafter be referred to as the plaintiffs and defendants, where ever the context so require.
4. This second appeal has been admitted on the following two questions of substantial law:
1) When the plaint schedule gives the description of the property for which a decree for injunction is sought for, whether the suit can be dismissed on the ground that the plaint rough sketch does not tally with the plaint schedule?
2) When appellant's documents prove the possession of the suit property and the respondents have not filed any document to prove otherwise, whether the relief of injunction can be refused?
5. Background facts of the case:
The plaint schedule contains two items of properties and the first item is consisting of two portions. The plaintiff has filed the above suit as against the defendants seeking the relief of:-
1) declaring his title to the property specified in suit item Nos.1 and 2,
2) restraining the defendants and their men by permanent injunction from interfering with his peaceful possession and enjoyment of the suit properties
3) restraining the defendants and their men from interfering with or in any way disturbing his peaceful possession and enjoyment of the property specified in the suit Item-II and
4) for granting such other further reliefs and also for costs.
6. The third defendant had resisted the suit by filing her written statement which was adopted by the remaining defendants. The Trial Court on appreciation of the evidences both oral and documentary had proceeded to decree the suit granting the relief of declaration and the consequential relief of injunction in respect of the first portion of the Ist item of the suit property. In so far as the second portion of Item No.1, as well as Item No.II are concerned, the suit was dismissed.
7. Impugning the judgement and decree of the Trial Court in respect of the second portion of Item No.I, as well as Item No.II of the suit property, the plaintiffs have preferred an appeal in A.S.No.47 of 2003 on the file of the learned Ist Additional District Judge, Salem. It is significant to note here that the defendants have never chosen to file any cross objection against the decree granted by the Trial Court in respect of the first portion of the suit item No.1.
8. It is manifest from the records that during the hearing of the first appeal, the learned counsel appearing for the defendants had (Respondents) submitted before the First Appellate Court that the defendants had no objection to declare the title of the plaintiff with reference to 2nd portion of the Item No.I of the suit property, as the defendants have nothing to do with the 2nd portion of the Item No.I of the suit property. The submissions made by the learned counsel appearing for the defendants (Respondents) before the First Appellate Court was recorded and the Lower Appellate Court has decided that the second portion of the first item of suit property belongs to the plaintiff by way of Ex.A3 sale deed and as such, he is entitled to the relief of declaration and injunction in respect of that property. The Lower Appellate Court has allowed the appeal in part granting the decree of declaration in respect of second portion of first item of the suit property and in so far as the second item of suit property is concerned, the judgement and decree of the Trial Court was confirmed. Therefore, the plaintiff has only confined his claim in the second appeal in respect of the second item of the plaint schedule property.
9. With reference to the Item-II of the suit property, it is the specific claim of the plaintiff, that the second item of the suit property, is classified as Natham measuring an extent of 0.01.0 Hectare comprised in S.F.No.44/1, which has been shown as BEFCB in the plaint rough plan. In this connection, the plaintiff would contend that he is in actual physical possession and occupation of Item-II of the suit property for the past five years and that he has been using the suit property for storing the building materials thereon. He has also contended that the defendants are residing in the houses lying on the West of three feet width North South foot path running on the West of the properties of the plaintiff's mother and the suit properties and they have no property of their own near the suit properties. He has also contended that the first defendant colluding with other defendants had given all sorts of trouble in respect of his peaceful possession and enjoyment of the suit property and therefore, he was constrained to file the suit seeking permanent injunction as against the defendants in respect of the suit second item of the property including the other reliefs in respect of the suit property specified in first item.
10. The defendants with reference to the second item of suit property have contended saying that since the rocky portion (Item No.II) belongs to the Government, the Government is a necessary and proper party to the suit and since the plaintiff had not added the Government as a party to the suit, the suit itself is bad for non-joinder of necessary party. Besides this, they have contended that they are also in possession and enjoyment of Item No.II of suit property. From the averments of the written statement of the defendants, it is explicit that in so far as Item No.II of the suit property is concerned, it is classified as Natham and that the plaintiffs claimed that they are in possession and enjoyment of the property for the past five years prior to the filing of the suit. The defendants have refuted the claim of the plaintiff and made counter claim saying that they are in possession and enjoyment of Item No.II of the suit property.
11. So far as the second appeal is concerned, it is centered round the item No.II of the suit property. In order to prove his possession in respect of the suit No.II, the plaintiff has produced Ex.A8 series as well as Ex.A13 series. But the defendants have produced Ex.B1 series kist receipts issued in the name of Chinnammayee.
12. While advancing his argument Dr.C.Ravichandran, learned counsel appearing for the plaintiff (appellant) has invited the attention of this court to paragraph No.5 of the written statement filed by the defendants, wherein, they have specifically admitted the possession of the plaintiff in respect of Item No.II saying that it is pertinent to say that the plaintiff's family have converted and enjoyed the rocky portion as kitchen garden.
13. It is more relevant to note here that the defendants have specifically contended in their written statement that the Government is a necessary party to the suit as Item No.II of the suit property is belonged to the Government and without impleading them as a party to the suit, the suit itself is bad for non-joinder of necessary party. In this connection, Dr.C.Ravichandran, learned counsel appearing for the plaintiff/appellant has submitted that when the second item of the suit property had been classified as Natham, Government was not the owner and that the Government had nothing to do with the second item of suit property and therefore, the question of impleading the Government as a necessary or proper party would not arise. On behalf of the appellant he has placed reliance upon the decision in A.Srinivasan & another v. The Tahsildar, Egmore, Nungambakkam Taluk, Madras reported in 2010-1-L.W.123. In this case, the appellant had filed a suit seeking the relief of declaration declaring that the notice issued by the defendant, the Tahsildar, Nungambakkam is illegal, arbitrary and also for the relief of permanent injunction interfering with the enjoyment of the plaint schedule property. In this connection, learned Single Judge of this Court has observed that it is clear Grama Nataham cannot be considered, ipso facto, as Government property. Once it is found that item No.1 of the suit schedule mentioned property is classified as Grama Natham, it should be held that it does not belong to the Government. Therefore, there can be no doubt that the defendant cannot invoke the provisions of the Tamil Nadu Land Encroachment Act, 1905. As such, the notice issued by the defendant, under Section 7 of the Tamil Nadu Land Encroachment Act, 1905, is invalid in the eye of law. Hence, there is no necessity to implead the Government as a party to the suit especially, since the appellants had not filed the suit for declaration of their title, in respect of the suit property. Consequently, Section 79 of the Act would not be applicable to the present case.
14. On coming to the instant case, it is obvious that in so far as the property specified under the suit Item No.II is concerned, it is classified as Natham. The defendants have also not denied the fact as observed in the above said decision. When the property specified in second item of suit property has been classified as Natham, it does not belong to the Government and therefore, the Government is not a necessary or proper party for the better adjudication of the suit. In so far as the instant case on hand is concerned, the plaintiff has not sought for any relief of declaration in respect of suit second item of the property. Instead of that he has sought for the relief of permanent injunction restraining the defendants from interfering with the possession and enjoyment of the property and therefore, the question of impleading of the Government as a proper or necessary party does not at all arise in this case.
15. Admittedly, the suit was filed in the year 1999. In order to prove his possession and enjoyment in respect of second item of suit schedule property, the plaintiff has produced Ex.A8 series and Ex.A13 series. Ex.A8 series are the kist receipts relating to fasli 1408, 1409. These gist receipts would show that the kist receipts are relating to the year 1998 and 1999. Probably Ex.A8 series, might be subsequent to the filing of the suit. Ex.A13 Adangal extract issued in the name of the plaintiff in respect of the site comprised in S.No.44/1 which confirms his possession. This adangal extracts seem to be issued to the plaintiff on 13.3.1999 and 3.3.2000 respectively. Ex.A13 series might also be issued subsequent to the the suit. The Ex.B1 series has been filed on behalf of the defendants. But on perusal of the Kist receipts issued under Ex.B1 series, it does not have any reference to show that they were issued in respect of the suit second item of property. On the other hand, as indicated by Dr.C.Ravichandran, learned counsel appearing for the appellant, the defendants have admitted that the suit second item has been in possession and enjoyment of the plaintiff. The plaintiff has also pleaded that he has been enjoying the rocky portion i.e. second item of the suit property. When the admission made by the defendants that the plaintiff has been in possession of the second item of the suit schedule property, there is no need to produce any documentary evidence to prove his possession.
16. It is to be noted that the learned First Appellant Judge has found that Ex.B1 series (Receipts) have been filed by the defendants to prove their contention that the second item of suit property has been in their possession and enjoyment. With regard to Ex.B1 receipts, learned First Appellate Judge has found that it is not borne out from those receipts that the defendants are enjoying the suit second item of the property. The First Appellate Court has found that the defendants are not in possession of the suit second item of the property and since the defendants have admitted in the written statement that the plaintiff is in possession, presumption can be drawn that the plaintiff is in possession and enjoyment of the second item of the suit property.
17. In this connection, this court would like to place reliance upon the decision of the Apex Court in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others reported in AIR 1968 SC 1413, wherein his Lordship Justice V.Ramaswami while speaking on behalf of a three Judges Bench of the Apex Court has observed that even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi.
18. With regard to the granting of injunction on the strength of possession, this court would like to have reference to Sections 37 and 38 of Specific Relief Act 1963. Section 37 of the Act contemplates temporary and perpetual injunction. Section 38 (3) enumerates the circumstances under which perpetual injunction can be granted. Section 37 (2) of Specific Relief Act indicates as follows:
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 (3) enumerates the circumstances under which perpetual injunction can be granted. When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases:-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
19. The intention of the legislature is to prevent the infringement of the legal rights of the plaintiff or when there is a threat or imminent danger to the legal rights of the parties, who have not sought for the relief of injunction and therefore, to prevent irreparable injury as well as terminal injury and multiplicity of proceedings, the relief of injunction can be granted and refusal of granting injunction in appropriate case would be an error which may be created the appeal.
20. With reference to the legal position relating to house site called Grama Natham, the learned counsel drawn the attention of this court to the decision of a Division Bench of this court in D.Shankar vs. The Special Commissioner and Commissioner for Land Administration Chepauk & others reported in CDJ 2013 MHC 4087, wherein in paragraph 4 of the judgement the Division Bench of this Court headed by the Hon'ble Mr Justice R.K.Agrawal Chief Justice as he then was has held as follows:
LEGAL POSITION
(i) In the decision reported in 1959 (2) MLJ 513 (Rengaraja Iyengar and Another v. Achikannu Ammal and Another), while dealing with the provision of Section 3(b) of Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, and also the Madras Land Encroachment Act, 1905 (Tamil Nadu Act 3/1905), this Court has held that the house site owned by a person, which is generally called as gramanatham, is not covered under the provisions of the Madras Land Encroachment Act, 1905, and further held that once the lands are classified as gramanatham, the Government ceases to have any power over the said lands as it cannot be as a ryotwari, as per the meaning of Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948.
The decision in S.Rengaraja Iyengar and another v. Achikannu Ammal and another reported in 1959 MLJ 513 was subsequently followed by this Court in A.K.Thillaivanam and another v. District Collector, Chengai Anna District & 3 others reported in 1998-3-L.W.603, wherein this Court has held that the party, who is in possession of the Graman Natham continuously for more than a prescribed period, would claim title by adverse possession and once the land is classified as village natham, no portion of the land vests with the Government, even if a portion of the land is converted into an agricultural land.
21. The above said judgements were also followed in a subsequent decision in The Executive Officer, Kadathur Town Panchayat v. V.Swaminathan (DB) reported in 2004 (3) CTC 270 wherein a Division Bench of this Court has referred to the definition of Grama Natham as defined in Law Lexicon and held that once it is admitted that the classification of the land being a Grama Natham, it will never vest with the Government or the Town Panchayat.
22. It is obvious to note here that the plaintiff has not sought any title over the second item of the plaint schedule property. Instead, he has claimed an order of injunction on the strength of his possession which is proved by Ex.A.8 series as well as Ex.A13 series. The learned First Appellate Judge on pure misconception has committed wrong in considering the above documents to prove the possession of the plaintiff. As already held in the foregoing paragraphs, the defendants have admitted the possession of the plaintiff in respect of suit second item. DW1 in her evidence at page-3 has stated that she has not produced any documentary evidence to show that the suit property has been in their possession and enjoyment, and in page-4 she has admitted the possession of the suit property specified in the plaint second schedule with the plaintiff. PW4, the Village Administrative Officer has also admitted that if anybody is found to be in occupation of Village Natham, necessary penal charges is to be levied and he has also specifically admitted that the total extent of the Grama Natham land comprised in S.No.44/1 is 4.08.0 hectare of which the plaintiff has been in possession and enjoyment of an extent of 0.01.0 hectare and in respect of which adangal extract was also issued in favour of the plaintiff for the fasli 1407,1408 and 1409, which has marked as Ex.A13 and the receipts for having collected penal charges for the fasli 1408 and 1409 have been marked as Ex.A8 series. As observed by the Apex Court in M.Kallappa Setty v. M.V.Lakshminarayana Rao reported in AIR 1972 SC 2299, the plaintiff was found to be in possession of the suit property and on the strength of possession he can resist possession and get injunction restraining the defendants from disturbing his possession.
23. Similarly in ITC Limited vs. Adarsh Cooperative Housing Societies Limited reported in (2013) 10 SCC 169 in paragraph-17 the Hon'ble Supreme Court has observed as under:
17. Another argument has been raised on behalf of the petitioner that in the present case the courts below have decided the issue of possession by holding the defendant not to be in possession of the suit land instead of recording a finding that it was the plaintiff who was in possession. The said argument, again, would not merit acceptance by us. In a civil proceeding, the issues that may arise are required to be decided by balancing the claims and counterclaims of the parties before the court and on the basis of a preponderance of probabilities. The conclusion that the defendant could not have been in possession, as claimed, was necessary to be reached in order to answer the question that was before the court in the present case.
24. With reference to the second substantial question of law as held by the Apex Court, in the above cited decisions, the relief of injunction can be granted on the strength of possession. In so far as this case is concerned, particularly the property specified in the plaint second item is concerned, the plaintiff has proved his possession through acceptable documentary evidence. On the other hand, the defendants though have claimed to be in possession in respect of the particular property, they have not chosen to produce any documentary evidence and they have also admitted the possession of the plaintiff in respect of the suit property specified in second item. Therefore, this issue is answered in favour of the plaintiff.
25. On the other hand, learned counsel appearing for the respondent Mr.N.S.Sivakumar appearing for the defendants/respondents 1 and 2 has submitted that in respect of the suit second item, the prayer injunction alone was sought for without claiming the relief of declaration and therefore, the suit relief is liable to be dismissed. In support of his contention, Mr.N.S.Sivakumar has placed reliance upon the decision in Anathula Sudhakar v. P.Buchi Reddy (Dead) by L.Rs and Ors. reported in AIR 2008 SC 2033. A perusal of the Head Note-B of the above cited Judgement, this Court is of the view that the above case is not applicable to the present case, because in the above cited decision the maintainability of the suit was questioned as it was filed for injunction simpliciter. In that case the plaintiff has claimed possession purely based on title. But here the plaint second schedule item has been classified as Grama Natham in respect of which the plaintiff can claim injunction based on the strength of his possession. Therefore, this decision is not made applicable to the present case. Mr.N.S.Sivakumar has also placed another decision in Arasappan Karayalar & another v. Subramania Karayalar reported in 2001-1-L.W. 724 where in it has been held:
As rightly held by the trial Court, in case of vacant site, possession follows title. The Plaintiffs cannot claim relief of injunction, unless it is established that they have got title to the disputed property. It is no doubt true that in a suit for injunction, the question of title can be incidentally gone into. But, in this case, it is established that the suit property is a vacant site. It is, thus, seen that the dispute between the plaintiffs and the defendant involves question of title. Therefore both courts have come to this correct conclusion in holding that the suit without claiming the relief of declaration of title is not maintainable. On the basis of the documentary evidence produced by the plaintiffs, it cannot be contended that the plaintiffs were in possession of the suit property on the date of the suit. In an another decision cited by Mr.N.S.Sivakumar in Rajendran v. Illanthurai and two others in paragraph-8 it has been observed.
8. ........... Atleast, the plaintiff could have filed a suit for declaration of title and consequential injunction restraining the defendants/respondents from interfering with the peaceful possession of the suit property. At any rate, the plaintiff/applicant could not succeed in establishing the basic aspect regarding his possession in the suit property either on the date of filing or prior to the suit by producing atleast a single piece of plausible evidence. The judgement and decree passed by the trial court granting bare injunction is not legally sustainablel as the said court has committed a basic error by failing to examine the core issue as to whether the plaintiff, who approached the court seeking grant of bare injunction, as a pre-requisite, established through sufficient evidence that he is in peaceful possession and enjoyment of the suit property. As there is no proof or evidence to establish the fact that he was in possession at the relevant time, the impugned judgment of the first appellate court, reversing the verdict of the trial court, cannot be found fault with since it is perfectly in order. Accordingly, the third substantial question of law is answered against the appellant.
26. This court has also gone to the above citation and found that in so far as the suit property is concerned, in particular the plaint schedule second item is concerned, the plaintiff has established his exclusive possession, which has also been admitted by PW4 the Village Administrative Officer. Even it was admitted by DW1 in her evidence. As has been discussed in the foregoing paragraphs, as the suit property has been classified as Grama Natham, the plaintiff has not claimed the relief of declaration and he only claimed the relief of injunction to restrain the defendants from interfering with his peaceful possession and enjoyment of the suit property, for which adequate evidences are available and in these circumstance, this court is of the considered view that both the courts below have erred in loosing site upon the available evidence and therefore, keeping view of the above fact, the second appeal deserves to be allowed. Accordingly the second appeal is allowed.
27. The substantial questions of law ( i ) and (ii) are answered in favour of the plaintiff, who is the appellant in this appeal. In the result, the second appeal is allowed and the suit in respect of Item No.II of the plaint schedule is decreed as prayed for, while confirming the judgement and decree granted by the Courts below in respect of the first item of the property (specified in the plaint schedule) with cost of the appellant through out. Consequently the connected C.M.P.No.875 of 2013, C.M.P.No.986 of 2013 and C.M.P.No. 16 of 2014 are closed.
16.9.2014 vk Index :Yes Internet:Yes To
1.The I Addl. District Judge, Salem
2.The I Addl.District Munsif, Salem (II Additional District Munsif, I Additional District Munsif, I/c.) T.MATHIVANAN,J.
VK S.A.No.856 of 2005 16.9.2014