Madras High Court
Lalitha And Govindan vs Selvaraj on 10 January, 2006
Equivalent citations: AIR2006MAD122, 2006(2)CTC24, (2006)1MLJ313, AIR 2006 MADRAS 122, 2006 (2) AJHAR (NOC) 506 (MAD), 2006 (3) AKAR (NOC) 300 (MAD), 2006 A I H C (NOC) 114 (MAD), (2006) 42 ALLINDCAS 337 (MAD), (2006) 2 CTC 24 (MAD)
Author: P. Jyothimani
Bench: P. Jyothimani
JUDGMENT P. Jyothimani, J.
Page 329
1. The plaintiffs in the suit are appellants. The plaintiffs filed the suit for permanent injunction.
2. Case of the plaintiffs is that the first plaintiff is the daughter of second plaintiff and the defendant is the son of the second plaintiff. The suit property was originally a house site. The TADCO, under a scheme, has built up superstructure to the persons belonging to Schedule Castes. The house site given by the said Corporation to the first plaintiff was sold by her to the defendant. The site, which was given to the second plaintiff / father is the suit property. The defendant was also allotted another house site. In the house site given to the second plaintiff, the second plaintiff has put up a compound wall, apart from effecting some changes. The house site given to the second plaintiff is adjacent to the house site given to the defendant. The second plaintiff has been enjoying the suit property from 1978 onwards and thereafter, on settlement, he has given the said house site to the first plaintiff and both the plaintiffs are living in the suit property. Due to the reason that the second plaintiff has executed a gift deed in favour of the first plaintiff, the defendant has developed enmity and he has been attempting to remove them from the suit property. Therefore, the suit for permanent injunction was filed.
3. It is the defendant's case that he has obtained three house sites from three vendors by way of sale in the same Survey No. 31 on 23.01.1974, 11.02.1974 and 21.03.1974 respectively and all the three sites, totally measuring 6 cents, have been in possession of the defendant. According to the defendant, the first plaintiff was living along with her husband from 1970 separately and the second plaintiff, who is the father of the defendant, has been living separately along with his third wife. In spite of that, the relationship between the defendant and the plaintiffs were cordial. In the year 1976-77, when the Government came forward to put up construction to the persons, who are having house sites through TADCO, the Corporation has accepted to put up the construction to the defendant only in respect of one house site. However, the defendant, in order to get construction for other two properties also, one in the name of the first plaintiff and another in the name of the second plaintiff, executed a gift settlement Page 330 deed in respect of the site purchased by him from one Elumalai, in favour of the first plaintiff to show as if the first plaintiff is the owner, to whom the Corporation has also built up the superstructure. Likewise, the Corporation has also built up another two constructions, one for the second plaintiff and another for the defendant. Thereafter, the first plaintiff has executed a sale deed in respect of her house and also given possession of the same to the defendant. Since the house sites standing in the names of the plaintiffs were next to the defendant's house site, the defendant has enjoyed the same along with his property. Due to misunderstanding between the second plaintiff and the defendant, the second plaintiff has started living with the first plaintiff, his daughter. It is due to her instigation, the second plaintiff has executed a gift settlement deed in favour of the first plaintiff, which is not valid according to the defendant. It is also the case of the defendant that the property built up by the Corporation cannot be sold by anyone. Therefore, any right obtained by the first plaintiff under a settlement deed is not valid.
4. The question that was to be considered by the trial Court was as to whether the plaintiffs are in lawful possession, so as to maintain the suit for permanent injunction ? The trial Court, after elaborate trial and relying upon the evidence of D.W.1, has come to the conclusion that plaintiffs out of the three, to whom the Government has put up the construction individually, were enjoying the property and on the basis of that, the suit for permanent injunction was decreed in favour of the plaintiffs. As against the said decree, the defendant has filed first appeal in A.S. No. 188 of 1993.
5. The first appellate Court, while allowing the appeal filed by the defendant and dismissing the suit, has held that there was no material evidence to prove that the second plaintiff was in possession of the suit property. The first appellate Court has also relied upon Ex.B.12, which is a letter issued by the Survey Inspector to the defendant stating that Survey No. 315/1 has been sub-divided in the name of the defendant and Survey No. 315/2 was given in the name of defendant's wife Chandra. The first appellate Court has also relied upon Ex.B.1, which is stated to be an agreement between plaintiffs and the defendant dated 01.03.1992, wherein it is stated that the suit property is in possession of the defendant. The first appellate Court has also found that inasmuch as the plaintiffs have not filed the suit for declaration of title, the suit for injunction is not maintainable, especially when it is found that the defendant is in possession of the suit property. It is as against the judgment of the first appellate Court, the plaintiffs have filed the present appeal.
6. Mr.R.Muralidharan, learned counsel appearing for the appellants, while narrating the entire facts, would submit that in the written statement filed by the defendant in the suit, the defendant has specifically admitted that he has permitted to construct two houses, one in his name and another in the name of his father in the property purchased from Anandavelu and Elumalai. Learned counsel also points out the specific statement of the defendant in the written statement that after the purchase in February 1977, all the three houses were in their separate possession and enjoyment. Therefore, according to the learned counsel for the appellants, by virtue of the specific admission Page 331 made by the defendant, the suit for injunction and the decree passed are only consequential and therefore, the first appellate Court is not correct in reversing the well founded judgment of the trial Court.
7. Learned counsel for the appellants also relies upon another document, marked as Ex.B.1, which is stated to be an agreement entered between the plaintiffs and the defendant before the Police and according to the learned counsel, as per the said Ex.B.1, it is admitted that on receipt of Rs.25,000/-, the property has to be entrusted to the defendant by way of sale. Therefore, according to him, the plaintiffs have been in possession and inasmuch as the amount has not been paid, there was no necessity for handing over possession of the suit property to the defendant. Learned counsel also relies upon the evidence of the defendant as D.W.1 to show that all the three have been in their respective possession of the respective houses, after the same was constructed by the Corporation.
8. Learned counsel for the appellants also relied upon a judgment of the Hon'ble Supreme Court rendered in the case of Rame Gowda (D) by Lrs. v. M.Varadappa Naidu (D) by Lrs. and Anr. reported in 2004-3-L.W. 143, to show that when once the Court finds that the plaintiff is in a settled possession, it is presumed to be a lawful possession, unless it is confronted with the title.
9. Learned counsel also relied upon a judgment of this Court rendered in Manicka Gounder and Anr. v. Lakshmi Ammal reported in 2002 - 3 - L.W.281, to show that admission is the best evidence and the same is conclusive and decisive, unless it is proved to be erroneous or withdrawn.
10. Learned counsel further relied upon the judgment of this Court rendered in the case of Arasappan Karayalar and Anr. v. Subramania Karayalar reported in 2001 - 1 - L.W. 724. On the other hand, Mr.V.Raghavachari, learned counsel appearing for the respondent also relied upon the said judgment to insist his case that in a suit for permanent injunction, when there is a dispute regarding the question of title, without claiming the relief of declaration, the said suit cannot be maintained and on the basis of documentary evidence, it cannot be contended that the plaintiffs were in possession on the date of suit.
11. Learned counsel for the respondent would further contend that even the sale deed said to have been obtained in the name of second plaintiff has not been produced before the Court to show as to how the second plaintiff was entitled. According to him, when it is the case of the second plaintiff that he has got the property in his name, he should have proved the same by producing the records. Further, if the Corporation has built up a super structure in his name, the second plaintiff should have produced evidence from the Corporation to show that delivery of built-up superstructure was handed over to him. When the second plaintiff has chosen to produce Ex.A.2, which is a gift deed dated 02.10.1989 executed by him in favour of the first plaintiff, he has not chosen to produce the parent document. Further, learned counsel would urge that P.W.2 has not even chosen to produce any patta to show that he is in possession. Therefore, the second plaintiff, who has not produced either document of title or patta to show that he has been in lawful possession, cannot be taken to be in possession at all and consequently, the suit for Page 332 injunction has no legs to stand and as correctly found by the first appellate Court, the suit has to be dismissed. Learned counsel also relied upon the evidence of D.W.1, who also says at one place that he was living in the suit property. It is the further case of the learned counsel for the respondent that when once it is admitted that it was the defendant, who has purchased the suit property from one Mannangatti on 21.03.1974 under Ex.B.7 and the title in respect of the land is in favour of the defendant, if the second plaintiff states that the superstructure was constructed by the Corporation for him, the onus is on the second plaintiff to prove the same.
12. I have carefully considered the rival contentions made by both parties.
13. At the outset, it is clear that as far as the suit property is concerned, admittedly, the defendant is the owner of the site. While it is the case of the second plaintiff that the superstructure was built up by the Corporation for his benefit and he is in possession and the house was constructed in his name, curiously enough, the second plaintiff, who has come forward to the Court with a specific plea that the Corporation has put up the construction in his name, has not chosen to produce any document to show that the superstructure was put up for him. On the contrary, from Ex.B.7, it is seen that the site was purchased by the defendant from one Mannangatti under Ex.B.7 dated 21.03.1974. That apart, the plaintiffs have not chosen to produce any records like patta, etc. before the Court to show that the second plaintiff is in actual possession of the suit property. On the other hand, I find various receipts produced on the side of the defendant marked as Exs.B.13 to 21, even though the same were subsequent to the filing of the suit, to show that he is in possession. In any event, the law is well settled that the person, who comes to the Court especially in a suit for injunction, has to prove that he is in actual possession, which is lawful. In the circumstance, when it is admitted that the suit site belongs to the defendant, the burden is heavily on the second plaintiff to prove that he is in possession of the superstructure and the same was constructed by the Corporation in his favour. In the absence of any such evidence, I am of the view that the finding of the first appellate Court that the plaintiffs have not proved their possession is perfectly in order. That apart, even under Ex.B.1, which is stated to be a letter written in the Police Station, there is no specific admission either by the defendant or by anyone that the second plaintiff is in possession of the suit property. On the other hand, what is stated therein is that on payment of Rs.25,000/- by the defendant, the second plaintiff has to execute a sale deed. That cannot be a piece of evidence for the purpose of safely arriving at a conclusion that the second plaintiff has been in possession of the suit property.
14. For all these reasons, I am of the considered view that the judgment and decree of the first appellate Court are perfectly in order and there is absolutely no question of law involved in this matter much less substantial question of law. Therefore, the second appeal fails and the same is dismissed. There will be no order as to costs.