Madras High Court
Rajendran vs Ilanthurai on 6 July, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 06.07.2012 Coram:- The Hon'ble Mr. Justice T.Raja Second Appeal No.181 of 2007 Rajendran ... Appellant vs. 1.Ilanthurai 2.Natarajan 3.Rajapandian ... Respondents Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 26.07.2006, passed by the Principal Sub Court, Mayiladuthurai, in A.S.No.37 of 2004, reversing the judgment and decree, dated 10.07.2003, passed in O.S.No.420 of 2001, by the Additional District Munsif Court, Mayiladuthurai. For Appellant : Mr.S.Sounthar For Respondents : Mr.A.Muthukumar J U D G M E N T
The present Second Appeal has been filed by the plaintiff as against the judgment and decree passed by the Principal Sub Court, Mayiladuthurai, in A.S.No.37 of 2004 on 26.07.2006, reversing the judgment and decree, dated 10.07.2003, passed by the Additional District Munsif Court, Mayiladuthurai in O.S.No.420 of 2001.
2. Brief facts that led to the filing of the second appeal are narrated as under:-
The appellant herein is the plaintiff before the trial Court, who filed the suit for restraining the defendants in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property, on the ground that the suit property was originally allotted to the plaintiff's father as per the registered partition deed, dated 10.10.1958, under 'C' schedule. After the death of the plaintiff's father-Rajagopal in the year 1985, the plaintiff's mother-Rajavalli, his brother-Nagendran and his sister-Vairaselvi, are to inherit the same. The plaintiff managed the suit property by raising plantain trees and he is in possession and enjoyment of the property without any disturbance or hindrance from anyone. While so, the defendants, being strangers to the suit property, attempted to change the patta in their favour in respect of R.S.Nos.474/1 and 476/1, hence, the plaintiff issued a lawyer's notice to the defendants on 28.09.2001. Since the defendants are powerful persons in that locality and they would even go to the extent of cutting down the plantain trees cultivated, the suit was filed for bare injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit properties.
3. Opposing the said claim, a detailed written statement was filed, stating that Rajagopal Padayachy was allotted R.S. Nos.475/2, 475/3 and 475/4. All the three survey nos. were clubbed together as R.S.No.475/2 comprising 1 acre of land. Subsequently, on 09.10.1969, an unregistered exchange arrangement was entered into between Thiyagarajan and Rajagopal and as per the said exchange, R.S.No.475/2, measuring 1 acre was allotted to Thiyagarajan and Rajagopal was allotted R.S.No.474/1, measuring 80 cents and R.S.No.476/1 measuring 43 cents. From the date of the said exchange arrangement, Thiyagarajan and his family members continued to enjoy the land in R.S.No.475/2, measuring 1 acre 4 cents in their own right by raising plantain trees therein. Neither the plaintiff nor his father can lay any claim over the suit property. Without knowing the actual position, the plaintiff erroneously relying upon old partition deed, dated 10.10.1958, filed the present suit, hence, the suit should be rejected.
4. The trial Court, accepting the case of the plaintiff, decreed the suit as prayed for. Aggrieved by the same, when appeal was preferred, the learned first appellate Court reversed the judgment and decree passed by the trial Court. Hence, the present Second Appeal by the plaintiff.
5. This Court, while entertaining the Second Appeal, has framed the following substantial questions of law for consideration:-
i) Whether the judgment of Lower Appellate Court is liable to be set aside in its holding un-registered unstamped exchange deed is admissible in evidence overlooking Section 35 of the Stamp Act and Sections 17 and 49 of Registration Act?
ii) Whether the Lower Appellate Court is justified in allowing respondents to raise additional evidence when ingredients of Order 41 Rule 27 of CPC are not satisfied?
iii) Whether the judgment of lower appellate court is sustainable in law for its failure to advert to the entire oral evidence on record independently, especially when reversing the Trial Court's findings?
6. While addressing on the substantial questions of law, learned counsel appearing for the appellant would submit that it is an admitted fact by both sides that there was a family partition as early as on 10.10.1958 among Natesa Padayachi, Thiagarajan and Rajagopal, and as per such partition, 'A' schedule property viz., S. Nos.475/2 - 4 cents, 476/4 - 43 cents, 476/5 - 70 cents and 476/1 - 43 cents, was allotted to Natesa Padayachi, while 'B' Schedule property viz., S.Nos.474/2 - 49 cents, 474/3 - 88 cents and 194/1 - 37 cents, fell to the share of Thiagarajan/father of the 1st defendant, and 'C' schedule property viz., S.Nos.475/2 - 29 cents, 475/3 - 28 cents, 475/4 - 43 cents, 364/1 - 46 cents and 191/1 - 37 cents was given to Rajagopal/father of the plaintiff. The said partition took place on 10.10.1958 was through a registered partition deed marked as Ex.A1. Now, the defendants/respondents herein claim that by an unregistered/unstamped Exchange Deed dated 09.10.1969, their predecessor Thiagarajan had given 80 and 43 cents in S.Nos.474/1 and 476/1 to the appellant's father-Rajagopal and in exchange, obtained 1 acre in S.No.475/2. But, the land in S.No.474/1 was not the subject matter of family partition in 1958. In fact, the land in S.No.476/1 was allotted to the share of Natesa Padayachi in the partition during 1958. When the lands in S.Nos.474/1 and 476/1 allegedly given by Thiagarajan under the alleged Exchange not being his property, the story of exchange projected by the respondents cannot be acted upon by the court to hold against the appellant. As the entire case of the respondents/defendants rests only on the unregistered/unstamped Exchange deed dated 09.10.1969 which document has no legal sanctity even to be looked into, the learned first appellate court is absolutely wrong in reversing the just and correct verdict of the trail court, that too, without giving any valid and acceptable reasons; hence, according to the learned counsel, the impugned judgment of the lower appellate court warrants interference at the hands of this court.
7. Per contra, learned counsel appearing for the defendants/respondents would submit that the trial court has miserably failed to follow the basic principle that the person, who is approaching the court for a bare injunction, should establish his possession on the date of filing the suit by producing all acceptable and satisfactory evidence. The plaintiff, who filed the suit for bare injunction, was not even in possession of the property. No adangal or chitta extract was produced by the plaintiff to prove his possession. Not even kist was paid by the plaintiff in respect of the suit properties, therefore, the learned first appellate court, taking judicial note of the perverse finding recorded by the trial court that the plaintiff/appellant is entitled to have a decree for bare injunction, has rightly reversed the erroneous verdict of the trial court by holding that the plaintiff is not entitled for the relief sought for as he miserably failed to establish his possession over the property regarding which he seeks bare injunction, and such a well-considered judgment of the lower appellate court does not call for interference. In support of his submission, learned counsel relied upon a judgment of this Court reported in 1998-3-LW-119 (Chellathurai and 5 others v. Perumal Nadar), wherein, this Court reiterated that in a suit for injunction, it is the duty of the plaintiff, who has come to the court, to prove that he continues to be in physical possession of the suit property on the date of filing the suit and that, even if the defendant fails to prove his case, it does not follow that the plaintiff can be granted bare injunction when he is not able to prove by adducing evidence that he is in possession of the suit property.
8. In the present case , there was absolutely no evidence whatsoever by the plaintiff to show that he was in possession of the suit property either on the date of the suit or prior thereto. In the impugned judgment, the lower appellate court recorded a clear and categoric finding that, while granting bare injunction, the trial court abruptly failed to examine the basic ingredient regarding possession. The argument that only after filing the appeal before the lower appellate court, the unregistered/unstamped Exchange Deed dated 09.10.1969 sought to be produced by the defendants to show that there was exchange of land between the families of the plaintiff and the defendant and that the first appellate court, despite the objections raised by the plaintiff, not only received the document for consideration but also based on such document not admissible in evidence proceeded to record findings so as to upset the order of the trial court, though appears to be fancy, cannot be accepted for more than one reason. As already stated, only because of the reason that the trial court, which is the first fact finding court rendered a definite finding without even properly examining the core question on the aspect of possession by the plaintiff who did not produce any substantive piece of evidence to determine the question of possession, the ultimate fact finding court viz., the lower appellate court, in order to re-examine such issue, proceeded to receive the unregistered/unstamped document as the said document would throw light on the aspect of possession. Even barring the said document/exchange deed, as rightly pointed out, before the trial court, no acceptable evidence was produced to substantiate the factum of possession by the plaintiff as on the date of suit. Also, the lower appellate court very clearly pointed out that even leaving aside the Exchange deed, the plaintiff cannot succeed as the suit properties were dealt with as 'properties belonging to the defendant's family in the Registered Partition Deed under Ex.B1 dated 21.04.1974. The said aspect raises doubt over the plaintiff's title to the suit property and it follows that a mere suit for injunction is not maintainable. At least, 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/appellant 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 at least a single piece of plausible evidence. The judgment and decree passed by the trial court granting bare injunction is not legally sustainable 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.
9. To answer the second substantial question of law - whether the first appellate court is right in allowing the respondents to raise additional evidence in exercising the power conferred under Order 41 Rule 27 CPC, it is well settled now that the court can admit important and necessary evidence in appellate stage since the ultimate goal is to render justice. Accordingly, the 2nd question of law is also answered against the appellant.
10. In view of the foregoing reasons, as the rights of the plaintiff/appellant to get injunction was refused since he was not in possession of the suit property, again delving into the first substantial question of law is not necessary.
11. In the result, the Second Appeal is dismissed, however, there will be no order as to costs.
06.07.2012.
Index : yes/no Internet : yes/no rkm/JI.
To
1. The Principal Subordinate Judge, Mayiladuthurai.
2. The Additional District Munsif, Mayiladuthurai.
T.Raja, J.
Pre Delivery Order in
S.A.No.181 of 2007
06.07.2012.