Madras High Court
Ghewarchan Jain @ G.C.Jain vs Arputhamary on 30 September, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 10.08.2022
Pronounced on : 30.09.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.298 of 1996
Ghewarchan Jain @ G.C.Jain ...Plaintiff / Appellant / Appellant
Vs.
Arputhamary ... Defendant / Respondent / Respondent
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.49 of 1994 dated 28.07.1995 on the
file of the Sub Court, Kancheepuram confirming the judgment and decree
made in O.S.No.88 of 1984 dated 30.11.1993 on the file of the Additional
District Munsif Court, Kancheepuram.
For Appellant : Mr.K.M.Balaji
For Respondent : Mr.T.R.Rajaraman
for Mr.V.Sairam
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The plaintiff in O.S.No.88 of 1984 on the file of the Additional District Munsif Court, Kancheepuram is the appellant herein.
2.O.S.No.88 of 1984 had been filed by the plaintiff, Ghewarchan Jain @ C.G.Jain against the defendant, Arputha Mary seeking permanent injunction restraining the defendant from interfering with the peaceful possession of the plaintiff of the plaint schedule property or in the alternate, to grant mandatory injunction directing the defendant to remove the compound wall as shown in the report of the Commissioner from the property of the plaintiff and also to remove the newly constructed Madras terraced roof portion and hut portion and the encroachment by way of masonary construction in the front road abutting the portion of the plaintiff as stated in the report of the Advocate Commissioner and also for costs of the suit.
3.By judgment dated 30.11.1993, the Suit was dismissed with costs. https://www.mhc.tn.gov.in/judis 3
4.The plaintiff then filed A.S.No.49 of 1994 before the Sub Court at Kancheepuram. By judgment dated 28.07.1995, the Appeal Suit was dismissed with costs.
5.The plaintiff, then filed the present Second Appeal. The Second Appeal had been admitted on 23.02.1996, on the following substantial question of law:
“1.Whether the courts below have failed to call to their aid, the principle laid down in Section 95 of the Indian Evidence Act, for the purpose of interpretation to the made of Exs.A1, B2 and A15?” O.S.No.88 of 1984 (Additional District Munsif Court, Kancheepuram):-
6.In the plaint in O.S.No.88 of 1984, the plaintiff stated that the property described in the schedule was purchased by him from K.M.Ibrahim Ravuthar for Rs.10,500/- on 12.10.1977 under a registered sale deed. He claimed to be in possession. The property was vacant site. He claimed that the total area was 24 cents. The plaintiff further stated that to the east of the https://www.mhc.tn.gov.in/judis 4 property there was further vacant land which originally belonged to Dhanraj Juguraj Bermacha Trust, represented by Managing Trustee, A.D.Geerchand.
7.The plaintiff further stated that the defendant had purchased the said property to the east of the plaint schedule property by a registered sale deed dated 28.02.1983 for Rs.17,000/- from the trust. It was claimed that the defendant had not taken possession of the property. It was stated that the defendant dug up a pit for constructing a compound wall. The plaintiff advised the defendant not to do so. It was stated that the compound wall of the plaintiff was partly demolished by the defendant. It was under those circumstances that the suit was originally filed for permanent injunction and later, since after filing of the suit, the defendant had put up a wall, amended seeking the relief of mandatory injunction to remove the wall.
8.In the written statement, the averments in the plaint were denied. It was stated that there was no compound wall belonging to the plaintiff. There was no cause of action for filing of the suit. It was stated that the defendant had purchased 0.40 cents in S.No.356 and it was surveyed as S.No.356/2B in Sandavellore Village. It was stated that immediately to the https://www.mhc.tn.gov.in/judis 5 western side of the property purchased by the defendant, the vendor of the plaintiff, Ismail and others were the owners of an extent of 8 x 200 feet of land abutting the road. The defendant claimed that she had also purchased that portion by a sale deed dated 02.04.1982 for Rs.2000/- and she was in possession. The defendant had taken possession of her property, even before the sale deed executed by the trust. The defendant claimed that the plaintiff had executed an unregistered agreement of sale with respect to 36 cents out of 72 cents in S.No.356/1 adjoining the said land measuring 8 x 200 feet. The defendant had paid Rs.15,000/- as advance. She was ready and willing to pay the balance amount. However, the plaintiff had filed the suit seeking permanent injunction. It was stated that the suit had been filed to defeat the rights under the agreement.
9.An Additional written statement had been filed stating that the structure put up by her was within her property and not in the plaintiff's property. The defendant stated that the suit should be dismissed.
10.On the basis of the above pleadings, the following issues were framed:-
https://www.mhc.tn.gov.in/judis 6 “1.Whether the suit schedule property was properly described in the plaint?;
2.Whether the plaintiff is entitled for permanent injunction or for mandatory injunction?; and
3.To what other reliefs are the parties entitled to?”
11.During trial, the plaintiff examined himself as PW-1 and the defendant examined herself as DW-1.
12.The plaintiff marked Exs.A1 to A17. Ex.A1 was the sale deed in favour of the plaintiff dated 12.10.1977. Ex.A12 was the sale deed in favour of the vendor of the plaintiff dated 31.03.1941. Exs.A13 and A14 were the judgment and decree in O.S.Nos.34 of 1986 and 81 of 1986 dated 07.05.1990 on the file of the Sub Court, Kancheepuram. Ex.A15 was the sale deed in favour of the defendant dated 28.02.1983. Ex.A16 was the agreement between the plaintiff and the defendant dated 31.01.1984. Ex.A17 was the sale deed in favour of the defendant dated 14.08.1985. https://www.mhc.tn.gov.in/judis 7
13.On the side of the defendant, the agreement between the plaintiff and the defendant dated 31.01.1984 was marked as Ex.B1. The sale deed in favour of the defendant dated 02.04.1982 was marked as Ex.B2.
14.An Advocate Commissioner had also been appointed and the reports and sketch filed, had been marked as Exs.C1 to C4.
15.On the basis of the evidence adduced, with respect to the first issue, the learned Additional District Munsif Kancheepuram held that the property had been properly described in the plaint. With respect to the second issue, it was held that the plaintiff had laid the suit for 10 cents in S.No.356/1 and for 14 cents in S.No.356/2A. It was also found that the plaintiff was however not able to properly identify the land in S.No.356/1 measuring 10 cents. It was observed that the plaintiff should properly identify the land for which he had filed the suit. The explanation by the plaintiff that he did not know Tamil properly was rejected. It was held that the plaintiff was not entitled to any relief with respect to the 10 cents of land in S.No.356/1.
https://www.mhc.tn.gov.in/judis 8
16.Thereafter, the reports of the Advocate Commissioner was examined and it was found that the compound wall complained by the plaintiff was actually situated in S.No.356/2A. It was therefore held that the plaintiff had to establish title to the lands in S.No.356/2A. It was found that the documents produced by the plaintiff were secondary evidence and it was found that the plaintiff had not produced any document to show how his vendor Ibrahim Ravuthar come into title and possession of the lands. It was found that the documents of title with respect to the land in S.No.356/2A had not been filed.
17.The defendant had however filed documents with respect to S.No.356/1. It was further found that only Exs.A9 and A11 related to S.No.356/2A. Ex.A9 was the chitta in the name of Ibrahim Ravuthar and Ex.A11 was the tax receipt dated 26.03.1991. It was held that on the basis of those two documents relief cannot be granted with respect to the lands measuring 14 cents in S.No.356/2A. The suit was therefore dismissed with costs.
https://www.mhc.tn.gov.in/judis 9 A.S.No.49 of 1994 (Sub Court, Kancheepuram):
18.The plaintiff then filed A.S.No.49 of 1994 before the Sub Court at Kancheepuram. The learned Sub Judge again framed as a point for consideration, whether the plaintiff was entitled for permanent injunction or for the alternate relief of mandatory injunction. The learned Sub Judge again examined the evidence available and found that though the plaintiff had stated that he had purchased the lands from Ibrahim Ravuthar, it was observed that the said Ibrahim Ravuthar did not have any lands to the east of the land purchased by the plaintiff. It was found that there were no documents to show the actual area of the lands and the boundaries. It was stated that the plaintiff relied on xerox copies of patta and kist receipts in favour of Ibrahim Ravuthar. It was held that the plaintiff had not established title to the lands in entirety and the identity of the lands was also not properly established by the plaintiff and therefore holding as above, it was found that the plaintiff was not entitled to any relief and therefore, the appeal suit was dismissed affirming the judgment of the Trial Court in O.S.No.88 of 1084.
https://www.mhc.tn.gov.in/judis 10 S.A.No.298 of 1996:-
19.The plaintiff then filed the present Second Appeal. The Second Appeal had been admitted on 23.02.21996, on the following substantial question of law:-
“1.Whether the courts below have failed to call to their aid, the principle laid down in Section 95 of the Indian Evidence Act, for the purpose of interpretation to the made of Exs.A1, B2 and A15?”
20.The substantial question of law surrounds Section 95 of the Indian Evidence Act, 1872 and Exs.A1, B2 and A15.
21.Section 95 of the Indian Evidence Act, 1872 is a follows:-
“95. Evidence as to document unmeaning in reference to existing facts. –– When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.” https://www.mhc.tn.gov.in/judis 11
22.Ex.A1 dated 12.10.1977 is the sale deed in favour of the plaintiff. A xerox copy alone had been filed. No explanation had given by the appellant / plaintiff why the original was not produced. Both the Courts below had occasion to examine the said document. The contention of the appellant / plaintiff was that to the east of his lands, the defendant had purchased lands from a trust and thereafter, had put up a compound wall and also constructions and had encroached into the lands of the appellant / plaintiff.
23.It was found as a fact that the lands under Ex.A1 can be divided into two portions, namely, lands measuring 10 cents in S.No.356/1 and lands measuring 14 cents in S.No.356/2A. However, the appellant / plaintiff had produced only xerox copies of the patta and chitta of the vendor and there no documents in his own name were produced to show that revenue records had been mutated or that he had taken possession. Even the appellant / plaintiff had admitted in the plaint, that the lands of the respondent / defendant are to the east of the suit schedule property. It had been very clearly concurrently held as a fact that the respondent / defendant had put up compound wall and constructions only in those lands purchased under Ex.B1.
https://www.mhc.tn.gov.in/judis 12
24.It must also be stated that Ex.B2 had been produced indicating purchase by the defendant of lands measuring 8 x 200 feet. The defendant claimed title to those lands. If at all, the plaintiff seeks any relief in the nature of injunction, the plaintiff should have first instituted the suit for declaration of title. Having failed to do so, I hold that both the Courts had correctly held that the plaintiff/appellant was not entitled to any relief.
25.The three documents mention in the substantial question of law namely, Exs.A1, B2 and A15 relate to the sale deeds of the appellant / plaintiff, and the respondent / defendant.
26.The sale deeds speak for themselves. If at all, any interpretation is to be given relating to the properties purchased under the sale deeds, then primary evidence will have to be adduced on that aspect. Even to apply Section 95 of the Indian Evidence Act, 1872 there must evidence adduced relating to the lands mentioned in the schedule to the documents. It had been very clearly held as a fact that PW-1 had admitted that he was not sure of the identity of the lands, which he had purchased. I hold that when the plaintiff had not established the identity of his own lands, it would not be prudent on the part of this Court to interpret a particular document in a particular manner. Primarily, the plaintiff should have instituted a suit for https://www.mhc.tn.gov.in/judis 13 declaration of title. Having failed to do so, he should suffer the consequences.
27.In Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. and others reported in (2008) 4 SCC 594 : 2008 (6) CTC 237, the Hon'ble Supreme Court held as follows:-
“13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. ......
15. In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of https://www.mhc.tn.gov.in/judis 14 the suit property and the defendant tried to interfere or disturb such lawful possession. .....” (Emphasis Supplied)
28.In Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan, (1999) 6 SCC 343, it was held as follows by the Hon’ble Supreme Court :
“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. “13. In Ramanuja Naidu v. V. Kanniah Naidu [(1996) 3 SCC 392] this Court held:
“It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally https://www.mhc.tn.gov.in/judis 15 misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.” “14. In Navaneethammal v. Arjuna Chetty [(1996) 6 SCC 166] this Court held:
“Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.” “15. And again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. [(1997) 4 SCC 484] this Court held:
“The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible.” https://www.mhc.tn.gov.in/judis 16
29.In view of the above dictum, the concurrent findings of fact cannot be disturbed and I hold that the plaintiff having failed to file a suit for declaration of title cannot also seek any relief of permanent injunction or mandatory injunction.
30.I hold that the Second Appeal has to suffer an order of dismissal.
31.The Second Appeal is accordingly dismissed. The parties to bear their own costs.
30.09.2022 Index:Yes/No Internet:Yes/No Speaking / Non speaking order smv To
1.The Additional District Munsif Court, Kancheepuram.
2.The Sub Court, Kancheepuram.
3.The Section Officer, VR Section, Madras High Court. https://www.mhc.tn.gov.in/judis 17 C.V.KARTHIKEYAN,J.
Smv Pre-delivery Judgment made in S.A.No.298 of 1996 30.09.2022 https://www.mhc.tn.gov.in/judis