Madras High Court
Kasthuri vs Saraswathi on 30 November, 2021
Author: A.A.Nakkiran
Bench: A.A.Nakkiran
SA(MD).No.168 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 12.07.2021
PRONOUNCED ON : 30.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN
SA(MD).No.168 of 2015
(Through Video Conferencing)
1. Kasthuri
2. Jeyarani Appellants
Vs
1. Saraswathi
2. Ravindran
3. Senthilvasan
4. Senthilvani Respondents
Prayer:- This Second Appeal has been filed, under Section 100 of CPC, against
the judgement and decree, dated,22.07.2014, passed in AS.No.8 of 2014, by
the Subordinate Judge, Aruppukkottai, confirming the judgement and decree,
dated, 20.12.2013, passed in OS.No.85 of 2002, by the District Munsif,
Aruppukkottai.
For Appellant : Mr.S.Chandrasekaran
For Respondent : Mr.C.Vakeeswaran-RR2 to 4
R1-Died
JUDGEMENT
1. This Second Appeal has been filed, by the Defendants, against the judgement and decree, dated, 22.07.2014, passed in AS.No.8 of 2014, by 1/8 https://www.mhc.tn.gov.in/judis SA(MD).No.168 of 2015 the Subordinate Judge, Aruppukkottai, confirming the judgement and decree, dated, 20.12.2013, passed in OS.No.85 of 2002, by the District Munsif, Aruppukkottai.
2. The case of the Plaintiffs is that the suit property was purchased by the 1st Plaintiff from Sakthivel under a registered sale deed, dated 24.11.1994 and since then, the Plaintiffs were in possession and enjoyment of the same and that on 03.04.2002, the Defendants 1 and 2 trespassed into the suit property and restrained them from doing the work and that the Defendants have no right over the suit property and hence, the suit has been filed, seeking permanent injunction, restraining the Defendants, from interfering with their peaceful possession and enjoyment of the suit property and for costs.
3. The case of the Defendants as set out in the written statement filed by the 1st Defendant and adopted by the 2nd Defendant, is that the 2nd Defendant is the sister of the 1st Defendant and that even the vendor of the 1 st Plaintiff, Sakthivel Asari has no right over the suit property and that the four boundaries and the measurements of the suit property are wrong. In the suit property, stone pillars have been laid and asbestos sheet roofing was done and these superstructures are in possession and enjoyment of the 1st Defendant. The suit property originally belonged to one Subbammal and settlement patta, bearing No.102 had been issued in her favour and after her demise, her son Raj Naicker inherited the property and he was in possession and enjoyment of the same and out of the 5 cents, the western 3 cents was given to the 1st Defendant through a registered sale deed dated 18.06.2001, 2/8 https://www.mhc.tn.gov.in/judis SA(MD).No.168 of 2015 in which the 1st Defendant had put up a shed and the remaining two cents on the Western side was sold to the 2nd Defendant through a registered sale deed, dated 18.06.2001. The suit property is not properly identified through a Advocate Commissioner. Since the Defendants have objected to the title of the suit property of the Plaintiffs, without seeking the relief of declaration of title, the suit for mere permanent injunction is not sustainable.
4. On the pleadings of the parties, issues were framed by the Trial Court. Before the Trial Court, on the side of the Plaintiffs, Ex.A1 to Ex.A8 were marked and PW.1 to PW.4 were examined. On the side of the Defendants, Ex.B1 and Ex.B2 were marked and DW.1 to DW.3 were examined. The report and plan of the Advocate Commissioner were marked as Ex.C1 and C2 and Ex.X1 and X2 were marked. On considering the evidence, the Trial Court had decreed the suit. On the appeal, the lower appellate court had dismissed the appeal, confirming the judgement and decree of the Trial Court. Aggrieved against the same, this Second Appeal has been filed by the Defendants.
5. This Second Appeal was admitted, on the following substantial questions of law:-
(a) Whether the judgement and decree of the courts below are vitiated for having failed to consider the entire evidence on record and to apply the correct principles of law.
(b) Is not the prayer for 'declaration of title' is mandatory to decide the alleged title and possession, when the same was vehemently disputed by the Appellants/ Defendants.
(c) Is not the Appellant and his predecessor had prescribed the title to the 3/8 https://www.mhc.tn.gov.in/judis SA(MD).No.168 of 2015 suit property by way of adverse possession when the Respondents have failed in establishing their continuous possession since the date of their purchase i.e. 24.11.1994 onwards?
(d) Is not the Respondents/ Plaintiffs have proved their possession as on the date of presentation of the plaint by proving cause of action as pleaded on the specific date?
6. This Court heard the submissions of the learned counsel on either side.
7. The learned counsel for the Appellants has submitted that the suit property is a portion of the main property and that the identity of the suit property is not clear and that the property identified by the Advocate Commissioner is not the suit property and that without the prayer for declaration of title, the suit seeking mere permanent injunction is not maintainable and that the kist receipts produced by the Plaintiffs are not relating to the suit property and that the courts below ought to have considered the patta under Ex.D1 and D2, which stood in the name of the predecessor in title through whom the Defendants have purchased the same under Ex.B1 and Ex.B2. The learned counsel would further submit that the Plaintiff have not proved their physical possession of the suit property, as on the date of the presentation of the suit and for such reasons, the suit is liable to be dismissed. The learned counsel would rely on the decisions reported in 2008 6 CTC 237 (Anathula Sudhakar Vs. P.Buchi Reddy), 2020 4 CTC 101 (Ramalingam Vs. Jayaraman), 2006 2 CTC 24 (Lalitha Vs. Selvaraj), 2020 5 MLJ 595 (Poornasamy Vs. Natarajan), 2020 6 CTC 822 (K.Subbulakshmi @ Pappayee Vs. C.V.Ramasamy Pillai), 2020 4 CTC 783 (Panneerselvan Vs. M.Natesa 4/8 https://www.mhc.tn.gov.in/judis SA(MD).No.168 of 2015 Mudaliar) and the judgement of the Honourable Supreme Court, dated 07.09.2021 made in Civil Appeal Nos.5575-5576 of 2021 (Kayalulla Parambath Moidu Haji Vs. Nambooiyil Vinodan).
8. The learned counsel for the Respondents would submit that both the courts below have properly appreciated the evidence on record and rightly decreed the suit, by the impugned judgements, which warrants no interference. The learned counsel would rely on the decisions reported in 2008 AIR SC 2033 (Anathula Sudhakar Vs. P.Buchi Reddy) and the judgement of this Court, dated 12.11.2019, made in SA.No.601 of 2014 (Jothi Ramalingam Vs. A.K.Palani).
9. This Court considered the rival submissions of the learned counsel on either side and also perused the materials available on record. For the sake of convenience, the parties herein after are referred to as they were arrayed in the suit.
10.The Plaintiffs have relied on Ex.A1, registered sale deed, dated, 24.11.1994, Ex.A5, registered sale deed, dated 06.03.1982 and Ex.A2 kist receipt to prove their case. The courts below have found that as seen from Ex.A1, the vendor of the 1st Plaintiff, Sakthivel had purchased the suit property through Ex.A5 and that Ex.A3 is the encumbrance certificate for the period from 01.01.1994 to 26.11.2001, reflecting the above said transactions. Ex.A4 is the patta bearing patta no.306, wherein the name of the vendor of the 1 st Plaintiff finds a place. Ex.A7 is the certified copy of the judgement made in OS.No.252 of 2001 filed for declaration and permanent injunction and Ex.A8 5/8 https://www.mhc.tn.gov.in/judis SA(MD).No.168 of 2015 is the certified copy of the decree made in the said suit. It was further held that as seen from Ex.A7 and Ex.A8, the suit property also forms part of the suit property in the earlier suit and the said documents disclosed that the vendor of the 1st Plaintiff and thereafter, the Plaintiffs have title over the suit property. PW.1 to PW.3 have rendered evidence, supporting the contentions made in the plaint.
11.On the other hand, Ex.B1, sale deed dated 18.06.2001 and Ex.B2, sale deed dated 18.06.2001 executed in their favour, are relied on by the Defendants. DW.1, the 1st Defendant has deposed evidence supporting Ex.B1 and Ex.B2. DW.2, concerned Village Administrative Officer had marked Ex.X1 A-Register, in respect of the suit property and DW.3 is the record clerk of the Collector's Officer, Kariappati and he deposed about the A-Register extract and marked Ex.X2.
12.Considering the evidence available on record, both the courts below have held that the Defendants have failed to trace their earlier title and that the documents relied on by them are much later in point of time as that of the Plaintiffs and that the Plaintiffs have traced their tile and established their ownership and possession in respect of the suit property through Ex.A1 to Ex.A5. The judgement and decree made in OS.No.252 of 2001 also supports the case of the Plaintiffs and accordingly, after thoroughly discussing the entire evidence, it was held concurrently by both the courts below that the Plaintiffs have got right, title and possession over the suit property and that the Defendants failed to trace their title through Ex.B1 and 6/8 https://www.mhc.tn.gov.in/judis SA(MD).No.168 of 2015 Ex.B2. These are all findings of facts or inference of facts arising from the documents. When both the courts below have concurrently recorded findings of facts, as discussed above and in the absence of warranting compelling reasons, the same cannot be interfered with in this second appeal.
13.It is well settled that even in a suit for mere injunction, the question of title can also be gone into incidentally and as such, a suit for bare injunction without a prayer for declaration of title is maintainable. It would depend upon the facts and circumstances of each and every case.
14.In this case, though it is the contention of the Appellants that the suit is not maintainable without the relief of declaration, the courts below, after analysing the entire evidence both oral and documentary and keeping in mind the well settled proposition, have rightly recorded findings in respect of the title of the suit property also and clearly held that since the Plaintiffs have established their title by valid evidence, there was no necessity for them to seek a relief of declaration. In view of the above, the impugned judgements of the courts below do not warrant any interference by this Court. Accordingly, the substantial questions of law are answered against the Appellants.
15.In fine, this Second Appeal is dismissed. No costs.
30.11.2021 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm 7/8 https://www.mhc.tn.gov.in/judis SA(MD).No.168 of 2015 A.A.NAKKIRAN, J.
Srcm To
1. The Subordinate Judge, Aruppukkottai
2. The District Munsif, Aruppukkottai
3. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai Pre-Delivery Judgement in SA(MD).No.168 of 2015 30.11.2021 8/8 https://www.mhc.tn.gov.in/judis