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2004 DIGILAW 747 (MAD)

Masilamani & Another v. Raghurama Gounder

2004-05-24

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The revision petitioners are husband and wife and are the defendants 1 and 2 in O.S.No.360 of 2002 on the file of the III Additional District Munsif Court, Pondicherry. The revision is filed against the dismissal of I.A.No.1498 of 2004 filed by the revision petitioners under Order XIV, Rule 5 read with Section 151 C.P.C. for framing additional issues with regard to the title of the plaintiff in respect of the suit 'B' schedule property, as per order dated 9.6.2004. 2. The respondent/plaintiff filed the suit against the defendants, who are neighbours of the suit 'B' schedule property, for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the suit 'B' schedule property by the plaintiff. The suit was filed on 19.11.2003. 3. The revision petitioners/defendants filed written statement on 9.9.2002 disputing the title of the plaintiff to the suit 'B' schedule property, which is part of 'A' schedule property and stating very clearly whatever the plaintiff purchased as per the sale deed dated 17.12.1970 has been sold. 4. During the pendency of the suit, the amendment petition I.A.No.2662 of 2002 was filed seeking the relief of mandatory injunction alleging that the defendants have constructed a compound wall and gate in the suit 'B' schedule property, which was allowed on 14.11.2003 and accordingly amendment has been carried out. 5. Thereafter, the defendants filed additional written statement on 28.11.2003 reiterating the stand taken in the written statement that the plaintiff sold entire property, which was purchased as per the sale deed dated 17.12.1970 and therefore, the plaintiff has no title or right over the 'B' schedule property. 6. Before filing the additional written statement, the defendants also filed I.A.No.1790 of 2003 on 2.4.2003 under Order XIV Rule 2(2)(b) C.P.C. to dismiss the suit O.S.No.360 of 2002 as not maintainable and considering preliminary issue that the suit is not maintainable and that the plaintiff has no title over the suit 'B' schedule property. In the affidavit filed in support of the petition I.A.No.1790 of 2003, it is stated in paragraph 4 thus:- "the total extent of the item 1, 2 is 50 kuzhies 7 veesams + 100 kuzhies 14 veesams. That is OH – 59A – 50 Ca. as per the settlement Records, maintained by the Government of Pondicherry. In the affidavit filed in support of the petition I.A.No.1790 of 2003, it is stated in paragraph 4 thus:- "the total extent of the item 1, 2 is 50 kuzhies 7 veesams + 100 kuzhies 14 veesams. That is OH – 59A – 50 Ca. as per the settlement Records, maintained by the Government of Pondicherry. Out of the total extent 59 Ares 50 Centiares, the Government of Pondicherry had acquired 51 Ares for a public purpose, under the provisions of the Land Acquisition Act, 1884. The remaining extent is 8 Ares 50 Centiares. Out of 8 Ares 50 Centiares, the respondent sold(plaintiff) an extent of 5 Ares 50 Centiares to the 2nd petitioner herein(2nd defendant), through an registered sale-deed, dated 24.06.1987. The remaining extent is only 3 Ares. The said 3 Ares were also sold to one Vijayalakshmi of Kattukuppam village through a registered sale deed dated 6.5.81. So, the respondent(plaintiff) what extent he purchased had been exactly sold to others. So, he(plaintiff) has no property in the R.S.No.88/19 at Kattukuppam village." 7. During the pendency of the said petition I.A.No.1790 of 2003, the defendants also filed I.A.No.1498 of 2004 subject matter of this revision on 20.4.2004 for framing additional issues, viz., (1) Whether the plaintiff has any title over the suit property or not? and (2) Whether the plaintiff is in possession and enjoyment over the suit property or not? It is claimed by the defendants that inasmuch as the title of the plaintiff to the 'B' schedule property, which is part of 'A' schedule property, has been denied right from the beginning in the written statement and by filing additional written statement and also in the affidavit filed in support of the petition I.A.No.1790 of 2003 and specific stand has been taken by the defendants that the plaintiff has no title to the suit 'B' schedule property and also not in possession of the same, though the trial has commenced and the evidence on both sides is over and inasmuch as the suit has not yet been disposed of, according to the defendants, the above said issues have to be framed as additional issues, since they are necessary issues to determine the dispute between the parties. 8. 8. The petition I.A.No.1498 of 2004 is opposed in the counter that in the evidence let in through D.Ws.1 and 2, it is admitted that the defendants have no right in the suit property and the first defendant in his evidence very clearly admitted that the property purchased by his wife, the second defendant under Ex.B-7 from the plaintiff, viz., 5 Ares and 50 Centiares is different to the 'B' schedule property of the extent 2 Ares and 44 Centiares. 9. The trial Court in refusing to accept the case of the defendants for framing additional issues as sought for, ultimately dismissed the said petition I.A.No.1498 of 2004. The defendants challenging the said order has filed this revision. 10. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 11. The learned counsel for the revision petitioners vehemently contended that inasmuch as the suit was filed for permanent injunction in respect of the suit 'B' schedule property, which is part of 'A' schedule property, and definite stand was taken in the written statement, additional written statement and also in the affidavit filed in support of I.A.No.1790 of 2003 and despite the fact the plaint was amended seeking the relief of mandatory injunction as per order in amendment petition I.A.No.2662 of 2002, the issues with regard to the title of the suit 'B' schedule property to the plaintiff has not been framed by the trial Court and inasmuch as the suit is still pending after the evidence on both sides is over and not yet disposed of, the issue, as to whether the plaintiff has got title and is in possession of the 'B' schedule property being necessary issues to decide the matter between the parties, have to be framed by giving suitable direction to the trial Court. 12. 12. The learned counsel for the respondent/plaintiff argued that inasmuch as the suit is filed only for permanent injunction and later amended seeking the relief of mandatory injunction for removal of the compound wall and gate put up by the defendants during the pendency of the suit and accordingly issues have also been framed with regard to the relief sought for by the plaintiff, viz., with regard to the permanent injunction and mandatory injunction, no issue regarding title of the suit property need be framed and therefore, the order of the trial Court dismissing the petition I.A.No.1498 of 2004 filed for framing additional issues does not call for any interference. 13. In the suit after filing of the written statement, the following issues were framed on 19.9.2002:- (1) Whether the plaintiff is in possession and enjoyment of suit schedule property as on date of presentation of plaint? (2) Whether the plaintiff is entitled for permanent injunction as prayed for? The amendment petition I.A.No.2662 of 2002 seeking the relief of mandatory injunction was allowed on 14.11.2003 and after the amendment of the plaint and filing of the additional written statement, the following additional issues were framed on 3.12.2003:- (1) Whether the defendants constructed a compound wall with gate in the suit property after filing of this suit? (2) Whether the plaintiff has no access to the suit property? (3) Whether the plaintiff entitled for mandatory injunction as prayed for? 14. In the suit, evidence on both sides were closed on 16.4.2004 and the suit was posted for argument on 21.4.2004, on which date, the defendants have filed the petition I.A.No.1498 of 2004, subject matter of this revision for framing additional issues with regard to the title and possession of the suit property. As observed by the trial Court already an issue was framed as early as on 19.9.2002 as to whether the plaintiff is in possession and enjoyment of the suit schedule property as on date of presentation of plaint? 15. The plaintiff purchased the properties and more particularly the property described in the suit 'A' schedule in the plaint under the sale deed Ex.A-1 dated 17.12.1970, and another copy of which has also been marked as Ex.B-6, as follows:- As per sale deed Ex.B-4 dated 6.5.1981, the plaintiff sold 5 Kuzhi and 10 veesams to one Vijayalakshmi, wife of Janardhanan of Kattukuppam. The western boundary to the property sold under Ex.B-4 is described as The eastern and northern boundaries have been described as the land acquired by the Government Thereafter under sale deed Ex.B-7 dated 24.6.1987, the plaintiff sold to the second defendant Devakanni 10 Kuzhies and 4 veesams. The eastern boundary to the property is described as the land of Devanathan's wife Vijaya. 16. The suit is mainly resisted on the ground that the properties purchased by the plaintiff under Ex.B-6 have been conveyed by the plaintiff under the sale deeds Ex.B-4 and B-7 and also acquired by the Director of Survey and Land Records of Pondicherry for the issue of free sites to the landless Labourers to the extent of 51 Ares of land and that the plaintiff is not in possession and also no title in respect of the suit 'B' schedule property which is part of "A" schedule property said to have been purchased under the sale deed Ex.B-6. Such a stand is taken by the defendants at the earliest by filing written statement on 9.9.2002 and also by filing additional written statement on 28.11.2003. The plaintiff though initially filed the suit for permanent injunction later amended the plaint seeking for mandatory injunction also in respect of the suit "B" schedule property, in which according to the plaintiff, the defendants have put up the compound wall and gate by encroaching upon the property. Therefore, the burden is heavily rest upon the plaintiff to show that he has got title and possession to the suit "B" schedule property which have been denied by the defendants. Only if the title and possession of the plaintiff to the 'B" schedule property are established, then only, the plaintiff is entitled for mandatory injunction as sought for. Merely because, it is admitted by the first defendant as D.W.1 in his evidence that the property purchased by his wife, the second defendant under Ex.B-7 and the plaint "B" schedule property are different, no inference can be drawn that the plaintiff has got title to the suit "B" schedule property. Therefore, in respect of the title of the plaintiff to the suit 'B' schedule property also have to be gone into through trial. In that case, necessarily an issue is to be framed with regard to the title of the suit "B" schedule property. Therefore, in respect of the title of the plaintiff to the suit 'B' schedule property also have to be gone into through trial. In that case, necessarily an issue is to be framed with regard to the title of the suit "B" schedule property. Inasmuch as the suit is still pending though the evidence on both sides is over, such an issue regarding title of the plaintiff is to be framed and the suit can be disposed accordingly by letting in further evidence on both sides. In that view, the order of the trial Court being improper and erroneous is to be set aside. 17. In the result, this Civil Revision Petition is allowed. No costs. The order dated 9.6.2004 in I.A.No.1498 of 2004 in O.S.No.360 of 2002 by the III Additional District Munsif Court, Pondicherry is set aside. The trial Court is directed to frame additional issue with regard to the title of the plaintiff in respect of the suit "B" schedule property and to dispose the suit in accordance with law affording opportunity to both sides to adduce further evidence by August, 2005. Consequently, the connected petition C.M.P.No.14043 of 2004 is closed.