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2006 DIGILAW 3244 (MAD)

Sarasagopal v. Akshaya Homes & Another

2006-11-28

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition filed against the order dated 30.06.2005, made in CMA.No.12 of 2006, in I.A.No.106 of 2006 in O.S.No.21 of 2006 passed by the learned Prl.District Judge, Chengalpattu.) Aggrieved over the order of the learned Principal District Judge, Chengalpattu made in CMA.No.12 of 2006, in I.A.No.106 of 2006 in O.S.No.21 of 2006, the second defendant in the suit and the second respondent in the CMA has preferred this revision. 2. The brief facts of the case are as follows:- The respondent is the plaintiff, who filed the suit against (1) M/s. Indus City Scapes Pvt., Ltd. (2) Sarasa Gopal (petitioner) and (3) Srinivasa Rao, for the relief of permanent injunction against the defendants 1 and 2 to restrain them from interfering with the plaintiff's/respondent's possession and enjoyment of the suit properties. The contention of the plaintiff was that the suit properties originally belonged to the third defendant by virtue of several sale deeds. The plaintiff has entered into a development agreement with the third defendant. But when he attempted to develop the properties, the defendants 1 and 2 caused interference and therefore he filed the suit for permanent injunction. He also filed I.A.No.106 of 2006 along with the suit before the Principal Sub Judge, Chengalpattu for ad-interim injunction regarding the three items of the suit properties. After contest, the learned Subordinate Judge granted ad interim injunction as far as first item of the suit property i.e., 1 acre and 96 cents and as regards items 2 and 3 of the suit properties, the learned Judge passed an order that there is a bona fide dispute regarding the title to the properties mentioned as items 1 and 2 and hence both parties should not make any construction activity and status quo to be maintained. 3. Aggrieved over the said order, the first respondent filed CMA.No.12 of 2006 before the learned Principal District Judge, Chengalpattu and the CMA was allowed by the learned District Judge, holding that the plaintiff (first respondent) herein is entitled for injunction for all the three items of the suit properties. Aggrieved over the said order, the CRP is filed by the petitioner/second defendant in the suit. 4. The contention of the petitioner before this Court is as follows:- The suit properties originally belonged to one Ayyasamy Naidu. Aggrieved over the said order, the CRP is filed by the petitioner/second defendant in the suit. 4. The contention of the petitioner before this Court is as follows:- The suit properties originally belonged to one Ayyasamy Naidu. He had four sons and a daughter by name Balakrishna Naidu, Ramanajulu Naidu, Subbu Naidu Kesavalu Naidu and Chinnammal. On 30.10.1937 one Visalakshi Ammal purchased an extent of 6.84 acres out of 8.20 acres from all the branches of the legal heirs of Ayyasamy Naidu i.e., Balakrishna Naidu, Ramanujulu Naidu, minor son of deceased Subbu Naidu and minor children of deceased Kesavalu Naidu and Chinnammal, daughter of the said Ayyasamy Naidu. The properties said to have been sold for the then market rate. On 25.5.2004 after the death of the said Visalakshmi Ammal, her daughters 1) Saradha (2) Nagarathnam (3) Janaki (4) Ammani and (5) Parvathi have executed a Power of Attorney in favour of the 2nd defendant, petitioner herein and put him in possession of the suit properties. 5. According to Mr.B.Kumar, learned Senior Counsel appearing for the revision petitioner, the title of Ayyasamy Naidu to the suit properties was accepted by both sides. The third defendant and his father Sriramulu Naidu entered into an deed of agreement of sale with Mrs.Pottiammal and others in regard to 8.20 acres at the rate of Rs.500/= per cent who represented the four Branches of Ayyasamy Naidu (original owner's sons namely Balakrishna Naidu, Ramanajulu Naidu, Subbu Naidu and Kesavalu Naidu). But subsequently, different sale deeds have been executed in the year 2000 and 2004 by the legal heirs of the said four Branches of Ayyasamy Naidu. Therefore, according to the learned Senior Counsel for the revision petitioner, the petitioner's principals have got antecedent title. In the case of vacant land, possession follows title and even in the sale deed dated 30.10.1937, it is stated that possession was given to the vendee. 6. The learned Senior Counsel for the revision petitioners would further contend that there is already a fencing around the suit properties and on 23.1.2006 an attempt was made by the plaintiff and his men to trespass and a complaint was filed before the Kelampakkam Police. To prove that there is a fencing around the suit properties, the learned counsel has relied on certain photographs marked as R.7 series before the trial court. 7. To prove that there is a fencing around the suit properties, the learned counsel has relied on certain photographs marked as R.7 series before the trial court. 7. Per contra, Mr.G.Masilamani, learned senior counsel appearing for the first respondent/plaintiff would contend that there is no dispute with regard to the item No.1 of the suit properties. As regards item Nos.2 and 3 of the suit properties the possession is with the first respondent/plaintiff and for proving the said possession he has produced documents like Ex.P.11, Patta dated 19.11.2004, Ex.P.13, Patta dated 12.4.2005, Ex.P.14, dated 20.11.2004, Chitta for Fasli 1414 in the name of the third defendant, Ex.P.15, dated 20.11.2004, Adangal for Fasli 1414 in the name of the third defendant, Ex.P.17, dated 21.4.2005, chitta for Fasli 1414, Ex.P.18, dated 21.4.2005, Adangal for Fasli 1414, Ex.P.19, dated 24.8.2005, Urban Land Tax receipt for Fasli 1415, paid by the third defendant, Ex.P.2a, dated 11.3.2005, result of chemical analysis of water obtained from Navalur and Ex.P.28, dated 30.9.2005 Bills for payment to security commandos for the months of September to December 2005. 8. The learned senior counsel for the first respondent would contend that the learned Principal District Judge has found that the first respondent is in possession and therefore he must be permitted to construct the compound wall and also dig a bore-well and allowed to do the earth drilling work pending disposal of the suit. Mr.B.Kumar, learned senior counsel appearing for the revision petitioner/second defendant has also made the same demand to do the above works. 9. The point for consideration is whether the order of the learned Principal District Judge is sustainable and whether any of the parties would be permitted to do the developmental works in the suit properties? 10. in CMA.No.12 of 2006, the learned Principal District Judge has accepted that the Principals of the revision petitioner had antecedent title. The patta granted to the third defendant in the year 2004 with whom the first respondent/plaintiff has entered into a development agreement subsequently was cancelled by the Revenue Development Officer by a detailed order dated 20.10.2006. The cancellation of patta by the RDO on 20.10.2006 is subsequent to the filing of the suit. The patta granted to the third defendant in the year 2004 with whom the first respondent/plaintiff has entered into a development agreement subsequently was cancelled by the Revenue Development Officer by a detailed order dated 20.10.2006. The cancellation of patta by the RDO on 20.10.2006 is subsequent to the filing of the suit. Even though it is subsequent to the filing of the suit, the said order can be looked into since it is a detailed order passed by an appropriate authority which contains all the details as to how the parties are entitled to the lands in the contest between themselves. 11. The third defendant who obtained the sale agreement on 14.11.1981 from the legal heirs of the deceased Ayyasamy Naidu has not obtained any sale deed till 12.8.2003 and kept silent for about 20 years and only on 12.8.2003 filed a suit for specific performance against the legal heirs of all the four branches of Ayyasamy Naidu and during the pendency of the suit the LRs of the 4 branches have executed various sale deeds in favour of the third defendant. But the fact remains that their father and grand father i.e., four sons of Ayyasamy Naidu and daughter of Ayyasamy Naidu have already executed a sale deed with regard to the same properties even on 13.10.1937 in favour of Visalakshmi Ammal. All the six daughters of Visalakshmi Ammal have now executed power of attorney in favour of the petitioner, second defendant in the suit. Therefore as far as title to the suit properties is concerned, Visalakshmi Ammal has got antecedent title than the title of the third defendant. 12. As far as suit item 1 of the suit properties i.e., 1 acre and 96 cents is concerned, there is no dispute. The dispute is only in respect of items 2 and 3 of the suit properties. Mr.B.Kumar, Learned Senior Counsel appearing for the revision petitioner placed reliance upon the judgment of the Hon'ble Supreme Court reported in AIR 2004 SC 1801 (Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner). In the said judgment, their Lordships have held as follows:- "25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?. Assistant Charity Commissioner). In the said judgment, their Lordships have held as follows:- "25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?. This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction? In Mahadeo Savlaram Sheike V. Pune Municipal Corporation ( 1995 (3) SCC 33 ) it was held, after referring to Woodrofe on "Law relating to injunction: L.C.Goyal 'Law of injunctions: David Bean 'injunction' Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this court quoted Shiv Kumar Chadha V. MCD ( 1993 (3) SCC 161 ) wherein it was observed that injunction is discretionary and that: Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court". 26. Reference was also made to Dalpat Kumar V.Prahlad Singh ( 1992 (1) SCC 719 ) in regard to the meaning of the words 'prima facie case' and 'balance of convenience and observed in Mahadeo's case (supra)that: "It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession". 13. Relying on the above decision, the learned senior counsel for the revision petitioner would contend that no injunction could be granted against the owner if the interest of the owner is affected and according to him the first respondent is a trespasser, who derived no title through the third defendant. Per contra, Mr.G.Masilamani, learned Senior Counsel appearing for the first respondent/plaintiff would contend that the possession of the plaintiff has been accepted by the Prl.District Judge and he must be allowed to continue in possession. 14. Considering the fact that the revision petitioner's principals have got antecedent title, it will not be fair at this juncture to allow either of the parties to continue any developmental activity in the suit properties. 14. Considering the fact that the revision petitioner's principals have got antecedent title, it will not be fair at this juncture to allow either of the parties to continue any developmental activity in the suit properties. Therefore, I am of the view that the order of the learned Principal Sub Judge, Chengalpattu passed in I.A.No.106 of 2006 to the effect that both the parties should not indulge in construction activities is a well reasoned order and consequently the order passed by the learned Principal District Judge in CMA.No.12 of 2006 is set aside. 15. In the result, this Revision is allowed setting aside the order passed in CMA.No.12 of 2006 and restoring the order passed in I.A.No.106 of 2006. In view of the above circumstances, the learned Principal Subordinate Judge, Chengalpattu is directed to dispose the suit within Six months from the date of receipt of a copy of this order. Consequently, connected M.P.1 of 2006 is also dismissed. No costs.