Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 2843 (MAD)

Udhayakumar v. Krishnamoorthy @ S. K. Moorthy

2008-08-05

R.BANUMATHI

body2008
JUDGMENT Ms. R. BANUMATHI, J. 1. This Second Appeal is directed against the judgment of Lower Appellate Court dated 23.11.2006 in A.S. No. 90 of 2006 on the file of Principal Subordinate Judge, Mayiladuthurai, reversing the judgment of trial Court dated 26.4.2006 in O.S. No. 371 of 2005 on the file of Principal District Munsif, Mayiladuthurai, and thereby granting declaration to the respondent/plaintiff that he is entitled to construct the dilapidated building and granting permanent injunction against the Appellants/defendants. 2. The Suit property belongs to a Madam created by one Abirami Ammaiyar, who died on 16.10.1944. The said Abirami Ammaiyar, was alleged to have executed a Will dated 5.3.1936 in favour of one Annamalai Pillai. After the death of Annamalai Pillai, the Madam was alleged to be managed by the male heirs of Annamalai Pillai’s family. After the death of Annamalai Pillai, his wife and thereafter, appellants/defendants are in management of Madam. 3. Case of respondent/plaintiff is that after the death of Annamalai Pillai, plaintiff is a tenant of the suit property and he has been paying the monthly rent of Rs. 300/- to third defendant and that the superstructure over the suit property was in a dilapidated condition. Respondent’s further case is that the Suit property was given to him on “Paguthi” (Lease) basis, with permission to put up construction. According to respondent, by putting up superstructure, he was doing business in the name and style “Murugan Automobiles” and he had got electricity service connection in his name. Stating that he is in possession of the Suit property, respondent/plaintiff has filed the Suit for declaration that he is entitled to construct the dilapidated building and to do business and also for permanent injunction. 5. Appellants/defendants resisted the Suit inter alia contending that the Suit property was not given to the respondent on “Paguthi” 3 basis and that the plaintiff was the tenant under the defendants and that he was no longer in possession of the Suit property. One Muthukumar was in possession of the Suit property. Respondent/ plaintiff was not regular in payment of rents and he was no longer in possession of the Suit property and therefore, plaintiff is not entitled to the Suit reiiefs. 6. On the above pleadings, relevant issues were framed. One Muthukumar was in possession of the Suit property. Respondent/ plaintiff was not regular in payment of rents and he was no longer in possession of the Suit property and therefore, plaintiff is not entitled to the Suit reiiefs. 6. On the above pleadings, relevant issues were framed. Upon consideration of oral and documentary evidence, trial Court held that the property was given to the plaintiff only as the tenant and the plaintiff cannot seek injunction against the true owner. Trial Court further held that the plaintiff has not proved to be in possession of the Suit property and on those findings dismissed plaintiffs Suit. 7. In the Appeal preferred by the plaintiff, Lower Appellate Court held that defendants have not proved that property was surrendered by the plaintiff to Muthukumar and Lower Appellate Court faulted the defendants for not examining the said Muthukumar. Observing that when surrender has not been proved by defendants, Lower Appellate Court took the view that plaintiffs possession must be presumed and the Lower Appellate Court allowed the Appeal reversing the judgment of the trial Court. 8. At the time of admission, the following substantial questions of law were formulated for consideration in the Second Appeal: a) Is the Lower Appellate Court correct in law in granting the relief of permanent injunction, after rightly rejecting the relief of declaration on the ground that the Mutt is not made a party? b) When the respondent is admittedly not in possession of the Suit property on the date of the Suit, whether he is entitled to the relief of permanent injunction? c) Whether the Lower Appellate Court is correct in law in granting decree for permanent injunction by picking holes in the defence raised by the appellants? d) In the absence of any evidence regarding the cause of action alleged in plaint, whether the First Appellate Court is justified in granting the Suit relief? e) Whether the Lower Appellate Court is correct in law in reversing the judgment of the trial Court without specifically adverting to and setting aside the findings rendered by the trial Court’? f) When Exhibits C-1 and C-2, Commissioner’s Report and plan categorically prove that the respondent is not in possession of the Suit property, whether the Lower Appellate Court is correct in law in eschewing the same? f) When Exhibits C-1 and C-2, Commissioner’s Report and plan categorically prove that the respondent is not in possession of the Suit property, whether the Lower Appellate Court is correct in law in eschewing the same? g) When the respondent had failed to establish that he is a tenant in occupation of the Suit property and it was established that one Muthukumar alone was in possession of the Suit property, whether the Lower Appellate Court is correct in law in holding that the respondent is entitled to protection of his possession? h) When it is axiomatic in law that no injunction can be granted against the real owner, whether the respondent is entitled to injunction against the appellants, who are the owners of the Suit property? i) Whether the lower Appellate Court is correct in law in ignoring the admission of P.W.1? j) Whether non-examination of Muthukumar can be construed as fatal to the defence raised by the Appellants, especially when the Suit filed by the respondent is bad for non-joinder of the said Muthukumar? 9. On behalf of Appellants, Mr. S. Parthasarathy, the learned senior counsel, has submitted that when there was no evidence to prove that plaintiff was in possession of the Suit property in the manner alleged by him, plaintiff would not be entitled to the equitable relief of injunction. Learned senior counsel further submitted that once possession is proved to have been taken over by the true owner, Lower Appellate Court ought not to have granted injunction. Placing reliance upon Ganesa Gurukkal v. Sri Dharbaranyeswara- swamy Devasthanam, Thirunallar (2005) 1 MLJ 570 , the learned senior counsel further contended that when the main relief of injunction was declined, Lower Appellate Court ought not to have granted the consequential relief of permanent injunction. 10. Supporting the findings of Lower Appellate Court, learned counsel for the respondent/plaintiff Mr. S. Sounthar has submitted that once initial lawful possession was admitted, it is for the appellants/defendants to prove the surrender of possession and in the absence of any acceptable evidence, Lower Appellate Court rightly granted injunction. The learned counsel further submitted that even when the Court is declining the larger relief, to render justice the Court can always mould the relief and the grant of permanent injunction in favour of the plaintiff does not suffer from any illegality. 11. The learned counsel further submitted that even when the Court is declining the larger relief, to render justice the Court can always mould the relief and the grant of permanent injunction in favour of the plaintiff does not suffer from any illegality. 11. Case of plaintiff is that he has been in possession of the Suit property as a tenant from 1972 and was running Autoworks. Further case of plaintiff is that in 1977, during rainy season the building was dilapidated and he was finding it difficult to carry on his Autoworks and the plaintiff sought for declaration that he is entitled to construct the dilapidated building and to do business and for permanent injunction. 12. Taking me through the evidence of P.W.1, the learned senior counsel Mr. S. Parthasarathy, has submitted that the. plaintiff had not come out with true case and that he was not aware of the physical features of the Suit property. Though, respondent/plaintiff had originally pleaded that he is in possession on “Paguthi” basis, he gave up his case during cross-examination and admitted that he was only a tenant under Abirami Ammaiyar. In his evidence, plaintiff has also admitted that the only access to the Suit property was through the Abirami Yoga Madam. 13. To obtain an order of injunction, the following requisites are to be established: (a) the plaintiff should be entitled to some legal character or be some right as to property; (b) the defendant should have denied or interested in denying the plaintiffs title to such character or right; and (c) the plaintiff should not be in a position to ask for relief consequential upon the declaration sought. 14. To get the relief, plaintiff must be entitled to the right on the date of filing of the Suit. According to the plaintiff, he became the tenant under the Madam and was regularly paying the rent. By a perusal of the Rent Receipt Book (Exhibits B-2 to B-5), it is seen that the plaintiff has paid the entire rent from May 1994 to December 1997 on one day viz., 24.1.1998. As held by the trial Court, evidently plaintiff was a defaulter in payment of rent and he has paid the accumulated arrears on one single day. Lower Appellate Court erred in not analysing Exhibits B-2 to B-5 in proper perspective. 15. As held by the trial Court, evidently plaintiff was a defaulter in payment of rent and he has paid the accumulated arrears on one single day. Lower Appellate Court erred in not analysing Exhibits B-2 to B-5 in proper perspective. 15. Though, plaintiff has alleged that the building was dilapidated, there is no evidence showing existence of any dilapidated building. The Commissioner, who inspected the property had noticed that the property is a vacant site. There was neither fencing nor any enclosure of the property and the Commissioner had noticed a small wall having a small opening entering towards the Madam property. Plaintiff has not produced any electricity bills or professional tax receipts (sic) evidencing his possession or carrying on business. When the plaintiff had not proved his subsisting right relating to the Suit property, plaintiff cannot seek for declaration of his right to put up construction of the dilapidated building. 16. The substantial question of law raised is, whether the Lower Appellate Court was right in granting permanent injunction after rejecting the relief of declaration on the ground that the Madam was not made a party. Admittedly, Madam property was managed by the defendants. It is seen from the Rental Receipt Book, third defendant had received the rental receipts. While so, Lower Appellate Court was not right in saying that the necessary party, viz., Madam ought to have been impleaded. Observing that the declaration and hereditary right itself is not established. Suit for consequential relief of injunction is not maintainable in Ganesa Gurukkal v. Sri Y Dharbaranyeswaraswamy Devasthanam, Thirunallar (supra), Justice M.Thanikachalam has held that as per the pleadings, this right mainiy depends upon the right claimed by the plaintiffs, on the basis of the hereditary rights, which is based upon custom and usage and therefore, unless that right is declared, more or less, the right now claimed, appears to be a consequential one, cannot be decided. The learned Judge has observed unless the right on which basis, share, is claimed, is established and declared, the plaintiffs are not entitled to maintain the present Suit, which appears to be the consequential relief. Therefore, the Suit filed, as such, is not maintainable and on this basis also, the plaintiffs, should be non-suited as rightly did by the Courts below. 17. Therefore, the Suit filed, as such, is not maintainable and on this basis also, the plaintiffs, should be non-suited as rightly did by the Courts below. 17. Plaintiff has sought for permanent injunction alleging that the defendants are interfering with the plaintiffs right of enjoyment of the property. It is well settled that in a Suit for injunction, the primary question to be considered is one of possession on the date of if filing of the Suit. A person in possession though without title can resist interference from another, who has no better title than himself and get injunction. Trial Court specifically recorded finding that plaintiff was not in possession of the Suit property and disbelieved the version of the plaintiff that the Suit property got damaged one month prior to the institution of the Suit. The Advocate Commissioner has also clearly found that there is no separate access to the Suit property from the road. In the absence of evidence showing lawful possession, plaintiff cannot seek injunction against the true owner. 18. Lower Appellate Court reversed the findings of trial Court mainly on the ground that defendants have not established that plaintiff surrendered possession to Muthukumar, who inturn surrendered the possession to Madam. Lower Appellate Court also observed that to substantiate the defence plea, Muthukumar was not examined nor the defendants proved surrender of possession, Lower Appellate Court fell in error in saying that defendants should have examined Muthukumar to prove that the plaintiff is out of possession. 19. When the plaintiff applies for an injunction to restrain the violation of an alleged right, it is for the plaintiff to prove the existence of the right and he must establish that right and possession before he gets injunction to prevent recurrence of that violation. Lower Appellate Court ought to have seen that in a Suit for bare injunction, plaintiff is required to establish his possession on the date of Suit. As pointed out earlier, Commissioner had noticed that there was no dilapidated house in the Suit property as alleged by the plaintiff. When the plaintiff has not established the existence of the legitimate right to be in possession of the property, there is no question of granting permanent injunction. As pointed out earlier, Commissioner had noticed that there was no dilapidated house in the Suit property as alleged by the plaintiff. When the plaintiff has not established the existence of the legitimate right to be in possession of the property, there is no question of granting permanent injunction. As pointed out earlier, plaintiff has not proved to be in possession of the Suit property and while so, Lower Appellate Court ought not to have reversed the judgment of the trial Court. 20. Contending that even though larger relief of declaration was negatived, Court can grant permanent injunction, the learned counsel for the respondent placed reliance upon Imambi v. Khaja Hussaih, AIR 1988 Karnataka 51. In the said case, there was transfer of lands to meet dower debt and. title did not pass in favour of the plaintiff thereon. An absolute title has not passed in favour of the plaintiff. Under such circumstances Karnataka. High Court has held that even though relief of declaration cannot be granted to her, the plaintiffs possession under such circumstances would entitle her to the relief of injunction. The facts of the present case entirely stands on the different footing. 21. The learned counsel for the respondent has also placed reliance upon the decision in Keshavlal Laxmandas Patel v. Narsinhbhai Kalidas Patel, AIR 1976 Gujarat 154. The said case, which was arising out of the contractual obligations also stands on different footing from the facts of the present case. In the present case, plaintiff seeks permanent injunction as against the lawful owner. The relief of injunction sought for by the plaintiff is consequential to the declaratory relief and when the larger relief was negatived, the consequential relief ought not to have been granted. 22. The Lower Appellate Court has not analysed the evidence and materials on record in proper perspective. The findings of Lower Appellate Court is vitiated by non-consideration of Exhibits B-2 to B-5 and other evidence and therefore, the judgment of the Lower Appellate Court cannot be sustained. 23. In the result, the second appeal is allowed, setting aside the judgment of the Lower Appellate Court dated 23.11.2006 in A.S. No. 90 of 2006 on the file of Principal Subordinate Judge, Mayiladuthurai. The judgment of the trial Court dated 26.4.2006 in O.S. No. 371 of 2005 on the file of Principal District Munsif, Mayiladuthurai, is confirmed. 23. In the result, the second appeal is allowed, setting aside the judgment of the Lower Appellate Court dated 23.11.2006 in A.S. No. 90 of 2006 on the file of Principal Subordinate Judge, Mayiladuthurai. The judgment of the trial Court dated 26.4.2006 in O.S. No. 371 of 2005 on the file of Principal District Munsif, Mayiladuthurai, is confirmed. Consequently, M.P. No. 1 of 2007 is closed. No costs. Second appeal allowed.