Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 1457 (MAD)

R. Pannerselvam v. A. Subramanian & Another

2009-04-28

G.RAJASURIA

body2009
Judgment 1. This Second Appeal is focused by the plaintiff, animadverting upon the judgment and decree dated 211. 2008 passed by the learned Subordinate Judge, Namakkal in A.S. No.172 of 2005 reversing the judgment and decree dated 06.02.2004 passed by the learned Additional District Munsif, Namakkal in O.S. No.188 of 2002. For convenience sake, the parties are referred to here under according to their litigative status and ranking in the party array before the Trial Court. 2. Avoiding discursive delineation and detailing of the facts in view of both the Courts below having set forth the cases of the respective parties at length, the summation and summarisation of relevant factual scenario, which is absolutely necessary and germane for the disposal of this Second Appeal could be portrayed thus: The plaintiff/appellant filed the Suit O.S. No.188 of 2002 seeking permanent injunction as against the defendants. Whereas the defendants entered appearance and resisted the Suit as though the defendants have been in possession and enjoyment of the Suit property. 3. The Trial Court framed the issues. During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A7 were marked. On the defendants side DI examined himself as DWI along with D.Ws.2 to 6 and Exs.B1 to B13 were marked. 4. Ultimately the Trial Court decreed the Suit, as against which, the First Appeal A.S. No.172 of 2005 was filed by the defendants which reversed the judgment and decree of the Trial Court. Being disconcerted and aggrieved by the judgment and decree of the First Appellate Court, the plaintiff has filed this Second Appeal on various grounds by setting out a few substantial questions of law in the memorandum of Appeal. 5. Heard the learned Counsel appearing on both the sides. 6. My learned predecessor framed the following substantial questions of law: (a) Whether the learned Subordinate Judge was right in going into the question of the validity of Exs.A1 and A2 in the absence of any plea of an issue regarding the same before the Trial Court? (b) Whether the learned Subordinate Judge was right in not following the well settled principle of law that possession follows title in respect of vacant land? (c) Whether the learned Subordinate Judge was right in framing a point for determination which does not arise out of the pleadings of the parties before the Trial Court? 7. (b) Whether the learned Subordinate Judge was right in not following the well settled principle of law that possession follows title in respect of vacant land? (c) Whether the learned Subordinate Judge was right in framing a point for determination which does not arise out of the pleadings of the parties before the Trial Court? 7. A deep analysis and poring over of the judgments of both the Courts below including the typed set of papers would demonstrate and display that the plaintiff filed the Suit O.S. No.188 of 2002 for bare injunction on the ground that the plaintiff has been in possession and enjoyment of the suit property on the strength of the sale deed Ex.A2 dated 17. 2001 got executed in his favour from the Power of Attorney of the alleged owners of the suit property. 8. The learned Counsel for the plaintiff would advance his argument to the effect that the First Appellate Court ignored the supine admissions made by DW1 (D1) in support of the plaintiffs case; the defendants cannot pick holes in Ex.A1, the Power Deed executed by the owners of the Suit property in favour of their power agent; the defendants neither proved their title nor their possession over the Suit property and accordingly he prayed for allowing the Second Appeal. 9. Whereas the learned Counsel for the defendants would develop his argument to the effect that the plaintiffs very sale deed itself is a defective one as the real owners did not executed the sale deed in favour of the plaintiff; there is nothing to indicate that the executants of the power deed in favour of their alleged power agent are the legal heirs of their alleged propositus Thasi Naidu; the power deed itself is a dubious document as it does not contain the signatures of the executants on all pages; the stray sentence here and there in the deposition of DW1 cannot be capitalised by the plaintiff without positively adducing evidence in proving his case. Accordingly, he prayed for the dismissal of the Second Appeal. 10. Indubitably and indisputably, incontrovertibly and unassailably, the entire property measuring 1777 1/2 sq.ft. originally belonged to the said Thasi Naidu and presently, the dispute is confined to an extent of 1337½ sq.ft. excluding an extent of 440 sq.ft. Accordingly, he prayed for the dismissal of the Second Appeal. 10. Indubitably and indisputably, incontrovertibly and unassailably, the entire property measuring 1777 1/2 sq.ft. originally belonged to the said Thasi Naidu and presently, the dispute is confined to an extent of 1337½ sq.ft. excluding an extent of 440 sq.ft. on the South Eastern portion of the aforesaid larger extent of 1777 ½ sq.ft.; Subramanian, D1 herein previously instituted O.S. No.524 of 1987 for himself and on behalf of his three minor children as against one Ghani who is stated to be occupying the said 440 sq.ft. on the South Eastern Portion of the said larger extent of 1777 1/2 sq.ft. The said Suit O.S. No.524 of 1987 was filed for recovery of possession of the entire Suit property (1777½ sq.ft.) and the same was dismissed as against which, the same set of plaintiffs preferred Appeal A.S. No.297 of 1994 for nothing but to be dismissed and finality was achieved in the previous proceedings. 11. The learned counsel for the plaintiff placing reliance on the factum of the earlier Suit O.S. No.524 of 1987 filed by D1 herein and his children as against the said Ghani, would put forth and set forth his arguments to the effect that after the dismissal of the said Suit and the Appeal, there is nothing to demonstrate that D1 and his children acquired possession over the Suit property and in such a case, it is glaringly and pellucidly, palpably and plainly clear that the defendants are not in possession of the Suit property. 12. I could see considerable force in the submission made by the learned counsel for the plaintiff as his argument is based on clinching evidence available on record. The said previous Suit O.S. No.524 of 1987 for recovery of possession of the entire extent of the Suit property was dismissed on 211. 1992 as per Ex.A5, the judgment of the learned Subordinate Judge, Namakkal and the Appeal A.S. No.297 of 1994 filed, was also dismissed on 9. 1995 as revealed by Ex.A7 the judgment of the learned District Judge, Salem wherefore, it is crystal clear that the defendants have not taken possession of the Suit property herein. 1992 as per Ex.A5, the judgment of the learned Subordinate Judge, Namakkal and the Appeal A.S. No.297 of 1994 filed, was also dismissed on 9. 1995 as revealed by Ex.A7 the judgment of the learned District Judge, Salem wherefore, it is crystal clear that the defendants have not taken possession of the Suit property herein. In this factual matrix, I am at a loss to understand as to how the defendants unmindful of the results in the previous proceedings against them, could throwing to winds the truth and reality, plead as though they are in possession and enjoyment of the Suit property. 13. The learned Counsel for the plaintiff would invite the attention of this Court to certain excerpts from DW1s (D1) deposition during Cross-Examination, which are extracted thus: A bare perusal of those excerpts would clearly display as to how DW1 (D1) went to the extent of half-heartedly admitting partly the reality and denied the rest of the truth, without having any responsibility to speak truth. For the purpose of achieving success in the litigative battle, by hook or crook, D1 went to the extent of pleading before this Court quite antithetical to the judgments and decrees in O.S. No.524 of 1987 and in A.S. No.297 of 1994 (Exs.A3, A5, A6 and A7) that the previous Suit was not for recovery of possession of the Suit Property. But, those judgments and decrees would clearly indicate that the earlier Suit was filed by DI and his three children for declaration and recovery of possession of the entire property including the Suit Property. In the said previous Suit, the first defendant and his legal heirs contended that they derived title from their original propositus Rangarajulu Naidu and obtained the Suit property under a power deed and they failed in both the Courts. As such, that is much more than sufficient to hold that the defendants are not in possession of the Suit property herein. 14. The question arises as to whether the Court can pick holes in the case of the defendant and grant decree in favour of the plaintiff. The answer is at once clear that the plaintiff should prove his case. In view of the trite proposition of law that the plaintiff has to stand or fall on his own pleadings and evidence. It has to be seen as to whether the plaintiff proved his possession. 15. The answer is at once clear that the plaintiff should prove his case. In view of the trite proposition of law that the plaintiff has to stand or fall on his own pleadings and evidence. It has to be seen as to whether the plaintiff proved his possession. 15. The above excerpt from the deposition of DW1 (D1) would clearly demonstrate that according to D1, the plaintiff demolished the tiled house in the Suit property after the emergence of Ex.A2, the sale deed in favour of the plaintiff. Whereas PW1 deposed that consequent upon execution of Ex.A2 the sale deed dated 17. 2001 by the power agent of the original owners, he acquired possession of the Suit property and enjoying the Suit Property. DW3, the Panchayat President of Thuthikularn, the area in which the Suit property is situated, would categorically depose as under: As such, the defendants own witness DW3, who happened to be the Panchayat President clearly and categorically pointed out that the defendants have not been in possession and enjoyment of the Suit property at any point of time and as such, it is crystal clear that the defendants have falsely pleaded as though they are in possession of the Suit property and that enures to the benefit of the plaintiff in proving his case that he has been in possession and enjoyment of the Suit Property. 16. The learned counsel for the plaintiff would convincingly highlight that DW3 himself clearly and categorically pointed out that only on Application, the name of a particular person as owner would be entered in the Property Tax Register. However, in this case, the defendants have chosen to obtain Ex.B7, the proceedings issued by the Special Tahsildar, Narrtakkal dated 18.08.1993, Ex.B8, the house site patta and Exs.B10, B11 and B12, the house tax receipts, quite antithetical to the version of D.W.3 who by way of adding fuel to the fire, pointed out that neither Subramaniam nor the said Rangarajan his relative ever was in possession and enjoyment of the suit property and they did not file any Application for mutation. 17. It is a trite proposition of law that patta would not constitute title. [Srinivasan and six others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapally District by its Executive Officer at Pattavaithalai Devasthanam and five others, 1998 (1) CTC 630 ]. The defendants questioned the title of the plaintiff. 17. It is a trite proposition of law that patta would not constitute title. [Srinivasan and six others v. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapally District by its Executive Officer at Pattavaithalai Devasthanam and five others, 1998 (1) CTC 630 ]. The defendants questioned the title of the plaintiff. I am of the considered opinion that in this suit for bare injunction, the question of going into the title of either of the parties would not arise. The Trial Court, in my considered opinion, has not framed the issue relating to the title to any of the parties. However, in issue No.2, it simply contemplated as to whether the dispute of title by the defendants was justified. At this juncture, I would like to point out that in a case where there is paucity of evidence relating to proving possession of the parties concerned, the title of the plaintiff can be gone into incidentally, so as to rely on the proposition that possession follows title. But, in this case, there is clear evidence that it is not the defendants, but the plaintiff who is in possession of the suit property. As such, the First Appellate Courts approach in giving a finding that the plaintiff has not proved his title and consequently, he is not entitled to any injunction is apparently erroneous and it could not see the wood for trees. 18. It is a common or garden principle of law that even a trespasser, who is in established possession of the property could obtain injunction. However, the matter would be different, if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief. Here, a bare perusal of the plaint would demonstrate and evince that the plaintiff has not narrated anything about the title dispute obviously because of the fact that in the previous litigation, D1 failed to obtain any relief As such, the decision of this Court Chinna Nachiappan and another v. P.L. Lakshmanan, 2007 (4) CTC 70, which is to the effect that the plaintiff cannot seek for a bare permanent injunction without seeking a prayer for declaration is not applicable to the facts and circumstances of this case. On the same ground the decision of the Honble Apex Court Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs. On the same ground the decision of the Honble Apex Court Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs. and others, AIR 2008 SC 2033 , is also not applicable to the facts and circumstances of this case. 19. In this view of the matter, I am of the considered opinion that the pleas and arguments advanced questioning the genealogy and the heir ship of the executants of Ex.A1, to their alleged ancestor Thasi Naidu are all not germane for deciding this case. 20. The learned counsel for the defendants would also submit that the Power of Attorney was executed in Sri Lanka whereas Ex.A2, the sale deed dated 16.07.2001 was registered in India and as per the decision of the Honble Apex Court reported in Manjunath Anandappa urf Shivappa Hanasi v. Tammanasa and others, 2003 (2) CTC 109, such a course is not contemplated. An excerpt from the said decision would run thus: "15. Forms 47 and 48 of Appendix A of the Code of Civil Procedure prescribe the manner in which such averments are required to be made by the plaintiff. Indisputably, the plaintiff has not made any averment to that effect. He, as noticed hereinbefore, merely contended that he called upon Defendant 2 to bring Defendant 1 to execute a registered sale deed. Apart from the fact that the date of the purported demand has not been disclosed, admittedly, no such demand was made upon Defendant I. We may notice, at this juncture, that the plaintiff in his evidence admitted that Defendant 1 had revoked the power of attorney granted in favour of Defendant 2. In his deposition, he merely stated that such revocation took place after the agreement for sale was executed. If he was aware of the fact that the power of attorney executed in favour of Defendant 2 was revoked, the question of any demand by him upon Defendant 2 to bring Defendant 1 for execution of the agreement for sale would not arise at all. Furthermore, indisputably the said power of attorney was not a registered one. Defendant 2, therefore, could not execute a registered deed of sale in his favour. The demand, if any, for execution of the deed of sale in terms of the agreement of sale could have been, thus, made only upon Defendant 1, the owner of the property. Furthermore, indisputably the said power of attorney was not a registered one. Defendant 2, therefore, could not execute a registered deed of sale in his favour. The demand, if any, for execution of the deed of sale in terms of the agreement of sale could have been, thus, made only upon Defendant 1, the owner of the property. The balance consideration of Rs.10,000 also could have been tendered only to Defendant 1. As indicated hereinbefore, the purported notice was issued only on 8. 1984, that is, much after the expiry of the period of three years, within which the agreement of sale was required to be acted upon." (emphasis supplied) A bare perusal of it would display that for executing a sale deed by a power agent of the original owners of the property referred to in the sale deed, the said Power Agent should have a registered power deed in his favour. However, in this case, Ex.Al, is not a registered power deed. 21. However, the learned counsel for the plaintiff by trying to take protection under Section 33(1)(c) of the Registration Act, 1908 would develop his argument that since the Power of Attorney was executed before a Notary Public in Sri Lanka, i.e., outside India, the question of executing a registered power deed would not arise. However, Section 33 itself is qualified by Section 32 and it is quite obvious from mere reading of it. Section 32 contemplates presentation of the sale deed for registration and not relating to execution. 22. Placing reliance on the decision of the Honble Apex Court reported in Manjunath Anandappa urf Shivappa Hanasi v. Tammanasa and others, 2003 (2) CTC 109, the learned counsel for the plaintiff highlight that for executing the registered sale deed by a Power of Attorney in favour of a purchaser, there should necessarily be a registered power deed. The Honble Apex Court observed that there should be a registered power deed in favour of the power of Attorney to execute a registered sale deed. However, I hold that deciding as to the validity of Exs.A1 and A2 is beyond the scope of the injunction Suit. 23. The Honble Apex Court observed that there should be a registered power deed in favour of the power of Attorney to execute a registered sale deed. However, I hold that deciding as to the validity of Exs.A1 and A2 is beyond the scope of the injunction Suit. 23. The learned counsel for the defendants also would be right in his argument that the burden of proof is on the plaintiff to prove the genealogy and in support of his contention, he would cite the decision of the Honble Apex Court reported in State of Bihar and others v. Sri Radha Krishna Singh and others, 1983 (3) SCC 118 : AIR 1983 SC 684 . 24. The said decision would highlight and spotlight the fact that mere delineation of the genealogy would not be sufficient but there should be evidence in support of the same. Once again, I would like to reiterate that in this case, such a decision on genealogy is not warranted. The plaintiffs possession is based on admissions made by the defendants themselves and also the factum of the previous proceedings, which D1 initiated and met with his waterloo. 25. Accordingly, — (i) the substantial question of law No.(a) is decided to the effect that the learned Subordinate Judge was not right in going into the validity of Exs.A1 and A2 in this case. (ii) the substantial question of law No.(b) is decided to the effect that the first Appellate Court failed to take into consideration the factum of established possession on the part of the plaintiff in respect of the suit property but in the meantime, the plaintiff cannot expect that based on his alleged proving of his title, it should have held that the possession of the suit property was with the plaintiff. (iii) the substantial question of law No.(c) is decided to the effect that the first Appellate Court could have framed the points for determination in a more detailed manner touching upon the factual and legal scenario involved in this case but it simply framed the points for determination as to the tenability of the Appeal, which are not strictly in accordance with Order 41, Rule 31 of the Code of Civil Procedure. 26. 26. In view of the ratiocination adhered to in deciding the aforesaid substantial questions of law, the judgment and decree of the First Appellate Court are set aside and consequently, the decreeing of the Suit only in respect of granting injunction in favour of the plaintiff alone is restored. 27. In the result, the Second Appeal is allowed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petitions are closed.