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2010 DIGILAW 5422 (MAD)

M. Sankaralingam v. Sukumar

2010-12-08

G.RAJASURIA

body2010
Judgment :- 1. This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 20.12.2007 passed in A.S.No.233 of 2007 by the learned II Addl. Judge, City Civil Court, in confirming the judgment and decree of the VII Asst. Judge, City Civil Court, Chennai, in O.S.No.638 of 2005. For convenience sake, the parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Heard both sides. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (i) The plaintiff filed the suit for bare injunction averring in the plaint that he acquired prescriptive title by long and continuous uninterrupted possession over the suit property, which is a house property. The defendants resisted the suit by contending that the status of the plaintiff is only that of a tenant. Whereupon issues were framed. (ii) During trial, the plaintiff/Sankaralingam examined himself as P.W.1 and Exs.A1 to A8 were marked. The defendant/Sukumar examined himself as D.W.1 on his side and Exs.B1 to B11 were marked. 4. Ultimately, the trial Court dismissed the suit. Being aggrieved by and dissatisfied with the said judgment, appeal was filed for nothing but to be dismissed confirming the judgment of the trial Court. 5. Challenging and impugning the judgments of both the Courts below, this Second Appeal has been filed by the plaintiff on various grounds, the gist and kernel of them would run thus: Both the Courts below after holding that the plaintiff is in possession of the suit property, unjustifiably dismissed the case of the plaintiff on the ground that the plaintiffs status is only that of a tenant and that he had not proved his title. On arriving at the finding that the plaintiff was in possession of the suit property, the Courts below should have granted injunction, which they failed to do so. The finding of the Courts below that only the owner of a property by establishing his ownership alone could pray for injunction, is against law. The appellate Court ignored the principles as contemplated in the decision reported in 1990(1) U.J.(S.C.) 71 [Krishna Ram Mahale (dead) by his L.Rs. v. Shobha Venkat Rao]. 6. The finding of the Courts below that only the owner of a property by establishing his ownership alone could pray for injunction, is against law. The appellate Court ignored the principles as contemplated in the decision reported in 1990(1) U.J.(S.C.) 71 [Krishna Ram Mahale (dead) by his L.Rs. v. Shobha Venkat Rao]. 6. My learned Predecessor formulated the following substantial questions of law: "1.Whether the Courts below are correct in dismissing the suit filed by the appellant for a bare injunction restraining the defendants from interfering with his possession of the suit property, after holding that appellant is in possession of the suit property ? 2. Whether the first Appellate Court is correct in holding that the relief of permanent injunction can be sought for only by a owner of the property as against who causes interference in peaceful possession and enjoyment of the property? 3. Whether the First Appellate Court is correct in ignoring the principles laid down by the Supreme Court in the case reported in 1990(1) UJSC at page No.71?" (extracted as such) 7. The learned counsel for the appellant would put forth and set forth his arguments by restricting the prayer of the plaintiff only to the extent of getting a direction from this Court that in the admittedly pending eviction suit in E.S.No.2 of 2008 in the II Small Causes Court, Chennai filed by the second respondent herein for evicting the appellant herein, the plaintiff therein, viz., R2 herein, should not make use of the findings relating to title given by both the Courts below in this matter. According to him in a suit for injunction, the Courts cannot give any verdict on title and incidentally, if there is any finding on title, it would not operate as res judicata in the subsequent suit. 8. Whereas, the learned counsel for the respondents would submit that the appellant in the Second Appeal herein should not try to have undue advantage in the said pending case in E.S.No.2 of 2008 on the file of II Small Causes Court, Chennai by getting any direction from this Court that the findings on title should have not bearing on the said suit. 9. At this juncture, I would like to highlight and spotlight the legal position in this regard. 9. At this juncture, I would like to highlight and spotlight the legal position in this regard. In a bare suit for injunction, incidentally even if there is any finding relating to title, it would not operate as res judicata in the subsequent title suit or in similar proceedings. 10. The learned counsel for the appellant in the Second Appeal placing reliance on the judgment of the Honble Apex Court reported in 2007 (1) TNLJ 532 [Ramji Rai and another v. Jagdish Mallah (Dead) through L.Rs. and another], certain excerpts from it would run thus: "8. As stated above, the lower appellate court vide judgment dated 21.9.1981 dismissed the suit filed by the appellants. While dismissing the suit the lower appellate court held as follows: "On consideration on the entire materials on record, as discussed above, I find that the plaintiff has totally failed to establish that the disputed land was ever possessed by him as his sahan land. He has also failed to establish that the construction upto the time of the filing of the suit was got raised by him. That being so, the plaintiff is not proved to be the owner of the disputed land. Therefore, he is not entitled to get any relief as claimed. In the result, the appeal succeeds and it must be allowed with costs." 9. Dr.R.G.Padia, learned senior counsel appearing on behalf of the appellants, submitted that the lower appellate court and the High court had erred in holding that the appellants were not in possession of the suit land a their sehan land. It was further argued that the boundary wall was under construction by the appellants and not by the respondents. Learned counsel submitted that in any event the lower appellate court had erred in stating that the appellants have failed to prove that they were the owners of the disputed land. It was urged that the present suit was only for permanent injunction. It was urged that the appellants had never sought a declaration of ownership and, therefore, the lower appellate court had erred in holding that the appellants had failed to prove their title to the disputed land. 10. On the finding of facts, we do not wish to interfere. There is no reason to reverse the concurring findings. It was urged that the appellants had never sought a declaration of ownership and, therefore, the lower appellate court had erred in holding that the appellants had failed to prove their title to the disputed land. 10. On the finding of facts, we do not wish to interfere. There is no reason to reverse the concurring findings. However, suffice it to state that the lower appellate court should have dismissed the suit filed by the appellants only on the ground that the appellants had failed to prove that they were in possession of the disputed lands. Under Section 38 of the Specific Relief Act, 1963 an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of high rights [See:Mullas Indian Contract and Specific Relief Acts, 12th Edn., page 2815) 11. In the case of A.LV.R. Ct.Veerapa Chettiar v. Arunachalam Chetti and others, AIR 1936 Madras 200, it has been held that mere fact that the question of title may have to be gone into in deciding whether an injunction can be given or not is not any justificaqtion for holding that the suit is for a declaration of title and for injunction. There can be a suit only for an injunction. The present suit is only for permanent injunction and, therefore, the lower appellate court should have, on the facts and circumstances of this case, confined itself to its dismissal only on the ground that the appellants have failed to show that they were in possession. This has been done but the declaration that the appellants are not the owners, was not necessary." would develop his argument that the plaintiff is not constrained to pray for declaration of title when his requirement is only for injunction so as to protect his possession. According to him, both the Courts below were wrong in giving a finding that the suit was bad for want of a prayer for declaration. According to him, both the Courts below were wrong in giving a finding that the suit was bad for want of a prayer for declaration. However, the learned counsel for the respondents would submit that once the plaintiff has come forward with certain averments highlighting the title disputes, in the plaint he cannot simply restrict his prayer only for injunction, there should necessarily be a prayer for declaration of title. 11. At this juncture, I would like to refer to the judgment of the Madurai Bench of this Court reported in 2007(4) CTC 70 [Chinna Nachiappan and another v. PL.Lakshmanan], an excerpt from it would run thus: "14. Not to put too fine a point on it, right at the outset, I may proceed to refer to the averments in the plaint at paragraph Nos.4,5,6,7 and 8 which unambiguously and unequivocally referred to a serious title disputes between the plaintiff and the defendants. Paragraph No.8 is extracted hereunder for ready reference: "Though joint patta had been issued to the plaintiff and his pangalis have been and are in possession as per the partition among themselves. Thus the suit property continues to be in the possession and enjoyment of the plaintiff." 15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trait proposition of law that if the plaint itself contains the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a Suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2, Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted hereunder for ready reference: "2. Suit to include the whole claim -Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the Suit within the jurisdiction of any Court." 16. Hence, in this view of the matter, the substantial question of law could rightly be decided to the effect that the original Suit is bad for absence of a prayer for declaration of title." 12. Hence, in this view of the matter, the substantial question of law could rightly be decided to the effect that the original Suit is bad for absence of a prayer for declaration of title." 12. Section 34 of the Specific Relief Act also could fruitfully be referred to and it is extracted hereunder for ready reference: "34. Discretion of Court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." A mere reading of the aforesaid Section would exemplify and demonstrate that when an additional relief could be sought for, the party concerned should pray for the same. As such, the bed rock of Order 2 Rule 2 of CPC and Section 34 of the Specific Relief Act is that, artificially a party approaching the Court should not restrict his claim to a particular relief and thereby pave the way for multiplicity of proceedings. As such both Order 2 Rule 2 of CPC and Section 34 of the Specific Relief Act are based on the aforesaid wholesome legal procedure. 13. I am of the considered view that if the plaint averments are relating to title dispute and in connection with that title dispute the possession of the plaintiff is sought to be disturbed by the defendant, then in such a factual situation, the plaintiff would not be justified in simply restricting his prayer only for injunction without praying for declaration of his title. In this case, in the plaint and more specifically in paragraph No.5, the title dispute between the plaintiff and the defendants is found exemplified. While so, the plaintiff should have prayed for declaration of his title and for consequential injunction. 14. In this case, in the plaint and more specifically in paragraph No.5, the title dispute between the plaintiff and the defendants is found exemplified. While so, the plaintiff should have prayed for declaration of his title and for consequential injunction. 14. As such, I am of the considered view that the findings of both the Courts below that the suit is bad for want of prayer for declaration of title warrants no interference of this Court in this Second Appeal as both the Courts below correctly kept in mind the correct proposition of law and decided the lis. 15. However, the learned counsel for the appellant would put forth one other point that on finding that the plaintiff was in possession of the property, the Courts below could have very well granted injunction to the limited extent that he should not be evicted otherwise than in accordance with law, but they failed to do so. Whereas, the learned counsel for the respondents/defendants herein would correctly submit that the very fact that R2 filed the said E.S.No.2 of 2008 for ejectment would speak volumes that there is no intention on the part of the respondents to forcibly evict the appellant in this Second Appeal from the suit property concerned. He would also further add that these proceedings have been pending for nearly a decade, even then the respondents have not taken any forcible steps to evict the appellant and in such a case, in the Second Appeal the interference of the High Court is not warranted to upset the dismissal of the suit as well as the appeal by the courts below and grant any injunction event to any limited extent. 16. I would like to point out that had the plaintiff in this case simply approached the Court by narrating that he has been in continuous possession and that without any rhyme or reason forcibly he is sought to be evicted by the defendants then in such a factual circumstance, certainly a suit for bare injunction would lie. But on the other hand, the plaintiff detailed and delineated the title dispute in the plaint, but prayed for bare injunction. 17. Be that as it may, now then as has been correctly pointed out by the learned Advocates on both sides, the said Ejectment suit E.S.No.2 of 2008 is pending and they have to litigate by adducing evidence on merits. 17. Be that as it may, now then as has been correctly pointed out by the learned Advocates on both sides, the said Ejectment suit E.S.No.2 of 2008 is pending and they have to litigate by adducing evidence on merits. The learned counsel for the respondents herein would also submit that R2 herein who filed the said E.S.No.2 of 2008 is ripened for adducing evidence justifying his claim and in such a case, there could be no apprehension in the mind of the appellant in this appeal that R2 herein would try to achieve success merely by placing reliance on the findings of the trial Court as well as the first appellate Court in these proceedings. Hence, in this view of the matter and in view of the legal position, I am of the considered view that there is no necessity to upset the findings of both the Courts below. However, I would like to dispose of the appeal by pointing out that the findings relating to title given by both the Courts below in these proceedings will not operate as res judicata in the pending proceedings in E.S.No.2 of 2008 on the file of the II Small Causes Court, Chennai. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.