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2011 DIGILAW 2962 (MAD)

Venkatesan v. Ethirajulu

2011-06-23

G.RAJASURIA

body2011
JUDGMENT :- 1. This Second appeal is focussed by the original plaintiff, animadverting upon the judgment and decree dated 27.09.2006 passed in A.S.No.144 of 2005 by the Sub Judge, Ranipet, reversing the judgment and decree of the District Munsif of Sholinghur in O.S.No.104 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, avoiding discussive dilation and detailing of facts, the germane narration would run thus: (a) The plaintiff who happened to be the appellant herein, filed the suit seeking bare injunction as against the defendant so as to protect the former's possession. (b) The written statement was filed by the defendant resisting the suit. (c) Whereupon the trial Court framed the issues. (d) During trial, on the side of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 and A10 were marked. The defendant-Ethirajulu examined himself as D.W.1 along with D.W.2-Subramani and Exs.B1 to B6 were marked. (e) Ultimately the trial Court granted injunction, as against which appeal was filed. Whereupon, the appellate court reversed the judgment and decree of the trial Court and dismissed the original suit. 3. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the plaintiff filed this Second Appeal on various grounds and also suggesting the following substantial questions of law: "1. Is the learned Subordinate Judge right in reversing the decree for injunction especially when the plaintiff proved his possession over the suit property? 2. Is the learned Sub Judge right in holding that plaintiff is not entitled to decree as the defendant has title, especially when the defendant has not produced any parent title document to prove the title of the vendor? 3. When it is settled in law that even a trespasser can be evicted only by due process of law, still is the learned Subordinate Judge right in dismissing the suit after finding possession with the plaintiff? 4. Is the learned Subordinate Judge who is the final court of fact right in not discussing the evidence, especially of the plaintiff while reversing the finding of the trial Court?" (extracted as such) 4. My learned Predecessor framed the following substantial questions of law: "1. 4. Is the learned Subordinate Judge who is the final court of fact right in not discussing the evidence, especially of the plaintiff while reversing the finding of the trial Court?" (extracted as such) 4. My learned Predecessor framed the following substantial questions of law: "1. Is the learned Sub Judge right in holding that plaintiff is not entitled to decree as the defendant has title, especially when the defendant has not produced any parent title document to prove the title of the vendor? 2. When it is settled in law that even a trespasser can be evicted only by due process of law, still is the learned Subordinate Judge right in dismissing the suit after finding possession with the plaintiff? 3. Is the learned Subordinate Judge who is the final court of fact right in not discussing the evidence, especially of the plaintiff while reversing the finding of the trial Court?" (extracted as such) 5. Heard both sides. 6. The warp and woof of the arguments as put forth on the side of the plaintiff would run thus: (a) The trial Court gave a reasoned finding to the effect that the plaintiff was in possession of the suit property as on the date of the filing of the suit and even though he could not prove his title satisfactorily, still his possession should be protected and accordingly granted injunction. (b) Whereas, the appellate Court based on the wrong proposition of law that as against a true owner no injunction could be granted, reversed the discernible judgment of the trial Court warranting interference in the Second Appeal. Accordingly, the learned counsel for the plaintiff would pray for setting aside the judgment of the first appellate Court and restoring the judgment of the trial Court. 7. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the defendant would advance his arguments, the nitty-gritty of them would run thus: (a) As against a true owner no injunction could be granted. The reasoned judgment of the Madras High Court reported in 2010(1)MWN(Civil)508 [R.Devaraj v. M.Veerappa Gounder and another], would establish the same. Certain excerpts from it would run thus: "16. Applying the ratio of the above decision when we analyse facts of the present case, admittedly plaintiff has no title to the entire extent of 3294 sq.ft. The reasoned judgment of the Madras High Court reported in 2010(1)MWN(Civil)508 [R.Devaraj v. M.Veerappa Gounder and another], would establish the same. Certain excerpts from it would run thus: "16. Applying the ratio of the above decision when we analyse facts of the present case, admittedly plaintiff has no title to the entire extent of 3294 sq.ft. Courts below recorded concurrent findings that Plaintiff has no title to 'B' schedule property. Ex.A1-settlement deed is of the year 1998. It is not known when Plaintiff came to be in possession of 'B' schedule property. As pointed out by the Lower Appellate Court that Plaintiff has not chosen to give exact measurement of 'B' schedule property. PWs.2 and 3 have given measurement of disputed 'B' schedule property as 15 feet length and above 20 feet breadth and 15 feet length and 10 feet breadth respectively. In the light of prevaricating evidence, it cannot be said that Plaintiff is in "settled possession” of 'B' schedule property. More so, when Plaintiff had not given actual measurement to 'B' schedule property. Hence, applying the ratio of the above decision, it cannot be held that Plaintiff is in "settled possession” and is entitled for protection. 17. Case of Defendants is that 'B' schedule is part of Defendants' property and their property is situated on the west of Plaintiff's property. First Defendant has inherited 2 Kuzhies 3 Veesams from his ancestors. 1st Defendant's grand mother Rajambal had settled the property under Ex.B5 settlement deed [08.01.1996] settling the extent of 2 Kuzhies 3 Veesams in Cad.No.387/pt. Under Ex.B4-sale deed [26.05.1970], 1st Defendant had purchased 1 Kuzhi 1 Veesam from one Kaliappan, son of Samikannu Gounder. Defendants have also filed Ex.B3 Provisional Manai Patta showing that Patta was issued in the name of 1st Defendant, Kanniah Gounder and Rajambal for S.No.9/31 in Cad.No.387/pt to an extent of 0.03.50 Hec. 18. Advocate-Commissioner [CW1] has noted that there is a big Portia tree on the western side of the Wall of Plaintiff's house. Case of Plaintiff is that Defendants attempted to rear the Portia tree in his property. As pointed out by the Courts below witnesses including Pws.1 to 3 have admitted the age of Portia tree is about 20 years and it belongs to Defendants. When Portia tree is aged about 20 years, Lower Appellate Court presumed that the said portion is in physical possession and enjoyment of Defendants. As pointed out by the Courts below witnesses including Pws.1 to 3 have admitted the age of Portia tree is about 20 years and it belongs to Defendants. When Portia tree is aged about 20 years, Lower Appellate Court presumed that the said portion is in physical possession and enjoyment of Defendants. It cannot be contended that Lower Appellate Court erred in presuming possession and enjoyment of Defendants. (b) The first appellate Court was right in holding that the defendant happened to be the real owner, whereas, the plaintiff miserably failed to prove his title over the property and that the possession of the plaintiff was that of a trespasser having no right to seek for injunction. Accordingly, the learned counsel for the defendant would pray for the dismissal of the Second Appeal. 8. All the aforesaid substantial questions of law are taken together for discussion as they are inter-linked and inter woven with one another. 9. At the outset, I would like to highlight the point that in a suit for bare injunction, the Court cannot render conclusively a decision relating to title. No doubt, incidentally title could be gone into so as to find out as to whether the plaintiff or the defendant is in possession of the suit property concerned. However, such finding relating to title cannot be taken as a conclusive one in an injunction suit. 10. In support of the above proposition, I would like to hark back to the judgment rendered by this Court in 2011(1) CTC 801 [E.Sathidass v. C.Ponnuswamy and another]. 11. Before proceeding further with the discussion, it is just and proper to refer to the decision of the Hon'ble Apex Court reported in (2004) 1 SCC 769 [Rame Gowda (Dead) By Lrs. v. M.Varadappa Naidu (Dead) By Lrs. and another]; certain excerpts from it would run thus: "9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn., Puran Singh v. State of Punjab and Ram Rattan v. State of U.P.Theauthorities need not be multiplied. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn., Puran Singh v. State of Punjab and Ram Rattan v. State of U.P.Theauthorities need not be multiplied. In Munshi Ram case it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case the Court clarified that it is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket." 12. A bare poring over and perusal of the said judgment would highlight and spotlight the fact that a trespasser in established possession or settled possession could get injunction as against the true owner, as otherwise it will lead to lynch law or Jeddart justice. A bare poring over and perusal of the said judgment would highlight and spotlight the fact that a trespasser in established possession or settled possession could get injunction as against the true owner, as otherwise it will lead to lynch law or Jeddart justice. The true owner based on his ownership should not holus bolus with the help of henchman dispossess the trespasser in possession, if that is being done, then it would lead to law and order problem. With that avowed intention, the Hon'ble Apex Court in the decision reported in (2004) 1 SCC 769 cited supra, rendered the judgment which is binding on all Courts. The appellate Court in its judgment in no way held that the plaintiff was not in possession of the suit property. As such, the first appellate court virtually did not disturb the finding rendered by the trial Court relating to the plaintiff's possession over the suit property. However, the first appellate Court proceeded on the footing that no injunction could be granted as against the true owner. The above excerpts from the judgment of the Hon'ble Apex Court, cited supra, would amply make the point clear that a person like the plaintiff herein who is in settled position of the suit property, could get an injunction to the limited extent that he should not be dispossessed, otherwise than in accordance with law. 13. The learned counsel for the defendant would invite the attention of this Court to the relevant portions of the judgment of this Court cited supra in 2010 (1) MWN (Civil) 508. No doubt, in the said decision, the learned single Judge of this Court referred to the decision of the Hon'ble Apex Court and distinguished it on facts. The learned single Judge pointed out that in that case, an extent of 10 feet and 15 feet was involved; that was under the encroachment of the plaintiff therein; that he could not even furnish the correct measurement and also could not say when he started enjoying the property, and based on certain other factual circumstances, distinguished that case from the facts involved in the judgment of the Hon'ble Apex Court, cited supra. But here, I am of the considered view that in all force the decision of the Hon'ble Apex Court cited supra is applicable. But here, I am of the considered view that in all force the decision of the Hon'ble Apex Court cited supra is applicable. The plaintiff relied on the patta issued by the revenue authorities and also the kist receipts evidencing the payment of kist by him for a pretty long time. No doubt, the trial Court as well as the first appellate Court relied on Ex.B3 and held that prima facie the defendant was having better title than the plaintiff. As such, it is a case where the entire agricultural property measuring an extent of 0.10.5 Hec. is the subject matter and according to the plaintiff, he has been in possession and enjoyment of it for pretty long time anterior to the filing of the suit by paying kist etc. Whereas, the Courts below in no way pointed out that at the time of filing of the suit or immediately before that the defendant was in possession and enjoyment of the suit property. When such is the factual scenario, I am at a loss to understand as to how the dictum as found laid in the decision of the Hon'ble Apex Court reported in (2004) 1 SCC 769 cited supra, is not applicable to this case. Even though the first appellate Court rendered its judgment on 27.09.2006, he did not refer to the judgment of the Hon'ble Apex Court rendered in 2004 itself. Hence, I am of the considered view that the established possession of the defendant should be protected by granting injunction to the limited extent that he should not be dispossessed, otherwise than in accordance with law. 14. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that in commensurate with the decision cited supra, it is open for the parties to file appropriate comprehensive suit to get their title declared and pray for consequential reliefs. In this view of the matter, the judgment of the first appellate Court is set aside and the judgment and decree of the trial Court is restored to the limited extent specified supra that the defendant shall not be dispossessed otherwise than in accordance with law. Accordingly, this Second Appeal is allowed to the limited extent. No costs.