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2011 DIGILAW 3616 (MAD)

Dhanalakshmi v. Gowri

2011-08-09

R.S.RAMANATHAN

body2011
JUDGMENT :- The defendant, who was successful in the Trial Court and unsuccessful in the Lower Appellate Courts is the appellant herein. The respondents/plaintiffs filed the suit for recovery of possession. 2. The case of the respondents was that they were residing in the suit property and the appellant without possessing any title, claimed that she was the owner of the suit property and filed the suit in O.S.No.5603 of 2004, on the file of the III Additional Judge, City Civil Court, Chennai and obtained an ex parte order of interim injunction. The appellant also dispossessed the respondents to an extent of 29 feet north south and 20.6 feet east west, with the help of the said ex parte order. As the appellant has no title or right to dispossess the respondents, the suit was filed under Section 6 of the Specific Relief Act (hereinafter referred to as the 'Act') for delivery of possession and the suit was filed within a period of six months from the date of dispossession, as the respondents were dispossessed illegally, without following the due process of law. 3. The appellant disputed the claim of the respondents and contended that the subject matter of the suit in O.S.No.5603 of 2004, is different from the suit property and the respondents have no title over the suit property and they are not entitled to the relief of recovery of possession. 4. The Trial Court dismissed the suit, as against the same, the respondents filed an appeal A.S.No.577 of 2008, and the Lower Appellate Court allowed the appeal on the basis of the admission given by P.W.1, that she had taken possession after obtaining the ex parte order of interim injunction. Therefore, it was proved that the respondents were in possession of the suit property and they were dispossessed without following due process of law and hence, the respondents are entitled to the relief of recovery of possession. Hence, this Second Appeal. 5. The following substantial question of law has been framed at the time of admission:- i) Whether the first appeal filed by the respondents is maintainable, having regard to the fact that the suit was filed under Section 6 of the Specific Relief Act and as per Section 6 (3), no appeal shall lie against any decree or decision rendered in that suit? 6. 6. Mr.N.A.Nissar Ahmed, the learned counsel appearing for the appellant submitted that admittedly the suit was filed under Section 6 of the Act and as per the provisions of Section 6 (3) of the Act, no appeal shall lie from any order or decree passed in any suit, instituted under the said Section. He therefore submitted that the appeal filed by the respondents in A.S.No.577 of 2008, was not maintainable and the Lower Appellate Court erred in taking cognizance of the appeal and reversed the findings of the Trial Court and therefore, judgment of the Lower Appellate Court is liable to be set aside. 7. On the other hand, Mr.K.P.Chandrasekaran, the learned counsel for the respondents submitted that Section 6 of the Act, will not apply to a suit based on title and in this case, the respondents filed the suit for recovery of possession based on title. Eventhough there are stray sentences in the plaint that the suit was filed under Section 6 of the Act, that will not make the suit coming under Section 6 of the Act, when the suit was based on title. He also relied upon the judgment of the Hon'ble Supreme Court reported in (1995) 3 S.C.C. 426 in the case of ( Nagar Palika Jind Vs. Jagat Singh) in support of his contention. 8. The learned counsel for the respondents further submitted that the procedure contemplated for suits under Section 6 of the Act is summary in nature and the suit filed by the respondents was tried as a regular suit and no objection was raised by the appellant and the question of maintainability of the first appeal was also not raised during the hearing of the first appeal. After the judgment was rendered against the appellant, the present plea of maintainability of the first appeal was raised for the first time at the time of argument. Even in the grounds of appeal also, the same was not raised and he therefore submitted that when the appellant had no title to the suit property and when she admitted that after obtaining the ex parte injunction order, she dispossessed the respondents, the Lower Appellate Court has rightly decreed the suit and it does not call for interference. 9. Heard both sides. 10. 9. Heard both sides. 10. The suit was filed by the respondents for recovery of possession and in the plaint, it was stated that the suit property originally belonged to one Mrs.Jayalakshmi and from the said Mrs.Jayalakshmi, the respondents/plaintiffs purchased the property under Ex.A2, sale deed dated 3.11.2003, and their vendor Mrs.Jayalakshmi, purchased the suit property from the original owner viz., Mrs.Patta Ammal, under a registered sale deed Ex.A3. It was further stated in the plaint that the respondents also filed the suit in O.S.No.5603 of 2004, seeking for permanent injunction and after obtaining the injunction order the appellant dispossessed the respondents/plaintiffs and therefore, suit was filed for recovery of possession. 11. No doubt, in the plaint, it was stated that the suit was filed under Section 6 of the Act and the suit was filed within a period of six months from the date of dispossession. It is also not in dispute that in the first appeal also the same plea was raised by the respondents/plaintiffs. Nevertheless, if the plaint is read as a whole, it proceeded on the basis that the plaintiffs have got title over the property under the document Ex.A2 and they are in possession of the property and they were dispossessed by the appellant under the strength of injunction order obtained by her in the suit filed by her and therefore, they have filed the suit for recovery of possession. 12. It is no doubt true that the suit was filed under Section 6 of the Act and the Court fee was also paid under Section 29 of the Tamil Nadu Court Fee Act. Nevertheless, having regard to the fact that the plaintiffs claimed title to the suit property and filed the suit for recovery of possession on the ground that they were dispossessed by reason of the injunction order obtained by the appellant, though the suit was filed under Section 6 of the Act, it can be construed that the plaintiffs filed the suit for recovery of possession on the basis of the title in their favour. 13. The Lower Appellate Court has held that the appellant also admitted the possession of the suit property by the respondents and she also admitted in evidence that she took possession only after getting an ex parte order of interim injunction in the suit filed by her. 13. The Lower Appellate Court has held that the appellant also admitted the possession of the suit property by the respondents and she also admitted in evidence that she took possession only after getting an ex parte order of interim injunction in the suit filed by her. In such circumstances, the Learned First Appellate Judge, correctly relied upon the judgment reported in (1997) 3 S.C.C. 169 in the case of [ Annamalai Club Vs. Government of Tamil Nadu and others] and allowed the appeal. 14. Therefore, though the suit was filed under Section 6 of the Act, having regard to the fact that the plaint proceeded on the basis of title and dispossessed by the appellant after getting ex parte order of injunction and the parties have also contested the suit as a regular one and not as a separate suit and no objection was raised, when the appeal was filed by the respondents in the First Appellate Court and the First Appellate Court also held that the respondents/plaintiffs proceeded on the basis of the title and they were evicted by force on the basis of the ex parte order of injunction obtained by the appellant, the contention of the appellant that this first appeal filed by the respondents against the dismissal of the suit under Section 6 of the Act is not maintainable, cannot be sustained. 15. Further, in the judgment reported in (1995) 3 S.C.C. 426, ( cited supra) it has been held that once the suit has been filed by the respondents, claiming to be owners and being in possession of the land in question, the suit cannot be treated as a suit based on possession and dispossession without reference to title. Further, the suit filed under Section 6 of the Act, can be entertained where both the plaintiffs and defendant have no title to the suit land. But in this case, the plaintiffs filed the suit stating that they are the owners of the property and also let in evidence to prove their title by marking Ex.A2 & A3. 16. Further, the suit filed under Section 6 of the Act, can be entertained where both the plaintiffs and defendant have no title to the suit land. But in this case, the plaintiffs filed the suit stating that they are the owners of the property and also let in evidence to prove their title by marking Ex.A2 & A3. 16. Therefore, in my opinion, though the suit was filed under Section 6 of the Act, having regard to the fact that the suit proceeded on the basis that the plaintiffs have title to the suit property and they were dispossessed by the appellant on the basis of ex parte injunction obtained by her and no objection was raised by the appellant during trial and also in the first appeal, it is not now open to the appellant to raise a plea that the appeal filed by the respondents before the Lower Appellate Courts is not maintainable. Therefore, the substantial question of law is answered against the appellant. 17. In the result, the Second Appeal is dismissed. In the circumstances, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.