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2012 DIGILAW 1020 (MAD)

Thulasimani v. Muthusamy Gounder

2012-02-24

M.VENUGOPAL

body2012
Judgment :- 1. The Appellant/Defendant has projected the present Second Appeal anim adverting upon the Judgment and Decree dated 26.08.1999 in A.S.No.112 of 1995 passed by the Learned Principal District Judge, Erode in reversing the Judgment and Decree dated 26.04.1995 in O.S.No.1738 of 1993 passed by the Learned Additional District Munsif, Erode. 2. The First Appellate Court, while passing the Judgment on 26.08.1999 in A.S.No.112 of 1995 filed by the Respondent/Plaintiff has observed that the Appellant/Defendant has not established that the Suit property belongs to him and also it is an admitted fact that the Respondent/Plaintiff before filing of the Suit, for the past 20 years has been residing with family at Thirupur in the suit property and that the Respondent/Plaintiff is in enjoyment of the suit property and viewed in that perspective, has granted the relief of permanent injunction in favour of the Respondent/Plaintiff and resultantly allowed the Appeal directing the parties to bear their own costs, thereby setting aside the Judgment and Decree of the trial Court passed in the main Suit. 3. Before the trial Court, in the main Suit (filed by the Respondent/Plaintiff), 1 to 2 issues have been framed for trial. On behalf of the Respondent/Plaintiff, witnesses P.Ws.1 and 2 have been examined and Exs.A1 to A5 have been marked. On the side of the Appellant/Defendant, witnesses D.Ws.1 and 2 have been examined and Exs.B1 and B2 have been marked. On behalf of Court, Exs.C1 to C4 have been marked. 4. The trial court, on an appreciation of the entire oral and documentary evidence available on record, has come to a clear conclusion that a trespasser is not entitled to get the relief of injunction in his favour and dismissed the Suit without costs. 5. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed for determination: "(i) Has not the first Appellate Court committed an error of law in holding that the respondent/plaintiff has been proved to have been in lawful possession of the suit property and therefore is entitled to a decree of permanent injunction? At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed for determination: "(i) Has not the first Appellate Court committed an error of law in holding that the respondent/plaintiff has been proved to have been in lawful possession of the suit property and therefore is entitled to a decree of permanent injunction? (ii) Is the finding by the first Appellate Court that the Appellant admits the trespass and encroachment by the Respondent is true and receivable in evidence and if so whether it can serve as a legal basis for a Decree?" The Contentions, Discussions and Findings on Substantial Questions of Law Nos. 1 and 2: 6. The Learned Counsel for the Appellant/Defendant submits that the first Appellate Court has committed an error in interfering with the Judgment and Decree of the trial Court and as a matter of fact, the Respondent/Plaintiff should have filed a Suit praying for a Declaratory Decree and in the absence of the same, the Suit filed for permanent injunction is per se not maintainable. 7. Expatiating his submissions, it is the contention of the Learned Counsel for the Appellant/Defendant that the first Appellate Court has failed to consider Ex.B1-Sale Deed dated 30.05.1991 and further the evidence of D.Ws.1 and 2 have not been adverted to by the first Appellate Court in a real and proper perspective. 8. Per contra, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the First Appellate Court in Appeal has looked into the oral evidence of parties and the documentary evidence and has come to a definite conclusion that the Respondent/Plaintiff is in enjoyment of the Suit property and further the Appellant/Defendant has not established that the Suit property belongs to him and rightfully disentitled the Respondent/Plaintiff to get the relief of permanent injunction, which need not be interfered with by this Court in Second Appeal. 9. 9. According to the Respondent/Plaintiff in the Suit is that the Suit property originally is a vacant site and has been possessed and enjoyed by the father of the Respondent/Plaintiff viz., Nallappa Gounder for about 40 years and during his lifetime he has put up a thatched shed in a part of the Suit property and the remaining portion has been used as Cattle Shed and after the death of his father, he has inherited the Suit property and is in possession for about 20 years. According to the Respondent/Plaintiff, the Suit property is surrounded by live fence and it is possessed and enjoyed by him without any obstruction by paying the house tax and the available Tax receipts have been filed. 10. The plea of the Respondent/Plaintiff as per the plaint is that all of a sudden, on 15.12.1993, the Appellant/Defendant with a band of rowdy elements, tried to trespass into the Suit property claiming that the Suit property belongs to him. But, such unlawful attempt has been thwarted with the timely help of the neighbours and therefore, the Suit has been allowed for seeking the relief of permanent injunction restraining the Appellant/Defendant, his men, agents from interfering in his peaceful possession and enjoyment of the Suit property in any manner. 11. In the Written Statement, the Appellant/Defendant has denied as rank falsehood that all of a sudden, on 15.12.1993, he, with a band of rowdy elements endeavoured to trespass into the Suit property claiming that the Suit property belonged to him. Also, it is the case of the Appellant/Defendant that he and his family are residing in recent years at Tirupur for business purpose and taking advantage of the absence of the Appellant/Defendant and his family members at Kunampatti, the Respondent/Plaintiff has created documents with the help of Panchayat Officials and has come forward with a false claim to get unlawful gain. 12. The trial Court, while dismissing the Suit, has observed that if the property has been enjoyed for 30 years, then the Respondent/Plaintiff should have established the same by means of filing relevant documents. But, the Appellant/Defendant has produced Ex.B1-Sale Deed, dated 30.05.1931 to show that the property belongs to him and has negatived the relief of injunction in favour of the Respondent/Plaintiff on the ground that a trespasser is not entitled to get the relief of injunction. 13. But, the Appellant/Defendant has produced Ex.B1-Sale Deed, dated 30.05.1931 to show that the property belongs to him and has negatived the relief of injunction in favour of the Respondent/Plaintiff on the ground that a trespasser is not entitled to get the relief of injunction. 13. The Learned Counsel for the Appellant/Defendant submits that in Ex.B1-Sale Deed dated 30.05.1931, there is no reference to Survey Number, Patta Number and other details have not been furnished and as such, one cannot come to a definite conclusion that based on Ex.B1-Sale Deed, dated 30.05.1931, the Suit property has been in enjoyment of the Respondent/Plaintiff. The Appellant/Defendant has admittedly gone to Thirupur in connection with business. 14. Admittedly, the Suit Property is a Natham belonging to the Government. In Ex.B2, Patta Proceedings, it is clearly mentioned that since the dispute between the parties is civil in nature, they have been asked to establish their case before the Civil Court and later on to file an Application praying for an issuance of Patta. 15. However, the Learned Counsel for the Respondent/Plaintiff submits that in reality the Suit property is concerned with Ex.B1-Sale Deed, dated 30.05.1931 and just because the Survey Number is not mentioned or Patta Number has not been specified in the document, it cannot be said that the Respondent/Plaintiff has no interest in the Suit property. Also, in Ex.B2, on 03.08.1993, it is mentioned that P.W.1, son of Chandrasekaran and his brother, Sivashanmugam's family have been residing for more than 30 years and in that manner, the Respondent/Plaintiff's people has been mentioned to be residing in the Suit property. 16. Before the trial Court, no convincing documents have been projected on the side of the Appellant/Defendant to show that the predecessor in title have been in enjoyment of the Suit property. Also, there is no reference to antecedent title deed in Ex.B1-Sale Deed, dated 30.05.1931. No legal heirs concerned/connected with Ex.B1-Sale Deed, dated 30.05.1931 have been examined before the trial Court to substantiate the case of the Appellant/Defendant, in the considered opinion of this Court. 17. The Learned Counsel for the Respondent/Plaintiff cites a decision of this Court reported in 1998 (2) L.W. 346 (V.Seenivasan vs. Rajalakshmi), wherein, it is held as follows: "The fact that the plaintiff is an encroacher has not been denied. 17. The Learned Counsel for the Respondent/Plaintiff cites a decision of this Court reported in 1998 (2) L.W. 346 (V.Seenivasan vs. Rajalakshmi), wherein, it is held as follows: "The fact that the plaintiff is an encroacher has not been denied. But, it must be noted that he obtained interim injunction as against the Government from the competent Civil Court, though he is an encroacher. It is settled law that even if an encroacher has established his enjoyment and possession by 'B' Memos issued by the Government, he could be evicted and removed only under due process of law. In the absence of any evidence in favour of the defendant, the Courts below, have correctly concluded that the plaintiff has been in possession from 1992.” 18. The term 'trespass' is an unjustifiable intrusion upon the person's possession. As a matter of fact, it is an injury to a possession rather than to the title. A person in lawful possession of land, but dispossessed by one who has no title at all can seek injunction against the wrong done, as per the decision reported in ILR 20 Cal. 834 (PC) (Ismahil Ariff vs. Mohamed Ghause). 19. However, before, an individual who is not the owner of the land can prevent another individual from using the land to the same extent as himself, he must establish the right by act of exclusive possession of a very definite character. 20. From the decision Osman vs. Emperor reported in AIR 1936 Cal. 124 and Emperor vs. Bandhu Singh reported in AIR 1928 Patna 124, the principle that emerges in law is that a trespasser cannot by his act of trespass, acquire the right of ownership in the property which he got in his possession by means of his wrongful act of trespass and such a possession cannot prevent the true/real owner from claiming back the properties from the hands of a trespasser. 21. It is to be noted that in law, an injunction is the appropriate remedy in an action to trespass. But, to maintain an action of trespass, the Plaintiff must be in possession of the land in dispute, where, what is complained of as a trespass on his own possession rather than the act of dispossession. The Plaintiff's proper remedy is an injunction as per the decision in Nanga vs. Amra reported in 1936 A.M.L.J. 44. 22. But, to maintain an action of trespass, the Plaintiff must be in possession of the land in dispute, where, what is complained of as a trespass on his own possession rather than the act of dispossession. The Plaintiff's proper remedy is an injunction as per the decision in Nanga vs. Amra reported in 1936 A.M.L.J. 44. 22. The Respondent/Plaintiff has produced Exs.A1 to A4, but no prior receipts have been filed. Even though no receipts prior to Exs.A1 to A4 have been produced and marked on the side of the Respondent/Plaintiff, yet, the very fact that the Respondent/Plaintiff is an encroacher in the Suit property and also taking note of another important fact that the Suit property is a natham belonging to the Government, this Court is of the considered opinion that before the trial Court, the Respondent/Plaintiff has proved his enjoyment and possession of the Suit property and even an encroacher in law cannot be evicted except by following due process of law by the Appellant/Defendant and viewed in that perspective, the Respondent/Plaintiff is entitled to get the relief of permanent injunction as prayed for by him in the plaint and in this regard, on going through the Judgment and Decree of the First Appellate Court in A.S.No.112 of 1995, dated 26.08.1999, this Court does not find any perversity or misreading of evidence or any material irregularity or patent illegality and viewed in that perspective, the Substantial Questions of Law Nos.1 and 2 are answered against the Appellant/Defendant. Consequently, the Second Appeal fails. 23. In the upshot of discussions mentioned supra and on balance, the Second Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court dated 26.08.1999 in A.S.No.112 of 1995 on the file of the Learned Principal District Judge, Erode are confirmed for the reasons assigned in this Appeal. It is made clear that the dismissal of the Second Appeal will not preclude the Appellant/Defendant to evict the Respondent/Plaintiff by taking recourse to the initiation of appropriate proceedings before the competent Forum as per Law.