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2012 DIGILAW 278 (MAD)

Navammal v. Murgesan

2012-01-18

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by the learned First Appellate Court in A.S.No.99 of 2002, dated 26.08.2004, in confirming the judgment and decree passed by the trial Court in O.S.No.590 of 1997 dated 8.3.2002. 2. The appellants are the defendants and the respondent is the plaintiff before the Trial Court. 3. The case of the plaintiff in the plaint are briefly stated as follows:- The suit property is a residential shed, which was originally purchased by the plaintiff's grand father P.Mudaliar on 02.06.1930. He enjoyed the suit property by housing the looms. He died in the year 1950. After his death, the plaintiff's father Vyapuri Mudaliar inherited the property and enjoyed the said property for about 30 years by housing the looms. After some time, the plaintiff's father conducted a hotel for about 5 years and was eking out his livelihood. Thereafter, he had conducted a groceryshop in the suit property till the year 1990. Later, he removed the shop for the purpose of constructing a new house but since he did not have any sufficient funds, he could not initiate the new construction. When the plaintiff attempted to put up construction by laying basement, the defendant attempted to interfere with the peaceful possession of the plaintiff. The plaintiff is the absolute owner of the suit property and is in possession and enjoyment of the suit property. Even otherwise, the plaintiff had perfected title by adverse possession for the past 67 years, the plaintiff's father, grand father and the plaintiff himself had continuous uninterrupted possession over the suit property and therefore, the defendants are not entitled to disturb the possession and enjoyment of the plaintiff over the suit property. Therefore, the plaintiff seeks for permanent injunction against the defendants in the suit. 4. The contentions raised by the third defendant in his written statement which was adopted by the defendants 1,2 and 4 are as follows:- The plaintiff's family owns a property, on the south of Salem Main Road, to an extent of 18 feet north-south. The plaintiff has no title as claimed in the plaint for an extent of 54 feet east-west. The plaintiff is entitled to 34 feet east-west on the northern side and 46 feet, east-west on the southern side as in the sketch filed alongwith the written statement. The plaintiff has no title as claimed in the plaint for an extent of 54 feet east-west. The plaintiff is entitled to 34 feet east-west on the northern side and 46 feet, east-west on the southern side as in the sketch filed alongwith the written statement. The property which is in possession of the plaintiff is shown as ABCD. In point A, a survey stone is in existence till today. However, the plaintiff and his father Vaiyapuri Mudaliar removed the survey stone at the point B some three months ago. The present suit filed by the plaintiff is a false one, with a plan for grabbing the vacant site belonging to the defendants lying on the North of the plaintiff's property. The first defendant had put up a house on the south of 'C'-pointwhich she derived from her father Pachamuthu Mudaliar. The defendants 2 to 4 are her legal heirs being her sons. The properties lying on the south of C, D portion are being enjoyed by the defendants. The defendants are having right, title, possession and enjoyment over the property lying on the side of C, D portions to an extent of 37 feet north-south, 46 feet east-west on the northern side and 64 feet East-West on the southern side. Two houses have been built in the said property except a thatched house faced on the side of south-west corner which was already sold by the 1st defendants' father Pachamuthu Mudaliar to one Ponnusamy Naicker and Ponnusamy Naicker inturn sold it to one C.Rajendran, who is in possession and enjoyment of the same. The defendants have no objection for the plaintiff enjoying the properties shown in the plaint as ABCD, which is situated adjacent to the north of highways as shown in the sketch filed along with the written statement. The plaintiff actually want to encroach the portion in possession of the defendants shown as CDEF in the sketch by removing the survey stone in point B. The suit is not maintainable and therefore, is liable to be dismissed. 5. The Trial Court had framed necessary issues and had entered trial. The trial Court has examined witnesses on either side and received documents as Exhibits and had come to the conclusion of decreeing the suit as prayed for. 6. 5. The Trial Court had framed necessary issues and had entered trial. The trial Court has examined witnesses on either side and received documents as Exhibits and had come to the conclusion of decreeing the suit as prayed for. 6. Aggrieved by the judgment and decree passed by the Trial Court, the defendants have preferred an appeal in A.S.No.99 of 2002 before the learned First Appellate Court. The First Appellate Judge, after hearing the arguments on either side, had come to the conclusion of confirming the judgment and decree passed by the learned Trial Judge and dismissed the appeal with costs. 7. Aggrieved by such judgment and decree passed by both the Courts below, the defendants have preferred the present appeal. 8. On admission of the appeal, this Court had formulated the following questions of law for consideration:- "1. Whether the lower court is correct in granting the relief to the plaintiff by looking the document of Ex.A1 which shows 54 feet in East-West direction is not at all available, and the available extent is only 45 feet? 2. Whether the Court below is correct in granting injunction against the appellant for 54 feet in East-West direction in which the extent available is only 45 feet?" 9. Learned counsel for the appellants/defendants also pointed out certain facts and circumstances of the case and the learned counsel for the appellants/defendants sought permission to frame the following additional question of law, to which, this Court is also inclined to frame the same. The additional question of law formulated as follows:- "1. Whether the suit for permanent injunction is maintainable especially when the respondent/plaintiff is not in possession of the entire suit property?" 10. The learned counsel for the appellants/defendants would submit in his argument that both the Courts below have not understood the evidence and the points to be decided in the case, but had come to the conclusion of decreeing the suit without understanding the identity of the property. He would further submit that the plaintiff was claiming 54 feet east-west on both northern and southern side which are not available on ground and the plaintiff was not actually in possession of such land claimed by him. He would further submit that the plaintiff was claiming 54 feet east-west on both northern and southern side which are not available on ground and the plaintiff was not actually in possession of such land claimed by him. He would further submit that the plaintiff was actually in possession of 34 feet east-west on the northern side and 46 feet east-west on the southern side and the north-south measurement on both sides is 18 feet and the plaintiff was not in possession of such premises as detailed in the plaint. He would further submit that the plaintiff did not prove his possession for an extent of 54 feet east-west and 18 feet north-south as claimed in the plaint. He would also submit that the plaintiff did not take steps for the appointment of Commissioner to show his possession and regarding the identity of the property. He would also submit that the western boundary as shown in the plaint is not available on the ground but the western side boundary is Salem Main Road and therefore, the extent of the property as claimed by the plaintiff cannot be concluded since the plaintiff was not in possession of such vast extent of the property. He would further submit that the plaintiff failed to prove his case, and on that score itself, the plaintiff's suit ought to have been dismissed. He would further submit in his argument that the First Appellate Court did not discuss the factual aspect in its own way but had simply confirmed the discussion held by the Trial Court, which would show that the First Appellant has not applied its mind. He would further submit in his argument that the Trial Judge did not look into the identity as well as the proof of possession of the plaintiff in the suit property. He would also submit that the Courts below have not understood the defendants' case that they have no objection for 18 feet north-south measurement in the suit property and they did not admit the existence of 54 feet east-west on both sides of the suit property. He would also submit that the First Appellate Court did not follow the settled principle of law that the plaintiff has to win or lose on his own case and he cannot rely upon the weakness of the defendants and asked for relief on that basis. He would also submit that the First Appellate Court did not follow the settled principle of law that the plaintiff has to win or lose on his own case and he cannot rely upon the weakness of the defendants and asked for relief on that basis. In the judgment reported in 2005 (5) CTC 17 in between P.Panneerselvamv. A.Baylis. 11. He would further submit that the judgment and decree passed by the courts below granting a decree for injunction in respect of 54 feet east-west on both sides would not be helpful to both parties since it would create further confusion that the extent of 54 feet east-west measurement on the northern side is likely to have extended towards south-west direction from the actual length of 34 feet and in turn the southern, east-west measurement of 46 feet will also be extended parallel to the extension of northern east-west line towards west and the property belonging to the defendant on its north-west corner will consequently be encroached by the plaintiff. He would further submit that the courts below have discussed the title of the defendants which is not germane for a case filed by the plaintiff for permanent injunction. He would also cite a judgment of this Court reported in 1982 (2) MLJ 348 (Cheventhipaul Nadar v. Sriniva Nadar) for the principle that the plaintiff who is seeking for injunction cannot get any remedy in respect of the property where he was not in actual possession. He would therefore, request the Court that the judgment of the First Appellate Court may be set aside and the appeal be allowed. 12. The learned counsel for the respondent/plaintiff would submit in his argument that the defendant had categorically admitted in the written statement that the plaintiff was in possession and enjoyment of the suit property but however, to a lesser extent. He would also submit that the sketch submitted by the defendants would categorically show that the plaintiff is in possession of the property lying on the north of the defendants' property. He would also submit that the defendant had admitted in his evidence that the plaintiff is entitled to 54 feet east-west and 18 feet North-South and he has no objection for the plaintiff in possession and enjoyment of the said property and therefore, the judgment and decree passed by both the Courts below are perfectly alright. He would also submit that the defendant had admitted in his evidence that the plaintiff is entitled to 54 feet east-west and 18 feet North-South and he has no objection for the plaintiff in possession and enjoyment of the said property and therefore, the judgment and decree passed by both the Courts below are perfectly alright. He would further submit that the plaintiff has produced the document of title of the year 1930 in Ex.A1 and the measurement shown in the said document would go to show that the plaintiff is entitled to east-west 18 yards and north-south 6 yards, which is equivalent to 54 feet and 18 feet respectively. He would also submit that the admission of the defendants and the documentary evidence would go to show that the plaintiff is in possession and enjoyment of the property mentioned in Ex.A1 and therefore, the arguments advanced by the learned counsel for the appellants, cannot be sustained. He would further submit in his argument that the plaintiff is entitled to 54 feet east-west on either side with 18 feet north-south on both sides and he will not in any waygo beyond 18 feet on the south. He would further submit in his argument that the sketch produced in Ex.B1 is not admissible in evidence and there is no needfor examining the plaintiff for the said document. Therefore, the claim of the defendants that the plaintiff is entitled to only an extent of 34 feet on the east-west on the northern side and 46 feet east-west on the southern side with a breadth of 18 feet north-south on either side, cannot be correct. He would further submit that the western boundary which has been described in Ex.A1 is not in existence today and the admission of defendants would go to show the suit property as mentioned in Ex.A1 and therefore, there is no reason for interfering with the judgment and decree passed by the Courts below. He would also submit that the plaintiff is entitled to vacant land up to the house of the defendant in the south and therefore, the appeal preferred by the defendants against the concurrent judgment of the Court below has to be dismissed. 13. I have given anxious thoughts to the arguments advanced on either side. 14. He would also submit that the plaintiff is entitled to vacant land up to the house of the defendant in the south and therefore, the appeal preferred by the defendants against the concurrent judgment of the Court below has to be dismissed. 13. I have given anxious thoughts to the arguments advanced on either side. 14. According to the submissions made by both parties and the evidence adduced on either side, I could understand that the plaintiff and the defendants are neighbours. The plaintiff's property namely the suit property is located on the northern side of the defendants' property. The definite boundary of the plaintiff's property on the northern side is Salem Main Road and the eastern side is Mettu Street. It is also not disputed that the north south boundary line of the plaintiff's property is governed by two survey stones put up by highways authorities and the plaintiff is entitled to 18 feet towards north-south from the north-east corner survey stone which ends by the defendants' property. Even though the dispute appears to be only on the north-south measurement it is also regarding the northern boundary line of the plaintiff which was stated to have been reduced to 34 feet from 54 feet. Similarly, the plaintiff's boundary line located in between the plaintiff and the defendants' property is measured only 46 feet. Both the Courts below have come to the conclusion that the plaintiff is entitled to 54 feet both on the northern and southern boundary lines. 15. Whether such a concurrent finding can be interfered with, is the question to be decided in this appeal. The First Appellate Court, while discussing the evidence had not elaborately considered the evidence adduced on either side, but it simply confirmed the findings of the Trial Court whereas the Trial Court had relied upon the admission given by DW1 that he had no objection for 54 feet X 18 feet measurement of the property being enjoyed by the plaintiff. The definite case of the defendants is that the plaintiff is only entitled to 34 feet east-west on the north and 46 feet east-west on the south of the plaintiff's property, which has not been shown to be wrong by the plaintiff by seeking for an appointment of Advocate / Commissioner to demarcate the property in which the plaintiff was in possession. In a judgment of this Court In the judgment reported in 2005 (5) CTC 17 in betweenP.Panneerselvamv. A.Baylis, it is held as follows: "13. We do not think such a contention can be countenanced, more particularly, in a suit for specific performance of a contract. Apart from the general principle of law that the plaintiff must succeed on the strength of his own case and not on the basis of the weakness in the case of the defendant, in a suit for specific performance of contract, the plaintiff is obviously required to prove that there is a definite contract which capable of being specifically enforced." Therefore, the plaintiff has to prove his case since the admission of DW1 can be shown to be uncanny. The plaintiff has relied upon the Sale Deed Ex.A1, in which, 54 feet east-west measurement and 18 feet north-south measurement has been mentioned. The argument advanced by the learned counsel for the plaintiff was that the title follows possession. As regards the boundary recitals of Ex.A1 and the suit schedule are compared, I could see that the three boundaries namely North, East and South are tallying. But the western boundary as shown in Ex.A1 was Kathamudaliar Thottam and now, the present admitted boundary on the western side is Salem Main Road. It could be seen from the evidence of PW2 that the west and northern boundaries of the suit property are Salem Main Road. When there is a discrepancy in the western boundary and it has not been clarified in the evidence of the plaintiff, the extent and measurement stated in Ex.A1 cannot be accepted to be correct and the possession of the plaintiff on the basis of Ex.A1, title deed, cannot be presumed to have followed the title. 16. In the said circumstances, the Courts below have miserably failed to understand the position of law and had granted permanent injunction in favour of the plaintiff, where the possession of the plaintiff could not be presumed in respect of the entire property. In the said circumstances, the suit filed by the plaintiff ought to have been dismissed before the Trial Court as well as First Appellate Court. In the said circumstances, the suit filed by the plaintiff ought to have been dismissed before the Trial Court as well as First Appellate Court. However, the defendants have admitted in the pleadings that the plaintiff is entitled to 46 feet east-west on the southern side and 34 feet east-west on the northern side and 18 feet north-south on both sides which is in a trapezium shape. Such an admission made in the written statement with the sketch submitted by the defendants is a categorical admission. The defendant had thereby admitted that the plaintiff is in possession of ABCD portion as per the sketch Ex.B1. However, DW1's admission in his cross-examination that the defendants have no objection for the enjoyment of the 54 feet east-west and 18 feet north-south is an uncanny admissions and that would not in any way confer extra area where there is no property in existence. 17. In the said circumstances, the judgment and decree passed by the Trial Court as well as the First Appellate Court should have been made purely on the admissions in the pleadings and as per Ex.B1.If it was so ordered by the Courts below, the apprehension in the mind of the defendants that the decree for permanent injunction if granted for 54 feet X 18 feet would be misused for encroaching on the north-west corner of the defendants' property by extending the actual measurement of 34 feet east-west on the northern side to another 20 feet on the western side and thereby the western portion of the defendants' property would be encroached and parallel to the northern boundary line, the southern boundary line measuring 46 feet would also be extended and thereby the north-western portion of the defendants' property would be encroached would have been avoided. 18.It is a settled law that the Courts can grant lesser relief when larger relief has been sought for. It is held in a judgment of Hon'ble Apex Court reported AIR 1981 SC 1653 (B.R.Ramabhadriah v. Secretary, F & A Dept., Andhra Pradesh) and the relevant passage would be thus:- "5........... 18.It is a settled law that the Courts can grant lesser relief when larger relief has been sought for. It is held in a judgment of Hon'ble Apex Court reported AIR 1981 SC 1653 (B.R.Ramabhadriah v. Secretary, F & A Dept., Andhra Pradesh) and the relevant passage would be thus:- "5........... We fail to see how the fact that the appellant had sought in the writ petition the issuance of a writ of mandamus directing respondents 1 and 2 to forbear from implementing or acting upon the provisional gradation list will operate to preclude him from seeking a lesser relief, namely, the quashing of the list only in so far as it pertains to the fixation of the inter se seniority between himself and the 6th respondent. The material facts and circumstances had undergone a substantial change subsequent to the filing of the original petition and it was in consequence thereof that it had become unnecessary for the petitioner to pursue his original prayer for the grant of a larger relief. Besides ignoring this crucial aspect, the Division Bench of this High court has also lost sight of the well established principle that in an action where a party has prayed for a larger relief it is always open to the court to grant him any smaller relief that he may be found to be entitled in law and thereby render substantial justice. The Court can undoubtedly take note of changed circumstances and suitably hold the relief to be granted to the party concerned in order to mete out justice in the case. As far as possible the anxiety and endeavour of the Court should be to remedy an injustice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds." 19.Therefore, the judgment and decree passed by the First Appellate Court even though concurrent is liable to be interfered to certain extent that the plaintiff is entitled to a permanent injunction against the defendants for a lesser extent of the suit property which is indicated as ABCD in Ex.B1. Accordingly, the First Appellate Court's judgment as well as Trial Court's judgment and decree are modified to that extent and the plaintiff is found in possession of ABCD portion in Ex.B1 alone and the decree for permanent injunction is granted only to that extent. 20. Accordingly, the First Appellate Court's judgment as well as Trial Court's judgment and decree are modified to that extent and the plaintiff is found in possession of ABCD portion in Ex.B1 alone and the decree for permanent injunction is granted only to that extent. 20. The substantial questions of law framed are decided accordingly in favour of the appellants, to that extent. 21. For the foregoing discussion, I am of the considered view that the judgment and decree of the First Appellate Court and Trial Court are hereby set aside and modified and consequently a decree for permanent injunction is granted for a lesser extent of 34 feet east-west on the northern side 46 feet east-west on the southern side and 18 feet north-south on both sides as described in ABCD in Ex.B1. Accordingly, the second appeal is partly allowed and the parties are directed to bear their respective costs throughout. Ex.B1 shall form part of the decree. Consequently, connected Civil Miscellaneous Petition is closed.