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2012 DIGILAW 304 (MAD)

Rengasamy Pillai v. Vaidayalingam Pillai

2012-01-19

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.2 of 2003 dated 31.03.2003 in reversing the judgment of the trial court in decreeing the suit in favour of the plaintiff filed in O.S.No.388 of 2000 dated 12.11.2002. 2. The plaintiff is the appellant and the defendant is the respondent. 3. The case of the plaintiff in brief before the trial court would be as follows:- The suit property measuring an extent of 13 cents of punja land situated in S.No.118/8 of Adhanur Village, was purchased by one Govindasamy Pillai, brother of the plaintiff, on 12.11.1958 and after the oral partition had in between the plaintiff and his brother Govindasamy Pillai in the year 1960, the same was allotted to the plaintiff and from the date of partition, the plaintiff was cultivating the, the suit property. A land measuring an extent 13 cents in S.No.118/9, which is on the southern side of the suit property, was taken on lease by the plaintiff from one Vinai Theertha Pillai, father of the defendant's vendor and the plaintiff cultivated both the lands. After the expiry of lease period, the plaintiff surrendered the land in S.No.118/9 to one Panneerselvam, son of Vinai Theertha Pillai, since the said Vinai Theertha Pillai died. Later, the said Panneerselvam had clandestinely obtained patta in respect of the land belonging to the plaintiff in S.No.118/8 also without the knowledge and consent of the plaintiff under the UDR scheme. The said issuance of patta under UDR scheme was questioned by the plaintiff and the proceedings is pending. After obtaining patta, the said Panneerselvam sold the property in S.No.118/9 and the suit property in S.No.118/8 to the defendant and after purchasing the same, the defendant attempted to trespass into the suit property and to destroy the hedge in between the lands in S.Nos.118/8 and 118/9. Hence, the suit is filed by the plaintiff for permanent injunction. 4. The contentions of the defendant raised before the trial court in the written statement would be as follows:- At no point of time, the suit property was in, in possession of the plaintiff or Govindasamy, brother of the plaintiff. The suit property is the ancestral property of Panneerselvam and his father. 4. The contentions of the defendant raised before the trial court in the written statement would be as follows:- At no point of time, the suit property was in, in possession of the plaintiff or Govindasamy, brother of the plaintiff. The suit property is the ancestral property of Panneerselvam and his father. On the oral lease had in between the defendant and Panneerselvam and his father in the year 1971, the defendant was enjoying the suit property along with 13 cents of land in S.No.118/9 adjacent to the suit property. Thereafter, on 19.09.1995, the defendant purchased the suit property along with 13 cents of land in S.No.118/9 from Paneerselvam. The sale deed said to have been executed in favour of Govindasamy Pillai is a wrong one and it is not valid in law. The plaintiff has to prove that the suit property was allotted to him in the oral partition had in between his family members. As the suit property was wrongly sold by Ponnaiah Pillai and the kist receipts are standing in the name of Govindasamy Pillai, the plaintiff has no right to file this suit. The suit is bad for non joinder of necessary parties. Moreover, the suit is filed without the relief of declaration of title to the suit property. There is no hedge in between the lands in S.No.118/8 and 118/9. The suit is filed by the plaintiff with a view to harass the defendant. Hence, the suit is liable to be dismissed with costs. 5. The trial Court had framed necessary issues and had come to the conclusion of decreeing the suit in favour of the plaintiff with costs. Aggrieved by the judgment and decree passed by the trial court, the defendant preferred appeal in A.S.No.2 of 2003 before the first appellate court and the said court, after hearing the arguments on either side, had allowed the appeal and thus, dismissed the suit filed by the plaintiff. Aggrieved against the said judgment and decree passed by the first appellate court, the plaintiff has come forward with this Second Appeal before this court. 6. Aggrieved against the said judgment and decree passed by the first appellate court, the plaintiff has come forward with this Second Appeal before this court. 6. On admission, this Court had framed the following question of law:- "Whether the lower appellate court was justified in rejecting the suit as not maintainable for injunction without a prayer for declaration of title, when continuous and lawful possession has been proved by the plaintiff and whether Ex.B18 would in any way dilute the lawful possession claimed by the appellant." 7. Heard Mr.V.Raghupathi, learned counsel for the appellant. No appearance for the respondent, despite his name is printed in the cause list. 8. The learned counsel for the appellant / plaintiff would submit in his arguments that the lower appellate court has lost sight of the principle that the plaintiff should be granted with permanent injunction, when found in lawful possession of the suit property, but had erroneously come to a conclusion that the plaintiff had not asked for declaratory relief in respect of the suit property. He would further submit in his arguments that the lower appellate court had come to the conclusion on presumption and assumption. He would also submit that the possession of the suit property by the plaintiff was clearly proved by cogent evidence as found by the trial court, but the first appellate court has come to the conclusion that the plaintiff is not entitled to the permanent injunction. He would also submit that the defendant's claim over the suit property was not lawful and without any basis and the sale deed in Ex.B18 will not convey any title to the defendant, since on the date of sale deed the vendor was not having any right over the property. He would also submit that the plaintiff was, even otherwise, in continuous possession of the suit property from the date of partition in between the brothers and prior to the partition, the joint family consisting of plaintiff and his brother Govindasamy were in possession and enjoyment of the suit property even from the date of purchase in the year 1958. He would also submit that the documents showing the possession of the suit property by the brother of the plaintiff Govindasamy would go to show that the claim of the defendant that he became the owner of the suit property by virtue of Ex.B18 would not be sustainable. He would also submit that the documents showing the possession of the suit property by the brother of the plaintiff Govindasamy would go to show that the claim of the defendant that he became the owner of the suit property by virtue of Ex.B18 would not be sustainable. He would further submit that the defendant's vendor, namely, Panneerselvam and his father Vinai Theertha Pillai were only entitled to the adjacent 13 cents in S.No.118/9 to which, the plaintiff had surrendered possession of the suit property and there was no reference as to the suit property, which is lying on the north, either in the lease deed Ex.A6 or in the surrender endorsement made therein. He would further submit that clandestine entry made during the issuance of UDR patta in the name of the defendant's vendor Panneerselvam will not give any right to the said Panneerselvam, since the said Panneerselvam was not having any title over the suit property at the time of the said issuance of UDR Patta. He would further submit that the said UDR patta was challenged by the plaintiff and the plaintiff, in actual possession, is always entitled to be protected by an order of injunction, since the defendant is not the true owner of the property. He would further submit that the relief of declaration of his title need not be asked for when the defendant has no title in the property as the plaintiff is found to be in possession of the suit property. He would further submit that the title to the suit property was incidentally proved by the plaintiff, by producing the sale deed of the year 1958 as Ex.A1 and through the examination of PW.2, who is the brother of the plaintiff, who proved the partition and possession of the suit property in favour of the plaintiff. He would further submit in his arguments that the continuous and long possession from the date of sale deed in Ex.A1 would go to show that the plaintiff's brother Govindasamy and in turn, the joint family and after oral partition, the plaintiff was in possession and enjoyment for over the statutory period and they are entitled to prescriptive title in the event that the plaintiff was found no title to the property through Ex.A1. He would further submit that the lower appellate court has unnecessarily interfered with the judgment and decree passed by the trial court, which was a well considered and well balanced judgment based on the evidence adduced on either side. He would also cite a judgment of this court reported in in S.A.No.517 of 1987 in between "Sankaran vs. Munian" in support of his argument. Quoting the aforesaid judgment, he would submit that the suit for bare injunction is maintainable, when the plaintiff has proved his possession on the date of the suit. He would, therefore, request the court that the interference caused by the first appellate court through its judgment may be set aside and the judgment of the trial court in decreeing the suit filed by the plaintiff may be restored and thus, the Second Appeal may be allowed. 9. I have perused the papers and the judgments of both the courts below. I have also given anxious thoughts to the arguments advanced by the learned counsel for the appellant. 10. The case of the plaintiff was that he was entitled to the suit property situated in S.No.118/8 measuring an extent of 13 cents punja land in Adhanur village, by virtue of an oral partition had with his brother Govindasamy in which the suit property had been allotted to the plaintiff. The joint family consisting of the plaintiff and the said Govindasamy was owning the suit property, by virtue of a sale deed executed in favour of Govindasamy Pillai on 12.11.1958 by one Ponnaiah Pillai. After the said purchase, the joint family held the said property and after the oral partition, the plaintiff is said to have kept in possession of the suit property and was enjoying the same. The further case of the plaintiff was that the land in S.No.118/9 of an extent of 13 cents, belonging to Vinai Theertha Pillai, father of one Panneerselvam, was taken on lease by the plaintiff and clubbed both the 13 cents comprised in S.Nos.118/8 and 118/9 respectively and was cultivating the lands by raising punja crops including tobacco. The said lease of the land in S.No.118/9 for an extent of 13 cents was taken in the year 1960 and after a period of four years, the plaintiff had surrendered the said property with one Panneerselvam, son of Vinai Theertha Pillai, since the said lessor Vinai Theertha Pillai died. The said lease of the land in S.No.118/9 for an extent of 13 cents was taken in the year 1960 and after a period of four years, the plaintiff had surrendered the said property with one Panneerselvam, son of Vinai Theertha Pillai, since the said lessor Vinai Theertha Pillai died. The said legal representative of Vinai Theertha Pillai, Panneerselvam had taken possession of the property in S.No.118/9 of an extent of 13 cents. Later, the said Panneerselvam had clandestinely obtained patta in respect of the land in S.No.118/8 also without the knowledge of the plaintiff under the UDR scheme. The said issuance of patta under UDR was questioned by the plaintiff and the proceedings are pending. The plaintiff, however, is continuing in possession of the suit property and on no point of time, the defendant or the defendant's vendor, Panneerselvam, were in possession. The defendant had with a view to grab the property, purchased the suit property on 19.09.1995 from the said Panneerselvam, who had no right in the suit property and therefore, there would be no title passed to the defendant under the said sale deed. It is the further case of the plaintiff that he was in possession and enjoyment of the suit property continuously from the date of oral partition, even after surrendering the lease hold right in S.No.118/9 for an extent of 13 cents to the defendant's vendor, and thus the defendant's vendor had no title to the suit property and even otherwise, he would be entitled to the suit property by virtue of long and continuous possession and enjoyment. It is also contended by the plaintiff that the defendant had indulged in getting the cancellation of the document of the year 1958, by inducing the vendor of the plaintiff to get cancellation of the sale deed dated 12.11.1958 from the vendor of the sale deed unilaterally and also created an acceptance letter as if it was obtained from the brother of the plaintiff, namely, Govindasamy which are concocted and they will not disentitle the plaintiff in the right to the suit property. 11. 11. The defendant's case would be that the plaintiff is not entitled to the suit property and he ought to have impleaded the said Govindasamy Pillai and Panneerselvam as parties and the plaintiff's alleged possession over the suit property was disturbed from the date of issuance of patta under UDR scheme and the plaintiff was not in possession and enjoyment of the suit property on the date of the suit. The defendant's further case was that the plaintiff had falsely claimed the suit property based upon the mistake committed by the vendor in the sale deed dated 12.11.1958 by mentioning the S.No.118/8 instead of some other survey number and the same was correctly cancelled by the vendor subsequently and thereafter the said purchaser Govindasamy Pillai had also given a consent letter for the same. The defendant's further case is that the defendant is entitled to the suit property and since the claim of the plaintiff over the title to suit property is denied, a suit for declaration of title ought to have been filed and the present suit for bare injunction is not maintainable. 12. The trial Court has framed necessary issues and had accepted the evidence given by the plaintiff and found that the plaintiff was in possession and enjoyment of the suit property and the defendant has no title to the suit property and therefore, the suit was decreed. However, the first appellate court had come to the conclusion of reversing the judgment of the trial court on the basis that the title of the plaintiff was questioned by the defendant and the defendant has got better title than the plaintiff and therefore, the plaintiff is not entitled for a decree and thus, the first appeal was allowed. 13. The point for consideration in this Second Appeal would be that whether the first appellate court had not considered the long and continuous possession had by the plaintiff while dismissing the claim of the plaintiff and whether the document of title as claimed by the defendant in Ex.B18 would in anyway disentitle the plaintiff from claiming the relief against the defendant. 14. The document namely the sale deed dated 12.11.1958 was executed by one Ponnaiah Pillai in favour of Govindasamy Pillai, the brother of the plaintiff in respect of the suit property. The said reference to S.No.118/8 was said to be a mistake committed by the said Ponnaiah Pillai. 14. The document namely the sale deed dated 12.11.1958 was executed by one Ponnaiah Pillai in favour of Govindasamy Pillai, the brother of the plaintiff in respect of the suit property. The said reference to S.No.118/8 was said to be a mistake committed by the said Ponnaiah Pillai. However, the said mistake was attempted to have set right in the year 1996. The said document said to have been executed by the said Ponnaiah Pillai was a cancellation deed dated 07.02.1996 produced as in Ex.B15. Similarly, yet another consent letter stated to have been executed by Govindasamy Pillai on the same date was produced as Ex.B16. Whether such cancellation would correct the description of the property already executed by him in the year 1958 in Ex.A1. Admittedly, the said cancellation deed has not been entered into between the vendor Ponnaiah Pillai and the purchaser Govindasamy Pillai. Ex.B15 was unilaterally executed as a 'cancellation deed'. It was not styled as 'correctional deed' in between the vendor and the purchaser. When it was executed by the vendor himself after the lapse of 37 years, whether it would rectify the defect if any found in Ex.A1 is the question. 15. The said documents Exs.B15 and B16 are after the filing of the suit. On the date of filing of the suit, those documents were not in existence. The plaintiff had examined the said Govindasamy Pillai for proving the purchase through Ex.A1 from the said Ponnaiah Pillai and regarding the partition had in between himself and the plaintiff and to prove the title of the plaintiff to the suit property. The contention of the defendant was that the said Govindasamy Pillai had given a consent letter by virtue of Ex.B16. The said execution of Ex.B16 was denied by the said Govindasamy Pillai, while he was examined as PW.2. The defendant neither shown the said document Ex.B16 to PW.2 – Govindasamy Pillai nor suggested that the signature found in Ex.B16 was belonging to him. In the said circumstances, it cannot be considered that Exs.B15 and Ex.B16 are true documents, to help the court to come to a correct conclusion. Admittedly, they were not in existence on date of the suit. In the said circumstances, it cannot be considered that Exs.B15 and Ex.B16 are true documents, to help the court to come to a correct conclusion. Admittedly, they were not in existence on date of the suit. Therefore, the evidence that PW.2 purchased the suit property from the said Ponnaiah Pillai through Ex.A1 in the year 1958 and the said Govindasamy Pillai and the plaintiff have orally partitioned the property and the suit property was allotted to the plaintiff are reliable. In the said circumstances, whether the title to the suit property has passed from the vendor of the defendant to the defendant, under Ex.B18 is the question. 16. The plaintiff had taken the land adjacent to suit property on lease from one Vinai Theertha Pillai, the father of the defendant's vendor, Panneerselvam. The said land is, admittedly, located on the southern side of the suit property. The document of lease was a registered one and it was produced as Ex.A6. The said lease was for a period of four years and after completion of the period of lease, he had surrendered the said property. The endorsement in Ex.A6 would go to show that the same was surrendered and the suit property was not referred to by the plaintiff as surrendered to the plaintiff. The said surrender of the lease was categorically denied by the said Panneerselvam in his evidence when he was examined as DW.2, whereas I could see in Ex.A6 that the said Panneerselvam himself has received the possession of the leasehold property, which is lying adjacent to the suit property. The plaintiff was in possession and enjoyment of both the lands clubbed together during the period of lease under Ex.A6. If really the suit property was also belonging to the father of Panneerselvam, viz., Vinai Theertha Pillai, the lease would be written in favour of the plaintiff in respect of the suit property also at the time of executing Ex.A6. Similarly, the properties surrendered with the son of Vinai Theertha Pillai, namely, Panneerselvam would be in respect of the suit property also along with the leased property in S.No.118/9. But it was not seen in the description of property in Ex.A6 and the property surrendered by the plaintiff with the defendant's vendor. The cancellation or rectification of the S.No.130/5 instead of S.No.118/8 in Exs.B15 and B16 were, admittedly, taken place only after the suit. 17. But it was not seen in the description of property in Ex.A6 and the property surrendered by the plaintiff with the defendant's vendor. The cancellation or rectification of the S.No.130/5 instead of S.No.118/8 in Exs.B15 and B16 were, admittedly, taken place only after the suit. 17. As regards the continuous possession had by the plaintiff, it was not disputed that from the date of execution of Ex.A1, sale deed, the plaintiff's brother, Govindasamy Pillai as one of the joint family members, was in possession and enjoyment of the suit property and the document filed on the side of plaintiff in Exs.A2 to A5 and Exs.A13 and A14 would also prove the same. Of course, there was a dispute after the entry of name of Panneerselvam, the defendant's vendor in UDR Patta, but the said change of patta was questioned by the plaintiff. It is a settled law that the patta is not a title deed to convey title will accrue exclusively on the basis of the said patta. There should be an acceptable document of title in respect of the suit property, when Ex.A1 is proving the case of the plaintiff. It is the definite case of the plaintiff that he continued to be in possession and enjoyment of the suit property on the date of the suit. When the plaintiff is found to be in possession and enjoyment of the suit property, whether can it be interfered by a document of title in the name of the defendant i.e., Ex.B18, which does not carry any title to him. 18. As far as Ex.B18 sale deed is concerned, it was executed by the said Panneerselvam in favour of the defendant on 19.09.1995 in respect of the property in S.No.118 and 119 in the suit village. The said properties described in S.No.118 comprises the suit property, which is in S.No.118/8 for an extent of 13 cents. The insistence was to the effect that the said Ponnaiah Pillai, vendor of Govindasamy Pillai, in Ex.A1 had wrongly mentioned the survey number as S.No.118/8 instead of 130/5. The said document executed in the year 1958 in Ex.A1 was cancelled by the said Ponnaiah Pillai, which was produced as Ex.B15. The alleged consent letter said to have been executed by the said Govindasamy Pillai was also produced as Ex.B16. The said document executed in the year 1958 in Ex.A1 was cancelled by the said Ponnaiah Pillai, which was produced as Ex.B15. The alleged consent letter said to have been executed by the said Govindasamy Pillai was also produced as Ex.B16. Whether this would disentitle the plaintiff's right in S.No.118/8 of an extent of 13 cents and give right to the defendant's vendor Panneerselvam to convey the title to the defendant through Ex.A1. I have already discussed and found that the said documents Ex.B15 and B16 were in existence only after the suit and they cannot give any right in the suit property for the defendant's vendor to convey the suit property. Both the documents Exs.B15 and B16 cannot be enforced or having any evidentiary value for the purpose of deciding the right in the suit property. The plaintiff, who obtained the possession of the suit property in S.No.118/8 of an extent of 13 cents, had clubbed the leasehold land belonging to Vinai Theertha Pillai in S.No.118/9 and had cultivated both the lands by raising punja crops during the lease period. The evidence adduced by the plaintiff to that effect is more appreciable and the possession and enjoyment of the suit property was found to be only with the plaintiff on the date of filing of the suit. The right and title of the suit property said to have passed by the said Panneerselvam in respect of the suit property to the defendant will not in anyway transfer any title in the suit property to the defendant. In the said circumstances, the defendant cannot set up any adverse interest against the plaintiff in respect of the suit property for the purpose of disallowing the claim of the plaintiff. 19. The judgment rendered by this Court in 2000 (3) MLJ 423 cited supra would lay down the principle as follows:- "15. .... The learned Judge has held that: "In a suit for injunction, it is the duty of the plaintiff to prove that he continued to be in possession on the date of the suit." The learned Judge has further observed that: "only when evidence on both sides are even title to the property will have some relevance." 20. .... The learned Judge has held that: "In a suit for injunction, it is the duty of the plaintiff to prove that he continued to be in possession on the date of the suit." The learned Judge has further observed that: "only when evidence on both sides are even title to the property will have some relevance." 20. On a careful scrutiny of the said judgment, it had come to a conclusion that in a suit for an injunction, when the plaintiff has proved that he continued to be in possession of the property on the date of the suit, the evidence adduced on either side regarding title of the defendant to the suit property and the decision as to title of the same will have some relevance. In this case, the defendant has no proof regarding his title to the suit property in order to show the possession of the plaintiff unlawful. The only argument which could be advanced on the side of the respondent / defendant would be that injunction cannot be granted against a true owner. The plaintiff who is found to be in possession of the suit property is certainly entitled to have the protection of his possession and enjoyment except against the true owner. As far as this case is concerned, the plaintiff's brother Govindasamy Pillai was having a good title from the date of his purchase through Ex.A1 in the year 1958 and the plaintiff and the said Govindasamy Pillai were found to be in possession thereafter and subsequently, the plaintiff is found to have been in lawful possession from the date of oral partition with his brother, and thus, the possession of the plaintiff is also found to be lawful. In the said circumstances, the defendant cannot come forward with the plea that the plaintiff must come to court for a declaration of his title to the suit property. The first appellate court, without following the principles laid down by this Court in the aforesaid judgment and other judgments and without appreciating the correct position of facts, had come to the conclusion which is perverse and is also liable to be interfered. The trial court had discussed every issue and had reasonably come to the conclusion that the plaintiff is in possession and enjoyment of the suit property and he can maintain the suit for permanent injunction against the defendant. 21. The trial court had discussed every issue and had reasonably come to the conclusion that the plaintiff is in possession and enjoyment of the suit property and he can maintain the suit for permanent injunction against the defendant. 21. For the foregoing discussions, I am of the considered view that the findings reached by the trial court are sound and it ought not to have been disturbed by the first appellate court. The continuous possession and enjoyment of the plaintiff was not considered by the first appellate court as well, the document of title as claimed by the defendant through Ex.B18 will not give the defendant any title to the suit property and therefore, he cannot resist the claim for injunction granted in favour of the plaintiff. Therefore, the question of law framed by this court is found against the respondent. 22. Therefore, I am of the considered opinion that the judgment and decree passed by the first appellate court in A.S.No.2 of 2003 dated 31.03.2003 is liable to be interfered and set aside and thereby the judgment and decree passed by the trial court in O.S.No.388 of 2000 dated 12.11.2002 are restored. Consequently, the Second Appeal is allowed and there is no order as to costs.