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2012 DIGILAW 3848 (MAD)

Haridhas @ Delli Durai v. T. R. Dhas

2012-09-07

S.VIMALA

body2012
JUDGMENT 1. The concurrent dismissal of both the suit and the appeal (O.S. No. 406 of 1996 and A.S. No. 50 of 1998), dismissing the relief of injunction, has driven the plaintiffs to file the second appeal. 2. The second appeal has been admitted on the following substantial questions of law: “1. Whether the Courts below are right in declining to grant the relief of permanent injunction without framing an issue regarding possession? 2. Whether the Courts below are right in relying on Exhibits B-1 and B-2 and B-5 to 9 obtained subsequent to the filing of the suit?” 3. The brief facts: The plaintiffs claimed title to the property by virtue of the sale deed, dated 14.9.1994, claiming to have been purchased by their father from the first defendant. After the death of plaintiffs’ father on 21.4.1996, the plaintiffs claim to be in possession and enjoyment of the suit property as owners. 4. The first defendant remains ex parte The second defendant resisted the suit on the contention that the suit property originally belonged to one Narasimha Naicker and Ganesa Naicker, from whom, the second defendant purchased the property on 15.12.1994, and as such, he is the owner of the suit property. 5. The plaintiffs in order to maintain the suit for injunction has to prove possession. But, except the copy of the sale deed, notice and reply notice, no other documents have been filed on the side of the plaintiffs. The defendants relied upon Exhibit B-3-sale deed, Exhibit B-6 and Exhibit B-7, which are the tax receipts, in order to support the contention of his title and possession. The tax receipts were not accepted by the trial Court on the ground that they are dated after the filing of the suit. The trial Court has given a finding that the plaintiffs failed to prove their title, while the defendants proved their title through Exhibits B-3. Finding that possession was not proved by the plaintiffs, the suit was dismissed. 6. As against the dismissal of the suit, the plaintiffs filed the appeal. The first appellate Court has adopted a different approach to the consideration of title to the suit property. Finding that possession was not proved by the plaintiffs, the suit was dismissed. 6. As against the dismissal of the suit, the plaintiffs filed the appeal. The first appellate Court has adopted a different approach to the consideration of title to the suit property. The first appellate Court has taken note of the fact that even though Exhibit A-1-sale deed has been written on 16.9.1994 it has been registered only on 19.12.1994, i.e., after the date of Exhibit B-3, which is dated 15.12.1994, (based on which the defendants claim title) and therefore plaintiffs cannot claim title. The first appellate Court, by ignoring the proposition laid down in Har Narain (Dead) by Lrs v. Mam Chand (Dead) by Lrs and Others (2010) 13 SCC 128 , seems to have taken the above view. In the decision in Har Narain (Dead) by Lrs v. Mam Chand (Dead) by Lrs and Others (supra) it has been held as follows: “Registration Act, 1908 – Sections 47 and 17. Fiction of relation back of registered document to date of its execution, created by Section 47 .... It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered.....” 6.1. Therefore, even though Exhibit A-1 is registered on 19.12.1994, after registration it becomes operational from the date of execution i.e., from 16.9.1994. Therefore, the reasoning that the plaintiffs have no title, as their title deed is dated subsequent to the date of defendants’ document is incorrect. 7. But, in any suit for injunction, title will be only an incidental issue which would go to show whether the possession is lawful or not. Only to that extent, question of title is relevant. 7.1. The first appellate Court seems to have taken exception for the non-filing of the original of Exhibit A-1-sale deed. Observing that the plaintiffs have not proved the title of the plaintiffs’ vendors, and possession also not having been proved, the plaintiffs suit has been dismissed. 8. The main contention of the learned counsel for the appellants is that the trial Court as well as the first appellate Court have unnecessary embarked upon the question of title, instead of question of possession to the suit property. The learned counsel for the appellants made a specific mention that the finding regarding the title of the defendants over the suit property should be set-aside. 9. The learned counsel for the appellants made a specific mention that the finding regarding the title of the defendants over the suit property should be set-aside. 9. Learned counsel for the respondents pointed out that the issue regarding title has to be gone into incidentally, in order to find out whether possession by the parties are legal or not. The finding of the trial Court regarding title is supported by the learned counsel for the respondents, through the above contention. 10. The inter-relation between title, possession and injunction has been succinctly stated in the decision in Rame Gowda v. M.Varadappa Naidu, (2004) 1 SCC 769 wherein, in the said decision, it has been laid down as follows: “A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” 11. Viewed the finding of the trial Court in the above perspective, the contention that the incidental finding of the trial Court with regard to title of the defendants cannot be said to be incorrect. Viewed the finding of the trial Court in the above perspective, the contention that the incidental finding of the trial Court with regard to title of the defendants cannot be said to be incorrect. 12. The learned counsel for the appellants contended that the finding regarding title has to be set-aside, because this finding may operate as res judicata in a future claim, if made by the plaintiffs. In other words, the contention is that the plaintiffs would be bound by the finding on title which the plaintiffs were not expected to seriously contest. The issue regarding title was neither directly in issue nor substantially in issue and therefore, the finding on title will not and cannot operate as res judicata whenever future claim is raised by the plaintiffs based on title. 13. The trial Court has considered the evidence regarding possession and has given a finding that there is no material to prove possession. There may be cases where ‘possession may follow title’, but in this case it is not so, as the Court has given a finding that title also is not proved. Hence, the concurrent findings of both the Courts below does not require any interference. 14. In the result, the second appeal is dismissed, confirming the concurrent judgments of dismissal, by both the Courts below. No costs. Appeal dismissed.