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2013 DIGILAW 1020 (MAD)

Y. Padmanabha Prasad v. Rajendra Raja

2013-02-18

K.CHANDRU

body2013
Order: 1. These two civil revision petitions came to be posted on being specially ordered by the Hon'ble Chief Justice vide order dated 19.04.2011. 2. These two civil revision petitions were filed under Article 227 of the Constitution of India seeking to set aside the order dated 31.03.2011 passed by the Sub Court, Poonamallee made in C.M.A.Nos.8 and 9 of 2010 filed against the order in I.A.Nos.805 and 806 of 2009 in O.S.No.258 of 2009, dated 27.11.2009 made by the District Munsif, Ambattur. 3. The respondents were represented by caveator, who have filed caveat petition Nos.1713 and 1714 of 2011. The revision petitioners are plaintiffs in O.S.No.258 of 2009 before the District Munsif, Ambattur. The suit was filed by the petitioners for the following reliefs : "(a) For a Declaration, declaring the 1st Plaintiff's right and title over the Suit-A & B Schedule properties which are more fully described in the suit-A&B Schedule hereunder. (b) For a Declaration, declaring the 2nd plaintiff's right and title over the Suit-C Schedule properties which are more fully described in the Suit Schedule-C hereunder. (c) For a Declaration, declaring the 3rd Plaintiff's right and title over the Suit-D Schedule properties which are more fully described in the Suit-D schedule hereunder. (d) For a permanent injunction restraining the defendants, their men, agents servants, subordinates or any other person(s) claiming under/or acting through the defendants from in any way interfering with the 1st plaintiff's peaceful possession and enjoyment of the Suit-A&B, Schedule properties which are more fully described in the Suit-A & B schedule hereunder. (e) For a permanent injunction restraining the defendants, their men, agents servants, subordinates or any other person(s) claiming under/or acting through the defendants from in any way interfering with the 2nd plaintiff's peaceful possession and enjoyment of the suit-C schedule properties which are more fully described in the suit-C schedule hereunder. (f) For a permanent injunction restraining the defendants, their men, agents servants, subordinates or any other person(s) claiming under/or acting through the defendants from in any way interfering with the 3rd plaintiff's peaceful possession and enjoyment of the suit-D schedule properties which are more fully described in the suit-D schedule hereunder. (f) For a permanent injunction restraining the defendants, their men, agents servants, subordinates or any other person(s) claiming under/or acting through the defendants from in any way interfering with the 3rd plaintiff's peaceful possession and enjoyment of the suit-D schedule properties which are more fully described in the suit-D schedule hereunder. (g) For a permanent injunction restraining the defendants, their agents or any other person(s) claiming under/or acting through the defendants from creating any kind of false, fraudulent and fabricated documents of Transfer, Settlement, Mortgage or any kind of transfer or encumbrance whatsoever in respect of the suit-A,B C& D schedule properties owned by the plaintiffs. (h) And for the costs of the suit and to pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice." 4. Pending the suit, interim injunction applications were filed under Order 39 Rule 1 for grant of temporary injunction in I.A.Nos.805 and 806 of 2009 restraining the defendants / respondents from interfering with the plaintiffs' peaceful possession and enjoyment of suit A,B,C and D Schedule properties and also for restraining the defendants from creating any kind of false, fraudulent and fabricated documents of transfer, settlement, mortgage or any kind of transfer or encumbrance in respect of schedule mentioned properties. The defendants have entered appearance in the suit. They have also filed a written statement on 11.11.2009. In the interim applications, on behalf of the petitioner, 68 documents were filed and they were marked as Exs.P.1 to P.68. On the side of the contesting respondents, 4 documents were filed and marked as Exs.R.1 to R.4 and no witnesses were examined. On analysis of the same, the learned District Munsif, Ambattur by order dated 27.11.2009 had granted an interim injunction. In the operative portion of the order dated 27.11.2009, it was stated as follows : "In view of the petitioners/plaintiffs filing sufficient documents to show that they are in possession and enjoyment of suit 'A' to 'D' schedule properties and in view of the respondents/defendants not proving possession over the suit 'A' to 'D' schedule properties through documents this court feels that the petitioners/plaintiffs being the lawful owner of the suit 'A' to 'D' schedule properties and in view of the petitioners/plaintiffs proving the case prima facie, the petition is allowed. 9) In the result both the petitions are allowed." 5. 9) In the result both the petitions are allowed." 5. As against the grant of the interim injunction, the contesting respondents had preferred C.M.A Nos.8 and 9 of 2010. Pending C.M.As., they have also filed interim applications in C.M.P.Nos.179 and 180 of 2010. The petitioners filed a counter statement in those two applications. However, the main C.M.As were taken up for hearing by the Sub Court, Poonamallee. After hearing both sides, by a common order dated 31.03.2011, the two miscellaneous appeals were allowed and the interim order granted by the trial court was vacated. In the operative portion of the order, the learned Sub Judge held that the petitioners / plaintiffs failed to prove that they were in possession of the suit lands during the year 2008-2009 and no documents have been filed. The last documents were the Adungal relating to Fasli 1414 and it was related to the year 2004-2005. Since they were seeking for temporary injunction, they ought to have proved their case. The documents under which the title was claimed are yet to be tested regarding the truthfulness. The injunction was granted only on the basis of the order granted by the Settlement Tahsildar. The petitioners / plaintiffs have only filed documents before the lower appellate court in Exs.R.5 and R.6. As their claim was doubtful, the injunction granted by the trial court was vacated. It is as against the said order, these two civil revision petitions came to be filed. 6. The contention raised by the petitioners was that there was no scope for the lower appellate court to vacate the interim injunction granted by the trial court. The documents marked as Exs.R.5 and R.6 were inadmissible in evidence and they came into existence in the course of Crime Nos.6 and 7 of 2010. Ex.R.6 was a letter issued by one R.S.Anbalagan in the form of answers to the questionnaire prepared by the investigating agency under Exs.R.5. In fact, the proceedings initiated by the said R.S.Anbalagan in the capacity as an Assistant Settlement Officer was challenged in W.P.No.25413 of 2009 and it was stayed by this court. The said fact was not available to the lower appellate court. Ex.R.5 had already been reopened and investigation was transferred to the CBCID for conducting a fresh investigation along with Crime Nos.6 and 7 of 2010. The said fact was not available to the lower appellate court. Ex.R.5 had already been reopened and investigation was transferred to the CBCID for conducting a fresh investigation along with Crime Nos.6 and 7 of 2010. Further, the sale deeds in Exs.P.15 to P.53 filed by the petitioners were of the year 1965 and they were not challenged in the manner known to law. 7. Since the lower appellate court was largely influenced by Exs.R.5 and R.6, i.e., the final report submitted before the Judicial Magistrate and a letter of the Principal Secretary, dated 14.6.2010, Mr.N.Jothi, learned counsel for the petitioners referred to a counter affidavit filed by the Principal Secretary and Commissioner of Survey and Settlement, Chennai, dated 03.10.2012 filed in W.P.No.6720 of 2011 and batch cases filed by the respondent / plaintiff, wherein it was stated that the Assistant Settlement Officer R.S.Anbalagan is facing both departmental and criminal action for having passed an irregular order for the grant of patta in respect of the lands belonged to the Collector Bungalow at Thanjavur to private individuals and that he had no power to reopen the proceedings after a lapse of 33 years as there was a prohibition made by the State Government vide G.O.Ms.No.714, CTRE Department, dated 29.6.1987 prohibiting the settlement officers from entertaining petitions or appeals after 20.8.1987. That final report filed before the Judicial Magistrate marked as Ex.R.5 no longer survives as the investigation has been reopened by an order of the court. 8. The premises under which the order of the trial court was reversed cannot be sustained. There was no necessity for the lower appellate court reversing the findings of the trial court based upon the documents produced by the petitioners /plaintiffs. The lower appellate court did not give cogent reasons for reversing the order passed by the trial court. Both prima facie case and the balance of convenience are in favour of the petitioners. 9. In the light of the above, both civil revision petitions stand allowed. The fair and decreetal order dated 31.03.2011 made in C.M.A.Nos.8 and 9 of 2010 passed by the Sub Court, Poonamallee will stand set aside. The order and decree, dated 27.11.2009 made in I.A.Nos.805 and 806 of 2009 in O.S.No.258 of 2009 passed by the District Munsif, Ambattur will stand restored. However, the parties are allowed to bear their own costs.