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2013 DIGILAW 2102 (MAD)

Madheswari v. Ganesan

2013-06-20

G.RAJASURIA

body2013
JUDGMENT 1. This second appeal is focused by the plaintiffs 2 to 4, inveighing the judgement and decree dated 30.09.2011 passed by the learned Subordinate Judge, Tiruchengode in A.S.No.18 of 2010 confirming the judgment and decree dated 31.08.2009 passed by the learned Additional District Munsif, Tiruchengode in O.S.No.32 of 2002. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: a] The original plaintiff filed the suit seeking the following reliefs: To pass a decree of permanent injunction restraining the defendants 1 to 3, their men and agents from in anyway interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs 2 to 4 and for costs. (extracted as such) b] A summation and summarisation of the averments in the plaint would run thus: The deceased original plaintiff Kandasamy happened to be the owner of the property as per Ex.A1, the sale deed dated 14.07.1975 described in the schedule of the plaint as under: “TAMIL” While so, the defendants without any manner of right started interfering with the peaceful possession and enjoyment of the plaintiff's property. Whereupon, the suit was necessitated to be filed. c] Inveighing and challenging, refuting and contradicting the averments/allegations in the plaint, the defendants 1 to 3 filed the written statement, the warp and woof of the same would run thus: The description of the property in the schedule of the plaint is a misconceived and misleading one. Ex.A1, which the deceased original plaintiff relied on for proving his title, does not contain any such description in pari materia with the description as found in the schedule of the plaint. To the East of the plaintiff's land, the defendants are owning lands in Survey No.292. A Cart-track is also situated in the land of the defendants and it is their private cart-track exclusively for the use of the defendants. Under the pretext of getting injunction, the plaintiff is trying to interfere with the said cart track of the defendants. There was no cause of action at all for the plaintiff to file the suit. As alleged in the plaint, the defendants did not interfere with the plaintiff's peaceful possession and enjoyment of the suit property in S.No.287/7. Under the pretext of getting injunction, the plaintiff is trying to interfere with the said cart track of the defendants. There was no cause of action at all for the plaintiff to file the suit. As alleged in the plaint, the defendants did not interfere with the plaintiff's peaceful possession and enjoyment of the suit property in S.No.287/7. Accordingly, they prayed for the dismissal of the suit. d] Whereupon issues were framed by the trial court. e] Up went the trial, during which, the second plaintiff examined herself as PW1 along with P.W.2 and marked Exs.A1 to A13. On the side of the defendants, D1 examined himself as DW1 and no document was marked. f] Ultimately, the trial court dismissed the suit; as against which, the plaintiffs 2 to 4 preferred the appeal for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court. f] Challenging and impugning the judgments and decrees of both the courts below, the plaintiffs 2 to 4 have preferred this second appeal on various grounds and also suggesting various substantial questions of law. 4. Heard both sides. 5. On perusal of the records, I thought fit to formulate the following substantial questions of law to the knowledge of both sides. 1. Whether the plaintiffs were justified in furnishing the description of property in the schedule of the plaint, by specifying the eastern boundary of their land as the cart-track even though such a description is not found exemplified in Ex.A1, the sale deed? 2. Whether there is any perversity or illegality in the judgments and decrees of both the courts below? 6. Indubitably and indisputably, the following facts could be discerned from the records as well as from the evidence adduced on both sides. The defendants are owning land in Survey No.292 to the East of plaintiffs' land bearing survey No.287/7 and measuring two acres. In Ex.A1, for the entire two acres, no boundaries are found specified and only in the schedule of the plaint, boundaries are found specified. 7. At this juncture alone trouble erupted between the parties. The plaintiffs' initially contended that in the plaint schedule the extant physical features were specified even though such a boundary description was not to be found in Ex.A1. 8. 7. At this juncture alone trouble erupted between the parties. The plaintiffs' initially contended that in the plaint schedule the extant physical features were specified even though such a boundary description was not to be found in Ex.A1. 8. The learned counsel for the plaintiffs now, would categorically and candidly submit that the plaintiffs are having no claim over the said cart-track, which is situated to the East of their land and at no point of time, they are going to lay claim over it and accordingly, he would pray for injunction de hors the boundary description as found in the plaint; but purely based on the description in Ex.A1 only. 9. The learned counsel for the defendants would submit that before the first appellate court, the defendants' contention was that they had no objection for grant of injunction only in respect of the property in Survey No.287/7 based on Ex.A1 and not based on the boundary description as found in the schedule of the plaint. 10. I am of the considered view that the plaintiffs' could have very well accepted before the first appellate court itself the concession given by the defendants, but since the plaintiffs were unrelenting in their stand, the first appellate court expressed its inability to grant injunction based on the description of the property in the schedule of the plaint and wherefore, this second appeal has ensued. 11. The learned counsel for the defendants also would echo the grievance of his clients to the effect that PW1 herself has stated during trial that even though her deceased father during his life time filed the suit narrating the dispute, subsequently, there was no trouble. 12. I would like to point out that here, there is no claim for damages or any such claim as against the defendants. No doubt, there should be a cause of action for filing the suit for injunction and without any cause of action, no relief can be prayed in a suit. Bad blood started running in the relationship of the neighbours and there was mutual mistrust between them, which engendered in filing the suit by the original plaintiff seeking injunction. In the schedule of the plaint also, in the description, a cart-track is found specified as the eastern boundary of the plaintiff's property without specifying that the said cart track belonged to the defendants. In the schedule of the plaint also, in the description, a cart-track is found specified as the eastern boundary of the plaintiff's property without specifying that the said cart track belonged to the defendants. As such, all these circumstances paved the way for dispute between the two. In such a case, I am of the view that the injunction relief cannot be denied solely on the ground that as of now, there is no dispute between the two. 13. My mind is reminiscent and redolent of the following maxim: Veritas demonstrationis tollit errorem nominis – The truth of the description removes the error of the name. 14. The learned counsel for the plaintiffs' would candidly and categorically, pulling no punches, would submit that the cart-track is not situated in the land of the plaintiffs and that the plaintiffs also is having no intention to trespass into that cart-track situated in the defendants' land. Consequently, the defendants could have no apprehension that the plaintiffs might interfere with their cart-track as well as their land. It is also specifically pointed out that the cart-track is situated in Survey No.292 belonging to the defendants and in such a case, setting aside the judgments and decrees of both the courts below, the original suit could be decreed as under: Permanent Injunction as prayed for is granted only in respect of the plaintiffs land as found described in Ex.A1. By way of disambiguating the ambiguity if any, I would like to clarify that the plaintiffs shall have no right over the cart-track situated to the East of their land. 15. Accordingly, the substantial question of law No.1 is decided to the effect that the plaintiffs were not justified in furnishing the description of property in the schedule of the plaint by specifying the eastern boundary of their land as the cart-track even though such a description is not found exemplified in Ex.A1, the sale deed. However, the plaintiffs are entitled to permanent injunction as set out supra based on the description as in Ex.A1. 16. In view of the ratiocination adhered to in deciding the first substantial question of law, the judgments and decrees of both the courts below are set aside and this second appeal is allowed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.