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2014 DIGILAW 1198 (MAD)

Kalavathy v. A. Pandian

2014-06-09

P.R.SHIVAKUMAR

body2014
Judgment : 1. The defendant in the original suit O.S.No.28/2003 on the file of the Additional District Munsif, Chidambaram, who suffered a decree for recovery of possession of the suit property, which was confirmed by the lower appellate court, namely Subordinate Judge, Chidambaram on 24.03.2007 in A.S.No.28/2006, has brought-forth this second appeal challenging the decree of the lower appellate court confirming the decree of the trial court. 2. The respondent herein/plaintiff filed the suit O.S.No.28/2003 on the file of the Additional District Munsif, Chidambaram, initially for the relief of bare injunction. Subsequently alleging dispossession and trespass by the appellant herein/defendant, the plaint was amended and the prayer for recovery of possession was also included. The case of the respondent/plaintiff is that 52 Sq.Mtr. of land comprised in S.No.326/5 in Keezh-Bhuvanagiri village was a poramboke land belonging to the Government; that the respondent/plaintiff occupied the said property and put up a thatched house for his residence; that the thatched house was assessed to house tax and he was making payment of house tax for the same and that recognising his occupation, patta for the same was issued in favour of the respondent herein/plaintiff under Ex.A1, after re-classifying the land to be a 'Grama Natham'. It is the further case of the respondent/plaintiff that while the respondent/plaintiff was in peaceful possession and enjoyment of the suit property, the appellant herein/defendant (neighbour of the respondent/plaintiff) wanted the respondent herein/plaintiff to sell the property to her and on his refusal, she made an attempt to trespass and interfere with the peaceful possession and enjoyment of the respondent herein/plaintiff in respect of the suit property which drove the respondent/plaintiff to file the suit for permanent injunction; that after the filing of the suit and the pendency of the same were not enough to deter the appellant/defendant from trespassing into the suit property and dispossessing the respondent/plaintiff and that the same necessitated amendment of the plaint seeking recovery of possession in addition to the permanent injunction not to disturb his peaceful possession and enjoyment of the suit property. 3. 3. The suit was resisted by the appellant herein/defendant contending that the suit property and the adjacent properties were Natham lands, which came to be occupied by a number of persons, who did not own any residential property, occupying small portions; that the appellant/defendant also occupied a portion measuring 46 feet East-West and 30 feet North-South and constructed a brick built and Mangalore tiled house; that on the west of the said house of the appellant/defendant, the appellant/defendant herself constructed a brick-walled thatched roof house with a breadth of 9 feet and was having a small cattle shed there around a tree therein and that the respondent/plaintiff is claiming that portion also as his property. It was her further contention that pattas came to be issued by the Government under the Natham Land Assessment Scheme to the persons in actual possession of the natham land and that the respondent/plaintiff was given patta for an area excluding the area occupied by the tree. By making such averments, the appellant/defendant made an attempt to show that there was a vacant land in between the portions, regarding which, the respondent herein/plaintiff and the appellant herein/defendant were granted patta and that since the plaintiff was claiming relief in respect of the said portion regarding which patta was not granted in favour of either the plaintiff or the defendant, the suit without a prayer for declaration of title was not maintainable and the same was liable to be dismissed. 4. The learned trial judge, after trial, held that the plaintiff's case of his occupation of the property described in the plaint schedule and the assignment of the same to him by the Government by issuance of patta stood proved and that the defendant's contention that the defendant was in occupation and enjoyment of a portion of the suit property and such portion was not assigned to any one was not substantiated. The learned trial judge also found that the plaintiff was able to prove dispossession after the institution of the suit, by the trespass made by the appellant/defendant. The learned trial judge accepted the case of the respondent herein/plaintiff, decreed the suit and granted a decree for injunction on the premise that the plaintiff was able to prove that he was in possession and enjoyment of the suit property as on the date of the filing of the suit. The learned trial judge accepted the case of the respondent herein/plaintiff, decreed the suit and granted a decree for injunction on the premise that the plaintiff was able to prove that he was in possession and enjoyment of the suit property as on the date of the filing of the suit. On appeal, the learned lower appellate judge, concurred with the findings of the trial court. However, since it had been admitted by the plaintiff that he had lost possession during the pendency of the suit, the decree of the trial court was modified by directing the appellant herein/defendant to deliver possession to the respondent herein/plaintiff. As against the said decree of the learned lower appellate judge, the present second appeal has been filed on various grounds set out in the memorandum of grounds of second appeal. 5. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal: Substantial Questions of Law: "1. Whether in law the Courts below are right in granting a decree for recovery of possession when the suit itself is not maintainable without a prayer for declaration of the respondent's title? 2. Whether in law the Courts below are not wrong in ignoring the fact that it was for the plaintiff to prove his case and that he had failed to plead and prove his case?" 6. The arguments advanced by Mr.S.Venkateswaran, learned counsel appearing for Mrs.R.Meenal, learned counsel on record for the appellant and by Mr.A.Muthukumar, learned counsel for the respondent are heard. The materials available on record are also perused. 7. The first substantial question of law has been formulated based on the contention of the appellant herein/defendant that the suit property is unassigned grama natham land and when the respondent/plaintiff and the appellant/defendant claimed to be in possession and occupation of the same for their residential purpose, the suit by the plaintiff for recovery of possession and injunction, without a prayer for declaration of his title, is not maintainable. There cannot be any general rule that a suit for recovery of possession or injunction or mandatory injunction without a prayer for declaration of title is not maintainable when the title is disputed. There cannot be any general rule that a suit for recovery of possession or injunction or mandatory injunction without a prayer for declaration of title is not maintainable when the title is disputed. Section 34 of the Specific Relief Act, 1963 states that a declaration as such (a blanket declaration) shall not be granted by court in case the plaintiff omits to seek further relief than a mere declaration of title when such further relief could have been sought for. Seeking further relief has been made a condition for the grant of declaration in cases where such further reliefs can be sought for. On the other hand, when reliefs other than declaration are sought for, no such condition is prescribed. In the provisions relating to such reliefs found in the Specific Relief Act, especially in Part III Chapter VII dealing with injunctions, there is no provision which says that no suit for injunction can be maintained without a prayer for a declaration of title when the title of the plaintiff is denied. 8. Referring to Tamil Nadu Court Fees and Suits Valuation Act, 1955 will also make this position clear. Section 27 of the said Act dealing with injunctions provides for payment of court fees in a suit for injunction with reference to any immovable property depending upon the fact whether the title of the plaintiff is in dispute or the pleadings necessitate framing of an issue regarding the title of the plaintiff. Cases wherein, there is no such dispute or no issue regarding title is to be framed as a necessary issue, court fee is payable on the notional value subject to a minimum court fee payable in case of dispute of title is on one-half of the market value of the property. Section 25(b) of the said Act dealing with declaration and consequential injunction also prescribes the very same court fee. It shall be clear from the above said provisions that a suit for injunction cannot be rejected as not maintainable simply because title of the plaintiff is disputed and the plaintiff has sought for injunction alone. Part II Chapter III of the Specific Relief Act, 1963 deals with recovery of possession of the property. None of the sections says that a suit for recovery of possession without a prayer for declaration of title is not maintainable. Part II Chapter III of the Specific Relief Act, 1963 deals with recovery of possession of the property. None of the sections says that a suit for recovery of possession without a prayer for declaration of title is not maintainable. Section 5 of the said Act makes it clear that a person entitled to the possession of specific immovable property, may recover it in the manner provided by the Code of Civil Procedure, 1908. Section 6 is the provision enabling a person to seek recovery of possession even though he may not have title based on his previous possession, if he was dispossessed without his consent otherwise than in due process of law. 9. Of course there are some cases in which courts have taken a view that complicated questions of title are not suitable for resolution in a case for bare injunction wherein, the title has to be decided incidentally in a summary manner. Previously there was a misconception by which the Subordinate courts were taking a view that a suit for bare injunction when the title of the plaintiff was in dispute was not maintainable. Now the position has been clarified in a number of decisions of the High Courts and the Apex Court. The celebrated decision in this regard is the judgment of the Apex Court in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. & Others reported in 2008 (6) CTC 237. A perusal of the said judgment and the other judgments of the Apex Court in this regard will show that only as a rule of convenience of the court, the courts are relegating the parties to a more cumbersome procedure of seeking declaration and consequential reliefs, when the question of title is considered to be so complicated and not fit to be resolved incidentally in a summary manner in a suit for bare injunction. Even in those cases, the courts have not dismissed the suits and especially in the said case decided by the Supreme Court, after non-suiting the plaintiff for the relief of injunction in the particular case, the plaintiff was given liberty to file a comprehensive suit for declaration and other reliefs. Even in those cases, the courts have not dismissed the suits and especially in the said case decided by the Supreme Court, after non-suiting the plaintiff for the relief of injunction in the particular case, the plaintiff was given liberty to file a comprehensive suit for declaration and other reliefs. In A.S.Vedhagiri vs. Govindammal reported in (2013) 2 LW 781 , I myself had an occasion to elucidate the scope of the observations made by the Hon'ble Supreme Court in the said judgment, in which, all the views expressed above, were dealt with elaborately. The same will get attracted to the case on hand. 10. In this case, the issue is also not so complicated. Admittedly, the suit property is comprised in Survey No.326/5. The same was assigned by the Government to the respondent/plaintiff. The extent mentioned in the patta and the extent claimed by the plaintiff in the suit are one and the same. The property abutting the suit property on the east is the property assigned to the appellant/defendant. The survey number of the same is 326/6. There is no unassigned portion lying in between the two. The question of tile is simple and clear and the respondent/plaintiff was successful in proving his title. Hence there is no need for the court to abrogate its power to decide this issue on the supposed premise that the question of title is a complicated one to relegate the plaintiff to a more cumbersome procedure of seeking declaration and other reliefs. The reasons stated above, shall be enough to decide the first substantial question of law in favour of the respondent herein/plaintiff and against the appellant herein/defendant. 11. So far as the second substantial question of law is concerned, it is the contention of the appellant/defendant that the suit is not maintainable, as reliefs for injunction and recovery of possession have been sought for without seeking a declaration of title to the suit property. Admittedly, the suit property regarding which, the respondent herein/plaintiff claimed the relief and the adjacent properties were once classified as poramboke land belonging to the Government. The entire land was occupied by several persons and the plaintiff occupied the suit property measuring 52 Sq.Mtr. and the property immediately lying on the east of the suit property was occupied by the appellant herein/defendant. The entire land was occupied by several persons and the plaintiff occupied the suit property measuring 52 Sq.Mtr. and the property immediately lying on the east of the suit property was occupied by the appellant herein/defendant. They and the other occupants put up residential houses either thatched or tiled, according to the availability of the resources with them and such superstructures put up by them came to be assessed for house tax by the local bodies. In view of the occupation of the vacant land belonging to the Government for residential purpose and the superstructures put up by the occupants for their residences were assessed to house tax, recognising their possession, the Government chose to reclassify the land into grama natham and assessed the portions occupied by each person by issuing assignment patta. 12. Admittedly, the respondent herein/plaintiff was assigned patta in respect of the survey No.326/5 under Ex.A1-Patta. Similarly, the plot abutting the land assigned to the plaintiff bearing Survey No.326/6 was assigned to the appellant/defendant. However, for the reasons best known to the appellant/defendant, the patta issued to her has not been produced. The endeavour made by the appellant/defendant is to show that there is an unassigned stretch of land in between the plots of the plaintiff and the defendant and the plaintiff has filed the suit in respect of that unassigned vacant site also. The appellant/defendant was not able to adduce sufficient and reliable evidence to show that any stripe of land as an unassigned poramboke land exists in between the plots allotted to the plaintiff and the defendant. The respondent herein/plaintiff has chosen to produce the patta issued to him as Ex.A1 and the copy of the FMB of Survey No.326 as Ex.A11 to show that in between the plots assigned to the plaintiff and the defendant, there is no stretch of unassigned land. A glance at the field map will show that the respondent/plaintiff is right in his contention that there is no space in between his land and the land assigned to the appellant/defendant, which remains unassigned poramboke land. Even if it is assumed that there is any such unassigned poramboke land and the same has been occupied and enjoyed by the respondent herein/plaintiff, then he can protect his possessory right as against the whole world except the real owner. Even if it is assumed that there is any such unassigned poramboke land and the same has been occupied and enjoyed by the respondent herein/plaintiff, then he can protect his possessory right as against the whole world except the real owner. If at all any stretch of unassigned land lies in between the plots of the plaintiff and defendant bearing sub division Nos.5 and 6 of Survey No.326, then the appellant/defendant could have moved the Government for the removal of the encroachment and she cannot take the law in her hands and trespass into that land. Both the courts below, on proper appreciation and re-appreciation of evidence, have arrived at a concurrent finding that the respondent/plaintiff was in possession and enjoyment of the property described in plaint schedule as on the date of plaint, which cannot be termed defective. This court also, after verifying the description of the property with the particulars found in Ex.A1 and A11, is convinced that the respondent/plaintiff has not sought any relief in respect of any portion other than the land regarding which he was granted patta under Ex.A1. The appellant also does not claim any right in any portion of the land comprised in Survey No.326/5. The description of property found in the plaint is confined to the said sub-division alone. As such, the challenge made to the decree passed by the lower appellate court directing the appellant herein/defendant to deliver possession of the suit property, which was occupied by her after the filing of the suit and during the pendency of the suit to the respondent herein/plaintiff is bound to fail. The respondent/plaintiff, by sufficient and reliable evidence, has proved his case that he was assigned patta by the Government in respect of Survey No.326/5 and he was in possession and enjoyment of the same till he was dispossessed by the appellant/defendant during the pendency of the suit. On the other hand, the appellant/defendant miserably failed to prove her case that she was in possession of the suit property prior to the filing of the suit and as on the date of filing of the suit and that she did not trespass into the same and dispossess the respondent/plaintiff. Hence the second substantial question of law is bound to be answered in favour of the respondent herein/plaintiff and against the appellant herein/defendant. Hence the second substantial question of law is bound to be answered in favour of the respondent herein/plaintiff and against the appellant herein/defendant. Accordingly, both the substantial questions are answered in favour of the respondent herein/plaintiff and against the appellant herein/defendant. 13. For all the reasons stated above, this court comes to the conclusion that there is no merit in the second appeal and the same deserves to be dismissed. Accordingly, the second appeal is dismissed. However, there shall be no order as to cost as it is not pressed. Consequently, the connected miscellaneous petitions are closed.