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2014 DIGILAW 1734 (MAD)

R. Krishnamurthi v. Vairamurthi

2014-06-26

R.KARUPPIAH

body2014
JUDGMENT 1. The Revision Petitioners who are the plaintiffs in the original suit filed this revision petition against the decree and judgment made in O.S.No.205 of 2002 on the file of Subordinate Court, Poonamallee dated 08.04.2008. 2. For the sake of convenience, the plaintiffs in the original suit referred as revision petitioners and the defendant in the suit referred as respondent hereafter. 3. The revision petitioners have filed original suit under Order 7 Rule 1 CPC and Section (6) of Specific Relief Act, 1963 to pass a decree and judgment directing the respondent to quit and deliver the vacant possession of B-schedule lands (i.e.,) I, H, G, D, F, E portions in the sketch to the revision petitioner and further, to remove the construction put up by the respondent in B-schedule property (i.e.,) shown as 1, 2, 3, 4, 5 in the sketch by way of mandatory injunction and for costs. 4. The case of the revision petitioners before the trial court is that the revision petitioners' father namely N.M.Rajapather entitled to right over the property by way of acquisition on occupation in entire A-schedule property measuring 10,880 sq.ft comprised in Grama Natham in Survey No.17/2 and put up a brick and mud tiled house in it and he was in possession till his death upto 1982 and after his death, the revision petitioners continued in possession. In or about 1993, the revision petitioners sold an extent of 1200 sq.ft., to one Shakila Begum and she is in possession. The revision petitioners replacing the old tiled house and put up new construction and occupied in 2628 sq.ft and completed the construction in the year 1997 together with compound walls on three sides. The revision petitioners are in possession of entire remaining 1680 sq.ft within the compound walls and Shakila Begum is in possession of 1200 sq.ft. within the compound wall. The revision petitioners obtained electricity connections. According to the revision petitioners, the respondent is revision petitioners' paternal uncle who was living at Chennai and thereafter, recently shifted to Villivakkam. The respondent has no right or title or possession over the suit property, but, on 03.06.2002, the respondent without any previous notice or instruction, at about 7.00 a.m., along with 19 men with materials, removed the lock and entered into the suit property and put up thatched shed on the south-west side of the suit land. The respondent has no right or title or possession over the suit property, but, on 03.06.2002, the respondent without any previous notice or instruction, at about 7.00 a.m., along with 19 men with materials, removed the lock and entered into the suit property and put up thatched shed on the south-west side of the suit land. Since the revision petitioners did not know the residential address of the respondent and only able to get the same on 16.07.2002. The portion constructed by the respondent shown in the plaint plan as 1, 2, 3, 4, 5. The respondent had dispossess the revision petitioners without due process of law and hence, the suit. 5. The case of the respondent before the trial court is that the property in S.No.17/2 originally ancestral property of one Munusamy Pandithar and he married Kamalammal and Dhanammal. Due to the said wedlock, Kamalammal begotten a son Rajapather. (Revision Petitioner's father). Dhanammal got two sons namely Ramachandran and respondent herein and a daughter namely Ponnammal. During the life time of Munusamy Pandithar, he was in possession by constructing brick and mud tiled house in the suit property and he died on 05.01.1968. Munusamy Pandidhar before his demise, executed a Will dated 21.06.1967 bequeathing his self-acquired properties to his sons and daughters and left the ancestral property for common enjoyment. After the demise of Munusamy Pandithar, the revision petitioners' father Rajapather, the respondent and his brother Ramachandran jointly enjoying the entire property. The respondent's brother Ramachandran died issueless and Ponnammal got married and settled with her husband. Since the entire A-schedule property is the ancestral property, this respondent has got a share in the suit property as one of the co-parcener. The further case of the respondent is that the revision petitioners constructed a house in a portion of A-schedule property after demolishing old superstructure, put up by Munusamy Pandithar. At the time of construction of house by the revision petitioners, the respondent helped the revision petitioners. Further, the revision petitioners left another vacant portion in A-schedule property which is belongs to the respondent. The revision petitioners in order to protect the respondent's vacant portion also, they fenced the property by putting a compound wall. The respondent constructed the house in the year 2002 in the vacant portion, belongs to the respondent. At that time, the revision petitioners have not objected. The revision petitioners in order to protect the respondent's vacant portion also, they fenced the property by putting a compound wall. The respondent constructed the house in the year 2002 in the vacant portion, belongs to the respondent. At that time, the revision petitioners have not objected. With ulterior motive suppressing the respondent's share in the property, the revision petitioners alienated a portion of the property measuring 1200 sq.ft to one Shakila Begum in the year 1992. But, the Shakila Begum is not in possession and enjoyment of the property. Further, the revision petitioners falsely described in the plaint as if the respondent is tress-passer and filed the suit. There is no dispossession of the revision petitioners by the respondent and hence, the revision petitioners are not entitled to any relief as prayed for in the plaint. 6. In the original suit, the trial court has framed six issues. To prove the case of the revision petitioners/plaintiffs examined two witnesses as PW1 and PW2 and marked 48 documents as Exs.A1 to A48. On the side of the respondent/defendant examined two witnesses as DW1 and DW2 and marked 43 documents as Exs.B1 to B43. The trial court has considered the above said oral and documentary evidence adduced on either side and finally dismissed the suit. 7. Aggrieved over the decree and judgment of the trial court, the revision petitioner, who are plaintiffs in the suit filed this revision petition. 8. The point for consideration in this revision petition is that whether the revision petitioner is entitled to the reliefs sought for in the plaint under Section 6 of the Specific Relief Act 1963 ? 9. Admittedly, the appellants filed the suit under Order 7 Rule 1 CPC and Section 6 of the Specific Relief Act 1963 and seeking relief of delivery of possession of the property marked as I, H, G, D, R, E portion in the rough sketch and also seeking relief of mandatory injunction to remove the construction put up by the respondent in the portion shown as 1, 2, 3, 4, 5 in the plan. The trial court has discussed about the oral and documentary evidence adduced on either side and held that the suit property is Government Natham Poromboke land and in the year 1945 itself, Munusamy Pandithar and his sons enjoying the property and the revision petitioner's father alone not in possession and enjoyment of the property as pleaded in the plaint. Further, the trial court has held that the revision petitioners have miserably failed to prove the fact that the respondent has encroached the suit property only on 03.06.2002. It is also held that the revision petitioners have not impleaded the owner of the portion of the property namely Shakila Begum and also the revision petitioners have not seek any relief of declaration. Further, the revision petitioners have not impleaded the owner of the property namely Government and without seeking the relief of declaration, the revision petitioners are not entitled to the relief of mandatory injunction or recovery of possession and finally dismissed the suit on the above said grounds. 10. The learned counsel appearing for the revision petitioners submitted that the revision petitioners have filed the suit under Section 6 of Specific Relief Act and in such suit, the issue of title is irrelevant and the reliefs can be granted on the basis of possession of the property six months prior to filing of the suit and dispossession by any others. Learned counsel further submitted that in the instant case an Advocate Commissioner was appointed and he had observed that the construction was new, but, the above said fact is not properly considered by the trial court. Further, the trial court has failed to appreciate that no reliable documents were produced by the respondent to prove his possession of the property prior to the date of alleged encroachment. Further, the findings of the trial court that the suit property was not properly described is also not correct. Further, the learned counsel appearing for the revision petitioner submitted that the above said Shakila Begum is not the necessary party in the present suit since the suit is filed to evict of the respondent as he had encroached the suit property within six months prior to the date of filing the suit (i.e.,) on 03.06.2002. Therefore, the learned counsel pointed out that all the above said findings of the trial court are perverse finding. 11. Therefore, the learned counsel pointed out that all the above said findings of the trial court are perverse finding. 11. Per contra, the learned counsel appearing for the respondent would submit that the entire property described in the A-schedule (i.e.,) S.No.17/2 originally, ancestral property of Munusamy Pandithar who married two wives namely Kamalammal and Dhanamammal. After the death of Munusamy Pandithar and his two wives, the revision petitioners father Rajapather, the respondent and his brothers Ramachandran were jointly enjoying the entire A-schedule property. The above said Ramachandran died issueless. Therefore, the respondent is also entitled to the suit property as one of the co-parcener. Further, the learned counsel appearing for the respondent submitted that the revision petitioners demolished the old super-structure in the portion of A-schedule property and put up a new house and the respondent helped the revision petitioners for the above said construction and the revision petitioners left the another vacant portion in A-schedule property to the respondent and hence, it belongs to the respondent. In the above said portion, the respondent constructed a house in the year 2002 and therefore, the suit is not at all maintainable since no dispossession of the property by the respondent as alleged by the revision petitioner. The learned counsel further submitted that the trial court considered the contentions raised by both sides and correctly dismissed the suit on various grounds including non-joinder of owner of the property, failed to seek relief of declaration and also failed to prove the dispossession of the property as pleaded in the plaint on 03.06.2002 and hence, no illegality or perverse in the above said findings. 12. The learned counsel appearing for the revision petitioners submitted that the procedure dealing with in a suit filed under Section 6 of Specific Relief Act is summary in nature and its object is to prevent dispossession and to discourage people to adopt any foul means to dispossess a person. Further, the learned counsel appearing for the revision petitioner relied on a decision reported in 1994(1) OLR 57 (Dhanu Naik and anothers v. Agadhi Naikani and anothers) and submitted that even if any co-parcener is in exclusive possession of any property, he can bring a suit under Section 6 of the Act for restoration of possession, if he is dispossessed without his consent otherwise then in due course of law. The learned counsel further submitted that in the instant case, even the respondent is a co-sharer, the revision petitioners are entitled to seek relief under Section 6 of the Specific Relief Act, since the revision petitioners were dispossessed by the respondents on 03.06.2002 within six months before filing the suit. 13. The learned counsel appearing for the respondent would submit that the above said decision is not applicable to the facts of the present case, since in the instant case, the revision petitioners have not proved the fact of dispossession without consent on 03.06.2002 by reliable evidence as rightly discussed by the courts below and therefore, the above said decision is not helpful to the facts of the present case. 14. A perusal of the above said decision revealed that the husband of the first plaintiff was living in B-schedule property. After the death of her husband, the first plaintiff and her daughter 2nd plaintiff remained in possession, about four months prior to filing of the suit, the defendant physically threw the plaintiff out of the house. In that process, the plaintiffs in the above said suit were dispossessed from B-schedule properties. Since the plaintiffs have proved the above said fact, the court has held that if a co-sharer is in exclusive possession on any item of property he can bring a suit under Section 6 of the Specific Relief Act for restoration of possession if he is dispossessed without his consent otherwise then in due course of law even by his co-sharer. In such circumstances in the above said decision of Orissa High Court reported in 1994(1) OLR 57 (Dhanu Naik and anothers v. Agadhi Naikani and anothers)in para 7 as under:- ''7. We are, therefore, of the view that if a co-sharer is in exclusive possession of any item of property, he can bring a suit Under Section 6 of the Act for restoration of possession if he is dispossessed without his consent otherwise than in due course of law even by his co-sharer.'' The above said decision is not helpful to the revision petitioner, since in the instant case, the revision petitioners failed to prove the possession within six months prior to the suit and the respondent dispossessed only on 03.06.2002 without consent of the revision petitioners. 15. 15. The learned counsel appearing for the revision petitioner relied on another decision reported in 2002-3-L.W.5 (Ejaz v. The Tamil Nadu Handloom Weavers Co-operative Society Ltd.,) the facts of the above said case discussed in para 7 reads as under:- "7. From the facts narrated above, it is apparent that pending suit filed by the respondent for evicting the appellant, the respondent took forcible possession of the tenanted premises, for that purpose appellant had lodged criminal complaint on the same day and as no action was taken, he had informed various authorities immediately. Despite the representation made to the higher authorities as police had not taken any action, appellant preferred Writ Petition before the High Court and the High Court directed the CB CID to investigate the case. Thereafter, the charge sheet was submitted; Government granted sanction; however, for the reasons best known to it, the Government withdraw the criminal proceedings. This would clearly establish that appellant was in possession of the premises and pending suit, he was forcibly dispossessed ........." 16. A careful reading of the above said facts of the case revealed that the respondent already filed civil suit and during the pendency of the proceedings forcibly trespassed into the tenanted premises and several steps have been taken and finally, the suit was filed within a period of six months from the date of dispossession for restoration of possession under Section 6 of the Act. Therefore, the possession of the plaintiff and also dispossession within six months had proved in the above said case. In the instant case, the date of alleged dispossession on 03.06.2002, but the suit is filed only on 29.07.2002 without any acceptable reasons. The revision petitioners have not taken any other steps as taken the case relied on by the revision petitioner. Therefore, the facts of the above said case is not applicable to the facts of the present case. 17. The learned counsel appearing for the revision petitioner relied on another decision of High Court of Madhya Pradesh reported in AIR 2001 MP 59 (Sukhjeet Singh v. Sirrajunnisa) in para 12 reads as under:- ''12. In this context I am usefully refer to the case of Onama Glass Works (AIR 1966 Madh Pra 282) (supra) wherein Bhargava, J was dealing with the consent with regard to handing over of possession by a Company. In this context I am usefully refer to the case of Onama Glass Works (AIR 1966 Madh Pra 282) (supra) wherein Bhargava, J was dealing with the consent with regard to handing over of possession by a Company. In that case the Board of Directors of Company by resolution transferred the companies property but no resolution transferred the companies property but no resolution was passed by the Central Body of Shareholders. The Court opined as under:- "8. .... This section becomes applicable only when the plaintiff is dispossessed without his consent. The matter in issue is not whether the transaction was valid but whether the plaintiff was dispossessed 'without his consent'..... The facts of the present case are to be tested on the touchstone of the aforesaid enunciation of law. The Court is not required to delve into the illegality of transaction. The Court has to see whether there was consent at the time of handing over of possession. Mr.Rajeev Shrivastava. Learned counsel for the non-applicant, has impressed upon this Court that there was misrepresentation to the tenant that the premises in question would be handedover after marriage ceremony was over and hence, the consent obtained under these circumstances would not amount to real consent. Though of first flush this contention looks attractive, on a close scrutiny I am of the view that it has no legs to stand upon. At the time of delivery of possession there was ad idem between the parties and the possession was delivered by the tenant/plaintiff. The possession was given out of total volition. There was no application of force of any kind in the most remote sense. If the plaintiff was deceived later on, that will be a matter of regular suit but it cannot come within the ambit and sweep of Section 6 of the Act." 18. A perusal of the above said decision revealed that the above said decision not helpful to the revision petitioner since the above said decision itself clearly shows that the present suit cannot come within the ambit and sweep of Section 6 of the Act. 19. The learned counsel appearing for the revision petitioner also relied on a decision reported in AIR 1990 Guahati 85 (Madan Singh v. Taiyab Hussain) in paras 7 and 8 reads as under:- "7. .... The jurisdiction of the Court under the section is very limited. 19. The learned counsel appearing for the revision petitioner also relied on a decision reported in AIR 1990 Guahati 85 (Madan Singh v. Taiyab Hussain) in paras 7 and 8 reads as under:- "7. .... The jurisdiction of the Court under the section is very limited. It can neither adjudicate on question of title nor can it direct the defendants to remove the structures, if any, erected on the land or permit the plaintiffs to pull down the same. Such a direction will be beyond the scope of powers of the Court under S.6 of the Act. 8. In the instant case, the learned Munsif arrived at a finding of fact that the plaintiff was in actual possession of the land and that the defendant No.1 forcibly dispossessed him from the same, within a period of six months, by constructing pucca wall therein. The plaintiff, therefore, was entitled to get relief under S.6 of the Act and the learned Munsif rightly held so, and directed delivery of khas possession of the suit land to the plaintiff. That part of the order has not been objected to. The objection is against the latter part of the order by which the Court directed demolition of any structure constructed by the defendant No.I on the suit land and also restrained the defendant No.1 by permanent injunction from raising any construction over the suit land. It is contended that this part of the order goes beyond the scope and ambit of S.6 I have considered the objection. I am satisfied that the objection is justified and legally tenable. The learned Munsif did not have the power to direct demolition of the structures constructed by the defendant No.1 on the suit land and to grant permanent injunction. This part of the order is liable to be set aside, which I hereby do. The first part dealing with delivery of possession shall remain unaffected." 20. In view of the finding in the above said decision, it is revealed that in the instant case, the revision petitioner is not entitled to seek relief of mandatory injunction as rightly pointed out by the learned counsel appearing for the respondent. 21. The first part dealing with delivery of possession shall remain unaffected." 20. In view of the finding in the above said decision, it is revealed that in the instant case, the revision petitioner is not entitled to seek relief of mandatory injunction as rightly pointed out by the learned counsel appearing for the respondent. 21. A careful perusal of the entire oral and documentary evidence adduced on both sides revealed that the revision petitioners miserably failed to prove the fact that the entire suit property was in possession of the revision petitioner and only on 03.06.2002, the respondent herein encroached and put up the super-structure in the suit property. Further, as already discussed, the revision petitioners seeking mandatory injunction also and hence, the revision petitioner is not entitled to the above said relief in the suit filed under Section 6 of Specific Relief Act. Further, the revision petitioners suppressed the relationship between the parties and the respondent also having share in the suit property and revision petitioners filed the suit as if the respondent has no right at all in the suit property. Further the suit is filed belatedly without any acceptable reasons. Therefore, the courts below have correctly considered the oral and documentary evidence adduced on both sides and dismissed the suit on the grounds that the respondent is co-owner in the suit property and his possession is lawful possession and not dispossessed on 03.06.2002 as contended by the revision petitioners. 22. Admittedly, the respondent has put up super-structure in the suit property. Further, the revision petitioners have not impleaded the Government i.e., admitted owner of the property and the purchaser of the portion of the property. In the above said circumstances, the revision petitioner only entitled to file regular suit and not entitled to file the suit under Section 6 of the Specific Relief Act. Therefore, the findings of the trial court are not perverse findings or illegal and there is no need to interfere with the above said findings. 23. In the result, the revision petition is dismissed. No order as to costs.