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2014 DIGILAW 314 (MAD)

Ratna Kounder v. Annamalai

2014-02-10

PUSHPA SATHYANARAYANA

body2014
JUDGMENT 1. The First Defendant is the Appellant in a Suit for bare injunction. 2. The case of the Plaintiffs is that the Suit properties are the ancestral properties of Plaintiffs to an extent of 5 Acres in S.No.92/4 in Valayampattu village. The properties originally belonged to one Raman and after his death, they devolved upon his son Kuppan, who is the father of the First Plaintiff, and his wife, viz., mother of the First Plaintiff. As the Plaintiffs are Adi Dravidas, conditional Patta was issued under UDR Scheme. The Plaintiffs’ family has been enjoying the properties continuously for more than 40 years by paying Kist. As the Defendants attempted to restrain the Plaintiffs from cultivating the lands, the Suit was filed for Permanent Injunction. 3. The Suit was resisted by the Defendants on various grounds. The Defendants admitted that the properties originally were owned by the First Plaintiff’s grandfather Raman and after his death, by his son Kuppan. The said Kuppan, on 15.5.1972, sold half of the Suit properties, i.e. 2.5 Acres in favour of the First Defendant under Ex.B1 and sold the remaining half on the same day to the Third Defendant’s mother Palaniammal. After the death o Palaniammal, her daughter, Third Defendant, has been enjoying the properties. It is admitted by the Defendants that in the Sale Deed instead of properties. It is admitted by the Defendants that in the Sale Deed instead of mentioning the S.No.as 92/4, it is written as S.No.92/3B. It is contended by the Defendants that for the land situate on further south of S.No.92/3, Patta was granted to Raman by sub-dividing it as S.No.92/4 which devolved on his son Kuppan. The said land was sold to the First Defendant and his son Kuppan. The said land was sold to the First Defendant and Palaniammal on 15.5.1972 under the impression that sub-division was made and it was wrongly written as S.No.92/3B. However, the Third Defendant and Palaniammal are enjoying the properties according to the Sale Deeds. As the Defendants claimed title to the property, they prayed for dismissal of the Suit. 4. Before the Trial Court, Exs.A1 to A11 were marked on the side of the Plaintiffs and Exs.B1 to B6 were marked on the side of the Defendants. However, the Third Defendant and Palaniammal are enjoying the properties according to the Sale Deeds. As the Defendants claimed title to the property, they prayed for dismissal of the Suit. 4. Before the Trial Court, Exs.A1 to A11 were marked on the side of the Plaintiffs and Exs.B1 to B6 were marked on the side of the Defendants. The First Plaintiff examined himself as PW1 besides examining one Kannan as PW2 while the First Defendants examined himself as DW1 and one Govindan was examined as DW2. 5. The Trial Court/Principal District Munsif, Kallakurichi, on an elaborate consideration of the facts and evidence and considering that the Suit is only filed for bare Injunction, decreed Suit in O.S.No.488 of 2000 vide Judgment dated 21.2.2002 holding that the Plaintiffs are in possession of the Suit properties. Aggrieved by the same, the Defendants had preferred Appeal in A.S.No.109 of 2003 on the file of the learned Subordinate Judge, Kallakurichi, who confirmed the Decree by Judgment dated 30.9.2005 and dismissed the Appeal. Challenging the concurrent finding, the First Defendant has preferred the present Second Appeal. 6. Heard Mr. P. Valliappan, learned Counsel appearing for the Appellant and Mr. V. Sanjeevi, learned Counsel representing the Respondent Nos.1 & 2 and perused the records. 7. At the time of admission of this Second Appeal, the following substantial question of law was framed for consideration: Whether Injunction can be granted as against the true owner? Subsequently, the following additional questions of law were filed by the Appellant giving notice to the Respondents: (i) When the Appellant has categorically denied the title of the Respondents 1 & 2 and set up title in himself and when there is a serious title dispute, is the Suit for a bare Injunction maintainable? (ii) When the Respondents 1 & 2 have claimed title to the Suit property and failed to prove the same, can a Decree for Injunction be granted in their favour? (iii) When it is decisively proved that the Appellant is the owner of the Suit property whether the Respondents 1 & 2 entitled to Decree for Injunction against the true owner? 8. (iii) When it is decisively proved that the Appellant is the owner of the Suit property whether the Respondents 1 & 2 entitled to Decree for Injunction against the true owner? 8. It is admitted by both the parties that the original owner of the properties is one Raman and they devolved on his son Kuppan and the said Kuppan died in the year 1990 and the Plaintiffs contended that they are continuing in possession of the Suit properties. In support of the same, Ex.A1, Patta Passbook in the name of the Plaintiffs, is filed and the Kist Receipts Exs.A1 to A9 are filed by the Plaintiffs. Exs.A9 to A10 are the Kist Receipts, which are dated after filing the Suit and Ex.A11 is the Adangal Extract in which, along with the Plaintiffs, name, the name of one Ganesan is also entered and it is contended by the Plaintiff that the name of said Ganesan is entered by mistake. 9. PW2, one Kanna, who is the adjacent owner of the Suit properties, has deposed in his chief-examination to the following effect: "LANGUAGE" Further, in his cross-examination, he says as follows: "LANGUAGE" 10. However, the Defendants, while denying the title of the Plaintiffs, claimed right to the properties by filing Exs.B1 & B2. They claim to be in possession of the properties for more than 22 years. It is contended by the First Defendant in the Written Statement that the 5 Acres of land which was assigned to Plaintiffs’ grand-father Raman, was subdivided as R.S.No.92/4 and there is no S.No.92/3. S.No.92/3 is a barren land which was used as a pathway and to the south of the said Survey Number, S.No.92/4 lies, for which the Plaintiffs’ grand-father Raman was given Patta. The said S.No.92/4 is what was sold to the Defendants. It is contended by the learned Counsel for the First Defendant/Appellant that in the Sale Deeds-Exs.B1 & B2, the Survey Numbers have been written as S.No.92/3B, whereas there is no such Survey Number at all. So what was written in the document is a mistake and when there is no dispute to the identity of the properties, the Plaintiffs, taking advantage of the entry of the wrong S. No. in the Sale Deed, filed the above Suit to defeat the rights of the Defendants, who are in possession. So what was written in the document is a mistake and when there is no dispute to the identity of the properties, the Plaintiffs, taking advantage of the entry of the wrong S. No. in the Sale Deed, filed the above Suit to defeat the rights of the Defendants, who are in possession. Learned Counsel for the Appellant further contended that as the S. No. is entered wrongly in the Sale Deed, they were unable to obtain Patta in their name. 11. Per contra, learned Counsel appearing for the Respondents 1 & 2 argued that if really the Survey Numbers entered in the Sale Deed were wrong, the Defendants would have taken steps to get the same corrected by getting a Rectification Deed executed. The vendor of the Defendants Kuppan, who sold the property in the year 1972 died only in the year 1990. Therefore, the Plaintiffs contended that the Defendants will not get any title under the Suit properties. 12. To support the case the Appellant/First Defendant, learned Counsel for the Appellant, had pressed into service the decision of the Court in Venkatachalam and another v. Nallathambi, 2013 (4) CTC 45 , wherein following the decision in Ananthula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others, 2008 (6) CTC 237, it was observed that when the Suit for injunction was decreed, the Plaintiff was given liberty to file a comprehensive Suit for declaration and recovery of possession. It would be useful to extract the relevant paragraphs, viz., Paragraphs 12 to 14, in Venkatachalam’s case (cited supra). “Para 12: A mere reading of eye over those precedents would clearly show that in a bare Suit for injunction, the Plaintiff could succeed, provided he could prove that he was in established possession of the Suit property as on the date of filing of the Suit. If the Plaint averments disclose that there was any title dispute, then the Suit would be bad for want of a prayer for declaration of title. Para 13: So far this case is concerned, in the Plaint, no title dispute is found exemplified. However, the Defendants raised serious title dispute, challenging the genuineness of Ex.A1-the Sale Deed dated 21.8.1998. If the Plaint averments disclose that there was any title dispute, then the Suit would be bad for want of a prayer for declaration of title. Para 13: So far this case is concerned, in the Plaint, no title dispute is found exemplified. However, the Defendants raised serious title dispute, challenging the genuineness of Ex.A1-the Sale Deed dated 21.8.1998. Para 14: In fact, the learned Counsel for the Appellants/Defendants would put forth his arguments mainly based on a Clause in Ex.A3-the registered Power Deed to the effect that the deceased Ramasamy authorized Ramakrishnan to execute the Sale Deed only in favour of one Perumal with whom he entered into an Agreement to Sell. But quite antithetical to the said Clause, Ramakrishnan, as per Ex.A2, sold the Suit property in favour of son-in-law of Perumal.” 13. In the present case, the Courts below have considered the Plaint documents, viz., Kist Receipts and decreed the Suit holding that the Defendants were in possession of the property. The First Appellate Court, while deciding the question of title of the Defendants has held in Paragraph 8, as under: “……Even though it is proved by Appellants/Defendants that they have purchased the Suit Survey Number under Exs.B1 & 2, they have not proved that they are in possession and enjoyment of the Suit property on the date of Suit. Moreover, they purchased the property under Exs.B1 & 2 during 1972 but they have not taken any steps to rectify the mistake in the Sale Deeds by means of Rectification Deeds…” 14. From the above finding of the First Appellant Court, it can b seen that the Defendants have established their title. As stated earlier, the Defendants have raised a plea that they are the owners of the properties having purchased the same not from any stranger but from the predecessors-in-title of the Plaintiff’s themselves. Therefore, it should be seen that when the Defendants have disputed they very title of the Plaintiffs and established their title, the Plaintiffs ought to have sought for Declaration of Title. However, the Plaintiffs have not cared to amend the Plaint and continued to prosecute the Suit for bare Injunction. Therefore, it should be seen that when the Defendants have disputed they very title of the Plaintiffs and established their title, the Plaintiffs ought to have sought for Declaration of Title. However, the Plaintiffs have not cared to amend the Plaint and continued to prosecute the Suit for bare Injunction. When the Defendants have categorically proved that they are entitled to the Suit properties by claiming their title under Exs.B1 & B2, which is not seriously disputed by the Plaintiffs by filing a Reply Statement or amending the prayer for Declaration of Title, the general presumption is possession follows title. In this case, when the Plaintiffs’ ancestors have sold the properties to the Defendants, which is also established before the Courts below, the Plaintiffs have not stated so in Plaint about the said sale. When the Plaintiffs are claiming the relief of injunction for the very same properties, which were sold by their predecessor-in-title, at least, he could have made a mention about the said sale in the Plaint or by way of Reply Statement, he could have said so when the Defendants had set up title in themselves. 15. From the foregoing facts and circumstances and going by the finding of the Courts below, it is clear that the Defendants have purchased the properties in their favour in the year 1972. Now, the question arises whether there can be an injunction against a true owner. It is settled principle that there cannot be an injunction against the true owner and though the Plaintiffs have filed the Kist Receipts, they have not established their possession on the date of filing of the Suit. The Adangal Extract under Ex.A11 is in the joint name of the Ganesan and the First Plaintiff and thee is no proper explanation for the same coming forth from the Plaintiffs. When there is a cloud cast upon the title of the Plaintiffs and the Defendants have established title to the same properties in their favour, the Suit for bare injunction cannot be maintained and the same has to fall. In view of the above, the Suit is dismissed holding that it is bad in the absence of a prayer for Declaration of Title. In view of the above, the Suit is dismissed holding that it is bad in the absence of a prayer for Declaration of Title. In the result, the Second Appeal is allowed and the Judgment and Decree of the Trial Court dated 21.2.2002 passed in O.S.No.488 of 2000 as affirmed by the First Appellant Court in A.S.No.109 of 2003 vide Judgment dated 30.9.2005 are set aside. There shall be no order as to costs.