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2014 DIGILAW 352 (MAD)

Kavetti Naicker v. P. Subramani

2014-02-13

M.DURAISWAMY

body2014
JUDGMENT 1. The above Second Appeal rises against the Judgment and Decree in A.S. No.317 of 2012 on the file of the Additional District Court cum Fast Track Court, Namakkal, confirming the Judgment and Decree in O.S. No.392 of 2001 on the file of the Additional District Munsif Court, Namakkal. 2. The Plaintiff is the Appellant, the Respondents 1 & 2 were the Defendants 1 & 3 and the Respondents 3 &4 are the Legal Representatives of the deceased Second Defendant. The Plaintiff filed the Suit in O.S. No.392 of 2001 for restraining the Defendants from interfering with his possession as lessee in respect of the Suit properties. 3. The brief case of the Plaintiff is as follows: According to the Plaintiff, the Suit properties originally belonged to one Thaasi Naidu son of Thalame Naidu. The said Thaasi Naidu settled down in Ceylon and died in Ceylon itself. On 2.3.1954, one Sanjeevi Naidu, who is the son of Thaasi Naidu returned to India and for the purpose of maintaining the properties and for leasing out the properties, executed a registered Power of Attorney in favour of Rangaraj Naidu, who is the father-in-law of the First Defendant. After the execution of the Power of Attorney, the said Sanjeevi Naidu returned to Ceylon. Rangaraj Naidu leased out the Suit properties to the Plaintiff. The Plaintiff is enjoying the Suit properties as a Cultivating Tenant. The Plaintiff is enjoying the Suit properties from the year 1973. The Defendants are not in possession of the property. The lessor Rangaraj Naidu had also died. The First Defendant is the son-in-law of Rangaraj Naidu. The Tenancy Tahsildar had passed an Order in Tenancy Case No.4 of 1984 dated 5.3.1987 recognising the Plaintiff as a Cultivating Tenant. The First Defendant also contested the said case. The Plaintiff has been paying a sum of Rs.300/- per month as annual rent. The Plaintiff has been paying the Land Tax and House Tax in respect of the Suit properties. The Defendants tried to interfere with the possession of the Plaintiff, therefore, the Plaintiff has filed the Suit. 4. The brief case of the First Defendant is as follows: The First Defendant denied the execution of the Power of Attorney in favour of the Plaintiff on 2.3.1954. The Suit properties belonged to his father-in-law, Rangaraj Naidu. The said Rangaraj Naidu leased out the Suit properties to the Plaintiff. 4. The brief case of the First Defendant is as follows: The First Defendant denied the execution of the Power of Attorney in favour of the Plaintiff on 2.3.1954. The Suit properties belonged to his father-in-law, Rangaraj Naidu. The said Rangaraj Naidu leased out the Suit properties to the Plaintiff. Since the said Rangaraj Naidu and his sons had died, the property devolved on Rangaraj Naidu’s daughter Arjuna Devi. The said Arjuna Devi had also died, therefore, the First Defendant and his daughters are the absolute owners of the Suit properties. The Defendant did not interfere with the Plaintiff’s possession of the Suit properties. In these circumstances, the First Defendant prayed for dismissal of the Suit. 5. The brief case of the Defendants 2 & 3 are as follows: According to the Defendants, Rangaraj Naidu did not execute the Power of Attorney dated 2.3.1954 in favour of the Plaintiff. The Defendants also denied that the Plaintiff is in possession and enjoyment of the Suit properties from the year 1973. The Defendants also disputed the Order dated 5.3.1987 alleged to have been passed by the Tenancy Tahsildar. After the death of Sanjeevi Naidu and Rangaraj Naidu, the Power of Attorney executed by Sanjeevi Naidu has become an invalid document. The Plaintiff was not paying any annual rent to the First Defendant. The Defendant also denied the allegation that they tried to interfere with the Plaintiff’s possession. The Defendants 2 & 3 purchased the property from the Legal Heirs of Thaasi Naidu under two different Sale Deeds dated 16.7.2001. The Certificate issued by the Tenancy Tahsildar is not a legally valid document. The Plaintiff has filed the Suit only to prevent the vendors of the Third Defendant from hading over the possession of the property to the Third Defendant. The alleged Order dated 5.3.1987 passed by the Tenancy Tahsildar is not a legally valid document. In these circumstances, the Defendants 2 & 3 prayed for dismissal of the Suit. 6. Before the Trial Court, on the side of the Plaintiff, five Witnesses were examined and 21 Documents, Exs.A1 to A21, were marked and on the side of the Defendants, three Witnesses were examined and 2 Documents Exs.B1 & B2, were marked. 7. The Trial Court, after taking into consideration the oral and documentary evidences of both sides, dismissed the Suit. Before the Trial Court, on the side of the Plaintiff, five Witnesses were examined and 21 Documents, Exs.A1 to A21, were marked and on the side of the Defendants, three Witnesses were examined and 2 Documents Exs.B1 & B2, were marked. 7. The Trial Court, after taking into consideration the oral and documentary evidences of both sides, dismissed the Suit. Aggrieved over the Judgment and Decree of the Trial Court, the Plaintiff preferred an Appeal in A.S. No.317 of 2003 on the file of the Additional District Court cum Fast Track Court, Namakkal and the Lower Appellate court also confirmed the Judgment and Decree of the Trial Court. Aggrieved over the Judgments and Decrees of the Courts below, the Plaintiff has filed the above Second Appeal. 8. Heard Mr. P. Valliappan, the learned Counsel appearing for the Appellant and Mr. I. Abrar Mohamed Abdullah, the learned Counsel appearing for the Second Respondent. 9. At the time of admission of the Second Appeal, the following substantial questions of law arose for consideration: (i) When the Appellant had clearly established his possession as a Cultivating Tenant by virtue of Exs.A1 to A21 viz., Order passed by the Tenancy Record Officer under the provisions of the Tamil Nadu Agricultural lands Record of Tenancy Rights Act, 1969, Kist Receipts, Chitta and Adangal, whether the Courts below are correct in dismissing the Suit for permanent injunction restraining the Respondents from evicting the Appellant except by due process of law? (ii) When even a trespasser is entitled to protect his possession and cannot be dispossessed even by the owner, except by due process of law, whether the Appellant as a Cultivating Tenant is not entitled to protect his possession vide Krishna Ram Mohale (Dead) v. Shobha Venkat Rao, AIR 1989 SC 2097 and AIR 2004 SC 469? 10. The Appellant also raised the following additional substantial questions of law: (i) When the provisions of Order 7, Rule 7 of the Civil Procedure Code enable the Court to give general or other relief, just to the same extent as if it had been asked for, by moulding the relief, are the Courts below justified in law in refusing to grant the relief of permanent injunction restraining dispossession of the Appellant, except by due process of law, overlooking the lawful possession of the Appellant? (ii) When the Appellant is admittedly in settled possession over the Suit property, are the Courts below are correct in law in non-suiting the Appellant by misconstruing Ex.A1, overlooking the fact that the Appellant will be entitled to protect his possession even assuming without admitting that Ex.A1 is not valid and the Lease Agreement is not produced? (iii) Are the Courts below correct in law in dismissing the Suit for injunction simpliciter, particularly when the Appellant had established his lawful possession on the date of the Suit, which is categorically admitted by DWs.1 & 2 and the Respondents have not established better title? (iv) Whether the Appellant, who is in settled possession of the Suit property for over ‘38’ years prior to the filing of the Suit, can be unlawfully and improperly thrown out by the Respondents without recourse to due process of law? 11. The learned Counsel for the Appellant submitted that since the Appellant/Plaintiff had proved his possession over the Suit property, the Courte below ought to have decreed the Suit for permanent injunction. The learned Counsel also submitted that the Appellant’s possession was admitted by the First Defendant in his Written Statement and also by the Third Defendant, who was examined as DW2. Further, the learned Counsel submitted that since the Appellant is in settled possession of the Suit property, he should not be evicted except under due process of law. That apart, the learned Counsel also contended that this Court can mould the relief by restraining the Respondents/Defendants from dispossessing the Appellant/Plaintiff except by due process of law. 12. The learned Counsel for the Appellant, in support of this contentions, relied upon the following Judgments: (i) G. Murugan v. G. Thangaraj, 2011 (1) MWN (Civil) 529. In this Judgment, I have held that a person, who is in settled possession, is entitled to protect his possession by way of permanent injunction. (ii) Krishna Ram Mahale (Dead) by his L.Rs.v. Shobha Venkat Rao, AIR 1989 SC 2097 , wherein the Hon’ble Supreme Court held that where a person is in settled possession of the property, even on the as assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. (iii) R. Pannerselvam v. A. Subramanian and another, 2009 (3) CTC 493 , wherein this Court held that even a trespasser, who is in established possession is entitled to injunction. (iv) Rame Gowda (Dead) by L.Rs. v. M. Varadappa Naidu (Dead) by L.Rs. and another, 2004 (1) SCC 769 , wherein the Hon’ble Supreme Court held as follows: “9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn., AIR 1968 SC 702 : 1968 (2) SCR 455 : 1968 Cri.L.J. 806; Puran Singh v. State of Punjab 1975 (4) SCC 518 : 1975 SCC (Cri.) 608; and Ram Rattan v. State of U.P. 1977 (1) SCC 188 : 1977 SCC (Cri.) 85. The authorities need not be multiplied. In Munshi Ram case, AIR 1968 SC 702 : 1968 (2) SCR 455 : 1968 Cri.L.J. 806, it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh case, 1975 (4) SCC 518 : 1975 SCC (Cri.) 608, the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of “settled possession” (SCC P.527, Para 12): (i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.” 10. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.” 10. In the cases of Munshi Ram, AIR 1968 SC 702 : 1968 (2) SCR 455 : 1968 Cri.L.J. 806; and Puran Singh, 1975 (4) SCC 518 : 1975 SCC (Cri.) 608, the Court has approved the statement of law made in Horam v. R, AIR 1949 All. 564 : 50 Cri.L.J. 868, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.” 13. Countering the submissions made by the learned Counsel for the Appellant, the learned Counsel for the Second Respondent submitted that the Appellant/Plaintiff has not come to the Court with clean hands, therefore, he is not entitled for relief of permanent injunction. That apart, the learned Counsel also submitted that when the Appellant/Plaintiff’s possession is not lawful, he is not entitled for the relief of permanent injunction. 14. The learned Counsel for the Second Respondent, in support of his contention relied upon a Judgment reported in Avudaithangammal v. Subramania Thevar and Murugaiah Thevar with eight others, 1994 (1) LW 82 , wherein this Court held as follows: “When the lease set up by the 1st Respondent/s in these Second Appeals in their favour is not made out, then, it follows that their possession is not lawful and such unlawful possession cannot be preserved or protected. No Court by its order can help a party found to be in wrongful possession against the lawful owner. Under those circumstances, the possession of the 1st Respondent in these Appeals has to be treated as that of trespassers and therefore, the Courts below were in error in having granting an injunction.” 15. In the case on hand, the Plaintiff contended that one Sanjeevi Naidu executed a Power of Attorney in favour of one Rangaraj Naidu on 2.3.1954. Under those circumstances, the possession of the 1st Respondent in these Appeals has to be treated as that of trespassers and therefore, the Courts below were in error in having granting an injunction.” 15. In the case on hand, the Plaintiff contended that one Sanjeevi Naidu executed a Power of Attorney in favour of one Rangaraj Naidu on 2.3.1954. According to the Plaintiff, the said Rangaraj Naidu leased out the Suit properties in favour of the Plaintiff. Further, the Plaintiff contended that he has been in possession and enjoyment of the properties since 1973. The First Defendant is the son-in-law of the said Rangaraj Naidu. It is an admitted case that the wife and brothers-in-law of Rangaraj Naidu had died. The Tahsildar under the Record of Tenancy Act, wherein the Plaintiff was recorded as a Cultivating Tenant. The Plaintiff contended that Ex.A1-Order would establish that he is a Cultivating Tenant in respect of the Suit Ex.A1-Order was passed on 5.3.1987 (i.e.) after the death of Rangaraj Naidu. When Rangaraj Naidu was not alive at the time of filing the Tenancy case before the Tenancy Tahsildar, Ex.A1-Order dated 5.3.1987 passed by the Tenancy Tahsildar is not a legally valid document. The Tenancy case was filed in the year 1984, which was numbered as Tenancy Case No.4 of 1984. The Courts below rightly rejected Ex.A1-Order passed by the Tenancy Tahsildar as an invalid document. 16. That apart, the Plaintiff did not produce the alleged Lease Deed, though he had pleaded that Rangaraj Naidu executed a lease Deed in his favour. Similarly, though the Plaintiff has pleaded that he has been paying the annual tenant of Rs.300/- to the Landlord, he has not produced any evidence to prove that the Plaintiff is a Cultivating Tenant in respect of the Suit properties, the courts below rightly found that the Plaintiff is not a Cultivating Tenant in respect of the Suit properties. I fully agree with the finding of the Courts below. 17. The Third Defendant was examined as DW2. In the chief-examination itself, he has stated that the Plaintiff is in possession of the property and he is cultivating the lands. Similarly, the First Defendant in his Written Statement had admitted that the Plaintiff is in possession of the property. I fully agree with the finding of the Courts below. 17. The Third Defendant was examined as DW2. In the chief-examination itself, he has stated that the Plaintiff is in possession of the property and he is cultivating the lands. Similarly, the First Defendant in his Written Statement had admitted that the Plaintiff is in possession of the property. Though the Plaintiff failed to prove that he is a Cultivating Tenant in respect of the Suit properties, he proved his possession over the Suit property. The Defendants 1 & 3 also admitted the Plaintiff’s possession over the Suit property. As already stated, DW2 stated that the Plaintiff is cultivating the lands and that he is not interfering with his possession. 18. In the Judgment reported in Rame Gowd (Dead) by LRs. v. M. Vardappa Naidu (Dead) by LRs. and another, 2004 (1) SCC 769 , the Hon’ble Supreme Court held that even if the trespasser is in settled possession or effective possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law and he cannot take the law in his own hands and evict the trespasser or interfere with his possession. 19. The proposition laid down by the Three-Judges Bench of the Hon’ble Supreme Court squarely applies to the facts and circumstances of the case on hand. Since the Plaintiff is in possession of the property n question , he could be evicted only under due process of law. The Courts below, though, have rightly found that the Plaintiff is not a Cultivating Tenant in respect of the Suit properties, ought to have protected his possession by way of injunction till he is evicted under due process of law. 20. With regard to the contention raised by the learned Counsel for the Appellant for moulding the reliefs, the said contention is being raised for the first time before this Court. It was not raised before the Courts below at any point of time. Therefore, the said contention is liable to be rejected. 21. Therefore, in view of the proposition laid down in the Judgment reported in Rame Gowd (Dead) by LRs. v. M. Varadappa Naidu (Dead) by LRs. and another, 2004 (1) SCC 769 , I am of the view that the Plaintiff is entitled for permanent injunction till he is evicted under due process of law. 21. Therefore, in view of the proposition laid down in the Judgment reported in Rame Gowd (Dead) by LRs. v. M. Varadappa Naidu (Dead) by LRs. and another, 2004 (1) SCC 769 , I am of the view that the Plaintiff is entitled for permanent injunction till he is evicted under due process of law. The Defendants can evict the Plaintiff under due process of law. 22. In these circumstances, the Additional Substantial Questions of Law Nos. 2, 3 & 4 are decided in favour of the Appellant. The Judgments and Decrees of the Courts below are set aside. The Suit in O.S. No.392 of 2001 on the file of the Additional District Munsif Court, Namakkal is decreed by granting a Decree for permanent injunction, restraining the Defendants from evicting the Plaintiff, except under due process of law. The Second Appeal stands allowed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.