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2014 DIGILAW 534 (MAD)

Kumarasamy v. Ramu Ammal

2014-02-27

PUSHPA SATHYANARAYANA

body2014
JUDGMENT The plaintiff in suit O.S.No.22 of 2001 is the appellant herein and the defendants in the suit are the respondents. 2. The plaintiff filed a suit for permanent injunction against the defendants/respondents restraining them from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties. 3. The case of the plaintiff is that the suit 'A' schedule property is in possession of the plaintiff for the last four years and 'B' schedule and 'C' schedule properties are also in possession of the plaintiff. The plaintiff had agreed to purchase the A,B,C, schedule of the suit properties on 09.12.2000 under Ex.A2 from Gopalakrishnan, shanmugam, Shanti and Uma all children of one Kaliyaperumal. Pursuant to the same, sale was also executed in favour of the plaintiff under Ex.A4, dated 02.03.2001. Under the said Sale deed, the plaintiff has purchased only 21 cents in 'C' schedule. The plaintiff has also purchased the balance of 10 ¾ cents in 'C' schedule property under Ex.A3, dated 04.03.2001 from Abdul Rahim @ Thambi Rowther .The suit property claimed by the plaintiff, an extent of 0.07 cents in 'A' Schedule property is situated in R.S.No.116/7. An extent of 0.03 cents in 'B' Schedule property is situated in R.S.No.116/8 and an extent of 0.31 ¾ cents in 'C' schedule property is situated in R.S.No.116/12. Whileso, as the defendants threatened the plaintiffs to tresspass and interfere with his peaceful possession, the plaintiff has filed the suit. 4. The suit was resisted by the defendant on the ground that in the first item of property situated in R.S.No.116/7, out of 18 cents, the first defendant had purchased 11.5 cents from one Kalyanasundaram and others and in the 'B' schedule property situated in R.S.No.116/8, there are tamarind trees which have been in possession of the second and third defendants' predecessors for more than 50 years and it was said to have given to them as the grant by the villagers and the defendants claim possession of the 'B' schedule property and rights over the tamarind trees. Therefore, the father of the plaintiff's vendor Kaliyaperumal never had any right and the same is not valid. Therefore, the defendants prayed for dismissal of the suit. 5. Before the trial Court, on the side of the plaintiff P.W.1's and 2 were examined and Exs. A1 to A14 were marked. Therefore, the father of the plaintiff's vendor Kaliyaperumal never had any right and the same is not valid. Therefore, the defendants prayed for dismissal of the suit. 5. Before the trial Court, on the side of the plaintiff P.W.1's and 2 were examined and Exs. A1 to A14 were marked. The defendants 1, 2 4 were examined as D.W.'s 1, 2 and 3. No exhibits were marked on behalf of them. 6. The learned District Munsif, Nannilam has dismissed the suit on 31.01.2005. 7. Aggrieved by the same, the plaintiff had filed an appeal in A.S.No.53/2005 on the file of learned sub Court, Thiruvarur and the same was also dismissed on 16.12.2005. 8. The Courts below have concurrently held that the plaintiff is not entitled to the relief prayed. Aggrieved by the concurrent findings of the Courts below, the appellant/plaintiff has filed this Appeal. 9. On 25.04.2006, this Second Appeal was admitted on the following substantial questions of law: "1. Whether the courts below are justified in negativing the prayer for injunction when DW.3 clearly admitted in his evidence that entire suit property has been in possession and enjoyment of the appellant? 2. Whether the courts below are right in dismissing the appellant suit on the ground that he had not produced his parent documents, when he proved his prima facie title by producing registered sale deed in his favour? 3. Whether the courts below the justified in law in ignoring Ex.A12 Chitta produced by the appellant to prove his possession right?" 10. Being the suit for injunction only the question of possession has to be seen. In so far as the 'A' schedule property is concerned, the plaintiff claims that his right is under Ex.A4-sale deed and he claims to be in possession, four years prior to the date of sale agreement under Ex.A2. Whileso, the defendants claims right to the 'A' schedule property situated in R.S.No.116/7, stating that he had purchased 11 ½ cents from one Kalayanasundaram. It is admitted by the defendants that the plaintiff at the most can be entitled to only seven cents of property alleged to have been purchased from them. The defendants/respondents contends further that at any cost, the vendor of the plaintiff has no right to sell the house belonging to the first defendant situated in R.S.No.116/7 in 'A' schedule property. The plaintiff has produced Exs. The defendants/respondents contends further that at any cost, the vendor of the plaintiff has no right to sell the house belonging to the first defendant situated in R.S.No.116/7 in 'A' schedule property. The plaintiff has produced Exs. A2 to A4 and to establish his right and possession of the property Ex.A2 is the sale agreement dated 09.12.2000, in which his vendors have stated that Kaliyaperumal had purchased the property out of his own income. Whereas, in Ex.A4 -sale Deed, dated 02.03.2001, it is stated that his father got it by way of Exchange deed. Therefore, the defendant contended that the title to the plaintiff's vendor Kaliyaperumal is not clear which can be seen from the contradictory recitals under Exs.A2 and A4. If really the said Kaliyaperumal got the property in exchange, the said recitals should find place in Ex.A4-Sale Deed. In the absence of the same, it is alleged that it cannot be presumed that the plaintiff's vendor had marketable title. The plaintiff had produced documents under Exs.A7 to A11 to establish his possession of 'A' schedule property but none of his documents relate to 'A' schedule property belonging to Kaliyaperumal. Therefore, the plaintiffs have not established the title or possession in suit 'A' schedule property. In so far as Survey No.116/8, 3 cents of land which comprises the 'B' schedule property is concerned, the plaintiff has produced Ex.A12-Chitta extract in the name of Kaliyaperumal. The defendants produced Ex.B7 before the appellate Court by filing the interlocutory application in I.A.No.209/2011 to establish that the Chitta extract stands in the name of the Father of the second and the third defendants i.e. Rangaswami Vellar. The three cents in R.S.No.116/8, claimed by the plaintiff is said to be in Ex.B7. But Ex.B7 document is dated subsequent to the suit. The Adangal Extracts filed under Exs.B6, and B8 by the defendants 1 and 2 make it very clear that the 3 cents of land in survey No.116/8 is in the possession of Rangasamy Vellar. Therefore, the plaintiff cannot claim right, title and possession under Exs.A12-Chitta and Ex.A5 and Ex.A6- Tax receipts. 11. The Adangal Extracts filed under Exs.B6, and B8 by the defendants 1 and 2 make it very clear that the 3 cents of land in survey No.116/8 is in the possession of Rangasamy Vellar. Therefore, the plaintiff cannot claim right, title and possession under Exs.A12-Chitta and Ex.A5 and Ex.A6- Tax receipts. 11. The above referred documents in Ex.A5, A6 & A12 make it clear that the 'B' schedule property in S.No.116/8 '3' cents never belonged to Kaliyaperumal and the sale by heirs of Kaliyaperumal in favour of the plaintiffs in Ex.A4 is not valid and no title passed on to from the plaintiff under the said documents. However, it is relevant to advert to the evidence of D.W.2. at this juncture, who has spoken about the possession of the 'B' schedule property. In the cross examination D.W.2 has stated as follows: 12. From the above, it is clear that even the defendants have not produced any document to show that they got the “Tamil” property as service grant. It does not however, automatically enable the plaintiff to get title. As the plaintiff claims title and possession only under Ex.A2 and A4, which as already decided supra did not convey any right to the plaintiff from his vendor. Therefore, the plaintiff has no right in 'B' schedule property and it is held that he has not established his title and possession. 13. D.W.3 who is the fourth defendant has deposed the possession of plaintiff in S.No.116/12, which relates to the suit 'C' schedule property. In his cross examination, he has stated as follows: “Tamil” 14. D.W.1 also in his evidence in the cross examination has admitted the same. “Tamil”" 15. From the evidence of D.W.1, 2 and 3, it is clear that the plaintiff is in possession of the suit 'C' schedule and the defendants also have admitted his possession pursuant to the Sale Deed. So the suit being one for injunction, when the plaintiffs possession is admitted by the defendants there can be no impediment to grant injunction to the plaintiff. It is relevant to refer a decision of a Supreme Court in a case in Anathula Sudhakar verus P. Buchi Reddy (Dead) By Lrs & Others reported in2008 6 CTC 237. The relevant portion of the order is extracted hereunder: "11. It is relevant to refer a decision of a Supreme Court in a case in Anathula Sudhakar verus P. Buchi Reddy (Dead) By Lrs & Others reported in2008 6 CTC 237. The relevant portion of the order is extracted hereunder: "11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 16. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title." 17. Also, from the above preposition if the plaintiff's lawful possession is established he will be entitled for a injunction. In this case, admittedly the defendants who claim right to the suit 'C' schedule property have admitted that the plaintiff had purchased the property from one Kaliyaperumal and from Abdul Rahim under Ex.A3 and that he is in possession of the same. Therefore, when title is not disputed, the relief of permanent injunction can stay on its own. When the physical possession of the suit properties is established by the plaintiff, the plaintiff is entitled to the relief of permanent injunction. In the plaint also, the plaintiff has pleaded as to how he derives title over the suit 'C' schedule properties and he had also let in evidence to that effect. When the physical possession of the suit properties is established by the plaintiff, the plaintiff is entitled to the relief of permanent injunction. In the plaint also, the plaintiff has pleaded as to how he derives title over the suit 'C' schedule properties and he had also let in evidence to that effect. The admission of the defendants over the possession and the purchase of the property by the plaintiff, regarding 'C' schedule property will entitle the plaintiff for the relief of injunction. So far as 'C' schedule property is concerned it can be said to be a simple, straight forward suit for injunction. The plaintiff also proved his possession over suit 'C' schedule property and the defendant also have admitted his purchase and possession. In the said circumstances the plaintiff is entitled to the relief of injunction only with respect to 'C' schedule item of the suit property. In view of the foregoing finding, the questions of law are answered accordingly. In the result, this Second Appeal is allowed in part. The plaintiff/appellant is entitled to decree for injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment only regarding suit 'C' schedule property and in other respect the suit is dismissed. In view of the above, the suit in O.S.No.22 of 2001 on the file of District Munsif – Cum- Judicial Magistrate, Nannilam, is decreed in sofar as 'C' schedule property is concerned and regarding 'A' and 'B' schedule property, the suit is dismissed.