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2014 DIGILAW 636 (MAD)

Raja v. Paramanathan

2014-03-12

P.R.SHIVAKUMAR

body2014
Judgment 1. The defendants in the original suit O.S.No.4/1996 on the file of Principal District Munsif, Namakkal, are the appellants. The plaintiffs in the said original suit are the respondents in the second appeal. The respondents herein filed the original suit O.S.No.4/1996 initially for the relief of permanent injunction contending that the suit property, namely an extent of 2.35 Ares comprised in Survey No.349/1 of Mohanur village and two thatched houses bearing door Nos.160/C1 and 160/C2 absolutely belonged to them and the appellants/defendants were attempting to interfere with their peaceful possession and enjoyment of the same. Subsequently, alleging dispossession during the pendency of the suit, the respondents/plaintiffs amended the plaint for a declaration of their title in respect of the said property and for recovery of possession of the same from the appellants herein/defendants. 2. The suit was resisted by the appellants herein/defendants contending that the plaintiffs, on the basis of wrong classification of survey numbers in the re-survey, falsely claimed right to the houses belonging to the appellants/defendants, which bear door Nos.160/C3 and 160/C4. It was the further contention of the appellants/defendants that the said land over which the above said houses claimed to be that of the appellants stand, was originally comprised in old Survey No.351/6 and that in the re-survey, it was included in new Survey No.349/1. Besides the said contention, the appellants/defendants also contended that the cause of action originally stated in the plaint and the cause of action stated in the amended plaint were invented for the purpose of the case and that hence the suit must be dismissed. 3. The learned trial judge, after framing necessary issues, conducted a trial, at the conclusion of which, pronounced a judgment on 29.10.1999 dismissing the suit filed by the respondents herein/plaintiffs holding that the respondents herein/plaintiffs had not proved either their title or their possession in respect of the suit property. On appeal, the learned Subordinate Judge, Namakkal (lower appellate Judge), reversed the said finding, set aside the decree passed by the trial court and decreed the suit as prayed for in the amended plaint, namely by granting the relief of declaration and recovery of possession. The said decree of the lower appellate court dated 24.01.2005, is challenged in the present second appeal on various grounds set out in the memorandum of grounds of second appeal. 4. The said decree of the lower appellate court dated 24.01.2005, is challenged in the present second appeal on various grounds set out in the memorandum of grounds of second appeal. 4. The second appeal came to be admitted identifying the two questions to be the substantial questions of law involved in the second appeal. The questions thus formulated by this court at the time of admission, are, as follows: "1. Whether the learned Subordinate Judge is justified in including the reliefs of declaration of title and possession along with the relief of injunction which are mutually contradictory and granting the said reliefs? 2. Whether the learned Subordinate Judge erred in law in picking holes in defendants' case and decreeing the suit without appreciating the plea and evidence of the plaintiffs?" The question framed as the first substantial question of law has not been happily worded and it needs to be recast to give a proper meaning. Thus the first substantial question of law is recast as follows: "Whether the learned Subordinate Judge is justified in granting reliefs of declaration of title and recovery of possession along with the relief of injunction which are mutually contradictory?" 5. The arguments advanced by Ms. G. Sumitra, learned counsel appearing for Mr. R. Subramanian, learned counsel on record for the appellants and by Mr. C. Jagadish, learned counsel for the respondents are heard. The materials available on record are also perused. 6. The respondents herein/plaintiffs filed the suit originally for the relief of bare injunction on the premise that they were in possession and enjoyment of the suit property and the appellants herein/defendants were making attempts to disturb their peaceful possession and enjoyment. During the pendency of the suit, the respondents herein/plaintiff came forward with an application seeking permission to amend the plaint based on their contention that the appellants/defendants had taken forcible possession by trespassing into the suit property. Accordingly, the plaint was amended to incorporate the prayer for the reliefs of declaration of title and for recovery of possession. Even while making such an amendment, the respondents herein/plaintiffs had not chosen to strike off or leave out the original prayer for permanent injunction not to disturb their possession. However, the learned trial judge construed the amendment to be one for substitution of the prayer for declaration and recovery of possession in the place of the earlier prayer for permanent injunction. However, the learned trial judge construed the amendment to be one for substitution of the prayer for declaration and recovery of possession in the place of the earlier prayer for permanent injunction. Accordingly, it came to a conclusion that the respondents herein/plaintiffs were not able to prove their title and also their contention that they were dispossessed during the pendency of the suit, as a result of which, the learned trial judge passed the decree dismissing the suit. 7. The said decree of the trial court was upset by the learned Subordinate Judge, Namakkal (lower appellate judge) reversing the finding recorded by the trial court as to the proof of title and also the alleged dispossession during the pendency of the suit. The learned lower appellate judge did not consider the effect of retention of the prayer for injunction even after the amendment of the plaint praying for the relief of declaration and recovery of possession on the ground of the plaintiffs having been dispossessed. However, the mere presence of such a prayer will not be a ground on which the respondents/plaintiffs can be non-suited for the reliefs sought for based on the alleged title and dispossession. Hence the first substantial question of law needs to be answered accordingly against the appellants/defendants. 8. So far as the second substantial question of law is concerned, as rightly contended by the learned counsel for the appellants, the learned Subordinate Judge did not consider the probabilities of the case on re-appreciation of evidence in proper perspective and on the other hand, as pointed out by the learned counsel for the appellant, the weaknesses and loopholes in the case of the defendants have been picked up and pointed out for holding that the respondents herein/plaintiffs were entitled to the relief of declaration and recovery of possession. In effect, the learned Subordinate Judge seems to have wrongly cast the burden on the defendants to prove their case rather than verifying whether the plaintiffs were able to prove their case. In this regard, reference can be made to the following aspects to support the above view expressed by this court. Though Ex.A1 came to be issued as a rough patta, which was subject to confirmation, cancellation or modification after receiving objections, the learned Subordinate Judge took it as a regular patta in respect of a natham land granted in favour of the plaintiffs. Though Ex.A1 came to be issued as a rough patta, which was subject to confirmation, cancellation or modification after receiving objections, the learned Subordinate Judge took it as a regular patta in respect of a natham land granted in favour of the plaintiffs. The subsequent proceedings before the Revenue Divisional Officer resulted in nullifying the rough patta and grant of patta in the names of four persons and two out of them are the appellants herein/defendants. Survey No.349/1 itself has been sub-divided into five subdivisions with distinct marks as 1A, 1B, 1C, 1D and 1E. Sub division 1E refers to lane. For the other sub divisions, patta had been issued as follows: Survey No. Pattadhar 349/1A Balakrishnan 349/1B Pachaiammal 349/1C Kutti (second appellant) 349/1D Raja (first appellant) 349/1E Lane 9. Though an appeal was filed against the order effecting such sub divisions and an order of stay has been obtained from the District Revenue Officer, nothing has been mentioned about the sub divisions made and the challenge made to such sub divisions. When four persons were granted patta on their staking claim to portions of Survey No.349/1, though such an order came to be stayed, the respondents/plaintiffs cannot try to establish their title without making them parties to the suit. 10. Furthermore, when there is a dispute regarding the correlation of old survey number and new survey number and the very identity of the property itself is in doubt, without resolving those problems, the learned Subordinate Judge, Namakkal has chosen to give a disposal of the case by holding that the plaintiffs were entitled to the decree as prayed for, namely a decree for declaration of title and recovery of possession, mainly because the appellants/defendants were not able to prove their title in respect of the property, which are admittedly in their possession. 11. Even this court made an attempt to find out a solution regarding the identification of the property, but such effort ended in a failure. As this court is of the view that the materials available are not enough to render a finding as to the identity of the suit property and also the correlation of old and new survey numbers, it shall not be prudent to pick holes in the defendants' case and grant the relief in favour of the plaintiffs solely relying on the weaknesses in the case of the defendants. As the learned Subordinate Judge has chosen to do it, this court does have no hesitation in holding that the second substantial question of law is to be answered in favour of the appellants/defendants. 12. In view of the answer given to the second substantial question of law, this court comes to the conclusion that that part of the decree passed by the lower appellate court granting the relief of declaration and injunction in favour of the respondents herein/plaintiffs after setting aside the decree passed by the trial court, by which the suit had been dismissed, has got to be interfered with and set aside. However, the decision made by the lower appellate court in the first part of the decree setting aside the decree passed by the trial court deserves to be confirmed. In the result, the second appeal is allowed in part. The decree dated 24.01.2005 passed by the lower appellate court is modified by setting aside that part of the decree granting the reliefs of declaration and recovery of possession in favour of the plaintiffs and at the same time confirming the decree setting aside the decree passed by the trial court, by which the suit had been dismissed. The resultant position shall be remand of the suit to the trial court for fresh disposal after giving opportunity to the plaintiffs to make necessary application for impleading any necessary party, who has been left out and also after giving opportunity to both parties to lead additional evidence for the identification of the property and correlation of the old and new survey numbers. The learned trial judge shall make an endeavour to dispose of the suit, as early as possible, preferably within six months from the date of receipt of records. There shall be no order as to cost.