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2015 DIGILAW 2257 (MAD)

Murugesan v. J. Kannayiram

2015-06-19

R.MALA

body2015
Judgment :- 1. This second appeal arises out of the Judgment and Decree dated 23.12.1987 in A.S.No.123 of 1986 on the file of the learned District Judge, Chengapattu. 2. The averments made in the plaint are as follows:- The plaintiffs are brothers. They own suit property and running their respective shops in the same for the past twenty years. The defendant is residing at back portion of the suit property and hence the defendant has given trouble to the plaintiffs often. In fact, the defendant's possession is permissive. The suit property was ordered to be assigned on 28.06.1968 in favour of the plaintiffs. The plaintiffs have been running the business and paying the tax to the Municipality. The defendant has no right to the suit property and with a view to encroach upon the place in occupation of the plaintiffs, he has been indulging in all sorts of illegal activities and police complaint was also given against him. Since the defendant is threatening to forcibly remove the shops of the plaintiffs and encroach the suit property, the plaintiff filed a suit in O.S.No.317 of 1981 for permanent injunction restraining the defendant, his men and agents from in any manner interfering with plaintiffs possession and enjoying of the suit property. 3. The gist and essence of written statement filed by the defendant is as follows: The allegations contained in the plaint are denied as untrue and untenable. It is submitted by the defendant that the plaintiffs are not running their shops in the suit property for the past twenty years and the possession of the plaintiffs are permissive. The land in question belong to Kannikoil which is in front of the defendant's house who is looking after the temple. Originally the suit property was with Sadayandi Naicker and after his death, it was with Kanniappan. It is further submitted that there is no assignment in favour of the plaintiffs and the suit property is not that of the Municipality. It is a private property of the Kanniamman temple. The plaintiffs possession in the front with bunk shops is not lawful. They offered amounts for the maintenance of the temple, for their occupation. It is further submitted that there is no assignment in favour of the plaintiffs and the suit property is not that of the Municipality. It is a private property of the Kanniamman temple. The plaintiffs possession in the front with bunk shops is not lawful. They offered amounts for the maintenance of the temple, for their occupation. It is also submitted that the defendant will take steps along with Kanniappan and Kanniammal, widow of Sadayandi Naicker to remove the occupiers and they are the hereditary trustees of the Kanni temple and they alone have got title and interest over the suit property. The defendants further submitted that there is no cause of action for the suit and hence, they prayed for dismissal of the suit. 4. The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1, D.W.1 to D.W.4 and Exs.A1 to A22 and Exs.B1 to B17, dismissed the suit. Aggrieved against the judgment and decree of the trial court, the plaintiffs preferred an appeal in A.S.No.123 of 1986 on the file of the District Court, Chengalpattu. 5. The learned First Appellate Court has considered the argument advanced on either side and framed necessary point for consideration and reversed the Judgment and Decree passed by the Trial Court and allowed the appeal. Against the Decree and Judgment of the first Appellate Court, the present second appeal has been preferred by the defendant. 6. At the time of admission of the above second appeal, the following substantial questions of law were framed for consideration. "1. Whether the Appellate Judge appreciated the case in a proper perspective as per facts of the case? 2. Whether the finding arrived at by the Appellate Judge is based upon mis-reading of the recitals of Exts.A-1 and A-2 and photographs Exts.B-1 and B-2 and the misreading of the evidence of P.W.1 and D.Ws.1 to 4? 3. Whether the Appellate Judge has properly framed all the issues? 4. Whether the Appellate Court has properly looked into the documents filed while framing and deciding the issues? 5. Whether the Appellate Court has properly followed the procedures laid down in law of injunction under Order 39 Rules 1 and 2 in granting the decree? 6. 3. Whether the Appellate Judge has properly framed all the issues? 4. Whether the Appellate Court has properly looked into the documents filed while framing and deciding the issues? 5. Whether the Appellate Court has properly followed the procedures laid down in law of injunction under Order 39 Rules 1 and 2 in granting the decree? 6. Whether the Appellate Court failed to see th reasonings given by the Trial Judge in paragraph 6 of the Judgment in O.S.No.317 of 1981? 7. Whether the Appellate Court has failed to see that the respondents have no cause of action to file the suit? 8. Whether the learned Judge failed to see that the respondents herein are under the permissive occupation of the suit property (Kannikoil lands) under the appellant? 9. Whether the decree and judgment of the Court below is based on merely surmises and conjunctures?" 7. Challenging the judgment and decree of the First Appellate Court, the learned counsel for the appellant/defendant would submit that the Trial Court has rightly dismissed the suit since the suit is filed for injunction on the basis of Ex.A1, B Memo that S.No.371/2 stands in the name of the Temple. He would further submitted that the First Appellate Court has failed to consider that the suit itself is not maintainable without prayer for declaration of title and no injunction can be granted against the co-owners since there is no cause of action for filing the suit. He would also submitted that the First Appellate Court has not framed proper point for consideration. Hence, he prayed for setting aside the judgment and decree passed by the First Appellate Court. 8. Refuting the same, the learned counsel appearing for the respondents would submit that it is true that the point for consideration framed by the First Appellate Court is not correct. But whereas the appellant himself in his written statement has stated that the respondents are in permissive possession and enjoyment of the suit property. Unless the permissive possession of the respondents/plaintiffs is revoked, they cannot be entitled to any relief. Till then, their permissive possession has been protected by Law. So, the First appellate Court has rightly granted injunction. Further, there is no need for declaration of title and the cause of action arose only when the appellant/defendant attempted to interfere with the possession of the plaintiffs. Till then, their permissive possession has been protected by Law. So, the First appellate Court has rightly granted injunction. Further, there is no need for declaration of title and the cause of action arose only when the appellant/defendant attempted to interfere with the possession of the plaintiffs. Hence, the First Appellate Court has considered all the aspects in proper perspective and came to the correct conclusion and prayed for dismissal of the appeal. 9. Considered the rival submissions made on both sides and also perused the typed set of papers. 10. The respondents herein as plaintiffs filed a suit for bare injunction on the basis of Ex.A1, B memo issued in their favour. Further, the respondents/plaintiffs have put up shops and they are in possession of the suit property and assignment has been given in their favour which was evidenced by Ex.A1. So, from that date onwards the respondents/plaintiffs are in possession and their possession has been recognised by the Government by recovering Penal Kist on the basis of B Memo which was evidenced by Exs.A3 to A5 and A22 and property tax receipt in the name of the first plaintiff has been marked as Exs.A6 to A10. Since the plaintiffs are running shops in the suit property, licence has been issued to the first plaintiff which was evidenced by Ex.A7; the receipt for the amount paid for licence fees has been marked as Exs.A8 to A10; Ex.A11 is the Form B issued for renewal of licence and the property tax receipt in the name of the second plaintiff has been marked as Exs.A12 to A21. 11. It is well settled dictum of the Hon'ble Apex Court that if there is any cloud on the title, suit for bare injunction is not maintainable and they ought to have sought for relief of declaration and injunction. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondents reported in AIR 2008 SC 2033 (Anathula Sudhakar v. P.Buchi Reddy (dead) by legal heirs and others), wherein it was specifically held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. Para-17 is extracted hereunder: “17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” But in the case in hand, it was specifically mentioned that the respondents/plaintiffs are in permissive possession. In such circumstances, it is not necessary to decide the title to the property. But, however the respondents herein filed the B memo which shows that the property is only a Government poromboke and authorising the possession of the respondents/plaintiffs, B memo has been issued and penal kist revenue has been recovered. 12. Originally the suit property belongs to one Sadayandi Naicker and he had four sons, namely, Jaganatha Naicker, Natarajan, Ponnappa Naicker and Vedachalam. The plaintiffs/respondents 1 and 2 are the sons of Jaganatha Naicker and the appellant/defendant is the son of Vedhachalam. One Subramaniam has sold the property in Court auction. But admittedly there is no pleading. So, it is the well settled dictum that without pleading no evidence can be looked into even though the appellant has deposed the same. So, as per Ex.A1 the respondents 1 and 2/plaintiffs possession has been recognized by the Government and B memo has been issued and in pursuance of that, they put up shops. The plaintiffs have also filed the license granted in their favour to run the shops and also paying the kist and property tax. So, as per Ex.A1 the respondents 1 and 2/plaintiffs possession has been recognized by the Government and B memo has been issued and in pursuance of that, they put up shops. The plaintiffs have also filed the license granted in their favour to run the shops and also paying the kist and property tax. The appellant/defendant in the written statement has not disputing that they are not in possession but whereas he has stated that the suit property does not belong Municipality and it is a private property of Kannikoil. The possession of the plaintiffs are permissive and the land in question belongs to Kannianman Temple which is in front of defendant's house who is looking after the temple. Admittedly the defendant has stated that the plaintiffs were in permissive possession of the suit property. In such circumstances, the argument advanced by the learned counsel appearing for the appellant that the respondents ought to have filed a suit for declaration of title and injunction and not for bare injunction does not merit acceptance. So, I am of the view that the suit is simplicited for permanent injunction on the basis of the possession is maintainable since the appellant himself has admitted that the respondents are in permissive possession and recognizing their possession B memo has been issued by the Government. 13. Per contra, the appellant/defendant has not filed any document to show that he is in possession of the suit property. The appellant herein filed photographs Exs.B1 and B2 and also property tax receipt. But admittedly the appellant has not filed any document to show that the suit property is a private property but whereas as per plaint averments and Ex.A1, the suit property is only a Government poromboke and the respondents/plaintiffs were in possession and enjoyment of the suit property and as per the defence, they were in permissive possession and so, their possession cannot be disturbed except under due process of law by the true owner. Further, the learned counsel appearing for the appellant/defendant would submit that injunction cannot be granted against the co-owners. But the argument advanced by the learned counsel appearing for the appellant/defendant does not hold good because the appellant has not prove that he is the true owner of the property. Further, the learned counsel appearing for the appellant/defendant would submit that injunction cannot be granted against the co-owners. But the argument advanced by the learned counsel appearing for the appellant/defendant does not hold good because the appellant has not prove that he is the true owner of the property. Furthermore, the appellant himself has submitted that the plaintiffs are in permissive possession of the suit property and till they were evicted under due process of law, the appellant/defendant is not entitled to take the law in his own courts and evict the respondents. Hence, I am of the view that the First Appellate Court has considered all the aspects in proper perspective and came to the correct conclusion. Even though the First Appellate Court has framed irrelevant point for consideration, but the finding of the Appellate Court is correct. Considering the possession of the respondents/plaintiffs, that too, legal possession, injunction has been granted. Hence, the decree and judgment passed by the First Appellate Court does not warrant any interference and the same is hereby confirmed. The second appeal is liable to be dismissed and it is hereby dismissed. 14. In fine, Second appeal is dismissed. The decree and judgment passed by the First Appellate Court is hereby confirmed. There is no order as to costs.