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2017 DIGILAW 1887 (MAD)

R. Petchimuthu v. P. Samikannu

2017-07-05

TEEKAA RAMAN

body2017
JUDGMENT : The defeated defendant is the appellant herein. 2. The plaintiff filed the suit, in O.S.No.218 of 2002, before the learned Principal District Munsif, Kumbakonam, seeking the relief of permanent injunction. 3. After contest, the learned Principal District Munsif, Kumbakonam, by Judgment and Decree, dated 21.07.2004, dismissed the suit. 4. Aggrieved by the Judgment and Decree passed by the learned Principal District Munsif, Kumbakonam, the plaintiff preferred an appeal, in A.S.No.133 of 2004, before the learned Principal Sub Judge, Kumbakonam. 5. After contest, the learned Principal Sub Judge, Kumbakonam, by Judgment and Decree, dated 24.10.2005, allowed the appeal, set aside the Judgment and Decree passed by the learned Trial Judge and decreed the suit. 6. Challenging the correctness of the Judgment and Decree passed by the learned Principal Sub Judge, Kumbakonam, the defeated defendant has preferred the present second appeal. 7. The brief averments of the plaint that are necessary to decide this appeal are as follows: The suit property was initially owned by Udayarpalayam Zameen Family. The Manager of the said Zameen Family, namely, Sivagurunathan, entered into a Sale Agreement, dated 11.02.1991, with the plaintiff's father for the sale of the suit property. The plaintiff's father has paid major portion of the sale consideration to the said Sivagurunathan. Accordingly, as per the said Sale Agreement, the possession of the suit property has been given to the plaintiff's father. The defendant has no right over the suit property. Now, it seems that the sister of the said Sivagurunathan has purchased the suit property from one Backianathan. The said document is a bogus document. As per the said Sale Agreement, the possession of the plaintiff over the suit property has to be protected under Section 53(a) of the Transfer of Property Act. Hence, the suit. 8. The brief averments of the written statement filed by the defendant that are necessary to decide this appeal are as follows: It is an admitted fact that the suit property was originally belonged to Udayarpalayam Zameen. But, the family members had partitioned the joint family properties on 30.10.1982 itself and by which, the suit property was allotted to one Backianathan, who sold the said property to the defendant. The said Backianathan enjoyed the suit property till 14.08.1990 and came forward to sell the suit property to the defendant for the total sale consideration of Rs.22,000/-. But, the family members had partitioned the joint family properties on 30.10.1982 itself and by which, the suit property was allotted to one Backianathan, who sold the said property to the defendant. The said Backianathan enjoyed the suit property till 14.08.1990 and came forward to sell the suit property to the defendant for the total sale consideration of Rs.22,000/-. Accordingly, after receiving the entire sale consideration, Backianathan handed over the possession of the suit property to the defendant on 14.08.1990 itself and since then the suit property is in possession and enjoyment of the defendant. The suit property is not in possession of Sivagurunathan after the partition took place on 30.10.1982 and the suit property was not allotted to the share of Sivagurunathan. Therefore, the contention of the plaintiff that Sivagurunathan sold the suit property in favour of the plaintiff's father in the capacity of Manager of the family is false. It is false to state the suit property is in possession of the plaintiff till date. The plaintiff is not entitled to the relief under Section 53(3) of the Transfer of Property Act. Hence, the suit is liable to be dismissed. 9. Based upon the above pleadings, the Trial Court had framed three issues for consideration. 10. On the side of the plaintiff, P.Ws.1 to 5 were examined and Ex.A1 to A20 were marked and on the defendant side, D.Ws.1 and 2 were examined and Exs.B1 to B5 were marked, besides Exs.X1 and X2. 11. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiff has not proved his possession over the suit property and he has not impleaded Sivagurunathan and Backianathan as parties to the suit and hence dismissed the suit. 12. As stated supra, aggrieved by the Judgment and Decree of the learned Principal District Munsif, Kumbakonam, the plaintiff preferred first appeal in A.S.No.133 of 2004, before the learned Principal Sub Judge, Kumbakonam, on re-appreciation of the entire oral and documentary evidence, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and decreed the suit. 13. As stated supra, aggrieved by the Judgment and Decree of the learned Principal District Munsif, Kumbakonam, the plaintiff preferred first appeal in A.S.No.133 of 2004, before the learned Principal Sub Judge, Kumbakonam, on re-appreciation of the entire oral and documentary evidence, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and decreed the suit. 13. At the time of admission, the following substantial questions of law were framed for consideration: (i) When admittedly the defendant is the absolute owner of the property, is the learned Principal Subordinate Judge right in granting a decree of injunction in favour of the plaintiff, which is against the settled law that no injunction can be granted in favour of the true owner? and (ii) Is the learned Principal Subordinate Judge right in granting a decree for injunction when the plaintiff can be treated as only a trespasser into the suit property without any right and when the defendant is the absolute owner of the suit property? 14. The respondent/plaintiff filed a suit for bar injunction, restraining the appellant/defendant from interfering with the suit property in Survey No.38, land measuring one acre (100 cent) in R.S.No.6/3B in Nadunkolli Village, Manambadi Vattam, Thiruvidaimaruthur Taluk. 15. The plaint proceeds on the basis that the plaintiff's father Ponnan had entered into an agreement on sale with one Sivagurunathan under Exhibit A12, sale agreement dated 11.02.1991 and paid substantial amount of the sale consideration and as a part performance of the agreement of the sale, possession was handed over by the said land owner Sivagurunathan and thereby, the plaintiff's father Ponnan was let in possession and after his death, he is in possession. Further, the defendant who is a neighboring land owner now claims that he had purchased the suit property from Bakiyanathan and hence, prayed for Permanent Injunction. 16. Further, the defendant who is a neighboring land owner now claims that he had purchased the suit property from Bakiyanathan and hence, prayed for Permanent Injunction. 16. Per contra, the appellant/defendant filed written statement denying the various averments inter-alia contended that the alleged Sivagurunathan is not the owner of the suit property and while his brother Bakiyanathan is the true owner of the suit property by virtue of the partition deed effected between the family members under Exhibit B2 dated 30.10.1982 and patta and chitta stands in the name of the said Bakiyanathan and he had entered into an agreement of sale under Exhibit B3 dated 14.08.1990, as a part performance of the sale he was let in who possession and he is in continuous possession and enjoyment of the suit property and subsequently he is also purchased the suit property under Exhibit B4 sale deed on 24.12.2001 and hence prayed for dismissal of the suit. 17. The trial Court has formulated the three issues that (i) Whether the plaintiff is entitled for permanent injunction? (ii) whether the suit is barred by for non-joinder necessary parties? and (iii) to what other relief 18. The plaintiff examined himself as P.W.1 to prove the pleadings and also marked Exhibits A1 to A20 and the defendant son was examined as D.W.1 and marked as Exhibits B1 to B5. 19. On a consideration of both oral and documentary evidence, the trial Court has come to the conclusion that the plaintiff has failed to prove his pleadings and exhibits filed by the plaintiff does not indicated the factum of possession by the plaintiff and accordingly dismissed the suit. 20. Aggrieved against the said dismissal, the plaintiff preferred an appeal before the Sub-Court, Kumbakonam and on re-appreciation of evidence, the learned Subordiante Judge, Kumbakonam has come to the conclusion that the defendant has not proved his title. While, the kist receipts have demonstrates that land tax was paid by the plaintiff and accordingly allowed the appeal and decreed the suit and hence the Second Appeal. 21. The above Second Appeal has been admitted on the above substantial question of law. The learned counsel for the appellant/defendant made a submission on the lines of the substantial question of law and the learned counsel for the respondent/plaintiff made submission in favour of the judgment of the lower Appellate Court. 22. 21. The above Second Appeal has been admitted on the above substantial question of law. The learned counsel for the appellant/defendant made a submission on the lines of the substantial question of law and the learned counsel for the respondent/plaintiff made submission in favour of the judgment of the lower Appellate Court. 22. The learned counsel for the appellant mainly emphasized on the point that the defendant is the absolute owner of the property having purchased the same under Exhibit B4 from the lawful owner of the Bakiyanathan and he is in possession of the suit property by virtue of the sale agreement under Ex.B3 and he is in possession of the property and relied on Exhibit B1 and revenue records. 23. Per contra, Mr.S.Siva Thilakar, learned counsel for the respondent/plaintiff contended that, the respondent/plaintiff is in ?settled possession" of the property and even on assumption that he had no right to remind in the property, he cannot be dispossessed by the owner of the property except by due process of law and the plaintiff being a person in possession of the property, he can claim to be remine in possession against everyone including the rightful owner and the defendant may be a rightful owner, but cannot evict by force, he has only by due process of law. 24. After hearing the rival contention, before the proceeding to deal with the substantial question of law, it is stated that it is trite in law, a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. "Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)". The Supreme Court of India in Puran Singh case, (1975) 4 SCC 518 , 527, Para 12, has laid down tests which may be adopted as a working rule for determining the attributes of "settled possession". The Supreme Court of India in Puran Singh case, (1975) 4 SCC 518 , 527, Para 12, has laid down tests which may be adopted as a working rule for determining the attributes of "settled possession". Further, 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 in India persons are not permitted to take forcible possession; they must obtain such a possession as they are entitled to through a Court. The person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. The meaning and tests for "settled possession" has been elaborately discussed in judgment of the supreme Court reported in 2004 volume (1) SCC 769 that 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; not is it a ritualistic formula which can be confined in a straitjacket. 25. Now let us examine whether the plaintiff is in “settled possession" as projected by him. 26. To buttress pleadings, the plaintiff have examined himself as P.W.1 and also examined revenue witness P.W.3 V.A.O and also P.W.5 who was projected as the owner of the property and also marked Exhibit A1 and A2 Patta passbook and I.D. Card. 27. On perusal of Exhibit A1 and A2, it is seen that Exhibit A1 does not related to the suit property. While, Exhibit A2 was neither sealed nor as any official signature and Exhibit A3 to Exhibit A10 are kist receipts set to have been paid by the plaintiff, in the name of Bakiyanathan, but not in the name of Sivagurunathan as claimed by the plaintiff. 28. On perusal of these documents goes to show that the patta stands in the name of Bakiyanathan (not in the name of the Sivagurunathan) as claimed by the plaintiff and kist has been remitted by the plaintiff. 28. On perusal of these documents goes to show that the patta stands in the name of Bakiyanathan (not in the name of the Sivagurunathan) as claimed by the plaintiff and kist has been remitted by the plaintiff. Merely because, the plaintiff has paid the kist that will not give raise to inference of the fact that he is in possession of the property especially on the factual matrix of the case that the plaintiff have come forward with specific plea that one Sivagurunathan (brother of the Bakiyanathan) is the owner of the property through whom entered the land and obtained possession as part performance of agreement of sale. 29. To substantiate the pleadings, the respondent/plaintiff besides himself also examined Palanisamy, VAO as P.W.3 and marked Ex.A.13-VAO Certificate. During the cross-examination, P.W.3-Palanisamy/VAO has categorically stated that Ex.A.13 was issued without reference to the revenue records and as per the revenue records, Ex.B.1 is valid and correct which is patta pass book standing in the name of the appellant/defendant. 30. It remains to be stated that respondent/plaintiff claims to be in possession on two grounds; viz., (a) the respondent/plaintiff entered into the possession of the suit land by virtue of Ex.A.12-Sale Agreement dated 11.02.1991 from the alleged owner Sivagurunathan (b) continues to be in possession, for which, he has marked Ex.A.13-VAO Certificate and to corroborate the same, he examined P.W.3-Palanisamy, VAO. 31. On close scanning and scrutiny of Ex.A.12, the contents of the document are to the effect that as a part performance of the sale agreement, the father of the respondent/plaintiff was let in possession. In the cross examination of P.W.1, when he was confronted with the question regarding the difference in the colour of the ink of the above said recital with that of the other parts of the document and the size of the letters were also differs from the size of the other letters in the remaining part of the document, further the recital relating to handing over possession to the respondent/plaintiff's father is found to be "young" as compared to the other part of the document, the P.W.1 has conveniently evaded to answer the questions, assumes significance. It remains to be stated that on a bare perusal of the last sentence relating to "letting in possession" of the respondent/plaintiff's father, on a naked eye, it is seen that the relevant recital is only subsequent insertion, besides there is a correction in the survey number 100. The respondent/plaintiff has neither examined the attestor of the alleged document nor scribe to dispel the doubt created by the appellant/defendant. The cross-examination of P.W.1 assumes greater significance on the light of the fact that the alleged land owner as described under Ex.A.12 is not the true owner in view of the registered Partition Deed-Ex.B.2 dated 30.10.1982 wherein Backiyanathan alone is shown to be the absolute owner of the property namely, the vendor of the appellant/defendant. 32. Thus, on a combined reading of the answer elicited from the cross-examination of P.W.1 and the non-examination of the attestor or scribe of Ex.A.12, alleged Sale Agreement, which is the sheet anchor of the respondent/plaintiff's case, the trial Court has come to the conclusion that Ex.A.12 does not pass the test of legal scrutiny is found to be the correct and for the reasons best known, the Lower Appellate Court has not even considered this vital issue. 33. The next limb regarding the respondent/plaintiff's case of "being in possession" is anchored on the kist receipts marked in Exs.A.3, A.4, A.5, A.6, A.7, A.8 and A.9. On perusal of the same, it is seen that the patta stands in the name of the vendor of the appellant/defendant viz., Backiyanathan and not the Sivagurunathan as claimed by the respondent/plaintiff also goes against the respondent/plaintiff. It is not the case of the respondent/plaintiff that he was let in possession by Backiyanathan. It is the specific case of the respondent/plaintiff that he was let in possession by Sivagurunathan and he has remitted the kist is also found to be in conflict with the documents produced under the above said exhibits. 34. It is not the case of the respondent/plaintiff that he was let in possession by Backiyanathan. It is the specific case of the respondent/plaintiff that he was let in possession by Sivagurunathan and he has remitted the kist is also found to be in conflict with the documents produced under the above said exhibits. 34. On perusal of Exs.A.14 to A.19, which are all affidavit and petition filed in an earlier proceedings, some of them are relating to different survey number than the suit survey number and no copies of the final order alleged to have been passed in the above petition are filed before this Court, to elicit the fact that the respondent/plaintiff is in possession of the property, at the risk of the petition, for the shake of clarity, the respondent/plaintiff has come forward with the specific case that he was let in possession by the land owner Sivagurunathan under Ex.A.12- Sale Agreement i.e., as a part performance of the Sale Agreement he was let into possession. Admittedly, Sivagurunathan is not the owner of the property and it is only Backiyanathan as spoken to by the revenue witness P.W.3- Palanisamy, as evident from Ex.B.1. Besides Exs.A.3 to A.10, which clearly demonstrate that patta stands in the name of Backiyanathan and not in the name of Sivagurunathan as claimed by the respondent/plaintiff. Even under Ex.A.12, as noted supra, there was insertion with regard to the vital clause namely, letting in possession to the respondent/plaintiff which is found to be subsequent insertion in a different ink with different colour and even the survey number has been corrected. 35. On this factual background, the trial Court has disbelieved the case of the respondent/plaintiff that he is continuously in possession of the property on the date of the application and such a finding is well considered and well merited and without even any documents, the Lower Appellate Court, on an erroneous appreciation, much less without any appreciation on these aspects, reversed the judgment and decree granted by the trial Court which is liable to be vacated. 36. 36. On perusal of Ex.B.2-Partition Deed effected between Sivagurunathan and Backiyanathan and other family members, it is seen that the suit property was allotted to the share of Backiyanathan, the vendor of the appellant/defendant and thereafter, it was purchased by the appellant/defendant herein and patta stands in the name of the appellant/defendant as could be seen under Ex.B.1. Issuance of Ex.B.1-Patta in favour of appellant/defendant is admitted by revenue witness P.W.3-Palanisamy and hence, the appellant/defendant has successfully demonstrated that he is the owner of the suit property and the respondent/plaintiff, who claims to be let in possession by Sivagurunathan has no title for entering into an agreement of sale of a land for which he has no title. Further, Ex.A.12 cannot be looked into in view of the discrepancy as noted and discussed above and besides in view of the correction in the survey number, which is evident on a bare eye, this Court is of the considered view that Ex.A.12 has to be eschewed for want of legal sanctity and hence, the first limb of the argument of the respondent/plaintiff that he let in possession and he acquired possession of the suit property by virtue of Ex.A.12 has no legs to stand. Besides, the respondent/plaintiff has come forward with the specific case that after 11.02.1991, he was continuous in possession of the suit property and paid the kist on behalf of the Sivagurunathan, as discussed supra, in all the kist receipts, the patta stands in the name of Backiyanathan with whom the respondent/plaintiff has not entered into any agreement of sale or never handed over possession to the respondent/plaintiff. For the reasons recorded in the preceding paragraph, this Court found that Exs.A.14 to A.19 cannot advance the case of the alleged respondent/plaintiff's possession in the suit property. 37. For the reasons recorded in the preceding paragraph, this Court found that Exs.A.14 to A.19 cannot advance the case of the alleged respondent/plaintiff's possession in the suit property. 37. It is trite in law that the respondent/plaintiff has to plead and prove his possession, in the preceding paragraphs, this Court has held that the respondent/plaintiff has miserably failed to prove his pleadings regarding his possession on both aspects viz., entering into the possession and existing possession and therefore, this Court finds that the contention of the learned counsel for the respondent/plaintiff that he is in "settled possession" cannot be uphold for the simple reason that the criteria for "settled possession" as enunciated by the Hon'ble Supreme Court in the case of Puran Sing V. State of Punjab [ (1975) 4 SCC 518 and as explained in the case of Rame Gowda (Dead) by LRs Vs. M.Varadappa Naidu (Dead) by LRs and another [ (2004) 1 SCC 769 ] that the respondent/plaintiff was never in effective possession and his possession was undisturbed without any attempt and concealment by a trespasser. Since the respondent/plaintiff has not satisfied the test for the settled possession as enunciated by the Hon'ble Supreme Court, this Court is of the considered view that the respondent/plaintiff cannot be termed to be in 'settled possession of the suit property' within the meaning and scope as explained in the above decision much less 'lawful possession' as claimed by him in the witness box. 38. On consideration of the entire evidence of P.W.1 and the answer elicited in the cross-examination and specific answer given by the revenue witness P.W.3-VAO that Ex.A.13 is issued without reference to the revenue records, there is no iota of evidence available on record to prove the respondent/plaintiff's possession. When that being the case, this Court is of the considered view that the learned Principal Subordinate Judge, Kumbakonam, in granting decree in favour of the respondent/plaintiff against the true owner, in the absence of any legally acceptable evidence of his possession much less settled possession and hence, the first substantial question of law is answered in affirmative in favour of the appellant/defendant. 39. 39. On close scanning and scrutiny of the documentary evidence of the respondent/plaintiff under Exs.A.3 to A.17 coupled with the answer elicited from the revenue witness P.W.3-V.A.O. and evasive reply of P.W.1 regarding the insertion of possession clause in Ex.A.13 and correction in the survey number of the suit property in the said document, this Court is of the considered view that by giving a tampered witnesses and documents, the respondent/plaintiff wanted to create an impression upon the Court as if he is in possession and cultivating the land and such an impression he wanted to built up by wrongfully and inserting the possessionary clause in Ex.B.3-suit agreement alleged to have been obtained from the person, who is not even owner of the property and by making correction in the schedule of the property and producing a document without the signature of the Government officials nor the seal, this Court is of the considered view that the respondent/plaintiff has not come to the Court with clean hands. He has placed documentary evidence which are tampered for the purpose of this case and hence, in equity, a person, who seeks the relief of injunction, having come to the Court with unclean hands is not entitled for any relief. The Lower Appellate Court, on my considered view, has totally misguided by placing the burden of proof on the appellant/defendant in a case of suit for perpetual injunction is unknown to law. It is settled proposition of law that when the respondent/plaintiff claims that he is in possession and seeks the relief of protection by way of perpetual injunction, the burden is upon the respondent/plaintiff to plead and prove that he is in possession of the property in lawful manner and prove that he is continues to be in possession till the date of plaint, which in the instant case, he foisted. 40. 40. In the preceding paragraph, this Court has found that the respondent/plaintiff is not in lawful possession of the suit property and the document produced by him are either tampered in respect of survey number and possession or related to some other property rather than the suit survey number coupled with the revenue evidence of P.W.3-Palanisamy/VAO along with the evidence of Ex.B.1-patta pass book in favour of the appellant/defendant's vendor, this Court comes to the conclusion that the Lower Appellate Court/Principal Subordinate Judge, Kumbakonam, is erred, in granting injunction when the respondent/plaintiff is not in lawful possession of the property against the true and absolute owner of the property and accordingly, substantial question of law No.2 is answered in affirmative in favour of the appellant/defendant against the respondent/plaintiff. 41. The offshoot of the discussion in the above paragraphs goes to the irresistible conclusion that the finding of the trial Court is sustainable in law while the reason assigned by the Lower Appellate Court/Principal Subordinate Judge, Kumbakonam, is unsustainable in law and liable to be vacated. Accordingly, the finding of the Lower Appellate Court that the respondent/plaintiff is in lawful and settled possession of the suit property and entitled for injunction is hereby vacated and judgment and decree of the Lower Appellate Court is set aside and judgment and decree passed by the trial Court/Principal District Munsif, Kumbakonam, in O.S.No.218 of 2002 is restored. Consequently, the suit filed by the respondent/plaintiff in O.S.No.218 of 2002 on the file of the Principal District Munsif, Kumbakonam, shall stand dismissed. 42. In the result, the Second Appeal is allowed and judgment and decree of the Lower Appellate Court/Principal Subordinate Judge, Kumbakonam, dated 24.10.2005 made in A.S.No.133 of 2004, is set aside and judgment and decree passed by the trial Court/Principal District Munsif, Kumbakonam, in O.S.No.218 of 2002 is restored. Consequently, the suit filed by the respondent/plaintiff in O.S.No.218 of 2002 on the file of the Principal District Munsif, Kumbakonam, shall stand dismissed. However, there shall be no order as to costs.