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2018 DIGILAW 2689 (MAD)

Periasamy v. Anjalam

2018-08-30

T.RAVINDRAN

body2018
JUDGMENT : In this second appeal, challenge is made to the judgment and decree dated 21.11.2002 passed in A.S.No.25 of 2002 on the file of the Principal District Court, Salem, reversing the judgment and decree dated 21.12.2001 passed in O.S. No.853 of 1999, on the file of the Principal District Munsif Court, Salem. 2. The second appeal has been admitted on the following substantial questions of law. "1. When a civil suit is pending adjudication between the parties, whether an order made by a revenue authority regarding same suit property pendent title can be looked into by the civil court? 2. When the plaintiff's possession of the suit property as on date of suit is admitted whether a decree for injunction to protect his possession can be negatived?" 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The suit has been laid simplicitor for the relief of permanent injunction. 5. The plaintiff claims the title to the suit properties and asserts to be in the possession of the same on the strength of the sale deed dated 30.08.1996 executed by Thangaraj and alleging that the defendant without any authority, is attempting to interfere with his possession and enjoyment of the same, has come forward with the suit seeking the relief of permanent injunction. 6. Per contra, the defendant has resisted the plaintiff's case by contending that the plaintiff, with the help of the revenue officials seems to have procured some records in respect of the suit properties unlawfully and on the petition preferred by the defendant, the sub division effected in favour of the plaintiff had been cancelled and the revenue records had been entered in the name of the defendant and further according to the defendant, the plaintiff's unlawful occupation had been removed by the revenue officials and hence according to the defendant, the plaintiff has neither the title nor the possession of the suit properties in any manner and hence not entitled to the relief of permanent injunction as prayed for. 7. 7. On a reading of the pleadings set out by the respective parties, it is seen that as per the plaintiff's case the suit properties are lying in two survey numbers, namely, survey No. 198/5C of an extent of 0.19 cents out of 0.07.45 hectares and Survey No.198/4C1 of an extent of 0.20 cents on the eastern side out of 0.14.5 hectares. The abovesaid properties, according to the plaintiff, had been acquired under Ex.A1 sale deed from Thangaraj and his minor sons and the abovesaid case of the plaintiff has been strongly repudiated by the defendant. Despite the abovesaid resistance of the defendant, the plaintiff has not placed any acceptable and reliable material to hold safely that his vendors had acquired title to the suit properties as projected by him. When it is found that as per Ex.A1, the plaintiff's vendor is said to have acquired the suit property by way of a sale deed, nothing prevented the plaintiff from producing the said document to sustain his vendor's title to the suit properties and thereby establish his title to the suit properties by way of Ex.A1. When the plaintiff has failed to establish the title of his vendors and when the plaintiff's vendor examined as PW2 is unable to sustain his claim of title to the suit properties by adducing acceptable evidence, it is found that the first appellate court is justified in non suiting the plaintiff. 8. The plaintiff appears to have relied upon the decree obtained by his vendor in O.S. No. 1547 of 1983 marked as Ex.A7. The abovesaid suit had been laid by the plaintiff's vendor Thangaraj against Natesan and three others. Natesan is found to be the defendant's predecessor in title. As rightly determined by the first appellate court, in particular, the abovesaid suit does not relate to 20 cents of land involved in the present suit lying in Survey Number 198/4C1 and accordingly it is seen that the decree passed in the abovesaid suit cannot be held to be conferring the title on Thangaraj in respect of the subject matter of the present suit. In addition to that, the plaintiff appears to have placed reliance upon the revenue documents to sustain his claim of possession and enjoyment of the suit properties. In addition to that, the plaintiff appears to have placed reliance upon the revenue documents to sustain his claim of possession and enjoyment of the suit properties. However, as rightly determined by the first appellate court, the chitta and other revenue records projected by the plaintiff seems to have been brought about based upon the decree passed in O.S. No.1547 of 1983. However, when it is seen from the evidence of the village administrative officer examined as DW3 and Ex.B4 plan that Thangaraj is entitiled to only S.No.198/4B, furthermore, when it is seen that Survey Nos. 198/4A and 198/4B are lying on the northern side of Survey No.198/4C, however, PW2 Thangaraj's claim that his property in Survey No.198/4C is lying on the northern side of the suit property, it is clear that PW1 is not sure as to where his property actually lies. Accordingly, it is seen that the suit properties had not been properly given in the plaint and thus it is found the plaintiff having come forward with the suit should give clear and correct description of the suit properties so as to enable the court to grant the relief prayed for, provided the plaintiff establishes his legal claim of title to the suit properties as described in the plaint. 9. In so far as the present case is concerned, the revenue records projected by the plaintiff to sustain his claim of title to the suit properties had come to be cancelled at the instance of the defendant, as could be seen from the documents marked as Exs.B4 and B5 and accordingly, it is found that the plaintiff is unable to place any document worth acceptance to show his claim of title, possession and enjoyment of the suit properties. Particularly, when the revenue records relied upon by the plaintiff had been subsequently set aside by the higher authorities as could be seen from Exs.B4 and B5, the trial court seems to have ignored Exs.B4 and B5 on the footing that the same had been brought about without issuance notice to the plaintiff. Particularly, when the revenue records relied upon by the plaintiff had been subsequently set aside by the higher authorities as could be seen from Exs.B4 and B5, the trial court seems to have ignored Exs.B4 and B5 on the footing that the same had been brought about without issuance notice to the plaintiff. However, when the plaintiff has failed to establish that the revenue records projected by her had come to be issued after issuing notice to the defendants and on the other hand the said revenue records had subsequently been set aside by cancellation of the sub division effected in favour of the plaintiff and when it is seen that it is only the defendant who is in the possession and enjoyment of the disputed properties as could be seen from the entries in the adangal marked as Ex.B9 and B10, the plaintiff having failed to establish, at the foremost his vendor's title to the suit properties and his possession and enjoyment of suit properties and on the other hand when it is found that it is only the defendant who is in the possession and enjoyment of the suit properties and accordingly the revenue records also issued in favour of the plaintiff had been set aside by the higher authories, the first appellate court is found to be justified in non suiting the plaintiff by setting aside the judgment and decree of the trial court. 10. In addition to that, as seen from the defence version projected in the written statement, the defendant has disputed the plaintiff's claim of title to the suit properties tooth and nail and also disputed the plaintiff's vendors' title to the suit properties. In such view of the matter, the plaintiff should have endeavoured to seek the relief of declaration of title in respect of the suit properties for sustaining her suit. The plaintiff has laid the suit simplicitor for the relief of permanent injunction. Accordingly, as rightly put forth by the defendant's counsel, considering the principles of law outlined in the Apex Court decision reported in AIR 2008 SC 2033 (Anathula Sudhakar Vs. P. Buchi Reddy (dead) by Legal heirs and others) the plaintiff's failure to seek the relief of declaration of title to the suit properties, despite the challenge thrown to the same by the defendant, as above noted, on the said ground also the plaintiff's suit has to fail. 11. P. Buchi Reddy (dead) by Legal heirs and others) the plaintiff's failure to seek the relief of declaration of title to the suit properties, despite the challenge thrown to the same by the defendant, as above noted, on the said ground also the plaintiff's suit has to fail. 11. In this second appeal, a contention has been raised that pending civil action, the order of the revenue authorizes as regards the classification of the suit properties cannot be sustained and therefore the first appellate court has erred in relying upon the same for non suiting the plaintiff. However, when as above discussed, the defendant has impugned the title of the plaintiff as well as her vendor's title and when the plaintiff has failed to establish her verdor's title to the suit property and also her vendors' possession and enjoyment of the same and the revenue records projected by the plaintiff had been subsequently set aside and dehors the same, when the description of the suit properties is found to be misleading and not correctly brought about, the first appellate court is justified in refusing the grant of relief of permanent injunction in favour of the plaintiff in view of the abovesaid reasonings. In such view of the matter, I do not find any valid cause to interefere with the judgment and decree of the first appellate court. The substantial questions of law formulated in this second appeal are accordingly answered against the plaintiff and in favour of the defendant. 12. Resultantly, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.