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2018 DIGILAW 4211 (MAD)

K. Seeni v. Banumathi

2018-11-13

T.RAVINDRAN

body2018
JUDGMENT : 1. In this second appeal, challenge is made to the Judgment and Decree, dated 25.02.2016, passed in A.S.No.47 of 2013, on the file of the Subordinate Court, Devakottai, modifying the Judgment and Decree, dated 28.02.2014, passed in O.S.No.168 of 2013, on the file of the Principal District Munsif-cum-Judicial Magistrate, Karaikudi. 2. For the sake of convenience, the parties are referred to as per the rankings in the Trial Court. 3. Briefly stated, the suit has been filed by the plaintiffs seeking for the relief of permanent injunction on the footing that the suit property belongs to the fifth defendant and that the plaintiffs are the tenants under the fifth defendant and the plaintiffs have been misled in paying the amount to the defendants 1 to 4 in a sum of Rs.30,000/- at the first instance and in a sum of Rs.20,000/- later on the misrepresentation that the defendants 1 to 4 are the owners of the suit property and they would arrange to effect the sale in respect of the suit property to the plaintiffs and accordingly, based on the above said arrangement, when the plaintiffs endeavoured to put up a construction in the suit property, it is stated that the defendants 1 to 4 unlawfully cut the trees in the suit property and also prevented the plaintiffs from putting up the construction and accordingly, it is stated that the plaintiffs, after lodging the police complaint against the defendants, preferred the suit against them for appropriate relief. 4. The plaintiffs' suit has been resisted by the defendants on the footing that the allegations that the plaintiffs had paid Rs.30,000/- and Rs.20,000/- to them for the purpose of effecting sale arrangement in respect of the suit property are false and it is stated that the defendants have not cut any trees in the suit property as alleged in the plaint and the plaintiffs instead of obtaining any sale deed from the fifth defendant, who is the real owner of the suit property, is attempting to seek the relief of permanent injunction, without any entitlement and furthermore, the plaintiffs' suit, without the relief of declaration and laid simpliciter for the relief of permanent injunction, is not maintainable and accordingly, prayed for the dismissal of the plaintiffs' suit. 5. 5. In support of the plaintiffs' case, P.Ws.1 and 2 were examined and Exs.A1 to A9 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B6 were marked. 6. On a consideration of the oral and documentary adduced by the respective parties and the submissions made, the Trial Court was pleased to grant the relief of permanent injunction in favour of the plaintiffs against the defendants 1 to 4. The First Appellate Court, while confirming the Judgment and Decree of the Trial Court, modified the same to the extent that the plaintiffs are entitled to the relief of permanent injunction as against the defendants 1 to 4 till they are evicted from the suit property by the fifth defendant. Challenging the same, the defendants 1 to 4 have preferred the present second appeal. 7. The plaintiffs have claimed the relief of permanent injunction against the defendants 1 to 4, in particular, on the footing that they are the tenants in respect of the suit property under the fifth defendant and by way of misrepresentation, they had been persuaded to part with certain amounts in favour of the defendants 1 to 4 on the notion that they would effect the sale arrangement in respect of the suit property and accordingly, when the plaintiffs endeavoured to put up a construction in the suit property, inasmuch as the defendants 1 to 4 interfered with their possession and enjoyment, according to the plaintiffs, they had been necessitated to lay the suit for the relief of permanent injunction. 8. The defendants would resist the plaintiffs' suit by denying the plaint averments and would contend that the plaintiffs, instead of obtaining the sale deed in respect of the suit property from the fifth defendant, has laid the suit, without any foundation and it is stated that the plaintiffs are not in the possession and enjoyment of the suit property and the suit laid by the plaintiffs, without seeking the relief of declaration, is not maintainable and accordingly, prayed for the dismissal of the plaintiffs' suit. 9. 9. Considering the materials placed on record, it is evident that neither the plaintiffs nor the defendants 1 to 4 have claimed title to the suit property as such and on the other hand, the case of the plaintiffs is that they are in the occupation of the suit property as the tenants under the fifth defendant. Even the defendants 1 to 4, in the written statement, have not put forth any averments with regard to the claim of the title to the suit property and also not disputed the title of the fifth defendant in respect of the suit property. As rightly determined by the Courts below, based on the oral evidence adduced by the plaintiffs as well as the rent receipts marked as Exs.A1 and A2 issued by the fifth defendant in favour of the plaintiffs, the same would go to show in toto that it is only the plaintiffs, who are in the possession and enjoyment of the suit property as the tenants under the fifth defendant. The defendants have not placed any material worth acceptance evidencing their claim of title, possession and enjoyment of the suit property. Though in the written statement, they have not pleaded any claim of title to the suit property as such, however, during the course of evidence an endeavour has been made by the defendants 1 to 4 as if they also have title to the suit property. However, with reference to the same, there is no material projected on the part of the defendants 1 to 4. Furthermore, the documents projected by the defendants would also not be sufficient to hold that they are in the possession and enjoyment of the suit property. 10. No doubt, the plaintiffs had averred that the defendants 1 to 4 have made some arrangements for effecting the sale transaction in respect of the suit property. The case of the plaintiffs with reference to the same is on a misconception, as it is stated by them that on the representation by the defendants 1 to 4 that they are the owners of the suit property, on that presumption it is pleaded by the plaintiffs that they had parted with certain amounts to the defendants 1 to 4 for effecting the sale arrangement. However, when the defendants 1 to 4 have no title to the suit property and when the title of the fifth defendant to the suit property is not in dispute as such, the above said case of the plaintiffs would not merit acceptance as such. 11. Admittedly, as determined by the Trial Court as well as the First Appellate Court based on Exs.A1 and A2, it is found that it is only the plaintiffs, who are in the possession and enjoyment of the suit property and the defendants have not established that they have title, possession and enjoyment of the suit property as such. It is thus found that the defendants have no better title than the plaintiffs in respect of the suit property. In such view of the matter, the defendants 1 to 4 are not entitled to disturb the plaintiffs' possession and enjoyment of the suit property as determined by the Courts below. 12. As regards the arguments putforth by the defendants 1 to 4 that the plaintiffs should have sought for the relief of declaration and sans the same, the plaintiffs' suit is not maintainable, it is to be noted that the plaintiffs, as such, have not claimed any title to the suit property. On the other hand, they have sought for the relief of permanent injunction based on the footing that they are in the possession and enjoyment of the suit property as the tenants under the fifth defendant. Equally, the defendants have not putforth any rival claim of title in respect of the suit property. In such view of the matter, there is no need on the part of the plaintiffs to seek the relief of declaration as such in respect of the suit property. 13. In the light of the above said factors, it is found that the Courts below have rightly and properly assessed the materials placed on record, both oral and documentary and found that it is only the plaintiffs, who are in the possession and enjoyment of the suit property as the tenants under the fifth defendant and that the defendants 1 to 4 have no title, possession and enjoyment of the suit property whatsoever and accordingly, determined that the defendants 1 to 4 are not entitled to disturb the plaintiffs' possession and enjoyment of the suit property. The Judgments and Decrees of the Courts below, thus, do not warrant any interference. 14. The learned counsel for the defendants 1 to 4 placed reliance upon the decisions in the case of Govindaraja vs. Meenatchi Sundaram, reported in 2007 (5) CTC 859 and Nasib Kaur vs. Col.Surat Singh (Deceased), reported in 2013 (3) CTC 550. The principles of law outlined in the above cited decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 15. In the light of the above said discussions, it is seen that no substantial question of law is involved in this second appeal. Resultantly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.