Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 553 (MAD)

R. Praveen v. Ignitious Rajkumar

2021-02-18

T.RAVINDRAN

body2021
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the decree and the judgment dated 27.12.2007 rendered in A.S.No.307 of 2007 on the file of the Additional District Judge (Fast Track Court - V), Chennai, confirming the decree and the judgment dated 01.03.2006 rendered in O.S.No.6004 of 2003 on the file of the XVIII Assistant Judge, City Civil Court at Chennai). 1. Challenge in this second appeal is made to the judgment and decree dated 27.12.2007 passed in A.S. No.307/07 on the file of the Additional District Judge (FTC), Chennai, confirming the judgment and decree dated 01.03.2006 passed in O.S.No.6004/03 on the file of the XVIII Assistant Judge, City Civil Court, Chennai. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial court. 3. The defendant in O.S. No.6004 of 2003 is the appellant in the Second Appeal. 4. Suit for permanent injunction. 5. The case of the plaintiff, in brief, is that he is the owner of the premises, namely, the building and the ground bearing No.91/06, Khonnur High Road, Ayyanavaram, Chennai 600 023, ever since the same had been settled in his favour by his deaceased father Thomas Samson by way of the settlement deed dated 31.03.2001 and the abovesaid property had been purchased by his father by way of the sale deed dated 26.09.1996 from the defendant and his mother and sister. The suit property originally belonged to one Gopinath, the father of the defendant and after his demise, the defendant along with his mother and sister, being the legal heirs of the property belonging to Gopinath measuring about an extent of 3025 sq. ft. and sold out a part of it, namely 575 sq. ft. i.e. 25x23 sq. ft. along with building to the plaintiff's father under the sale deed dated 26.09.1996. The plaintiff's father, after making some additions and alterations, put up a xerox shop along with PCO and STD booth in the suit premises and after his demise, the plaintiff took over the same and running the business. While the plaintiff's father was alive, the defendant along with his mother and sister, attempted to interfere with his possession and enjoyment of the plaintiff's property on the southern side and thereby endeavoured to encroach the vacant land admeasuring about 100 sq. While the plaintiff's father was alive, the defendant along with his mother and sister, attempted to interfere with his possession and enjoyment of the plaintiff's property on the southern side and thereby endeavoured to encroach the vacant land admeasuring about 100 sq. ft by removing and demolishing the fence put up by the plaintiff's father and consequently, the plaintiff's father laid a suit against them in O.S.No.7507/1998 and obtained an ad-interim injunction against them. Pending the abovesaid suit, the plaintiff's father having died on 01.04.2001, the abovesaid suit had been dismissed as abated on 29.07.2003. Thereafter, the defendant deliberately, on 19.11.2003, along with his men attempted to trespass and remove the fence put up on the southern side of the property and tried to encroach the vacant land of 100 sq. ft. and also to achieve his end, approached the police by using his influence and the police also attempted to intervene in the matter and hence the plaintiff was necessitated to issue the legal notice to the inspector of police, K2, Ayyanavaram Police Station not to interfere in the civil dispute and hence, according to the plaintiff, he has been necessitated to institute the suit against the defendant for the relief of permanent injunction. 6. The defendant resisted the plaintiff's suit contending that the present suit laid by the plaintiff is the second suit for the same relief, which had been already claimed in O.S.No.7507/1998 and therefore, the present suit is barred by Res judicata and admitted that the plaintiff's father had purchased 575 sq. ft. by way of the sale deed dated 26.09.1996, however, it is put forth that there was no vacant land on the southern side of the property conveyed and the vacant land was located only in the northern side of the plaintiff's property. However, the plaintiff's father suddenly broke the southern side wall of his shop and for making way for an entry into the defendant's property and erected the thatched fence without any authority, which forced the defendant to lodge a police complaint against him and immediately, the plaintiff's father rushed to the civil court and filed a suit and after prolonging the suit without any conclusion, after his death, the said suit had come to be dismissed on 29.07.2003. Excepting to the extent conveyed under the sale deed dated 26.09.1996, neither the plaintiff's father nor the plaintiff have any right over the other property. The allegation put forth by the plaintiff that the defendant attempted to interfere with the plaintiff's property by encroaching into 100 sq. ft. is baseless, which is put forth only for the purpose of the case. Similar was the cause of action put forth by the plaintiff's father while laying O.S.No.7507 of 1998. The defendant has always been in the possession and enjoyment of the property and therefore, the claim of the plaintiff that he is in the possession and enjoyment of the disputed property i.e. an extent of 100 sq. ft. is without any basis and therefore, the plaintiff has no legal right to sustain the suit and the plaintiff's suit is without any cause of action and liable to be dismissed. 7. In support of the plaintiff's case P.W.1 was examined and Exs.A1 to A7 were marked. On the side of the defendant, D.W.1 was examined and Ex.B1 was marked. 8. On an appreciation of the materials placed on record, both oral and documentary, and the submissions put forth by the respective parties, the courts below were pleased to grant the relief of permanent injunction sought for by the plaintiff. Challenging the same, the present second appeal has been preferred by the defendant. 9. At the time of the admission of the second appeal, the following substantial questions of law were formulated for consideration. 1) "Whether the courts below have omitted to consider that the property sold under Ex.A1 sale deed does not include a vacant land of 100 sq. ft as alleged by the plaintiff and the judgment is vitiated? 2) Whether the courts below have failed to appreciate that the plaintiff has not identified the property conveyed under Ex.A1 sale deed to him and the finding is vitiated?" 10. The suit has been laid by the plaintiff simplicitor for the relief of permanent injunction. The plaintiff claims title to the property by way of the settlement deed dated 31.03.2001 executed by his father Thomas Samson which has been marked as Ex.A2. The suit has been laid by the plaintiff simplicitor for the relief of permanent injunction. The plaintiff claims title to the property by way of the settlement deed dated 31.03.2001 executed by his father Thomas Samson which has been marked as Ex.A2. It is found that the property settled under Ex.A2 had been acquired by the plaintiff's father by way of the sale deed dated 26.09.1996 and that the plaintiff's father had purchased the said property from the the defendant, his mother and his sister and the copy of the abovesaid sale deed has been marked as Ex.A1. The abovesaid facts are not in dispute. It is thus found that the plaintiff would be entitled to the property covered under Exs.A2 and Ex.A1 and considering the pleas put forth by the respective parties and the submissions made in the matter, it is found that the defendant, as such, has no quarrel with the property belonging to the plaintiff by virtue of Exs. A2 and A1. On a perusal of Ex.A1 sale deed it is found that, by way of the same, the plaintiff's father has acquired the property, namely, the building and the ground bearing No.91/6, Konnur High Road, Ayanavaram, Chennai 600 023, admeasuring 575 square feet situated within the Jurisdiction of the Corporation of Chennai, Block No.22, Pimash No.974/8 and 974/19 part, T.S.No.65 part measuring 25 x 23 square feet i.e. 575 square feet within the specific boundaries i.e. bounded on the north by Konnur High road, south by Arjunan's house and site, east by property belonging to Jayagopal and west by the house site belonging to Rajeswari. This is how the property acquired by the plaintiff's father from the defendant, his mother and sister under Ex.A1 has been described. From Ex.A2 settlement deed executed by the plaintiff's father in favour of the plaintiff it is seen that the abovesaid property within the specific boundaries to an extent of 575 sq. ft., alone had come to be settled. As above pointed out, the defendant has not questioned the truth and validity of Exs.A1 and A2 deeds. Thus, it is seen that the plaintiff would be entitled to the property as described in Exs.A2 and A1 and the defendant is also not questioning the possession and enjoyment of the property qua the property as described in Exs.A2 and A1. 11. Thus, it is seen that the plaintiff would be entitled to the property as described in Exs.A2 and A1 and the defendant is also not questioning the possession and enjoyment of the property qua the property as described in Exs.A2 and A1. 11. Considering the pleas put forth by the plaintiff in the present suit as well as the earlier suit filed by the plaintiff's father in O.S. No.7507/98, it is seen that both the plaintiff's father as well as the plaintiff are claiming the right of title, possession and enjoyment of the property only covered under Exs.A2 and A1. When as above pointed out, the property acquired by way of Exs.A2 and A1 are found to be described lying within specific boundaries, in such view of the matter, as rightly contended by the defendant's counsel, the plaintiff should have endeavoured to describe the suit property by giving the clear description of the same, particularly, the boundaries within which the same is located and on the other hand, it is found that though the plaintiff claims title to the property by way of Exs.A2 and A1 and despite the properties described in Exs.A2 and A1 are shown to be surrounded by the specific boundaries, however, while describing the same in the plaint in the present suit as well as in the suit laid by the plaintiff's father in O.S.No.7505/98, the property has not been described by showing the boundaries. The plaintiff is claiming the relief in respect of the immovable property. Order 7 Rule 3 of CPC reads as follows: "R.3. The plaintiff is claiming the relief in respect of the immovable property. Order 7 Rule 3 of CPC reads as follows: "R.3. Where the subject matter of the suit is immovable property - Where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers." From the above provisions of law, when it is noted that where the subject matter of the suit is an immovable property and when the property could be identified by boundaries correctly or by numbers in a public record of settlement or survey or by way of the sketch or map showing the location of the property, accordingly, the immovable property i.e. the subject matter of the suit should contain the description by boundaries or numbers in the record of settlement or survey for the purpose of identifying it and therefore, Order 7 Rule 3 of the CPC mandates the suitor, namely, the plaintiff to specify such boundaries or numbers while describing the immovable property in the plaint. 12. In this connection, I had an occasion to consider the import of Order 7 Rule 3 CPC and held that where the subject matter of the suit is the immovable property, the plaintiff should give the correct and identifiable description of the suit property for deciding the issues involved between the parties and without the correct description of the property with boundaries etc., it would not be possible to sort out the main issue whether the suit property is in the possession and enjoyment of the plaintiff as projected and the position of law has been outlined in the decision reported in 2017-3-L.W 547 (Davood Ali & others v. John Basha & others) and the same is extracted below: C.P.C., Order 7 rule 3, description of property, need for, injunction, grant of, scope Injunction/Correct description of property, stating of, necessity Plaintiffs have not given identifiable description of suit properties for deciding issued involved. Plaintiffs have failed to establish their dejure possession and enjoyment of suit properties in its entirety as described in the plaint. Plaintiffs have failed to establish their dejure possession and enjoyment of suit properties in its entirety as described in the plaint. Plaintiffs have not sought the relief of declaration - plaintiffs seek permanent injunction based on a particular set of facts and when same denied, duty is upon plaintiffs to establish their case - pattas cannot be basis for granting reliefs. Therefore, as described under Order VII, Rule 3 of the Code of Civil Procedure, it could be seen that the plaintiffs have not given the correct and identifiable description of the suit properties for deciding the issues involved between the parties. At the out set, it has been found that it is the specific case of the defendants that the plaintiffs are not in the possession and enjoyment of the entire suit properties as pleaded. In such view of the matter, at least after the filing of the written statement, the plaintiffs should have come out with a clear case by giving the correct description of the properties with boundaries, etc., so as to sout out the main issue whether the suit properties are in the possession and enjoyment of plaintiffs as projected. 7. The definite case of the defendants is that the plaintiffs are not in the possession and enjoyment of the entire suit properties as put forth in the plaint. The suit properties have been described to be situated in Gingee Taluk, Sorattur villave, 1. Re-survey No.158/3 199 square meter 2. Re-survey No.155/13 286 square meter. 3. Re-survey No. 158/14 238 square meter inclusive of the tiled house, two thatched houses, trees and fence standing thereon. Therefore, as rightly argued by the learned counsel for the defendants, the description of the suit properties is hazy and indistinct. 8. As per Order VII, Rule 3 of the Code of Civil Procedure, where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries on numbers. 9. 9. Therefore, as described under Order VII, Rule 3 of the Code of Civil Procedure, it could be seen that the plaintiffs have not given the correct and identifiable description of the suit properties for deciding of the suit properties for deciding the issues involved between the parties. At the out set, it has been found that it is the specific case of the defendants that the plaintiffs are not in the possession and enjoyment of the entire suit properties as pleaded. In such view of the matter, at least after the filing of the written statement, the plaintiffs should have come out with a clear case by giving the correct description of the properties with boundaries etc., so as to sort out the main issue whether the suit properties are in the possession and enjoyment of the plaintiffs as projected. 13. However, insofar as this case is concerned as well as the earlier suit in O.S. No.7507/98 laid by the plaintiff's father, despite the claim of title to the property by way of Exs.A2 and A1, neither the plaintiff's father nor the plaintiff had specified the boundaries, within which the property, to which they claim title, is located. In both the suits, particularly, since we are now concerned with the present suit, in the present suit also the suit property has been described as follows: "Building and Ground bearing No.91/6, Konnur High Road, Ayanavaram, Chennai 600 023, admeasuring 575 square feet situated within the Jurisdiction of the Corporation of Chennai, Block No.22, Pimash No.974/8 and 974/19 part, T.S.No.65 part measuring 25 x 23 square feet i.e. 575 square feet including a vacant land of 100 square feet." While describing the suit property as above pointed out, it is seen that the plaintiff has not given the boundaries within which the same is located. However, after mentioning the total extent of the suit property as 575 sq. ft., the plaintiff has added as if the same includes a vacant land of 100 sq. ft. It is only the abovesaid vacant land of 100 sq. ft., which is found to be the bone of contention between the rival parties. If according to the plaintiff the vacant land of 100 sq. ft. falls within the total extent of 575 sq. ft, nothing prevented the plaintiff from specifying the suit property as depicted in his title deeds marked as Exs.A2 and A1. ft., which is found to be the bone of contention between the rival parties. If according to the plaintiff the vacant land of 100 sq. ft. falls within the total extent of 575 sq. ft, nothing prevented the plaintiff from specifying the suit property as depicted in his title deeds marked as Exs.A2 and A1. Furthermore, the plaintiff has also not endeavoured to describe the extent of the vacant land of 100 sq. ft separately, giving measurements of the said area together with the boundaries within which the same is comprised of. The plaintiff has also not filed any sketch or map along with the plaint to identify as to where the actual disputed extent of the vacant land of 100 sq. ft. lies, whether the same lies within the 575 sq. ft acquired under Exs.A2 and A1 or lying on the southern side of the 575 sq. ft. The plaintiff has also not taken out any commission for the identification of the disputed property by inspection of the same through a qualified surveyor and when considering the contention put forth by the respective parties, when they are at loggerheads only with the vacant land of 100 sq. ft. and when the plaintiff has not come forward with the clear case as to where the actual disputed extent of 100 sq. ft. of land lies, it is seen that, as rightly contended by the defendant's counsel, the description of the suit property by the plaintiff by adding that the same also includes the vacant land of 100 sq. ft. after giving the total extent acquired under Exs.A2 and A1 is vague and not clear and on the other hand, from the description of the property covered under Exs.A2 and A1, it is seen that the property is found to be bounded on the south side by the house and site of Arjunan. The plaintiff examined as P.W.1, during the course of cross examination, has clearly admitted that the portion lying on the north of the suit property is his property and the portion lying on the south is the defendant's property. Furthermore, when the plaintiff has also admitted during the course of evidence that he is aware of the inspection of the property in dispute by the taluk surveyor and the measurement of the same by the taluk suveyor, however, he would plead ignorance about the same. Furthermore, when the plaintiff has also admitted during the course of evidence that he is aware of the inspection of the property in dispute by the taluk surveyor and the measurement of the same by the taluk suveyor, however, he would plead ignorance about the same. Further, to a question put to him by the defendant, he would state that he does not know whether the property in dispute lies within the defendant's property and further admitted that to the north of the defendant's property, his shop and another shop is located. Considering the abovesaid evidence adduced by the plaintiff and considering the documentary evidence placed on the part of the plaintiff marked as Exs.A1 to A7, when from Exs.A2 and A1 deeds, when it cannot be inferred that the plaintiff is in the possession and enjoyment of the disputed extent of the vacant land of 100 sq. ft. and similarly when from Exs. A3 to A7 also we cannot infer and hold that the plaintiff is in the possession and enjoyment of the extent of vacant land of 100 sq. ft. and when the plaintiff has failed to establish that the extent of the vacant land of 100 sq. ft lies within the property acquired under Exs.A2 and A1 and when the dispute between the parties is centering only to the abovesaid extent of vacant land of 100 sq. ft and despite the abovesaid position, the plaintiff having not described the suit property by giving the boundaries as well as filing the sketch or map identifying the location of the property in dispute i.e. the vacant land of 100 sq. ft and as above pointed out, the plaintiff also not having endeavoured to take out a commission and when as seen above, the plaintiff having admitted that in the suit laid by his father, the taluk surveyor had inspected and measured the property in dispute, as to why the plaintiff has not endeavoured to summon the records of inspection of the taluk surveyor and also examine the taluk surveyor in the present case and when the plaintiff has also not endeavoured to examine the neighbours to evidence that it is only the plaintiff who is in the possession and enjoyment of the property lawfully as described in the plaint, particularly the disputed portion of the vacant land of 100 sq. ft, in the absence of valid and acceptable material on his part to safely conclude that the deeds marked as Exs.A2 and A1 also included the vacant land of 100 sq. ft and when as above pointed out the plaintiff has also not endeavoured to identify the same, the courts below had failed to appreciate the abovesaid facts in the proper perspective and proceeded to grant the relief prayed for by the plaintiff for the simple reason that in the suit laid by the plaintiff's father, he had been granted an interim relief. However, the fact remains, as could be evidenced from Ex.B1, that the plaintiff's father had laid the suit in O.S.No.7507/98 in respect of the same property against the defendant and others, and it is found that the suit had not come to an end one way or the other and finally after the demise of the plaintiff's father, came to be dismissed as abated. In such view of the matter, the interim relief obtained by the plaintiff's father, by itself, would not enure in favour of the plaintiff to contend that he is in the possession and enjoyment of the property in dispute i.e. the vacant land of 100 sq. ft. As above pointed out, when the plaintiff has miserably failed to establish that he is in the possession and enjoyment of the said extent of 100 sq. ft of vacant land, the reasoning of the courts below that inasmuch as the plaintiff had acquired both the building and the site by way of Exs.A2 and A1 deeds, the disputed extent of 100 sq. ft would also form part and parcel of the said property, as such, cannot be accepted. Be that as it may, as rightly contended by the defendant's counsel, nothing prevented the plaintiff from describing the suit property by giving the boundaries within which the same is located as specified in Exs. A2 and A1. On the other hand, it is evident that the plaintiff, with a view to mislead the court, has deliberately omitted to give the proper description of the suit property by furnishing the boundaries within which the same is located as well as also failed to annexe the sketch or map showing the identity of the location of the disputed extent of the vacant land of 100 sq. ft. ft. and also failed to give the boundaries within which the disputed extent of the vacant land of 100 sq. ft actually lies. As above pointed out, the plaintiff being the suitor, it is his duty to establish the lie of the property in dispute by adducing acceptable and reliable materials. The plaintiff having failed to take appropriate steps with reference to the same and when the plaintiff's claim of title, possession and enjoyment of the property in dispute i.e. the vacant land of 100 sq. ft., has been seriously challenged by the defendant in toto, despite the abovesaid position and the principles of law outlined by the Apex Court in the decision reported in (Anathula Sudhakar V. P. Buchi Reddy (dead) by Lrs and others), the plaintiff has not endeavoured to seek the declaration of title to the disputed extent i.e. the vacant land of 100 sq. ft. On the other hand, the courts below are found to have erroneously blamed the respondent for not taking out the commission for the identification of the suit property by a qualified surveyor. When the duty is cast upon the plaintiff to take out the commission, he being the suitor, as contended by the defendant's counsel, the courts below have erroneously shifted the burden on the defendant and thereby proceeded to uphold the plaintiff's case without any basis or material in particular evidencing that the plaintiff is in the possession and enjoyment of the vacant land of 100 sq. ft, which is in dispute between the parties. 14. In the light of the abovesaid discussions, the plaintiff having failed to establish his title, possession and enjoyment of the property in dispute i.e. the vacant land of 100 sq. ft. and when the plaintiff has prayed for the relief of permanent injunction only as against the abovesaid extent as could be seen from the pleas put forth in the plaint and moreso, when it is not the case of the plaintiff that the defendant is interfering with his possession and enjoyment of the property to which he is actually entitled by way of Exs.A2 and A1 and in such view of the matter, it is evident that the plaintiff has no cause of action against the defendant with reference to the property covered under Exs.A2 and A1. In view of the abovesaid reasonings, in my considered opinion, the plaintiff is not entitled to obtain the relief as prayed for. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendant. 15. For the reasons aforestated the judgment and decree dated 27.12.2007 passed in A.S. No.307/07 on the file of the Additional District Judge (FTC), Chennai, confirming the judgment and decree dated 01.03.2006 passed in O.S.No.6004/03 on the file of the XVIII Assistant Judge, City Civil Court, are set aside and resultantly, the suit laid by the plaintiff in O.S.No.6004/03 is dismissed with costs. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition is closed.