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2022 DIGILAW 170 (MAD)

Jayagandhi v. B. Loganathan

2022-01-20

R.PONGIAPPAN

body2022
JUDGMENT : Prayer: The Second Appeal is filed under Section 100 of C.P.C. against the Judgment and Decree made in A.S.No.9 of 2010 dated 30.04.2010 on the file of I Additional Subordinate Judge at Salem, reversing the judgment and decree dated 08.10.2009 in O.S.No.656 of 2007 on the file of the I Additional District Munsif at Salem. 1. The second appeal is focused as against the Judgment and Decree dated 30.04.2010 passed in A.S.No.9 of 2010 by the learned I Additional Subordinate Judge, Salem, reversing the Judgment and Decree dated 08.10.2009 passed in O.S.No.656 of 2007 by the learned I Additional District Munsif, Salem. 2. For the sake of convenience, hereinafter the parties are referred as per their respective litigative status before the trial Court. 3. The laconic averments made in the plaint are as follows: 3.1. The plaintiff and the defendant Nos.1 to 3 are adjacent land owners. The first defendant is the mother of the second and third defendants. The defendants are belonging to the Adi Dravidar Community. 3.2. The suit property, which is an agricultural land situated at Anuppoor village is originally belonged to the plaintiff’s mother Vengammal. She purchased the same vide registered sale deed dated 02.05.1960 executed by one Abubhakkar and Munian. After made purchase, parents of the plaintiff enjoyed the suit property without any interruption. After the demise of the plaintiff’s parents, the property owned by the plaintiff’s family was partitioned between themselves vide compromise decree dated 11.08.2003 passed in O.S.No.236 of 2003 on the file of the I Additional District Munsif, Salem and accordingly, the suit property was allotted to the plaintiff. 3.3. The defendants are the adjacent land owners and their property is hereditary in nature. The defendants 1 to 3 are not having any right or title over the suit property owned by the plaintiff. On 24.04.1998, there was a dispute happened between the plaintiff and the defendants in respect of the suit property and the first defendant gave a written complaint before the Karippatty Police. Thereafter, the said issue was settled between the plaintiff and the defendants. After passing of 9 years, on 21.03.2007 again the defendants are attempted to trespass and encroach the suit property. Hence, again the plaintiff gave a written complaint before the Police on 21.03.2007. In this regard, the Police advised the defendants to measure the property through Revenue authorities and fix the boundaries. After passing of 9 years, on 21.03.2007 again the defendants are attempted to trespass and encroach the suit property. Hence, again the plaintiff gave a written complaint before the Police on 21.03.2007. In this regard, the Police advised the defendants to measure the property through Revenue authorities and fix the boundaries. Instead of taking necessary steps to measure the property, on 12.05.2007, the defendants trespassed into the plaintiff’s property on the eastern side and put up a temporary fence. When the plaintiff attempted to demolish the temporary fence, the defendants with the help of rowdy elements threatened the plaintiff that they will lodge a complaint before the Police under ‘Untouchability Act’. Hence, the present suit has been filed for the relief of permanent injunction restraining the defendants 1 to 3, their men from interfering with the plaintiff’s peaceful possession and enjoyment over the suit schedule property. 4. The averments found in the written statement filed by the first defendant and adopted by the second and third defendants are as follows: 4.1. It is false to state that the suit property was purchased by the plaintiff’s mother Vengammal from one Abubhakkar and Munian. The plaintiff’s parents have not enjoyed the suit property continuously. Further, it is not admitted by the defendants that the plaintiff is in the continuous possession and enjoyment of the suit property. The plaintiff alone is unlawfully tried to occupy the 0.13 cents of the defendants’ lands and thereby the defendants have put up the fence between the plaintiff’s land and the defendants’ lands. Now the plaintiff is trying to alienate the 0.13 cents, which is in the possession and enjoyment of the defendants and that is only the dispute. It is not correct to state that on 21.03.2007, the defendants made an attempt to trespass and encroach the portion of the plaintiff’s land. It is not correct to state that to grab the plaintiff’s land, the defendants have put up the temporary fence on the plaintiff’s property. The fence has been already formed and is existing. The present suit is a vexatious one and hence, the same is liable to be dismissed. 5. Based on the above averments, the trial Court framed necessary issues and tried the suit. In support of the plaintiff’s claim, P.W.1 to P.W.6 were examined and twenty seven documents were marked as Exs.A1 to A27. The present suit is a vexatious one and hence, the same is liable to be dismissed. 5. Based on the above averments, the trial Court framed necessary issues and tried the suit. In support of the plaintiff’s claim, P.W.1 to P.W.6 were examined and twenty seven documents were marked as Exs.A1 to A27. On the side of the defendants D.W.1 and D.W.2 were examined and twenty one documents were marked as Exs.B1 to B21. Apart from those documents, the report and plan submitted by the Advocate Commissioner were marked as Exs.C1 to C4. 6. Having considered the materials placed before him, the learned I Additional District Munsif, Salem came to the conclusion that the plaintiff is entitled to the relief of permanent injunction to an extent of 33 cents alone in S.No.218/1 of Anuppoor Village. In the appeal, the learned I Additional Subordinate Judge, Salem reversed the findings arrived at by the trial Court and allowed the appeal. Feeling aggrieved over the same, the defendants are before this Court with the present second appeal. 7. At the time of admission, this Court had formulated the following Substantial Question of Law: Whether the Lower Appellate Court is right in holding that the plaintiff is entitled to permanent injunction by incidentally deciding the plaintiff’s title, when the title to the property is seriously disputed? 8. Heard the learned counsel appearing on either side and perused the materials available on record. 9. It is the case of the plaintiff that under Ex.A1, the plaintiffs mother Vengammal purchased the suit property from one Abubhakkar and Munian. On going through the recitals found in the said document it is true that the mother of the plaintiff purchased the property measuring an extent of 0.64 cents in S.No.218/1 of Anuppoor Village. It is the further case of the plaintiff that the vendor of the plaintiff has purchased the said land vide Exs.A8 and A9. The recitals found in the said document is, in the year, 1956, the vendor of the plaintiff has purchased the property from one Munian Samban and from his minor sons. Only upon the contents of the said document, the present suit has been filed by the plaintiff. Further, the schedule of property was mentioned in the plaint as follows: 10. The recitals found in the said document is, in the year, 1956, the vendor of the plaintiff has purchased the property from one Munian Samban and from his minor sons. Only upon the contents of the said document, the present suit has been filed by the plaintiff. Further, the schedule of property was mentioned in the plaint as follows: 10. In this occasion, it was appeared from the evidence let in by either side, vide Ex.B3-Sale Deed dated 18.02.1972, the extent of 0.31 cents in S.No.218/1 was sold out to one Aandi Gounder. The recital found in the said document establishes the fact that the same Idumban Samban, who executed the sale deed in favour of the vendor of the plaintiff, executed the said document in favour of Aandi Gounder. Further, it seems after the purchase was made by Aandi Gounder, on 13.12.1990, he executed one another sale deed vide Ex.B4 in favour of the first defendant, namely, Jayagandhi through which he sold out 0.31 cents in favour of the first defendant. 11. In this occasion, in the compromise decree (Ex.A5) passed in O.S.No.236 of 2003, a property measuring an extent of 0.64 cents in S.No.218/1 was allotted in favour of the plaintiff. 12. The said circumstances raised the cloud over the property alleged to be owned by the plaintiff. In respect of the title to the suit property there was two documents, one in the name of the plaintiff and other in the name of the first defendant. 13. In this occasion, it would be necessary for the plaintiff to seek the relief of declaration as the entire suit property is belonged to him. In a similar situation our Hon’ble Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and Others reported in (2008) 4 SCC 594 held as follows: “Where a cloud is raised over the 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 the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. 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 the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown.” 14. Hence, applying the principal set out in the above referred judgment, after knowing the fact that some of the sale deed, which stands in the name of the first defendant is in respect of the property claimed by the plaintiff, it is for him to sue amended plaint for declaration. But here it is a case, without made amendment in respect of the relief of declaration, the plaintiff continued the suit for the relief of injunction, which is unsustainable. To cull out the entire evidence produced by either side, it seems in S.No.218/1, in the total extent of 0.64 cents, patta was issued for the extent of 0.31 cents in the name of the first defendant. In the same line, the defendants have enjoyed the property measuring an extent of 0.18 cents in S.No.218/1B, which is the adjacent land. However, the recitals found in Exs.A20 to A25, it is made clear that in S.No.218/1, the plaintiff is having 0.33 cents on the other hand in S.No.218/1A, the defendant is having 0.13 cents. In the said occasion, in the present suit the plaintiff has ascertained his title as he is having the property in S.No.218/1 to an extent of 0.64 cents, which is fully against the recitals found in the documents exhibited on either side. Accordingly, I am of the opinion that the plaintiff is not in the possession of the entire suit schedule property, i.e. 0.64 cents in S.No.218/1 of the said village. In other words, the defendants have admitted the possession of the plaintiff to an extent of 0.33 cents in S.No.218/1. Only on considering the said stand taken by the defendants, the trial Court granted a decree of injunction simpliciter to an extent of 0.33 cents alone. In other words, the defendants have admitted the possession of the plaintiff to an extent of 0.33 cents in S.No.218/1. Only on considering the said stand taken by the defendants, the trial Court granted a decree of injunction simpliciter to an extent of 0.33 cents alone. Though the said relief granted by the trial Court is not in accordance with the plaintiff’s averments, being the reason that this Court is empowered to mould the relief, I am of the view that to resolve the issue having between the plaintiff and the defendants, it would be appropriate to grant an order of injunction in favour of the plaintiff for an extent of 0.33 cents alone. Accordingly, the findings rendered by the trial Court is fully upon the documents relied on by either side. Hence, in the light of the above discussions stated supra, the reasoning and findings rendered by the First Appellate Court are liable to be interfered with. Accordingly, the Substantial Question of Law formulated by this Court in this Second Appeal, is answered as above. 15. In the result, this Second Appeal is allowed and the Judgment and Decree dated 30.04.2010 passed in A.S.No.9 of 2010 on the file of I Additional Subordinate Court, Salem, is hereby set aside and consequently, the Judgment and Decree dated 08.10.2009 made in O.S.No.656 of 2007 on the file of I Additional District Munsif Court, Salem is restored. No costs. Consequently, connected miscellaneous petitions are closed.