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2023 DIGILAW 2145 (MAD)

Senthilvel v. Rajamanikam

2023-06-26

P.DHANABAL

body2023
JUDGMENT : P. DHANABAL, J. PRAYER: Second Appeal is filed under section 100 of the Civil Procedure Code to set aside the Judgment and the decree dated 28.10.2013 passed in A.S. No. 09 of 2012 on the file of the Sub Court, Dharapuram confirming the judgment and the decree dated 19.01.2012 passed in O.S. No. 231 of 2004 on the file of the District Munsif Court, Dharapuram. 1. This Second Appeal has been filed as against the judgment and decree passed in A.S. No. 09 of 2012 on the file of the Sub Court, Dharapuram dated 28.10.2013, confirming the judgment and decree dated 19.01.2012 passed in O.S. No. 231 of 2005 on the file of the District Munsif Court, Dharapuram. In the trial Court, the plaintiffs have filed the suit as against the defendant and the same was decreed in favour of the plaintiffs and as against the trial Court's verdict, the defendant has filed the First Appeal and the same was also dismissed. Aggrieved by the same, the defendant has preferred this Second Appeal. THE CASE OF THE PLAINTIFFS 2....... (i) The plaint schedule properties originally belonged to one Maruthan through final decree proceedings passed in I.A. No. 873 of 1937 in O.S. No. 43 of 1937 dated 23.03.1938 on the file of the District Munsif Court, Dharapuram. The plaintiffs are the sons of the said Maruthan. As per the final decree proceedings in the above said suit, the said Maruthan had got Patta in his name and he also paid “kist” to the above said property. The defendant is none other than the son of the second defendant namely Bhagavathi Nadar in the above said final decree proceedings. As per the final decree proceedings in the above said suit, the plaintiffs' father is entitled to 1/4th share over the properties and the remaining share belongs to father of the defendant mentioned in the final decree proceedings. The suit Survey Number is Ka.Sa.No. 917/1. (ii) In the suit property, a Well with other amenities also exist. The plaintiffs are entitled to take water from the Well for irrigation only for two days out of eight days as per their turn. After the demise of the father of the plaintiffs, namely Maruthan, the plaintiffs have been in peaceful possession and enjoyment of the property. (ii) In the suit property, a Well with other amenities also exist. The plaintiffs are entitled to take water from the Well for irrigation only for two days out of eight days as per their turn. After the demise of the father of the plaintiffs, namely Maruthan, the plaintiffs have been in peaceful possession and enjoyment of the property. Plaintiffs have also got Patta in their name and are also regularly paying the kist to their property. The plaintiffs are enjoying the suit property by grazing cattle in the field. Due to drought, there was no water in the above said Well for the past several years. The defendant got electricity connection in his name and he is also taking water from the said common Well for irrigation purpose. (iii) Now, due to recent monsoon, the plaintiffs have taken steps to renovate the places in and around the Well to facilitate to take water from the channels. When the plaintiffs attempted to make renovation work, the defendant attempted to prevent the plaintiffs from doing their lawful work. Further, the defendant also attempted to take water through lorries from the common Well for commercial purpose. If the defendant is permitted to take water through lorries from the common Well, the plaintiffs' irrigation will be affected. Therefore, the plaintiffs have filed this suit for the relief of permanent injunction restraining the defendants from interfering with the plaintiffs' peaceful possession and enjoyment over the suit property, restraining the defendants from interfering with the plaintiffs from taking water from the Well during their turn of two days out of eight days and also injunction restraining the defendants from taking water through lorry for commercial purpose. Hence, the suit may be decreed in favour of the plaintiffs. THE CASE OF THE DEFENDANT 3....... (i) The case of the defendant is that, the suit is false and frivolous. He stoutly denied the plaint averments regarding the possession of the plaintiffs and existence of Well in the suit in S. No. 917/2. In fact, there was a suit filed on the file of District Munsif Court, Dharapuram in O.S. No. 43 of 1937 and the same was decreed. After the suit, the said Maruthan had left from the suit village in or about 50 years ago. For more than 50 years, the plaintiffs were not in the suit village and they migrated from the suit property. After the suit, the said Maruthan had left from the suit village in or about 50 years ago. For more than 50 years, the plaintiffs were not in the suit village and they migrated from the suit property. In or about 30 years ago, the defendant had purchased share of his family members i.e. from this father and brother, thereby, the defendant is the absolute owner of the properties of his family. Thereafter, during the year 1971 and 1972, the defendant created fence over the entire property including the plaintiffs property and he has been in peaceful possession and enjoyment over the entire property. (ii) In fact, during the period of partition, itself the Well was in a dilapidated condition. Due to bad condition, the said Well was closed 40 years back. After 1971, the defendant excavated a new Well in Ka.Sa.No. 917/1 and got electricity connection in his name. Thereafter, he also erected bore-well in the said Well which was situated in Ka.Sa.No. 917/1. The plaintiffs have no right over the said property in the said Ka.Sa.No. 917/1 and there is no existence of Well in Ka.Sa.No. 917/2 as stated by the plaintiffs. Therefore, the defendant has continuous peaceful possession and enjoyment over the property without any interruption with the knowledge of one and all for more than the statutory period and thereby, he is entitled to the property by way of adverse possession. (iii) The plaintiffs are not in possession and enjoyment of the property, thereby, they cannot claim any prayer through this suit. Hence, suit is liable to be dismissed. During the pendency of the suit, plaintiffs have filed an application for amendment in the schedule property and the same was allowed. Thereafter, the plaint schedule property was amended and Survey Number has been mentioned as 917/1 instead of 917/2. After the said amendment, defendant has filed reply statement stating that the defendant has no right over the Well situated in Ka.Sa.No. 917/1. The Well mentioned in O.S. No. 43 of 1937 was already closed and thereby, the Well claimed by the plaintiffs is no way connected with the suit Well existing in Ka.Sa.No. 917/1. The plaintiffs and their predecessors have right over the Well only to take water in the said Well, thereby, the Well is not common. Thereafter, the said well was also merged with the properties of the defendants. The plaintiffs and their predecessors have right over the Well only to take water in the said Well, thereby, the Well is not common. Thereafter, the said well was also merged with the properties of the defendants. The suit is bad for non-joinder for necessary parties, since all the legal heirs of the Maruthan i.e. daughters were not added as parties in the suit. Hence, the suit is liable to be dismissed. THE ISSUES: 4. Based on the above said pleadings and documents, the trial Court has framed the following issues: 1. Whether the plaintiffs are entitled to the reliefs of permanent injunction as prayed for in the plaint? 2. Whether the contention of the defendant that he only digged the Well and erected the bore well on his own lands and got separate electricity connection, are true? 3. Whether the defendant's statement that the plaintiffs are attempting to get the properties which are not described in the suit schedule is correct? 4. To what other relieves, the plaintiffs are entitled to? 5. On the side of the plaintiffs, PW-1 was examined and Exhibits A1 to A45 were marked. On the side of the defendants, DW-1 and DW-2 were examined and Exhibits B1 to B3 were marked. 6. After analysing the oral and documentary evidence and after elaborate discussion, the trial Court has decreed the suit as prayed for in the plaint through Judgment and decree dated 19.1.2012. Being aggrieved by the trial Court's judgment and the decree, the unsuccessful defendant had preferred first appeal before the Subordinate Court, Dharapuram in A.S. No. 09 of 2012 on various grounds. The first Appellate Court has formulated the following points for determination: 1. Whether the decree and judgment of the trial Court passed in O.S. No. 231/5 dated 19.01.2012 are correct? 2. Whether appeal is to be allowed? 3. To what other reliefs, the appellant is entitled to? 7. After analysing the grounds of appeal, oral and documentary evidence adduced on both sides and other connected records, the 1st Appellate Court also confirmed the judgment of the trial Court and dismissed the appeal through its Judgment and decree dated 28.10.2013. Being aggrieved by the concurrent judgments of the Subordinate Courts, the defendant has filed this present Second appeal before this Court on various grounds including the following substantial questions of law: SUBSTANTIAL QUESTIONS OF LAW: 8. Being aggrieved by the concurrent judgments of the Subordinate Courts, the defendant has filed this present Second appeal before this Court on various grounds including the following substantial questions of law: SUBSTANTIAL QUESTIONS OF LAW: 8. This Court has admitted the second appeal on the following substantial questions of law: “1. Whether, in law, suit for bare injunction was maintainable, without seeking declaration of title, especially when the defendant had denied their title and had set up title in himself? 2. Whether in law, the Courts below are right in over looking the admission of PW-1 that the appellant alone was in possession of the suit land and that he was cultivating in it?” ARGUMENTS: 9. The learned counsel for the appellant has argued that the Courts below have ignored the contention of the defendant that the plaintiffs left the property for more than 50 years and the defendant alone is in his exclusive possession and enjoyment of the suit properties and the defendant exclusively excavated Well over his property and the same is under the exclusive possession and enjoyment of the defendant. The Courts below have failed to consider that the prayer of bare injunction, without seeking declaration of title which is not maintainable when the defendant had denied the title over the property. Further, the Courts below failed to consider the admissions made by the plaintiff that the defendant planted “Murungai” trees and he was only irrigating the said plant. 10. There is no representation for the respondents, inspite of several chances given by this Court and hence this Court proceeded further with available records. Answer for Substantial question of law No. 1: 11. In this case, the contention of the plaintiff is that, originally, the property belonged to one Maruthan through the final decree proceedings passed in I.A. No. 873 of 1937 in O.S. No. 43 of 1937 dated 23.03.1938 on the file of the District Munsif Court, Dharapuram and they are in peaceful possession and enjyment over the suit properties. The plaintiffs had produced Exhibits A1 to A6. Ex.A1 is the final decree proceeding, Ex.A2 is the commissioner report, Ex.A3 to A5 are plan filed by the Commissioner, Ex.A6 is the delivery of possession certificate. Therefore, from Ex.A1 to A6, it is clear that the suit property was allotted to the father of the plaintiffs and possession was also given to him. Ex.A1 is the final decree proceeding, Ex.A2 is the commissioner report, Ex.A3 to A5 are plan filed by the Commissioner, Ex.A6 is the delivery of possession certificate. Therefore, from Ex.A1 to A6, it is clear that the suit property was allotted to the father of the plaintiffs and possession was also given to him. The defendant also did not dispute the relationship of the plaintiffs and Maruthan. The defendant also in his written statement, admitted in Para No. 9 that, there was a partition suit filed in O.S. No. 43 of 1937 and partition was also effected. But, his main contention is that the plaintiffs are not in possession of the suit property and they have left the properties during the life time of Maruthan about 50 years back and abandoned the suit property. Therefore, from the admission made by the defendant, it is clear that, suit property was allotted to the Maruthan and the plaintiffs are the sons of Maruthan. 12. Further, the defendant in Para No. 10 of the written statement stated that, in or about 30 years ago, he purchased share of his family members and he is the exclusive owner of the property of his family. At that time, during the year 1971 and 1972, the abandoned properties of the plaintiffs were merged with the properties of the defendant and he fenced the entire property and he has been in possession and enjoyment of the properties. According to the defendant, he purchased the properties from his family members, but he failed to produce documents to prove his contention. Per contra, the plaintiffs have produced the certified copies of the sale deeds purchased by the defendant. The above said copies of the sale deeds were marked through plaintiff as Ex.A44 and Ex.A45. On a perusal of those documents, they revealed that, while executing sale deeds over the properties, the brother and father of the defendant had mentioned in the sale deeds as 3/4th share over the Well which is situated in Ka.Sa.No. 917/1. Further in Exs.A1, A2 and A6, the right of taking water from the well for two days out of eight days in turn basis, was also mentioned in the said final decree proceedings. 13. The main defence of the defendant regarding land is that the plaintiffs migrated from the suit property and thereby, they were not in possession and enjoyment. Further in Exs.A1, A2 and A6, the right of taking water from the well for two days out of eight days in turn basis, was also mentioned in the said final decree proceedings. 13. The main defence of the defendant regarding land is that the plaintiffs migrated from the suit property and thereby, they were not in possession and enjoyment. The defendant has been in possession and enjoyment of the property for more than 30 years and claimed adverse possession. Once, the defendant has taken a plea of adverse possession, he admits the title of the plaintiffs. Once the defendant had admitted the title of the plaintiffs, question of relief of declaration would not arise. Further, the defendant has taken inconsistent plea, in one place he pleaded that the suit Well was excavated by him after purchase of his family properties. In another place, he stated that, the Well was existing in 917/1 and same was closed as it was not in use and thus the above said property was also merged with the defendant's land and thereby, he claimed adverse possession. In another place, he admitted the right of the plaintiff to take water from the Well. Therefore, there is no specific denial by the defendant regarding the title of the plaintiffs, Moreover, there is no cloud over the title of the property, thereby, the suit for permanent injunction is well maintainable without the prayer for declaration of the title. 14. In this case, the plaintiffs have produced Ex.A1 to Ex.A45. The plaintiffs have also produced final decree proceedings, commissioner's report, delivery of possession and also filed “Kist” receipts from the year 1960 to 2010. Further, the plaintiffs have also produced the “Patta” for the suit property. The plaintiffs have produced the above said documents to show the legal and exclusive possession over the suit properties. Per contra, the defendant has produced only Exs.B1 to B3. On a perusal of those records, it is observed that the suit was presented filed on 27.05.2005 and taken on file on 02.06.2005. But, Ex.B1 is the patta issued on 03.06.2005 i.e. after the suit, Ex.B2 & B3 were also obtained after the suit. The defendant has failed to produce documents to show his exclusive possession. Once the defendant has taken plea of adverse possession, he has to prove his possession, NEC VI, NEC Clam and NEC precario. But, Ex.B1 is the patta issued on 03.06.2005 i.e. after the suit, Ex.B2 & B3 were also obtained after the suit. The defendant has failed to produce documents to show his exclusive possession. Once the defendant has taken plea of adverse possession, he has to prove his possession, NEC VI, NEC Clam and NEC precario. But there is no acceptable evidence adduced by the defendants to prove his contention. Per contra, documents filed by the plaintiffs and the oral evidence of PW-1 clearly shows the continuous possession of the plaintiffs in the suit property. 15. According to the defendant, the Well mentioned in the documents vide Ex.A2 to A6 and A44, as A45 does not exist and it was closed. The present Well is existing in S. No. 917/1 which was excavated by him after purchase of the properties from his family members. While so, he has to prove his contention that he only excavated the suit Well on his own, but he failed to produce any documents to show that he only had dug Well and erected bore-well into the Well. 16. Per contra, the available documentary evidence shows that the above said Well was existing prior to final decree proceedings, thereby, the contention of the defendant that the above said Well was excavated by the defendant, is not acceptable. Moreover, the defendant in his additional written statement pleaded that the plaintiffs have only right to take water from the Well. Further, he pleaded in his pleadings that the Well mentioned in final decree proceedings and the sale deeds executed by his father and brother was closed and the said land also merged with his lands. Therefore the only contention of the defendant is that he only excavated the Well in 917/1 on his own funds. In this context the DW-1 in his cross-examination stated as under: 17. Therefore, the defendant himself admitted the 1/4th share of the plaintiffs over the suit properties and the right to take water from the Well for 2 days out of 8 days. On a careful perusal of the evidence of DW1, it is seen that he admitted the existence of Well mentioned in Ex.A1 & A6 and right to take water by the plaintiffs. On a careful perusal of the evidence of DW1, it is seen that he admitted the existence of Well mentioned in Ex.A1 & A6 and right to take water by the plaintiffs. Further, he admitted that, the common Well was in existence in Ka.Sa.No. 917/1 and further he admitted that, during the period of execution sale deeds of A44 and A45, the Well was in existence. 18. Once the defendant admitted existence of common Well, the burden is shifted to him to prove that he only excavated a new Well and the old Well was closed. In order to discharge his burden, he has not produced any documents. However, he examined DW-1 and he deposed that he was also participated in the excavation work of Well but the same DW-2 during cross examination stated that he did not know in which property the Well was excavated and thereby, his evidence alone is not sufficient to discharge the burden of the defendant from proving his contention. 19. In order to prove the defendants' contention that, he only excavated the Well in his separate properties, he failed to produce the documents and further, he filed Commission application and the same was dismissed by the trial Court, but the defendant failed to file appeal on the dismissal order passed by the trial Court, thereby, he failed to prove the excavation of the Well as alleged by him. Even according to one of the defendant's documents, Ex.B2, which is the sketch filed by him, also clearly shows the existence of Well in Ka.Sa.No. 917. The plaintiffs' document Ex.A3 also revealed the existence of the Well in Ka.Sa.No. 917. On a careful perusal of both the documents, it appears that the location of the Well mentioned in Ex.A3 and Ex.B2 are one and the same. While so, had the defendant excavated the Well in his property, it is for him to prove where he excavated the new Well and, where the previous Well was situated. But, defendant failed to prove the location of the Well excavated by him. Therefore, it is clear that the Well mentioned in the suit and the well mentioned in the documents, are one and the same. But, defendant failed to prove the location of the Well excavated by him. Therefore, it is clear that the Well mentioned in the suit and the well mentioned in the documents, are one and the same. Since the defendant himself admitted the right of the plaintiff to take water in the suit Well, the existence of the well, and taken plea of adverse possession by admitting the right of the plaintiffs over the suit property, the question of denial of title would not arise. In this case, the main substantial question of law is that, whether suit is maintainable, for the relief of bare injunction, without seeking relief of declaration, when the defendant is denying the title. 20. It is well settled law that the suit for bare injunction without seeking declaratory relief, is not maintainable, when the defendant denied the title of the plaintiff. It is also well settled law that where the defendant is denying the title over the property, he shall establish his right over the property, and if there is cloud over the property, then the relief of declaration is essential. The Hon'ble Supreme Court in Jharkhand State Housing Board vs. Didar Singh and Another, (2019) 17 SCC 692, wherein the Hon'ble Supreme Court held as under: “in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. However, when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.” 21. In this case, in the written statement itself, the defendant admitted the title of the plaintiffs and he only denied the possession of the plaintiffs and further the defendant has claimed adverse possession and thereby, he admitted the title of the plaintiffs. Moreover, the defendant also admitted the right on the plaintiffs to take water from the Well. Further, the relief regarding Well is not for the entire Well and only right of taking water in two days out of eight days on turn basis. Therefore, in the case on hand, non-seeking of relief of declaration will no way affect the claim of the plaintiffs for the relief of permanent injunction. 22. Further, the relief regarding Well is not for the entire Well and only right of taking water in two days out of eight days on turn basis. Therefore, in the case on hand, non-seeking of relief of declaration will no way affect the claim of the plaintiffs for the relief of permanent injunction. 22. The trial Court has relied on the judgment of this Court in Natarajan vs. Sengamala Moopanar wherein it was held that “Presumption of possession backward and forward can be inferred from kist receipts filed” and thereby, the trial Court relied upon the said documents and came to the conclusion that the plaintiffs are in possession of the suit property. Moreover, the sale deeds i.e. Ex. A44 and A45, stand in the name of the defendants which clearly shows the existence of the Well in Ka.Sa.No. 917 and the right of defendant and his family members is 3/4th share. Therefore, the defendant himself admitted that he has only right over the ¾th share of the suit Well. Therefore, the trial Court has decreed the suit in favour of the plaintiffs. 23. In the first appeal, the Appellate Court has not framed proper points for determination. However, the First Appellate Court elaborately discussed about the documents and evidence adduced on both sides and other connected records and correctly dismissed the appeal, by confirming the decree and judgment of the trial Court. It is well settled law that as per Order 41 Rule 31 of CPC “the judgment of the Appellate Court shall be in writing and shall state the points for determination, decision thereon, reasons for the decision and where the appeal is reversed from or vary, the relief to which the Appellate is entitled and shall the bear the date on which it is pronounced and shall be signed by a Judges.” 24. In the present case, the first Appellate Court has not framed proper points for determination and only framed two points, however, the 1st appellate Court elaborately discussed all the points raised by the parties, thereby, non formulating of proper points for determination will no way affect the case of the parties. In the present case, the first Appellate Court has not framed proper points for determination and only framed two points, however, the 1st appellate Court elaborately discussed all the points raised by the parties, thereby, non formulating of proper points for determination will no way affect the case of the parties. As far as the first substantial question of law is concerned, as already discussed in previous paragraphs, there is no cloud over the title of the property and denial of defendant also is evasive and defendant himself admitted the title of plaintiffs through his pleadings and evidence, thereby the suit is well maintainable. Thus the first substantial question of law is answered in the above terms. SUBSTANTIAL QUESTION of LAW No. 2: 25. As per the appellant, Courts below have overlooked the admission of PW-1 that appellant alone was possession of the suit land and thus he was cultivating in it. But PW-1 in his evidence as well as in his pleadings categorically denied the possession of the defendant over the suit lands. Further the plaintiffs' side have marked Ex.A1 to A45, documents to prove their possession and the same are also not disputed by the defendant. Further, defendant himself admitted during the cross-examination that he did not pay any kist to the suit property and he has no document to show that he has been in possession of the property for more than 50 years. He is only relying upon document of Tahsildar regarding the Well. In this context the plaintiff during his cross examination stated as under: 26. Therefore from the evidence of PW-1, it is clear that he denied the possession and enjoyment of the defendant. Further he stated that the defendant without their knowledge taking water through pipeline. This answer given by the plaintiff cannot be taken as admission of the possession of defendant. The entire evidence of the plaintiffs has to be looked into to come to the conclusion, that the plaintiffs are in possession and enjoyment of the suit property. The particular portion of the deposition cannot be isolated and taken into account for deciding the possession of the property. The entire evidence of the plaintiffs as well as the documents shows that the plaintiffs are in possession and enjoyment of the property. The particular portion of the deposition cannot be isolated and taken into account for deciding the possession of the property. The entire evidence of the plaintiffs as well as the documents shows that the plaintiffs are in possession and enjoyment of the property. Therefore, mere answer of PW-1 in one portion of the evidence that without the knowledge of the plaintiffs, the defendant has taken the water through pipeline, cannot be isolated and it cannot be taken as admission for the possession of defendant. Moreover the defendant himself admitted that he has no documents to prove his possession over the property. 27. The Courts below have also elaborately discussed about the evidences and documents filed by both parties and fairly came to the conclusion that the plaintiffs have proved their possession by producing “Patta” and “Kist” receipts and decreed the suit. There is no infirmity on the judgments of Courts below. Thus the substantial question law is answered. THE RESULT: 28. Therefore, as discussed above, this Court is of the view that, there is no necessity to interfere with the concurrent judgments and decrees of the Courts below and this Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. Decree and Judgment passed in A.S. No. 09 of 2012 on the file of the Sub Court, Dharapuram, dated 28.10.2013, confirming the judgment and decree in O.S. No. 231 of 2004 on the file of the District Munsif Court, Dharapuram dated 19.01.2012 is confirmed. No costs. Consequently, connected miscellaneous petition is closed.