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2025 DIGILAW 2529 (KER)

Kesavan Viswambharan v. Nandi Granites Pvt. Ltd.

2025-09-22

EASWARAN S.

body2025
JUDGMENT : EASWARAN S., J. 1. This appeal arises out of the judgment and decree in O.S.No.402/1999 on the files of Munsiff Court, Attingal and A.S.No.129/2005 on the files of Sub Court, Attingal. 2. The brief facts necessary for the disposal of the appeal are as follows: 2.1. The plaintiff/1 st respondent is a company represented by its Director Ramaswamy Sekhar. The plaintiff/1 st respondent herein sued the defendant/appellant herein in a suit for permanent prohibitory injunction restraining the appellant from trespassing into the plaint schedule property together with his men. The case of the plaintiff is that the plaintiff is in absolute possession of Item Nos.1 and 2 of the plaint schedule property by virtue of Title Deed No.268/1993. The plaintiff is a company registered under the provisions of the Companies Act, 1956 and that they are doing export business in granite. It is contended that, since the plaintiff-company was situated in Banglore, the defendant taking advantage of the absence was trying to trespass into the property and therefore, it is necessary to restrain him from entering into the property committing heist. 2.2. The suit was resisted by the defendant denying the averments contained in the plaint, wherein the possession of the plaintiff was also denied specifically by the defendant. According to the defendant, no cause-of-action is made out for maintaining the suit against the defendant. On behalf of the plaintiff, Exts.A1 to A20 documents were marked and PW1 to PW4 were examined. On behalf of the defendant, Exts.B1 to B11 documents were marked and DW1 to DW6 were examined. Ext.X1 is the building tax assessment register and Ext.X2 is the account statement. The plaintiff did not take out any Advocate Commissioner for ascertaining the possession, but the defendant during the pendency of the suit took out an Advocate Commissioner, who then filed Ext.C1 report. 2.3. Based on the oral and documentary evidence, the Trial Court decreed the suit by granting a mandatory injunction directing the defendant to surrender the vacant possession of the suit property together with building within one month. Aggrieved by the judgment and decree, the defendant preferred A.S.No.129/2005 before the Sub Court, Attingal, which came to be dismissed by judgment dated 03.02.2012. Based on the oral and documentary evidence, the Trial Court decreed the suit by granting a mandatory injunction directing the defendant to surrender the vacant possession of the suit property together with building within one month. Aggrieved by the judgment and decree, the defendant preferred A.S.No.129/2005 before the Sub Court, Attingal, which came to be dismissed by judgment dated 03.02.2012. The First Appellate Court surprisingly found that as on the date of institution of the suit, the defendant was in possession of the plaint schedule property, but declined to interfere with the decree on the ground that the defendant does not have title over the plaint schedule property. Aggrieved, the defendant has come up in the present appeal. 3. On 10.04.2012, while admitting the appeal, this Court framed the following questions of law for consideration: “(1) Did not lower appellate court go wrong in confirming the trial court judgment and decree for mandatory injunction after finding that plaintiff is guilty of suppression of material facts which disentitle the plaintiff for a discretionary relief of injunction as per Sec.41(i) of the Specific Reflief Act? (ii) Did not courts below act legally and with material irregularity in granting a mandatory injunction to restore status quo anterior to the date of suit? (iii) Is not finding of the lower appellate court that appellant's status is that of a rank trespasser is unsupported by pleadings and evidence on record hereby making the same a finding based on no evidence? (iv) Is not observations of courts below that appellant had no claim over the property is absolutely illegal as there is specific plea raised regarding right over the plaint schedule property based on the oral agreement which is in the nature of an irrevocable licence under Sec.60 of the Easements Act?” 4. Heard, Sri.M.R.Rajesh – learned counsel appearing for the appellant and Sri.V.Philip Mathew – learned counsel appearing for the respondents. 5. Sri.M.R.Rajesh – learned counsel appearing for the appellant, took strong exception to the manner in which the courts below have approached the whole issue. The primary objection raised by the learned counsel for the appellant is that the plaintiff, being a company, ought to have been represented by the Managing Director, failed to appear and tender evidence. 5. Sri.M.R.Rajesh – learned counsel appearing for the appellant, took strong exception to the manner in which the courts below have approached the whole issue. The primary objection raised by the learned counsel for the appellant is that the plaintiff, being a company, ought to have been represented by the Managing Director, failed to appear and tender evidence. Instead, Ext.A1 - Power of Attorney was produced in the name of one Santhosh, who left the services of the plaintiff - company and PW1, Rajaram was examined on behalf of the plaintiff, without any authorisation letter or any Power of Attorney. Therefore, inasmuch as the plaintiff failed to step into the box to tender evidence, the suit itself ought to have been rejected. The obligation on the part of the defendant to tender evidence would arise only if the plaintiff is able to prove his case. Still further, it is contended that the suit is only for a prohibitory injunction and that the Trial Court exceeded in its jurisdiction in granting the relief in the form of a mandatory injunction ignoring the mandate of Section 39 of the Specific Relief Act, 1963. On appeal, the First Appellate Court found that, as on the date of filing of the suit, the plaintiff was not in possession of the property. The said finding has become final. In the light of the findings of the First Appellate Court, the consequences should have followed and the suit ought to have been dismissed, instead the judgment of the Trial Court was affirmed on an erroneous assumption that the defendant does not have any title over the property. In a suit for injunction simplicitor, the question of title does not arise for consideration and the relief which the plaintiff has sought for should have been decided based on the possession of the plaintiff as on the date of filing of the suit. 6. Per contra, Sri.V.Philip Mathew – learned counsel appearing for the 2 nd respondent, countered the submissions of the learned counsel for the appellant by contending that the non- examination of the plaintiff is of no consequence, especially when the plaintiff is able to prove his case based on the document. According to the learned counsel, if the title of the plaintiff is not disputed and therefore, possession follows the title. According to the learned counsel, if the title of the plaintiff is not disputed and therefore, possession follows the title. It is further contended that the court can always mount the relief and therefore, even if the plaintiff has not sought for a decree for mandatory injunction, a relief in the form of mandatory injunction could be granted by the courts below. It is further contended that the findings of the First Appellate Court are pefectly justified and that there is substantial question of law arising for consideration in the present appeal. In support of his contention, he relied on the decision of L.N. Aswathama and Another v. P. Prakash , 2009 (13) SCC 229 . 7. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below and also the records of the case. 8. A bare perusal of the substantial questions of law framed by this Court would briefly indicate the manner in which the First Appellate Court has directed itself in approaching the entire issue. At one hand, the learned counsel for the plaintiff asserts before this Court that, in the absence of any dispute to his title, the possession has to be presumed by the courts below. But, however, conveneintly forgetting the fact that the plaintiff is under solemn obligation to prove his case. The plaintiff being a Company registered under the provisions of the Companies Act, 1956 had no authority to depute his employee to give evidence on behalf of the Company. This Court fails to comprehend the relevancy of Ext.A1 - Power of Attorney in favour of one Santhosh, who is stated to have left the services of the company. Even assuming for argument sake, the Power of Attorney was valid in law, the person who tendered evidence on behalf of the plaintiff is not the Power of attorney holder. Therefore, this is a clear case where the plaintiff company consciously absented themselves from tendering evidence and his failure to mount the box has to be viewed detrimental to the cause projected in the plaint. 9. A reading of the relief sought for in the plaint shows that, what is claimed by the plaintiff is a prohibitory injunction restraining the defendant from trespassing into the plaint schedule property. 9. A reading of the relief sought for in the plaint shows that, what is claimed by the plaintiff is a prohibitory injunction restraining the defendant from trespassing into the plaint schedule property. It has come out in evidence that as on the date of filing of the suit, the defendant was in possession. Though the learned counsel for the plaintiff/1 st respondent herein asserted before this Court that there is no evidence produced by the defendant to show that he was in possession of the plaint schedule property as on the date of filing of the suit, it remains indisputed that the plaintiff also failed to produce any evidence to show that they were in possession of the plaint schedule property as on the date of filing of the suit. Though the learned counsel for the plaintiff has got a case that the plaintiff need not separately prove the possession because of the settled principle of law that the possession follows the title, this Court is unable to subscribe to the aforesaid argument for the simple reason that the defendant is in possession of the land and building. Hence, the plaintiff was bound to prove otherwise. 10. Coming back to the findings rendered by the First Appellate Court, it is pertinent to mention that, after filing of the suit, I.A.No.1673/1999 was filed by the defendant to appoint an Advocate Commissioner to ascertain the details regarding the house in the plaint schedule property and the cultivations in the property. The Commissioner visited the property on 13.08.1999 and filed Ext.C1 report, which shows the possession of the defendant. This report was accepted by the First Appellate Court and a specific finding was rendered regarding the averment in the plaint that the defendant trespassed into the plaint schedule property on 12.08.1999 or thereafter, and it was found that the said averment is incorrect. The First Appellate Court also took notice of the oral testimony of PW2, that one of the employees were residing in the building from 1997 onwards, but the plaintiff failed to examine the said person inorder to substantiate his claim. Therefore, the First Appellate Court found that the plaintiff's claim of being in possession of the scheduled property as of the date of filing the suit was not supported by any corroborative evidence produced by them. Therefore, the First Appellate Court found that the plaintiff's claim of being in possession of the scheduled property as of the date of filing the suit was not supported by any corroborative evidence produced by them. But then, the First Appellate Court went a further step ahead and found that since the defendant has not established his title over the property, he is not entitled to continue in the building in the plaint schedule property and accordingly, confirmed the judgment. 11. In the considered view of this Court, when the facts as disclosed in the plaint are found to be not correct, a remedy of injunction which is a discretionary remedy under Section 41(1) of the Specific Relief Act, 1963, ought not have been granted by the courts below. Moreover, the relief sought for in the plaint is only as regards a permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property. But then, the Trial Court and the First Appellate Court proceeded as though the plaintiff was entitled to evict the defendant from the plaint schedule property. The moment it was found that the defendant was in occupation of the plaint schedule property as on the date of filing of the suit, then necessarily, unless and until the conditions prescribed under Section 39 of the Specific Relief Act, 1963, for grant of mandatory injunction are satisfied by the plaintiff, the relief in the form of mandatory injunction ought not have followed. This coupled with the fact that there was no valid tendering of evidence on behalf of the plaintiff, the suit was liable to be dismissed. Mere examination of one of the employees of a company will not absolve the liability of the plaintiff to examine himself or the authorised pesonnel of the company as provided under the provisions of the Companies Act, 1956. Therefore, this is a case where the Trial Court ought to have drawn adverse inference against the plaintiff under Section 114(g) of the Evidence Act, 1872. 12. Viewed in the above perspective, this Court cannot subscribe to the findings rendered by the courts below. The findings rendered by the Trial Court as affirmed by the First Appellate Court thus suffers from vice of perversity and illegality, requiring the exercise of powers of this Court under Section 100 of the Code of Civil Procedure, 1908. 12. Viewed in the above perspective, this Court cannot subscribe to the findings rendered by the courts below. The findings rendered by the Trial Court as affirmed by the First Appellate Court thus suffers from vice of perversity and illegality, requiring the exercise of powers of this Court under Section 100 of the Code of Civil Procedure, 1908. Accordingly, answering the questions of law raised in the appeal in favour of the appellant, the judgment and decree of both the Munsiff Court, Attingal, in O.S.No.402/1999 and Sub Court, Attingal, in A.S.No.129/2005 are set aside. Resultantly, O.S.No.402/1999 will stand dissmised. This judgment will not preclude the plaintiff from instituting a proper suit for recovery of possession on the strength of the title in accordance with law. The contentions of the parties are left open. No costs.