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Judgment
F.M. Ibrahim Kalifulla, J.—The plaintiffs in C.S.No. 479 of 2005 have come forward with O.A.No. 568 of 2005 and A.No. 2775 of 2005
while the defendants in the said suit have come forward with A.No. 2341 and 3947 of 2005.
The parties, viz, the plaintiffs as well as the defendants will be hereinafter referred to as ""applicants-plaintiffs and respondents-defendants
respectively.
The applicants-plaintiffs have come forward with the suit in C.S.No. 479 of 2005 for permanent injunction, to restrain the respondents-
defendants and their men in any manner interfering with the applicants-plaintiffs'' possession and enjoyment of suit Schedule ''A'' property; and also
for a mandatory injunction, to direct the respondents-defendants to deliver the original title deeds mentioned in suit ''B'' Schedule.
In O.A.No. 568 of 2005, the applicants-plaintiffs seek for grant of interim injunction to restrain the respondents-defendants from in any manner
interfering with the applicants-plaintiffs'' peaceful possession and enjoyment of the suit ''A'' schedule property. In this original application, an order
of interim injunction was granted on 18.5.2005 by this Court.
Application No. 2341 of 2005 has been filed by the respondents-defendants for vacating the above said order of interim injunction dated
18.5.2005.
Application No. 2775 of 2005 has been filed by the applicants-plaintiffs seeking for interim mandatory injunction directing the respondents-
defendants to restore the original title deeds/documents mentioned in suit ''B'' schedule to the custody of Shri N.S. Varadhachari, Advocate or to
such other persons.
Application No. 2775 of 2005 has been filed by the respondents-defendants seeking for the appointment of an Advocate Commissioner to
inspect the suit ''A'' schedule property and file a report as to the persons who are in actual possession of the said property. When the said
application came up for hearing on 31.8.2005, Mr. Abdul Quddhose, learned Advocate was appointed as Commissioner to note down the real
facts prevailing, as regards the nature of possession of the respondents-defendants, and submit his report. The Advocate-Commissioner has filed
his report dated 2.9.2005 along with certain documents presented to him on behalf of the applicants-plaintiffs.
The brief facts which are required to be stated are that the applicants-plaintiffs are the owners of the suit ''A'' schedule property. On
15.12.1999, an agreement for sale was entered into between the applicants-plaintiffs through the 13th plaintiff who was holding a power of
attorney of plaintiffs 1 to 12 and the respondents-defendants herein which has been filed as document No. 3 along with the plaint. The sale
consideration was stated to have been agreed at a sum of Rs. 2.50 crores. As per the said agreement, a sum of Rs. 70 lakhs was paid by way of
advance which was also duly stated in Clause (3) of the said document and as per Clause (7), it was agreed that the sale should be completed
within 30 days of intimation of obtaining the necessary clearance for sale of the property including the order of the Court for sale of minor''s share.
As per Clause (11), the vendors agreed to deliver vacant possession of the property described in ''A'' Schedule of the plaint at the time of the
registration of the sale deed. As per Clause (16), the vendors agreed to deliver the documents of title to Shri. N.S. Varadhachari, Advocate, for
safe custody until completion of the sale. In the list of documents annexed to the said agreement for sale, dated 15.12.1999, it is specifically stated
that:
The custody of the aforesaid documents with me is in trust for and on behalf of both the purchasers and vendors and the same shall be handed
over on representation of both the purchasers and vendors jointly after the completion of the registration of the sale deed and other formalities.
Sd/- N.S. Varadhachari,
Advocate.
The Office of the appropriate Authority of the Income Tax Department passed order u/s 269-UL(1) of the Income Tax Act, 1961 expressing
''no objection'' to the transfer of the property for apparent consideration of Rs. 2.50 crores. The said document has been filed as document No. 5,
dated 15.3.2000. A copy of the said order has been sent to both the applicants-plaintiffs as well as respondents-defendants. Document No. 6 is
the order of this Court passed in O.P.No. 355 of 2000, dated 24.7.2000 appointing the 10th plaintiffs as guardian of plaintiff 11 and 12 and also
permitting her to sell the minors'' share in the suit schedule property with a direction to invest the value of each of the minors'' share amounting to
Rs. 6,94,444 in a nationalized Bank in fixed deposit for a period till the minors attain the age of majority i.e., completing 21 years. There was a
further direction to produce the receipts of fixed deposit in this Court within a period of registration.
Apart from the agreement for sale, by a separate stamped letter dated 15.12.1999, the payment of sum of Rs. 70 lakhs (Rs. 20 lakhs in cash
and 5 cheques each for Rs. 10 lakhs bearing different dates) was also said to have been made to the 13th plaintiff. As per the said letter, the said
sum of Rs. 70,00,000 was paid and in the ''reference column of the said letter, it is mentioned as ""Fixtures and Furniture at 91, Poes Gardens,
Chennai-600 086"". According to the learned senior counsel, the said payment was made towards the value of the furniture and fixtures in the said
schedule property.
According to the applicants-plaintiffs, after the above referred to agreements and the payment of advance handing over the documents to the
Advocate, Shri. N.S. Varadhachari and after obtaining ''no objection'' from the appropriate authority under the Income Tax Act and after getting
necessary permission from this Court for disposing of the minors'' share, the respondents-defendants failed to pay the balance sale consideration as
agreed to by them and complete the sale transaction. It is stated that in view of the delay caused by the respondents-defendants, further debts
came to be incurred, which ultimately resulted in the creditors filing insolvency proceedings in I.P.Nos. 77, 80, 55 and 87 of 2000, 99, 33 and 155
of 2001 and 10 of 2002. In the said proceedings, the father of the applicants-plaintiffs along with some of the other plaintiffs, came to be adjudged
as ''Insolvent'' and the official Assignee was directed to take over the assets and other effects of the insolvent, to administer the estate in a regular
manner for the benefit of the creditors. It is common ground that the said order of adjudication was subsequently annulled.
According to the applicants-plaintiffs, till 21st April, 2003, the respondents-defendants were not willing to pay the balance consideration.
While so, the respondents-defendants forcibly took possession of the documents of title on 13.12.2004 which were entrusted with Shri N.S.
Varadhachari in trust on behalf of both the parties till the completion of sale transaction. It is stated that the said fact was also intimated to Official
Assignee on 18.12.2004. The Official Assignee is stated to have sent a communication to the respondents-defendants on 4.1.2005 informing them
that since the applicants-plaintiffs have been declared as ''insolvent'', the respondents-defendants cannot deal with the property and the property
was vested with the Official Assignee. The Official Assignee was stated to have asked the respondents-defendants to deliver back the documents
of title. It is stated that on behalf of the respondents-defendants, a reply was sent though their counsel on 16.1.2005 stating that they were already
put in possession by the applicants-plaintiffs on 14.6.2001.
The applicants-plaintiffs, while denying the paid stand of the respondents-defendants, con-tended that they attempted to trespass into the suit
''A'' schedule property on 31.1.2005, that they did trespass into the property along with their henchmen, that the first plaintiff who was living along
with his wife and unmarried daughter was locked inside the ''A'' schedule house thereby preventing them from coming out of the house, that by duly
informing 13th plaintiff about the said act, a police complaint was made on 13.1.2005 to E-3 Teynampet Police Station, pursuant to which, the
Inspector of Police also advised the parties to maintain status quo till the matters are settled through due process of law. It is stated that on
14.1.2005, at the instance of the first defendant certain persons performed some pooja in the first floor of said ''A'' schedule property in spite of
protest of the plaintiff which was again brought to the notice of the police authorities followed with a complaint dated 14.1.2005. It is stated that
again on 15.1.2005, the defendants along with their henchmen opened the lockers of the room in the first floor for which also, a complaint was
made by the plaintiffs on 15.1.2005. It is further stated that on 19.1.2005, a further complaint was lodged with the Commissioner of Police for
taking immediate action to protect the life and property of the first plaintiff and the members of the family. It is also stated that subsequently also,
the defendants broke open the locks in the first floor and trespassed into the same. The grievance of the plaintiffs was that none of the complaints
evoked any response from the police authorities. It is stated that they also filed a writ petition for redressal of their grievance in W.P.No. 12753 of
2005 in which the first defendant was made as one of the respondents wherein, this Court directed the police authorities to take immediate action
in accordance with law after conducting necessary investigation.
To sum up, according to the applicants-plaintiffs since the respondents-defendants failed to perform their part of contract, they have lost their
right under the agreement for sale dated 15.12.1999 and the said right is also barred by limitation and their present attempt of taking forcible
possession was to defeat the lawful rights of the applicants-plaintiffs.
Mr. P.S. Raman, learned senior counsel appearing for the applicants-plaintiffs contended that since the applicants-plaintiffs never handed over
possession of the ''A'' schedule property to the respondents-defendants on 14.6.2001 as claimed by them and since they failed to perform their
part of the contract within 30 days from the date of intimation of ''no objection'' from the appropriate authority of the Income Tax Department as
well as the Court permission for the sale of minors'' share, the respondents-defendants have lost their right under the agreement and in the said
circumstances, the unlawful trespass by the respondents-defendants into the first floor of the Schedule A property cannot be permitted. The
learned Counsel by referring to the report of the Advocate-Commissioner, contended that the report would disclose that the respondents-
defendants are not in possession of even the first floor in the manner as claimed by them, that a reading of the report of the Advocate-
Commissioner would only show that no lawful possession was ever handed over to the respondents-defendants by the applicants-plaintiffs. The
learned Counsel relied upon the decision reported in Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, , in
support of his contention that a ''trespasser has no right as against the true owner''.
As against the above submissions, Mr. R. Krishnaswamy learned senior counsel appearing for the respondents-defendants would contend that
admittedly as on date, the agreement was not validly terminated by the applicants-plaintiffs, that the receipt of payment of Rs. 1.40 crores having
not been disputed by the applicants-plaintiffs, that the order of adjudication in the pending insolvency proceedings is not in dispute that the
pendency of certain other insolvency proceedings is also not in dispute and in the said circumstances, according to the learned Counsel, when the
respondents-defendants are in possession of the first floor of the ''A'' schedule property, the stand of the respondents-defendants that they were
put in possession by the applicants-plaintiffs themselves on 14.6.2001 was true. Ac-cording to the learned Counsel, inasmuch as the applicants-
plaintiffs were entangled in the insolvency proceedings, they were unable to proceed with the performance of their part of the contract in executing
the sale deed and therefore, handing over possession was resorted to by the applicants-plaintiffs only to ensure and protect the rights of the
respondents-defendants.
The learned senior counsel would contend that after putting the respondents-defendants in possession as early as in June 2001, with a view to
frustrate the claims of the respondents-defendants, the applicants-plaintiffs under the guise of performing the funeral ceremony of their father Thiru.
A.N. Srinivasaka Nadar who died on 1.11.2004 gained entry into ''A'' schedule property and are now attempting to forcibly throw away the
respondents-defendants, In support of the said stand, the learned Counsel relied upon a complaint dated 11.12.2004 filed on behalf of the
respondents-defendants with the police authorities. According to the learned senior counsel, the compliance of two conditions, viz., approval of no
objection by the appropriate authority under the Income Tax Act and permission by the Court in respect of sale of the minors'' share were not duly
intimated to the respondents-defendants.
It is relevant to state that in the order of the Income Tax Department dated 15.3.2000, it is specifically mentioned that a copy of the said order
has been forwarded to the respondents-defendants and similarly, in the order of this Court dated 24.7.2000, it is pointed out that the respondents-
defendants filed affidavits and other documents in O.P.No. 355 of 2000 in order to enable the applicants-plaintiffs to obtain the permission of this
Court. According to the learned senior counsel, the suit for specific performance though was initiated by filing a plaint into this Court in January,
2005, due to certain objections raised by the office, the same could not be numbered and brought before the Court for proper orders. It is,
however, stated that the possession of ''A'' schedule property was taken only at the instance of the applicants-plaintiffs and was not by way of
trespassing into the property.
As regards getting possession of the documents/title deeds by the respondents-defendants from Mr. N.S. Varadhachari, the learned senior
counsel contended that the same were willingly handed over by the advocate Mr. N.S. Varadhachari and no force was applied on him for taking
possession of those documents. In fine, it was contended that the applicants-plaintiffs are not entitled for the injunction as prayed for and therefore,
the interim injunction granted on 18.5.2005 is liable to be vacated.
On consideration of the respective submissions of the parties, the crucial factor to be found out, is, as to whether the respondents-defendants
were put in possession by the applicants-plaintiffs themselves on 14.6.2001 as claimed by the respondents-defendants. For ascertaining the said
factor when the various documents relied upon by the applicants-plain-tiffs as well as the respondents-defendants are considered, it is admitted by
the respondents-defendants that there is no document pursuant to which, such possession was handed over to them by the applicants-plaintiffs.
According to the respondents-defendants, after 2000, even the applicants-plaintiffs were not in physical possession of the suit ''A'' schedule
property and that after handing over possession on 14.6.2001, they gained entry into the property only in November, 2004 when their father
expired that too with the permission of the respondents-defendants. Significantly, it was also contended that the possession was necessarily to be
handed over to the respondents-defendants by the applicants-plaintiffs themselves inasmuch as they were unable to perform their part of contract
in view of the pending insolvency proceedings. It was stated that at no point of time, the respondents-defendants were intimated of the details of
the insolvency proceedings. It was also claimed that the obtaining of ''no objection to transfer the property'' from the appropriate authority of the
Income Tax Department and the Court''s permission for the disposal of the minors'' share was also not duly intimated to the respondents-
defendants. According to the respondents-defendants, in view of such deficiencies on the part of the applicants-plaintiffs, they voluntarily handed
over possession to the respondents-defendants on 14.6.2001 in order to show their bona fides to complete the sale as per the agreement for sale
dated 15.12.1999.
As against the above stand of the respondents-defendants, according to the applicants-plaintiffs after the initial payment of Rs. 70 lakhs as per
the agreement for sale and another sum of Rs. 70 lakhs towards the value of the furniture and fixtures in the said ''A'' schedule property, the
respondents-defendants never came forward to perform their part of the contract. Even though, two vital conditions, viz., order of the appropriate
authority under the Income Tax Act and the permission of this Court for disposal of the minors'' share were duly complied with by the applicants-
plaintiffs, it was pointed out that, the ignorance now pleaded as regards the compliance of those conditions is not only not true but has been made
only to defeat the lawful claims of the applicants-plaintiffs. As regards the insolvency proceedings also, according to the applicants-plaintiffs, the
respondents-defendants were aware of those proceedings inasmuch as after the adjudication in the insolvency proceedings, the Official Assignee
himself called upon the respondents-defendants to hand over the documents.
On an analysis of the various above factors, I find force in the stand of the applicants-plaintiffs. In respect of the stand of the respondents-
defendants that they were put in possession by the applicants-plaintiffs themselves on 14.6.2001, except the ipse dixit statement of the
respondents-defendants, there is nothing on record to support the said stand. In fact, only in the reply dated 16.1.2005 to the Official Assignee,
the said fact has been mentioned. At no point of time prior to the said document, there was any reference to the said factor. When the
respondents-defendants had entered into an agreement for sale for the purchase of property for a sale consideration of Rs. 2.50 crores, the least
that can be expected from the respondents-defendants when they claim that they were put into lawful possession as early as on 14.6.2001 is, that
the same should have been supported by a valid document in order to rule out any possibility of any controversy being raised at any point of time
subsequent to that date. More so, when the respondents-defendants were aware of the insolvency proceedings as could be seen from paras.7 and
8 of the plaint filed by the respondents-defendants in Dairy No. 3132 of 2005 which reads as under.
The plaintiffs are informed that late A.N. Srinivasaga Nadar and the defendants 2 and 3 were carrying on business under the name and style of
M/s. A.N. Srinivasaga Nadar and sons in Partnership with one Kannappan and Mohan. They appeared to have suffered several decrees at the
instance of several creditors. Pursuant to the above decrees, the creditors appears to have claimed that the Partnership Firm and its partners had
committed acts of insolvency by failing to pay the decree debts, and consequently, initiated proceedings under the Presidency Town Insolvency
Act before this Hon''ble Court in I.P.No. 80 of 2000 etc., long after the suit agreement. The firm and its partners were adjudicated as Insolvent by
an order of this Hon''ble Court. Thereafter, the late A.N. Srinivasaga Nadar and the defendants 2 and 3 have filed petitions to set aside the order
of adjudication and the same are pending. The plaintiffs are informed that adjudication in some of the Insolvency Petitions had also been set aside.
The 14th defendant 2 and 3 and late A.N. Srinivasaga Nadar is hence made a party to this suit as he is also bound by the suit agreement dated
15.12.1999.
Since the plaintiffs had made the payment of Rs. 1.40 crores (Rupees ONE CRORE FORTY LAKHS) and the defendants were bargaining for
time to complete the Registration, the plaintiffs required of them to hand over possession of the premises to them. The suit property was not
occupied by any one and it was lying vacant. The defendants handed over the keys to the suit property to the plaintiffs on 14.6.2001 and since
then, the plaintiffs had been in possession of the suit property.
A reading of the above said paragraphs makes it clear that the respondents-defendants were aware of the creditworthiness of the applicants-
plaintiffs right from the beginning, i.e., when the agreement for sale was entered into in December, 1999. Therefore, it is very hard to believe the
present submission made on behalf of the respondents-defendants that they came to know about the insolvency proceedings only when the Official
Assignee sent a notice to them. The stand of the respondents-defendants that they were not aware of the clearance granted to transfer the property
by the appropriate authority under the Income Tax Act as well as the permission of this Court for the sale of minors'' share, has also been found to
be ''incorrect statements''. As has been observed earlier both in the order issued by the appropriate authority under the Income Tax Act expressing
''no objection for transfer of the property'' as well as in the order of this Court in O.P.No. 355 of 2000, dated granting permission for sale of the
minors'' share, there is a specific reference to the respondents-defendants. In the order of the appropriate Authority, it is stated that a copy of that
order has been forwarded to them. In the order of this Court in O.P.No. 355 of 2000, dated 24.7.2000 it is specifically mentioned that the
respondents-defendants filed an affidavit in support of the application seeking permission. Therefore, the said stand of the respondents-defendants
has also been found to be an incorrect statement when they said that they were never informed about the compliance of those conditions, in order
to state that there was no occasion for them to perform their part of contract as per Clause (7) of the agreement for sale dated 15.12.1999. In the
said clause, it is specifically mentioned that ""the sale should be completed within 30 days of intimation of obtaining the necessary clearance for sale
of the property including order of Court for sale of minors'' share"". Apparently, to cover up their lapses, respondents-defendants have come
forward with a story that they were not aware of the compliance of those conditions and therefore, there was no occasion for them to perform their
part of contract. When once it is found that the respondents-defendants were fully aware of the compliance of both the conditions and if according
to the respondents-defendants, they were keen in getting the sale completed as per the agreement, it is not known why the respondents-defendants
have not come forward with the suit for specific performance; which according to them they have preferred in January, 2005, at the earliest point
of time in order to show their readiness and willingness in performing their part of contract. The contention of the respondents-defendants that the
pendency of the insolvency proceedings was an impediment, it will have to be stated that even as on date, according to the respondents-
defendants, certain other insolvency proceedings are still pending as against some of the applicants-plaintiffs, and when the respondents-defendants
could file their plaint into this Court in January, 2005, there is no reason why it should not have been done at the earliest point of time.
All the above referred to factors only lead to the conclusion that the respondents-defendants were not truthful in making any of the statements
before this Court. A fortiori, the claim that they were put in possession by the applicants-plaintiffs themselves on 14.6.2001 cannot also be
believed on the mere ipse dixit statement made on behalf of the respondents-defendants.
Having regard to the manner in which, the respondents-defendants attempted to shift their stand in order to suit their connivance as regards the
different situations, I am of the view, it will be wholly unsafe to accept the stand of the respondents-defendants that they were validly put in
possession by the applicants-plaintiffs on 14.6.2001. When according to the respondents-defendants, the possession was handed over to them by
the applicants-plaintiffs themselves on a specific date, viz., 14.6.2001, it is not known on what basis such a definite date was mentioned in the
absence of any supporting material to that effect. As I pointed out earlier, only in the reply dated 16.1.2005 to the Official Assignee, the said date
came to be mentioned by the respondents-defendants. Only other place, where it has been mentioned is, in the plaint filed in Dairy No. 3132 of
2005, which plaint is also stated to have been prepared in January, 2005 while the filing of it, is stated to be 7.2.2005. Therefore, on no date prior
to January, 2005, the said date was ever mentioned in any other documents. If the date so mentioned by the respondents-defendants is to be
believed, then it can be only based on the memory of the respondents-defendants in the absence of any other document to support that date. It is
very hard to believe that the respondents-defendants were able to memorize that date and reveal the same after four long years without any
acceptable material evidence. Therefore, the theory propounded on behalf of the respondents-defendants that they were validly put in possession
by the applicants-plaintiffs on 14.6.2001 is only a ''figment of imagination'' and therefore, there is absolutely no truth in the said stand of the
respondents-defendants. When once the said conclusion can be safely arrived at, the only other question is as to whether the present possession of
the aunt of the second respondent in the first floor who is stated to be aged about 50 years as per the Advocate-Commissioner''s report can never
said to be a possession of the respondents-defendants in the normal course. In fact, the Advocate-Commissioner came to be appointed only at the
instance of the respondents-defendants in their application filed in A.No. 3947 of 2005, wherein, they prayed for appointment of Advocate-
Commissioner to inspect the suit ''A'' schedule mentioned property and file a report in regard to in whose possession, the suit ''A'' schedule
property is lying.
On a perusal of the report of the Advocate-Commissioner, I find that while the possession of the applicants-plaintiffs are stated to be on a
permanent basis, the presence of the second respondent''s aunt was found to be in a manner which can never be held to be the normal course of
one''s living in an abode. In the words of the Advocate-Commissioner:
At first sight, I find that all the above mentioned rooms in the entire ground floor are kept tidy and is being used by the first plaintiffs family
permanently. The first plaintiff also introduced me to his wife and daughter during the course of my inspection. The first plaintiff furnished
photocopies of the ration card, property tax collection receipt dated 26.3.2002 and 12.3.2005, Chennai Metropolitan Water Supply and
Sewerage Board receipt dated 27.3.2003 and the electricity meter card for the entire suit schedule premises for the purpose of proving the
plaintiff''s possession. It was also informed by the first plaintiff that there is only a single electricity meter for the entire premises and that he is only
paying the electricity charges for the entire suit schedule premises which is also not disputed by the defendant''s counsel.
There is only one stair case which leads to the first floor. The only stair case available is found in the hall of the ground floor. Any person occupying
the first floor can enter the first floor only through the ground floor which is under the occupation of the first plaintiff.
According to the learned Advocate-Commissioner, he found two persons, one lady by name, Ms. V. Seetha and another man, by name Gopi.
The said lady Seetha told the Advocate-Commissioner that she used to sleep in the hall and get food from outside except making tea or coffee,
which she makes by herself with the help of a kerosene stove which is found in the big hall and that there is no kitchen in the entire first floor.
As regards the other person, Gopi, according to the learned Advocate-Commissioner, he himself informed the Advocate-Commissioner that
he was employed with Jayashree International, a cinema company in which the first respondent-defendant is Proprietrix and that he came to visit
Seetha who is stated to be sick.
On a perusal of the Advocate-Commissioner''s report, it is very difficult to accept the case of the respondents-defendants that they were put in
possession as early as on 14.6.2001, yet only a relative of theirs that too a lady of age 50 years was permitted to use the first floor of the premises
with very meagre facilities and that her food was to be arranged every time from outside. As pointed out by the learned Counsel for the applicants-
plaintiffs, there was no objection to the report of the Advocate-Commissioner filed before this Court. If the aunt of the second respondent-
defendant was allowed to live in the premises on a regular basis, it is quite unbelievable that the said lady was not even having the basic amenities
of a regular bed room and a proper kitchen for preparing her food. On the other hand, the documents annexed to the Commissioner''s report
disclose that the premises is under the occupation and possession of the applicants/plaintiffs right from the beginning.
In the above said background of the report of the Advocate-Commissioner, also when the stand of the applicants-plaintiffs that the
respondents-defendants trespassed the suit ''A'' schedule property with the aid of their henchmen is considered, prima facie, it will have to be
concluded that the said allegations cannot be rejected outright as without any basis. Further, the complaints preferred by the applicants-plaintiffs on
various dates between 13.1.2005 and 26.4.2005 apart from their approach this Court by way of filing a criminal original petition in March, 2005
and the writ petition in April, 2005 prior to the filing of the present suit, only to go show that the applicants-plaintiffs were desperately knocking at
the doors of the various authorities including the judicial forum for the protection of their rights.
When the applicants-plaintiffs were facing insolvency proceedings, it cannot be said that they were so affluent to engage hooligans to fight
against respondents-defendants in order to safeguard their interests. Per contra, the stand of the applicants-plaintiffs that the respondents-
defendants who were stated to be affluent people barged into their premises on 13.2.2005 along with a group of their henchmen is quite an
acceptable statement and cannot be rejected so very lightly. In this context, when the letter of Shri N.S. Varadhachari, dated 14.12.2004 is
considered, I find that the respondents-defendants are really capable of taking law into their own hands in order to achieve their objectives. In his
letter dated 14.12.2004 addressed to the 13th plaintiff, a copy of which is stated to have been marked to respondents-defendants, the learned
advocate Shri N.S. Varadhachari has mentioned as under:
...However, requests were made by purchasers to hand over the title deeds to them, to which, I did not agree. The purchasers came on
13.12.2004 and gave a letter stated to have been dictated by the lawyer for Mr. V. Ganesh, the second purchaser, that Mr. S. Govindaswami,
power agent of the vendors, has not come forward to execute the sale deed in spite of several reminders and personal persuasion and that he has
been trying to negotiate the sale of the property to some other people and that I must hand over the title deeds immediately without any further
delay. It was also stated that they had initiated proceeding against Mr. S. Govindaswami, Mr. Nalla Alagu and others legally and criminally under
Court of Law. Though I refused to receive the letter, I was forced to accept the same. I sought for time to get acceptance from the vendors as
contemplated, but I was not allowed to contract anybody. I wanted to know the name of the counsel who is supposed to have been given the idea
and dictated the draft of the letter over phone (as represented by the purchasers), they did not choose to reveal the name. I could not get any
independent advice. I was perplexed in the manner of behavior of the purchasers. They pressurized me to hand over the documents and took
away the documents. However, a list was prepared and both the purchasers signed in the acknowledgment of having received the original
documents.
Even to this letter, a reply came to be sent by the respondents-defendants after 10 days i.e., on 27.12.2004 refuting the allegations of Shri
N.S. Varadhachari, Advocate. If really such serious allegations made by Mr. N.S. Varadhachari were not true, it is quite amazing that the
respondent-defendants did not choose to send their reply immediately, but took their own sweet-will to refute the allegations. It is also relevant to
mention that Shri N.S. Varadhachari was admittedly the Advocate of the respondents-defendants when the agreement for sale was entered into.
All the above said factors only go to show that the respondents-defendants will go to any extent and take law into their own hands for the
purpose of achieving their ends. I am afraid that such a conduct of the respondents-defendants when once brought to the notice of this Court can
ever be condoned. A responsible counsel, viz., Shri N.S. Varadhachari has put in no uncertain terms that he was perplexed with the manner and
behavior of the respondents and that they pressurized him and forced him to part with the documents which documents were entrusted to him at
the instance of the applicants-plaintiffs as well as the respondents-defendants jointly with the specific understanding in the agreement for sale, that
''the documents shall be handed over on representation of both the purchasers and vendors jointly after the completion of the registration of the
sale deed and other formalities''. The conduct of the respondents-defendants in having resorted to such forceful removal of the documents from the
possession of Shri N.S. Varadhachari cannot be ignored lightly.
From an analysis of the above referred to factors which are all borne out by records and beyond controversy, there can be one and only
conclusion that the version of the applicants- plaintiffs that the respondents-defendants trespassed into the suit ''A'' schedule property and took
possession forcibly merits acceptance. The contrary version of the respondents- defendants that they were put in possession by the applicants-
plaintiffs is wholly untrue and is to be stated only to be rejected. When once such a conclusion is inescapable, the question, whether, the
respondents-defendants can be allowed to remain in possession and the applicants-plaintiffs to remain as silent spectators. The hard fact remains
that the various attempts made by the applicants-plain-tiffs through the law enforcing machinery, viz., the police authorities to check and correct the
high handed actions of the respondents-defendants have been proved to be futile. If really, the respondents-defendants wanted to enforce their
rights based on the agreement for sale dated 15.12.1999, they should have taken the royal road of working out their remedy through the Court of
law. Therefore, the action of the respondents-defendants in having barged into the suit ''A'' schedule property in an unlawful manner is nothing but a
trespass and their continued possession as on date by retaining Ms. Seetha who is stated to be the aunt of the second respondent-defendant
cannot be held to be a lawful one.
Having regard to the above conclusions, it can be held that the grant of the order of interim injunction ordered on 18.5.2005 is valid inasmuch
as the applicants-plaintiffs have not only made out a prima facie case, but the balance of convenience is also absolutely in their favour. Further if the
illegal action of the respondents-defendants in having taken forcible possession of the first floor of the suit ''A'' schedule property is allowed to
continue, that will only lead to the conclusion that any unlawful action can be condoned with impunity and the other suffering party should be made
to put up with the said hardship for no fault of theirs. Therefore, that will ultimately cause irretrievable injury to the applicants-plaintiffs. Therefore, I
am of the view that while making the interim injunction absolute, in order to give effect to the said order granted earlier on 18.5.2005, the
respondents-defendants and their men, agents, or anyone acting on their behalf including so-called Ms. Seetha or any other personnel or security
watchman who are present in the premises of ''A'' schedule property at the instance of the respondents-defendants are directed to forthwith
withdraw and remove from the suit ''A'' Schedule property and put the applicants-plaintiffs in absolute possession free from any kind of hindrance.
Further, since I have also found that the respondents-defendants have taken the documents forcibly from Shri N.S. Varadhachari on 13.12.2004,
it is imperative that the respondents-defendants are also directed to file all those documents into this Court to be kept in safe custody pending
disposal of the suit. Inasmuch as the possession of all those documents was taken away by the respondents-defendants from Shri N.S.
Varadhachari in a high handed manner and in total violation of Clause (16) contained in the agreement for sale dated 15.12.1999. I think it proper
to keep them in Court custody instead of allowing them to be kept with anybody else.
In this context, when a reference to the decision of the Hon''ble Supreme Court relied upon by the learned Counsel for the applicants-plaintiffs
reported in Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, , is made, in paras.25 and 26, the Hon''ble
Supreme Court has stated the legal possession as under:
Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession u/s 6 of the Specific
Relief Act, 1963, can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific
Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion
while granting injunction. In Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, , it was held, after referring to
Woodroffe: Law Relating to Injunctions; Goyle L.C.: Law of Injunction; Bean, David: Injunction; Joyce: Injunctions and other leading articles on
the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted
Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, , wherein, it was observed that injunction is discretionary and
that: (S.C.C. page.175, para 31):
Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.
Reference was also made to Dalpat Kumar and Another Vs. Prahlad Singh and Others, in regard to the meaning of the words ""prima facie
case"" and ""balance of convenience"" and observe in Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, that:
(S.C.C. page.39, para. 9):
it is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession
For the foregoing reasons, this Court makes the following order:
In the result,
(a) Original Application No. 568 of 2005 is allowed and the interim injunction granted on 18.5.2005 is made absolute and the respondents-
defendants are directed to hand over possession of the first floor of the suit ''A'' Schedule property to the applicants-plaintiffs forthwith by
withdrawing all their personnel including the aunt of the second respondent-defendant by name Ms. Seetha as well as any other personnel engaged
by them and kept in the suit ''A'' Schedule property as on date.
(b) Application No. 2341 of 2005 is dismissed.
(c) Application No. 2775 of 2005 is allowed and the respondents-defendants are directed to restore the suit ''B'' Schedule documents by
depositing the same with the Deputy Registrar (Original Side) after due verification of all the documents that are re-moved from the custody of Mr.
N.S. Varadhachari along with a list and with a memo for safe custody in this Court till the disposal of the suit; and
(d) Application No. 3947 of 2005 is closed with a direction to the applicants therein, to pay a further sum of Rs. 5000 towards final remuneration
to the Advocate-Com-missioner. The payment should be made within one week from this date.
(e) There will be no order as to costs.