Arasammal and Sivan vs Periashola Estate Private Limited

G. Rajasuria, J.—Animadverting upon the order dated 02.08.2006 made in C.M.A. No. 9 of 2005 on the file of the Court of the

Subordinate Judge of the Nilgiris at Uthagamandalam, reversing the order and decreetal dated 12.09.2005 made in I.A. No. 177 of 2005 in O.S.

No. 86 of 2005 on the file of the Court of the District Munsif, Gudalur, this civil revision petition is focussed.

Heard both sides.

A summarisation and summation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would

run thus:

The respondent/plaintiff filed the suit for permanent injunction restraining the defendants, their men or agents or anybody claiming through them

from trespassing into or in any way interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Further, the

respondent/plaintiff in the suit filed I.A. No. 177 of 2005 seeking interim injunction restraining the respondents in the I.A. from interfering with the

following suit property:

SURVEY NUMBERS EXTENT ACRES

27 1.02

28 1.35

36/1 101.20 minus 8.33 cents

101.12 acres

36/2 10.42

36/3 79.47

36/4 3.26

37/2B, 2C, 1A 277.27

37/3 13.59

37/2D, 4 4.21

37/2A 116.11

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Total extent 607.83 acres

The trial Court dismissed the said I.A.177 of 2005, whereupon appeal was filed before the Sub Court, Uthagamandalam and after setting aside

the said order of the learned District Munsif Court, the Court granted interim injunction as prayed for. Being aggrieved by and dissatisfied with the

injunction granted, this revision has been filed on various grounds.

The learned Counsel for the revision petitioners placing reliance on the grounds of revision would develop his argument to the effect that while

filing caveat petition before the District Munsif Court, in the said petition, the extent of property was specified as 8.33 cents; taking undue

advantage of such discrepancy, the petitioners herein excluding 8.33 cents of land, filed the present suit for 607.83 acres; the revision petitioners in

fact have been in possession and enjoyment of an extent of 8.33 acres ever since 1946; Gratuity Commissioner also gave a finding to the effect

that the first revision petitioner''s husband Putumathan encroached upon an extent of 8.25 acres in that area and hence caused loss to the present

plaintiff herein; and therefore the present plaintiff cannot be made to pay gratuity to Putumathan; the observation made by the Gratuity

Commissioner would enure to the benefit of the present revision petitioners to argue that they have been in possession and enjoyment of 8.33 acres

of land; the revision petitioners have been cultivating coffee there and that fact also got reflected in the revenue records; while so, the respondent

simply filed a cryptic plaint alleging as though they have been in possession and enjoyment of the entire extent of 607.83 acres; the plaintiff has not

acquired any right or title over the suit property; based on some agreement to sell they claim right of possession also, which was not demonstrated

or exemplified before the trial Court; when the suit itself is for permanent injunction, the Sub Court was not justified in granting injunction in the

absence of clinching evidence and accordingly he prays for setting the order of the Sub Court.

Whereas, the learned Counsel for the respondent/plaintiff would put across his argument to the effect that based on a valid agreement to sell, the

plaintiffs have been in possession and enjoyment of the entire extent of the suit property and in fact the said agreement covers even that 8.33 cents

of land in which the revision petitioners have put up a shed for their residence and enjoyment; at no point of time either Putumathan or the revision

petitioners enjoyed an extent of 8.33 acres and they had not cultivated any coffee. Accordingly, he prayed for the dismissal of the revision petition.

At this juncture, I would like to observe that the suit itself is for permanent injunction as against the revision petitioners/defendants. The crucial

issue in a bare injunction suit would be as to who was in possession as on the date of filing of the suit. Undoubtedly at times incidentally, the Court

while considering the prayer for granting permanent injunction might go into the prima facie title of the plaintiff also in order to find out as to whether

the plaintiff can buttress and fortify his stand of possession based on title also. But the main issue would be as to who was in possession as on the

date of filing of the suit. It is also a trite proposition of law that trespassers who establishes their possession is entitled to be evicted only under due

process of law and not arbitrarily and forcefully. Undisputed facts are to the effect that before the trial Court in the I.A., as per the well settled

procedures no oral evidence was taken, but only documents were got marked. On the side of the petitioners herein Exs.P.1 to P.7 were marked

and on the side of the respondent Exs.R1 to R5 were marked.

The trial Court dismissed the application for injunction. However, the Sub court granted injunction. In paragraph 11 of the Sub Court''s

judgment, the Sub Court mainly considered Ex.P1 the agreement to sell which emerged between the plaintiff and the proposed vendor and Ex.P2

the lease deed in favour of the proposed vendor. The Sub Court also remarked that by way of torpedoing those exhibits on the plaintiff''s side, no

document was produced on the respondent''s side. Without in any way giving any finding, as a revisional Court relating to actual possession as well

as the credibility of the documents, what I would like to observe is that when the trial Court which is seized of the matter in the suit on considering

elaborately the pro et contra of the matter, exercised its discretion not to grant injunction. In such a case Sub Court being the appellate Court could

have very well left the matter, refrained from interfering with the trial Court''s order but directed the Munsif Court to dispose of the matter speedily

as the entire suit itself is for permanent injunction.

At this juncture my mind is reminiscent and redolent of the trite proposition of law that when parties are seriously contesting over possession,

here in this case, the Court should be cautious in granting interim injunction. Granting of interim injunction based on only the agreement to sell as

well as the proposed vendors antecedent title may not in all cases be wrong and in this case, I would not hold that those are all not relevant, but yet

those are all documents which would show the right of the plaintiff to have claim over the the land concerned. Whereas the defendants are not a

party to those documents and in such a case, even before deciding the main issue as to who was in possession on the date of filing of the suit, the

Court if jumps to a conclusion based on such documents alone that the plaintiff party is in possession and not the defendant therin, that would

seriously affect the impartial trial.

Hence in the wake of serious contest between the two parties relating to possession, I am of the considered opinion that the Sub Court could

have refrained from interfering with the order of the trial Court and the Sub court also could have refrained from placing reliance only on the

agreement to sell Ex.P1 and Ex.P2 the proposed vendors'' document. Hence, in these circumstances I would like to set aside the order of the Sub

Court and direct the trial Court to complete the trial itself within a period of one month strictly in accordance with law from the date of receipt of a

copy of this order and report compliance. I make it clear that the trial Court shall dispose of the matter untrammelled and uninfluenced by any of

the observations made by this Court in disposing of this civil revision petition.

Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.