Ganesan vs Aathimoola Pandithan, Periaswamy and Lakshmanan

M.M. Sundresh, J.—The unsuccessful first Defendant before the Courts below has come forward to file this Second Appeal. The Plaintiffs filed a suit in O.S. No. 481 of 1993, seeking the relief of permanent injunction, which has been decreed and the same was also confirmed by the lower appellate Court. Being aggrieved against the concurrent decisions of the Courts below, the Appellant has come forward to file the Second Appeal by formulating the following question of law:

Whether the Courts below are correct in law, in decreeing the suit only on the basis that the Plaintiff has not proved his possession?

The suit has been filed by the Respondents being the Plaintiffs seeking the relief of permanent injunction. It is the case of the Plaintiffs that the suit property was an ancestral property belonging to the grand father of both the Plaintiffs and the Defendants. There was a partition between the father of the Plaintiffs and the father of the Defendants, who were brothers. In pursuant to the said oral partition, the Plaintiffs are entitled for the suit property. In support of their contention, the Plaintiffs have filed two documents, namely Exs.A.1 and A.2. Ex.A.1 is the Patta Pass Book and Ex.A.2 is the registered partition deed between the first Appellant being the first Defendant and the second Defendant.

Defendant No. 1, who is the Appellant herein filed a written statement originally accepting the fact that there was an oral partition between the parties, namely the father of the Plaintiffs and the father of the Defendants. However, it has been stated that the suit property has been allotted in favour of the father of the Defendant No. 1. Thereafter, an additional written statement has been filed contending that the suit property has been purchased by his father 40 years ago from a person by name Muthu Servai S/o. Raman Servai by way a palm leaf, which was prevailing at that point of time. It has been further stated that the property has been purchased either by the said mode or by way of oral sale. In support of the contention that the Appellant has been in possession and enjoyment of the property, Exs.B.1 to B.8 were marked. Exs.B.1 to B.3 are Adangal extracts, Ex.B.4 is Chitta and Exs.B.5 to B.8 are tax receipts. Therefore, claiming possession based upon title, the 1st Defendant/Appellant prayed for the dismissal of the suit.

The Courts below decreed the suit as prayed for by placing reliance upon Exs.A.1 and A.2. Ex.A.2 is a partition deed makes a reference to the suit property as the boundary of the property of the Appellant. The Courts below have rejected the documents filed by the Appellant by holding that Exs.B.5 and B.6 are pertaining to the house. A further finding has been given that merely because the name of the Appellant''s father has been shown in the tax receipt, by itself cannot be a ground to hold that the suit property belongs to him as being the elder son, it is nothing but natural, the property has been shown in his name. Accordingly, both the Courts below have decreed the suit.

The Learned Counsel for the Appellant submitted that the documents filed under Exs.B.1 to B.7 clearly proved the factum of possession and therefore, the suit for injunction is not maintainable in law and on facts. Considering the denial of title raised by the Appellant, the suit as filed is not maintainable as the Plaintiffs ought to have filed the same seeking declaration or partition as the case may be. The Commissioner''s Report has been wrongly misconstrued by the Courts below. Even as per the Commissioner''s Report, the Appellant would be loosing a further extent of land as stipulated under Ex.A.2. The Learned Counsel further submitted that being the Plaintiffs it is for the Respondent 1 and 2 to prove the partition between the parties. Therefore, the Courts below have committed an error in shifting the onus on the Defendants. Further, Ex.A.2 does not deal with the suit property. In support of his contention, the Learned Counsel relied on the judgment of the Hon''ble Apex Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, and submitted that the Second Appeal will have to be allowed.

Per contra, the Learned Counsel appearing for the Respondents 1 and 2 submitted that the concurrent findings rendered by the Courts below on appreciation of fact and law do not warrant interference u/s 100 of the Code of Civil Procedure. The Courts below have taken into consideration Ex.A.2, which is a document belongs to the Appellant and therefore, it is not open for him to resile from the contents made therein. The Commissioner''s Report clearly stipulates that the suit property belongs to the Plaintiffs. The Courts below considering the Commissioner''s Report -Ex.C.1 as well as Ex.A.2 decreed the suit. The question regarding allotment of lesser extent have never been raised before the trial Court or before the lower appellate Court. Therefore, the Second Appeal will have to be dismissed.

The Courts below have decreed the suit based upon Ex.A.2. Admittedly, Ex.A.2 is a registered partition deed. Therefore, it is not open to the Appellant to raise any contention contrary to its contents. It is the evidence of Appellant himself that the description has been wrongly mentioned under Ex.A.2. It is his further evidence that he has not taken any steps to change the description. The Appellant has also stated in the written statement originally filed as well as in his evidence that there was a partition between the parties earlier. The question as to whether the Appellant has been given lesser extent also cannot be gone into in this Second Appeal, since it has not been raised before the Courts below. It is seen, the Appellant has raised a contention in the written statement filed earlier that the suit property originally belonged to the fore-fathers of the parties. The said contention has been given a go-bye by filing an additional written statement stating that there was an oral sale or sale through palm leaf. It is to be noted that it is for the Plaintiff to prove their case, but in a case where the Defendant accept the same and thereafter, resile from it, the onus is equally on the Defendant to prove the new plea. As found by the Courts below, absolutely there is No. iota or shred of evidence produced by the first Defendant to support the oral sale or the sale through palm leaf, even if it is permissible in law.

The Learned Counsel for the Appellant placing reliance upon Section 91 of the Indian Evidence Act submitted that in view of the documents under Ex.B.1 to B.7, the suit filed will have to be dismissed. this Court is of the view that Sections 91 and 92 of the Indian Evidence Act, if at all applicable, the same is applicable only against him. Being the signatory to Ex.A.2, he is bound by it and he cannot go against it. When it is the specific case of the Appellant that Ex.A.2 has been entered into by wrongly noting the description of the property, then it is for him to take steps to set aside the same in the manner know to law. The Courts below have considered the evidence and relied upon the P.Ws.2 and 3, who are independent witnesses. The documents filed by the Appellant have been rejected by the Courts below by holding that some of the documents are relating to the house and the other documents even assuming standing in the name of his father cannot help him. It is important to note that there is No. document standing in the name of the Appellant. Merely because the documents are standing in the name of the father of the Appellant, being the elder member of the family, it cannot be said the suit property belongs to the Appellant. Therefore, this Court is of the considered view that as found by the Court below on evidence that the Plaintiffs are entitled to the reliefs sought for.

Insofar as the contention raised by the Learned Counsel for the Appellant relying upon the judgment of the Hon''ble Apex Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, is concerned, this Court is of the view that the present case does not involve any complicated facts revolving around the title in view of Ex.A.2. When the Appellant has admitted Ex.A.2, there is No. necessity for the Plaintiffs to file the present suit for the declaration of their title. An admission can be made by writing or by a document. In view of Ex.A.2, the Courts below have concurrently held that the Plaintiffs have established the title to the suit property.

It is trite law that in a simple suit for permanent injunction a title can be gone into incidentally. A suit for declaration requires only a cloud raised on behalf of the Defendant pertaining to the defect in the title to a property or in a case where the Defendant has made out a prima-facie case on title. Admittedly, in the present case on hand, the suit has been filed over a vacant site. Therefore, in such a situation in a simple suit for permanent injunction, there is No. necessity to go into the title, more so, the first Defendant himself has executed a registered document under Ex.A.2, accepting the title of the Plaintiffs in the suit property.

In the judgment relied on by the Learned Counsel for the Appellant in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, the Hon''ble Apex Court was pleased to observe in paragraph 12 as follows:

We may however clarify that a prayer for declaration will be necessary only if the denial of title by the Defendant or challenge to Plaintiff''s title raises a cloud on the title of Plaintiff to the property. A cloud is said to raise over a person''s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the Plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the Plaintiff''s title, it does not amount to raising a cloud over the title of the Plaintiff and it will not be necessary for the Plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the Plaintiff, believing that Defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the Defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over Plaintiff''s title, then there is a need for the Plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.

Similarly it has been held in paragraph 14 in the following manner:

But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases, the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the Plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

The above said ratio laid down by the Hon''ble Apex Court would clearly show that in all the cases, suit for declaration is not necessary, merely because the Defendant questioned the title of the Plaintiff. The Hon''ble Supreme Court was pleased to hold that in a case where the title is clear and simple, the Court may venture a decision on the issue of title so as to decide the question of de jury possession even though the suit is for mere injunction. Therefore, considering the ratio laid down by the Hon''ble Apex Court, this Court is of the view that the facts involved in the present case would clearly show that there is absolutely No. dispute regarding the title of the Plaintiffs as evidenced from Ex.A.2. Accordingly, the substantial question of law is answered in favour of the Respondents 1 and 2.

Accordingly, the Second Appeal is dismissed. In the circumstances of the case, there is No. order as to the costs. Consequently, connected C.M.P. No. 12861 of 1997 is dismissed.