M. Vedamanickam Nadar vs M. Sudalaikannu Thevar

R. Banumathi, J.—Aggrieved by judgment in A.S. No. 104 of 1992 reversing judgment of trial Court and dismissing the plaintiff''s suit in

O.S. No. 474 of 1984, unsuccessful plaintiff has preferred this appeal.

Suit property is a vacant site with a Tea stall thereon bearing Door No. 2/34, Venkatarangapuram Village, with measurement stated in the plaint

schedule. Case of the plaintiff is that suit property is in enjoyment of the plaintiff and his forefathers. Plaintiff is running a Tea stall and had also

obtained a licence for running the same from 1976 onwards. Plaintiff claims right of possession on the basis of Ex.A.1 alleging that defendant who

was President of Venkatarangapuram village is interfering with plaintiff''s possession and enjoyment of plaint schedule property, plaintiff has filed

suit for permanent injunction.

Denying averments in the plaint, defendant has filed written statement contending that boundaries mentioned in the plaint is wrong. In his written

statement, defendant has contended that eastern side boundary does not belong to Duraisamy Nadar, but it belonged to Muthiah Nadar. The

property originally belonged to one Sudalaimuthu and his son Arumugham and both of them have mortgaged property in the year 1941. The said

Arumugham sold the property to the defendant under Ex.B.3 sale deed in which also eastern boundary is shown as Muthiah Nadar Thottam.

On the above pleadings, three issues were framed in the trial Court. On the basis of Ex.A.25 and on the evidence of P.Ws.2 and 3, trial Court

held that plaintiff/ appellant is in possession and enjoyment of the suit property. Referring to the recitals in Exs.A.25 to A.27 wherein western

boundary is shown as Vedamanickam''s manai, trial Court decreed the suit as prayed for.

Lower Appellate Court reversed the judgment finding that documents Exs.A.26 and A.27 are after filing of the suit. Observing that plaintiff has

not filed the suit for declaration and that plaintiff is not entitled to any relief in the suit simpliciter for permanent injunction, lower appellate Court

reversed the judgment of the trial Court and dismissed plaintiff''s suit.

Second Appeal was admitted on following substantial questions of law:

(1) Whether the lower appellate Court erred, while dealing with Exs.A.25 to A.27, in not considering the Commissioner''s report?

(2) Whether the lower appellate Court erred in relying on Section 34 of the Specific Relief Act?

Challenging findings of lower appellate Court, learned Counsel for appellant/plaintiff contended that lower appellate Court failed to properly

appreciate Ex.A.1 and oral evidence adduced by plaintiff. Laying emphasis upon Exs.A.25 to A.27, learned Counsel for plaintiff contended that

the boundary recitals in those documents are proved by oral evidence of P.W.2 and while so, lower appellate Court erred in ignoring material

evidence as to the western boundary stated in those documents. Drawing attention to number of documents filed by plaintiff, learned Counsel

further submitted that by innumerable documentary and oral evidence, plaintiff has proved his possession and when plaintiff''s claim is based upon

mere possession, lower appellate Court was not right in saying that suit ought to have been filed for declaration.

Reiterating findings of the first appellate Court, learned Counsel for the respondent has submitted that P.W.2 having parted with possession of

the property, was not competent to produce Exs.A.25 to A.27 and lower appellate Court rightly doubted genuineness of those documents. Placing

reliance upon in Srinivasa Pillai v. Ragunathan 1983 1 M.L.J., 159, learned Counsel for respondent further submitted that permanent injunction is

not to be granted only on the ground of plaintiff''s possession without adjudicating question of title.

There are two sets of documents. Plaintiff claims title through Ex.A.1, sale deed (dated 4.12.1970). In Ex.A.1 sale deed, eastern boundary is

stated as Durai Pandy Nadar Thottam, whereas defendant claims title through Ex.B.3 (dated 3.9.1984). In Ex.B.3 eastern boundary is stated to

be Muthaiah Thottam. Since eastern boundary in Ex.A.1 and Ex.B.3 varies, identity of the property has to be taken only with reference to the

Commissioner''s report. Identifying suit property, the Commissioner had stated that on the eastern side, site of Chelladurai, P.W.2, is located.

P.W.2 purchased from Duraipandy Nadar, eastern side manai from Yesu Vadial, wife of Duraipandy Nadar under Ex.A.26. Thus as per

Commissioner''s report suit property is on the western side of Duraipandy Nadar Thottam''s manai.

As noticed earlier, plaintiff has purchased suit property under Ex.A.1 sale deed from Pakkiry Mohideen Rowther. P.W.1 has stated that the

suit property is lying vacant and he is running a Tea stall. To prove his possession and running of Tea stall, plaintiff has produced Ex.A.2, A.6,

A.21, licence obtained for running Tea Stall and Exs.A.10 and A.19 Professional Tax receipts. To prove his possession, adjacent owner P.W.2,

Chelladurai and tenant of plaintiff namely P.W.3 - Kandan Asari, were examined. Both P.Ws.2 and 3 have consistently stated that suit property is

in possession of plaintiff and that P.W.3 Kandan Asari is running Tea stall as a tenant under plaintiff.

Plaintiff is in possession of suit property is also strengthened by other evidence. On the date of purchase itself that is on 4.12.1970 under

Ex.A.12, plaintiff had othied suit property in favour of his vendor Pakkiry Mohideen Rowther. By executing Othi mortgage plaintiff has asserted his

right of possession in the suit property. Ex.A.25 is the sale deed of the eastern side portion of the suit property in favour of Duraipandy Nadar.

Under Ex.A.26 sale deed P.W.2 Chelladurai purchased eastern side Manai from Yesuvadial, wife of Duraipandy Nadar. Under Ex.A.27 P.W.2

Chelladurai sold eastern side Manai to one Deva Pitchai. In all three documents Exs.A.25 to A.27 western boundary is stated as ""Vedamanicka

Nadar Manai"". By oral and documentary evidence plaintiff has proved his prima facie case.

When plaintiff filed suit for injunction to restrain the violation of alleged right and if the existence of the right is disputed, plaintiff must establish

his right before he gets injunction to prevent recurrence of its violation. As discussed earlier, plaintiff has established his possession and his

possession has to be protected as against the alleged interference by defendant.

Defendant claims right of possession in the suit property under Ex.B.3. As pointed out earlier in Ex.B.3 sale deed, eastern boundary is stated

as Muthiah Nadar Thottam. Property covered under Ex.B.3 does not relate to the suit property. That apart it is relevant to note that D.W.2 who is

the vendor in Ex.B.3, has denied his signature in Ex.B.3 sale deed. Therefore, it cannot be concluded that the defendant has better right than that of

the plaintiff.

Even before filing of the suit, defendant has issued Exs.B.4 and B.6 notices to the plaintiff and P.W.3 which were received by them under

Exs.B.5 and B.7. Plaintiff has neither replied nor made a mention about the issuance of notice by defendant in the plaint. Pointing out non-mention

of pre-suit notice issued by the defendant, lower appellate Court faulted the plaintiff for suppressing the same. Plaintiff has filed the suit even in

October, 1984. Notice was issued subsequently. Hence, plaintiff cannot be blamed for not responding to the notice.

Pointing out the issuance of notice, learned Counsel for the respondent contended that when defendant is disputing title of the plaintiff, it was

submitted that the lower appellate Court has rightly held that the plaintiff ought to have filed the suit for declaration of his title. Contending that

permanent injunction is not to be granted only on the ground of plaintiff''s possession without adjudicating question of title, learned Counsel for

respondent placed upon reliance in Srinivasa Pillai v. Ragunathan 1983 (1) M.L.J., 159. In the said decision, S.Nainar Sundaram,J. has held thus:

Nobody can dispute the general principle that a person in peaceful possession is entitled to be maintained in possession against all but the true

owner and the suit by such a person for an injunction against any other person threatening to dispossess him is maintainable and there could be an

investigation of his cause and relief granted if there is a warrant for it on facts. As pointed out by the Supreme Court in M. Kallappa Setty Vs.

M.V. Lakshminarayana Rao, , the plaintiff can on the strength of his possession resist interference from persons who have no better title than

himself to the suit property. The propriety of protecting the possession of the plaintiff, who has failed to establish his title, when the defendant''s

plea of title has been rejected, came up for consideration before Gokulakrishnan,J. in Mohammed Sulaiman v. Mohideen Thambi 1971 (84) L.W.

252 and the learned Judge found, that in that case both the Courts below concurrently fond that the defendants have neither title to nor possession

of the suit properties and in the said circumstances when the plaintiffs are in possession of the suit properties, they are entitled to have their

possession protected by a decree, of injunction.

In the said case there was a dispute on the question of title to the suit property between plaintiff and defendants. Under those factual situation, the

learned Judge has held that without adjudicating question of title one way or other, permanent injunction is not to be granted. In the present case,

suit property is a Natham poramboke in which neither the plaintiff nor the defendant can claim any title. Under such circumstances, question of

deciding title does not arise.

Lower Appellate Court interfered with the judgment of trial Court mainly on the ground that plaintiff has not sought for declaration, but filed the

suit for permanent injunction simpliciter. A suit for permanent injunction is not to be dismissed per se merely on the ground of absence of prayer for

declaration of title if the plaint discloses foundation of plaintiff''s possession in the suit property. Where the evidence is to the effect that the plaintiff

is in possession and the suit is for injunction against alleged interference of possession, plaintiff is entitled to sue for a mere injunction without adding

prayer for declaration of his rights.

Once prayer for possession of the plaintiff is established and injunction restraining interference with such possession can be granted against any

one who has no better right than the plaintiff. Learned Counsel for the appellant has also placed reliance upon Rame Gowda v. Varadappa Naidu

AIR 2004 SCW 4205. The Supreme Court has held that restraining defendant from interfering with peaceful possession of plaintiff wherein plaintiff

was in ''settled possession'' and the Supreme Court has held that ''settled possession'' of plaintiff entitles him to protect his possession and upheld

grant of injunction.

As noticed earlier under Ex.A.27 sale deed, P.W.2 has already sold away eastern portion to one Deva Pitchai, but P.W.2 has produced all

three original sale deeds Exs.A.25 to A.27 and deposed to the effect that in those sale deeds western boundary is stated as Vedamanickam Nadar

Manai. Boundary recitals in Exs.A.25 to A.27 were disbelieved by the first appellate Court on the ground that no witness had been examined to

prove the boundary recitals thereon. This finding of lower appellate Court is factually incorrect, since P.W.2 was examined who has spoken about

western boundary as Vedamanicka Nadar manai. First Appellate Court discarded evidence of P.W.2, observing that P.W.2 having parted with

the property, is not competent person to produce original documents Exs.A.25 to A.27. Holding that Exs.A.25 to A.27 are not from proper

custody, lower appellate Court held evidence of P.W.2 and boundary recitals in Exs.A.25 to A.27 are unacceptable.

It is no doubt, true that P.W.2 has already parted with the eastern site, Manai. But the production of sale deeds by P.W.2 cannot be the

reason for disbelieving the evidence of P.W.2 and the boundary recitals in Exs.A.25 to A.27. Of course, recitals of boundaries in documents

between third parties are not admissible u/s 11 or 13 of the Indian Evidence Act, but they could be admitted u/s 32 when conditions laid down u/s

32 are satisfied. Recitals in documents not inter parties are ordinarily irrelevant unless they can be brought within condition of u/s 32. Statement as

to ownership of piece of land given as boundary in a sale deed between third persons may be admissible or if the conditions necessary to bring

Section 32 of the Indian Evidence Act into operation are proved. A purchaser under Ex.A.26 and a vendor under Ex.A.27 had clearly spoken

about the western boundary in those sale deeds with the examination of P.W.2 western boundary recital in Exs.A.25 to A.27 becomes relevant.

While so, the lower appellate Court grossly erred in ignoring the weight of this evidence and circumstances.

In proper appreciation of oral and documentary evidence, trial Court has upheld the plaintiff''s possession and enjoyment of the suit property.

The first appellate Court failed to properly appreciate proved facts and apply law in proper perspective. When the lower appellate Court has

misread the evidence and ignored weight of circumstances and allowed its judgment to be influenced in consequential matters, exercising

jurisdiction u/s 100 C.P.C., the High Court can interfere with the findings of the first appellate Court. The lower appellate Court misdirected itself

and erred in interfering with the permanent injunction granted by the trial Court which is based on sound exercise of discretion. The judgment of the

appellate Court is liable to be set aside and the judgment of the trial Court is to be restored.

In the result, the Second Appeal is allowed and the judgment in A.S. No. 104 of 1992 on the file of the Sub Court, Ambasamudram, is set

aside. The judgment in O.S. No. 474 of 1984 on the file of the Additional District Munsif, Ambasamudram, is restored. In the circumstances of the

case, both parties are directed to bear their respective costs.