Madasamy Pandi vs Pappathiammal

R. Mala, J.—The second appeal has been preferred against the judgment and decree dated 06.10.2003 made in A.S. No. 25 of 2003 passed by the learned Subordinate Judge, Tuticorin, confirming the judgment and decree dated 28.11.2002 made in O.S. No. 277 of 1997 passed by the learned Principal District Munsif, Tuticorin.

The averments in the plaint is as follows:

The suit property is classified as ''Natham'' in the revenue records. The plaintiff is in possession and enjoyment of the schedule property. During 1987, the plaintiff constructed a hut in the suit property and lived there for three years. She is enjoying the same storing materials and other things. She also put up fence by Karukku Mattai around the suit property. The hut was assessed to house tax and the plaintiff is paying the same. Considering the possession and enjoyment of the suit property, Special Tahsildar, Turicotin has issued patta in favour of the plaintiff n 05.02.1996. The defendant is not at all having any interest and title over the suit property and he attempted to interfere with the possession and enjoyment of the suit property and to remove the hut. The plaintiff preferred a complaint. Since the defendant is a powerful person, the plaintiff was constrained to file the suit for injunction restraining the defendant from interfere with the possession and enjoyment of the suit property and he prayed for a decree.

The gist and essence of the written statement filed by the defendant is as follows:

The averment that the plaintiff is in possession and enjoyment of the suit property is baseless. The patta is not valid. There is no hut in survey No. 192/52 as Door No. 4/77F. The defendant is in possession to the extent of 9 cents and the hut as door No. 4/87B in survey No. 192/52. Door No. 4/77F in survey No. 192/56. The plaintiff has obtained patta illegally for 9 cents instead of 3 cents. No notice was issued at the time of changing patta. Hence, the defendant preferred an appeal and the same is pending. There is no cause of action for suit. The plaintiff has no right over in survey No. 192/52 and door No. 4/87B. Defendant''s wife is a necessary party. Since she has not impleaded, the suit is barred for non-joinder of party. Hence he prays for the dismissal of the suit.

The learned Principal District Munsif, Tuticorin after considering the averments in the plaint and written statement, framed four issues and considering the oral evidence of P.Ws.1 and 2, D.Ws.1 and 2 and Exs.A1 to A9, B1 to B10, come to the conclusion that the plaintiff is in possession and enjoyment in the suit property and decreed the suit granting bare injunction in favour of the plaintiff. Against the said judgment and decree, the defendant herein has preferred an appeal before the learned Subordinate Judge, Tuticorin. The learned First Appellate Judge, after considering the arguments of both sides and after framing proper points for consideration, dismissed the appeal and confirmed the decree and judgment of the trial Court. Against that the defendant has come forward with this appeal.

The substantial questions of law arises in the Second Appeal are as follows:

Whether the findings of the Courts below are vitiated by its failure to consider the documentary evidence under Ex.B1 to B3 for the period from 1988-89 to 1996-97 and Ex.B10 and the admission of P.W.1?

Whether the Court below is right in relying upon Ex.A1, patta which came to be obtained just before the institution of the suit especially when no prior documents produced?

Whether the Courts below is right in entertaining the suit for bare injunction without seeking the declaration of title especially when the title of the respondent is disputed?

Points:

The respondent as plaintiff had preferred a suit for bare injunction stating that she is in possession of survey No. 192/52 by putting up house as Door No. 4/77F recognizing her possession, patta has also been given under Ex.A1 and patta number is 392. Her house is assessed to house tax and the same has been paid by her as per Exs.A2 to A5. Since the appellant/defendant attempted to interfere the possession and enjoyment of the respondent/plaintiff, the plaintiff had come forward with the suit. The trial Court after considering the evidence and documents, decreed the suit. Against the same, the appellant/defendant preferred an appeal before the first appellate Court, where the appeal was dismissed confirming the decree and judgment of the trial Court. Against the same, the present second appeal has been filed.

The learned Counsel for the appellant would contend that the suit property is belonging to appellant/defendant and he is in possession and enjoyment of the same, the house is assessed to house tax; an appeal is pending as against the patta issued in favour of the respondent/plaintiff since no notice was issued to the appellant/defendant; respondent/plaintiff has not proved her case; so the decrees and judgments of both the trial Court and first appellate Court are not correct. The learned Counsel for the appellant relied upon the decisions reported in Chellathurai and Others Vs. Perumal Nadar, and 1998 2 L.W.178 Sooriyamurthy and 3 Ors. v. Chinnaswamy (Died) and 7 Ors.) and urged that the respondent/plaintiff must prove her case and thus he prayed for the allowing of appeal and dismissal of the suit.

The learned Counsel for the respondent would contend that the suit property is classified only as grama natham and the respondent/plaintiff is in possession and enjoyment of the suit property and the same has been recognized by Ex.A1; the respondent/plaintiff constructed the house in Door No. 4/77F and the same is assessed to house tax from the year 1988 to till date and she is paying house tax; since the appellant/defendant has attempted to interfere with the possession and enjoyment of the suit property, the respondent/plaintiff has given a complaint as per Ex.A8. The learned Counsel for the respondent would further submit that both the trial Court and first appellate Court have considered all the aspects in a proper prospective and come to the correct conclusion that the suit property is in legal possession of the respondent/plaintiff and since the appellant/defendant had attempted to interfere the same, injunction has also been granted and thus, he prayed for the dismissal of the second appeal.

The learned Counsel for the appellant would raise the first contention that the respondent/plaintiff has not proved her possession and enjoyment in the suit property on the date of filing the suit. He relied upon the decision reported in Chellathurai and Others Vs. Perumal Nadar, and argued that in a suit for injunction, it is the duty of the plaintiff to prove that she continued to be in possession on the date of suit. The relevant portion is as follows:

In a suit for injunction, it is the duty of the plaintiff to prove that he continued to be in possession on the date of suit. Only when evidence on both sides are even title to the property will have some relevance. Merely because the defendant has failed to prove his case, it does not follow that the plaintiff is in possession.

There is no quarrel over the preposition. It is true the respondent/plaintiff must prove his case.

Since the respondent has raised the plea that it is a concurrent findings of both trial Court and first appellate Court, there is no need to re-appreciate the evidence of both sides in this second appeal. At this juncture, the learned Counsel for the appellant would rely upon the decision reported in 1998 2 L.W.178 Sooriyamurthy and 3 Ors. v. Chinnaswamy (Died) and 7 Ors. and argued that if the Court omitted to consider the material piece of evidence, which requires consideration by the Civil Court also, this Court having every right to consider the same. The relevant portion is as follows:

Even though the lower appellate Court has got the right to re-appreciate the evidence, it has also got a duty to say why it is not accepting the findings of the trial Court, and why it believes the evidence of certain witnesses which has been discarded by the trial Court. A mere narration of the evidence of witnesses alone is not sufficient, and that is not the only duty of the lower appellate Court.

So as per the above decision, this Court has re-appreciated the evidence. Since the respondent herein filed a suit for bare injunction, she has to prove that she is in legal possession of the suit property and to prove the same, she has filed Ex.A1 Patta and Exs.A2 to A5 house-tax receipts.

The learned Counsel for the appellant would contend that Exs.A4 to A8 are after suit and hence this Court cannot place any relevance on the document of Exs.A4 and A8. The appellant/defendant has filed Exs.B1 and B2.

As already stated the suit property is in survey No. 192/52. In this case whether the suit property is a grama natham is to be decided. A bare perusal of Ex.A1, it is evident that the suit property is a grama natham and a patta has been given in the name of respondent/plaintiff Papathiammal W/o. Arunachalam. In Ex.A1, it was stated that the new survey number is 192/52 and old survey number is 192/1B and 0.03.70 Hectares, Patta No. 392 has been issued on 05.02.1996, much before filing of the suit. Ex.A2 is house tax receipt stands in the name of the respondent/plaintiff for the year 1988-89. In that door number has been mentioned as 4/77F. Ex.A3, house tax receipt is for the year 1989-1998 and Exs.A4 and A5 house tax receipts, which has been paid after filing the suit. But, to show her continuous possession, the respondent/plaintiff had filed Exs.A4 and A5. Ex.A6 is a field measurement plan for survey No. 192/pt. Ex.A7 is copy of survey field Register. In that, the name of respondent/plaintiff Papathiammal W/o. Arunachalam was mentioned as the owner of property and new survey number is 192/52 and old survey number is 192/1pt is poramboke, house to the extent of 0.03.70 Hectares. It is true Ex.A7 is dated 10.11.2000. But, as already discussed Exs.A1, A2 and A3 are much before the filing of Suit that has been corroborated by Ex.A7.

Photographs of the suit properties were marked as Ex.A9 series. But, to prove the same, photographer has not been examined and hence, the same cannot be looked into. Ex.B1 is house tax receipts stands in the name of the appellant/defendant''s wife Ilangamani Ammal for Door No. 4/87B. Exs.B2 and B3 are also the house tax receipts for Door No. 4/87 B for the subsequent years. They are all stand in the name of appellant''s wife Ilangamani Ammal. Ex.B4 is kist receipt for the Fasli 1410 and 1411 for patta No. 392, as per Ex.A1, which stands in the name of the respondent herein. Ex.B4 has come into existence after filing the suit. Since patta has been changed in the name of the respondent, the appellant herein has filed an appeal stating that no notice was issued to the appellant, the enquiry notice is Ex.B5 dated 06.03.1997. The appellant herein has examined as P.W.2, through him Ex.B9 house tax receipt for Door No. 4/262 has been marked and copy of patta has also been marked as Ex.B10, but those two documents are irrelevant.

While considering the evidence of P.W.1, who is none other than the husband of the plaintiff has deposed in cross examination that in the suit property originally there was a hut and now only it was changed as Karai house and the door number is 4/77F. The defendant''s land is in eastern side of the plaintiff''s land and the survey number is 192/56. Even though a suggestion was posed to him that the house tax receipts are not related to the suit property, that has been denied by him. An another suggestion was also posed to him that being a police personnel, he got Ex.A1, that has also been denied by him. P.W.2 Muthammal has stated in her evidence that the plaintiff is in possession of the suit property over 15 years. In her cross examination, she has stated that when her father was given patta for her house, the plaintiff was also given patta in her name. Nothing against her has been culled out in the cross examination. Hence, there is no reason to discard the evidence of P.W.2.

D.W.1-Ilangamani Ammal, who is none other than the wife of the defendant has stated in her evidence that she did not know about the house mentioned in Ex.A9 and she did not know whether there is thorny fence put up by the plaintiff. But, she fairly conceded that in Ex.B6, survey number was mentioned as 192/52 and the plaintiff''s name was shown. She has also stated that no document has been filed to show that patta has been revoked by the Government in the name of plaintiff. D.W.2 is one Padmavathi stated in her evidence that his house is situated in the eastern side of the suit property and patta stands in the name of one Pandaram, her elder brother. She fairly conceded that she has no right over the suit property. In her cross examination, she has stated that the plaintiff is familiar to her and she denied that suggestion that she is relative of defendant. She has also fairly conceded that in Ex.A9, she cannot say which is plaintiff''s house and which is defendant''s house.

Hence, considering the evidence of P.Ws.1 and 2 and D.Ws.1 and 2, the respondent/plaintiff has proved that the suit property is a grama natham and she is in possession and the same was recognized by Ex.A1, patta. She constructed a house and hut and paying house tax receipts and Ex.A2 to A5, house tax receipts are available before this Court. In the above said circumstances, I am of the opinion the respondent/plaintiff has proved that she is in legal possession of the suit property. Exs.A2 and A3 are the house tax receipts paid by the respondent/petitioner before the suit and Exs.A4 and A5 are the house tax receipts paid by the respondent/plaintiff after the suit and so her possession in the suit property is legal. Since the suit property is grama natham, declaration of title to the suit property is not necessary. So, the suit is maintainable, without declaration of title to suit property. The substantial question of law is ordered accordingly.

In above such circumstances, it is established that the respondent/plaintiff is in legal possession and enjoyment of the suit property and since the appellant/defendant attempted to interfere her possession, so she is entitled for injunction restraining from the appellant/defendant from interference with the peaceful possession and enjoyment of the suit property. Hence, the trial Court has considered all the aspects in a proper prospective and decreed the suit, which has been confirmed by first Appellate Court.

Hence, I am of the opinion that the Trial Court and the first appellate Court had come to the correct conclusion that the respondent/plaintiff is in legal possession and enjoyment of the suit property and granted injunction in favour of the respondent/plaintiff and the judgments and decrees of the trial Court and first appellant Court do not warrant interference and the same are liable to be confirmed.

In fine, the Second Appeal is dismissed and the judgments and decrees of the trial Court and first appellate Court are confirmed. No cost.