Malaya Gounder and Others vs Palanisamy and Others

Jagadeesan, J.—By consent of both counsel, the appeal itself is taken up for final disposal.

The appellants have filed the above appeal against the order of injunction granted in I.A. No. 1868 of 1993 in O.S. No. 365 of 1993 on the file

of the Subordinate Judge, Udumalpet. The only grievance of the appellants is that the respondents 1 and 2 who have filed the suit for specific

performance have not produced any documents to show that they are in possession and even the Ex.A-1 agreement produced by them does not

show that possession has been handed over to them. But the trial court has relied upon Ex.A-16, which is a Commissioner''s Report, filed before

the Tahsildar, Record of Tenancy, and found that the respondents 1 and 2 are in possession of the suit property and granted injunction. The

learned Counsel for the appellants contended that no Commissioner could be appointed to find out the physical possession of the parties and even

if the Commissioner files the report incidentally with regard to the possession of any specific parties, that cannot be taken into consideration by the

courts and the possession has to be established by independent evidence and as such the reliance placed by the lower court on Ex. A-16 is

contrary to law and on that short ground, the order of the court below has to be set aside and the appeal has to be allowed.

The learned Counsel for the respondents contended that pursuant to the Commissioner''s Report the Record of Tenancy Officer has recorded

the respondents 1 and 2 as cultivating tenants and the appellants have not filed any appeal against the said order of the Record of Tenancy

Tahsildar and it has become final, which proves that the appellants are not in possession and hence the appeal has to be 1 dismissed.

I have considered both the contentions of the learned Counsels. A perusal of the order of the trial court would clearly establish that the lower

court has granted interim injunction only on the basis of Ex.A-16 which is the Commissioner''s Report filed before the Record of Tenancy Officer.

As pointed out by the learned Counsel for the appellants, the court cannot appoint any Advocate Commissioner to find out the physical possession

of the parties. He relied upon the judgment reported in G. Ramadoss Naidu v. L. Ramakrishna Naidu 1987 T.L.N.J. 266. The learned Counsel

for the appellants further referred to a Division Bench judgment reported in T. Parameswari v. S.S. Investments (P) Limited (1993) 1 L. W. 109

and contended that the judgment had laid down a principle on which the injunction can be granted in a specific performance suit and those

principles do not apply to the facts of the present case and as such the trial court ought not to have granted injunction. The appellants'' contention

has to be accepted. As pointed out already, in the series of documents that have been marked before the trial court, none of the documents is

relevant with regard to the respondents'' possession except the above referred Commissioner''s Report Ex. A-16. In the absence of any document

to prove the possession and in the absence of any oral evidence by the parties, the court below is not correct in relying upon the Commissioner''s

report alone finding that the respondents are in possession of the suit properties. The learned Counsel for the respondents though pointed out that

on the basis of the Commissioner''s Report the Record of Tenancy Officer has passed an order, that order is subsequent to the filing of the suit and

hence that cannot be taken into consideration.

For the reasons stated above, the order of injunction granted by the lower court cannot be sustained and is liable to be set aside; accordingly,

the same is set aside. The civil miscellaneous appeal is allowed. No costs.