Muthu Goundar vs Poosari @ Palaniappan and 4 others

The plaintiff in O.S.No. 107 of 1982 on the file of the district Munsif, Mettur is the appellant in the above second appeal. He filed the said suit

for permanent injunction against the defendants. The trial Court after holding that since the plaintiff was not in possession of the suit property

dismissed the suit. Aggrieved by the dismissal of the suit he filed appeal before the lower appellate Court and the same was also dismissed. Against

the concurrent findings of both the Courts below the unsuccessful plaintiff filed the present second appeal as stated above.

The case of the plaintiff is as follows:

According to him an extent of 1 acre 10 cents in Survey No.4/10 and another 2 acres in Survey No.12/1 are the subject matter of the suit

properties. The suit properties belongs to one Shanmugam. The said Shanmugam on 20.1.1979 leased out the suit properties in favour of the

plaintiff for the lease amount of Rs. 300 per year. Further, the had also entered into an agreement of sale on 29.6.1981 for Rs. 15,000 from the

said Shanmugam. While, such is the position the defendants who have no semblance of right in respect of the suit properties obstructing the plaintiff

from him peaceful enjoyment which necessitated filing of the present suit.

The defendants filed a written statement wherein they have denied the statement that the plaintiff is in possession of the suit property and the

agreement of sale between himself and one Shanmugam. It is stated that the entire Survey No.4/10 and 12/1 initially belonged to one Kandappa

Chettiar, grand father of said Shanmugam as well as one Kuilammal. The said Kandappa Chettiar was incharge of eastern portion and the western

portion was under the possession of Kuilammal. The eastern portion belonging to Kandappa Chettiar was leased out to various persons. From the

said lands the Shanmugam sold 2 acres to Chinnappan and 50 cents to plaintiff in 1971. On the other hand the said Kuilammal in the absence of

any legal heir dedicated her shar in favour of Vellaleswarer Kovil. Thereafter the said lands were entrusted to the person doing service to the said

temple. In this manner the suit properties were in enjoyment of the fore- fathers of the first defendant and thereafter first defendant was in

enjoyment along with other Kothukarers. Hence according to the defendants the claim of the plaintiff cannot be sustained, accordingly prayed for

dismissal of the same.

The learned District Munsif in the light of the above pleadings, after framing necessary issues and in the light of the oral and documentary

evidence dismissed the suit. Aggrieved by the dismissal of the suit the unsuccessful plaintiff filed appeal in A.S.No.17 of 1984 before the District

Court, Salem, pending appeal he also filed I.A.No. 213 of 1984 for reception of certain documents as additional evidence. The learned District

Judge after framing necessary points for consideration and after considering the case of both parties confirmed the decree of the trial Court and

dismissed the appeal. Hence, the present second appeal.

While entertaining the above second appeal this Court has framed the following substantial questions of law for consideration:

Whether the Courts below erred in law in declining to go into the question of title even though the suit is one for injunction?

Whether the lower appellate Court erred in not admitting the additional evidence asked for by the plaintiff?

Whether there has been a misconstruction of omission to construe the material evidence on record, on the part of the courts below when the

plaintiff was non-suited?

I have have Mr.R. Sekar learned counsel appearing for the appellant and Ms.N. Tharakeswari learned counsel appearing for the respondents.

The learned counsel appearing for the appellant submitted that in as much as the plaintiff has proved his possession by placing acceptable

evidence viz., Exhibits A.1 to A.10 apart from the oral evidence of P.Ws. 1 to 4 the Courts below ought to have granted decree as prayed for. He

also submitted that while considering the issue relating to injunction, it is open to the Court to go into title incidentally. Since in spite of valid oral

and documentary evidence the Courts below erroneously ignored the claim of the plaintiff, this Court is competent to interfere in this second

appeal. On the other hand learned counsel appearing for the respondents submitted that since the Courts for the respondents submitted that since

the Courts below concurrently found that the plaintiff fail to establish his claim and rejected the same, there is no merit in this appeal and prayed for

dismissal of the same.

I have carefully considered the rival submissions.

The plaintiff has filed the suit for bare injunction. According to him the suit property belongs to one S.G. Shanmugam, ancestrally he leased out

the suit property to the plaintiff with effect from 20.1.1979. He has paid the lease amount of Rs. 300 per year for three years. The plaintiff is a

cultivating tenant entitled to the benefits of tenancy laws and he has also in possession and enjoyment of the suit properly. With these averments he

has filed Exhibit A.1 receipt issued by the said Shanmugam lessor regarding payment of lease amount. It is also his case that he entered into an

agreement of sale with the lessor under Exhibit A.2 dated 29.6.1981. He has filed patta book Exhibit A.3 wherein the name of the plaintiff and

Survey number, extent have been mentioned. Exhibits A.4 to A.7 are kist receipts. Exhibit A.8 dated 3.3.1982 is a mortgage deed by one

Chinnappan and Mariappan. Exhibit A.9 dated 5.7.1935 is a settlement older which contains the name of grand-father of the lessor. Exhibit A.10

dated 26.7.1933 is a rough settlement patta. In that document also the name of the grand-father of P.W.2 has been mentioned. Apart from the

above documentary evidence plaintiff himself was examined as P.W.1, his lessor Shanmugam Chetty was examined as P.W.2. The plaintiff has

also examined two more witnesses as P.Ws.3 and 4 in order to substantiate his claim. On the other hand on the side of the defendants they have

filed Exhibits B.1 and B.2 - kist receipts. Exhibit B.1 is for a period 1975 - 76 and B.2 is for 1976 - 77. The first defendant was examined as

D.W.1 and he has also examined 3 more witnesses as D.ws. 2 to 4. Both the Courts below after holding that since the plaintiff has come forward

with a claim for bare injunction, there is no need to go into the title even incidentally. The Courts below in spite of the oral and documentary

evidence adduced on the side of the plaintiff referred to above rejected the claim on the ground that some of the documents viz., Exhibits A.4 to

A.7 are not true documents and they have procured with the help of P.W.4 for the purpose of the suit. The Court below has also observed that

Exhibit A.3 is not a genuine document. Even though there is a reference regarding the enjoyment of the suit property by the plaintiff in Exhibit A.8,

the oral Judge has rejected the same as unacceptable. The low appellate Court after holding that since Exhibit A.4 and A.7 relate to the same fasli

and for the same period, very much doubted the case of the plaintiff. Likewise, after rejecting the other documents including the patta book, kist

receipts, settlement order as well as rough patta preferred the oral evidence of D.Ws. 1 to 4. No doubt the Defendants witnesses 2 and 4 are aged

about 80 and 83 respectively. They deposed that only the first defendant is in enjoyment of the suit property, Now I have to consider whether the

rejection of the oral and documentary evidence produced on the side of the plaintiff by both the Courts below are justified and dismissing the suit

merely relying on the oral evidence of D.Ws.l to 4 is acceptable or not.

I have already observed that both the Courts below rejected the documents produced on the side of the plaintiff either as unacceptable or

there is no need to go into the title even incidentally. With regard to the first reason given by the Courts below, I shall consider at a later of point of

time. Regarding the objection that since the present suit is only for bare injunction, there is no need to go into title, I am of the view that if sufficient

proof is there on the side of the plaintiff with regard to his title apart from considering the evidence leading to injunction, it is open to the Courts to

go into the title incidentally. In this regard it is worthwhile to refer to the decision of Nainar Sundaram, J. (as he then was) reported in Krishnan v.

Lakshmi Ammal 1989 (2) L.W 76. In an identical circumstance, the learned Judge has concluded.

To have her possession protected, the plaintiff has to demonstrate that her possession could not be unlawful. Hence for the purpose of finding out

whether the plaintiff has got right to lawful possession, so as to maintain that possession the question of title can certainly be gone into.

With respect, I am in agreement with the view expressed by the learned Judge and the contrary view taken by both the Courts below in not

considering the material documents even for incidentally cannot be sustained.

Now, I shall consider the scope of Section 100 of Code of Civil Procedure. In Kochukakkada Aboobacker (Dead) by L.Rs. and others Vs.

Attah Kasim and others, their Lordships of the Supreme Court have held that,

When the trial Court and the first appellate Court fail to consider the relevant document in proper perspective and effect of those documents on

the rights of the parties, this Court is entitled to reconsider the evidence by drawing inferences from the admitted documents.

In Seeni Ammal Vs. Veerayee Ammal, , P. Sathasivam, J. after considering the earlier case laws has concluded,

If the findings of the Courts below are not supported by evidence or are based on misconception or erroneous, and perverse, this Court can

interfere in the second appeal.

In Major Singh Vs. Rattan Singh (Dead) by LRs. and others, their Lordships of the Supreme Court have hold,

Under these circumstances, when the Courts below have rejected and disbelieved the evidence on the ground that the propounder had not

properly discharged his duty, it is the duty of the High Court... to consider whether the reasons given by the Courts below are sustainable in law. In

view of the above reasoning of the trial court as affirmed by the appellate court, necessarily the High Court requires to go into that question to test

the reasons. In this perspective, the High Court has rightly gone into that question and found that the reasons given by the courts below are flimsy.

Thus there is substantial question of law that has arisen for consideration and the High Court has rightly considered the question, we entirely agree

with the High Court.

In A. Irudayasamy v. V. Perumal Naidu 1997 (1) L.W 474 subramani, J. with regard to power of this Court u/s 100 of the CPC has

concluded thus:

The High Court under S. 100 , C.P.C. is entitled to take into consideration the question whether the material evidence and relevant circumstances

were considered by the lower Courts. -This Court is also entitled to consider whether the finding of the lower Appellate Court is based on

evidence, and whether the evidence is based on pleadings. If the finding of the lower Appellate Court is based only on surmises or on wrong

application of law, and it is not based on evidence or pleadings, this Court is entitled to interfere with that finding.

I need not consider the agreement of sale executed by the plaintiff and one Shanmugam - P.W.2 under Exhibit A.2 dated 29.6.1981.

However, Exhibit A.3 is a patta pass book which contains the name of Shanmugam and Chinnappan. Shanmugam is a lessor of the plaintiff who

was examined as P.W.2. No doubt, there is a minor correction in the name of Chinnappan. However, the said document is issued by the

competent authority which contains not only the name of P.W.2 but also the survey number, extent, village, kist payable etc., After going through

the Exhibit A.3 carefully, I am unable to accept the reason given by both the Courts below in rejecting the said document. No doubt in Exhibit A.4

and A.7 same number is mentioned. However, we are concerned with the fasli 1381 which is relevant to consider the case of the plaintiff. Exhibit

A.5 relates to fasli 1381, wherein the name of Shanmugam is mentioned. The courts below rejected the kist receipts mainly on the ground that

those kist receipts are carbon copy and not the original. It is not possible to reject those documents on the only ground that those documents are

carbon copies and not the original. Exhibit A.9 is the settlement order passed in favour of grandfather of the P.W.2 relating to the suit property and

Exhibit A.10 is also supports the case of the plaintiff. By analysing the necessary averments in the plaint, oral evidence of P.Ws.l to 4, and Exhibits

A.3,5,9 and 10, I am satisfied that the plaintiff has established his case with regard to his possession and enjoyment in the suit property. When the

acceptable documents are available, it is Safe to accept and rely upon them rather than accepting the oral evidence. In our case the defendants

have very much relied on the oral evidence and the Courts below have also committed an error in preferring the oral evidence let in on the side of

the defendants than the acceptable valid documentary evidence let in on the side of the plaintiff. In the light of what is stated above, the finding of

the Courts below are perverse and contrary to the evidence on records. I also hold that the reason given by the Courts below in not considering

the documentary evidence let in on the side of the plaintiff also cannot be sustained.

No doubt, the learned counsel appearing for the respondents relying on the decision of this Court reported in Velayudham Pillai Vs. Sandhosa

Nadar and Others, submitted that grant of patta or payment of kist is not a conclusive as to tile or possession. In view of the reasons given by me

earlier, I am unable to accept the argument of the learned counsel appearing for the respondent. I am satisfied that the plaintiff has proved his case

by placing acceptable evidence.

Under these circumstances, the judgment and decree of both the Courts below are set aside, accordingly the suit filed by the plaintiff for

permanent injunction is decreed as prayed for.

Net result, the second appeal is allowed with costs throughout. Consequently, CMP.No.12712 of 1995 is closed.