Nallu vs Pushpam and Another

P. Sathasivam, J.—The plaintiff in O.S. No. 133 of 1996 on the file of the District Munsif Court, Vedasandur, aggrieved against the order

made in C.M.A. No. 37 of 1996 on the file of the Principal District Judge, Dindugul, dismissing his petition for injunction has filed the present

revision u/s 115 of the Civil Procedure Code.

The petitioner/plaintiff filed the said suit against the respondent herein and one Rangan for permanent injunction restraining them from interfering

with his possession and enjoyment of the suit property. It is contended that one Venkatasamy Naicker obtained decree in O.S. No. 174 of 1979

against Perumal Naicker and another for recovery of a sum of Rs. 2,000. He also obtained an order of attachment before judgment of the

property in I.A. No. 261 of 1979 on 16.6.1979. Thereafter he filed E.P. No. 428 of 1981 and brought the property to sale. The petitioner herein

has purchased the said property in court auction and took possession through court on 2.11.1990. Since according to the petitioner the

respondent started giving trouble, he constrained to file the above mentioned suit for injunction. He also filed 1.A. No. 225 of 1996 for interim

injunction pending disposal of the suit. The trial court by an order dated 1.8.1996 granted injunction. Aggrieved by the said order the respondent

herein filed C.M.A. No. 37 of 1996 before the District Court, Dindigul. The learned District Judge after receiving certain documents as additional

evidence allowed the appeal and dismissed the petition for injunction. Aggrieved by such order the unsuccessful plaintiff has filed the above

revision.

I have heard the learned Counsel appearing for the revision petitioner as well as the first respondent.

Learned Counsel for the revision petitioner submitted that inasmuch as the petitioner/plaintiff has purchased the suit property under court auction

sale and he was given possession as evidenced by the documents, the appellate court ought to have confirmed the injunction granted by the trial

court. On the other hand, the learned Counsel for the first respondent submitted that inasmuch as the first respondent being a purchaser of 1/3rd

share even prior to the court auction as evidenced in Ex.R-5, dated 26.4.1985, the appellate Judge is justified in rejecting the claim for injunction.

I have carefully considered the rival submissions.

There is no dispute that the petitioner/plaintiff has purchased the suit property by way of court auction and possession was also handed over to

him. In support of the above plea the petitioner herein has filed Exs.P-1 to P-4. Exs.P-3 and P-4 show that the petitioner being an auction

purchaser, possession was handed over to him. Apart from the above documentary evidence the petitioner has filed Ex.P-5, dated 12.3.1996

which is a kist receipt for the period fasli 1405. No doubt the respondent herein has filed patta for the suit property as Ex.R-1 and also kist receipt

for fasli 1404.

The trial court in the light of Exs.P-1 to P-5 after holding that there is sufficient evidence to show that the petitioner/plaintiff is in possession of

the suit property, granted injunction pending disposal of the suit. In the appeal the first respondent herein marked certain documents and on that

basis the appellate judge after holding that as per the said documents the first defendant is entitled to said documents the first defendant is entitled

to 1/3rd share, allowed the appeal and dismissed the injunction application. It is the definite case of the petitioner/plaintiff that he purchased the

property in the court auction sale which was held in accordance with law and possession was also handed over to him by the officer of the court.

Relying on the decision of this Court reported in C. Ramasami v. Kuruva Boyan and Ors. (1991) 1 L. W. 244 learned Counsel for the petitioner

contended that the delivery of possession as seen from Exs.P-3 and P-4 cannot be ignored. In that decision, Srinivasan, J, (as he then was) has

held that,

It is not possible for a court to ignore the evidence afforded by the court delivery has been effected, on the mere allegation that there was no actual

delivery. In order to reject the official records such as the bailiff''s endorsements, there must be a definite and specific plea of fraud with full

particulars as are necessary to support the same, the court shall not direct an enquiry as to whether there is actual delivery. In every case the

judgment-debtor, is interested in stating that there is no physical delivery in order that he may obtain an order stay in the appellate court. A bare

allegation that the delivery is a paper delivery and that the appellate continues in possession is hardly sufficient to direct an enquiry whether thee is

physical delivery. The presumption u/s 114 of the Evidence Act that official acts are performed regularly will undoubtedly apply.

In the light of the law laid down by His Lordship, in view of Exs.P-3 and P-4 the claim of the petitioner/plaintiff cannot be ignored. It is true that

the respondent has also secured an order from the court as evidenced in A.S. No. 199 of 1984 dated 26.4.1985, on the file of the District Court,

Madurai North at Dindugul, in respect of 1/3rd share in the subject matter of the present suit properties. As rightly contended by the learned

Counsel for the petitioner we are now disposing of the interim injunction application pending disposal of the suit. There is no need to go into the

right title of the properties in dispute. If there is any material to show that particular party is in possession supported by acceptable evidence that

would be sufficient to consider the claim of the said person and his possession has to be safeguarded till the disposal of the suit. The learned trial

judge has considered this aspect and came to the conclusion viz.,

On the other hand the learned District Judge has not considered the issue relating to possession of the suit property. Merely because the

respondent herein has title in respect of 1/3rd share in the suit property it is not safe to come to a conclusion that he alone is in possession of the

suit property. According to the respondent herein she is entitled to only 1/3 share in the suit property. While, such is the position without

ascertaining in which portion of the suit property the respondent is in possession and without rendering a specific finding on this aspect it is not safe

to reject the case of the petitioner/plaintiff. The lower appellate court without any specific finding regarding possession committed an error in setting

aside the order of injunction granted by the trial court.

Under these circumstance, the order of the Principal District Judge, Dindigul in C.M.A. No. 37 of 1996, dated 30.6.1997 is set aside and the

order made in I.A. No. 225 of 1996, dated 1.8.1996 on the file of the District Munsif Court, Vedasandur, is restored.

Net result the civil revision petition is allowed. No costs.

I make it clear that the present conclusion is only with reference to the disposal of the injunction application pending disposal of the suit. Any

conclusion or reference made in this order with regard to the title of the respondent here in as declared under Ex.R-5 (A.S. No. 199 of 1984,

dated 26.4.1985) would not affect his defence. The learned District Munsif, Vedasandur, is directed to dispose of the suit before the end of April,

1998.

In view of the disposal of main petition, C.M.P. No. 14680 of 1997 is closed.