Palaniammal vs Kuppal (died) and Others

G. Rajasuria, J.—This second appeal is focussed by the plaintiff, inveighing the judgment and decree dated 12.12.2007 passed by the

learned I Additional Subordinate Judge, Erode in A.S. No. 6 of 2007 in reversing the judgment and decree dated 13.06.2005 passed by the I

Additional District Munsif, Erode in O.S. No. 572 of 2002. The parties, for the sake of convenience, are referred to here under according to their

litigative status and ranking before the trial Court.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:

a] The plaintiff filed the suit seeking the following reliefs:

To pass a decree in her favour for permanent injunction against the defendant:

restraining the defendant and her men from in any manner interfering with the plaintiff''s peaceful possession and enjoyment of the suit property and

for costs.

(Extracted as such)

setting out various averments, the gist and kernel of them would run thus:

During the year 1998, the plaintiff started occupying a Gramanatham poramboke land bearing Survey Nos. 792/3 and 793/2 of Vadugapatti

Village, by putting up hut, which came to be numbered as Door No. 243. Whereas the defendant without having any manner of right started giving

disturbance to her on various dates before the filing of the suit. Hence, she filed the suit for injunction.

b] Per contra, the defendant filed the written statement, refuting and challenging, inveighing and contradicting the averments/allegations in the plaint.

The defendant has been in possession and enjoyment of Site No. 45 in Survey Nos. 792/3 and 793/2 in Attavanai Anumanpalli Panchayat, Erode

District granted by the Government vide Ex. B1 patta dated 28.03.2002 and the defendant has been in possession and enjoyment of the same by

constructing a hut bearing Door No. 273. However, without any manner of right, the plaintiff filed the suit furnishing false description of the suit

property so as to cause disturbance to the defendant. The alleged claim of the plaintiff cannot be upheld as the plaintiff herself in the plaint averred

that she is a rank trespasser. In such a case, she is not at all entitled to any injunction.

Accordingly, she prayed for the dismissal of the suit.

c] Whereupon issues were framed by the trial court.

d] Up went the trial, during which, the plaintiff examined herself as PW 1 along with P.Ws. 2 and 3 and marked Exs. A1 to A13. On the side of

the defendant, D.Ws. 1 and 2 were examined and Exs. B1 and B2 were marked.

e] Ultimately, the trial court decreed the suit as prayed for as against which, the defendant preferred the appeal. Whereupon, the first appellate

court, reversed the judgment and decree of the trial court and dismissed the original suit.

f] Challenging and impugning the judgment and decree of the first appellate court, the plaintiff has preferred this second appeal on various grounds

and also suggesting the following substantial questions of law:

a) Whether the first appellate court is erred in law in not taking into consideration or giving a specific finding on the question whether the suit

property is different from the property covered under Ex. B1?

b) Whether the first appellate court is erred in law in dismissing the suit merely on the basis of patta (Ex. B1) in the absence of any other oral or

documentary evidence on the side of defendant, particularly when the plaintiff has proved her possession and enjoyment of the suit property prior

to and after filing of the suit by marking Ex. A1 to Ex. A13 though P.W. 1 to P.W. 3?

[Extracted as such]

On perusal of the records, I thought fit to formulate the following substantial questions of law to the knowledge of both sides.

Whether the first appellate court was justified in dismissing the original suit of the plaintiff on the main ground that the plaintiff had not proved her

occupation in respect of the property described in the schedule of the plaint and that the documents relied on by her were not in any way germane

for this case?

Whether there is any perversity or illegality in the judgment and decree of the first appellate court?

Heard both sides.

Indubitably and indisputably, the plaintiff according to her own version is an encroacher of Gramanatham poramboke land and the schedule of

the property in the plaint would reveal the description as under:

In Erode District, in Erode Taluk, in Vadugapatti village, Nagarajapuram at Om Sakthi Nagar in Government Natham poramboke S. No. 792/3

and 793/2, the site measuring 35 feet east-west and 30 feet North-South, in this the thatched shed constructed by the plaintiff and the surrounding

lands appurtenant to the house **within a following boundaries: West to the North-South Street, East to Valliammal''s agricultural land, North to

the Chidambaram''s agricultural land and South to the Loganathan and Saradha house. Within this boundaries the house site situated and the

thatched shed constructed thereon. The door number of the house is 243. The property situates within the Attavanai Anumanpalli Panchayat,

Modakurichi Vattaram of Erode District.

(Extracted as such)

(Emphasis supplied)

A mere running of the eye over it would exemplify and demonstrate that the property found described in the schedule of the amended plaint is not

one forming a corner plot as wrongly held by the trial court. But one fact is clear that the door number of the hut of the plaintiff is 243; whereas the

defendant would rely upon the clinching legal document Ex. B1, which was issued in favour of the defendant by the Special Tahsildar, Adi

Dravidar Welfare, Erode with sketch attached to it and in that the site No. 45, forms part of virtually the south eastern corner of the larger extent of

lay out, wherein the defendant''s hut bearing door number 273 is situated. The trial court misunderstood as though that site No. 45 is situated to the

north western corner of the larger extent.

Whenever a sketch is filed in court, it has to be construed properly. The top portion should be construed as North; accordingly, the other

directions should be understood. If the writings are found on the side of a page indicating the heading of the sketch, then accordingly that would

constitute the northern portion of the sketch and accordingly, the other directions should be understood.

Here, the trial court misunderstood and specified the location of the site in Ex. B1 and because of that, the trial court caused some flutter in its

judgment. The admitted evidence is that the hut of the plaintiff is situated five huts away from the defendant''s hut. In such a case, there is no

question of a dispute regarding the location of the respective huts would arise. The plaintiff also clearly pointed out as per her versions in the

evidence that she is having no claim over the property described in Ex. B1. However, the learned counsel for the defendant would submit by

expressing doubt, that if any injunction decree is granted in respect of the description as found set out in the plaint, then the plaintiff may take undue

advantage of the said decree and dispossess the defendant, who is in occupation of the hut situated in Ex. B1.

I would like to clarify and disambiguate the ambiguity, if any, that the description in the plaint is having nothing to do with the description as

found in Ex. B1 and any injunction granted in respect of the hut described in the schedule of the plaint bearing door No. 243, cannot be made use

for disturbing the defendant''s possession in the area described in Ex. B1.

As such, regarding the location is concerned, my above discussion would protect both. Even by phantasmagorical thoughts, the injunction that

would be granted in favour of the plaintiff for the limited extent of protecting his possession of Door No. 243, will not in any way enure to the

benefit of the plaintiff to dispossess the defendant from the hut bearing Door No. 273 situated in Ex. B1.

The learned counsel for the defendant would raise a doubt that the plaintiff taking undue advantage of the injunction decree in his favour might

claim allotment of the property from the Government.

I would like to dispel such an apprehension by pointing out that it is for the Government to grant patta or not and the injunction is only for the

purpose of protecting the temporary occupation of the plaintiff to the limited extent that she should not be dispossessed otherwise than in

accordance with law.

My mind is reminiscent and redolent of the following precedents of the Hon''ble Apex Court in this regard.

Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, Certain excerpts from it would run thus

In a suit for permanent injunction to restrain the defendant from interfering with plaintiff''s possession the plaintiff will have to establish that as on

the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the

property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical

or lawful possession, either of himself or by him through his family members or agents or lessees/licenses. Even in respect of a land without

structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is

not in issue in such a suit, though it may arise incidentally or collaterally.

Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another,

It is thus clear that so far as the Indian Law is concerned the person in peaceful possession is entitled to retain his possession and in order to

protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of

land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the

property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the

trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injunction even a rightful

owner from using force or taking law in his own hands and also by restoring him in possession even from the rightful owner (of course subject to

the law of limitation). If the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior

peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property

may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy

character or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have

recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true

owner.

It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the

true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by

a catena of decisions....

The first appellate court instead of pragmatically and practically approaching the matter, simply set aside the judgment and decree of the trial

court and dismissed the original suit itself leaving the parties to fight in the street, which the first appellate court was not expected to do so.

Accordingly, the substantial questions of law are decided to the effect that the first appellate court was not justified in dismissing the original suit

of the plaintiff on the main ground that the plaintiff had not proved her occupation in respect of the property described in the schedule of the plaint

and that the documents relied on by her were not in any way germane for this case. As such there is illegality in the judgment and decree of the first

appellate court. Accordingly, this second appeal is disposed of by granting injunction to the limited extent of protecting the possession of the

plaintiff in respect of the hut bearing Door No. 243 alone and this judgment will not in any way enure to the benefit of the plaintiff to dispossess or

disturb the defendant, who is in the hut situated in Ex. B1. However, there shall be no order as to costs. Consequently, the connected

miscellaneous petition is closed.

[** The amendment description as found in the plaint, as per order in I.A. No. 2577 of 204 dated 1.9.2004]