Payasam Karuppannan vs Viswananthan

S.S. Subramani, J.—Plaintiff in O.S. No. 181 of 1990, on the file of District Munsif''s Court at Erode, is the appellant.

Suit filed by him was one for permanent injunction restraining the defendant and his men from interfering with his peaceful possession and

enjoyment of the suit property.

Material averments in the plaint are as follows: The suit property situated in Erode and the locality is known as Sait Colony. It is said that by

various transactions of the owners of the property, an east west omen cart track upto a well on the north of the site owner to reach their respective

plots from the south was provided. Plaintiff came to occupy a portion of the road and put up a shed about 25 years ago. It is said that the plaintiff

has been making use of the same for the last 25 years, and has prescribed title by adverse possession. Defence has acquired one such site from the

owner and is running a Nursery School. Defendant is claiming that suit property also as his own and also moved the Revenue Divisional Officer for

getting possession. Plaintiff apprehends that the defendant may cause interference with his possession and enjoyment of the suit property, since the

R.D.O. has also assumed jurisdiction. It is said that the defendant has no right, title or interest over the property and it is not a part of the school

premises. Since the defendant is likely to interfere with his possession, the suit was instituted.

In the written statement filed by the defendant, he denied the claim of the plaintiff. He said that the pathway which is scheduled to the plaintiff has

trespassed into the same. Therefore, he filed a written statement and a counter claim. He said that originally plaintiff was allowed to sell sweets in

the school building, and the same is exploited by him, and has filed the suit without any bona fides.

It is said that since it is a part of the compound and the defendant is entitled to the same, now that the Plaintiff has claimed a right over that

property, defendant says that he may be allowed to recover that portion of the property in this suit itself. He wants a declaration that the suit

property belongs to him and also wanted a direction in the nature of a mandatory injunction to remove the structures.

On the above pleadings, parties went on trial.

Trial Court as well as lower appellate Court found that the suit for injunction is not maintainable. They said that the plaintiff has no right over the

property. At the same time, it was further found that defendant has got a better title than the plaintiff. His possession was unauthorised and,

therefore, gave a decree for mandatory injunction, directing the plaintiff to remove the structures and vacate the premises. Before trial Court as well

as lower appellate Court, one of the main contentions that was raised was, in a suit for injunction a counter-claim in respect of title to the property

can be entertained and whether the proceedings under Order 8, Rule 6-A, C.P.C. could be initiated. Both the Courts below held that the counter

claim is maintainable. It is on that finding, a decree was also granted to the defendant.

At the time of admission of the Second Appeal, the following substantial question of law has been raised for consideration;

Whether the Courts below were right and justified in holding that the counter claim under Order VIII - Rule 6-A, C.P.C. for declaration and

possession in a suit filed by the plaintiff - appellant for permanent injunction was maintainable?

To answer the substantial question of law, I need only refer to a very recent decision of the Supreme Court reported in Jag Mohan Chawla and

another Vs. Dera Radha Swami Satsang and others, wherein their Lordships said that in a suit for injunction, counter claim is maintainable, and the

same need not be even on the same cause of action. The counter claim can relate to the same property or even a different property. It was further

held that the counter claim is not limited to money suits alone. Their Lordships further said that the counter claim need not have even a nexus to the

cause of action. The only limitation their Lordships said was that the cause of action for raising the counter-claim must have arisen before the filing

of the written statement. Their Lordships held thus:-

In a suit for injunction, counterclaim for injunction in respect of the same or a different property is maintainable. A defendant can claim any right by

way of a counter-claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the

plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. In sub-rule (1) of Rule 6-A, the

language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that

would be the subject matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as

original action of the plaintiff. It need not relate to or be connected with the original cause of action or mater pleaded by the plaintiff. The words

any right or claim in respect of a cause of action accruing with the defendant"" would show that the cause of action from which the counter-claim

arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff.

In view of the judgment of the Supreme Court, it is not necessary for me to consider the various decisions of the High Courts. But the following

decisions were brought to my notice by learned counsel for the respondent, which have also taken the same view. Pathrose Samual and Another

Vs. Karumban Parameswaran, and Ramsewak Kashinath Vs. Sarafuddin and Others,

In view of the binding decision of the Supreme Court (cited supra), the substantial question of law is found against the appellant.

Learned counsel for the appellant submitted that even this Court is competent to consider the merits of the claim also and he has taken

necessary grounds in Memorandum of Appeal. His contention is that over the plaint property, defendant has no title and when he has no title,

mandatory injunction should not have been granted. Learned counsel brought to my notice the descript on the property in Ex B-1. He gave

emphasis to the boundaries wherein the property is described as south of road or south of footpath, etc., and said that the property scheduled to

the counter-claim is outside the property where the building is situated and the sale deed does not cover that property in respect of which the relief

of mandatory injunction has been granted.

Both the Courts below have concurrently found against the appellant and held that defendant is entitled to the property where the building of

the plaintiff is situated. It has also been found that he is in wrongful possession and the building is liable to be removed. Being a finding is liable to

be removed. Being a finding of fact, it will not be proper on my part to reappreciate over again the evidence that has been let in before the trial

court. On going through the decision of the Courts below, I find that not only on the basis of Ex. B-1, but also on the basis of other exhibits

produced by the defendant in this case, it has come to the conclusion that the scheduled property belonged to him Exx. B-2 and B-3 are two such

documents wherein defendant has been exercising right over the plaint scheduled item. We further find from those exhibits that the defendant has

obtained the right over the pathway on the basis of an auction and also to be made use of as a pathway. In this connection, it may be noted that the

plaint property is situated in front of a Nursery School conducted by the defendant, and this is the only passage to have access to be school. It is

seen that the plaint property stood in the name of one Thangavel Mudaliar, who is none other than the father of the defendant. Tax is also paid by

him, and receipts are produced before Court. Both the Courts below have come to the conclusion that this passage was made use of by the

parents of the school children to feed the kids during lunch time, and it is a part of the school compound. It is also stated by the Courts below that

the schedule property stands in the name of Thangavel Mudaliar and this fact is admitted by plaintiff. The statement therein is not objected by

learned counsel for the appellant. Since the question of law has been found against the appellant, and on merits, the concurrent findings of fact is

also against the appellant, I do not think any ground has been made out to interfere in second appeal. The second appeal is, therefore, dismissed.

No costs.