Perumal vs Madathi Ammal

Pushpa Sathyanarayana, J.—This is an appeal by the defendant in a suit for permanent injunction, challenging the judgment and decree dated 28.4.2008 passed by the First Appellate Court in A.S. No. 58 of 2006 wherein and by which the judgment and decree dated 03.01.2006 passed by the Additional District Munsif, Sankarankoil, in O.S. No. 140 of 2004 was reversed allowing the First Appeal at the instance of the plaintiffs, who sued for declaration and permanent injunction restraining the defendant from interfering with their peaceful possession and enjoyment of the suit second schedule property and for removal of the structures put up by the defendant in the suit third schedule property, in default, for grant of mandatory injunction to remove the same at the cost of the defendant. The case of the plaintiffs is that the suit first schedule property, which originally belonged to one Sankaran, was sold to one Gurusamy, who, retaining one portion of the same in Door No. 74, gifted an extent of 4.5 Carpenter''s feet East - West and 6.5 Carpenter''s feet North - South to the defendant by virtue of Gift Deed dated 11.6.1963. Subsequently, the said Gurusamy died leaving behind his wife Deivanai as his legal heir and she was in possession and enjoyment of the suit property. While so, the said Deivanai, gifted the suit second schedule property, which is part of first schedule property, to the plaintiffs by way of Gift Deed dated 16.9.1998 and then onwards, according to the plaintiffs, they have been in possession of the same. It is further stated that the second plaintiff was married to the son of the defendant Sankaralingam and in view of the relationship, during December 2000, they granted oral permission to the defendant to put construction in the pathway leaving the access to them to the suit second schedule property through the house of the defendant and subsequently, the defendant refused to allow the plaintiffs to use the entrance of his house to reach suit second schedule property. The plaintiffs, therefore, filed suit O.S. No. 140 of 2004 on the file of Additional District Munsif, Sankarankoil, for declaration that the suit second schedule property belongs to the plaintiffs and for permanent injunction restraining the defendant from interfering with the peaceful possession and for a mandatory injunction to remove the structures erected on the suit third schedule property.

The defence of the defendant was that the suit properties which originally belonged to one Sankaran, were given to Gurusamy, by way of registered sale deed dated 11.8.1952 and he, subsequently, gifted the same to the defendant by Gift Deed dated 11.6.1963 him and after his death, he and his mother Deivanai have been in possession and enjoyment of the same. According to the defendant, the suit property has only one entrance and no common pathway. It is further averred that due to a family arrangement between the defendant, his mother Deivanai and the first plaintiff, the suit first schedule property was gifted to him. According to him, while he has been in possession and enjoyment of the suit property, the plaintiffs tried to interfere with his possession and filed a false suit claiming to be in possession.

Before the trial Court, on the above pleadings, the parties took oral and documentary evidence. The first plaintiff examined herself as P.W.1 besides examining one Kaladi as P.W.2. The plaintiffs exhibited the Gift Deed Ex. A.1 dated 16.9.1998 given by Deivanai in their favour and marked rough sketch as Ex. A.2 apart from marking marriage invitations as Exs. A.3 and A.4 and Ex. A.5 photo and negative. On the side of the defendant, the defendant Perumal examined himself as D.W.1 and also examined one Eswaran as D.W.2. He exhibited the copy of the sale document dated 11.8.1952 in favour of his father as Ex. B.1, original of Mortgage Deed dated 02.12.1988 executed by him in favour of Marudhaiah as Ex. B.2, the original of Mortgage Deed dated 09.01.1991 executed by him in favour of Valliammal as Ex. B.3 and Death Certificate of Deivanai as Ex. B.4. He also exhibited the copy of gift document dated 11.6.1963 written by Gurusamy, father of the defendant in his favour as Ex. B.14 and copy of the gift document dated 30.5.1977 given by the defendant and his mother in favour of the plaintiff as Ex. B.15 apart from marking House Tax receipts, Electricity Bill payment receipt, letter in relation to water connection sent by the Sankarankoil Corporation, survey notice advice and various communications and advices received from the Electricity Board, Corporation, etc. as Exs. B.5 to B.13 and Exs. B.16 to B.19.

The trial Court, after evaluating entire evidence and on consideration of the arguments advanced by the learned counsel for the parties, finding that the plaintiffs had not made out, even prima facie, either tide or possession over the suit property, held that the defendant was in possession of the suit property and accordingly, dismissed the suit. On appeal in A.S. No. 58 of 2006, the learned First Appellate Court/Subordinate Judge, Sankarankoil, relying on the Gift Deed in favour of plaintiffs, found that plaintiffs have been in possession of the suit property and consequently decreed the suit as prayed for, reversing the judgment and decree of the trial Court. It is against the said judgment, the Second Appeal is preferred at the instance of the defendant.

At the time of admission of this Second Appeal, the following substantial questions of law were formulated for consideration:-

Whether the first Appellate Court is right in not appreciating that there is no proof of the execution of Ex. A.1 or its valid attestation and the same is not valid in law?

Whether the lower Appellate Court is correct in not noting that the respondents being out of possession of the suit property are entitled to maintain the suit without any prayer for recovery of possession?

Heard the learned counsel appearing for the appellant as well as the learned counsel for the respondents and perused the records.

From the materials available on record, it is seen that the suit property is house property in Gandhi Nagar 5th Street, Sankarankoil. The first schedule of property is to an extent of 17 Carpenter''s feet North -South and 5.5 Carpenter''s Feet East - West. The second schedule property is part of first schedule property measuring about 4 Carpenter''s feet East - West and 8.5 Carpenter''s Feet North - South. The third schedule property is to an extent of 2.75 Sq. ft. East - West and 17.875 Sq. ft. North -South. It is an admitted fact that the first plaintiff and the defendant are the children of one Deivanai Ammal. Indisputably, the suit property originally belonged to one Sankaran and he sold the same in favour of one Gurusamy under Ex. B.1 on 11.8.1952. The said Gurusamy under Ex. B.14 dated 11.6.1963 gifted the same in favour of the defendant.

According to the plaintiffs, after the death of Gurusamy, who is the husband of Deivanai, the property devolved on Deivanai and the said Deivanai under Ex. A.1 dated 16.9.1998 gifted the same to the first plaintiff which is denied by the defendant. It is relevant to note that the parties are closely related to each other. The second plaintiff was married to the defendant''s son as evidenced by Ex. A.4 marriage invitation.

Per contra, the defendant, had alleged that the suit property devolved on him under an oral family arrangement and from then onwards, he had been in enjoyment of the suit property and dealing with the same. In order to substantiate his claim, he has filed Ex. B.2 Mortgage Deed under which he had mortgaged the suit property on 02.12.1988 in favour of one Marudaiah. Another document filed under Ex. B.3 dated 09.01.1991 is also a Mortgage Deed executed in favour of Valliammal. The defendant also had filed the kist receipts, electricity bill and the communication by the Sankarankoil Municipality relating to water connection as Exs. B.5 to B.7 respectively. The defendant, in his deposition, as D.W.1, has admitted that he has been living only in Gandhi Nagar 3rd Street with his wife Rajammal and his three children.

On the above contentions, the question now to be decided is whether Ex. A.1 dated 16.9.1998 is valid and established in the manner known to law.

As stated earlier, the suit property is situate in Gandhi Nagar, 5th Street, whereas the first plaintiff, as P.W. 1, has deposed that she is residing in Gandhi Nagar 4th Street and she never lived in the suit property and that only her mother Deivanai was living in the suit property till her death. Though the first plaintiff has deposed that she has been living in the suit property and sought for the relief of injunction, admittedly, she has been living only in the next street, viz., Gandhi Nagar 4th Street. It is the case of the plaintiff that she used to visit the suit property often when her mother was alive. According to her, after the death of her mother, the defendant refused her entry to the suit property. Hence, she had to file the suit within a few days after the death of her mother Deivanai.

It is pertinent to note that both the plaintiffs and the defendant have admitted the fact that after the death of Gurusamy, his wife Deivanai has been living in the suit premises till the date of her death, which is a few days prior to the filing of the suit. Both the parties were at loggerheads only after the death of Deivanai. Further, it is seen that though the defendant had dealt with the property by mortgaging the same as per Exs. B.2 and B.3 Mortgage Deeds, and stated that the mortgagee Valliammal was put in possession of the property in lieu of interest, the same has not been established by the defendant. This can be inferred from Ex. B.3 wherein nowhere it is recited that the mortgagee was permitted to be in possession of the property in lieu of interest but it is clearly stated that interest is payable only by cash. Therefore, the version of the defendant that the mortgagee was in possession of the suit property, was rightly disbelieved by the trial Court. From a perusal of Exs. B.2 and B.3, it could be seen that the boundaries are described as portion of Door No. 74 in the front and south of the pathway. Therefore, it can also be inferred that the defendant was in possession of Door No. 74 which is a portion of Door No. 74. As per Ex. B.14 dated 11.6.1963 under which Gurusamy had gifted the property in favour of the defendant, it is clear that it should be the same property that was mortgaged by the defendant under Exs. B.2 and B.3 and the same would go to show that there was only one Door No. 74 in which, a portion of the property was gifted by Gurusamy in favour of the defendant. It is also seen that the survey notice and the order from the Sankarankoil Municipality under Exs. B.8 and B.9 respectively, relate to Door No. 74.

Insofar as Ex. A.1 dated 16.9.1998 Gift Deed in favour of the plaintiffs by Deivanai is concerned, the same has to be proved by the plaintiffs to get the relief sought for in the suit. Unless the plaintiffs establish the execution of the said document under which the plaintiffs claim right to the suit property, they cannot get the relief as sought for. P.W.1, in her cross-examination, has stated that it was 7 years since the Gift Deed was executed by her mother and she did not remember the date on which it was executed. According to P.W.1, the attestors to Ex. A.1 were some strangers who had come to the Registrar Office at that time. From a perusal of the materials available on record, it is also seen that P.W.2, one of the attestors alleged to have signed in Ex. A.1, has deposed that he did not know where the suit property is situate and also pleaded ignorance about the ownership. He has also deposed that when he went to the Registrar Office, the deed was already executed and he had signed it before the document writer. P.W.2 has further stated that one Karuppasamy also signed in the said deed. A mere reading of the deposition of P.W.2 would show that he was not sure of the place of attestation whether it was inside the Sub-Registrar''s Office or at any other place. He has also deposed to the effect that he has not seen the author of the document Deivanai signing the document or affixing her thumb impression before the Registrar. Therefore, the evidence of P.W.2 is not inspiring. A close scrutiny of Ex. A.1 would reveal that it was written on 16.9.1998 and registered on 21.9.1998. P.W.2, who is the attestor, seems to have signed on both the dates. Though P.W.2, in his evidence, has deposed that he was not able to recollect when and where it was signed and he has also categorically admitted that he has not seen the document being written as the same was already executed by Deivanai.

From a perusal of deposition of P.W.2, it can be seen that P.W.2 was not sure of the document which he was attesting. The plaintiffs also had not proved the execution of the document by any other means. Therefore, in the absence of any proof for execution of Ex. A.1, it is quite doubtful as to whether the plaintiffs can claim exclusive right over the suit property. Admittedly, Deivanai was the wife of Gurusamy and the property belonged to Gurusamy. On the date of death of Gurusamy, Deivanai was the only legal heir to inherit the property of Gurusamy. A perusal of the records would show that though the first plaintiff and the defendant are the children born to Deivanai, but they are born to two different husbands. However, it is the case of the defendant that Gurusamy had executed the Gift Deed in his favour under Ex. B.14 whereas the claim of the plaintiff is that Deivanai had executed the Gift Deed in 1998 under Ex. A.1. At this juncture, it is to be noted that Ex. B.14 is of the year 1963 executed during the lifetime of Gurusamy and the defendant has established that he has been dealing with the property even after the death of Gurusamy. Whereas, insofar as the property inherited by Deivanai from her husband Gurusamy is concerned, after her death, it would devolve equally on both the children, viz., the first plaintiff and the defendant. However, the first plaintiff had brought in Ex. A.1 alleged to have been executed by Deivanai which has not been proved in the manner known to law. Therefore, it is clear that if Ex. A.1 is not a valid document, then the suit property should devolve equally on the plaintiffs and the defendant. In the above circumstances, when the plaintiffs have failed to establish the execution of Ex. A.1 in exclusion of the defendant, the relief of declaration cannot be granted.

Further more, from a mere reading of the deposition of P.W.1, it is clear that she was also not in possession of the property as on the date of filing of the suit as admittedly she has been living in the next street, viz., Gandhi Nagar 4th Street. In the said situation, the plaintiffs, while asking for declaration, ought to have sought for delivery of possession also and the relief of permanent injunction as sought for, cannot be granted. As stated earlier, till the date of death, Deivanai Ammal was only residing in the suit property and the entry of the plaintiffs to the same was prevented by the defendant. The respondent counsel contended further that as the permission is oral and the same is subsequently revoked, it is not necessary to ask for recovery of possession.

In support of his contention, learned counsel appearing for the appellants relied on the decision of this Court in Vedavalliammale and Others Vs. Venkataraja and Others, and more particularly, referred to paragraph 28, which reads as follows:--

"Admittedly, the plaintiff Ramaraja was not in possession of the suit property at the time of filing of the suit in the year 1982. As such, the suit filed by the plaintiff Ramaraja for declaration that he is the legal heir of the deceased Kannusamy, without seeking the relief of possession, is not maintainable...."

Learned counsel also placed reliance on the decision of the Hon''ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, wherein in paragraph 13, it has been observed as under:--

"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.

13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

From the above principles laid down by the Hon''ble Apex Court, it is crystal clear that when the title of the plaintiffs to receive the property is under cloud, and they were not in possession of the property, the remedy open to them is to file a suit for declaration, possession and injunction.

At this juncture, it would be relevant to refer to the averment made by the defendant in his written statement to the following effect:--

It is settled position of law that 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. In the instant case, the defendant has categorically disputed the tide not only of the plaintiffs but also of his mother for executing Ex. A.1 Gift Deed and further denied the possession of the suit property by the plaintiffs. In such circumstance, the plaintiffs should have sought only for recovery of possession of the suit property and not for permanent injunction and mandatory injunction.

Further, when the plaintiffs have not established their right and title over the second schedule property, the relief of removal of obstruction over the third schedule property does not arise. The First Appellate Court failed to consider the above said aspect and decreed the suit in favour of the plaintiffs which, in my view, cannot be sustained.

Normally, in a case where the finding is recorded without any legal evidence on the record or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse or miscarriage of justice, it would be open for this Court to set aside such a finding and to take a different view. In the instant case, on the basis of the evidence available on record and the settled position of law, as pointed out in the foregoing discussion, I have no hesitation to hold that the plaintiffs have miserably failed to prove their case. The First Appellate Court, unfortunately, without considering the case from its proper prospective on the legal position correctly, committed an error, in decreeing the suit.

In view of the foregoing discussion, I am of the considered opinion that the judgment of the First Appellate Court would suffer from illegality and perverse approach by having not considered vital materials placed on record. Consequently, the Second Appeal succeeds and stands allowed. The judgment and decree of the First Appellate court are set aside and the judgment and decree of the trial court are restored. Connected Miscellaneous Petition is closed. In view of the relationship between the parties, they are directed to bear their own costs.