R. Gopalakrishna Pillai vs P.S. Venkatesam Pillai

Natesan, J.—The dispute in this case relates to a strip of land about 7 links width north to south and 136 links east to west which the

Plaintiff claims to have purchased from the sons of one Dharmalingam Pillai under exhibit A-1, dated 15th January 1985. The Defendant claims title

to the suit property under an oral sale decades ago by Dharmalingam Pillai to his deceased agnatic cousin Venugopala Pillai and the allotment of

the site to him in partition. Immediately south of the disputed site, the Defendant claimed, another extent about 16 links in width and this site

abutted the public street. It has now found finally in Second Appeal No. 650 of 1962 that this vacant site abutting the street belongs to the

Government and is poramboke. It may be stated that the Defendant claimed title to the suit site as well as to the site immediately south under the

same title by adverse possession. The suit out of which the second appeal arises was preceded by the suit, Original Suit No. 391 of 1055 on the

file of the District Munsif, Chidambaram, by the Defendant u/s 9 of the Specific Relief Act alleging trespass by the Plaintiff subsequent to

proceedings for eviction taken by the Government on the poramboke site. The Defendant lost that suit in the first Court and succeeded in revision

in this Court in Civil Revision Petition No. 247 of 1957. The Plaintiff thereupon instituted the present suit for declaration of this title to the suit

property and for an injunction against the Defendant executing the decree he had obtained in the suit filed u/s 9 of the Specific Relief Act. In the

alternative there was a claim for possession. There were various defences to the suit on the merits and on the maintainability of the suit. The Courts

below have, on ample and relevant evidence, found that the Plaintiff had title to the strip of land in question. They have also found Plaintiff''s

possession of the land within twelve years prior to the suit. The case of the Defendant of oral pur-chase of the property by his brother was found

against. These findings against the Plaintiff''s right to the suit property on the basis of title and adverse possession are findings of fact in this case and

not open to reconsideration in second appeal.

But learned Counsel for the Appellant attacks the decree of the Court below contending that the present suit is not maintainable, as the Plaintiff

had not surrendered possession of the property pursuant to the decree in the suit instituted by the Defendant u/s 9 of the Specific Relief Act made

in revision in this Court, before instituting his suit on the basis of title. In support of this position, learned Counsel relied upon a decision of the

Allahabad High Court in Parma Nand and Others Vs. Sm. Chhimmawati and Another, . It seen from the facts of that case that there was a decree

for possession in a prior suit u/s 9 of the Specific Relief Act and before surrendering possession a suit was filed for an injunction restraining the

decree holder in the suit u/s 9 from executing his decree for possession. Thereon while confirming the dismissal of the suit by the Courts below, the

learned Judge Belt Mohan Lall, observed:

In my opinion also such a suit does not lie The Appellants must first surrender possession and thereafter they can set up any right they like on the

basis of title. If they are granted an injunction restraining the Respondent from executing her decree the very object and purpose of the suit u/s 9

Specific Relief Act, will be defeated.

The vice of the latter suit in that case appears to be that it claimed only an injunction restraining the execution of the decree, and from the facts as

set out in the report it appears that it was the only relief claimed in the latter suit. Section 9 of the Specific Relief Act by itself imposes no specific

bar to a suit by the defected party in possession before surrendering possession. Section 9 of the old Act ran thus:

If a person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him

may by suit, recover possession thereof, notwithstanding C any other title that may be set up in such suit.

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

There is nothing in the language of the section to take away the remedies available to a person in possession of property as of right, and entitled,

to remain in possession. Of course it goes without saying that when there is a valid decree for possession against a Plaintiff, he will not be granted

an injunction from executing that decree. If the legality of the decree is not questioned, a decree-holder cannot be restrained from executing the

decree as between the parties to the decree. In the Allahabad case as I see it the relief being only for injunction the suit had necessarily to be

dismissed. Section 9 provides only a summary and speedy remedy to a person dispossessed. The title of the possession is outside the scope of the

suit. When a suit on title questioning the order in the summary suit is filed, in one sense the decree or order for possession is impugned, and in

manner provided by law as no appeal is competent. The object of the title suit is in substance to have the summary order for possession set aside

on the basis of title and right to present possession. In such a suit if the Plaintiff in possession has claimed declaration of his title, in my view it may

properly be followed by the consequential relief of injunction see Man v. Santaya AIR 1922 Bom. 216 Section 56 of the Specific Relief Act,

1877, will be no bar.

In the present case the Plaintiff has not only asked for declaration of his title but he has also prayed in the alternative for possession. As it

happened to this case, in the interlocutory proceedings for injunction the matter went up in appeal and the appellate Court refused interim relief of

injunction. It is noticed by the learned District Judge that the present Plaintiff was willing to permit the Defendant to take possession of the suit

property. Only he wanted a condition imposed that the compound wall which was created by him during his possession pending the suit u/s 9 of

the Specific Relief Act should not be demolished by the Defendant. In the circumstances of the present case the apprehension noticed in the

Allahabad case assuming it applies has no application. Without a claim for injunction the present suit could be maintained as the Plaintiff has

allowed the Defendant to take possession, and has claimed with declaration, possession as consequential relief. As pointed out by a division Bench

of this Court (Leach, C.J., and Byres J.) in Dandamudi Narasayya and Another Vs. Movva Subbayya and Others, a person without title in

possession of property is only a trespasser. The learned Judges observed:

The Appellants were in possession as trespassers and the fact that they succeeded in the suit u/s 9 of the Specific Relief Act did not make their

trespass any the less. They remain trespassers in spite of their decree.

This being the true legal position, I do not find any legal flaw in the frame of the suit that would vitiate the action.

The second appeal falls and it is dismissed. No costs. No leave.