R. Pannerselvam vs A. Subramanian and another

G. Rajasuria, J.—This Second Appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 26.11.2008 passed

by the learned Subordinate Judge, Namakkal in A.S. No. 172 of 2005 reversing the judgment and decree dated 06.02.2004 passed by the

learned Additional District Munsif, Namakkal in O.S. No. 188 of 2002. For convenience sake, the parties are referred to here under according to

their litigative status and ranking in the party array before the Trial Court. Avoiding discursive delineation and detailing of the facts in view of both

the Courts below having set forth the cases of the respective parties at length, the summation and summarisation of relevant factual scenario, which

is absolutely necessary and germane for the disposal of this Second Appeal could be portrayed thus:

The plaintiff/appellant filed the Suit O.S. No. 188 of 2002 seeking permanent injunction as against the defendants. Whereas the defendants entered

appearance and resisted the Suit as though the defendants have been in possession and enjoyment of the Suit property.

The Trial Court framed the issues. During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A7 were marked. On the defendants'' side

D1 examined himself as DW1 along with D.Ws. 2 to 6 and Exs.B1 to B13 were marked.

Ultimately the Trial Court decreed the Suit, as against which, the First Appeal A.S. No. 172 of 2005 was filed by the defendants which

reversed the judgment and decree of the Trial Court. Being disconcerted and aggrieved by the judgement and decree of the First Appellate Court,

the plaintiff has filed this Second Appeal on various grounds by setting out a few substantial questions of law in the memorandum of Appeal.

Heard the learned Counsel appearing on both the sides.

My learned predecessor framed the following substantial questions of law:

(a) Whether the learned Subordinate Judge was right in going into the question of the validity of Exs.A1 and A2 in the absence of any plea of an

issue regarding the same before the Trial Court?

(b) Whether the learned Subordinate Judge was right in not following the well settled principle of law that possession follows title in respect of

vacant land?

(c) Whether the learned Subordinate Judge was right in framing a point for determination which does not arise out of the pleadings of the parties

before the Trial Court?

A deep analysis and poring over of the judgments of both the Courts below including the typed set of papers would demonstrate and display

that the plaintiff filed the Suit O.S. No. 188 of 2002 for bare injunction on the ground that the plaintiff has been in possession and enjoyment of the

suit property on the strength of the sale deed Ex.A2 dated 16.7.2001 got executed in his favour from the Power of Attorney of the alleged owners

of the suit property.

The learned Counsel for the plaintiff would advance his argument to the effect that the First Appellate Court ignored the supine admissions made

by DW1 (D1) in support of the plaintiff''s case; the defendants cannot pick holes in Ex.A1, the Power Deed executed by the owners of the Suit

property in favour of their power agent; the defendants neither proved their title nor their possession over the Suit property and accordingly he

prayed for allowing the Second Appeal.

Whereas the learned Counsel for the defendants would develop his argument to the effect that the plaintiff''s very sale deed itself is a defective

one as the real owners did not executed the sale deed in favour of the plaintiff; there is nothing to indicate that the executants of the power deed in

favour of their alleged power agent are the legal heirs of their alleged propositus Thasi Naidu; the power deed itself is a dubious document as it

does not contain the signatures of the executants on all pages; the stray sentence here and there in the deposition of DW1 cannot be capitalised by

the plaintiff without positively adducing evidence in proving his case. Accordingly, he prayed for the dismissal of the Second Appeal.

Indubitably and indisputably, incontrovertibly and unassailably, the entire property measuring 1777� sq.ft. originally belonged to the said Thasi

Naidu and presently, the dispute is confined to an extent of 1337� sq.ft. excluding an extent of 440 sq.ft. on the South Eastern portion of the

aforesaid larger extent of 1777� sq.ft.; Subramanian, D1 herein previously instituted O.S. No. 524 of 1987 for himself and on behalf of his three

minor children as against one Ghani who is stated to be occupying the said 440 sq.ft. on the South Eastern Portion of the said larger extent of 1777

� sq.ft. The said Suit O.S. No. 524 of 1987 was filed for recovery of possession of the entire Suit property (1777� sq.ft.) and the same was

dismissed as against which, the same set of plaintiffs preferred Appeal A.S. No. 297 of 1994 for nothing but to be dismissed and finality was

achieved in the previous proceedings.

The learned counsel for the plaintiff placing reliance on the factum of the earlier Suit O.S. No. 524 of 1987 filed by D1 herein and his children

as against the said Ghani, would put forth and set forth his arguments to the effect that after the dismissal of the said Suit and the Appeal, there is

nothing to demonstrate that D1 and his children acquired possession over the Suit property and in such a case, it is glaringly and pellucidly,

palpably and plainly clear that the defendants are not in possession of the Suit property.

I could see considerable force in the submission made by the learned counsel for the plaintiff as his argument is based on clinching evidence

available on record. The said previous Suit O.S. No. 524 of 1987 for recovery of possession of the entire extent of the Suit property was

dismissed on 23.11.1992 as per Ex.A5, the judgment of the learned Subordinate Judge, Namakkal and the Appeal A.S. No. 297 of 1994 filed,

was also dismissed on 8.9.1995 as revealed by Ex.A7 the judgment of the learned District Judge, Salem wherefore, it is crystal clear that the

defendants have not taken possession of the Suit property herein. In this factual matrix, I am at a loss to understand as to how the defendants

unmindful of the results in the previous proceedings against them, could throwing to winds the truth and reality, plead as though they are in

possession and enjoyment of the Suit property.

The learned Counsel for the plaintiff would invite the attention of this Court to certain excerpts from DW1''s (D1) deposition during Cross-

Examination, which are extracted thus:

A bare perusal of those excerpts would clearly display as to how DW1 (D1) went to the extent of half-heartedly admitting partly the reality and

denied the rest of the truth, without having any responsibility to speak truth. For the purpose of achieving success in the litigative battle, by hook or

crook, D1 went to the extent of pleading before this Court quite antithetical to the judgments and decrees in O.S. No. 524 of 1987 and in A.S.

No. 297 of 1994 (Exs.A3, A5, A6 and A7) that the previous Suit was not for recovery of possession of the Suit Property. But, those judgments

and decrees would clearly indicate that the earlier Suit was filed by D1 and his three children for declaration and recovery of possession of the

entire property including the Suit Property. In the said previous Suit, the first defendant and his legal heirs contended that they derived title from

their original propositus Rangarajulu Naidu and obtained the Suit property under a power deed and they failed in both the Courts. As such, that is

much more than sufficient to hold that the defendants are not in possession of the Suit property herein.

The question arises as to whether the Court can pick holes in the case of the defendant and grant decree in favour of the plaintiff. The answer is

at once clear that the plaintiff should prove his case. In view of the trite proposition of law that the plaintiff has to stand or fall on his own pleadings

and evidence. It has to be seen as to whether the plaintiff proved his possession.

The above excerpt from the deposition of DW1 (D1) would clearly demonstrate that according to D1, the plaintiff demolished the tiled house

in the Suit property after the emergence of Ex.A2, the sale deed in favour of the plaintiff. Whereas PW1 deposed that consequent upon execution

of Ex.A2 the sale deed dated 16.7.2001 by the power agent of the original owners, he acquired possession of the Suit property and enjoying the

Suit Property. DW3, the Panchayat President of Thuthikulam, the area in which the Suit property is situated, would categorically depose as under:

As such, the defendants'' own witness DW3, who happened to be the Panchayat President clearly and categorically pointed out that the

defendants have not been in possession and enjoyment of the Suit property at any point of time and as such, it is crystal clear that the defendants

have falsely pleaded as though they are in possession of the Suit property and that enures to the benefit of the plaintiff in proving his case that he

has been in possession and enjoyment of the Suit Property.

The learned counsel for the plaintiff would convincingly highlight that DW3 himself clearly and categorically pointed out that only on

Application, the name of a particular person as owner would be entered in the Property Tax Register. However, in this case, the defendants have

chosen to obtain Ex.B7, the proceedings issued by the Special Tahsildar, Namakkal dated 18.08.1993, Ex.B8, the house site patta and Exs. B10,

B11 and B12, the house tax receipts, quite antithetical to the version of D.W.3 who by way of adding fuel to the fire, pointed out that neither

Subramaniam nor the said Rangarajan his relative ever was in possession and enjoyment of the suit property and they did not file any Application

for mutation.

It is a trite proposition of law that patta would not constitute title. Srinivasan and six others Vs. Sri Madhyarjuneswaraswami and five others, ].

The defendants questioned the title of the plaintiff. I am of the considered opinion that in this suit for bare injunction, the question of going into the

title of either of the parties would not arise. The Trial Court, in my considered opinion, has not framed the issue relating to the title to any of the

parties. However, in issue No. 2, it simply contemplated as to whether the dispute of title by the defendants was justified. At this juncture, I would

like to point out that in a case where there is paucity of evidence relating to proving possession of the parties concerned, the title of the plaintiff can

be gone into incidentally, so as to rely on the proposition that possession follows title. But, in this case, there is clear evidence that it is not the

defendants, but the plaintiff who is in possession of the suit property. As such, the First Appellate Court''s approach in giving a finding that the

plaintiff has not proved his title and consequently, he is not entitled to any injunction is apparently erroneous and it could not see the wood for

trees.

It is a common or garden principle of law that even a trespasser, who is in established possession of the property could obtain injunction.

However, the matter would be different, if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration

of title along with injunction relief. Here, a bare perusal of the plaint would demonstrate and evince that the plaintiff has not narrated anything about

the title dispute obviously because of the fact that in the previous litigation, D1 failed to obtain any relief. As such, the decision of this Court Chinna

Nachiappan and another v. PL. Lakshmanan, 2007 (4) CTC 70, which is to the effect that the plaintiff cannot seek for a bare permanent injunction

without seeking a prayer for declaration is not applicable to the facts and circumstances of this case. On the same ground the decision of the

Hon''ble Apex Court Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, , is also not applicable to the facts and circumstances of

this case.

In this view of the matter, I am of the considered opinion that the pleas and arguments advanced questioning the genealogy and the heir ship of

the executants of Ex.A1, to their alleged ancestor Thasi Naidu are all not germane for deciding this case.

The learned counsel for the defendants would also submit that the Power of Attorney was executed in Sri Lanka whereas Ex.A2, the sale deed

dated 16.07.2001 was registered in India and as per the decision of the Hon''ble Apex Court reported in Manjunath Anandappa Urf. Shivappa

Hanasi Vs. Tammanasa and Others, such a course is not contemplated. An excerpt from the said decision would run thus:

Forms 47 and 48 of Appendix A of the CPC prescribe the manner in which such averments are required to be made by the plaintiff.

Indisputably, the plaintiff has not made any averment to that effect. He, as noticed hereinbefore, merely contended that he called upon Defendant 2

to bring Defendant 1 to execute a registered sale deed. A part from the fact that the date of the purported demand has not been disclosed,

admittedly, no such demand was made upon Defendant 1. We may notice, at this juncture, that the plaintiff in his evidence admitted that Defendant

1 had revoked the power of attorney granted in favour of Defendant 2. In his deposition, he merely stated that such revocation took place after the

agreement for sale was executed. If he was aware of the fact that the power of attorney executed in favour of Defendant 2 was revoked, the

question of any demand by him upon Defendant 2 to bring Defendant 1 for execution of the agreement for sale would not arise at all. Furthermore,

indisputably the said power of attorney was not a registered one. Defendant 2, therefore, could not execute a registered deed of sale in his favour.

The demand, if any, for execution of the deed of sale in terms of the agreement of sale could have been, thus, made only upon Defendant 1, the

owner of the property. The balance consideration of Rs. 10,000 also could have been tendered only to Defendant 1. As indicated hereinbefore,

the purported notice was issued only on 8.8.1984, that is, much after the expiry of the period of three years, within which the agreement of sale

was required to be acted upon. (emphasis supplied)

A bare perusal of it would display that for executing a sale deed by a power agent of the original owners of the property referred to in the sale

deed, the said Power Agent should have a registered power deed in his favour. However, in this case, Ex.A1, is not a registered power deed.

However, the learned counsel for the plaintiff by trying to take protection u/s 33(1)(c) of the Registration Act, 1908 would develop his

argument that since the Power of Attorney was executed before a Notary Public in Sri Lanka, i.e., outside India, the question of executing a

registered power deed would not arise. However, Section 33 itself is qualified by Section 32 and it is quite obvious from mere reading of it.

Section 32 contemplates presentation of the sale deed for registration and not relating to execution.

Placing reliance on the decision of the Hon''ble Apex Court reported in Manjunath Anandappa Urf. Shivappa Hanasi Vs. Tammanasa and

Others, , the learned counsel for the plaintiff highlight that for executing the registered sale deed by a Power of Attorney in favour of a purchaser,

there should necessarily be a registered power deed. The Hon''ble Apex Court observed that there should be a registered power deed in favour of

the power of Attorney to execute a registered sale deed. However, I hold that deciding as to the validity of Exs.A1 and A2 is beyond the scope of

the injunction Suit.

The learned counsel for the defendants also would be right in his argument that the burden of proof is on the plaintiff to prove the genealogy

and in support of his contention, he would cite the decision of the Hon''ble Apex Court reported in State of Bihar Vs. Radha Krishna Singh and

Others,

The said decision would highlight and spotlight the fact that mere delineation of the genealogy would not be sufficient but there should be

evidence in support of the same. Once again, I would like to reiterate that in this case, such a decision on genealogy is not warranted. The

plaintiff''s possession is based on admissions made by the defendants themselves and also the factum of the previous proceedings, which D1

initiated and met with his Waterloo.

Accordingly, --

(i) the substantial question of law No.(a) is decided to the effect that the learned Subordinate Judge was not right in going into the validity of

Exs.A1 and A2 in this case.

(ii) the substantial question of law No.(b) is decided to the effect that the first Appellate Court failed to take into consideration the factum of

established possession on the part of the plaintiff in respect of the suit property but in the meantime, the plaintiff cannot expect that based on his

alleged proving of his title, it should have held that the possession of the suit property was with the plaintiff.

(iii) the substantial question of law No.(c) is decided to the effect that the first Appellate Court could have framed the points for determination in a

more detailed manner touching upon the factual and legal scenario involved in this case but it simply framed the points for determination as to the

tenability of the Appeal, which are not strictly in accordance with Order 41, Rule 31 of the Code of Civil Procedure.

In view of the ratiocination adhered to in deciding the aforesaid substantial questions of law, the judgment and decree of the First Appellate

Court are set aside and consequently, the decreeing of the Suit only in respect of granting injunction in favour of the plaintiff alone is restored. In the

result, the Second Appeal is allowed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petitions are

closed.