Thanamma vs Ramaswami Pillai Velayudhan Pillai

Sankaran, J.—This second appeal has been preferred by the Defendant against the decree passed in this case by the lower appellate Court upholding Plaintiff''s claim to the possession of the suit property and also restraining the Defendant by a permanent injunction from entering upon the property. The suit was instituted by the Plaintiff essentially as a title suit and the primary relief claimed was for a declaration that the title to the property was with him and that he was in possession of the property in his own right. According to him the property was obtained by his predecessor-in-interest under a mortgage more than a century back and that by efflux of time the mortgage right ripened into full ownership.

The Defendant is alleged to have threatened the possession of the Plaintiff on the strength of a sale deed Ext. I of the year 1109 obtained by her from the trustees of the Vadasseri Nanjinad Vellala Trust at Nagercoil, It was to avert such apprehended dispossession that the relief by way of permanent injunction restraining the Defendant from entering upon the property was also claimed in the suit.

In resisting the suit the Defendant contended that the Plaintiff or his predecessors-in-interest had neither title to nor possession of the property and that the mortgage relied on by the Plaintiff is not genuine. The Vadasseri Trust was stated to have owned this property until the date of the sale deed in favour of the Defendant. It was also contended that by the execution of that sale deed the ownership as well as possession of the property passed on to the Defendant and that she is in lawful possession and enjoyment of the property. On a consideration of the evidence, both, oral and documentary adduced by both sides, the trial and on finding that Plaintiff had neither title to nor possession of the property, the suit was dismissed.

That decision was modified by the lower appellate Court which found that the title to the property has become vested in the Defendant as per the sale deed Ex. I and that there is no basis for the rival claim of title set up by the Plaintiff. On the question of possession , the lower appellate Court came to the conclusion that even prier to the date of Ex. I the Plaintiff''s predecessors-in-interest were in permissive possession and enjoyment of the property under the Vadasseri Trust and that such possession is being continued by the Plaintiff, It is on the strength of such a finding on the question of possession that the lower appellate Court has restrained the Defendant from entering upon the property. After thud modifying the first Courts decree, the parties have been directed to suffer their respective costs. Plaintiff-Respondent has filed an objection me n in respect of the costs disallowed by the lower appellate Court.

Regarding the mortgage set up by the Plaintiff the necessary details were not disclosed by the Plaintiff in the plaint or in his replication beyond slating that it was more than a century old. At the evidence stage, Ext. L, dated 17-9-1041 was put forward as the plaint mortgage executed in favour of the Plaintiff''s ancestor. Both the lower Courts have concurrently found that Ex. L is a spurious document and that the mortgagee under that mortgage did not come into possession of the property on the strength of it.

Exhibit F is the copy of the ozhuku for the plaint property. Ex. M is the copy of the settlement proceedings relating to this property at which title to the property was found in favour of the Vadasseri Trust and Patta issued accordingly. Relying on these two documents the lower Courts have concurrently found that the title to the plaint property was with the Trust until the date of the sale deed Ex. I. It has also been concurrently found that Ex. I was executed by competent persons; that it is a valid document and that under this sale deed the title to and possession of the suit property have become vested in the Defendant. These findings have become final and conclusive and Plaintiff cannot go against them.

The position taken up by the learned Advocate for the Appellant-Defendant is that in view of this finding no order of injunction could be issued against the Defendant from entering upon the property. I think that this contention has to prevail. The lower appellate Court issued such an order of injunction on the basis of its finding that the permissive possession which the Plaintiff''s predecessors had obtained from the Trust has not been terminated. The correctness of this finding is also challenged on behalf of the Appellant. Even assuming the finding to be correct, that finding by itself is not sufficient to sustain the decree passed by the lower appellate Court. Plaintiff''s suit is not a summary suit for possession of the property as contemplated by Section 9 of the Specific Relief Act. The basis for such a suit will be wrongful dispossession by the opposite party. Plaintiff complaining against such dispossession should sue for restoration of his possession and such a suit should be brought within six months from the date of dispossession. Any question of title to property will be foreign to such a summary suit. Plaintiff in the present instance does not seek recovery of possession of the property on the allegation that he was wrongfully dispossessed by the Defendant. As already stated, Plaintiff''s claim to possession of the property is essentially based on his alleged title to the same and he has expressly prayed for a declaration of such title as well as possession in his favour. The possession claimed by him is the possession based on the strength of his title. When title is found against him it cannot be said that he has a lawful claim for the possession of the property, deserving protection by the civil Court. A mere possessory title claimed, by him would be of avail only as against all Ors. excepting the real owner or those claiming under him and who may be entitled to immediate possession. Where the Plaintiff fails in the title set up by him as the basis of his claim for possession of the property, it will be wrong to give him a decree declaring his possession as against the Defendant who is found to be the rightful owner of the property and to restrain the latter from entering upon the property in the normal exercise of the right of ownership. This view gains support from the Full Bench decisions in - ''Issac Lebba v. Arunachalam Pillai'' 34 Trav LR 1 and in - ''Lachman v. Shambu Narain'' 33 All 174. In the former case, it was ruled that in a suit for possession brought independently of the provisions of Section 9 of the Specific Relief Act, the Plaintiff must fail if his adversary is the true owner inasmuch as the latter''s title is superior to the Plaintiff''s possessory title. Similarly, it was ruled in the latter case also that where a Plaintiff sues for possession on the basis of title and fails to establish his title, he cannot be granted a decree for possession.

Coming to the question of actual possession of the property it cannot be said that the Plaintiff has been able to prove his case of possession by any satisfactory and reliable evidence. (His Lordship referred to the evidence and continued). On a consideration of all these aspects of the case, I agree with the trial Court''s finding that the Defendant obtained both title as well as possession of the property under sale deed Ex. I in her favour. In this view of the matter also the lower appellate Court''s decree restraining the Defendant from entering upon the property, cannot be supported.

In the result this appeal is allowed and in reversal of the decree of the lower appellate Court, the trial Court''s decree dismissing the suit is restored. Defendant will get her costs throughout from the Plaintiff. Respondent''s objection memorandum is dismissed with costs.