Thillai Natarajan vs Mohammed Yusub

Pushpa Sathyanarayana, J.—The Plaintiff is the Appellant, who has lost before the Courts below in a Suit for bare injunction, restraining the Defendant from interfering with the property.

The Suit property is an extent of 0.208.0 sq. meter in T.S. No.9644 bearing Door No.23/1 situate in 3rd street, Rajagopalapuram, Pudukottai.

It is the case of the Plaintiff that the Suit property is a Natham Poramboke and the parents of the Plaintiff had been in occupation of the same by putting up a thatched house. According to the Plaintiff, the house was also assessed to tax and they have been paying the Tax till date. The Patta is also issued in the name of the Plaintiff. Hence the Plaintiff claims ownership based on Patta. However, it is admitted by the Plaintiff that his family is residing in another house and the Suit property is utilised as a storage for keeping their household articles.

The Plaintiff further alleged that the Defendant had removed the stone pillars on 2.10.2000. The Plaintiff also had given a Complaint against the Defendant with the Police and as the Police directed the parties to go before the Civil Court, the Suit has been filed for permanent injunction restraining the Defendant from interfering with the Plaintiff''s peaceful possession.

As per the Written Statement of the Defendant, the Suit property belonged to one Kuppan originally and it was purchased on 22.6.1944 by one Muniyandi Pillai. The Legal Heirs of Muniyandi Pillai, sold the Suit property on 16.3.1981 to the Defendant. From then on-wards, the Defendant has been in possession of the Suit property and he alone is paying the Tax ever since his purchase.

According to the Defendant, there is no house or thatched shed in the Suit property but there is only a vacant site. In fact, the Patta has also been transferred in the name of the Defendant and the Survey Notice in the name of the Plaintiff has been cancelled. As the Plaintiff is not in possession of the property, the Defendant prayed for the dismissal of the Suit.

Before the Trial Court, on the side of the Plaintiff, Exs.A1 to A10 had been marked and PWs.1 to 6 had been examined and on the side of the Defendant, Exs.B1 to B10 had been marked and DW1 had been examined. Exs.X1 to X4 were marked as Court documents.

Both the Courts below had dismissed the Suit for injunction. Aggrieved over the same, this Second Appeal has been filed.

At the time of admission of the Second Appeal, the following substantial question of law has been formulated:

"Whether the Courts below are right in dismissing the Suit for injunction when the Plaintiff has proved his title and possession to the Suit property and the Defendant failed to prove his title and possession of the Suit property ?"

Admittedly, the Defendant is not residing in the Suit property but alleged only that they have been utilising the property for storing certain articles and tethering the cattle. The case of the Plaintiff is that her father-in-law originally owned the Suit property and with his permission, they have been residing in the Suit property since 1978. After the death of her father-in-law, the property devolved on her. As the Suit property was not very convenient for living, they had moved out to a neighbouring house but has been using the Suit property for other purposes. Thus, saying the Plaintiff had produced Exs.A3 to A5, which are the House Tax Receipts and Ex.A6 is the House Tax Assessment and Exs.A7 & A8 are the Property Tax Receipts. The Plaintiff had also examined PWs.2 & 3 but also supported the case of the Plaintiff stating that the Plaintiff is in possession.

Per contra, DW1 contended that there was never any superstructure over the Suit property and it was only a vacant land. He also produced Ex.B.1-Sale Deed dated 22.6.1944 which was executed in favour of one Muniyandi Pillai and Ex.B2-Sale Deed dated 16.3.1981 which was executed in favour of the Defendant by the heirs of the said Muniyandi Pillai. Exs.B3 to B5 & B8 are the Land Tax Receipts. Ex.B9 is the Notice issued by the Commissioner of Municipality, cancelling the assessment in favour of the Plaintiff and Ex.B10 is the Assessment Order in favour of the Defendant. However, the documents filed by the Defendant were denied by the Plaintiff contending that they do not relate to the Suit property and they had obtained subsequent to the filing of the Suit. Therefore, there are no admissible in evidence.

The only ingredient that has to be seen in a Suit for Injunction is that whether the Plaintiff is in possession of the property on the date of the Suit. In this case, admittedly, the Plaintiff is not staying in the Suit property and he is staying away from the Suit property. I am afraid the lacuna in the Plaintiff''s case stares in the face.

The Trial Court had wrongly held that the Plaintiff ought to have sought for an appointment of Advocate Commissioner to prove the existence of a thatched house in the Suit property and it is used for tethering cattles as claimed by the Plaintiff. This may not be correct as it is a well settled principle that a Commissioner cannot be appointed to find out the factum of possession.

The other documents viz., Exs.X1 to X4, which are the Land Measure Settlement Register, Town Survey Field Register and Memo issued by the District Collector as they are all documents which will not go to show the possession of a person. Besides these documents have come into existence after the filing of the Suit. Admittedly, the Suit property is a vacant site and the question of title also cannot be gone into in the Suit property for permanent injunction relating to a vacant site. The Plaintiff also claimed that his parents had constructed the house in the Suit property whereas in the evidence PW1 had stated that her father-in-law had put up a thatched house which itself is contrary to each other. Though PW1 has stated in the evidence that her father-in-law was issued the Patta, the same was not produced before the Court.

It is relevant to refer to a decision reported in K. Sadasivam and another v. B. Harikrishnan, 2001 (2) CTC 590, wherein it is held that the possession is pre-requisite for grant of injunction and the Plaint has failed to furnish particulars regarding the period of possession, their entitlement to be in possession, the Plaintiff is not entitled to a Decree for Injunction.

From the above principle, it can be seen that the Plaintiff, on the strength of his possession resist interference from persons who, have no better title than himself to the Suit property.

The Counsel for the Respondent placed his reliance on Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs. and others, 2008 (6) CTC 237, in support of his contention that the Suit property is only a vacant site and the Plaintiff failed to prove her possession:

"13. 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. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The Plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an Agricultural Land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a Suit, though it may arise incidentally or collaterally.

But what if the property is a vacant site, which is not physically possessed, used or enjoyed ? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who, is not able to establish title. This means that even though a Suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the Suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where Court feels that parties had not preceded on the basis that title was at issue, the Court should not decide the issue of title in Suit for Injunction. The proper course is to relegate the Plaintiff to the remedy of a full-fledged Suit for declaration and consequential reliefs."

As in a Suit for Injunction only a factum of possession has to be established and in the present case, the Suit property being a vacant site without the title being cleared, it is not possible to decide de jure possession.

On the basis of the discussions in the earlier paragraph, I am of the opinion that the Appellant/Plaintiff has not proved her case by filing the documents to show that she was in possession prior to which her parents were in possession and enjoyment of the Suit property and subsequently, recognising her possession, Patta was issued in her favour. In the result, the question of law formulated is answered against the Appellant.

In fine, the Second Appeal is dismissed, confirming the Judgment made in A.S. No.7 of 2004 dated 28.7.2009 on the file of the Additional District Judge (Fast Track Court), Pudukottai, confirming the Judgment and Decree in O.S. No.194 of 2000 dated 10.6.2003 on the file of the Additional District Munsif Court, Pudukottai.