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Karamathullah Vs. 1.Sheik Syed Abdullah - Court Judgment

SooperKanoon Citation

Court

Chennai High Court

Decided On

Judge

Appellant

Karamathullah

Respondent

1.Sheik Syed Abdullah

Excerpt:


.....in respect of any portion in survey no.2348 and on the other hand the appellant herein/defendant was claiming wrong that his property comprises the suit property, a part of survey no.489/2b and that since even after the receipt of the reply notice, the appellant herein/defendant continued to give problem as if the suit property was part of his property, the respondents herein were forced to file the suit in original suit no.545 of 2010 for permanent injunction restraining the appellant herein/defendant from interfering with their peaceful possession and enjoyment of the suit property.4. the suit was resisted by the appellant herein/defendant based on the averments contained in a brief written statement, which are to the effect that the dispute between the parties was as to whether the property claimed by the respondents herein/plaintiffs is within survey no.489/2b or it comes within survey no.2348; that on the arrangements made by the appellant herein/defendant, surveyor was brought to the property to find out in which of the above said survey numbers, the suit property lies; that since the respondents herein/plaintiffs resisted the attempt citing the filing of the suit, the.....

Judgment:


BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

01. 07.2015 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A(MD)No.287 of 2015 and M.P(MD)No.2 of 2015 Karamathullah ... Appellant/ Appellant/Defendant Vs. 1.Sheik Syed Abdullah 2.Noorjahan 3.Balkis 4.Jinnakaran 5.Kaleel Rahuman 6.Sathakathullah ... Respondents/ Respondents/Plaintiffs Prayer Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 against the Judgment and decree dated 16.04.2014 passed in Appeal Suit No.19 of 2014 by the Principal Sub Court, Tirunelveli, confirming the Judgment and decree dated 18.09.2013 passed in Original Suit No.545 of 2010 by the Principal District Munsif Court, Tirunelveli. !For Appellant : Mr.P.M.Vishnuvarthanan ^ :JUDGMENT

The sole defendant in the suit in Original Suit No.545 of 2010 on the file of the Principal District Munsif Court, Tirunelveli, who suffered a decree for permanent injunction, after unsuccessfully prosecuting an appeal in Appeal Suit No.19 of 2014 before the Lower Appellate Court namely, the Court of the Principal Subordinate Judge, Tirunelveli, has approached this Court with the present Second Appeal.

2. The second appeal stands listed today for admission. The arguments advanced by Mr.P.M.Vishnuvarthanan, counsel for appellant are heard. Copies of the Judgments and decrees of the Courts below and copies of the other records produced in the form of typed set of papers are also perused.

3. The plaintiffs in the said Original Suit are the respondents in the Second Appeal. They filed the suit for a bare injunction contending that an extent of 2.01 acres comprised in Survey No.489/2B of Melapalayam Village originally belonged to one Murugiah and his mother Nallamadi, having purchased the same under a sale deed dated 03.12.1971; that the said Nallamadi released her share in the said property in favour of his son Murugiah under a registered release deed dated 28.05.1992 and thus Murugiah became the owner of the entire extent of 2.01 acres; that he sold the property to the first respondent herein and one Abubucker, the husband of the second respondent, who is also the father of the respondents 3 to 6, under a sale deed dated 02.06.1999; that the said Abubucker died leaving the respondents 2 to 6 as his legal heirs and that thus the respondents 1 to 6 became the absolute owners of the entire extent of 2.01 acres comprised in Survey No.489/2B. It was contended further that they converted the land into house-sites and sold the house-sites, retaining one house-site bearing Plot No.1-A measuring 2610 square feet for themselves and that the appellant herein/ defendant, who claims to be entitled to 26 cents comprised in Survey No.2348, unable to identify his property, issued a notice to the respondents herein/plaintiffs on 22.07.2010, as if the respondents herein/plaintiffs were trying to stake a claim in respect of his property; that a proper reply was given by the sixth respondent through his lawyer on 28.08.2010 to the effect that they did not make any claim in respect of any portion in Survey No.2348 and on the other hand the appellant herein/defendant was claiming wrong that his property comprises the suit property, a part of Survey No.489/2B and that since even after the receipt of the reply notice, the appellant herein/defendant continued to give problem as if the suit property was part of his property, the respondents herein were forced to file the suit in Original Suit No.545 of 2010 for permanent injunction restraining the appellant herein/defendant from interfering with their peaceful possession and enjoyment of the suit property.

4. The suit was resisted by the appellant herein/defendant based on the averments contained in a brief written statement, which are to the effect that the dispute between the parties was as to whether the property claimed by the respondents herein/plaintiffs is within Survey No.489/2B or it comes within Survey No.2348; that on the arrangements made by the appellant herein/defendant, surveyor was brought to the property to find out in which of the above said survey numbers, the suit property lies; that since the respondents herein/plaintiffs resisted the attempt citing the filing of the suit, the surveyor had to return without inspecting the property; that subsequently the appellant herein/defendant made arrangements for identifying the property by making a reference to the police and the police decided that the property could be identified by the surveyor in the presence of the Sub Inspector of Police and that the surveyor identified the disputed property in the presence of Sub Inspector of Police to be in Survey No.2348 and not in Survey No.489/2B. Based on the said contentions, the appellant herein/defendant had prayed for the dismissal of the suit. The appellant herein/defendant also took a stand that since there was a dispute regarding title, the suit for bare injunction without a prayer for declaration, was not maintainable.

5. Based on the above said pleadings, the learned Trial Judge framed necessary issues and tried the suit. In the trial, as many as three witnesses were examined as P.W.1 to P.W.3 and twelve documents were marked as Ex.A.1 to A.12 on the side of the respondents herein/plaintiffs, whereas the appellant herein/ defendant figured as the sole witness (D.W.1) on his side and produced three documents as Exs.B.1 to B.3. The learned Trial Judge, on an appreciation of evidence, came to the conclusion that the respondents herein/plaintiffs were able to prove their possession in respect of the suit property and that the appellant herein/defendant, who was not able to identify his own property, was trying to give trouble to their possession, contending that the suit property did not fall within Survey No.489/2B. The learned Trial Judge after referring to the pleadings of the parties and the evidence adduced on both sides, rendered a clear finding that the appellant herein/defendant, who is admittedly out of possession of the suit property, was not able to show even the location of the property comprised in Survey No.2348, claimed by him.

6. The learned Trial Judge also referred to the fact that the appellant herein/defendant filed an earlier suit in Original Suit No.93 of 2005 on the file of the Principal District Munsif Court, Tirunelveli and that the Advocate Commissioner appointed in the former suit, filed a report to the effect that he was not able to identify the property having Survey No.2348. In fact, the copy of the plaint and the copies of the written statements of the defendants in the former suit were produced not by the appellant herein/defendant, but by the respondents herein/plaintiffs as Exs.A.6 to A.11. The copy of the report of the Commissioner filed in the former suit has been produced and marked by the respondents herein/plaintiffs as Ex.A.12. Referring to the said document marked as Ex.A.12, the learned Trial Judge held that the attempt made in the earlier suit to show that the properties claimed to be comprised in Survey No.489/2B were in fact the properties comprised in Survey No.2348 was not substantiated, as the Commissioner was not in a position to identify the location of Survey No.2348 itself. Referring to the said aspect, the learned Trial Judge held that the appellant herein/defendant, who claimed the suit property, which is admittedly in the possession of the respondents herein/plaintiff, comes within Survey No.2348 and not within Survey No.489/2B, ought to have produced the relevant documents and taken steps for locating the property comprised in Survey No.2348 and that the appellant herein/defendant failed to do so. The learned Trial Judge made a clear finding that the possession of the respondents herein/plaintiffs in respect of the suit property had been admitted and that they were able to trace their title to the sale deed dated 03.12.1971. Even then, the Trial Court held that in view of the fact that the appellant herein/defendant was admittedly out of possession of the suit property, the respondents herein/plaintiffs, who proved their possession by unimpeachable oral and documentary evidence, could not be denied the relief of permanent injunction, when the opposing party namely, the appellant herein/defendant, was not in a position to show that he had got title or better right in respect of the suit property. On appeal also, the learned Lower Appellate Judge concurred with the said finding of the Trial Court in all respects.

7. So far as the contention of the appellant herein/defendant that a suit for bare injunction, when the title is in dispute, shall not be maintainable, the Courts below have made an observation that in a suit for bare injunction, the question of title need not be gone into and the entitlement of the plaintiffs to injunction, can be decided based on proof or admission of possession. At this juncture, this Court wants to reiterate the position of law, which has been clarified in a number of Judgments citing all of them, according to this Court's view, is unnecessary. Suffice to state that it is now established that a suit for bare injunction, even though the title of the plaintiff may be disputed by the opposite party, cannot be thrown away as not maintainable. Reference may be made to Section 27(a) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. It deals with the suits for bare injunction in respect of immovable properties when the plaint itself contains averments or the plaint averments indicate that the title of the plaintiff is disputed and suits wherein an issue regarding the title of the plaintiff is framed subsequent to the filing the defence plea by the opposite party. In both cases, it simply prescribes that the Court fee shall be paid/collected on half of the market value of the suit property. It is in pari materia with the Court fee to be collected under Section 25(b) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, which deals with the prayer for declaration of title and consequential injunction in respect of immovable property. Therein also the Court fee to be paid shall be on half of the market value of the suit property. Section 34 of the Specific Relief Act, 1963 provides an embargo on the Court to grant a declaration when the plaintiff fails to seek further relief, if such further relief could have been sought for. But there is no such provision in Chapters VII and VIII, dealing with injunctions to the effect that no injunction can be granted in the absence of a prayer for declaration, when the title to the property is in dispute.

8. It is a settled principle of law that though the question of title need not be gone into in a suit for injunction based on possession, in a given case, the question of title may arise incidentally and the Courts are not powerless to decide the question of title incidentally. While dealing with such powers to decide the question of title incidentally in a case for bare injunction, as per rule of judicial convenience, the cases have been classified into two categories: (i) Wherein the question of title is not so complicated and it can be conveniently decided in the injunction suit itself, in which case, the Court cannot abrogate its power to decide the question incidentally. (ii) The question of title may be so complicated making it unsuitable for resolution in a suit of summary nature, in which case, the plaintiff cannot be simply thrown out for not having filed the suit for declaration. The parties have to be relocated to the more comprehensive relief of declaration and consequential reliefs. Without understanding the scope of the said principle, blind-foldedly contentions are made every now and then that a suit for bare injunction, when the title of the plaintiff is in dispute, is not maintainable. Hence, the above said contention of the learned counsel appearing for the appellant herein/plaintiff in this case, deserves discountenance.

9. In the case on hand, it is not the case of the appellant herein/defendant that he is entitled to even an inch in Survey No.489/2B. Similarly the respondents herein/plaintiffs do not stake any claim in respect of even an inch of property comprised in Survey No.2348, which is claimed by the appellant herein/defendant to be his. The only dispute that has arisen in this case, is that where lies the property comprised in Survey No.2348. The appellant herein/defendant has not produced the Village Plan and Master Plan of the area in which the property claimed by him to be his, situates. Had he produced the Village Map, the Court would have been in a position to find out the locations of Survey Nos.2348 and 489/2B or the corresponding re- survey number after re-survey. The appellant herein/defendant chose to produce a few kist receipts dated 19.02.2004, which came to be obtained after the dispute arose, a certified copy of the sale deed dated 24.04.1910 and an adangal extract for the Fasli 1400, marked as Exs.B.1 to B.3 respectively. Ex.B.1, kist receipts refer to Survey No.2348. With the same, one cannot find out whether it relates to the suit property, which is claimed by the respondents herein/plaintiffs to be comprised in Survey No.489/2B. The respondents herein/plaintiffs have also produced patta in respect of the suit property and the kist receipt as Exs.A.4 and A.5. Ex.B.2, certified copy of the sale deed dated 24.04.1910 refers to the survey number of the property conveyed therein as Survey No.89. Copy of the Correlation Register was not produced to show that Survey No.89 that prevailed in the year 1910, came to be assigned Re-survey No.2348. Even if it is assumed that both the survey numbers relate to the same property, the nexus between the suit property and the said survey numbers has not been established by the appellant herein/defendant. The adangal extract relating to Survey No.2348 cannot be said to be relating to the suit property, which is admittedly in the possession of the respondents/plaintiffs, who claimed it to be comprised in Survey No.489/2B.

10. It is also obvious from Ex.A.12 that the surveyor was not able to identify the location of the property allegedly comprised in Survey No.2348. In the said circumstances alone, the Courts below have arrived at a conclusion that the respondents herein/plaintiffs had made out a case for the relief of permanent injunction, whereas the appellant herein/defendant miserably failed in his attempt to show that the claim made by the respondents herein/plaintiffs was in respect of a portion of the property belonging to him. This Court does not find any defect or infirmity muchless perversity in the concurrent findings of the Courts below. No substantial question of law is shown to have arisen for consideration in the Second Appeal. There is no merit in the Second Appeal and the same deserves to be dismissed at the threshold.

11. In the result, the Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. To 1.The Principal Sub Court, Tirunelveli. 2.The Principal District Munsif Court, Tirunelveli. 


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