In the High Court of Judicature at Madras Dated: 22.08.2008 Coram The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN Second Appeal No.107 of 1999 1. Ponnuswamy Nadar 2. Dharmalingam ..Appellants/plaintiffs v Gunanellian Society Karumathur rep by its President Father John Bosco ..Respondent/defendant This Second appeal filed against the judgment and decree dated 8.7.1998 made in A.S.No.26 of 1995 on the file of the Subordinate Judge, Cuddalore reversing the Judgment and decree dated 11.1.1995 passed in O.S.No.125 of 1993 on the file of the Additional District Munsif's Court, Cuddalore. For Appellants : Mr.R.Margabandhu,Advocate For Respondent : Mrs.Hema Sampath,Senior Counsel for Mr.R.Subramanian JUDGMENT This appeal has been directed against the Judgement in A.S.No.26 of 1995 on the file of the Court of Subordinate Judge, Cudalore dated 8.7.1998 which had arisen out of a decree and Judgment in O.S.No.125 of 1993 on the file of the Court of Additional District Munsif, Cuddalore. The plaintiffs who have succeeded before the trial Court but lost their case before the first appellate Court are the appellants herein. 2. The short facts of the averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaint schedule property belonged to the father of the plaintiffs viz., Kaliappa Nadar. While, Kaliappa Nadar was alive, he had enjoyed the plaint schedule property for more than 35 years and died in the year 1989. Even after his death, the plaintiffs are in continuous possession and https://hcservices.ecourts.gov.in/hcservices/ enjoyment of the plaint schedule property. No one else in possession and enjoyment of the plaint schedule property except the plaintiffs. While so, the defendant has purchased some property near the plaint schedule property from one Dhanabakkiam Ammal in order to grab at the property of the plaintiffs, the defendant has included the plaint schedule property also in his sale deed taken from Dhanabakkiam Ammal. The defendant, in order to defeat the interest of the plaintiffs, had filed a petition before the Tahsildar, Cuddalore for transfer of patta in their names. The said petition was also dismissed by the Tahsildar on 23.12.1991 holding that the suit property belonged to the plaintiffs' father. No appeal was preferred against the order by the defendant. On 5.2.1993, the defendant made an attempt to trespass into the plaint schedule property. Hence the plaintiffs have come forward with the suit for bare injunction. 3. The former President of the defendant society viz., John Bosco in his written statement would contend that the suit property belonged to the plaintiffs' father Kaliappa Nadar and later after his death, the plaintiffs became entitled to the property are not true. The plaint is silent about the source of title or nature of acquisition of title by the plaintiffs' father. The defendant purchased the suit property from Dhanabakkiam Ammal under the sale deed dated 7.9.1988 for a valuable consideration of Rs.23,250/- in the name of Guanellian Society, Karumathur , Madurai. The title therefore vested in the said society belonging to the "Congregation of the Servants of Charity". The predecessor in title of the defendant viz., Dhanabakkiam Ammal had purchased the said property under a sale deed dated 5.2.1969. The Vendor under Dhanabakkiam Ammal viz., V.P.Radhakrishnan who had purchased the property under a registered sale deed dated 22.4.1961, There was no order passed by the Tahsildar holding that the plaintiffs and their predecessor in title have title to the property. There was no order passed on 23.12.1991 in favour of the plaintiffs by the revenue authorities. From the date of purchase of the property, the defendant is in possession and enjoyment of the same. The property purchased by the defendant was demarcated from the other lands on all four sides by the existence of a live fence. The property has been potentially a "Karambu Land" for several years and the defendant representing the Society, has been exercising acts of ownership by removing the shrubs in the property, periodically pruning the live fence etc., The possession of the suit property with the defendant-Society follows title and the averment that the defendant has been attempting to trespass into the suit property since 5.2.1993 is false. The plaintiffs have no cause of action. Taking advantage of some mistake in the revenue entries during resurvey proceedings, the plaintiffs have come forward with this frivolous suit. The plaintiffs suit for https://hcservices.ecourts.gov.in/hcservices/ injunction is therefore not maintainable. The suit filed without impleading the true owner of the property viz., Guanellian Society belonging to the Congregation of the Servants of Charity located at Karumathur, Madurai is not maintainable. The suit is bad for non joinder of necessary parties. Hence the suit is liable to be dismissed. 4. No separate written statement was filed for Guanellian Society after the said society has been impleaded as defendant by amending the plaint. 5. On the above pleadings, the trial Court had framed five issues for trial . On the side of the plaintiffs, the first plaintiff has examined himself as P.W.1 besides examining Thiru Abimenyu as P.W.2. Exs A1 to A11 were marked on the side of the plaintiffs. D.W.1 is the President of the defendant society. D.W.2 is one Maria Prakasam. The defendant has exhibited Exs B1 to B4. The learned trial Judge,after going through the evidence both oral and documentary, and after giving due consideration to the submissions made by the counsel on both sides, has come to conclusion that the plaintiffs are entitled to an order of permanent injunction as prayed for and accordingly decreed the suit which necessitated the defendant to prefer the first appeal before the learned Subordinate Judge,Cuddalore in A.S.No.26 of 1995. Taking a different view from that of the view taken by the learned trial Judge, the learned Subordinate Judge has allowed the appeal holding that the plaintiffs are not entitled to an order of permanent injunction thereby dismissing the suit. Aggrieved by the findings of the first Appellate Judge in A.S.No.26 of 1995, the plaintiffs have preferred this second appeal before this Court. 6. The substantial questions of law involved in this appeal are i) Whether the suit for injunction without mentioning the four boundaries for the suit property in the plaint , will entitle the plaintiff to get an order of injunction? ii) Whether the decree and Judgement in A.S.No.26 of 1995 on the file of the Court of Subordinate Judge, Cuddalore is liable to be set aside for the reasons stated in the memorandum of appeal? 7. Point No.1 The plaintiffs have not filed a suit for declaration of title in respect of the plaint schedule property. The plaintiffs have come forward with the suit for bare injunction in respect of the plaint schedule property which is " Survey No.60/2 0.25.0 https://hcservices.ecourts.gov.in/hcservices/ Hectares at Kundu Uppalavadi Village, Cuddalore Taluk". It is very pertinent to note that there is no boundaries given for the plaint schedule property in the plaint. To show the possession, the plaintiffs have produced Ex A1, the memo of the Taluk Deputy Inspector(Survey) Cuddalore which reads that the petition preferred by John Duraisamy, the erstwhile defendant for transfer of patta in respect of survey No.60/2 measuring 0.25.0 hectares in favour of the said John Duraisamy was dismissed. Ex A2 is the copy of adangal Extract which shows that for old Survey NO..262 is survey No.60/2 measuring 0.25.0 hectares and the patta stands in the name of Pattadar No.56 Kaliappa Nadar. Ex A3 is the Chitta for patta No.56 stands in the name of Kaliappa Nadar. Ex A4 is the Adangal Extract for fasli 1380 which shows that Kaliappa Nadar was in possession of Survey No.262(re- survey No.60/2 from Fasli 1384) Exs A5 to A11 are the tax receipts relating to the period from 11.4.1987 to 4.5.1993. 8. Per contra, the defendant has produced Ex B1 sale deed in the name of the defendant dated 7.9.1989. A careful reading of Ex B1 will go to show that the total extent of old survey No.262 was one acre 23261 sq ft. Out of which 0.58 cents + 25288 sq.ft alone was sold in favour of the defendant by one Dhanabakkiam Ammal. IN Ex B1 , apart from the old survey Number, the new survey number for the property sold under Ex B1 was given as new Survey No.60/4. Ex B3 is the sale deed dated 5.2.1969 in favour of Dhanabakkiam Ammal, the vendor under Ex B1. Even in Ex B3, the total extent for the town Survey No.262 has been mentioned as one acre 23261 sq.ft and with four specific boundaries on all four sides, 58 cents ie., 25288 sq.ft was sold in favour of Dhanabakkiam Ammal by one Radhakrishnan . Even in Ex B1 four boundaries have been given for the property sold under Ex B1 which is one and the same as that of Ex B3. Ex B2 is the rectification deed executed by Dhanabakkiam Ammal, the vendor under Ex B1 in favour of the society wherein she would state that the property sold under Ex B1 in favour of the defendant is in Survey No 60/2 which has wrongly been mentioned as Survey No.60/4 in Ex B1. Dhanabakkiam Ammal would further state that survey No.60/4 alone belongs to Kaliappa Nadar. Ex B2 is the only subservient document. Nothing is stated in Ex B1 how she came to know that survey No. 60/4 belongs to Kaliappa Nadar and survey No.60/2 alone refers to old survey number 262. Under the plaint, the plaintiff has scheduled only 0.25.0 Hectares which comes to nearly 62 cents. It is an admitted case of the defendant that he has purchased 58 cents out of one acre 53 cents in T.S.No.262. So the defendant is concerned with only 58 cents and the rest of the land is belonging to Kaliappa Nadar as per the boundary description in Exs B1 and B3.So Kaliappa Nadar's land is situate east of the land purchased by the defendant as per the boundary description under Exs B1 and B3. But unfortunately in the plaint, https://hcservices.ecourts.gov.in/hcservices/ the plaintiffs have not given four boundaries for the property scheduled to the plaint. 9. The learned counsel appearing for the respondent relying on a decision reported in Alagi Alamelu Achi-v- Ponniah Mudaliar (1962(1) MLJ 383) would contend that the plaintiffs who are in unlawful possession are not entitled for an order of injunction. The relevant observation in the said Judgment runs as follows: " No case has been cited before me in support of the proposition that a person in wrongful possession is entitled to be protected against the lawful owner by an order of injunction directed against him." But there is no material placed before the Courts below to show that the plaintiffs are in unlawful possession of 0.25.0 Hectares of land in old Survey No262(new survey number 60/2). But it is a definite case of the defendant that the defendant has purchased 58 cents in Town Survey No.262. Now the question remains whether the property purchased by the defendant comes within the new survey number 60/2 or 60/4. There is no correlation deed produced before the Court below to show that the property purchased by the defendant under Ex B1 in T.S.No.262 comes within survey No.60/2 as stated in Ex B2 rectification deed. 10.The learned counsel appearing for the appellants relying on a decision reported in Rema Gowda(dead) By Lrs-vs- M.Varadappa Naidu(dead) by Lrs(2004) 1 Supreme Court Cases 769) would contend that a person who is in lawful possession of the property cannot be dispossessed without recourse to law. The learned counsel appearing for the appellants would rely on paragraph 8 of the said ratio in support of his contention which runs as follows: "It is thus clear that so far as the Indian Law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using https://hcservices.ecourts.gov.in/hcservices/ force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner(of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or causal in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram.v. Delhi Admn(AIR 1968 SC 702 : 1968 ) 2 SCR 455: 1968 Cri L.J.806), Puran Singh.v.State of Punjab(1975 ) 4 SCC 518:1975 SCC (cri) 608) and Ram Rattan.v.State of UP(1977)1 SCC 188: 1977 SCC (cri) 85) Unless the plaintiffs show that the property in which they seek injunction is not covered or comprised under Ex B1 sale deed in favour of the defendant, I am of the opinion that an order of injunction cannot be granted in favour of the plaintiffs particularly in this case, the defendant on the basis of Ex B1 sale deed and predecessor in title under Ex B3 claim that he is in possession of a portion of the property in T.S.No.262 whether the plaintiffs are in survey No.60/2 or 60/4 cannot be adjudicated upon without any revenue materials before the Court. If the plaintiffs would have given four boundaries to the property scheduled to their plaint then it will be helpful to the Court to some extent to arrive at a conclusion that the plaintiffs are in possession of the property other than one scheduled to Ex B1, the property purchased by the defendant in https://hcservices.ecourts.gov.in/hcservices/ T.S.No.262. Under such circumstances, I hold on point No.1 that the order of injunction in respect of the property for which no boundaries are given cannot be granted. 11.Point No.2: In view of my discussion and finding in the earlier paragraph, I do not find any reason to interfere with the findings of the learned first appellate Judge in A.S. 26 of 1995 on the file of the Court of Subordinate Judge, Cuddalore. Point No.2 is answered accordingly. 12. In fine, this second appeal is dismissed confirming the decree and Judgment in A.S.No.26 of 1995 on the file of the Court of Subordinate Judge, Cuddalore. No costs. The plaintiffs are at liberty to file a suit of similar nature after giving four boundaries for the property said to be in their possession. sg Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Subordinate Judge, Cuddalore 2. The Additional District Munsif , Cuddalore 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. R. Margabandhu, Advocate, SR No.47303 + 1 cc to Mr. R. Subramanian, Advocate, SR No.47235 Second Appeal No.107 of 1999 TEJ(CO) SR/14.10.2008 https://hcservices.ecourts.gov.in/hcservices/