In the High Court of Judicature at Madras Dated: 05.09.2008 Coram The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN Second Appeal No.139 of 1999 Rathinasamy @ Rathinavelu ..Appellant/plaintiff v P.S.Rajendran ..Respondent/defendant This Second appeal filed against the judgment and decree dated 5.10.1998 made in A.S.No.9 of 1998 on the file of the Court of Additional District Judge, Pondicherry at Karaikal reversing the Judgment and decree dated 30.9.1997 passed in O.S.No.18 of 1997 on the file of the Principal District Munsif's Court, Karaikal For Appellant : Ms.R.T.Shyamala,Advocate For Respondent : Mr.Srinath Sridevan,Advocate JUDGMENT The decree and Judgment in A.S.No.9 of 1998 on the file of Court of Additional District Judge, Pondicherry at Karaikal which had arisen out of a decree and Judgment in O.S.No.18 of 1997 on the file of Court of the Principal District Munsif, Karaikal is under challenge before this Court by way of second appeal. The plaintiff, who has succeeded before the trial Court but lost his case before the first appellate Court is the appellant herein. The plaintiff has filed a suit for bare injunction. 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 plaintiff is the son of deceased Kannaiyan and he has two brothers namely Thiru Kuppusamy and Thiru Packirisamy. The plaintiff's father Kannaiyan was a cultivating tenant under the first owner of the plaint schedule property by name Janab Meera Mohideen Maricar in the year 1952. As per the agreement, plaintiff's father Kannaiyan was paying the rent of four bags of paddy to the first landlord viz., Janab Meera Mohideen Maricar till 24.4.1973. On https://hcservices.ecourts.gov.in/hcservices/ 25.4.1973, the above said first landlord Janab Meera Mohideen Maricar had gifted the suit property to his son Janab S.M.Habeeb Mohamed, Advocate, Karaikal. Both the father and son had given a letter to the plaintiff's father intimating that the original owner Janab Meera Mohideen Maricar had execution the gift deed by him in respect of the suit property in favour of his son Janab S.M.Habeeb Mohamed and also instructed Kannaiyan to pay the future rent to his son Janab S.M.Habeeb Mohamed. As per the intimation and direction, the plaintiff's father Kannaiyan was paying the rent of four bags of paddy to Janab S.M.Habeeb Mohamed. After the death of Kannaiyan, his wife(Plaintiff's mother) had been paying the rent to Janab S.M.Habeeb Mohamed. After the death of plaintiff's mother, the plaintiff was paying the rent till the filing of the suit. The plaintiff is not in talking terms with his brothers. Now the plaintiff is in exclusive possession and enjoyment of the suit property and he is paying four bags of paddy to Janab S.M.Habeeb Mohamed. On 23.10.1996, the plaint schedule property was sold to the defendant behind the back of this plaintiff. The suit property consists of R.S.No.123/2, Tank and R.S.No.123/5 the unfertailed land. The suit property is situate east of Athipadugai Road . In between Athipadugai Road and the suit property, there was a wall nearly about 6 feet height and 160 feet length approximately. The aforesaid wall starts from R.S.NO.123/5 till the end of Ammavaikal. Now the defendant is trying to construct a permanent structure for the purpose of his cultivation. The plaintiff is enjoying the peaceful possession of the suit property in R.S.No.123/2 by way of fishing. If the defendant has constructed permanent fencing in the suit property, the plaintiff will not enter into the suit property. The rough sketch is filed along with the plaint. On 4.1.1997, the defendant and his henchmen are trying to construct a permanent fencing in R.S.No.123/5 without any notice to the plaintiff. The plaintiff has lodged a complaint before the Thirunallar Police. Since the dispute is civil in nature, the concerned police does not entertain the case. Hence the plaintiff has come forward with the suit for permanent injunction restraining the defendant and his men from putting up any permanent fencing structure in the suit property. Hence the suit. 3. The defendant in his written statement would contend that Kannaiyan has three sons and a daughter and the plaintiff is one of the sons of Kannaiyan. The allegation that the said Kannaiyan was a cultivating tenant under Janab Meera Mohideen Maricar, the original owner of the suit property. There was an oral agreement between the said Kannaiyan and Janab Meera Mohideen Maricar for some other properties owned by Janab Meera Mohideen Maricar in Thirunallar commune. The suit property was not leased to the said Kannaiyan but was owned jointly along with three others by Janab Meera Mohideen Maricar. The averment that the plaintiff's father was paying the rent of four bags of paddy for the suit property till 24.4.1973 is false. The rate of rental paddy alleged to have been paid by the said https://hcservices.ecourts.gov.in/hcservices/ Kanniayan works out at 72 Kalams per mah per year which is totally contrary to the norms of quantum of yield in the whole of Karaikal region. Further R.S.No.123/5 is only a dry land and also has been classified as a punja land in the settlement register. Hence the payment of rental paddy from out of a dry thidal is totally false. 3a) The original owner Janab Meera Mohideen Maricar had gifted the suit property to his son on 25.4.1973. It was an oral gift. The factum of oral gift was intimated to the said Kannaiyan both by the donor Meera Mohideen Maricar and donee S.M.Habeeb Mohamed in their respective letters dated 25.4.1973. Under the said letter, the said Kannaiyan was requested to remit the rents to the donee S.M.Habeeb Mohamed. The said letter was only an information of oral gift as to what are the items of properties that were actually leased out , terms of lease and quantum of rent. The payment of four bags of paddy has not been specified for the suit property in the said letters. S.M.Habeeb Mohamed has never received any rent for the suit property at any point of time. Likewise, he also has not received any alleged rent from the mother of the plaintiff. Neither the plaintiff nor his mother was ever in possession and enjoyment of the plaint schedule property. 3b) The further allegation that the plaintiff is in exclusive possession and enjoyment of the suit property precluding his two brothers is also false. The plaintiff has not produced any material to show that the other legal heirs of Kannaiyan had relinquished their alleged right over the property and delivered absolute possession of the suit property to the plaintiff. The plaintiff never paid any rent to the said Janab S.M.Habeeb Mohamed for the suit property. R.S.No.123/4 is a barren land of an extent of 12 Ares; R.S.No.123/2 is a tank of an extent of 8.5 Ares; R.S.No.123/5 is a punja land is of an extent of 18 Ares; R.S.No.123/1 is a punja land of an extent of 8 Ares. All these properties were owned by four persons jointly viz., Kader Mohideen Maricar, Meera Mohideen Maricar, Mohamed Ismail Maricar and one Rajkumar. Among these persons, Rajkumar in the year 1977 made an arrangement to take possession of the property comprised in R.S.No.123/4 and R.S.No.123/5 for the purpose of constructing a cinema Theatre. 3c) The terms of arrangement between them is not known to the plaintiff. R.Rajkumar, who had gained absolute and exclusive possession of the property comprised in R.S.No.123/4 and R.S.No.123/5 applied for setting up a cinema theatre therein and has also obtained sanction and permission from the appropriate authorities. In pursuance of the same,he constructed a pucca compound wall over the entire boundaries of R.S.No.123/4 and R.S.No.123/5 enclosing the entire area. The main entrance to the property was put up in the eastern side of the property adjoining the Athipadugai Road. Thiru R.Rajkumar built a cinema theatre in R.S.No.123/5 and R.S.No.123/4 and started running the cinema Theatre under the name and style of https://hcservices.ecourts.gov.in/hcservices/ "Ramakrishna Talkies". The licience was granted on 12.10.1977. 3d)In course of time, due to loss and non extension of licence the cinema talkies was not run and pursued. Gradually, the building became dilapidated and ultimately was reduced to rumbles. Thus the property comprised in R.S.No.123/4 and R.S.No.123/5 became a thidal but fully enclosed by compound walls on all four sides. The defendant has purchased the plaint schedule property from S.M.Habeeb Mohamed for constructing his house under a registered sale deed dated 23.10.1996. Under the sale deed, the defendant had purchased 5 A 75 Ca in R.S.No.123/5 and R.S.No.123/2 and R.S.No.123/1. 3e) The vendor has delivered the physical possession of the property under the sale deed. Rajkumar who was in absolute possession of the entire property had entered in to an agreement by buying an extent of 12 A 25 Ca on 27.2.1996. The said area is part of 18 A comprised in R.S.No.123/5, S.M.Habeeb Mohamed has delivered his share as per the sale deed, the Seller Rajkumar has delivered his share under the sale agreement and in pursuance of both the deeds, the defendant had obtained possession of the total extent of 18 A in R.S.No.123/5. The defendant has put up a small thatched shed in the land enclosed by the old theatre compound walls and also has constructed a small house adjacent to the shed. The defendant is living in the newly constructed house and has raised punja crops in the remaining lands. The walls referred to in the plaint was the existing compound walls of the old Ramakrishna Talkies. 3f) After obtaining possession of the entire property enclosed in the compound walls, to safeguard his possession the defendant has put up a bamboo fencing gate initially and later put up a wooden gate. The defendant has got water connection from the commune panchayat and electric connection from the Electricity Department. Therefore, the entire property comprised in R.S.No.123/4 and R.S.No.123/5 fully enclosed by the compound walls of Old Ramakrishna Theatre has been in possession of the defendant in pursuance of a sale deed executed by S.M.Habeeb Mohamed and under a deed of agreement for sale in R.S. No.123/5 and unregistered valid sale deed in R.S.No.123/4 executed by R.Rajkumar . 3g) There is no interference of possession of the plaintiff over the property. On the complaint preferred by the plaintiff with the police, after following that the defendant is in possession of the plaint schedule property , the police have warned the plaintiff not to indulge in any unlawful activity and also referred the mater to the Sub Divisional Magistrate at Karaikal, who conducted an enquiry and also visited the spot , had passed an order on 13.1.1997 in M.C.No.3/97 confirming the possession of the defendant over the suit property. Thereafter only the plaintiff has filed this vexatious suit. https://hcservices.ecourts.gov.in/hcservices/ 3h) On 5.2.1997, after suspension of the order of temporary injunction by the trial Court, the wife of the plaintiff and their relative Velmurugan tried to forcefully evict the defendant's wife and in this process, the defendant's wife one Malini was injured. In respect of the said offence committed by the plaintiff, a criminal case has been registered under Cr.No. 9 of 1997 of Thirunallar Police Station. Again on 25.4.1997, early morning the plaintiff and his henchmen have set fire to the roof of the defendant's house and another first information report has been registered and the case is under investigation. There is no pathway or gap between R.S.No.123/2 and R.S.No.123/5.Unless the plaint schedule is amended properly, the suit is liable to be dismissed. 3i) The plaintiff never had any use or utilisation of the tank in R.S.No.123/2 for any purpose. The framing of the suit itself is not maintainable. The plaintiff having admitted that on 23.10.1996 the property as being sold to this defendant should have filed the suit for declaration of his alleged tenancy right over the suit property. In the absence of such a declaratory relief, the suit has to fail. The suit is bad for non-joinder of R.Rajkumar who had been in possession of the entire properties comprised in R.S.No.123/4 and R.S.No.123/5. Hence the suit is liable to be dismissed. 4. On the above pleadings, the trial Court had framed six issues for trial . Before the trial Judge, P.W1 and P.W.2 were examined and Exs A1 to A11 were marked. On the side of the defendant, D.W1 to D.W3 were examined and Exs B1 to B17 were marked. The learned trial Judge,after meticulously going through the evidence both oral and documentary adduced before him, had decreed the suit as prayed for which necessitated the defendant to prefer an appeal in A.S.No.9 of 1998 before the Court of Additional District Judge, Pondicherry at Karaikal, who after giving due deliberations to the submissions made by the learned counsel on both sides, has allowed the appeal thereby set aside the decree and Judgment in O.S.No.18 of 1997 on the file of the Court of Principal District Munsif, Karaikal. Aggrieved by the findings of the first appellate Judge, the plaintiff has approached this Court by way of this second appeal. 5. The substantial questions of law involved in this appeal are i) Whether the first appellate Court is right in reversing the order of the trial Court granting permanent injunction, especially the plaintiff as a cultivating tenant under Habeeb Mohamed was not duly ejected from the suit schedule property by adopting due process of law? ii) Whether the first appellate Court is right in reversing the judgment of the trial Court, which clearly observed that in Ex A1 and Ex A2 the tenancy right of the plaintiff was accepted by Habeeb Mohammed and his father and the plaintiff https://hcservices.ecourts.gov.in/hcservices/ was never ejected from the suit schedule property? iii. Whether the first appellate Court is right in reversing the judgment of the trial Court especially the defendant is a co-owner of the land with Habeeb Mohamed by his sale deed dated 23.10.1996 and he stepped into the half shoe of Habeeb Mohamed as a land lord of the plaintiff. 6. Heard Ms.R.T.Shymala, the learned counsel appearing for the appellant and Mr. Srinath Sridevan, learned counsel appearing for the respondent and considered their respective submissions. 7. Substantial Question of Law No.1: The entire case of the plaintiff for the relief of bare injunction rested on two documents viz., Exs A1 and A2. According to the plaintiff, the plaint schedule property originally belonged to Meera Mohideen Maraicar under whom the plaintiff's father Kannaiyan was the lessee from the year 1952 to 1973. According to him, after the death of his father Kannaiyan, he was continuing the possession of his father in respect of the plaint schedule property and was paying the rent to the son viz., Habeeb Mohamed of the original owner Meera Mohideen Maricar . To substantiate his claim, after his father Kannaiyan, the plaintiff is in possession and enjoyment of the plaint schedule property, the plaintiff has produced Exs A1 letter written by the original owner Meera Mohideen Maricar to plaintiff's father Kannaiyan wherein he has intimated that he had gifted away his property to his son S.M.Habeeb Mohamed. In Ex A1, there are twelve items of properties scheduled. Ex A2 is the letter written by S.M.Habeeb Mohamed, the son of Meera Mohideen Maricar who has requested Kannaiyan to pay the rent to him. Only on the basis of Exs A1 and A2, the learned trial Judge has come to a conclusion that after his father Kannaiyan, the plaintiff continued his possession as cultivating tenant in respect of the plaint schedule property and granted relief of bare injunction asked for by the plaintiff in the plaint. The learned first appellate Judge, after taking into consideration, the entire facts and circumstances and after going through Exs A1 and A2 and after giving due consideration to the Commissioner's report filed by the Commissioner as to the effect that the plaint schedule property could not be identified or located on land has come to a conclusion that there is no material to show that the plaintiff's father as well as the plaintiff were in possession and enjoyment of the plaint schedule property, has allowed the appeal thereby dismissing the suit vacating the injunction already granted in favour of the plaintiff. The plaint schedule property is R.S.No.123/2, a Tank having an extent of 10 kuzhies and R.S.No.123/5 in unfertiled land comprising 22 Kuzhies. The four boundaries given in the plaint schedule property runs as follows: West of Athipadugai Road , east of R.S.No.123/4 Rajukumar Nanja land, South of R.S.No.123./1 Renganathan House and North of Ammaivaikal https://hcservices.ecourts.gov.in/hcservices/ and total extent of properties are 32 Kuzhies. Both in Ex A1 and Ex A2, there is no reference to any of the survey number properties for the scheduled under those documents. 8. The learned counsel appearing for the appellant would fairly admit that R.S.No.123/2 Tank is not scheduled to neither under Ex A1 nor under Ex A2, and would state that R.S.No.123/5 measuring 22 Kuzhies is item No.VII to Ex A1. The four boundaries given for Item No.VII to Ex A1 is hereunder. ". bey;yp tha;f;fhYf;F tlf;F fpHf;F mltse;jhd; fiuf;F nkw;F Kfk;kjyp kiuf;fhah; tifaAf;fs; gLiff;Fj; bjw;F ,e;j ehw;gh';Fvy;iyf;Fs;gl;lJk; gphptpidahfhky; bghJtpypUg;gJkhd bey;yp tha;f;fhy; gLif ,Ugj;jpbuz;L Mh; ,Ugj;bjhU rhe;jpahUf;ToaJ kh1 FHp 66 ,jpy; ngh;ghjp FH[p 83 From the above boundary description to Item No.VII to Ex A1 will go to show that the said property is larger in extent than the property scheduled to the plaint. Further the four boundaries to the plaint schedule do not tally with the four boundaries given for Item VII to Ex A1. A perusal of the Commissioner's report dated 10.4.1997 filed before the Trial Court shows that an Advocate Commissioner had visited the suit property and try to identify the suit property in the presence of respective parties and with the help of Government Surveyor. The learned Advocate Commissioner at Page 2 to the above said Commissioner's report dated 10.4.1997 has categorically stated that he could not locate and earmark 22 Kuzhies of land within R.S.No.123/5 in Patta No.310. The patta still stands in the name of four persons for the several years. Admittedly, the other survey No.123/2 is a tank having an extent of 10 Kuzhies. According to the learned counsel appearing for the appellant, R.S.No.123/2 tank measuring 10 Kuzhies is not scheduled to neither in Ex A1 nor in Ex A2. Only on the basis of the above evidence let in before the trial Court, the first appellate Court had reversed the evidence of the learned trial Judge on the ground that there is no material to show that the plaintiff is in possession of the plaint schedule property in the capacity of a cultivating tenant under S.M.Habeeb Mohamed. Under such circumstances, I hold on first substantial question of law that the first appellate Court is right in reversing the order of the trial Court granting permanent injunction and holding that the plaintiff is not a cultivating tenant under S.M.Habeeb Mohamed. 9.Substantial question of Law No.2: As I have observed in the earlier paragraph , the schedule to Exs A1 and A2 do not contain the plaint schedule property. Apart from Ex A1 and Ex A2, there is no other documents produced on the side of the plaintiff to show that neither his father Kannaiyan nor the plaintiff is cultivating tenant under the original owner viz., Meera Mohideen Maricar and also after the gift deed executed in favour of original owner's son Habeeb Mohamed. The plaintiff having filed a suit for bare injunction must show that he is in prima facie possession of the https://hcservices.ecourts.gov.in/hcservices/ plaint schedule property. Ex B1 is the sale deed produced by the defendant to show that the defendant had purchased the plaint schedule property from Habeeb Mohamed. The comparison of the property scheduled to Ex B1 with the property scheduled to the plaint will go to show that the plaintiff has simply reproduced the property scheduled to Ex B1 to the plaint schedule. So the plaintiff has made an attempt to build up his case on the basis of the property scheduled to Ex B1 and not on the basis of the properties scheduled either under Ex A1 or under Ex A2 to show that his father Kannaiyan was in possession and enjoyment of the plaint schedule property as a cultivating tenant under the original owner. 10. The learned counsel appearing for the respondent relying on a decision reported in Pankajammal-v- Pichai Nattar(1978 TLNJ,197) and contended that unless the property scheduled to the plaint is identified from out of a larger extent of the property, the injunction cannot be granted. The relevant observation in the above said Judgment runs as follows: " The contention is in respect of these four items, the actual identification of the property has not been given, and only certain extents out of a larger extents have been mentioned without indicating where exactly the specified extent lies out of the larger extent. When an injunction is issued against a person's property with reference to which he is restrained from interfering with or doing something or other, it has to be specified with exact extent so that there may not be any controversy later in the event of any alleged disobedience of the injunction. The description of the property given above finds a place in the plaint of the respondent, in the order passed by the trial Court as well as in the order passed by the appellate Court. Under these circumstances, without there being exact specification of the property with reference to which the respondent prays for injunction, there could not be an injunction to be granted by Court." Under such circumstances, the plaintiff having failed to produce any material to show that he is in possession and enjoyment of the plaint schedule property, as rightly held by the learned first appellate Judge is not entitled to the relief of permanent injunction as against the defendant who has admittedly purchased the plaint schedule property under Ex B1. Hence I hold on second substantial question of law that the first appellate Court is right in reversing the Judgment of the trial Court in the absence of any proof for the plaintiff to show that he is in possession and enjoyment of the plaint schedule property. https://hcservices.ecourts.gov.in/hcservices/ 11. Substantial question of Law No.3: It is seen from Exs A1 and A2 that the larger extent of property was owned by Mohideen Maricar(about 12 items of the properties are scheduled to Ex A1 and A2). It is seen from Ex A1 that Kannaiyan, the father of the plaintiff was recognised as a cultivating tenant of the properties scheduled to Ex A1 under Meera Mohideen Maricar. After Ex A1, under Ex A2, the son of Meera Mohideen Maricar has written Ex A2 letter to the said Kannaiyan, father of the plaintiff requested him to pay the future rent to him in respect of the properties scheduled to Ex A2.(same as in Ex A1). Admittedly, in R.S.No.123/2, a tank in 10 Kuzhies is not scheduled either under Ex A1 or under Ex A2. The plaintiff has failed to identify R.S.No.123/5 measuring 22 Kuzhies to show that it comprised in any of the 12 items scheduled either under Ex A1 or under Ex A2. As I have already observed that the boundary description given in the plaint schedule do not tally with the boundary description given in any of the property scheduled to Ex A1 or Ex A2. Unless, the plaintiff identifies the property alleged to be in his possession on the date of the filing of the suit, as rightly held by the first appellate Court, he is not entitled to for an order of injunction. It is evident that after Ex B1 sale deed, the defendant had started construction in the property which has been surrounded by a compound wall. Unless the plaintiff shows that he is in possession of the property scheduled to Ex B1, he is not entitled to an order of injunction as held in Pankajammal-v- Pichai Nattar(1978 TLNJ,197) . Hence, I hold on third substantial question of law that the first appellate