IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :19 .07.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1601 of 1996 1.Murugaiyan @ Subramanian 2.Selvam 3.Thiruvenkadam 4.Dhanraj 5.Jayabal ... Appellants/Defendants Vs. Dhanasekaran ... Respondent/Plaintiff Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 09.02.1996 in A.S.No.138of 1994 on the file of the Principal District Judge, Pondicherry, in reversing the Judgment and Decree dated 29.08.1994 in O.S.No.721 of 1993 on the file of the II Additional District Munsif, Pondicherry and pray for setting aside the Judgment and Decree passed in A.S.No.138 of 1994 dated 09.02.1996 and restore the Judgment and Decree passed in O.S.No.721 of 1993 dated 29.08.1994. For Appellants : Mr.R.Natarajan For Respondent : Mr.R.Subramanian J U D G M E N T The Appellants/Defendants have filed the present Second Appeal as against the Judgment and Decree dated 09.02.1996 in A.S.No.138 of 1994 passed by the Learned Principal District Judge, Pondicherry. The Plaint averments of the Respondent/Plaintiff:- 2.The Respondent/Plaintiff is the absolute owner of the Plaint schedule immovable property by means of his purchase through Registered Sale Deed dated 29.09.1989. He is in continuous, uninterrupted possession and enjoyment of the same. He has been paying the taxes on the property and his name finds a place in the revenue records and also in panchayat register for tax purposes. 3.The Respondent/Plaintiff has planted plantain saplings in the suit property except in a triangular shaped piece on the western side of the property which has been reserved for other crops like vegetables and the same is shown separately by fencing all around. https://hcservices.ecourts.gov.in/hcservices/ The plantain saplings are 8 months old and they are ripe for harvest. The entire suit property is fenced by a live fence around the property on the southern and western sides by Velikaathan Trees, Neem trees and some live thorny plantains. The eastern side of the property is fenced by a fence of dry thorns – twigs. The northern border of the property is distinguished by the existing of a road at a higher level. 4.The Appellants/Defendants have developed jealousy and political animosity as against the Respondent/Plaintiff and his brother Shanmugam – who happened to possess and cultivate the Government Poramboke land situate adjacent to the Respondent/Plaintiff's suit property on its western side. The Appellants/Defendants due to ill feeling and enmity have vowed to finish off the Respondent/Plaintiff by first dispossessing of his cultivable land and his livelihood. They made such endeavour on 13.08.1993 when the Appellants/Defendants and about 5 rowdies gathered and attempted to dispossess the Respondent /Plaintiff from the suit property. Due to the timely help by the locals and the police, the Appellants/Defendants action has been thwarted. 5.Later, on 23.08.1993 the Appellants/Defendants brought about 20 rowdies and hooligans from outside the village and attempted to enter into the property forcibly and violently. Since the Respondent/ Plaintiff initially has been disabled due to the strength of the mob, he sent word to the police. But they have not taken care to either to see or enquire into the incident, but has gone out of the way to help the Appellants/Defendants. In the meanwhile, the Respondent / Plaintiff's friends and family members gathered in sizeable members and they have resisted the second attempt to dispossession made by the Appellants/Defendants. Since the Appellants/Defendants are sure to dispossess the Respondent/Plaintiff instantly at their next attempt, he will not be in a position to save himself and the possession of his property. Therefore, he has filed the present suit for permanent injunction restraining the Appellants/ Defendants, their agents, men or whomsoever claiming through them from interfering with his peaceful possession and enjoyment of the suit property. The Written Statement Plea of the 4th Appellant/4th Defendant (adopted by other Appellants):- 6.There is a dispute in regard to the title of the suit property. Hence, the Respondent/Plaintiff should have framed the suit for the relief of declaration of title. In its absence, the suit is liable to be dismissed. 7.The Respondent/Plaintiff is not the owner of the suit property. He has no right, interest and title in the suit property. At no point of time, he has been in possession and enjoyment of the suit property. Also, he has no right to claim the relief of permanent https://hcservices.ecourts.gov.in/hcservices/ injunction. The sale deed dated 29.09.1989 is a created one, it will not confer any title in the suit property. The alleged patta and tax receipt are not in the name of Respondent/Plaintiff and they are also not in the name of his vendor. There is no antecedent title prior to the sale deed dated 29.09.1989 and therefore, the Respondent/Plaintiff has no title over the suit property. 8.The Respondent/Plaintiff, in Plaint schedule, has mentioned the property and in the injunction application without specifying the suit property by boundaries. However, he has mentioned only the survey number of the suit property. The third item of the suit schedule property comprising all the three items aggregating to 42 Ares, an extent of 9 Ares and 25 centiars – equivalent to 17 kulies and 4 ½ visams, cannot be identified physically. Without clear identity and certainty of the property, no relief of permanent injunction can be granted. 9.The property in R.S.No.276/2 as item No.1 in the schedule of the Plaint originally belonged to one Pacha Gounder. The corresponding cadaster No.919 is in the name of Pacha Gounder. The patta also stands in Pacha Gounder's name. Presently, the 4th Appellant/4th Defendant is in possession and enjoyment of the property. The patta continues to be in the name of Pacha Gounder. As such, the Respondent/Plaintiff is not having any right or title in respect of the above item of the property. 10.As regards the property in item No.2 of the Plaint schedule, it belonged to one Muthu Gounder. His legal representative Rangasamy Gounder has sold the property in favour of one Athi Ammal in the year 1941. Athi Ammal sold the property in favour of one Jayamari, wife of the 4th Appellant/ 4th Defendant. Later, Jayamari sold the property in favour of one Dr.Rathakrishnan during the year 1986 and he is in possession and enjoyment of the property from the date of his purchase. Hence, the Respondent/Plaintiff is not having any title and right in second item of Plaint schedule property. The suit is bad for non-joinder of necessary parties viz., Jayamari and Rathakrishnan. 11.In regard to the item No.3 of the Plaint schedule property, it is situated in Government Poramboke and it is under possession, control and enjoyment of Hosur Mariamman temple. The cultivation is done by one Latchumana Gounder. The 4th Appellant/ 4th Defendant as President of Hosur Mariamman Temple, Villianur, has leased out the property in favour of Appellants 1, 2 & 5/Defendants 1, 2 & 5, who are the trustees of Kannammal Temple. The Hosur Mariamman Temple, Villianur is a necessary party to the suit. The aforesaid Appellants/Defendants are in possession of the suit property after the possession of the same being handed over by Latchumanan Gounder. Hence, as regards this item of property, the title of the Respondent/ Plaintiff is lacking. The Respondent/Plaintiff has no prima facie title to the property and hence, no injunction can be granted. https://hcservices.ecourts.gov.in/hcservices/ 12.Before the trial Court, in the suit, on the side of the Respondent/Plaintiff, witness P.W.1 has been examined and Exs.A.1 to A.7 have been marked. On the side of Appellants/Defendants, witnesses D.W.1 and D.W.2 have been examined and Exs.B.1 to B.5 have been marked. On behalf of the Court, witnesses C.W.1 and C.W.2 have been examined and Exs.C.1 to C.20 have been marked. 13.The trial Court, on an appreciation of oral and documentary evidence available on record, has come to a resultant conclusion that the Respondent/Plaintiff is not entitled to get the relief of permanent injunction and dismissed the suit, leaving the parties to bear their own costs. 14.Being dissatisfied with the Judgment and Decree passed by the trial Court in O.S.No.721 of 1993 dated 29.08.1994, the Respondent/Plaintiff has filed A.S.No.138 of 1994 on the file of the Learned Principal District Judge, Pondicherry as an Appellant. 15.The First Appellate Court/Principal District Judge, Pondicherry, on 09.02.1996 has allowed A.S.No.138 of 1994 filed by the Respondent/Appellant/Plaintiff by holding that the Respondent/Plaintiff has proved his possession and enjoyment of the suit properties and there has been a threat to his possession and enjoyment by the Appellants/Defendants and consequently, set aside the Judgment and Decree of the trial Court viz., II Additional District Munsif, Pondicherry in O.S.No.721 of 1993 dated 29.08.1994 and granted the decree in favour of the Respondent/Appellant/Plaintiff. 16.Feeling aggrieved against the Judgment and Decree dated 09.02.1996 passed by the First Appellate Authority/Principal District Judge, Pondicherry in A.S.No.138 of 1994, the Defendants 1 to 5, as Appellants, have preferred the present Second Appeal before this Court. 17.At the time of admission of the Second Appeal, this Court has framed the following Substantial Question of Law: "Whether the lower Appellate court is correct in taking the view that the title to the suit property need not be investigated in a suit for bare permanent injunction when in fact the respondent/Plaintiff having not made an averment tracing his title to the property in the whole body of the Plaint and that the title of the Plaintiff being disputed by the appellants with documentary evidence although holding that possession follows title?" The Contentions, Discussions and Findings on Point:- https://hcservices.ecourts.gov.in/hcservices/ 18.According to the Learned Counsel for the Appellants/ Defendants, the First Appellate Court found that the Respondent/Plaintiff had not clearly mentioned the suit properties with clear identity and boundaries, but decreed the suit for bare injunction without keeping in mind the well settled principles governing the relief of permanent injunction. 19.It is the contention of the Learned Counsel for the Appellants /Defendants that the Respondent/Plaintiff has not made mention of any averment in regard to the tracing of title of the suit property either in the body of the Plaint nor in evidence and further the Respondent/ Plaintiff has not examined any of his vendors though they were 5 in number as seen in Ex.A.1-sale deed dated 29.09.1989. 20.Advancing his arguments, the Learned Counsel for the Appellants/Defendants submits that the Respondent/Plaintiff has not produced chitta and adangal to prove possession and enjoyment of the property and in the present case, there is no relevant document to establish proof of possession and enjoyment of suit property, which has not been appreciated in a proper perspective by the First Appellate Court. 21.The Appellants/Defendants take a plea that in the absence of prior for declaration by the Respondent/ Plaintiff to the suit property the relief of permanent injunction ought not to have been granted by a Court of Law, but the same has not been taken into account by the First Appellate Court. 22.Expatiating his submissions, the Learned Counsel for the Appellants/Defendants submits that the Respondent/ Plaintiff has not identified the suit property with certainty as per Ex.C.19-Report filed by the Advocate Commissioner dated 07.02.1994 and as such, the First Appellate Court should not have decreed the suit in favour of the Respondent/Plaintiff. 23.The Appellants/Defendants also take a stand that the Respondent/Plaintiff has not proved in evidence that the Appellants/ Defendants have interfered with the peaceful possession and enjoyment of the suit properties by the Respondent/Plaintiff on 13.08.1993 and on 23.08.1993 either by oral or documentary evidence and in fact, there is no cause of action for the Respondent/ Plaintiff to file a suit for bare injunction. 24.The Learned Counsel for the Appellants/Defendants contends that Ex.C.19-Report of the Advocate Commissioner shows that there are latches in regard to the schedule of the property and in fact, the certain admissions made by the 4th Appellant/ 4th Defendant would not in any way improve the case of Respondent/Plaintiff to grant the https://hcservices.ecourts.gov.in/hcservices/ relief of permanent injunction. But these aspects have not been adverted to by the First Appellate Court. 25.It is the contention of the Learned Counsel for the Appellants that in the absence of chitta and adangal pertaining to the suit property, the sole evidence of Respondent/Plaintiff will not suffice to hold that he is in possession and enjoyment of the suit property when admittedly the suit properties are agricultural lands. 26.Lastly, the Learned Counsel for the Appellants/ Defendants submits that the Report of the 2nd Advocate Commissioner-Ex.C.19 and the evidence of C.W.2 (Advocate Commissioner) have not been taken into account by the First Appellate Court, while decreeing the suit for permanent injunction. 27.In response, the Learned Counsel for the Respondent/ Plaintiff submits that the First Appellate Court has taken into account the available oral and material documentary evidence on record and has come to a right conclusion that the Respondent/Plaintiff has proved his possession and enjoyment over the suit properties and rightly decreed the relief of permanent injunction in favour of the Respondent/Plaintiff, which need not be disturbed by this Court at this distance of time. 28.The Learned Counsel for the Appellants/Defendants cites the decision of the Hon'ble Supreme Court in Anathula Sudhakar V. P.Buchi Reddy (Dead) By LRs and others 2009-2-L.W. 546 at page 553 in para 11.3 wherein it is observed as follows: "Where the Plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the Plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of Plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the Plaintiff will have to file a suit for declaration,possession and injunction." 29.He also relies on the decision of the Hon'ble Supreme Court in Sayed Muhammed Mashur Kunhi Koya Thangal V. Badagara Jumayath Palli Dharas Committee and others (2004) 7 SCC 708 at page 709 wherein it is, among other things, held that 'the Plaintiff can only succeed on the strength of his case and not on the basis of any weakness found in the defendant's case.' 30.However, the Learned Counsel for the Respondent/ Plaintiff cites the decision of this Court in Kitnammal V. Nallaselvan and https://hcservices.ecourts.gov.in/hcservices/ others 2005 (1) CTC 356 wherein it is held that 'unless the earlier report of the Advocate Commissioner is set aside, second Advocate Commissioner cannot be appointed.' 31.He also seeks in aid of the decision of the Hon'ble Supreme Court in Avinash Kumar Chauhan V. Vijay Krishna Mishra (2009) 3 MLJ 409 (SC) wherein it is held hereunder: "Section 33 of the Stamp Act, 1899 casts a statutory obligation all the authorities to impound a document. The Court being an authority to receive a document in evidence is bound to give effect thereto. Section 35 of the Stamp Act, 1899, categorically provides that an unstamped document shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, there is no reason as to how the document would be admissible for collateral purposes." 32.It is the evidence of P.W.1 (Respondent/Plaintiff) that he purchased the suit properties from Vijayan as per Ex.A.1-Sale Deed dated 29.09.1989 and Ex.A.2 is the Form No.5 of the Rights Register and Ex.A.3 is the Land Tax Receipt dated 04.03.1943 and further that from the year 1989 he is in enjoyment of the suit property and presently, he is doing plantation cultivation and that near the fence there is a vacant land and the plantains trees are 10 months old. 33.The evidence of P.W.1 is to the effect that around the suit property, there are Poovarasam, Tamarind and Velikathan trees and thick fence are on both sides and on the eastern side, there is a dried fence and from Shanmugam's land water is flowing to his property and that the Appellants/Defendants have no right in the suit properties. 34.P.W.1 (Respondent/Plaintiff), in his cross examination, has deposed that he is in possession of Partition Deed and the Appellants/ Defendants have created trouble in the property R.S.No.276/2 measuring an extent of 17 kulis and 4 visams and that the property R.S.No.276/2 is in Pacha Gounder's name and himself and after his purchase, he has changed his name and that he does not know that in R.S.No.292 there is a Government Poramboke land. 35.Continuing further, P.W.1 has stated that he has filed the present suit based on Ex.A.4-Partition Deed dated 30.11.1981 and that he has orally complained to the police about the Appellants/Defendants creating a trouble on 13.08.1993. 36.D.W.1 (4th Appellant/4th Defendant), in his evidence, has stated that the Respondent/Plaintiff has not lived in the suit https://hcservices.ecourts.gov.in/hcservices/ property and the 4 boundaries mentioned in the suit are not correct and that the 1st item of suit property originally belonged to Pachayappa Gounder and that patta stands in his name and that he is in enjoyment of the said property and from Pachayappa Gounder, his father Manickam has enjoyed the said property, by means of a Pogiam and that his father Manickam expired in the year 1953 and from that onwards, he has been enjoyment of the 1st item of suit property. 37.Proceeding further, it is the evidence of D.W.1 that 2nd item of suit property belonged to Muthu Gounder and his heir is Subaraya Gounder and Subaraya Gounder's son is his father and from the year 1926, the 2nd item of property has been in enjoyment of Samy Gounder and that the said property belongs to him and that the Samy Gounder has sold the 2nd item of property to Rangasamy and that the said Rangasamy has sold the said property to Adiammal and Adiammal, in turn, has sold the property in the year 1980 to one Jayamari his wife and his wife has sold the 2nd item of property in the year 1986 to Rathakrishnan and on his supervision, the said Rathakrishnan has issued instructions for laying the stones. 38.D.W.1 goes on to add that the 3rd item of suit property belongs to Hosur Mariamman Temple, which has been in his enjoyment and he is the President of the Trustee Committee of the temple and that he has given in writing to Murugaiyan, Jayapal, Selvam, Parkunan to enjoy the 3rd item of property and accordingly, they are in enjoyment of the said property and since the patta in the name of Jayamari has been transferred to the Respondent/Plaintiff, he has raised an objection at the Vallianur Taluk Office and that as alleged by Respondent/Plaintiff he is not enjoying the said property. 39.D.W.1, in his cross examination, has deposed that he has filed a proof before the Court to show that he is the son of Manickam and that the suit property has been divided among themselves and he denies the suggestion that the property mentioned in Ex.B.4-Sale Deed dated 28.04.1991 is not the suit property and moreover, there is a Gazette concerning the properties belonging to the temple and that he is the President of the Hosur Mariamman Temple and it is true that during August 1993, there has arisen a trouble between the Respondent/Plaintiff and the Appellants/ Defendants. 40.It is the evidence of D.W.2 (1st Appellant/1st Defendant) that the 4th Appellant/4th Defendant, who is a Trustee of Hosur Mariamman Temple, has let out the poramboke land belonging to the temple to him and apart from him other persons have also taken the said land on rent and they are in enjoyment of a poramboke place and the Respondent/Plaintiff created a trouble saying that the properties enjoyed by them belongs to him and that the trouble has arisen during August 1993 and in the place purchased by the Respondent/Plaintiff, they are not residing there. https://hcservices.ecourts.gov.in/hcservices/ 41.D.W.2 (in his cross examination) has deposed that in Ex.B.5- Sale Deed dated 06.08.1993 he has affixed his signature and in Ex.B.5-Sale Deed dated 06.08.1993 the person Dhanraj who signed is the President of the Hosur Mariamman Temple and is Presidentship of the temple has been recognised by the Government and he has not obtained any document in writing from the Government to enjoy the poramboke land. 42.C.W.1 (the 1st Advocate Commissioner), in his evidence, has deposed that he has been directed by the Court to note down the physical features of the suit property and that after inspecting the suit property he has submitted his Report-Ex.C.1 dated 21.09.1993 and that he has taken 16 photos which are Exs.C.2 to C.17 and negatives are Ex.C.18. 43.C.W.1 has also deposed that in his warrant of appointment as Commissioner he has been directed to identified the suit property and further that he has identified the suit property as informed by the Respondent/Plaintiff. 44.C.W.2 (2nd Advocate Commissioner) in her evidence has deposed that he has measured the suit properties in the presence of Respondent/Plaintiff, Plaintiff's counsel and the Defendant and submitted the Report-Ex.C.19 dated 07.02.1994 and the Surveyor Plan is Ex.C.20 and 4 boundaries of the suit properties are not like the one stated by the Respondent/Plaintiff and the property cadaster No.919 does not contain the details as stated in the Plaint and in the Report, Plaintiff's sale deed, partition deed, the Respondent/Plaintiff's properties have not been described commonly and that as per the sale of the Respondent/ Plaintiff, she has not been in a position to identify the property. 45.C.W.2, in her cross examination, has deposed that for the Respondent/Plaintiff and the Appellants/Defendants properties, the partition deed is one and the same and when she has seen the properties there has been no temple and the idol and that she has measured the entire extent of suit properties and for removing the huts, the poles and the split coconut-leaves have been seen. 46.Ex.A.1 is the Sale Deed dated 29.09.1989 executed by Padmavathi and 4 others to and in favour of Respondent/ Plaintiff in respect of the suit properties. Ex.A.2 is the Form No.5 (Rights Register) which shows that in respect of Survey No.276/2 the patta stands in the name of Pacha Gounder and Dhanasekaran. 47.Ex.A.4 is the certified copy of Partition Deed dated 30.11.1981 entered into between Manicka Gounder wife Adiammal, 2) S.Ananda Baskaran, 3)Vijayan @ Vijayarangam, 4)Dhanraji and 5) Jayachandran. Ex.A.5 is the Sale Deed dated 29.09.1989 executed by https://hcservices.ecourts.gov.in/hcservices/ Jayachandran @ Ramachandran to and in favour of R.Dhanasekaran in respect of the properties mentioned in the schedule which has fallen to his share in partition. 48.Ex.A.6 is the copy of Field Measurement dated 28.12.1990 in respect of Sub Taluk, Villianur relating to R.S.No.276/2. 3 furnished by Assistant Director, Survey and Land Records, Pondicherry. Ex.A.7 is the Form No.5 (Rights Register) in respect of Patta No.161 bearing R.S.No.276/2 which stands in the name of Muthu Gounder, Jayamari and Dhanasekaran. 49.Ex.B.1 is the carbon copy of patta in respect of R.S.Nos.276/ 2, 276/3, 276/4, and 277/1 issued by the Deputy Tahsildar, Sub Taluk Office, Villianur which stands in the name of C.Pacha Gounder bearing Patta No.436, Muthu Gounder and Jayamari in Patta No.161, Jayamari Gounder in Patta No.325 and Muthu Gounder in Patta No.567. Ex.B.2 is the patta dated 07.12.1978 of the property situated in Matrice No.233 at Villianur. Ex.B.3 dated 12.01.1990 is Form No.5 issued by Deputy Tahsildar, Villanur in favour of Pacha Gounder bearing No.436. Ex.B.4 is the Tamil translation of Notaire Sale Deed dated 28.04.1991. Ex.B.5 is the Lease Deed dated 06.08.1993 executed between Hosur Mariamman Temple Dharmakartha and the Appellants 1 and 2/Defendants 1 and 2. 50.In the instant case on hand, it is manifestly clear from the Plaint filed by the Respondent/Plaintiff that he has only sought the relief of permanent injunction restraining the Appellants/Defendants, their men, agents or whomsoever claiming through them from disturbing or interfering with his peaceful possession and enjoyment of the suit properties. Significantly, the Appellants/ Defendants have taken a plea that there is a dispute in regard to the title of the suit properties and inasmuch as then Respondent/Plaintiff has not framed the suit for declaration of title and has only claimed a relief of permanent injunction, the suit is not maintainable in law.