IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.02.2010 CORAM THE HON'BLE Ms.JUSTICE R.MALA S.A.No.449 of 2003 M.K.Moorthy ... Appellant/Plaintiff vs. 1.V.A.T.Palani 2.V.A.T.Thillai Natarajan 3.A.Karpagam 4.A.Sivakami ... Respondents/Defendants Second Appeal has been filed against the judgment and decree passed in A.S.No.32 of 2002 dated 31.10.2002 on the file of the Additional Sub-Court, Chengalpet, reversing the judgment and decree passed in O.S.No. 24 of 1998 dated 27.02.2002 on the file of the District Munsif-cum-Judicial Magistrate, Thirukalukundram. For Appellant : Mr.T.V.Krishnamachari For Respondents : Mr.S.Parthasarathy, Senior Counsel for M/s.K.Govi Ganesan J U D G M E N T Second Appeal has been filed against the judgment and decree passed in A.S.No.32 of 2002 dated 31.10.1002 on the file of the Additional Sub-Court, Chengalpet, reversing the judgment and decree passed in O.S.No. 24 of 1998 dated 27.02.2002 on the file of the District Munsif-cum-Judicial Magistrate, Thirukalukundram. 2. The averments in the plaint are as follows:- (i) The suit property is a grama natham and it is the ancestral property of plaintiff. The plaintiff's father Kanniappa Chettiar succeeded the suit property and he was in enjoyment of the same. After the death of Kanniappa Chettiar, the plaintiff and his brother Shanmugam were in possession and enjoyment of the suit property. On mutual agreement, the plaintiff's brother is in enjoyment of a site near light house. The plaintiff is in enjoyment of the suit property. https://hcservices.ecourts.gov.in/hcservices/ (ii) The plaintiff put up a semi hut in the suit property and is residing there. His possession has been recognised by the Grama natham Survey and Settlement Authority and patta has been issued in Patta No.764, in the name of the plaintiff. Since, he wanted to put up a pucca construction in the suit property, he submitted a plan, which was rejected by the Archeological Department. Hence, the plaintiff was residing in a nearby place and so the place is with dilapidated house. The house is assessed to tax. The house tax has been paid by the plaintiff. (iii) The first defendant is an utter stranger, not even a neighbour. The plaintiff is in possession of the suit property for nearly 30 years. Now, the first defendant attempted to remove the fence in the Northern side of the suit property in the third week of March, 1998, which was prevented by the plaintiff and the elderly people of the Village. Since, the first defendant is an influential person, the plaintiff is constrained to file the suit for injunction restraining the first defendant from inferfering with the possession of the suit property. Pending the suit, the first defendant died and therefore, his legal heirs were impleaded as defendants 2 to 6. Hence, he prayed for the decree. 3. The gist and essence of the written statement filed by the first defendant are as follows:- (i) The suit property was originally owned by Eswaran Temple of Mahabalipuram Village and it was managed by the then Dharmakartha Munuswamy Naicker. The Eswaran Temple was in a dilapilated condition. With a view to renovate the said Temple, Dharmakartha Munuswamy Naicker sold the suit property to the first defendant under a registered sale deed dated 12.05.1965. (ii) The suit property measuring 0.10 cents forms part of the grama natham S.No.145. The site on the West of the suit property purchased by the defendant on 12.05.1965 originally belonged to one Kanniappa Chettiar. His wife sold it to a North Indian. One Rajendran purchased it from him on 10.02.1983. Palani, son of the first defendant, purchased the property to the North of the suit property from Kanniammal and others belonging to the family of Sakkarai Chettiar. In 1982 a bore well was dug in the property of Elumalai. At the same time, two bore wells were dug by the first defendant over the suit property. Those two bore wells were still in existence. Because of scarcity of labour, the first defendant is not cultivating his lands and hence, the bore wells over the suit property are in disuse for the past three years. (iii) The plaintiff is not in possession and enjoyment of the suit property.It is neither belonging to the plaintiff nor his father as ancestral property. The house tax alleged by the plaintiff is not a true document. It is not related to the suit property. There is no https://hcservices.ecourts.gov.in/hcservices/ ground tax for the suit property. The defendant is in peaceful possession and enjoyment of the entire suit property purchased by him. There was no enquiry in the Village regarding grant of patta. The Encumbrance Certificate is self-serving document of plaintiff. The thick grow of velikathan trees over the suit property is even now in existence. The defendant, who is in possession of suit property from the year 1965 has acquired title by adverse possession. The suit is not maintainable without prayer of declaration of title. No cause of action for the suit. Hence, he prayed for the dismissal of the suit. 4. The gist and essence of the additional written statement filed by the third defendant are as follows:- (i) The suit property is in possession and enjoyment of his father/first defendant/Thambiran Naicker from the year 1965 and he applied for approval of builders to Mahabalipuram Township even from the year 1974 and thereby exercising all rights of ownership till his death. After his death on 3.5.99, the defendants 2 to 6 are in possession and enjoyment of the suit property, enjoying the Velikathan trees therein. The third defendant and other defendants 2, 4 to 6 and prior to them first defendant and his predecessors were in possession and enjoyment of the suit property for over a statutory period and they have acquired title to the suit property by adverse possession and prescription also. He plaintiff under the guise of false patta on 15.07.1998 attempted to put up a super structure over the suit property for which the first defendant gave a complaint to the S.I. Of Police, Mahabalipuram. Hence, he prayed for the dismissal of the suit. 5. The trial court after considering the averments both in the plaint and written statement had framed four issues and considering the oral evidence of PWs 1 to 3, DWs 1 to 5 and Exs.A1 to A13 and Exs.B1 to B10 and Exs.C1 to C3, granted an injunction. Against that, the defendants have preferred an appeal. The first appellate court had framed four points for determination and allowed the appeal, setting aside the decree and judgment passed by the trial court. Against that, the present second appeal has been filed by the plaintiff. 6. At the time of admission of the second appeal, the following substantial questions of law were framed for consideration :- 1.Whether the lower appellate court has correctly applied the principes of law regarding grant of permanent injunction under the Specific Relief Act, 1963 ? 2.Whether the lower appellate court has properly considered the material evidence in the case namely Exs.A-2 to A-10, B1-1 and C-1 to C-3 ? 7. The appellant as plaintiff filed a suit for bare injunction stating that the suit property is his ancestral property. In the https://hcservices.ecourts.gov.in/hcservices/ partition between his brother Shanmugham, the suit property has been allotted to him. He is in possession of the suit property. The plan submitted by the plaintiff for the construction of the building, has been rejected in view of the Government Order passed by the Archeological Department. Now, his sister is residing in the semi hut put up in the suit property. But, the respondents/defendants have no right over the suit property. Since, they attempted to interfere with the plaintiff's possession, he come forward with the suit for bare injunction. The respondents/defendants resisted the suit contending that the suit property originally belonged to Eswaran Temple, Mahabalipuram Village. Since, the Temple was in a dilapidated condition, to renovate the same, the Temple Dharmakartha Munuswamy Naicker had sold the suit property to the first defendant under registered Sale Deed dated 12.05.1965 and from that date onwards he is in possession and enjoyment of the same. After the death of first defendant, his legal heirs viz., defendants 2 to 6 are enjoying the suit property by cutting and selling the Velikathan trees raised in the suit property once in four years. They also raised the plea that the suit itself is not maintainable without the prayer for declaration of title and they prayed for the dismissal of the suit. The trial court after framing necessary issues and considering the oral and documentary evidence decreed the suit and granted an injunction. Against that, the defendants/respondents preferred an appeal. The appeal was allowed, setting aside the decree and judgment passed by the trial court. Against that, the present second appeal has been preferred by the plaintiff. 8. The learned counsel appearing for the appellant would contend that the suit property is an ancestral property. Considering his possession, patta has been issued as per Ex.A2 and therefore, he is in possession and enjoyment of the suit property. Adangal also filed as per Ex.A11. The plaintiff has put up a thatched hut in the suit property. He paid the property tax-Ex.A5. So the trial court has considered the same and granted an injunction. But the first appellate court has not considered the fact that the plaintiff/appellant's sister is residing in the hut in the suit property, which has been evidenced by the Commissioner's Report, Plan and Adangal Register-Exs.C1 to C3 and Ex.A11 respectively. He further submits that since, he is the owner of the property, there is no cloud over the title to the suit property and hence, the suit for bare injunction is maintainable. But the first appellate court has not considered these aspects and dismissed the suit and allowed the appeal, which is against law. 9. The learned counsel appearing for the appellant would further contend that since the property is a natham in new S.No. 269.26, Old S.No. 147/16, measuring 0390 sq.metre, the first occupier is the owner of the land. The appellant and his predecessors and fore- fathers are in exclusive possession of the suit property and recognising their possession, natham patta No. 764, has been issued. https://hcservices.ecourts.gov.in/hcservices/ To substantiate the same, he relied upon the decisions reported on 2006-3-L.W. 361, Muthammal (died) and another vs. The State of Tamil Nadu and another and 2006 (2) CTC 545, S.Parthasarathy vs. Durai @ Govindasamy and others, and would submit that in a suit for injunction, it is sufficient to decide as to who is in possession of suit property at the time of filing suit and establishment of prima facie right over the suit property. He also relied upon the decision reported in 1997 (1) CTC 407, Yadhavan and another vs. Md.Dayanudin and two others, wherein this Court has held that relief for bare injunction can be granted where there is no obstacle for granting such relief, without seeking the relief of declaration. He also relied upon the decision reported in 2009 (3) CTC 493, R.Pannerselvam vs. A.Subramaniam and another, wherein, this Court has held that even a trespasser in established possession is entitled to permanent injunction. A suit for bare injunction is maintainable. He also relied upon the decision reported in 2001-1-L.W. 724, I.Arasappan Karayalar and another v. Subramania Karayalar, wherein this Court has held that in case of vacant site possession follows title. He also relied upon the decision reported in (1976) 3 Supreme Court Cases 642, Vishwa Vijay Bharati vs. Fakhrul Hassan and others, wherein the Supreme Court has held that the entries in revenue records, the presumption of correctness can apply to genuine, not forced or fraudulent entries. In the decision reported in (2003) 1 MLJ 21, Lakshmana Gounder vs. The Special Deputy Collector (LA) Salem Steel Plant, Salem, this Court has held that the entries in the revenue records generally to be accepted at their face value and Courts should not embark upon an appellate enquiry into their correctness. But, the presumption of correctness can apply to genuine, not forced or fraudulent entries and prayed for allowing of the second appeal. 10. Per contra, the learned counsel appearing for the respondents would contend that the suit itself is not maintainable, since, the suit is for bare injunction. He relied upon the decision reported in (2008) 4 Supreme Court Cases 594, Anathula Sudhakar vs. P.Buchi Reddy (Dead) by LRs. and others, and submits that there is a cloud in the appellant/plaintiff's title and hence, he ought to have filed a suit for declaration and injunction. He further relied upon the decision reported in AIR 1968 Supreme Court 1413, Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others, wherein the Supreme Court has held that the appellant herein/plaintiff has pleaded that there is a Koor Chit, but, he has not filed the document before the Court, hence, by withholding the best evidence adverse inference can be drawn. He relied upon the decision reported in 2008(5) CTC 181, Meenakshi vs. Vennila and another and submits that the Commissioner is not a person to gather evidence to show, who is in possession of the property. The learned counsel for the respondents further submits that the first appellate court has considered all the aspect in a proper perspective and came to the correct conclusion. Hence, there is no infirmity or illegality in the judgment passed by the first appellate court. https://hcservices.ecourts.gov.in/hcservices/ Hence, he prayed for the dismissal of the second appeal. 11. Substantial Questions of Law Nos. 1 and 2:- The suit property is a house and site situated at Mamallapuram Village New S.No.269.26 (Old S.No.147/16), measuring an extent of 0390 sq.metre, bounded with the stated boundaries. The case of the appellant/plaintiff is that it is his ancestral property. During the partition between himself and his brother Shanmugham, the suit property was allotted to him. But, to prove the partition, admittedly, he has not filed any document. PW1/plaintiff/appellant- Moorthy in his chief-examination, he has stated that the suit property has been allotted to him in the partition and from the date of partition, he is in possession and enjoyment. Now, his sister has put up a hut and she is residing there. In his cross-examination, he has fairly conceded that originally the property belonged to his grand-father Arumuga Chettiar. He is having two brothers, by name, Narayanasamy Chettiar and Murugappa Chettiar. There is no title deed. 12. In the decision reported in 2006-3-L.W.361, Muthammal (died) and another v. The State of Tamil Nadu and another, this Court has held as under:- "It is the admitted case of both the parties that the suit properties are grama natham lands. As rightly contended by the learned senior counsel no patta will be issued in respect of grama natham and the first occupier is the owner of the particular portion of land. Though D.Ws 1 and 2 have deposed that the suit 1 and 2 properties were vacant sites, D.W.1 admitted that there is a hut used for keeping haystack. He has also admitted that there were houses around the suit properties. It is very unfortunate that to prove that the plaintiff was not in possession of the suit properties no documentary proof in the nature of revenue records or registers have not have produced by the defendants. Even the fasalis mentioned by D.W.1 relates to the period after filing of the suit. D.W.2 in his evidence admits that 36 cents is in possession of the plaintiff." 13. It is true that as per the decision cited supra, in respect of the grama natham lands, the first occupier is the owner of the particular land and there is no dispute over that. But, it is pertinent to note that whether the plaintiff/appellant's grand-father Arumuga Chettiar and his brothers - Narayanasamy Chettiar and Murugappa Chettiar, were enjoying the suit property. PW1/plaintiff/appellant-Moorthy in his cross-examination, he has stated that there was a koor chit in his father's name. Koor chit has taken place in 1951. But, he has not filed the Koor chit before the Court. He has fairly conceded that it is with his brother. In his cross-examination, he has stated as under:- "////vd; ghl;ldhh; bgah; MWKf brl;oahh;/ MWKf brl;oahh;. ehuhazrhkp brl;oahh;. KUfg;g brl;oahh; Mfpnahhpd; g{h;tPfr; brhj;J/ K:yg;gj;jpuk; vJt[k; fpilahJ/ ,th;fs; K:d;W ngUk; mDgtpj;jhh; vd;gjw;F vdJ je;ijapd; nghpy; Th;rPl;L cs;sJ/ mJ 1951k; Mz;od; Th;rPl;L/ https://hcservices.ecourts.gov.in/hcservices/ me;j Th; rPl;il nfhh;l;oy; jhf;fy; bra;atpy;iy/ gpuhjpYk; brhy;ytpy;iy/ me;j Th; rPl;L vd; mz;zdplk; cs;sJ/ mij nfhh;l;oy; jhf;fy; bra;ahjjw;F fhuzk; ,y;iy////" 14. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondents reported in AIR 1968 Supreme Court 1413, Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others, wherein the Supreme Court has held as under:- "5.....We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof." So, necessarily, adverse inference can be drawn against the appellant/plaintiff for not filing the Koor chit, to prove the title. 15. At this juncture, it is appropriate to consider the argument advanced by the learned counsel for the appellant that in the suit for bare injunction, there is no need to decide the title to the suit property. In the decision reported in 2009(3) CTC 493, R.Pannerselvam vs. A.Subramanian and another, this Court has held as under: "17. It is a trite proposition of law that patta would not constitute title. [Srinivasan and six others v. Sri Madhyajuneswaraswami, Pattavaithalai, Tiruchirapally District by its Executive Officer at Pattavaithalai Devasthanam and five others, 1998 (1) CTC 630]. The defendants questioned the title of the plaintiff. I am of the considered opinion that in this suit for bare injunction, the question of going into the title of either of the parties would not arise. The Trial Court, in my considered opinion, has not framed the issue relating to the title to any of the parties. However, in issue No.2, it simply contemplated as to whether the dispute of title by the defendants was justified. At this juncture, I would like to point out that in a case where there is paucity of evidence relating to proving possession of the parties concerned, the title of the plaintiff can be gone into incidentally, so as to rely on the proposition that possession follows title. But, in this case, there is clear evidence that it is not the defendants, but the plaintiff who is in possession of the suit property. As such, the First Appellate Court's approach in giving a finding that the plaintiff has not proved his title and consequently, he is not entitled to any injunction is apparently erroneous and it could not see the wood for trees. https://hcservices.ecourts.gov.in/hcservices/ 18. It is a common or garden principle of law that even a trespasser, who is in established possession of the property could obtain injunction. However, the matter would be different, if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relied. Here, a bare perusal of the plaint would demonstrate and evince that the plaintiff has not narrated anything about the title dispute obviously because of the fact that in the previous litigation, D1 failed to obtain any relief." 16. In the decision reported in 1997 (1) CTC 407, Yadhavan and another vs. Md.Dayanudin, this Court has held as under:- "..In Purushottam Dass v. Har Narain, AIR 1978 Del. 114 (F.B) it has been held that the prayer for declaration will be a surplusage if the plaintiff can get the relief of injunction without praying for declaration, but that the declaration has to be prayed for where an obstacle has to be removed before the plaintiff can claim the relief of injunction simpliciter." 17. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondents reported in (2008) 4 Supreme Court Cases 594, Anathula Sudhakar v. P. Buchi Reddy, wherein the Supreme Court has laid down the following dictum:- "21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar, (2005) 6 SCC 202). Where the averments regarding title are absent in a plaint and where there is no https://hcservices.ecourts.gov.in/hcservices/ issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." 18. It is sufficient to sue for an injunction simpliciter, provided, the plaintiff's title is not under a cloud, but, where the plaintiff's title is under a cloud, mere denial of title of the plaintiff by the defendants is not sufficient, there must be some documentary evidence to show that he is having right over the property. Considering the above citation along with Ex.B1 filed by the defendants/respondents, it is clearly proved that the suit property was originally owned by Mahabalipuram Village Eswaran Temple and it was managed by Munuswamy Naicker, who was the Dharmakartha of the Temple and since, the Temple was in dilapidated condition, with a view to renovate the same, he sold the suit property to the first defendant under a registered sale deed dated 12.05.1965. . From that date onwards, the first