In the High Court of Judicature at Madras Dated: 14-03-2007 Coram The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN Second Appeal No.280 of 1997 K.M.Lingan ..Appellant (Plaintiff) v 1.Lakshmiammal(died) 2.O.B.Nanjan 3.Halliammal 4.Mani RR 3 and 4 are brought on record as L.Rs of the deceased R1 vide CMP No.15495 of 1998 dated 21.9.1999 by KNJ ..Respondents (Defendants) The second appeal is filed against the judgment and decree dated 26.9.1996 made in A.S.No.36 of 1996 on the file of the Court of Subordinate Judge, Udhagamandalam, reversing the Judgment and decree dated 22.4.1996 passed in O.S.No.178 of 1995 on the file of the Court of District Munsif, Kothagiri. For Appellant : Mr.K.M.Santhanagopal For Respondents : Mr.N.Anand Venkatesh-R2 to R4. R1-Died. --- JUDGMENT This appeal has been preferred against the Judgment and decree in A.S.No.36 of 1996 on the file of the Court of Subordinate Judge, Udhagamandalam. The plaintiff filed O.S.No.178 of 1995 on the file of the Court of District Munsif, Kothagiri for bare injunction has obtained a decree in his favour before the trial Court. Aggrieved by the findings of the learned trial Judge, the defendants have preferred an appeal in A.S.No.36 of 1996 before the Subordinate Judge, Udhagamandalam who has allowed the appeal thereby setting https://hcservices.ecourts.gov.in/hcservices/ aside the decree and Judgment of the trial Court, which necessitated the plaintiff to prefer this second appeal. 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's late paternal grand father T.Kulla Maistry executed a settlement deed dated 5.11.1958 in favour of the plaintiff and his brother Rangaswamy and his other cousins namely, Rangaswamy, Manian, Mathan, T.K.Ramaswamy, Devaraj and Manian's son T.K.Lakshmanan for an extent of 13 acres 92 cents in R.S.No.378/1, 402, 254/1, 271/1, 228/3, 377/1B, 377/1A of Kengarai Village, Kotagiri Taluk. At the time of execution of settlement deed, the plaintiff and his first cousins were minors, the property in question was looked after jointly by their respective guardians. After the plaintiff and his first cousin attained majority, the property in question was orally partitioned between the sharers and in the oral partition, the plaintiff got an extent of 1 acre 16 cents in R.S.No.254/1D, subdivided from original survey number of 254/1 with specific boundaries. 2a) The plaintiff is in possession and enjoyment of the land extending 1.16 acres in R.S.No.254/1D planted with Tea plants and has been in continuous and uninterrupted possession and enjoyment for the past 25 years. The plaintiff is paying land tax to the Revenue authorities and the land tax receipts for the year 1993 and the chita extract are also produced along with the plaint. The defendants are making an attempts to grab at the suit property. On 22.12.1993, when the defendants tried to trespass into the suit property which was prevented by the plaintiff by his timely intervention. To prevent further attempt of trespass, the plaintiff has filed the suit. 3. The defendants 1 and 2 have filed a joint written statement contending as follows: Late T.Kulla Maistry of Thaddamanaihatty in Kengarai Village, Kotagiri Taluk and his wife late Tmt. Kali ammal alias Kami Ammal had nine children(6 sons and 3 daughters) They are 1) T.K.Mathan, 2) T.K.Kaman, 3)T.K.Krishnan, 4) T.K.Ramaswamy, 5) T.K.Nanjan,6) T.K.Lakshmanan,7) Tmt.Giriji Ammal,8) Tmt.Ponni ammal and 9) Tmt.Lakshmi ammal(second defendant). Late Kali ammal alias Kami Ammal died intestate in or around the year 1958 and late T.Kulla Maistry died in or around the year 1960. The alleged settlement deed dated 5.11.1958 by Late T.Kulla Maistry in favour of the plaintiff and others are not a valid document. The entire properties to an extent of 13 acres 92 cents in various survey fields in both Kangarai and Denad Villages of Kotagiri Taluk originally belonged to Late Tmt.Kali ammal alias Kami ammal, wife of late Kulla Maistry being her self acquired properties. The said Kali ammal alias Kami ammal died intestate in the year 1957, late T.Kulla Maistry had no title to make the settlement deed dated 5.11.1958 on which the present suit is https://hcservices.ecourts.gov.in/hcservices/ based. Late Kulla Maistry could at best settle only his share of 1/10th of his late wife's properties. Therefore, the present suit is not sustainable in law on the basis of the settlement deed dated 5.11.1958. 3a) Even if the alleged settlement deed is true, the description of the suit property is erroneous. In the alleged deed of 1958 , it is stated that the plaintiff and his brother would get an extent of 2 acres 32 cents out of various survey fields jointly in both Kengarai and Denad Villages. In the absence of positive evidence with regard to the alleged oral partition, the suit is liable to be dismissed in limine on the ground of erroneous description of the schedule of properties. The chitta extracts refer to patta No.172, but there is nothing on record to show that the patta refers to the suit property. The boundaries given for the suit property are imaginary. The second defendant being one of the legal heirs of Late Kaliammal and T.Kulla Maistry , she is entitled to get 1/9th share of the total extent of 13 acres 92 cents and an extent of 10 acres purchased by her and she is in possession and enjoyment of a total extent of 1.64 2/3 acres in both the villages. The plaintiff is not in exclusive possession and enjoyment of the suit property and the land tax receipts refer to only for fasli 1402. Hence the suit is liable to be dismissed with costs. 4. On the above pleadings, the trial Court had framed two issues . Before the trial Court, the plaintiff has examined himself as P.W.1 and exhibited Exs A1 to A4. Neither oral nor documentary evidence was let in on the side of the defendants. After going through the documentary and oral evidence let in by both parties, the learned trial Judge has come to a conclusion that the plaintiff is entitled to get an order of injunction and accordingly decreed the suit with costs. Aggrieved by the findings of the learned trial Judge, the defendants have preferred an appeal in A.S.No.36 of 1996 before the learned subordinate Judge, Udhamandalam. The learned first appellate Judge has allowed the appeal thereby setting aside the decree and judgment of the trial Court. Hence the second appeal by the plaintiff. 5. The substantial questions of law involved in this appeal are i) Whether the first appellate Court was right and justified in law in reversing the Judgment and decree passed by the trial Court granting decree for permanent injunction in favour of the appellant /plaintiff, in the absence of any evidence let in by the defendants, that too having regard to the plea taken in the written statement? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the first appellate Court was correct in setting aside the judgment and decree passed by the trial Court without having regard to the scope of the suit which is filed one for permanent injunction and in proceeding to dispose of the appeal as if the suit is one filed for declaration as well? 5a) The following additional questions of law are framed for consideration on 26.2.2007 on application. " 1. Whether the Judgment of the lower appellate Court is void and unsustainable for non compliance with the mandatory provisions contained in Order 41 Rule 31 CPC and liable to be set aside? 2. Whether the settled possession of the appellant has to be taken into consideration on the evidence adduced and whether the appellant is entitled for protection and grant of an order of injunction against the respondents as laid down by the Honourable Apex Court in the case of Rame Gowda(D) by Lrs-vs- M.Varappa Naidu(D) by Lrs. And another reported in 2004(3) L.W.143)? 6. The Points: The learned counsel appearing for the appellant would draw the attention of this Court to the Judgment of the first appellate Court by saying that there was no proper point for determination was framed by the first appellate Court to dispose of the first appeal and that on that ground alone the first appellate Court's Judgment is liable to be set aside. To substantiate this contention, the learned counsel would rely on the provisions of Order 41 Rule 31 CPC which reads as follows: " The Judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." The learned counsel for the appellant would contend that the provision under Order 41 Rule 31(a) CPC has been violated by the learned first appellate Judge and that the learned Judge has framed the point for determination as follows: https://hcservices.ecourts.gov.in/hcservices/ ",k;nky; KiwaPl;oy; jPh;khdpf;fg;gl ntz;oa gpur;rid ahbjdpy; ,k;nky;KiwaPL mDkjpf;f jf;fjh vd;gnjahFk;/ The learned counsel appearing for the appellant would contend that the first appellate Court has failed to apply his mind with regard to what are all the points to be decided in the first appeal. Simply it has stated that whether the first appeal is liable to be allowed or not which is against the principles of law laid down by this Court in Chinnammal-vs- M.Ramasamy Naicker and another(2002) 3 M.L.J.501) wherein it has been observed as follows: " After careful consideration of the rival submissions and the scrutiny of the available materials what are all required to be stated is that the judgment of the First Appellate Court has got to be set aside in view of the non-compliance of the mandatory provisions under O.41 Rule 31 CPC. The First Appellate Court instead of setting the points for determination has stated as follows: ";nky; KiwaPl;oy; jPh;t[ fhz ntz;oa gpur;ridahbjdpy; **,k;nky;KiwaPL mDkjpf;ff; Toajh>** vd;gnjahFk;/ After going through the Judgment of the First Appellate Court , this Court may hasten to state the Judgment under challenge is defective in that the learned Subordinate Judge has not followed the above provisioon under O.41 Rule 31,CPC The first appellate Court has not raised the points for determination as required under the aforestated mandatory provisions and not focused its attention on the specific and rival contentions which arose for decision. This Court had an occasion to consider such a situation in a case reported in Palanisami Pillai.v.The Commissioner, H.R and C.E. Madras(1997) 1 CTC 562 wherein it has b een held as follows: The object of O 41 Rule 31, C.P.C. In making it incumbent upon the appellate Court to raise the points for determination and to state reason for the decision is to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival conentions which arise for determintion as also to offer the litigant parties an opportunity of knowing and understanding the grounds upon which the decision proceeds with a view to enable them to exercise, if they seem fit, and are so adverse, the right of second appeal conferred by Sec.100, CPC. On a perusal of the Judgment of the learned single Judge, it appears to us that the reasons for his https://hcservices.ecourts.gov.in/hcservices/ findings would not satisfy O.41 C.P.C. This Court being the first appellate Court, and being the final Court of facts, it is incumbent on it to consider all the evidence adduced by the parties in the case." The facts of the abovesaid case exactly applies to the present facts of the case in all four corners. 7) The learned first appellate Judge has also not given an opportunity to the respondent to place his defence before the Court is also seen from the observation at Paragraph 12 of his Judgement. The learned first appellate Judge has observed that when the case was posted on 12.9.1996, there was no representation for the respondent and the respondent's counsel was also absent and the respondent was also absent and after hearing the appellant's counsel, the Judgment has been pronounced on merits. It is pertinent to note that the respondent has filed a petition to set aside the exparte order in IA.No.297 of 1996 but on the date of disposal of the first appeal on 26.9.1996, the said I.A.No.297 of 1996 filed by the respondent was also dismissed. The plight of the plaintiff was considered by this Court in CRP No.2049 of 1996, the revision preferred against the order passed by the first appellate Judge in I.A.No.297 of 1996. After hearing both sides, the Civil revision petition was allowed by this Court granting interim injunction in favour of the plaintiff and there is no counter filed in C.R.P.No.2049 of 1996 and the injunction has been made absolute by this Court. 8. Now coming to the merits of the case, the plaintiff has filed the suit for injunction in respect of 1 acre 16 cents in Kengarai Village re-surveyNo.254/1D. In the plaint, the plaintiff has given four boundaries for the above said 1 acre 16 cents. To prove his possession, the plaintiff has entered into the box to depose his case and he has also exhibited Exs A1 to A4. The learned first appellate Court has observed that the plaintiff has failed to correlate the patta No.172 to re-survey No.254/1D, without looking into the exhibits produced by the plaintiff. Ex A1 dated 5.11.1958 is the settlement deed executed by T.Kulla Maistry in favour of the plaintiff, his brother and his cousin brothers. At the time of Ex A1, the plaintiff, K.M.Lingan was a minor. "A" schedule to Ex A1 was settled in favour of the plaintiff K.M.Lingan and his brother Rangasamy. 2 acres 32 cents is the extent of the property in Survey No.254/1 at Kengarai Village was settled in favour of the plaintiff and his brother. Ex A2 is the copy of chita adangal extract for fasli 1402 which shows that survey No.254/1 has been subdivided into 254/1D and the patta No.172 has been issued in favour of 52 persons. Serial No.50 relates to K.M.Lingan, the plaintifif/appellant herein. 9. The learned counsel appearing for the respondents would contend that the first defendant Lakshmiammal is also a joint pattadar and her name figures at Sl.No.27. Except the contention of https://hcservices.ecourts.gov.in/hcservices/ the learned counsel for the respondents that the first defendant Lakshmiammal is also a joint pattadar for Survey No.254/1D, there is absolutely no evidence let in in this case to show that Lakshmiammal in Sl.No.27 to Ex A2 and the first defendant are one and the same person. Even the first defendant Lakshmiammal had not chosen to enter into the box to prove this claim. 10. The learned counsel appearing for the appellant relying on Rajbahadur Sharma (dead) through Lrs-v- Union of India and others (1998) 9 Supreme Court Cases,458) and contended that to prove that the plaintiff is not in possession of the plaint schedule property and that the first defendant Lakshmiammal is also a joint pattadar, the first defendant has not even entered into the box to prove the same. Order 8 Rule 3 CPC mandates that if there is any denial by the party to the suit, then it must be specific. The said provision of law runs as follows: "It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation or fact of which he does not admit the truth, except damages". The exact observation in the abovesaid dictum relied on by the learned counsel appearing for the appellant runs as follows: "Learned counsel appearing for the appellant submitted that though it was brought to the notice of the Tribunal that the appellant was not at fault in not joining at the transferred place, without giving any finding on that, the Tribunal has deprived the appellant of the salary for the period in question. He also brought to our notice that there was a specific plea, namely, that the appellant could not join at the transferred place in the absence of relieving order and necessary passes. The respondents never came forward to deny that assertion of the appellant. In other words, while the appellant was prepared to join the duty it was the administration which disabled the appellant to join the duty and, therefore, the appellant cannot be blamed". 11. The third document on which the plaintiff/appellant placed his reliance to prove his possession in respect of the suit property is Ex A3,the document evidencing the payment of land tax by the plaintiff for fasli 1402. The plaintiff has paid land tax for lands comprised in patta No.172. The learned counsel appearing for the respondents would contend that there is no correlation for this patta 172 to the suit Survey No.254/1D. But in Ex A2, the copy of the chita extract for fasli 1402 itself, it has been clearly stated that patta https://hcservices.ecourts.gov.in/hcservices/ No.172 stands in the name of 52 persons in respect of Survey No.254/1D at Kengarai Village and the plaintiff is one of the pattadars to Survey No.254/1D. Ex A3 is dated 17.1.1993. ie., prior to date of filing of the suit. Ex A4 is the tax receipts for fasli 1402 which is subsequent to the suit. The learned counsel appearing for the appellant would contend that once the plaintiff has produced sufficient evidence both oral and documentary to show that he is in possession of the plaint schedule property then it is the duty of the Court to protect his possession by way of granting an order of injunction. For this proposition of law,the learned counsel appearing for the appellant would rely on Rame Gowda (D) by Lrs-vs- M.Varadappa Naidu (D) by Lrs(2004-3 L.W.143) . The relevant observation in the abovesaid ratio decidendi runs as follows: "When the facts disclose no title in either party, possession alone decides. The court quoted Loft's maxim – 'Possessio contra omnes valet praeter eur cui his sit possession is (He that hath possession hath right against all but him that hath the very right)' and said. "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time." In M.C.Chockalingam and Others Vs. V.Manickavasagam and Others – (1974) 1 SCC 48, this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs.Shobha Venkat Rao – (1989) 4 SCC 131, it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind Vs. Jagat Singh, Advocate- (1995) 3 SCC 426, this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession https://hcservices.ecourts.gov.in/hcservices/ 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 force or taking 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 possession 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 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 casual 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 and Others Vs. Delhi Administration- (1968) 2 SCR 455, Paran Singh and Others Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Others Vs. State of Uttar Pradesh – (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram and Others's case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the https://hcservices.ecourts.gov.in/hcservices/ land, and in such a case, unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case(supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The "settled possession" must be (i) effective(ii) undisturbed and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase settled possession does not carry any special charm or magic in it. Nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of settled possession. (i) that the trespasser must be in actual physical possession of the property over a sufficiently