IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.Nos.1047 to 1049 of 2007 and M.P.Nos.2 and 3 of 2007 in S.A.No.1048 of 2007 & M.P.No.2 of 2007 in S.A.No.1049 of 2007 Arumughan .. Appellant in all S.As. vs. 1. The Superintending Engineer MEDC (South)/TNEB Ashok Nagar Chennai 600 083. 2. The Divisional Engineer, MEDC (South)/TNEB Kadaperi West Tambaram Chennai 600 045. 3. The Assistant Engineer MEDC (South) TNEB Kadaperi West Tambaram Chennai 600 045. .. Respondents in S.A.No.1047/07 Tambaram Municipality Rep. by its Commissioner .. Respondent in S.A.No.1048/07 The Commissioner Tambaram Municipality .. Respondent in S.A.No.1049/07 These Second Appeals are focussed as against the common judgment and decrees passed in A.S.Nos.18 to 20 of 2004 dated 30.09.2005 on the file of the Additional Sub Court, Chengalpet confirming the common judgment and decrees passed in O.S.Nos.71/97, 123/95 and 93/97 dated 29.08.2003 on the file of the District Munsif Court, Tambaram. For appellant : Mr.S.V.Jayaraman,Sr.Counsel in all appeals for Mr.P.Arivudainambi https://hcservices.ecourts.gov.in/hcservices/ For respondent : Mr.S.Parthasarathy, Sr.Counsel in S.A.Nos.1048 for Mr.P.Srinivas & 1049/2007 JUDGMENT These Second appeals are focussed by the plaintiff in O.S.Nos.123 of 1995 and 71 of 1997 and who is the defendant in O.S.No.93 of 1997, animadverting upon the common judgment and decrees dated 30.09.2005 passed in A.S.Nos.18 to 20 of 2004 by the Additional Subordinate Judge, Chengalpet, confirming the common judgment and decrees of the District Munsif, Tambaram in O.S.Nos.71/97, 123/95 and 93/97. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of these three Second Appeals would run thus: (a) The following are the two suits filed by the appellant herein: (i) O.S.No.123 of 1995 was filed seeking the following reliefs: "(a) For a permanent injunction restraining the defendant, its men, agents, servants, etc. from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property or in any manner trespassing or putting up any construction over the suit property; and (b) For costs." (ii) O.S.No.71 of 1997 was filed seeking the following reliefs: "(a) For a mandatory injunction, directing the defendants to effect and give electricity service connection to the suit property; (b) For costs." (iii) One other suit O.S.No.93 of 1997 was filed by the respondent/defendant seeking the following reliefs: "For permanent injunction, restraining the defendant his men, agent, servants or any one claiming through him from any manner, making any further construction in the suit 'A' and 'B' Schedule properties; (b) For Mandatory injunction, directing the defendant to remove all the construction put up in suit 'A' and 'B' schedule properties and restore the property to its original position; and (c) For costs." https://hcservices.ecourts.gov.in/hcservices/ (b) The written statements were filed by the respective defendants resisting the suits. (c) Whereupon the trial Court framed the issues. (d) During joint trial, the appellant herein examined himself as P.W.1 and Exs.A1 and A14 were marked. On the side of the respondents herein, D.Ws.1 to 3 were examined and Exs.B1 to B7 were marked. (e) Ultimately the trial Court rendered common judgment dismissing the suits filed by the appellant and decreeing the suit filed by the respondents, as against which the appellant herein filed first appeals for nothing but to be dismissed. 3. Being aggrieved by and dissatisfied with the same, these three Second Appeals have been filed suggesting the following substantial questions of law: SUBSTANTIAL QUESTIONS OF LAW IN A.S.NO.18/2004 "1.Are the courts below are correct and justified (a) in going into the question of title in a suit for bare injunction? (b) in a suit for bare injunction, has the court got jurisdiction to go into the question of title and is not any decision rendered on the question of title improper and in excess of its jurisdiction? 2. Whether the State Government Order (Ex.B6) and the Circular (Ex.B7) can override the conditions stipulated under the Indian Electricity Act, for obtaining service connection in the light of the provisions of the Act? 3. Whether the Courts below are correct in coming to a conclusion that the Appellant/Defendant in O.S.No.93 of 1997 cannot claim any right under Ex.A1, since the said suit land is vest with the Municipality and it owes obligation to maintain the same, that too, in the absence of proof or material evidence for such tall claim of the ownership in favour of the Municipality? " (extracted as such) SUBSTANTIAL QUESTIONS OF LAW IN A.S.NO.19/2004 "1.Are the courts below are correct and justified (a) in going into the question of title in a suit for bare injunction? (b) in a suit for bare injunction, has the court got jurisdiction to go into the question of title and is not any decision rendered on the question of title improper and in excess of its jurisdiction? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the Respondent/Defendant [in O.S.No.123 of 1995] a Statutory Body, namely the Tambaram Municipality, can claim its Authority/right over the suit property when there is a lack of compliance in the eye of law on the part of the promoters/developers of the layout, as required under the Law, to convey the public utility area in favour of the Respondent/Defendant Municipality? 3. Whether it is open to the Municipality to fabricate the original layout, intended for Rajagopal Nagar, approved by the D.D.T.P.No.65/69 dated 30.01.1970 and camouflage and wrongly project its case that as if the Appellant/Plaintiff in O.S.No.123 of 1995 had purchased the public utility area, that too, when compare with the original layout vide LPDM/DDTP 65/69 dated 30.01.1970, the stand of the Municipality is thoroughly false and misleading? " (extracted as such) SUBSTANTIAL QUESTIONS OF LAW IN A.S.NO.20/2004 "1.Are the courts below are correct and justified (a) in going into the question of title in a suit for bare injunction? (b) in a suit for bare injunction, has the court got jurisdiction to go into the question of title and is not any decision rendered on the question of title improper and in excess of its jurisdiction? 2. Whether the Courts below are correct in coming to a conclusion that the Appellant/Defendant in OS No.93 of 1997 cannot claim any right under Ex.A1, since the said suit land is vest with the Municipality and it owes obligation to maintain the same, that too, in the absence of proof or material evidence for such tall claim of the ownership in favour of the Municipality? 3. Whether it is open to the Municipality to fabricate the original layout, intended for Rajagopal Nagar, approved by the D.D.T.P.No.65/69 dated 30.01.1970 and camouflage and wrongly project its case that as if the Appellant/Plaintiff in O.S.No.123 of 1995 had purchased the public utility area, that too, when compare with the original layout vide LPDM/DDTP 65/69 dated 30.01.1970, the stand of the Municipality is thoroughly false and misleading? " (extracted as such) 4. Heard both sides. 5 After hearing both sides, I have formulated the following substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ (1) Whether both the Courts below committed error in not noting the fact that the suits filed by the respective parties were bad for want of a prayer for declaration of title? (2) Whether there is any perversity or illegality in the findings given by the lower Courts holding that the appellant had not proved his title, whereas, the respondents proved their title over the suit property? 6. Both the substantial questions of law are taken together for discussion as they are inter-linked and inter woven with each other. 7. The learned Senior Counsel for the appellant would put forth and set forth his arguments, which could succinctly and pithily be set out thus: (a) Without any justification and that too in the absence of documents in support of the respondents herein, both the Courts below held as though the respondents are the owners of the suit property and the appellant herein failed to prove his title over it. (b) Due opportunity was not given to the appellant to produce the authentic approved plan and the Courts below, only based on such absence of production of plan held as though the suit property belonged to the defendants. (c) Absolutely there is no iota or shred, shard or miniscule extent of evidence to show that the suit property was gifted to the respondent Municipality, and in the absence of such gift deed or dedication, the Courts below were not justified in holding as though the Municipality is the owner of the suit property. (d) The vendor of the appellant, who had absolute right over the triangular shaped portion which happens to be the suit property, sold it in favour of the plaintiff validly and in such a case, both the Courts below were not justified in ignoring the suits of the appellant, warranting interference in the Second Appeals. 8. In a bid to make mincemeat of the arguments as put forth and set forth on the side of the appellant, the learned Senior counsel for the respondents would advance his arguments, which could briefly and concisely be stated thus: (a) The suit property has not been described properly and it is vague as vagueness could be. (b) The trial Court appropriately and appositely, correctly and convincingly pointed out the ills in the description of the suit property, though in his two suits the suit property was described so as to mislead the Court. https://hcservices.ecourts.gov.in/hcservices/ (c) Once the suit property was dedicated for public cause, the respondents being the public body are entitled to use the suit property for the beneficial use of the public and it is not open for the appellant to have any right over the said land. (d) Once any area is ear marked in the approved plan for public purpose, no other person could claim exclusive right over it. Accordingly, the learned Senior Counsel for the respondents would pray for dismissal of all the three Second Appeals. 9. Indubitably and indisputably or atleast undeniably, the facts would run thus: There was a considerable extent of land in Pulikoradu village in S.No.120/4 which belonged to one Sekaran as per Ex.A2 and with the help of a promoter, the said land was carved out into plots and approval was obtained from the competent authority, namely, the Regional Director of Town and Country Planning, Chengalput. As per the plan, the triangular shaped area was allotted to the north of the thirty feet road in the newly formed colony, namely Rajagopal Nagar. The said triangular area is actually the subject matter of the suits now. On the one hand, the appellant would claim exclusive right over it as per Ex.A1, the sale deed. However, the respondents herein being the public authorities, would contend that once in the approved plan which they produced and marked as Ex.B1, the said area was ear marked for public purpose, they could exercise their right over it and use the area for public purpose over which the appellant could have no objection. 10. The perusal of the common judgment of the trial Court would display and evince that the trial Court attached utmost importance to number 9 referred to in describing the suit property. According to the trial Court, in Ex.B1, the plot No.9 is stated to be situated to the south of the newly laid thirty feet road in Rajagopal Nagar. Whereas, the suit property as described in the plaint is stated to be situated to the north of the said newly laid road. Based on such distinction, the trial Court went to the extent of holding that the respondents herein proved their title over the triangular portion of the suit property, whereas, the appellant did not prove their case. In my considered opinion, such a finding based on plot No.9 as found described in Ex.B1, is far from satisfactory. 11. At this juncture, I would like to refer to the judgment of the Madurai Bench of this Court reported in 2007(4) CTC 70 [Chinna Nachiappan and another v. PL.Lakshmanan],an excerpt from it would run thus: "14. Not to put too fine a point on it, right at the outset, I may proceed to refer to the https://hcservices.ecourts.gov.in/hcservices/ averments in the plaint at paragraph Nos.4,5,6,7 and 8 which unambiguously and unequivocally referred to a serious title disputes between the plaintiff and the defendants. Paragraph No.8 is extracted hereunder for ready reference: "Though joint patta had been issued to the plaintiff and his pangalis have been and are in possession as per the partition among themselves. Thus the suit property continues to be in the possession and enjoyment of the plaintiff." 15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trait proposition of law that if the plaint itself contains the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a Suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2, Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted hereunder for ready reference: "2. Suit to include the whole claim – Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the Suit within the jurisdiction of any Court." 16. Hence, in this view of the matter, the substantial question of law could rightly be decided to the effect that the original Suit is bad for absence of a prayer for declaration of title." The extract supra would reveal that if the plaint discloses that there is a title dispute in regard to the suit property, the plaintiff is enjoined to pray for declaration of title. Here the plaint averments would evidence and expatiate that even before the emergence of the suit, the plaintiff and the defendants could not see eye to eye relating to the ownership over the suit property. It is not the case of any one that the plots situated to the south of the newly laid thirty feet road in Rajagopal Nagar is the suit property. For argument sake the trial Court assumed and presumed certain points and proceeded further and gave a finding relating to title. No doubt in an injunction suit incidentally ex facie and prima facie title could be gone into. But in this case, I am of the firm opinion that https://hcservices.ecourts.gov.in/hcservices/ the appellant should have prayed for declaration of title which he failed to ask for in the plaint. 12. The respondent/Municipality filed the suit O.S.No.93 of 1997 for mandatory injunction so as to prevent the plaintiff from raising construction. All the three suits were tried together, but the trial Court as well as the appellate Court were not justified in giving a finding relating to ownership. They ought to have driven the parties to file a comprehensive suit seeking declaration of title and for consequential reliefs. The contention on the side of the appellant that no donation deed was executed in favour of the respondents and that therefore, they are not justified in laying claim over the suit property is a point to be considered further, in the suit which if they so desire to file. However, the contention on the side of the Municipality that they are having the right to do ameliorative works in the area meant for public purpose in the approved plan, is another point which also has to be considered by the Court in depth. The plaintiff would contend that Ex.B1 is a fabricated document on the ground that the suit property is simply mentioned as 'open' even though it is having the plot number assigned as No.9. According to the learned counsel for the plaintiff, in the sale deed Ex.A1, even though at present the plan is not found attached, the actual plot No.9 is referring to that triangular shaped area. Be that as it may, the sum and substance of the conclusion arrived at by the trial Court as well as the appellate Court is based on the fact that the plaintiff has not proved his claim over the open space by producing the appropriate plan. 13. According to the learned Senior Counsel for the appellant, during the pendency of these Second Appeals, the appellant obtained certified copies of the sale deeds as well as the plan and he wants to put them before this Court as additional evidence. In view of the decision taken by this Court that the suit filed by the appellant without seeking for declaration is defective, at this stage additional evidence need not be entertained. However, in view of the ratiocination adhered to by me in discussing the pros and cons of the matter, I would like to give liberty to the appellant herein to file appropriate comprehensive suit seeking declaration and consequential reliefs adding necessary parties. It is the bounden duty of the plaintiff to prove his title over the said triangular shaped land by producing clinching documents including the approved plan. 14. Trite the proposition of law is that marking is different from proving. By merely producing a document or map, the Court cannot take that document or map as proof, unless its genuineness is proved as contemplated in the Indian Evidence Act. The authority who has approved the plan should necessarily be summoned in order to speak about it and the Court should be satisfied that the genuine approved plan has been produced before the Court also. When a https://hcservices.ecourts.gov.in/hcservices/ document is challenged specifically, the question of the Court simply relying on such document without proof would not arise. 15. In this connection, my mind is redolent and reminiscent of the following decisions of the Hon'ble Apex Court. (i) AIR 2001 Supreme Court 1158 (Bipin Shantilal Panchal vs. State of Gujarat and another). An excerpt from it would run thus: "13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." (ii) (2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]; certain excerpts from it would run thus: 10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its https://hcservices.ecourts.gov.in/hcservices/ opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to https://hcservices.ecourts.gov.in/hcservices/ waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original). 15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded." 16. As such in this view of the matter, I would like to dispose of all the three appeals by holding that the dismissal of the suits filed by the appellant warrants no interference. However, any finding relating to title in