JUDGMENT
S.S. Subramani, J.
1. Defendant in O. S. 353 of
1994 on the file of First Additional District Munsif Court, Pondicherry is the appellant herein.
2. Suit filed by predecessor of respondents was one for decree for mandatory injunction against appellant, directing removal of waste materials accumulated in the suit property and for permanent prohibitory injunction restraining appellant from using suit property for storing cow dung and for accumulation of night soil in the suit property.
3. Parties herein will be referred to according to their rank in the suit.
4. Plaintiff and his family members are residing in the suit property from the year 1959 as lessees under Puduvai Saram Sri. Muthuvinayagar Nagamuthu Mariamman Devasthanam, after executing lease agreement dated 17-9-1959. In 1959, rent for suit property was fixed as Rs. 3/-. Subsequently, the rent was enhanced to Rs. 9/-and at present plaintiff is paying rent at the rate of Rs. 20/- per month. As per lease agreement, plaintiff is enjoying suit property to an extent of 30 feet north-south and 90 feet east-west. In the front portion, plaintiff had put up superstructure and the back portion was kept vacant and the same was used by plaintiff s family for ancillary purposes.
5. Defendant, who is residing adjacent to plaintiff s house, is disturbing possession of plaintiff by storing and dumping waste materials in suit property and is creating nuisance. During rainy season, entire vicinity becomes unhygienic and atmosphere also get foul smell. Even though plaintiff requested defendant not to create such nuisance, it is of no avail and hence plaintiff issued lawyer’s notice, which was not even replied. Second notice was also issued in 1994 for which also there was no positive result. It is for the above reasons plaintiff came to the Court wilh above suit.
6. In the written statement filed by appellant it is contended that himself and his forefathers have been living adjacent to suit property belonging to Sri Muthuvinayagar Nagamuthu Mariamman Devasthaam for the past more than
80 years by constructing a brick built house. It is his case that plaintiff is not in possession of entire area of 30 x 90 feet and he has been using the area of 20 x 30 feet from time immemorial. He also denied having stored cow dung and night soil. According to defendant, plaintiff is not entitled to any relief.
7. Trial Court, after raising issues, took oral and documentary evidence. Exs. A1 to A16 were marked on behalf of plaintiff and P.Ws. 1 to 3 were examined. Defendant did not produce any documentary evidence but examined himself as DW 1. Another witness DW 2 was also examined.
8. Trial Court, after discussing entire evidence, oral and documentary, came to the conclusion that plaintiff is in possession of entire property and defendant is creating nuisance. It also came to the conclusion that entire suit property i.e., 30 x 90 feet is in physical possession of plaintiff. Trial Court relied on the Judgments in O.S. 333 of 1988 and O.S. 334 of 1974 as piece of evidence to come to the conclusion that plaintiff is in physical possession. They are Exs. A9 and A15 respectively. Apart from “other evidence, taking into consideration the nature and physical features of property and also relying on Ex. A2, trial Court held that the case of plaintiff is true. Consequently, a decree was passed in favour of plaintiff as prayed for.
9. Defendant preferred A. S. 148 of 1996 on the file of Principal Subordinate Judge, Pondicherry. First appellate Court also reappreciated entire evidence and came to the conclusion that no ground is made out to interfere in the finding and conclusion of trial Court. It dismissed the appeal.
10. Concurrent Judgment of both the Courts below is challenged in this second appeal. In the memorandum of appeal, following substantial questions of law have been raised :
(1) Whether the decision rendered by the Lower appellate Court be considered a Judgment satisfying Order 41, Rule 31, Civil Procedure Code especially when proper points for determination had not been framed and or findings rendered thereon as required under Law?
(2) Whether the suit could be decreed on the basis that the defendant had not established his defence?
(3) Whether the burden of proof had been rightly cast, in the instant case, on the defendant?
(4) Whether any reliance could be placed on decisions of the Civil Court to which the appellant/defendant was not a party and whether the same would be binding?
(5) Whether a suit could be decreed even though it is established by the Revenue Records referred to by the Advocate Commissioner that the entire suit property does not belong to the lessor or plaintiff?
(6) Whether any act done or proceedings taken by a person or authority having no right, clothe the person claiming under the said act/ proceeding with any right?
11. When the matter came for admission, I ordered notice of motion and interim stay was also granted for a period. Subsequently, respondent entered appearance and entire matter was heard.
12. Even though six questions of law have been raised, learned counsel for appellant only argued question Nos. 4 and 5. Hence, I need consider only those points which were urged by learned counsel for appellant.
13. I will first consider question No. 5. This question deals with finding of possession in Courts below in favour of plaintiff.
Substantial Question pf Law No.
14. Question as to who is in possession and what is the area in the possession of plaintiff are all questions of fact and I do not find any question of law much less substantial question of law on those points.
15. Since learned counsel for appellant submitted that Courts below have not considered evidenciary value of Commissioner’s report from which it could be found that plaintiff cannot be in possession of entire suit property and therefore the direction for mandatory injunction or prohibitory injunction could not be granted. Argument is if possession is found in favour of defendant, plaintiff can only sue for possession and not for injunction.
16. Counsel for appellant relied on Commissioner’s report dated 28-10-1994. In the last portion of the report it is said thus,
“The petitioner has stated that the said cow belongs to the respondent and the same was
accepted by the respondent’s son. It is found that waste materials, including Cow dung have been stored in the middle end of the suit property. Photographs No. 3 and 4 depict the storage of waste materials and Cow dung. There is a pipe line in the end of the north-western corner of the suit property, but it remains unused. Photograph No. 1 depicts it.”
17. The other report is dated 28-11 -1995. In that report, it is stated thus,
“Both the plaintiff and the defendant identified the suit property. The property was measured with the assistance of the Surveyor, and the sketch given by the Surveyor is enclosed along with the report. On spot measurement of the suit property, the extent of the suit property is 2700 sq. feet or 0.02.5 Hec. which has been marked as ABCD in the sketch. The property claimed to be in the possession of the defendant has been measured and the total extent is 740 sq ft. which has been marked in the sketch in dotted red lines in the portion claimed to be in possession of the defendant waste materials (garbage) have been accumulated and on enquiry the defendant has stated that hgjias been accumulating it for the past 50 years……”
On the basis of these stray sentences in the report, appellant claims that he is in possession of the property. Courts below have not taken into considerations these observations in the report. If the report is accepted, his possession also must be found in his favour.
18. I do not think that the submission of learned counsel could be accepted. In the 20th edition of B. B. Mitra’s The Limitation Act 1998, commenting on Article 64, learned Author has considered what is possession, which reads thus,
“Possession is the visible possibility of exercising physical control over a thing with the intention of doing so, either against all world or against all the world except certain persons. There are, therefore, three requisites, of possession. First, there must be actual or potential physical control. Secondly, the physical control is not possession unless accompanied by intention, hence if a thing is put into the hand of a sleeping person he has no possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs for if the thing shows
no signs of being under the control of anyone, it is not possessed.”
.. .. .. .. .. .. .. .. .. ..
“Actual user without animus possidendi is not possession under the law. So. mere tethering or grazing cattle or storing logs or manure by one person on me land of another is not possession of such land. Isolated acts of user such as drying Fish or exposing fishing nets on the seashore are not possession. But animus possidendi must be accompanied by possession. So mere intention to possess without accompanied by physical possession is no possession. .. ..”
19. Appellant claims that he is in possession for the last 80 years. But he has not produced scrap of evidence to substantiate his claim by any documentary evidence. As against the said case, the lease deed in favour of plaintiff shows that property identified by Commissioner was the leased property. In fact, in a portion of scheduled property, plaintiff has put up construction. Lower Court also found that possession is with plaintiff on the basis of Judgment Exs. A9, A10 and also A13. It also believed the evidence of plaintiff and came to the conclusion that he is in possession.
20. From the Commissioner’s report on which reliance is placed by appellant, it has been mentioned that cow has been tied in some portion and in some portion cow dung also seen. These acts are not act of possession, and the same cannot be said that defendant is having control over the property which is necessary to claim possession. Question No. 5 is therefore found against appellant.
21. Question No. 4 : Learned counsel for appellant further contended that various judgments have been relied on by lower Court are not admissible since he is not party to it. It is argued that if he is not party to the suit, judgments are not admissible. It has no evidentiary value. Before meeting this argument, I will have to consider what are the judgments that are relied on by plaintiff to prove his possession.
22. One of the judgments is in O.S. 334 of 1974 on the file of District Munsif Court, Pondicherry. Ex. A15 is that judgment. That suit was fifed by the temple against plaintiff for. recovery of possession. Suit was dismissed with costs. Schedule of property shows that an area of 30 feet north-south and 90 feet east west was the
subject-matter of the suit sought to be recovered from plaintiff in that case. Temple was the lessor and plaintiff was the lessee. Temple wanted schedule property for putting up construction of its own. It is found that plaintiff/temple has not established its case and therefore found that plaintiff herein is not liable to be dispossessed.
23. Other judgment relied on by lower Court is in O.S. 333 of 1988. Exs. A9 and A10 are copies of decree and judgment in that case. That suit was filed by plaintiff herein against the Temple and its officers. That suit was filed by plaintiff against temple for injunction restraining temple and its officers from interfering with the possession of plaintiff. Property scheduled in that suit is also identical with the suit property. The suit was decreed as prayed for without cost.
24. It is true that in both these suits defendant was not a party. Merely because defendant was not party, can he contend that he is not bound by the judgment?
25. In this case, defendant contends that he is in possession of portion of scheduled property from the same temple. It was the temple who was party in the earlier two litigations, Defendant is claiming under them. A decision was rendered holding the plaintiff is in possession and temple is not entitled to recover the property and temple is not entitled to interfere with the possession of plaintiff. It cannot be said that these judgments are irrelevant.
26. In (Srinivas v.Narayan), their Lordships held that the judgments are admissible under Section 13 of the Evidence Act as assertions and are recognised. It was held that such judgments are admissible as instances in which there was a claim and assertion that certain properties belong to joint family in a subsequent suit for partition for which very same properties are claimed as self-acquired properties.
27. In the same volume in Sital Das v. Sant Ram, , it is held thus,
“……But the judgment itself, we think, can be
received in evidence under Section 13 of the Evidence Act as a transaction in which Kishore Das, from whom Ishar Das purports to derive his title, asserted his right as a spiritual collateral of Mangal Das and on that footing got a decree…..”
28. Both the above decisions are considered and followed in a recent decision of Honourable
Supreme Court (Tirumala Tirupati Devasthanams v. K. M. Krishnaiah), where similar question came for consideration. In paragraphs 9 and 10 of the judgment their Lordships held thus,
“9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango, , speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ay yar, J. held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Ss. 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B. K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram, held that a previous judgment not inter parties, was admissible in evidence under Section 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini (1902) ILR 29 Cal 190 (198) (PC) that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh (1895) ILR 22 Cal 533 (PC) by Sir John Woodroffe in his commentary on the Evidence Act (1931) p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ramsunder, AIR 1934 PC 157 : 61 IA 286.
10. For the aforesaid reasons, we reject the contention of the learned counsel for the respondent/plaintiff and hold that the TTD could rely on the judgment in OS 51/37 as evidence to prove its title in regard to the suit property, even though the present plaintiff was not a party to that suit. Point No. 1 is held accordingly against the respondent.”
In view of this pronouncement of Honourable Supreme Court, it cannot be said that the judgments are irrelevant and inadmissible. It could be admitted under Section 13 of Evidence Act. That apart,
defendant also claiming under the same temple against whom the decision was arrived. Hence, they are admissible and relevant piece of evidence.
29. Both the contentions of appellant are found against him.
30. In the result, the second appeal is dismissed with costs.