IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28..04..2009
CORAM
THE HONOURABLE MR. JUSTICE S. PALANIVELU
C.R.P. (P.D.) No.517 of 2009
and M.P.No.1 of 2009
S.R. Ramasamy ... Petitioner
Vs
S.R. Rangasamy ... Respondent
Civil Revision Petition filed under Article 227 of Constitution of India to set aside the fair and decretal Order passed in C.M.A.No.8 of 2008 on the file of the III Additional Subordinate Judge and Appellate Authority, Coimbatore dated 27.01.2009 confirming the order passed in I.A.No.1104 of 2008 in O.S.No.1032 of 2007 on the file of I Additional District Munsif, Coimbatore.
For Petitioner : Mr. K. Kalyana Sundaram
For Respondent : Mr. S. Kumaresan
O R D E R
The petitioner is plaintiff in O.S.No.1032 of 2007 on the file of the I Additional District Munsif, Coimbatore. The suit is for permanent injunction. He also filed an application under Order 39 Rule 1 and 2 C.P.C praying the Court to pass an order of temporary injunction against the respondent who is nothing other than his brother. In the affidavit he has stated that he is in possession of the suit property, cultivating the same, that his parents relinquished all their rights in the share allotted to his father in his favour and he has been exclusively taking care of them during their life time, that his father Range Gowder died on 26.2.1998 and his mother Rangammal died on 22.11.2002 and he has been in exclusive possession and enjoyment of the share allotted to Range Gowder as absolute owner thereof.
2. The respondent filed the Counter, controverting the allegations in the affidavit by stating that the petitioner is cultivating the suit land that he is not at all cultivating the land after the payment of Rs.50,000/-; that after the death of the parents, the petitioner had trespassed into the land and he is an unlawful and illegal possession of the land and that the claim of relinquishment is also false.
3. Learned I Additional District Munsif, Coimbatore dismissed the application by observing that the plaintiff has not shown his prima facie possession. The petitioner carried the matter in appeal in C.M.A.No.8 of 2008 on the file of III Additional Subordinate Judge, Coimbatore. The appellate Court also took the same view and dismissed the appeal and hence the revision petitioner is before this Court.
4. Mr. K. Kalyana Sundaram, learned counsel for the petitioner would submit that the cultivation done by this petitioner could be seen from the features available in the Commissioner’s Report and inasmuch as the respondent himself has admitted in his counter and his written statement that this petitioner had trespassed into the suit land and in unlawful possession and that whatever may be the nature of possession, the fact remains that the petitioner is in possession and hence he has to be evicted by due procedure of law.
5. Conversely, Mr.S. Kumaresan, learned counsel for the respondent would contend that the petitioner has miserably failed to establish his prima facie possession in the suit property and there is no scope for grant of any temporary injunction in his favour and even though it was mentioned in the counter and written statement that he is in unlawful possession, he could not be granted the discretionary relief of temporary injunction.
6. Only one point is available to the petitioner in this proceedings is the admission on the part of the respondent who caused to the effect that the petitioner trespassed into the suit land after the demise of their parents and he is in unlawful possession. The law has been settled in this regard.
7. It is held by the Supreme Court in AIR 1968 SC 620 [Lallu Yeshwant Singh v. Rao Jagdish Singh] and (1989) 4 SCC 131 [Krishna Ram Mahale v. Shobha Venkat Rao], that where a person is in settled possession of property even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by taking recourse to law. The above said principle is based on the theory of acquiescence, which is a wrongful conduct of another by which one’s rights are invaded may often operate, upon principles of and in analogy to estoppel, to preclude the injured party from obtaining many distinctively equitable remedies to which otherwise he is entitled.
8. The learned counsel for the petitioner placed much reliance upon a Full Bench decision of the Supreme Court in 2004 (1) SCC 769 [Rame Gowd (Dead) by Lrs. v. M. Varadappa Naidu (Dead) by Lrs.] as to the settled possession which would give right to such possession that even rightful owner may only recover it by taking recourse to law. Their Lordships have categorically held that in the absence of proof of better title peaceful possession or settled possession is itself evidence of title and the law presumes the possession with the title unless rebutted. The decision proceeded further with the principles as hereunder:
“8. … … … The owner of any property may prevent even by using reasonable force a trespassed 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.”
“10. In the cases of Munshi Ram 9 AIR 1968 SC 702 : 1968 2 SCR 455 : 1968 Cri LJ 806 and Puran Singh (1975) 4 SCC 518 : 1975 SCC (Cri) 608 the Court has approved the statement of law made in Horam v. R. 12 AIR 1949 All 564: 50 Cri LJ 868 wherein a distinction was drawn between the trespassed in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter may be dispossessed by the true owner only by having recourse to the due process of law for acquiring possession over his property.”
9. It is also urged on the side of the petitioner that the court should not adjudicate the matter in controversy in suit at interlocutory stage itself as decided by the Division Bench of this Court in 2005 (1) CTC 27 [Intas Laboratories Pvt. Ltd., Ahmedabad v. Navaritis A.G. 215, rep. By its Power of Attorney, M/s. Retushka Negi and others]
10. This Court in decision in 1998 (2) CTC 387 [Varghese Danial v. Balakrishnan and another] as observed as follows:
“13. If a person enters into possession unauthorisedly, his entering in possession may be construed to be trespass but if he is allowed to continue for several years as it is in the present case, certainly, the nature of his possession cannot be said to be an trespasser. By the long continue possession, certain amount of interest enures in him. In the case where he claims possessory title or adverse possession that requires consideration and therefore taking note of nature of his entering into possession alone, he cannot be driven away or thrown out.”
11. In 1997 (3) SCC 503 [Walter Lousis Franklin v. George Singh] the Apex Court has held that when the trial Court and the first appellate Court has concurrently found that the appellant was in possession of the property, his possession cannot be disturbed by a person claiming title simply because he did not prove adverse possession.
12. It is the definite version and defence of the respondent that the petitioner has been in possession, of course, as a trespasser on the date of filing of the suit. Rightly or wrongly the petitioner has been in possession and continues to be so. In this circumstance, applying the principles laid down in the decision of the Full Bench of the Supreme Court, it has to be observed that inasmuch as the petitioner has been in settled possession of the suit property, the respondent should take steps before the process of encroachment and if it was already accomplished to which the true owner viz., the respondent has acquiesced and the petitioner being in the effective possession of the property the rightful owner, the respondent, has to take recourse to law to evict. In such view of this matter, the petitioner is entitled to the relief as prayed for. Hence the orders passed by the Courts below deserve to be set aside and they are accordingly set aside.
13. In fine, the Civil Revision Petition is allowed. No costs. Connected M.P is closed.
ggs
To
1.The III Additional Subordinate Judge
and Appellate Authority,
Coimbatore.
2.I Additional District Munsif,
Coimbatore