IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.12.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1132 of 2006 E.Sathidass .. Appellant vs. 1. C.Ponnuswamy 2. C.Arumugam .. Respondents This second appeal is filed against the judgment and decree dated 29.03.2006 of the learned II Addl. Sub Judge, Chengalpattu made in A.S.No.49 of 2005 confirming the judgment and decree dated 25.01.2004 of the District Munsif Court, Tambaram, made in O.S.No.10 of 2004 dismissing the suit filed by the appellant/plaintiff. For Appellant : Mr.S.Parthasarathy,Sr.Counsel for Mr.C.V.Kumar For Respondents : Mr.R.Subramaniam for M/s P.Gopiraja J U D G M E N T
This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 29.03.2006 passed in A.S.No.49 of 2005 by the learned II Addl. Sub Judge, Chengalpattu, in confirming the judgment and decree of the learned District Munsif, Tambaram in O.S.No.10 of 2004. For convenience sake, the parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. The long and short of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(i) The narration of the brief facts as found set out in the plaint would be to the effect that the plaintiff is claiming to be in exclusive possession and enjoyment of the suit property described in the schedule of the plaint measuring an extent of 15 cents in S.No.148/5A; and the defendants are allegedly interfering with such peaceful possession and enjoyment of the plaintiff.
(ii) The defendants filed written statement contesting the matter.
(iii) Whereupon issues were framed. During trial, on the side of the plaintiff, one Ebinezer was examined as P.W.1 and Exs.A1 to A6 were marked. The defendants examined themselves as D.W.1 and D.W.2 on their side and Exs.B1 to B9 were marked.
3. Ultimately, the trial Court dismissed the suit. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the appeal was filed for nothing but to be dismissed, confirming the judgment and decree of the trial Court.
4. Challenging and impugning the judgments of both the Courts below, the plaintiff filed the Second Appeal on various grounds inter alia thus:
Both the Courts below fell into error in not granting injunction by taking into account the possession of the suit property by the plaintiff; they dilated on various issues which are not germane for deciding the lis; the documents were not properly appreciated; they took it for granted the correctness of the defendants’ case; and the plaintiff was not given opportunity to adduce additional evidence before the appellate Court.
5. My learned Predecessor formulated the following substantial questions of law:
“1. Whether in law the reasons given by the trial Court in discarding Ex.A3, Ex.A4 and Ex.A5 and having regard to scope and ambit of Order 41 Rule 31 of the Code of Civil Procedure, read with Section 96 of the Code of Civil Procedure, the total non-consideration of those documents by the First Appellate Court is sustainable in law?”
(extracted as such)
6. After hearing both sides, in replacement of the above, I have framed the following substantial question of law:
“Whether both the Courts below failed to take into consideration the settled proposition of law that when there was cloud relating to the title to the suit property, the plaintiff was justified in filing the suit for bare injunction?”
7. Heard both sides on the newly formulated substantial question of law.
8. The gist and kernel of the arguments of the learned Senior Counsel for the plaintiff would run thus:
(a) The appellate Court failed to give due opportunity of adducing additional evidence as per Order 41 Rule 27 of CPC.
(b) Both the Courts below took it for granted as though the defendants approached the Court with real facts, but, the plaintiff failed to adduce proper evidence.
(c) The “coor chit” relied on by the defendants was not produced.
(d) The plaintiff even though established by oral and documentary evidence his possession over the suit property, yet the Courts below failed to grant injunction so as to protect his possession.
Accordingly, the learned Senior Counsel for the plaintiff would pray for setting aside the judgments and decrees of both the Courts below and for decreeing the suit.
9. By way of torpedoing and pulverising the arguments as put forth on the side of the plaintiff, the learned counsel for the defendants would advance his arguments, the pith and marrow of them would run thus:
(a) The sale deeds Exs.B1to B3 and the Release Deed Ex.B6 would amply make the point clear that the entire extent of 96 cents of land in S.No.148/5 originally belong to the family of Kullan and after his death, his two sons, namely Kanni @ Kanagaraj Gnanasigamani and Chinnakannu enjoyed it jointly and got it partitioned equally.
(b) The plaintiff virtually attempted to suppress the actual relationship between Kanni @ Kanagaraj Gnanasigamani and Chinnakannu.
(c) The plaintiff even went to the extent of portraying and projecting as though the defendants are utter strangers to Kanni @ Kanagaraj Gnanasigamani and Chinnakannu.
(d) The equitable remedy of injunction was correctly denied to the plaintiff because he did not approach the Court with clean hands.
(e) Both the Courts below dealt with the salient features of the case and held that the plaintiff was not entitled to injunction. The suit property is a vacant site and in such a case, the plaintiff was not justified in simply praying for bare injunction without proving his title.
Accordingly, the learned counsel for the defendants would pray for the dismissal of the Second Appeal.
10. I recollect and hark back the following decisions of the Hon’ble Apex Court:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL.; and
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
which would highlight and spotlight that strictly Section 100 of CPC in letter and spirit should be followed and the focus of the High Court should only be on substantial question of law and nothing else.
11. Keeping in mind the aforesaid judgments, I proceed to analyse the case at hand.
12. The learned Senior Counsel for the plaintiff would implore and entreat that the first appellate Court instead of giving due opportunity of adducing additional evidence, simply denied such opportunity and thereby deprived the plaintiff to expound and explain the doubts raised by the trial Court relating to the title and possession of the plaintiff. In a suit for injunction, according to him the Courts below were not justified in finally giving a verdict relating to the title of the suit property as though the plaintiff is having no title over the suit property.
13. Whereas, the learned counsel for the defendants by inviting the attention of this Court to paragraph Nos.14 and 22 of the appellate Court’s judgment would submit that the first appellate Court opined that the task of going deep into the title of the respective parties would be beyond the scope of the present litigation.
14. At this juncture, I would like to recollect the decision of the Hon’ble Apex Court reported in AIR 2008 SC 2033 [Anathula Sudhakar v. P.Buchi Reddy (Dead) by L.Rs. & Others], an excerpt from it would run thus:
“17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintff’s title and he does not have possession, a suit for declaration and possession, with our 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 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 notice in Annaimuthu Thevar (supra). Where the averments regarding title are absent in a plaint and where there is no 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 tot eh 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 plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
15. A mere poring over and perusal of the aforesaid judgment would amply make the point clear that a plaintiff by filing a mere injunction suit cannot call upon the Court to conduct a broad based roving enquiry in respect of the title of the parties over the suit property and the Court also would not be justified in doing so. Once the Court comes to the conclusion that there is some serious title dispute or cloud relating to the title over the suit property, then the parties should be driven to the extent of filing a comprehensive suit only.
16. The learned Senior Counsel for the plaintiff would submit that the findings by both the Courts below relating to the title in this injunction suit should not operate as res judicata in any subsequent suit which the plaintiff might be advised to file for establishing his title.
17. I am of the considered view that any incidental findings in an injunction suit as it has been done in this case, would not operate as res judicata in the subsequent suit, if any that would be filed by the plaintiff for establishing his alleged title over the suit property.
18. Indubitably and indisputably, the property is a vacant site and in such a case, as per the trite proposition of law, possession follows title. Unless the parties establish their respective title over the suit property, the presumption that possession follows title would not be attracted.
19. The learned counsel for the defendants in order to ex facie and prima facie buttress and fortify the claim of the defendants that already the plaintiff sold his half portion in the 96 cents of land, would rely on various documents and develop his argument that the suit property forms part of the share which was allotted in favour of the defendants in the partition and the plaintiff and his ancestors having sold their share cannot now have a right over the share allotted to the defendants and lay false claim over it.
20. Be that as it may, as has been already discussed supra in this case, the respective titles of the plaintiff cannot be gone into. Both the Courts below discussed in extenso the pros and cons of the matter and found that in the absence of the plaintiff establishing his title, the possession cannot be upheld in his favour. No doubt, there is also a well settled proposition of law that even a trespasser in established possession of a property could seek for injunction. But in my considered opinion this is not a case where the prayer is based on the ground that the plaintiff is merely and barely in established possession of the suit property and based on that relief of injunction was sought, on the contrary, the plaintiff approached the Court by placing reliance on his independent title and that too by estranging the defendants as strangers. Once the Court felt that the plaintiff had to establish his title as a sine quo non for getting injunction, in the Second Appeal, this Court may not be justified in interfering with the discretion exercised by both the Courts below in not granting injunction.
21. I also recollect the following maxim:
“He who seeks equity must do equity and he who comes to equity must come with clean hands.”
Here the judgments of both the Courts below would display and demonstrate, exemplify and portray that the plaintiff even went to the extent of estranging the real relationship between Kanni and Chinnakannu.
22. As such I am of the view that the substantial question of law should be answered to the effect that both the Courts below considering the aforesaid trite proposition of law decided the lis warranting no
G.RAJASURIA, J
gms
interference of this Court in the Second Appeal. Accordingly, this Second Appeal is dismissed. No costs.
23. To the risk of repetition, but without being tautologous I would
like to state that it is open for the plaintiff to file necessary comprehensive suit, if so advised, to establish his title over the suit property in the way known to law and whereupon the incidental findings in these proceedings would not operate as “Res Judicata”.
gms 21.12.2010 Index :Yes Internet :Yes To 1. The II Addl. Sub Judge, Chengalpattu. 2. The District Munsif Court, Tambaram. S.A.No.1132 of 2006