IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.1.2010
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
S.A.No.567 of 2003
1. A.Mohamed Farook
2. A.Mohamed Nazir
3. Syed Gani .. Appellants
Vs.
1. Mohamed Ismail
2. Ummal Bagiria .. Respondents
Second Appeal against the judgment and decree dated 31.12.2002 in A.S.No.72 of 2002 on the file of the Additional Sub-Court, Mayiladuthurai, against the judgment and decree dated 21.6.2002 in O.S.No.97 of 1996 on the file of the District Munsif Court, Sirkali.
For appellants 1 and 3 : Mr.S.Sounthar
For respondents : Mr.A.Muthukumar
JUDGMENT
The Second Appeal is filed by the defendants against the judgment and decree dated 31.12.2002 in A.S.No.72 of 2002 on the file of the Additional Sub-Court, Mayiladuthurai, confirming the judgment and decree dated 21.6.2002 in O.S.No.97 of 1996 on the file of the District Munsif Court, Sirkali.
2. The averments in the plaint are as follows:
The suit properties mentioned as ‘A’ and ‘B’ schedule properties in Ayappadi Village in Thirukkalacheri Vattam, Tharangambadi Taluk. ‘B’ schedule property forms part of ‘A’ schedule property. The plaint plan is attached. The patta of the suit properties was granted by the Government under Order in Na.Ka.2956/71 in favour of the first plaintiff. He is in possession and enjoyment of the suit properties by constructing house and residing there. House stands in the name of the second plaintiff who is none other than the daughter of the first plaintiff. House in the suit property fell down due to heavy rain about a year back. So, they kept the property vacant by residing in a rented house. The defendants are brothers. Their father Abdul Gaffur was granted patta in respect of north of the suit property comprised in R.S.No.228 Plot No.3 and they are in possession and enjoyment of the same after the death of their father. They began to construct a building in the plot on the east of the suit property. While constructing, they had trespassed over ‘B’ schedule property and extended construction by putting up a foundation and a thatched hut over the same, about six months back. The plaintiffs protested the same and at the request of the defendants, the plaintiffs caused measurement of the suit property done by the Taluk Surveyor. It was found that the defendants have trespassed over ‘B’ schedule property. The defendants offered to remove the portion of the foundation and the thatched hut over ‘B’ schedule property, but had been evading. They attempted to continue the construction over ‘B’ schedule property. Hence, the plaintiffs are constrained to file the suit for recovery of ‘B’ schedule property, after the removal of the portion of the foundation and the thatched hut put up by the defendants. They prayed for a decree.
3. The gist and essence of the written statement filed by the first defendant and adopted by defendants 2 and 3 are as follows:
‘A’ and ‘B’ schedule properties and north of the defendant’s property were originally owned by a Temple. Both the plaintiffs and defendants are in possession and enjoying the same. Then, patta has been given recognising their possession and enjoyment. At the time of grant of patta, linear measurement has not been given. Since linear measurement has not been given in the assignment order, they are in possession as if their forefathers were in possession of the properties. The defendants are enjoying lesser extent of the properties. They have come forward with a false claim that the defendants herein have trespassed encroached upon the property. The defendants put up their foundation only in the property which was enjoyed by their father. There is no necessity for the defendants to encroach upon two links. The thatched hut was there for a long time. The plaint plan is not correct. There is no cause of action for the suit. Hence, they prayed for dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and in the written statement, has framed four issues and considering the oral evidence of P.Ws.1 to 4, D.Ws.1 to 3, Exs.A-1 to A-5, Ex.B-1, Exs.X- to X-5 and Exs.C-1 to C-8, decreed the suit as prayed for in the plaint and two months’ time was granted to remove the encroachment. Against that, the defendants preferred appeal. The first appellate Court, after considering the arguments of both the counsel, has framed two points for determination, concurred with the findings of the trial Court and dismissed the appeal. Against that, the present Second Appeal has been preferred by the defendants.
5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:
“(i) Whether the courts below have not erred in decreeing the suit for recovery of possession after removing the superstructure when the plaintiff claims title based on the patta, but did not establish the actual extent covered under the patta.
(ii) Whether the courts below have not erred in law in failing to consider that the plaintiffs are not the lessees of the suit property and one Abdul Wahid is the lessee and paying Pahudi, to the temple and there is no pleading that Abdul Wahid is Paghutidar of the temple and under him, the plaintiffs are enjoying as sub-lessees.
3. Whether the courts below have not erred in law in failing to consider that the sketch have no correlation to enjoyment on the ground when the pattas were issued based on the enjoyment.”
Substantial questions of law:
6. The respondents as plaintiffs filed the suit for recovery of possession of ‘B’ schedule property, after removing the foundation and thatched hut, stating that the Government has granted assignment in respect of 3 cents and they are in possession and at the time of the construction, the appellants-defendants encroached upon ‘B’ schedule property. Hence, they have come forward with the suit.
7. The appellants as defendants resisted the suit stating that before the Government gave an assignment to the properties, the properties originally belonged to the Temple and they are in possession of the property. Their possession and enjoyment have been recognised by the Government and patta has also been issued. No linear measurement has been given. They are enjoying the property as their forefathers were in possession and enjoyment over the same. There is no question of encroachment. Hence, they prayed for dismissal of the suit.
8. The trial Court, after framing necessary issues and considering the oral and documentary evidence, accepted the contention of the plaintiffs and decreed the suit. Against that, the defendants preferred appeal and the learned first appellate Judge concurred with the findings of the trial Court and confirmed the judgment and decree of the trial Court. Against that, the present Second Appeal has been preferred by the defendants.
9. Learned counsel for the appellants-defendants would contend that ‘kudiyiruppu’ patta has been issued as per Ex.B-1. The appellants-defendants are on the eastern side of the property belonging to the plaintiffs. Patta has been given on the basis of possession and enjoyment and in that, 3 cents have been mentioned and no boundary has been mentioned. Since there is a cloud over the plaintiffs’ property, they ought to have filed the suit for declaration of title and so, suit for mere recovery of possession is not maintainable. Exs.X-1 to X-5 were marked to show that the properties have been purchased from previous owner before assignment of patta. Since the suit for mere recovery of possession is not maintainable, they prayed for allowing the Second Appeal.
10. Learned counsel for the respondents-plaintiffs would contend that there is no need to file the suit for declaration of title, since the Government has recognised their possession and issued ‘kudiyiruppu’ patta-assignment order to both the respondents-plaintiffs and the appellants-defendants and so, the identity of the properties is not disputed. Since they are concurrent findings of both the Courts below, under Section 100 C.P.C., there is no need to re-appreciate the evidence, because, the first appellate Court is the last fact finding Court and the trial Court and the first appellate Court considered all the aspects in proper perspective and came to the correct conclusion. The Commissioner was also appointed. He also filed report. So, he prayed for dismissal of the Second Appeal.
11. The admitted facts of both sides are that originally, the suit properties belong to a Temple and both the parties’ forefathers were in possession and enjoyment of the same. The Government has recognised their possession. Patta has also been issued. The assignment order of the plaintiffs has been marked as Ex.A-5. The assignment order of the defendants has been marked as Ex.B-1. In both these documents, 3 cents have been mentioned. No boundary has been mentioned. Admittedly, the respondents-plaintiffs are having house tax receipts, marked as Exs.A-2 to A-4. Ex.A-1 is the field measurement plan for S.No.228. The appellants-defendants filed only assignment order. P.W.4 Ganeshmoorthy, the Accountant of the Temple and Exs.x-1 to X-5 have been marked to show as to who are in possession of the properties before assignment has been given to the occupants under ‘kudiyiruppu’ patta. In such circumstances, Ex.X-1 is DCP register maintained by the Temple. In that, it was stated that Abdul Wahid was in possession of east-west 15′, south-north 86′, total, 1290 Sq.Ft. and in that, house is there. As per Ex.X-2, Haja, S/o Abdul Kareem is in possession of south-north 86′ and east-west 12′, consisting of 2-1/2 cents. As per Ex.X-3, Abdul Khader, S/o Mohammed Ibrahim is in possession of east west 13′, south north 86′, consisting of 2-1/2 cents. As per Ex.X-4, Jailabudin is in possession of south north 86′ and east west 27′, consisting of 5-1/2 cents. Even though Exs.B-1 and A-5 do not contain the linear measurement, in that, 3 cents have been stated in those documents and no boundary has been given.
12. It is pertinent to note that the Advocate Commissioner has been appointed and he filed reports and plan, which have been marked as Exs.C-6 to C-8. The Advocate Commissioner’s plan has been clearly proved that the appellants-defendants have encroached upon the property, i.e. ‘B’ schedule property. In his report in Ex.C-6, the Advocate Commissioner has stated that even though the plaint plan and the assignment orders Exs.A-5 and B-1 state three cents each, but it is only below that. In Exs.C-7 and C-8, the Commissioner has mentioned the measurements and in the plan, he has mentioned the encroachment.
13. In the abovesaid circumstances, considering Ex.C-6 report in paragraphs 3 and 4, it is clearly proved that the appellants-defendants have encroached upon the ‘B’ schedule property. The trial Court and the first appellate Court have considered these aspects and came to the correct conclusion.
14. Learned counsel for the appellants-defendants would rely upon a decision of the Supreme Court reported in 2009 (2) L.W. 546 (Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs. & Ors.) and submitted that when a cloud is raised over the plaintiffs’ title and they do not have a possession, the suit for declaration and possession with or without consequential injunction, is the remedy. He relied on paragraph 17 of the said judgment and urged that the suit itself is not maintainable. The said paragraph 17 reads as follows:
“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 plaintiff’s title and he does not have possession, a suit for declaration and possession, with or 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 noticed 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 straight-forward, 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 to the 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. While considering the above decision to the facts of the present case, as already discussed, ‘kudiyiruppu’ patta has been issued in pursuance of Exs.A-5 and B-1 and each was given three cents in the same survey number and both are adjacent land owners, i.e. Plot No.2 has been allotted to the respondents-plaintiffs and Plot No.3 has been allotted to the appellants-defendants. In the Advocate Commissioner’s plan, it is clearly proved that yellow marked portion and red marked portions are encroachments made by the appellants-defendants. So, the respondents-plaintiffs are entitled to recovery of possession.
16. In the abovesaid circumstances, there is no cloud on the title of the respondents-plaintiffs. In such circumstances, the suit is maintainable, since both are claiming under the assignment orders issued by the Government under Exs.A-5 and B-1.
17. The trial Court and the first appellate Court have considered these aspects in proper perspective and came to the conclusion that the appellants-defendants have encroached upon the respondents-plaintiffs’ property, i.e. ‘B’ schedule property and made a foundation and also thatched hut. The first appellate Court in paragraph 13 of its judgment and the trial Court in paragraph 14 of its judgment, have considered all these aspects and came to the correct conclusion. Hence, I am of the view that there is no infirmity or illegality in the judgment and decree passed by both the Courts below. So, I am not inclined to interfere with the findings of both the Courts below. The judgment and decree of both the Courts below are liable to be confirmed. The substantial questions of law are answered accordingly.
18. In fine, the Second Appeal is dismissed. The judgment and decree of both the Courts below are hereby confirmed. Two months’ time is granted to the appellants-defendants for removal of the encroachment. No costs.
07.1.2010
Index: Yes
Internet: Yes
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To
1. The Additional Subordinate Judge, Mayiladuthurai.
2. The District Munsif, Sirkali.
3. The Section Officer, V.R.Section, High Court, Madras.
R.MALA,J
cs
Judgment in
S.A.No.567 of 2003
07.1.2010