Allowed

Arjunan v. D.Kethu Munusamy @ Munuswamy

Madras HC4 Feb 2011SA/1573/2008

Case brief

AI extract

What is this about?

The High Court held that mandatory injunction is not appropriate against a trespasser. It set aside lower court judgments granting such remedy against a defendant found to have encroached without title, noting the plaintiff must follow proper legal procedures for eviction.

What did the court decide?

Mandatory injunction granted against the appellant was set aside as untenable; appeals dismissed. Plaintiff given liberty to take appropriate legal steps.

Arjunan Vs D.Kethu Munusamy @ Munuswamy — Partition | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED:04.02.2011

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Coram:

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THE HONOURABLE MR.JUSTICE G.RAJASURIA

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S.A.No.1573 of 2008 and

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M.P.Nos.1 of 2008, 1 of 2009 and 1 of 2010

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Arjunan .. Appellant/Defendant

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vs. 1. D.Kethu Munuswamy @ Munuswamy 2. Tamil Nadu Slum Clearance Board, rep. By its Chairman, Kamaraj Salai, Chennai 600 005. (As the 2^nd Respondent Dakshnamurthy in A.S.No.133/07 died he had not shown in the CT as party) .. Respondents/Plaintiff/3^rd Defendant

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This second appeal is filed against the judgment and decree in dated 19.06.2007 passed in A.S.No.133 of 2007 on the file of VI Additional Judge, City Civil Court, Chennai confirming the judgment and decree passed in O.S.No.5176 of 2000 dated 17.08.2006 by the learned II Asst. Judge, City Civil Court, Chennai.

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For Appellant : Mr.M.Chandrasekaran For Respondents : Mr.A.Arokiadoss (for R1)

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Mr.Y.Bhuvaneshkumar (for R2)

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J U D G M E N T

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This second appeal is focussed by the original first defendant animadverting upon the judgement and decree dated 19.06.2007 passed in A.S.No.133 of 2007 by the learned VI Additional Judge, City Civil Court, Chennai confirming the judgment and decree of the learned II Asst. Judge, City Civil Court, Chennai in O.S.No.5176 of 2000. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

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The factual matrix lie within a narrow campus which could pithily and precisely be set out thus:

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(a) The plaintiff filed the suit seeking the following reliefs:

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(i) To grant permanent injunction restraining the 1^st and 2^nd defendants, their men, agents, servants or anybody authorised by them from disturbing the peaceful possession and enjoyment of the plaintiff's suit schedule property at No.10/12, 1^st street, V.O.C. Nagar, Pulianthope, Chennai 12;

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(ii) To grant permanent injunction restraining the 3^rd defendant, the Tamil Nadu Slum Clearance Board not to issue any sale deed or any other document in favour of the 1^st defendant when the allotment order is in favour of the plaintiff at No.10/12, 1^st Street, VOC Nagar, Pulianthope, Chennai 12;

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(iii) To grant mandatory injunction directing the 1^st defendant to remove the unauthorised hut constructed by the 1^st defendant in front of the suit schedule property by way of encroachment at No.10/12, 1^st street, VOC Nagar, Pulianthope, Chennai - 1 morefully described in the schedule." (extracted as such)

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(b) The defendants filed the written statement resisting the suit.

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(d) On the side of the plaintiff, P.W.1 to P.W.4 were examined and Exs.A1 to A7 were marked. The first defendant/Arjunan examined himself as D.W.1 Exs.B1 to B6 were marked.

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(e) Ultimately the trial Court decreed the suit, as against which the first defendant preferred appeal for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court.

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Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds inter alia to the effect that the Courts below were not justified in issuing mandatory injunction after giving a finding that the defendant is a trespasser.

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The following substantial questions of law are found suggested in the memorandum of appeal:

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"(1) Whether the 1^st respondent is entitled for the relief of Mandatory injunction when he has not title over the suit property?

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(2) Whether the suit for Mandatory injunction is valid in law when the 1^st Respondent is claiming possession of the suit property?

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(3) Whether the suit filed by the Plaintiff is valid in law without issuing notice u/s 106 Transfer of Property Act?

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(4) Whether the Plaintiff is entitled to the relief of permanent injunction when he is not in possession of the property?" (extracted as such)

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After hearing both sides, I only find that the following substantial questions of law could be framed:

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(1) Whether the Courts below were justified in holding that the defendant is a trespasser and even then issue mandatory injunction?

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(2) Whether there is any perversity or illegality in the findings of both the Courts below?

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These substantial questions of law are taken together for discussion as they are interlinked and interwoven with each other.

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The learned counsel for the appellant/defendant would put forth his arguments thus:

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(a) The trial Court after disbelieving the evidence of the defendant and also giving a finding that the defendant encroached into the suit property was not justified in granting mandatory injunction. As against a trespasser, the remedy of mandatory injunction would not lie.

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In an attempt to torpedo and pulverise the arguments as put forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would submit that earlier the appellant/D1 herein preferred the suit O.S.No.2978 of 2000 as against the plaintiff's father/D2 in the suit herein and the said suit was dismissed, as against which no appeal was filed. As such, finality was achieved in the previous proceedings. In such a case, the first defendant who is having no right over the suit property cannot prefer this Second Appeal and he had no legal basis to resist the suit filed by the plaintiff.

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At the first instance itself, I would like to refer to the decision of the Hon'ble Apex Court reported in 2005 (5) CTC 678 [ Joseph Severance and others vs. Benny Mathew and others). An excerpt from it would run thus:

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"7. There was no specific plea taken by the defendants that the suit should be one for recovery of possession and the suit for injunction is not maintainable. In fact, before the trial court and the first appellate court the stress was on something else ie. The effect of Section 60(b) of the Indian Easements Act, 1882( in short the 'Easements Act') and the alleged non-maintainability of the suit on the ground of non joinder of necessary parties. Before the high court the plea was taken for the first time that the suit was not maintainable being one for mandatory injunction and for prohibitory injunction and not one for recovery. Strictly speaking the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position of law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence. Licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee's occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises the suit will be maintainable."

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A bare perusal of the said judgment would highlight and indicate that the relief of mandatory injunction would lie only in a case where the licence granted in favour of a licensee to occupy a place was cancelled and within a short time after such cancellation, such suit is filed as against the erstwhile licensee. But in this case, it is the contention of the plaintiff that D1 outrageously and illegally barged into the suit property and put up a structure as described in the plaint as well as in the schedule of property. As such D1 was not a licensee under the plaintiff. In such a case, the only remedy open to the plaintiff is to seek for possession and not for mandatory injunction. This fundamental law point has not been considered by the trial Court as well as by the appellate Court. In paragraph No.9 at the last portion of the judgment of the trial Court, it is found

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recorded that during the year 2000, D1 trespassed into the suit property and put up a hut and it is extracted here under:

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@jhth ml;ltiz brhj;jpy; xU gFjpapy; 1k; gpujpthjp 2000k; Mz;oy; Mf;fpukpg;g[ bra;J Foir nghl;oUf;fpwhh; vd;gJ bjspthfpwJ/@

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As such that finding of fact was not in any way set aside by the first appellate Court. However, the appellate Court would without any basis hold as though as on the date of filing of the suit the plaintiff was in possession. The facts found discussed in the trial Court would also reveal that electricity connection was obtained by the first defendant and it was subsequently disconnected in the suit property. The over all consideration of the materials on record would exemplify that in the property described in the schedule of the plaint, the plaintiff lost his possession and in such a case he cannot try to bypass the legal procedures and file a bare suit for mandatory injunction. As per the dictum of the Hon'ble Apex Court, in the facts and circumstances of this case, the plaintiff was not justified in seeking bare mandatory injunction.

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The appellant/D1 contended that the plaintiff's father sold the suit property in favour of the defendant, but that was not accepted by the trial Court correctly. When Slum Clearance Board itself filed the written statement clearly that so far allotment of the suit property was not given in favour of any one, the question of the plaintiff's father executing the unregistered sale deed in favour of the defendant does not arise and it has been correctly disregarded by the Courts below. As such even for a moment I do not venture to hold that the appellant/D1 is having any substantive right over the suit property.

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Now the short point which as a substantial question of law arises is as to whether the Courts below after giving a finding that the defendant was a trespasser was justified in issuing mandatory injunction. The answer, in view of the decision of the Hon'ble Apex Court, is at once clear that such a remedy cannot be given.

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The learned counsel for the plaintiff would submit that since the plaintiff himself has not acquired title deed from the Slum Clearance Board, he might not be justified in filing a suit for recovery of possession. I do not like to further elaborate as to what further steps as per law the plaintiff should do. However, in the way known to law the plaintiff is at liberty to take appropriate further actions.

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The learned counsel for the defendant would submit that without resorting to Section 29 of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (Act XI of 1971), the defendant cannot be evicted etc. To the risk of repetition and pleonasm but

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without being tautologus, I would make it clear that in this case I do not want to decide as to what would be the right or eligibility of the plaintiff or the defendant in the subsequent proceedings which might arise. As such the substantial questions of law are decided to the effect that the mandatory injunction granted as against the defendant was untenable and accordingly, the substantial questions of law are answered in favour of the defendant. On that basis alone the judgments of both the Courts below are set aside giving liberty to the plaintiff to take appropriate steps as per law if he desires so. Accordingly, this Second Appeal is disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.

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Sd/-
Asst. Registrar
//true copy//
Sub Asst.Registrar
Gms
To
1. The VI Additional Judge, City Civil Court, Chennai
2. II Asst. Judge, City Civil Court, Chennai.
3. The Section Officer,
V.R.Section, High Court, Chennai.
2 cc to Mr.M.Chandrasekaran, Advocate, Sr.No.8601
1 cc to Mr.Y.Bhuvanesh Kumar, Advocate, Sr.No.8432
1 cc to Mr.A.Arokiadoss, Advocate, Sr.No.8710
S.A.No.1573 of 2008
PUR {CO}
TP/8.4.2011.

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Arjunan v. D.Kethu Munusamy @ Munuswamy

Case brief

What is this about?

What did the court decide?

Arjunan v. D.Kethu Munusamy @ Munuswamy

Case brief

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