Dismissed

Karuppathal, v. Arunachalam

Madras HC20 Feb 2014SA/476/2004

Case brief

AI extract

What is this about?

In a second appeal challenging a first appellate court's decree granting permanent injunction, the High Court dismissed the appeal. The Court held that since the suit sought only an injunction against a specific appellant regarding admitted possession and did not seek a declaration of title, non-joinder of the Government was not fatal, and the relief was valid.

What did the court decide?

Second appeal dismissed; decree and judgment of first appellate court confirmed; no order as to costs.

Karuppathal, Vs Arunachalam — Property and Title | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 20.02.2014

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CORAM

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THE HONOURABLE MR.JUSTICE R.KARUPPIAH

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S.A.No.476 of 2004 and CMP.No.3782 of 2004

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Karuppathal ... Appellant/Respondent
Vs.
1.Arunachalam
2.Valliammal
3.Lakshmi
4.Kumarasamy
5.Krishnasamy
6.Subbatthal
7.Sakunthala
8.Balamani
9.Bakkiyam
10.Jayalakshmi
11.Velusamy
12.Sivakumar
13.Indumathi

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...Respondents/Appellants

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PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the decree and Judgment dated 20.12.2001 made in A.S.No.23 of 2001 on the file of Additional District Court/Fast Track Court No.IV, Coimbatore, Tiruppur reversing the decree and Judgment dated 28.03.1996 made in O.S.No.293 of 1995 on the file of the District Munsif Court, Palladam.

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For Appellant : Mr.S.Doraisamy For Respondents : Mr.S.K.Rakhunathan

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The appellant who is the defendant in the suit filed the second appeal against the decree and judgment dated 20.12.2001 made in A.S.No.23 of 2001 on the file of Additional District Court/Fast Track Court No.IV, Coimbatore, Tiruppur reversing the decree and Judgment dated 28.03.1996 made in O.S.No.293 of 1995 on the file of the District Munsif Court, Palladam.

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For the sake of convenience, the defendant in the suit is referred as appellant and plaintiffs in the suit are referred as respondents hereafter.

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The respondents/plaintiffs filed a suit for permanent injunction and the case of the respondents is that one Chinnaya Gounder given the suit property to his three sisters namely, Chellathal, Deivanai Ammal and Arukkani Ammal as Sreethana under the settlement deed dated 13.03.1933 and subsequently, all the three sisters died. The respondents 1 to 4 are the legal heirs of the deceased, Arukkani Ammal. The legal heirs of Chellathal parted with their interest and owned by Arukkani Ammal. The only daughter of deceased Deivanai Ammal lives in Tirumalayapalayam after her death. Therefore, the respondents are in possession and enjoyment of the suit property. The first respondent died on 08.03.1933. The respondents 5 to 10 are the legal heirs of the first respondent. According to the respondents, they have enclosed the backyard with a fence and constructed the two tiled cattle shed and one thatched shed in the backyard and the remaining vacant area is also used for tying cattle and dumping waste. The 2½ ankanam house has been let out to the tenant. The respondents have constructed a separate new houses and are living therein and using the backyard covered by Sreethana property. It is also averred in the plaint that the appellant is one of the two daughters of late Valliathal who purchased her house under the sale deed dated 03.08.1964. The appellant has no manner of right in the backyard of the respondents. But the appellant trying to encroach upon the respondents backyard on 04.01.1992 and 05.01.1992 and attempted to damage the fencing and trespassed into the respondents backyard. Therefore, the respondents filed the suit for permanent injunction against the appellant.

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The appellant/defendant filed a written statement in which it is stated that the suit property lies on the north of the appellant's house and south and east of Thar Road and the suit property was in possession of the appellant for several years. The respondents are entitled to the property only as per the decree for partition made in O.S.No.35 of 1943. But the respondents encroached more extent situated on the north of the appellant's property and put up fence. Since the respondents encroached the property, they are not entitled to permanent injunction. The respondents are entitled to the property only as per the decree made in O.S.No.35 of 1943. The rough sketch filed by the respondents and also the commissioner's report and plan are not correct. Since the respondents attempted to get patta, the appellant filed objection and the above proceeding also pending. Therefore, the respondents are not entitled to any relief in respect of the suit property. The appellant has further stated in the written statement that without seeking the relief of declaration, the respondents are not entitled to the relief of

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permanent injunction.

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The Trial Court has framed four issues and on the side of the respondents/plaintiffs, examined two witnesses as PW1 and PW2 and marked seven documents as Ex.A1 to Ex.A7. On the side of the appellant/defendant, examined two witnessess as DW1 and DW2 and marked five documents as Ex.B1 to Ex.B5 and the Commissioner reports and plans marked as court documents, Ex.C1 to C4.

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Considering the above said oral and documentary evidences adduced on either side, the trial court has held that the respondents have suppressed the fact that he encroached a portion of the Government property and therefore, not entitled to the relief of permanent injunction.

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Aggrieved over the above said findings of the trial court, the respondents preferred the first appellate in A.S.No.23 of 2001 and the first appellate court has held that the suit property is in the possession of the respondents and the respondents are not seeking any relief of declaration, but only seeking the relief of permanent injunction on the basis of possession and therefore, even the suit property belongs to the Government, the respondents are entitled to the relief of permanent injunction.

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Aggrieved over the above said reversal findings of the first appellate court, the appellant/defendant in the suit preferred this second appeal. This court has admitted the second appeal on the following two substantital questions of law:

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i) Whether the decree of permanent injunction may be passed against the government poramboke land without impleading the Government as a party respondent?

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ii) Whether the decree of permanent injunction can be passed relying upon only the oral testimony and in the absence of any documentary evidence?

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The learned counsel appearing for the appellant mainly contended that the suit property is a Government Poramboke land and hence, the decree of permanent injunction cannot be granted unless the Government impleaded as a party to the suit on the ground of non-joinder of the necessary party. The learned counsel further pointed out that the first appellate court has wrongly relied upon the report and plan of the Advocate Commissioner and given the relief of permanent injunction and therefore, the above said findings of the first appellate court is perverse finding.

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Per contra, the learned counsel appearing for the respondents would submit that the appellant himself admitted that the respondents encroached the suit property even prior to filing of

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the suit and the first appellate court also discussed about the oral and documentary evidence adduced on either side and held that the suit property is in possession of the respondents. The respondents have filed a suit only for permanent injunction in respect of suit property. Admittedly, the respondents have not seeking any relief of declaration but the respondents claimed right over the suit property on the basis of Ex.A1.

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The trial court has considered the oral and documentary evidence adduced on either side and finally held that in a comparison of the rough sketch with commissioner's report and plan revealed that Ex.A4 rough sketch is not correct. Further, the trial court has held that the respondents claimed more extent in Government poramboke land than they are entitled as per Ex.A1 and the poramboke land was used as manthai by the villagers and therefore, the trial court has dismissed the suit since the respondents encroached in the Government land.

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The first appellate court has held that the respondents have not filed any declaration in respect of the suit property but only for permanent injunction on the basis of possession and the appellant has admitted the above said possession but only contended that the encroached portion belongs to the Government poramboke. But, the Government has not taken any steps to remove the encroachment and therefore, the respondents are entitled to permanent injunction as against the appellant who is the third party and accordingly, decreed the suit filed by the respondents.

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Perusal of the records revealed that the respondents claimed right over the property as Sreethana given in Ex.A1. It is also revealed that the respondents have already filed the suit in O.S.No.35 of 1943 for partition and final decree has been passed in the above said suit. To prove the same, B3 & B4 has been filed. On perusal of the above said documents, the Commissioner report and plan revealed that the respondents have encroached the portion of the property, which belongs to the Government. The appellant has not proved that any portion of the suit property belongs to the appellant. The appellant have miserably failed to prove that they are in possession already and only before the filing of the suit, the respondents have encroached and put up fence in the suit property. Before this Court, the learned counsel for the appellant mainly contended that since the portion of the suit property is the Government poramboke land, the respondents are not entitled to permanent injunction. The learned counsel relied on a decision reported in (2007) 15 SCC 750 (State of Himachal Pradesh Vs. Milkhi Ram (Dead) by Lrs and Others)

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Perusal of the above said decision relied on by the appellant revealed that the facts of the above said case are not

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applicable to the facts of the present case. In the above said case, the plaintiffs seeking the relief of declaration and for consequential relief of permanent injunction. In the above said circumstances, the Honourable Supreme Court has held that the property, prima facie vested in the State Government and therefore, directed the plaintiff to implead the State Government in the above said suit as a defendant and then directed to dispose of the suit in accordance with law.

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In the present case, the respondents filed a suit seeking the relief of permanent injunction alone against the appellant who is third party and not seeking any relief of declaration. The appellant has admitted the possession of the respondents but only contended that before the filing of the suit, the respondents have encroached the property and put up fence. In the above said circumstances, the decision relied on by the appellant is not applicable to the facts of the present case.

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Per Contra, the learned counsel for the respondents relied on the decision reported in AIR 2000 MADRAS 60 (Chandranathan, Appellant Vs. Esthar Rani and Others, Respondents) in which para -15 reads as follows:

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It is true that if a necessary party in the suit has not been impleaded, as held in AIR 1979 SC 1682 (cited supra), the plaintiffs will have no right to maintain the suit. But, it shall be mentioned that this principle would apply only to the cases where the parties, who are not impleaded, must be held to be the necessary parties. This issue has been framed as Issue No. 3. While answering this issue, the trial Court has clearly held that there is no relief sought for by the plaintiffs as against the Government. The dispute which has given rise to the cause of action, is only between the plaintiffs and the defendants. Therefore, the question of law, which has been raised now by the learned counsel for the appellant with regard to the non-joinder of party, cannot be of any use to the appellant. Therefore, the contention regarding non-joinder of the party has to fail.

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As rightly pointed out by the learned counsel for the respondents in the instant case, the respondents have filed a suit for permanent injunction only against the appellant and not seeking any relief against the Government and further, the possession of the respondents is admitted. In the above said circumstances, the respondents are entitled to the possession till the Government duly evict the respondents if any encroachment over the Government property. Therefore, if the respondents encroached any portion of the Government property, the Government is always having power to remove

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the encroachment as per the Provisions of the Act and Rules. The appellant has no power to disturb the above said possession of the respondent. Therefore, the first appellate court has correctly held that even without impleading the Government as a party, the respondents are entitled to permanent injunction. Therefore, the above said findings of the first appellate court are not perverse findings or illegal. Thus, it is clear that there is no questions of law much less substantial questions of law involved in this Second Appeal requiring interference in exercising jurisdiction under Section 100 of Code of Civil Procedure.

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In the result, the Second Appeal is dismissed and confirmed the decree and judgment passed by the first appellate court and no order as to costs. Consequently, the connected civil miscellaneous petition is closed.

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-s/d-
Assistant Registrar(CSIV)
Dated:02/04/2014
True Copy
Sub-Assistant Registrar
gv
To
1.The Additional District Court/Fast Track Court No.IV, Coimbatore,
Tiruppur.
2.The District Munsif Court, Palladam.
+1 cc to M/S.S.K.Rakhunathan, advocate sr.7899
+1 cc to M/S.S.Doraisamy Advocate sr.6635
S.A.No.476 of 2004
and
CMP.No.3782 of 2004

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aa02/04/2014

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Karuppathal, v. Arunachalam

Case brief

What is this about?

What did the court decide?

Karuppathal, v. Arunachalam

Case brief

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