Suit for permanent injunction over 1.50 acres purchased from the defendant; trial court dismissed for failure to identify suit property, lower appellate court reversed. The High Court held identity must be shown by ground location, not paper boundaries alone, and restored the dismissal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No.267 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 10.07.2024
ORDER PRONOUNCED ON : 06.08.2024
CORAM
THE HON'BLE MRS. JUSTICE N.MALA S.A.No.267 of 2021
Appellants 2 to 7 brought on record as Lrs of the deceased sole appellant viz. (K.N.Bellie) vide Court order dated 14.03.2022 made in CMP.8771/2021 in S.A.267/2021.
...Appellants
vs
Kamala Arjunan
...Respondent Prayer : Second Appeal is filed under Section 100 of the Code of Civil Procedure Code, 1908 to set aside the Judgment and Decree dated 16.10.2020 in A.S.No. 29 of 2017 on the file of Subordinate Judge, Udhagamandalam reversing the Judgment and Decree dated 23.08.2016 passed in O.S.No. 52 of 2010 on the file of District Munsif, Udhagamandalam and allow the Appeal by dismissing the suit.
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For Appellants : Mr.T.Pramod Kumar Chopda, Senior Advocate for Mr.P.Prithvi Choda For Respondent : Mr.N.Krishnakumar for M/s.Sarvabhauman Associates.
JUDGMENT
The Second Appeal is filed against the reversing judgment of the lower
appellate court. The defendant in the suit is the appellant in the Second Appeal.
The defendant was the absolute owner of total extent of 3.69 acres of
agricultural land in R.S.Nos.359/1 and 359/1B, he having obtained the same under
the partition deed dated 15.02.1969 and sale deed dated 16.02.1990. The defendant out of the total extent of 3.69 acres obtained by him as aforesaid sold
1.50 acres of agricultural land in R.S.Nos.359/1 & 359/1B (old) and New
R.S.No.382 of Ithalar village, with specific boundaries to the plaintiff under sale
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deed dated 02.12.2005. According to the plaintiff she developed a tea garden in
attempted to interfere with the plaintiff's peaceful possession and enjoyment of the suit property and therefore on threat of dispossession, the plaintiff filed the suit for permanent injunction restraining the defendant his men, agent etc. from interfering
with her peaceful possession and enjoyment of the suit properties.
extent of 3.69 acres of land in R.S.No.359/1 and 359/1B. The defendant also admitted the plaintiff's title to an extent of 1.50 acres in R.S.No.359/1B of Ithalar village by virtue of sale deed executed by him in her favour on 02.02.2005. The defendant denied the plaintiff's averment that she planted tea plants in the suit property. According to the defendant, a part of the plaintiffs suit schedule property,
was acquired by the Government for the purpose of laying road to Belithila lease
with the consent and knowledge of the plaintiff. It was the defendant's further case
that some persons on the eastern side of the plaintiff's property encroached into the
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suit property. The plaintiff in collusion with the said encroachers on the eastern
side wanted to enter the defendants land to the extent acquired by the panchayat for laying the road. The defendant stated that taking advantage of the ex-parte interim injunction order granted in her favour, the plaintiff destroyed the tea plants
in the defendant's land on 29.03.2010 to 31.03.2010 and therefore the defendant preferred a police complaint against the plaintiff. As regards dispossession of the plaintiff by the defendant was concerned, the defendant stated that the defendant was not there in the village when the alleged dispossession of the plaintiff took place. The defendant therefore submitted that the defendant was in peaceful
enjoyment of the balance of 2.19 acres of tea estate and it was the plaintiff who
tried to trespass into his lands.
examined one other witness as P.W2. The defendant examined himself as D.W1.
The plaintiff marked Ex.A1 to Ex.A5 and the defendant did not file any
documents. The Commissioners report and sketch were marked as Ex.C1 and
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Ex.C2 as Court documents.
that there was a dispute as regards the boundaries of the lands and the plaintiff
having instituted the suit, the burden was on the plaintiff to prove her exclusive
title and possession over the suit property. The trial Court found that the plaintiff
having failed to establish the identity of the suit property, she was not entitled to
the relief of permanent injunction. The trial court also found that the plaintiff was
a Co-Pattadar and therefore she could not claim injunction against the defendant.
The trial court therefore dismissed the suit. Aggrieved by the judgment and decree
of the trial court, the plaintiff filed the appeal before the Sub-Court,
Udhagamandalam and the lower appellate court on an appreciation of the entire
evidence on record found that the boundaries given in the suit schedule correlated
with the boundaries given in the sale deed of the plaintiff and therefore the identity
of the suit property was established by the plaintiff. The lower appellate court
rejected the objection of the defendant that plaintiff was trying to usurp his lands
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because of the encroachment by the owners on the eastern side of her property and
that the plaintiff was trying to reclaim the extent lost by her towards acquisition
from his lands on its finding that the plaintiff was not claiming more extent than
that which she purchased from the defendant. The lower appellate court also found
that the finding of the trial court that there was no cause of action for the suit and also that injunction could not be granted against Co-pattadar was erroneous. The
lower appellate court held that the trial court failed to note that there was a difference between Co-owner and Co-pattadar and therefore the suit against the
Co-pattadar for injunction was maintainable. Aggrieved by the reversing judgment
and decree of the lower appellate court, the defendant has filed the above Second Appeal.
questions of law:
the judgment and decree passed by the trial Court?
2. Whether the learned Subordinate Judge is correct in granting
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permanent injunction without identifying the boundaries and demarcating the suit property by plaintiff?”
miserably failed to establish the identity of the suit property by specific boundaries and therefore the trial Court was right in dismissing the suit. The learned counsel further submitted that the lower appellate court failed to note that
the suit for injunction does not lie on mere apprehension of dispossession. The learned counsel submitted that the lower appellate court failed to note that the plaintiff was trying to encroach the defendant's lands because of encroachment of
the eastern side owners of her property and also because she lost a portion of her lands in the acquisition.
plaintiff having established the identity of the suit property and her right, title and
possession of the same the lower appellate court was justified in granting the relief
of injunction in her favour. The learned counsel further submitted that the issue https://www.mhc.tn.gov.in/judis
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raised in the second appeal being a pure question of fact the same could not be
decided in second appeal under Section 100 CPC.
the total extent of 3.69 acres in R.S.No.359/1 and 359/1B in Ithalar village by virtue of a partition deed dated 15.02.1969 and sale deed dated 16.02.1990. It is also undisputed that vide registered sale deed dated 02.02.2005, the defendant sold
1.50 acres of land in R.S.No.359/1B in the said Ithalar village to the plaintiff. The dispute is with regard to the interference by the defendant with the plaintiffs
peaceful possession and enjoyment of the property purchased by her from the
defendant.
schedule of property under Ex.A1 i.e. sale deed of the plaintiff. The plaintiff
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admittedly purchased 1.50 acres of land out of total extent of 3.69 acres with
specific boundaries. In the suit schedule as also the plaint schedule the boundaries of the land purchased by the plaintiff are as follows:
North :The land of Gopal K.N. Sevanan
South :The land of B.K. Raju & Peelan
East :Late Karodi Gowder & P.T. Joghee's land
West :The Defendant's land
basis of above boundaries given in the sale deed as well as the suit schedule. I
digress from the issue on hand for a moment, to highlight that the plaintiff admits
that part of her property i.e. 12.50 cents out of 0.25 acres of land was acquired for
laying a panchayat road. Therefore the plaintiff could not have prayed for injunction for the entire extent of 1.50 acres. The plaintiff ought to have prayed for injunction for 1.37 ½ cents only.
14.It is the case of the defendants that the owners of the eastern boundary of
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the plaintiff encroached into her lands so she was trying to recover the encroached
portion as well as the acquired portion from the defendants lands. In this regard, the Advocate Commissioners report is relevant. The Advocate Commissioner in his report categorically stated that when the plaintiff was requested to identify the
suit property as per her sale deed, she was able to identify the boundaries on the south, east and west only. The plaintiff disputed the extent of 0.62 acres in the northern side stating that it belonged to one Mr.Gopalan. The Advocate Commissioner further found that the entire extent of 3.69 acres in R.S.No.359/1
and 359/1B was identified by the defendant but the said Gopalan and Ramakrishnan objected to the portions marked in Orange and Yellow in his plan stating that they were in possession and enjoyment of the same. The Advocate Commissioner further stated that as per Ex.A3, an extent of 1.65 acres in
R.S.No.359/1B was identified but the extent of 2.04 acres in R.S.No.359/1
covered under the document Ex.A2, could not be identified, as the said document had no boundaries to survey the same. According to the advocate commissioner
his report was based on the identification of the property by the defendant and his
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counsel. The Commissioner further stated that because of the objection raised by
the plaintiff, her counsel, Mr.Gopalan and Mr.Ramakrishnan he and his Government surveyor were not able to survey the total extent of 3.69 acres in R.S.No.359/1 and R.S.No.359/1B and hence he was not able to demarcate the
plaintiff's lands of 1.50 acres and 2.19 acres of the defendants property. The Advocate Commissioner recorded the physical features of the entire extent of 3.69 Acres identified by the defendant and marked the same in green, brown, yellow
and orange colour in his rpeort. The report refers to the brown colour portion as that acquired by the Government for formation of the panchayat road, the yellow and orange colours as disputed portions (i.e.) the possession of the adjacent owners Gopalan and Ramakrishnan. From the Advocate Commissioners report, it is clear that the plaintiffs 1.50 acres could not be identified, as the eastern side owner's disputed the same. It is pertinent to note that the plaintiff has not objected to the commissioner report and plan.
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as follows:
“@bgs;spaplk; ,Ue;J 1/\ Vf;fh; g{kpia fpuakhf bgw;nwd;/ ,e;j brhj;ij mse;J ghh;j;J jhd; th';fpndd; vd;W nfl;lhy; gpujpthjp ,lj;ij fhl;odhh; ehd; fpuakhf bgWtjw;F rk;kjk; bjhptpj;njd; Mdhy; mse;J ghh;f;ftpy;iy/@”
“@ePjpkd;w Mizah; jhf;fy; bra;j mwpf;iff;F Ml;nrgiz bjhptpj;J ehd; kD jhf;fy; bra;Js;nsdh vd;W nfl;lhy; ,y;iy/@”
“@jhthtpy; Fwpg;gpl;Ls;s go jhth brhj;jpd; tlf;F gf;fj;jpy; nfhghy; kw;Wk; brtd;d g{kp mike;jjhf Fwpg;gpl;Ls;sJ jtW vd;w brhd;dhYk; brtdd; g{kp kl;Lk; jhd; cs;sbjd;W brhd;dhYk; rhpjhd;/////@”
“@jhth brhj;jhd 1?\ Vf;fh; g{kp nuhl;ow;F nkYk; fPGk; cs;sJ/ me;j nuhl;il ehd; jhd; murh';fj;jpw;F bfhLj;Jtpl;nld;/
me;j nuhl;il vd;Dila g{kpapd; tHpahf jhd; bry;fpwJ vd;W brhd;dhy; rhpjhd;/@”
purchase, her property was not identified and specifically demarcated. The
plaintiff having admitted that the northern side owner of her lands was only
Sevenan, it is clear that Gopalan had no right in the yellow and orange portions.
The plaintiff further admits that her property lies on both sides of the road. While
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so, the plaintiff cannot claim the entire extent in the green portion of the Commissioners report. It is also to be noted here that after selling 1.50 acres out of 3.69 acres, the defendant admittedly retained only 2.19 acres. In the commissioners report the measurment of green portion is 2.32 acres. Therefore
the plaintiff may be justified in claiming some extent in green colour portion also.
the plaintiff having admtited the orange and yellow portions are accupied by Gopalan and Ramakrishnan, son of Sevanan, without the said persons, the plaintiff cannot identify her lands. The plaintiff claims that she has lands on either side of the road, which will necessarily mean that she has lands in the yellow and orange portions also, but the plaintiff admits that yellow and orange portions are occupied
by Gopalan and Ramakrishnan, son of Sevenan. The plaintiff in the
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Commissioners report admitted that the orange portion measuring 0.62 cents
belonged to Gopalan and Sevenan and hence she requested the Commissioner to measure the lands in their presence. As already stated the defendant is entitled only to 2.19 acres, but the extent of green portion is 2.32 acres. If the balance 0.13 cents is added then the extent owned by the plaintiff under the sale deed dated 02.02.2005 (i.e.) 137.5 cents (1.50 acres – 12.5 cents acquired for road) is arrived
at.
18.From the above discussion, it is clear that there is some dispute as to the identity of the plaintiffs property. Unless the plaintiff properly identifies the suit property, she cannot succeed. The plaintiff has not been able to establish the location of her lands. Admittedly, there are certain claims from Gopalan and Ramakrishnan, son of Sevanan, to the orange and yellow portions. Therefore in the absence of the said persons the plaintiff's land cannot be clearly identified. In my view the lower appellate Court erred in thinking that because the boundaries in
the sale deed tallied with the boundaries in the suit schedule, the lands stood
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identified. The identity of the lands should be with reference to the location on
ground also and not merely on paper. It is trite that relief of injunction cannot be
granted unless and until the lands are identified.
are answered in favour of the defendant and the judgment and decree of the lower
appellate court is set aside and the judgment and decree of the trial court is
confirmed. Accordingly, the Second Appeal is allowed. No costs.
06.08.2024
Index:Yes/No Speaking Order:Yes/No Neutral Citation:Yes/No dsn/ah
To
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N.MALA,J.
dsn
PRE-DELIVERY JUDGMENT IN S.A.No.267 of 2021
JUDGMENT PRONOUNCED ON 06.08.2024
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2 issues framed by the court
Whether the plaintiff established the identity of the suit property on the ground so as to be entitled to permanent injunction?
Whether the lower appellate court was correct in reversing the trial court's dismissal of the injunction suit?
1 provisions across 1 enactments
K.N.Bellie (Died), rep. by Lrs Devi.B, Sasikala, Prema Sankaran, Sivakumar, Jayanthi, Vijaykumar. B
Kamala Arjunan
N.Mala
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
