Plaintiffs in possession of Survey No.271/4 sought declaration of possessory title and injunction claiming it was 'Agazhi Poramboke'. Courts below held it was patta land belonging to the defendants. The High Court confirmed that denial of declaratory relief bars a consequential injunction and dismissed both second appeals.
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S.A.Nos.976 and 977 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.03.2024
CORAM:
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.Nos.976 and 977 of 2013
& M.P.Nos.1 of 2013 (02 Nos)
1.Sundrambal
4.Shiek Mehaboob Basha ... Appellants/Appellants/Plaintiffs in S.A.No.976 of 2013
1.R.Mani
2.Vijayalakshmi @ Ma.Lakshmi ... Appellants/Appellants/Plaintiffs in S.A.No.977 of 2013
Vs.
1.Paneerselvam 2.Jambulingam ... Respondents/Respondents/Defendants in S.A.No.976 of 2013
Paneerselvam ... Respondent/Respondent/Defendant in S.A.No.977 of 2013
PRAYER in S.A.No.976 of 2013: Second Appeal filed under Section 100 of Code of Civil Procedure against the Judgment and Decree in A.S.No.68 of 2011 dated 28.03.2013 on the file of the Court of Principal Subordinate Judge, Tindivanam, confirming the Judgment and Decree in O.S.No.400 of 2004 dated 31.10.2011 on the file of the Court of Additional District Munsif, Tindivanam.
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PRAYER in S.A.No.977 of 2013: Second Appeal filed under Section 100 of Code of Civil Procedure against the Judgment and Decree in A.S.No.69 of 2011 dated 28.03.2013 on the file of the Court of the Principal Subordinate Judge, Tindivanam, confirming the Judgment and Decree in O.S.No.356 of 2004 dated 31.10.2011 on the file of the Court of Additional District Munsif, Tindivanam.
In both the S.A's.:
For Appellants : Mr.C.Anbu for Mr.M.R.Thangavel For Respondents : Mr.Ruban Chakravarthy for Mr.S.Kaithamalai Kumaran
COMMON JUDGMENT
These two Second Appeals arise out of two suits filed for declaration of possessory title and consequential relief of injunction. O.S.No.356 of 2004 was filed by one R.Mani and Vijayalakshmi against one Paneerselvam. Similarly, O.S.No.400 of 2004 was filed by the following persons, Sundarambal, Thillai Karasi, Pachayappan and Shiek Mehaboob Basha against Paneerselvam and Jambulingam.
which they are in occupation are classified as ‘Agazhi Poramboke’. They
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would state that they are paying ‘B’ memo to the Government. Since the defendants, who are residents of an adjacent property, are trying to interfere
with their possession they come forward with the above suits for declaration of possessory title and consequential relief of injunction.
stated that the suit schedule mentioned property has been wrongly mentioned
as 271/3, which is ‘Agazhi Poramboke’, but the suit property actually situated in 271/4C which is a patta land. They would state that the property originally
belongs to one Muthu Krishna Mudaliar, who purchased the property on
04.02.1925. On his death, the properties were came to the hands of his legal heirs, who are the defendants. They state that the plaintiffs are none other
than the persons who have purchased the properties by way of un-registered
sale deeds from the tenants of Muthu Krishna Mudaliar and his successors in
interest and therefore cannot claim any relief against the defendants.
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issues were framed.
"1.Whether the suit property is "Agazhi
Poramboke" land?
2.Whether the plaintiffs have been in possession of the suit property for more than 30 years by paying penal tax to the Government?
3.Whether the plaint ABCD property is the only way for the plaintiffs to reach the road?
4.Whether the property in S.No.271/4 with an extent of 57 cents, originally belonged to Muthu Krishna Mudaliar by virtue of Sale deed dated 04.02.1925?
5.Whether the suit property was allotted to Jambulinga Mudaliar S/o Munusamy Mudaliar in the partition dated 04.08.1981?
6.Whether the father of the 1st plaintiff has executed a rental agreement dated 22.09.1964 for the vacant site in favour of defendant?
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7.Whether the Court fee paid is proper?
8.Whether the plaintiffs are entitled for
declaration and permanent injunction?
9.To what other relief, the plaintiffs are
entitled?"
Exs.P.1 to 126 were marked. On the side of the defendants, D.W’s.1 to 4
were examined and Exs.B.1 to 20 were marked.
schedule mentioned property is situated in Survey No.271/4 and not in 271/3.
He also held that it is 271/3 which is a 'Agazhi poramboke' land, whereas the
S.No.271/4 is a patta land, belonging to the defendants. Taking into consideration the long possession of the plaintiffs, the Trial Court while
denying the relief of declaration of possessory title, granted them the relief of
injunction restraining the defendants from interfering their possession.
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plaintiffs preferred A.S.No.68 of 2011 and A.S.No.69 of 2011 before the
Principal Subordinate Judge, Tindivanam. The learned Principal Subordinate Judge came to a conclusion by confirming the findings of the Trial Court, but modified the decree of the Trial Court and held that where the main relief has
been denied the consequential relief of injunction cannot be granted. Against
the said concurrent finding, the present Second Appeals have been preferred
before this Court.
the appeals on 05.09.2013, thereafter, the appeals have been listed before me
for the purpose of admission and to pass orders in the appeals.
representing Mr.M.R.Thangavel and Mr.Ruban Chakravarthy for the
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respondents.
law for the purpose of admission,
accepting the validity of the disputed Will (Ex.B.3) without it being proved as required under Section 68 of the Evidence Act ?
2.Whether the Courts below right in
holding that the Government is a necessary party to
the suit when there is no lis between the government and the parties to the suit ?
holding that tenancy existed between the appellants/plaintiffs and the respondents/defendants
without it being proved in accordance with law by the profounder of such plea ?
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accepting the tenancy pleaded by the respondents/defendants when the
appellants/plaintiffs are assessed to property tax and paying electricity charges?
5.Whether the Lower appellate court right in rejecting the claim of injunction when the possession of the appellants is proved?
6.Whether the appellants being found in possession of the suit property could be evicted except under due process of law?
7.Whether the courts below right in accepting the evidence of D.W.4 – VAO without any records being produced by him in his official capacity ?
8.Whether the presumptions as to the official documents would also equally apply to the official witness deposing without any records being produced ?."
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would submit that the property being a patta land, the Courts below have
rightly rejected the relief of possessory title. He would state that the lower Appellate Court merely corrected the decree of the Trial Court which had
granted the decree of injunction, which is consequential to the relief of
declaration and therefore, he would state that there is no interference is necessary in the hands of this Court.
counsel on either side and perused the records of the Courts below.
property situated in Survey No.271/4. Their entire case is based on the facts
that they have been in possession of the property for more than 50 years and
therefore, they are entitled to a decree for possessory title. The Courts below
have concurrently found that it is Survey No.271/3, which is ‘Agazhi
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Poramboke’, whereas the Survey No.271/4 is a property which had been purchased under Ex.B.1 by one Muthu Krishna Mudaliar. Apart from that Ex.B.2 is a patta passbook for the suit property, which stands in the name of the defendants.
Will and they have not proved the same. It is not in dispute that the plaintiffs
are not the members of the family of Muthu Krishna Mudaliar. It is only a
person, who has a caveatable interest in and over the properties, who can
deny the same. To put it in other words, a Will is written in order to change
the natural line of succession, which would happen in case of an interstate succession. A tenant cannot claim to be a successor in such an interstate succession. Therefore, the submission of Mr.Anbu, that the Will has not been proved goes beyond the scope of his client's claim. The Courts below having
concurrently held that the Survey No.271/4 is a patta land, I am not in a
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position to interfere with the same. Once the Court comes to the conclusion
that the Survey No.271/4 is a patta land, the question of granting the relief of
possessory title does not arise. This is because, possession follows title and title has been found to have vested with the family of Muthu Krishna Mudaliar.
by the Supreme Court in Padhiyar Prahladji Chenaji (Deceased) through
LR's Vs. Maniben Jagmalbhai (Deceased) through LR's (2022) 12 SCC
128, that where the main relief of declaration is denied, the Court cannot
grant the consequential relief of injunction. A perusal of the plaint shows that
the main relief that had been sought by the plaintiffs in both the suits was for declaration of possessory title and they had consequently sought for the relief
of injunction. Even the Court Fee that has been paid is only with respect to
declaration portion and the suit has not been separately valued for the relief
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of permanent injunction. The Trial Court having come to the conclusion that the plaintiffs have not proved their declaratory relief, erred in granting consequential relief of injunction not to be existed otherwise in accordance with law. This has been corrected by the lower Appellate Court in the appeals.
the lower Appellate Court ought not to have interfered with that portion of the decree as it was an appeal at the instance of the plaintiffs. The lower Appellate Court under Order 41 Rule 33 of CPC has the power to pass an appropriate decree in the suit even though no appeal is filed against that portion of the decree. It is in exercise of that power, the lower Appellate Court had set aside the decree of the Trial Court and modified the decree of the Court granting consequential relief of injunction. No exception can be taken to the exercise of that power by the lower Appellate Court.
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clients have already filed suits in O.S.Nos.202 to 206 of 2013 before the
Principal District Munsif, Tindivanam, seeking relief of recovery of possession. Therefore, by virtue of the decree of the Trial Court, the defendants have already initiated proceedings to evict the plaintiffs only in accordance with law. Hence the apprehension of Mr.Anbu, that his clients will be forcibly dispossessed from the suit property does not arise.
these appeals do not arise. I have no other option than to confirm the Judgment and Decree of the learned Subordinate Judge, Tindivanam in A.S.Nos.68 and 69 of 2011 dated 28.03.2013 in partly modifying and confirming the Judgment and Decree of the learned Additional District Munsif, Tindivanam in O.S.No.356 of 2004 dated 31.10.2011.
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Consequently, connected miscellaneous petitions are closed.
14.03.2024
Jer Index : Yes/No Speaking order/Non-speaking order Neutral Citation : Yes/No
To
1.The Principal Subordinate Judge Tindivanam.
2.The Additional District Munsif Tindivanam.
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V.LAKSHMINARAYANAN, J.
Jer
S.A.Nos.976 and 977 of 2013
14.03.2024
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Colour shows how this judgement treated each authority
3 provisions across 2 enactments
Sundrambal
Thillai Karasi
Pachyappan
Shiek Mehaboob Basha
R.Mani
Vijayalakshmi @ Ma.Lakshmi
V.Lakshminarayanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
