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High Court of Judicature at Madras
The Honourable Mr. Justice Srinivasan & The Honourable Mr. Justice S.S. Subramani
K. Mariappan & Five others
Versus
Chennaivazh Nadargal Sangam & three others
O.S.A. Nos. 305 to 307 of 1995
Decided On : 01-12-1995
INJUNCTION - POSSESSION - BURDEN OF PROOF - INTERLOCUTORY APPLICATION - DECREE OBTAINED BY FRAUD - APPOINTMENT OF COMMISSIONER - PHYSICAL FEATURES - ORDER XXVI RULE 9 OF THE CODE OF CIVIL PROCEDURE - A person who is not in possession of the suit property cannot be granted an injunction, even if that person is the true owner. A decree obtained by fraud or collusion is a nullity and non est in the eyes of law, but this proposition will not apply at an interlocutory stage as the materials placed before the court are not sufficient. An Advocate-Commissioner can be appointed to note the physical features under Order XXVI Rule 9 of the Code of Civil Procedure, but this depends on the facts of each case.
Fact of the Case:
The plaintiffs filed suits for declaration of title and injunction, claiming ownership of certain properties. The defendants claimed that the properties were ancestral family properties and that they had obtained a decree in a partition suit, which was upheld in execution proceedings. The plaintiffs contended that the decree was vitiated by fraud and collusion and that they were in possession of the properties. The trial court granted injunctions in favor of the plaintiffs and appointed a Commissioner to note the physical features of the properties.
Finding of the Court:
The High Court held that the plaintiffs had not made out a prima facie case of possession and that the decree in the partition suit was not vitiated by fraud or collusion. The court also held that there was no necessity or justification for appointing a Commissioner to note the physical features of the properties.
Issues: 1. Whether the plaintiffs were in possession of the suit properties? 2. Whether the decree in the partition suit was vitiated by fraud or collusion? 3. Whether an Advocate-Commissioner could be appointed to note the physical features of the properties?
Ratio Decidendi: 1. The burden of proof is on the plaintiffs to prove that they are in possession of the suit properties. 2. A decree obtained by fraud or collusion is a nullity and non est in the eyes of law, but this proposition will not apply at an interlocutory stage as the materials placed before the court are not sufficient. 3. An Advocate-Commissioner can be appointed to note the physical features under Order XXVI Rule 9 of the Code of Civil Procedure, but this depends on the facts of each case.
Final Decision: The High Court set aside the trial court's order granting injunctions in favor of the plaintiffs and dismissing the applications for injunction and appointment of a Commissioner.
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Srinivasan, J.
1. These appeals arise out of inter-locutory applications in two suits O.S.Nos.1566 and 1567 of 1994 on the original side of this Court. O.S.A.No.305 of 1995 is against O.A.No.1074 of 1994 in C.S.No.1567 of 1994. O.S.A.Nos.306 and 307 of 1995 are against O.A.Nos. 1075 and 6154 of 1994 respectively in C.S.No. 1566 of 1994. The parties will be referred to hereinafter by their rank in the suits.
2. C.S.No.1566 of 1994 is for declaration that the plaintiffs are the absolute owners of the schedule mentioned properties and for consequential injunction restraining the first defendant and his agents etc., from in any manner interfering with the possession and enjoyment of the schedule mentioned properties. The subject matter of the suit comprises three items of dry land of an extent of 2.56 acres in Survey No.10/2, 3.76 acres in Survey No.41 and 1.40 acres in Survey No.43/1, taking a total of 7.72 acres in Thandalkalani village. Saidapet Taluk, Chengai M.G.R.District. Items 2 and 3 of the said properties were purchased on 12. 1975 by the first plaintiff from the second defendant who is the father of the first defendant. Item No.1 was purchased on 29. 1979 by the first plaintiff from the second defendant. By a deed dated 12. 1983, the President of the first plaintiff Sangam created the second plaintiff Trust. The administration of the Trust is governed by a scheme framed by the District Court, Chingleput in O.S.No.145 of 1987. The plaintiffs purchased several other properties adjacent to the suit properties and erected superstructures thereon, though admittedly the suit properties remained vacant lands. According to the plaintiffs, the entire properties of an extent of 35.50 acres belonging to them are enclosed by a fence with a gate for having access. It is the case of the plaintiffs that they are in possession and enjoyment of the said properties including the suit properties.
.3. In C.S.No. 1567 of 1994, the prayer is for declaring the title of the plaintiff to the suit property viz., dry land of an extent of 2.04 acres in Survey No. 19 in Tandalkalani Village, Ponneri Taluk, Chengai M.G.R. District and for consequential injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff. According to the plaintiff, the property was purchased from the second defendant under sale deed dated 13. 1979. The plaintiff claims to have raised eucalyptus trees by enclosing the land with fence.
4. It should be noted that defendants 1 and 2 in both the suits are the same persons being the son and the father. In C.S.No.1567 of 1994, the plaintiff filed O.A.No.1074 of 1994 for injunction restraining the defendants from interfering with the plaintiff’s possession pending disposal of the suit. In the other suit, the plaintiffs filed O.A.No.1075 of 1994 for a similar relief of injunction and O.A.No.6154 of 1994 for appointment of Advocate- Commissioner to make local inspection of the suit properties f or noting the physical features and the features of possession.
.5. The defence in short raised by the defendants in both the suits is that the properties involved in these two suits were ancestral family properties belonging to the first defendant and his father, the second defendant. The first defendant filed C.S.No.130 of 1979 on the file of this Court on 22. 1979 for partition and separate possession of one half share in the properties set out in the schedule thereto which included the present suit properties. The second defendant in the present suit was the first defendant in that suit. According to the first defendant herein, the third defendant in that suit is the first plaintiff in C.S.No.1566 of 1994. Defendants 1 and 3 in the said suit received summons therein and remained ex parte. A preliminary decree was passed on merits on 1. 1984. The first defendant, who was a minor at the time of the institution of the said suit represented by his mother after attaining majority g
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