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2010 Supreme(Mad) 2655
High Court of Judicature at Madras
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
K Kaluva Kounder (died)& Others
Versus
Mannankatti & Another
SA.No.894 of 2003
Decided On : 06-07-2010
For the Appellants:Mr. R. Subramanian, Advocate.
For the Respondents:Ms. Chitra Sampath, Advocate.
A suit for injunction can be maintained when the Plaintiff is in lawful possession of the property and the Defendant interferes or threatens to interfere with that possession. The burden of proof lies on the Defendant to prove adverse possession. Recitals in documents not inter se parties are not admissible as evidence of possession or title without examining the executants of those documents. A co-owner can maintain a suit for injunction to protect the possession of the property.
Headnote:
Possession - Tamil Nadu Court Fees and Suits Valuation Act - Section 25 - The court analyzed the provisions of Section 25 of the Tamil Nadu Court Fees and Suits Valuation Act to determine the maintainability of a suit for injunction without seeking a declaration and paying the appropriate court fee. The court held that the suit for injunction was maintainable in this case.
Fact of the Case:
The suit property originally belonged to Surendra Village. After the death of Narayana Gounder, his legal heirs partitioned the property orally and the suit property was allotted to the share of Seena Gounder. The Plaintiff is in possession of the suit property. The Defendants claimed that the suit property was sold to them by Kuppa Gounder, the father of the Plaintiff. The Trial Court dismissed the suit, but the first appellate court allowed the appeal. The Defendants filed this Second Appeal. The substantial questions of law raised in this appeal are whether the suit for injunction without seeking declaration and paying court fee under Section 25 of the Tamil Nadu Court Fees and Suits Valuation Act was maintainable, whether the burden of proof was correctly placed on the Plaintiff, and whether the lower appellate court misread certain documents. The court analyzed the evidence and held that the Plaintiff's title to the suit property was established, the suit for injunction was maintainable, and the lower appellate court's findings were correct. The court dismissed the Second Appeal.
Finding of the Court:
The court analyzed the evidence presented by both parties and considered the legal principles of possession, adverse possession, and the maintainability of a suit for injunction. The court also examined the relevant provisions of the Tamil Nadu Court Fees and Suits Valuation Act. The court found that the Plaintiff's title to the suit property was established and that the suit for injunction was maintainable. The court also held that the lower appellate court's findings were correct and dismissed the Second Appeal.
Ratio Decidendi: The court held that a suit for injunction can be maintained when the Plaintiff is in lawful possession of the suit property and the Defendant interferes or threatens to interfere with that possession. The court also held that the burden of proof lies on the Defendant to prove adverse possession, and that the lower appellate court's findings were correct. The court further held that the recitals in certain documents were not admissible as evidence of possession or title without examining the executants of those documents. The court also held that a co-owner can maintain a suit for injunction to protect the possession of the property, even without impleading the other co-owner as a party.
Result: The Second Appeal was dismissed. The court held that the suit for injunction was maintainable, the Plaintiff's title to the suit property was established, and the lower appellate court's findings were correct. The court also held that the recitals in certain documents were not admissible as evidence of possession or title, and that a co-owner can maintain a suit for injunction to protect the possession of the property.
The case set out in the plaint is shortly as follows:-
The suit property originally belonged to Surendra Village. Before 80 years, one Narayana Gounder was in possession of the suit property and after his death, his legal heirs Seena Gounder, Thoppala Gounder, Venkatachala Gounder partitioned the property orally and the suit property was allotted to the share of Seena Gounder. After his death, his son Kuppa Gounder was in possession and enjoyment of the suit property and after him, his legal heir the Plaintiff/1st Respondent is in possession of the same. The suit property is comprised in Old S.No.19/A (Paimash 609) measuring an extent of 100 cents and the suit property was reclassified as grama natham in RS.No.331/1. Since, the suit property is a grama natham, there was no tax assessment after its reclassification as Natham. and the predecessors of the Plaintiff were in possession and enjoyment of suit property by way of Kaichathu. In the said oral partition, sons of the Narayana Gounder took 33 cents each and thus Seena Gounder took 33 cents and his legal heirs Subbarayan, Kuppa Gounder, Mottaya Gounder orally partitioned the said suit property and took 11 cents each and and after the death of Kuppa Gounder, the Plaintiff has been in possession and enjoyment of the suit property and he is using the same for storing hay-rick and for tethering cattle. The Defendants have no right in the suit property and on 1.1.2001, the Defendants attempted to trespass into the suit property and hence, the suit has been filed.
2. The case of the Defendants as set out in the Written Statement is as follows:-
Kesava Gounder the father of the Defendants got the suit property in a oral parition in the year 1950 from Kuppa Gounder, the father of the Plaintiff and after the death of Kesava Gounder in the year 1970, the Defendants partitioned the suit property orally and they have been using the same for storing hayrick and tethering cattle. In the year, the Plaintiff wanted the suit property for sale in their favour, to which the Defendants refused. Since the daughter of the 4th Defendant was given in marriage to the elder son of the Plaintiff, the Plaintiff and the 4th Defendant colluded together and filed the suit and the suit is bad for non-joinder of necessary parties namely Sivakumar, the brothers son of the Plaintiff and legal heirs of Thoppala Gounder, Venkatachala Gounder, Mottaya Gounder and Subburaya Gounder and it is not correct to say that they trespassed into the suit property on 1.1.2001 as alleged by the Plaintiff and the suit is liable to dismissed.
3. Before the Trial Court, Ex.A1 to A3 were marked on the side of the Plaintiff and the Plaintiff examined himself as PW.1 and one Govindasamy, Rajamanickam, Perumal as Pws.2 to 4. On behalf of the Defendants, Ex.B1 to B4 were marked and the 1st Defendant was examined as DW.1 and one Govindasamy was examined as DW.2.
4. On consideration of the oral as well as the documentary evidence, the Trial Court dismissed the suit. The appeal filed as against the Judgement and Decree of the Trial Court by the Plaintiff was allowed by the first appellate court setting aside the Judgement and Decree of Trial Court. As against the same, this Second Appeal has been filed by the Defendants 1 to 3.
5. During the pendency of this second appeal, the 1st Appellant died and his legal representatives were brought on record as the Appellants 4 to 8 herein and this Second Appeal has been entertained on the following substantial questions of law:
(a)Whether in law the lower Appellate Court was right in failing to see that when title was disputed, the suit filed for injunction without seeking declaration and paying court fee under Section 25 of the Tamil Nadu Court Fees and Suits Valuation Act was not maintainable?
(b)Whether in law the lower Appellate Court was not wrong in picking holes in the case of the Defendants instead of casting the burden on the Plaintiff to prove his case? and
(c)Whether
