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2013 Supreme(Mad) 2048
HIGH COURT OF JUDICATURE AT MADRAS
G. RAJASURIA, J.
Palaniammal
Versus
Kuppal (Died) & Others
S.A.No. 549 of 2013 & M.P.No.1 of 2013
Decided on : 19-06-2013
For The Appellant:Ma. P. Thangavel, Advocate.
For The Respondents:R1 To R5, V. Balamurugan, Advocate, R6, No Appearance.
The main legal point established in the judgment is the entitlement of a possessor to retain possession and use reasonable force to protect possession against the owner, as well as the concept of settled possession and the right of the possessor to protect his possession against the owner.
Headnote:
Injunction - Property Dispute - [Anathula Sudhakar vs. P.Buchi Reddy (dead) by L.Rs. and others, AIR 2004 SC 4609] - The court discussed the plaintiff's lawful possession of the property, the entitlement to retain possession, and the use of reasonable force to keep out a trespasser. The judgment emphasized the concept of settled possession and the right of the possessor to protect his possession against the owner.
Fact of the Case:
The plaintiff sought a decree for permanent injunction against the defendant to restrain interference with her possession of a property. The trial court decreed the suit, but the first appellate court reversed the decision and dismissed the suit. The plaintiff appealed, raising substantial questions of law regarding the property description and the evidence presented.
Finding of the Court:
The court found that the plaintiff's occupation of the property was not proven to be different from the property covered under the defendant's patta. It held that the first appellate court erred in dismissing the suit and that the documents relied on by the plaintiff were germane for the case. The court granted injunction to protect the plaintiff's possession of the hut bearing Door No.243 alone, without enuring to the benefit of the plaintiff to dispossess or disturb the defendant in the hut situated in Ex.B1.
Issues: The main issues were whether the first appellate court was justified in dismissing the original suit, and whether there was perversity or illegality in the judgment and decree of the first appellate court.
Ratio Decidendi: The court emphasized the plaintiff's lawful possession, the entitlement to retain possession, and the use of reasonable force to protect possession against the owner. It clarified that the injunction granted would not benefit the plaintiff to dispossess or disturb the defendant in the hut situated in Ex.B1.
Final Decision: The second appeal was disposed of by granting injunction to protect the possession of the plaintiff in respect of the hut bearing Door No.243 alone, without enuring to the benefit of the plaintiff to dispossess or disturb the defendant in the hut situated in Ex.B1. There was no order as to costs.
1. This second appeal is focussed by the plaintiff, inveighing the judgment and decree dated 12.12.2007 passed by the learned I Additional Subordinate Judge, Erode in A.S.No.6 of 2007 in reversing the judgment and decree dated 13.06.2005 passed by the I Additional District Munsif, Erode in O.S.No.572 of 2002.
2. The parties, for thesake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
a] The plaintiff filed the suit seeking the following reliefs:
To pass a decree in her favour for permanent injunction against the defendant: restraining the defendant and her men from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property and for costs.
(extracted as such)
setting out various averments, the gist and kernel of them would run thus:
During the year 1998, the plaintiff started occupying a Gramanatham poramboke land bearing Survey Nos.792/3 and 793/2 of Vadugapatty Village, by putting up hut, which came to be numbered as Door No.243. Whereas the defendant without having any manner of right started giving disturbance to her on various dates before the filing of the suit. Hence, she filed the suit for injunction.
b] Per contra, the defendant filed the written statement, refuting and challenging, inveighing and contradicting the averments/allegations in the plaint.
The defendant has been in possession and enjoyment of Site No.45 in Survey Nos.792/3 and 793/2 in Attavanai Anumanpalli Panchayat, Erode Districtgranted by the Government vide Ex.B1 patta dated 28.03.2002 and the defendant has been in possession and enjoyment of the same by constructing a hut bearing Door No.273. However, without any manner of right, the plaintiff filed the suit furnishing false description of the suit property so as to cause disturbance to the defendant. The alleged claim of the plaintiff cannot be upheld as the plaintiff herself in the plaint averred that she is a rank trespasser. In such a case, she is not at all entitled to any injunction.
Accordingly, she prayed for the dismissal of the suit.
c] Whereupon issues were framed by the trial court.
d] Up went the trial, during which, the plaintiff examined herself as PW1 along with P.Ws.2 and 3 and marked Exs.A1 to A13. On the side of the defendant, D.Ws.1 and 2 were examined and Exs.B1 and B2 were marked.
e] Ultimately, the trial court decreed the suit as prayed for;as against which, the defendant preferred the appeal. Whereupon, the first appellate court, reversed the judgment and decree of the trial court and dismissed the original suit.
f] Challenging and impugning the judgment and decree of the first appellate court, the plaintiff has preferred this second appeal on various grounds and also suggesting the following substantial questions of law:
a) Whether the first appellate court is erred in law in not taking into consideration or giving a specific finding on the question whether the suit property is different from the property covered under Ex.B1?
b) Whether the first appellate court is erred in law in dismissing the suit merely on the basis of patta (Ex.B1) in the absence of any other oral or documentary evidence on the side of defendant, particularly when the plaintiff has proved her possession and enjoyment of the suit property prior to and after filing of the suit by marking Ex.A1 to Ex.A13 though P.W.1 to P.W.3?
[extracted as such]
4. On perusal of the records, I thought fit to formulate the following substantial questions of law to the knowledge of both sides.
1. Whether the first appellate court was justified in dismissing the original suit of the plaintiff on the main ground that the plaintiff had not proved her occupation in respect of the property described in the schedule of the plaint and that the documents relied o
