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2015 Supreme(Mad) 2629
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.R.SHIVAKUMAR, J.
M.P.Natesan – Appellant
Vs.
Palanisamy – Respondent
Second Appeal No.28 of 2008
Decided On : 10.08.2015
Advocate Appeared:
For Appellants : Mr. M.V.Karunakaran
For Respondent: Mr. Sundaravadanam for Mr. V.Bharathidasan
Headnote:
Civil Laws – Injunction – Defendants in the original suit are the appellants in the second appeal – The plaintiff in the original suit is the respondent in the second appeal – For the sake of convenience, the parties are referred to in accordance with their rankings in the suit – Plaintiff filed the suit, O.S. on the file of the learned Principal District Munsif, Namakkal for a bare injunction in respect of the suit property, which was a poramboke land assigned to him under a D-card by the State Government in recognition of his services in the Army. – Contending that the defendants wanted the plaintiff to sell the suit property for a paltry sum which was not conceded by the plaintiff, he filed the above suit for permanent injunction against them not to cause disturbance to the peaceful possession and enjoyment of the plaintiff in respect of the suit property. – Held, Trial Judge came to the conclusion that the plaintiff was able to prove his possession and enjoyment of the suit property by preponderance of probabilities, whereas the defendants failed in their attempt to prove their contention that the suit property was in their possession. – On appeal, the lower appellate Court, on re-appreciation of evidence, concurred with the said findings of the learned trial Judge. – The question of possession being a question of fact, the concurrent findings of the Courts below cannot be interfered with by the High Court, unless such findings are proved to be perverse. – Only in order to show that the findings of the Courts below, in this regard, cannot be termed perverse, the evidence adduced in this case has been discussed and the material parts have been culled out and highlighted. – It cannot be said that the findings are based on no evidence or based on inadmissible evidence. – It also cannot be said that no person of prudence can arrive at a similar conclusion based on the evidence available. – Only if the case falls in any one of the three categories stated above, the findings could be said to be perverse. – By no stretch of imagination the findings of the trial Court, which were confirmed by the lower appellate Court, can be termed perverse warranting interference by this Court in the second appeal. – Hence the consolidated question pointed out above incorporating all the substantial questions of law formulated at the time of admission of the second appeal, is answered accordingly against the appellants/defendants and in favour of the respondent/plaintiff. – There is no merit in the second appeal and the same deserves to be dismissed. – Second Appeal Dismissed
The defendants in the original suit are the appellants in the second appeal. The plaintiff in the original suit is the respondent in the second appeal. For the sake of convenience, the parties are referred to in accordance with their rankings in the suit.
2. The plaintiff filed the suit, O.S.No.613 of 1999 on the file of the learned Principal District Munsif, Namakkal for a bare injunction in respect of the suit property, which was a poramboke land assigned to him under a D-card by the State Government in recognition of his services in the Army. Contending that the defendants wanted the plaintiff to sell the suit property for a paltry sum which was not conceded by the plaintiff, he filed the above suit for permanent injunction against them not to cause disturbance to the peaceful possession and enjoyment of the plaintiff in respect of the suit property.
3. The defendants did not claim any derivative title. On the other hand, they contended that the suit property, being a poramboke land, was lying vacant and they occupied the property. It was their further contention that since Rajammal and Lakshmi were in possession of the suit property, the Revenue Divisional Officer chose to pass an order on 17.10.1988 cancelling the assignment made in favour of the plaintiff holding that he had violated the conditions of assignment; that thereafter the above said persons Rajammal and Lakshmi also left the property, as their claim for issue of patta was rejected, and that thereafter the defendants took possession of the suit property and were in possession and enjoyment of the same till the filing of the suit. In short, the contention of the defendants is two fold. Firstly, the plaintiff lost his right by virtue of the order dated 17.10.1988 cancelling the assignment made in his favour and though the said order came to be set aside in an appeal by the District Revenue Officer (Additional Collector), the same was made on a technical ground holding that the Revenue Divisional Officer did not have jurisdiction and the Additional Collector did not direct the issuance of fresh patta to the plaintiff. Secondly, as on the date of filing of the suit, the plaintiff was not in possession and enjoyment of the property, hence the suit filed by the plaintiff for bare injunction as if he was in possession and enjoyment of the suit property on the date of plaint was liable to be dismissed.
4. The learned trial Judge, after framing necessary issues, conducted a trial in which the plaintiff alone figured as the sole witness (P.W.1) on his side and produced eight documents as Exhibits A-1 to A-8. On the side of the defendants, three witnesses were examined as D.Ws.1 to 3 and twelve documents were marked as Exhibits B-1 to B-12. The report and plan submitted by the Commissioner appointed by the trial Court were marked as Exhibits C-1 and C-2. At the conclusion of trial, the learned trial Judge, on an appreciation of evidence, rendered a finding that the plaintiff was able to substantiate his case that he was in possession and enjoyment of the suit property as on the date of plaint and that the defendants were trying to interfere with his possession and enjoyment. Further holding that the defendants were not having a better title than the plaintiff, the learned trial Judge decreed the suit as prayed for and granted the decree for perpetual injunction by its judgment and decree dated 13.11.2000.
5. Aggrieved by the same, the defendants preferred an appeal on the file of the learned Subordinate Judge, Namakkal in A.S.No.207 of 2000. The learned lower appellate Judge, after hearing the appeal, concurred with the findings of the trial Court and dismissed the appeal by its judgment and decree dated 23.9.2004. It is as against the said decree of the lower appellate Court, the present second appeal came to be filed by the defendants.
6. The second appeal was admitted on 28.10.2009 formulating the following questions to be the substantial questions of law that
