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2018 Supreme(Mad) 679
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Kothandapani - Appellant
Versus
Subramaniam - Respondents
S.A. No. 1183 of 2003
Decided On : 12-02-2018
For the Appellant :Srinath Sridevan, Advocate.
For the Respondent:R.J. Shyamala, Advocate.
The plaintiff must prove title and possession to maintain a suit for permanent injunction, and failure to seek a declaration of title can be fatal to the case.
Headnote:
Permanent Injunction - Tamilnadu Court Fees & Suits valuation Act,1955 - Section 27(c) - Second advocate commissioner report - Commissioner's report as evidence of possession - Principles adumbrated in 2000 (1) CTC 505 (Supreme Court)
Fact of the Case:
The plaintiff claimed ownership of a property and sought a permanent injunction against the defendant. The defendant disputed the plaintiff's title and possession of the property, particularly a pond located within the disputed area.
Finding of the Court:
The court found that the plaintiff failed to prove title and possession of the disputed property, and the suit for permanent injunction was not maintainable. The Commissioner's reports were not considered as evidence of possession, and the plaintiff's failure to seek a declaration of title was fatal to the case.
Issues: Dispute over ownership and possession of a property, validity of Commissioner's reports as evidence, maintainability of suit for permanent injunction without seeking a declaration of title.
Ratio Decidendi: The plaintiff's failure to prove title and possession, and the failure to seek a declaration of title rendered the suit for permanent injunction not maintainable. Commissioner's reports were not considered as evidence of possession.
Final Decision: The second appeal was dismissed with costs.
1. This second appeal is directed against the judgment and decree dated 21.04.2003 passed in A.S.No.3 of 2003 on the file of the Principal District Court, Nagapattinam, reversing the judgment and decree dated 28.10.2002 passed in O.S.No.375 of 1999 on the file of the District Munsif Court, Nagapattinam.
2. The parties are referred to as per the rankings in the trial court.
3. Suit for permanent injunction.
4. The case of the plaintiff in brief is that the suit property was enjoyed by the plaintiff from the days of his ancestors on “paguthi” basis under V.S.Thiyagaraja Mudaliyar and subsequently, the suit property was purchased by Ramnath Koyanga from V.S.Thiyagaraja Mudaliyar on 29.03.1960 and the plaintiff had purchased the suit property from Ramnath Koyanga during the year 1962 and prior to his purchase, it is only the plaintiff and his predecessors in interest, who had been in possession and enjoyment of the suit property under “Paguthi” arrangement and there is a small pond in the suit property and the plaintiff had been utilizing the water from the pond to irrigate the vacant portion of the suit property and the defendant had requested the plaintiff to permit him to irrigate his lands by using the water from the pond located in the suit property, which was not accepted to by the plaintiff and resultantly, developing enmity, the defendant attempted to interfere with the possession and enjoyment of the plaintiff with reference to the suit property and hence the suit for appropriate reliefs.
5. The case of the defendant in brief is that the suit is not maintainable either in law or on facts. It is true that the suit property and other extent of large properties were owned by V.S.Thiyagaraja Mudaliyar and accordingly, V.S.Thiyagaraja Mudaliyar had alienated the properties to various persons and accordingly the defendant's father Chidambaram acquired an extent of 3 acres and 53 cents from V.S.Thiyagaraja Mudaliyar on 31.01.1960 and in the said document, the extent of 50 cents in survey number 449 is shown as the second item and the defendant had purchased an extent of 50 cents situated in survey number 449 lying to the east of 50 cents of land purchased by his father from one Jaganathan on 20.01.1997 and accordingly, the defendant has been residing in the property acquired by him as above stated and the pond is situated in the property belonging to the defendant and the land of the plaintiff is situated to the south-west of the defendant's lands and the pond is not located in the plaintiff's land and the plaintiff had not utilized the water from the pond to irrigate his lands and taking advantage of the ex-parte injunction order, the plaintiff had put up fencing around the pond and the same could be evidenced by the inspection of the properties of the parties concerned by a Commission and the plaintiff's sale deed is subsequent to the purchase of the property by the defendant's father and the case of the plaintiff that the defendant had requested to utilize the water from the pond to irrigate his lands and that the same had been refused is false. The plaintiff has no title to the suit property and hence the suit is liable to be dismissed.
6. In support of the plaintiff's case, P.Ws.1 to 3 were examined. Exs.A1 to A11 were marked. On the side of the defendant, D.W.1 was examined. No document was marked. Exs.C1 to C4 were also marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to decree the suit as prayed for. On appeal, the first appellate court, on an appreciation of the materials placed, set aside the judgment and decree of the trial court and by way of allowing the appeal preferred by the defendant, dismissed the suit laid by the plaintiff. Impugning the same, the present second appeal has been preferred.
8. At the time of admission of the second appeal the following substantial questions of law were formulated for cons
