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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. PONGIAPPAN, J.
Thiyagarajan - Appellant
Versus
Vairavasundaram - Respondent
S.A. (MD) No. 170 of 2009 & M.P. (MD) No. 1 of 2009
Decided On : 15-03-2019
Civil Procedure Code,1908 - Order 41 - Rule 31 - Section 100 - Suit for permanent injunction – Suit for peaceful possession and enjoyment - sale deed - Plaintiff purchased suit property under sale deed - After purchase by using bore well he cultivated said land and raised banana crops - In earlier suit schedule property stands in name of husband of one - After demise of her husband said sold out property to plaintiff and ever since from date of purchase plaintiff is in possession and enjoyment of suit property - In revenue records also mutation was effected in favour of plaintiff - Therefore defendant is not having any right in enjoying suit property by saying that he is power agent of one who is resident of Malaysia - As defendant unlawfully entered into suit schedule property suit has been filed seeking for relief of permanent injunction restraining defendant from interfering with peaceful possession of suit schedule property by plaintiff - Averments made in written statement in brief are as follows vendor of plaintiff namely was not having any right and title over suit schedule property - In earlier survey number of suit property was and further same was having an extent of acre cents - Said survey number has now been changed by assigning a new survey number as - In fact suit schedule property originally belonged to one son of - One purchased suit property from after which he was in enjoyment of said property and as he was living in Malaysia he appointed one as a power agent for maintaining suit schedule property - One husband of by using said situation changed patta in his name in year - However after demise of his only son namely has been enjoying suit schedule property and he also changed patta in his name - In said circumstances said appointed defendant as power agent - Thereafter only defendant is doing agricultural wok in suit schedule property - When plaintiff claims to be owner of suit schedule property he has to file suit for declaration of title - But without asking prayer of declaration plaintiff filed suit for bare injunction - Therefore suit is not maintainable and same has to be dismissed - Whether patta is a document of title? Whether Subordinate Judge is correct in reversing findings of Trial Court even without framing any mandatory issues required under Order 41 Rule 31 C.P.C.? - Held, Where plaintiff is in possession but his title to property is in dispute or under cloud or where defendant asserts title and there is also threat of dispossession plaintiff must sue for declaration of title and consequential injunction - Where title of plaintiff is under cloud or in dispute and he is not in possession or not able to establish possession necessarily plaintiff will have to file Suit for declaration possession and injunction - A cloud is said to raise over a persons title when there is some defect in his title to property or when some prima facie right of third party over it is made out or shown - Applying said principle as rightly pointed out by counsel for defendant/appellant it is necessary for plaintiff to prove his title by filing a suit seeking for relief of declaration of title - In fact in written statement filed by defendant he denied tile of plaintiff - Even after knowing same plaintiff has not taken any steps to amend plaint - It is case of plaintiff that after purchase of suit property plaintiff made improvements in suit land by putting up PVC pipe line for purpose of doing agricultural work which shows that he is in settled possession of property - In this aspect it is to be noted that during trial trial Court appointed an Advocate Commissioner to inspect suit property and Commissioner had also filed his report - In this connection report filed by Advocate Commissioner shows that pipe line found in suit land was connected with bore well which situates in land of defendant and therefore plaintiff cannot claim that he made improvements in suit schedule property by digging up bore well and putting up PVC pipe - Even though trial Court has not framed a specific issue in this regard said fact creates a doubt over plaintiffs possession - Light of above said discussion substantial questions of law are decided in favour of appellant - Second Appeal Allowed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of C.P.C. against the Judgment and Decree dated 19.08.2008 in A.S.No.47 of 2008 on the file of the learned Subordinate Judge, Pudukottai, reversing the Judgment and Decree dated 14.11.2007 in O.S.No.5 of 2006 on the file of the Principal District Munsif, Pudukottai.)
1. The appellant in this appeal is the defendant in O.S.No.5 of 2006 on the file of the Principal District Munsif, Pudukottai and respondent in A.S.No.47 of 2008 on the file of the learned Subordinate Judge, Pudukottai.
2. The respondent herein filed a suit in O.S.No.5 of 2006 on the file of Principal District Munsif, Pudukottai, seeking for the relief of permanent injunction restraining the defendant and his men from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. The learned Principal District Munsif, Pudukottai, by Judgment and Decree dated 14.11.2007, had dismissed the suit with costs.
3. Aggrieved over the same, the plaintiff/respondent herein filed an appeal before the learned Subordinate Judge, Pudukottai in A.S.No.47 of 2008. The learned Subordinate Judge, Pudukottai, by Judgment and Decree dated 19.08.2008, had allowed the appeal with costs and decreed the suit as prayed for.
4. Feeling aggrieved by the same, the defendant filed the present second appeal.
5. For the sake of convenience, the parties are referred to as described before the trial Court.
6. The averments made in the plaint, in brief, are as follows:
The plaintiff purchased the suit property under sale deed dated 17.12.2004. After the purchase, by using the bore well, he cultivated the said land and raised banana crops. In earlier, the suit schedule property stands in the name of the husband of one Maragatham. After the demise of her husband, the said Maragatham sold out the property to the plaintiff, and ever since from the date of purchase, the plaintiff is in possession and enjoyment of the suit property. In the revenue records also, mutation was effected in favour of the plaintiff. Therefore, the defendant is not having any right in enjoying the suit property, by saying that he is the power agent of one Vasudevan, who is the resident of Malaysia. As the defendant unlawfully entered into the suit schedule property, the suit has been filed seeking for the relief of permanent injunction restraining the defendant from interfering with the peaceful possession of the suit schedule property by the plaintiff.
7. The averments made in the written statement in brief are as follows: The vendor of the plaintiff, namely, Maragatham was not having any right and title over the suit schedule property. In earlier, the survey number of the suit property was 20/4A and further, the same was having an extent of 1 acre 15 cents. The said survey number has now been changed by assigning a new survey number as S.F.No.20/16. In fact, the suit schedule property originally belonged to one Venkatachalam Chettiar, son of Velayutham Chettiar. One Natesan Servai, S/o.Ramasamy Servai, purchased the suit property from Venkatachalam Chettiar, after which, he was in enjoyment of the said property and as he was living in Malaysia, he appointed one Ramasamy as a power agent for maintaining the suit schedule property. One Subbiah, the husband of Maragatham, by using the said situation, changed the patta in his name in the year 1984-1985. However, after the demise of Natesan Servai on 25.04.1993, his only son, namely, Vasudevan has been enjoying the suit schedule property and he also changed the patta in his name. In the said circumstances, on 16.08.2005, the said Vasudevan appointed the defendant as power agent. Thereafter only, the defendant is doing agricultural wok in the suit schedule property. When the plaintiff claims to be the owner of the suit schedule property, he has to file the suit for declaration of title. But, without asking the prayer of declaration, the plaintiff filed the suit for bare injunction. Therefore, the suit
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