2018 Supreme(Mad) 4504

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, R. PONGIAPPAN, JJ.
Labonar Govindasamy (Deceased) and Others – Appellants
Versus
Dhanalatchoumy @ Radjaratiname (Deceased) and Others – Respondents
S.A. No. 858 of 2001, A.S. No. 89 of 2001, W.A. No. 449 of 2001
Decided On : 21-12-2018

Headnote:

Civil Procedure Code,1908 - Section 100 - Family Courts Act - Sections 5,7(1), 10 - Specific Relief Act - Sections 41(h),42 - Suit for schedule property - Suit for permanent injunction - Suit filed by respondent/plaintiff for permanent injunction in respect of suit schedule property appellant/defendant had taken a specific defence that suit property was purchased by his brother from the money sent by appellant/defendant in name of his brother - His brother had died in year and his wife pre-deceased him - After death of said respondent/plaintiff whose original name is who is younger sister of impersonated herself as if she is wife said by changing her name as and claimed right over suit property - Though Trial Court had framed an issue as to whether respondent herein/plaintiff is no way connected with brother of appellant/defendant it was observed by Trial Court in its judgment that identity of plaintiff has to be established in accordance with law and when dispute is raised with regard to identity of plaintiff it is open to plaintiff to establish such fact in accordance with law to claim any relief - Issue with regard to identity of respondent/plaintiff was not answered - In other words finding of trial Court is that identity of plaintiff has to be established by way of separate legal proceedings - Aggrieved over same though suit was dismissed by Trial Court appellant/ respondent has filed cross-objection as stated supra - But said cross-objection was dismissed by first appellate Court - Now as against dismissal of cross-objection no appeal has been filed by appellant/defendant - However as against judgment and decree passed by first appellate Court granting injunction in favour of respondent/plaintiff above second appeal has been filed by appellant/defendant - In meanwhile since appellant/defendant had denied status of respondent/ plaintiff as wife of said in respondent/plaintiff had filed another suit in before Family Court at Pondicherry against appellant/defendant to declare that she is legally wedded wife of who is brother of defendant - Second Appeal has been filed by appellant who is defendant in suit filed by respondent in file of Principal District Munsif Pondicherry - Said suit was filed seeking for permanent injunction restraining defendant and his men from trespassing into suit property and not to put up any construction in suit schedule property - But said suit was dismissed by Principal District Munsif Pondicherry by judgment and decree - Aggrieved over same respondent herein/plaintiff had filed an appeal in before Principal District Court at Pondicherry - First appellate Court allowed appeal by reversing judgment and decree of Trial Court and granted a decree restraining appellant herein/defendant from carrying out any construction in suit schedule property or from alienating suit property in any manner - During his life time her husband used to work as Revenue Inspector at Government of Pondicherry Pondicherry - Suit property was purchased by her husband from one by virtue of a registered sale deed - From date of purchase of suit schedule property plaintiffs husband and plaintiff were enjoying property peacefully without any interruption - Water connection and electricity connection also stand in name of plaintiffs husband - Unfortunately her husband died leaving behind her as his only legal heir - In this regard she has also obtained a judgment and decree from Additional District Munsif at Pondicherry in declaring that she is legal heir of deceased - After death of her husband plaintiff applied for settlement of death emoluments due to her husband and Government of Pondicherry also paid emoluments to plaintiff - Plaintiff has been receiving pension amount from Government of Pondicherry - After death of her husband plaintiff started to reside at M.G. Road Pondicherry - Suit schedule property is a dilapidated brick built house and a vacant manai bearing Door - Now suit schedule property is in custody of her brother - While s, plaintiff came to know that defendant who is brother of her husband is trying to trespass into suit schedule property and also trying to put up a construction of a brick built house - Hence plaintiff lodged a complaint with Station House Officer at and stopped illegal act of defendant - Again defendant started foundation work in suit schedule property however same was stopped by Station House Officer at by registering a criminal case under Section 145 of Cr.P.C vide FIR against defendant - Even after filing said criminal case defendant has been threatening plaintiff to handover possession of suit property to him - Hence left with no other alternative plaintiff had filed suit in seeking for grant of permanent injunction as stated supra - Whether lower appellate Court was right in holding that defendant has not established his case more so when possession of defendant is admitted by PW-1? Whether lower appellate Court was right in going into question of title to property in absence of prayer for declaration? - Held, Examination of remedies provided and scheme of Hindu Marriage Act and of Special Marriage Act show that statute creates special rights or liabilities and provides for determination of rights relating to marriage - Acts do not lay down that all questions relating to said rights and liabilities shall be determined only by Tribunals which are constituted under said Act - Section 8(a) of Family Courts Act excludes Civil Courts jurisdiction in respect of a suit or proceeding which is between parties and filed under Hindu Marriage Act or Special Marriage Act where suit is to annul or dissolve a marriage or is for restitution of conjugal rights or judicial separation - It does not purport to bar jurisdiction of Civil Court if a suit is filed under Section 34 of Specific Relief Act for a declaration as to legal character of an alleged marriage - Also as was pointed out an exclusion of jurisdiction of civil courts is not readily inferred - Given line of judgments referred to by High Courts and given fact that a suit for declaration as to legal character which includes matrimonial status of parties to a marriage when it comes to a marriage which allegedly has never taken place either de jure or de facto it is clear that civil courts jurisdiction to determine aforesaid legal character is not barred either expressly or impliedly by any law - Above would indicate that dispute between parties is purely a civil dispute and has no bearing on any dispute within a family which needs to be resolved by a special procedure as provided under Act - No issue with regard to institution of marriage and need to preserve same also arises in present case - That apart dispute between parties can only be resolved on basis of evidence to be tendered by parties admissibility of which has to be adjudged within four corners of provisions of Evidence Act - In such a proceeding it would be clearly wrong to deprive parties of benefit of services of counsel - Taking into account all that has been said above Court are of view that High Court was not correct in holding suit filed by appellant-plaintiffs to be not maintainable in law - Accordingly Court set aside order of High Court passed in and remand matter to High Court for a decision on merits of second appeal filed by defendants - Court are of opinion that mere filing of a birth certificate and pleading that it is birth certificate of plaintiff, is not sufficient and defendant has to relate document to plaintiff - Defendant has failed to do so - Though it is claimed by defendant that who is wife of said died in year and thereafter plaintiff who is impersonated herself as defendant has not produced any death certificate of said - Defendant has also failed to examine any independent witness who can corroborate same - Failure on part of defendant to prove death of said is fatal to case of defendant - Further it is admitted case that after demise of said plaintiff has been receiving pension benefits from Government - Defendant is also well aware of fact that his brother was in a Government service but he failed to raise any claim to same on time as he was well aware that his wife plaintiff is very much alive - Inaction on part of defendant to claim any death-cum-retirement benefits of deceased would go to prove his awareness of his non-existent claim - In Court opinion nature of possession in such cases which may entitle a trespasser to exercise right of private defence of property and person should contain following attributes That trespasser must be in actual possession of property over a sufficiently long period - That possession must be to knowledge either express or implied of owner or without any attempt at concealment and which contains an element of animus possendie - Nature of possession of trespasser would however be a matter to be decided on facts and circumstances of each cases - Process of dispossession of true owner by trespasser must be complete and final and must be acquiesced in by true owner - That one of usual tests to determine quality of settled possession in case of culturable land would be whether or not trespasser after having taken possession had grown any crop - Appeal Suit Dismissed - Second Appeal Dismissed