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2021 Supreme(Mad) 1036
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. Asha, J.
E. Venkatesan Represented by his Power of Attorney E. Kalaimani - Appellant
Versus
VGP Investments, A Registered Partnership Firm. Represented by its Partner V.G. Santhosham – Respondent
S.A.No.1418 of 2011 and CMP.Nos.5420 and 6472 of 2021
Decided On : 13-05-2021
Advocate Appeared:
For the Appellant : Mr. N. Manoharan
For the Respondent: Mr. Suresh
Headnote:
Civil Procedure Code, 1908 - Section 100 - Injunction restraining defendant from interfering in any portion of the suit property - Exclusive possession and enjoyment of plaintiff - Registered sale deed - Whether the plaintiff has got a valid title over suit property - Whether suit is bad for non joinder of parties - Whether the Power of Attorney enforceable - Whether the plaintiff is entitled for reliefs as prayed for - Whether defendant got availed a genuine right over the suit property - Whether findings in favour of defendant rendered by both fora below were not surprised by any ancient/old revenue records and documents - Whether findings given by the courts below in giving a finding against plaintiff or reading of oral and documentary evidence on the side of defendant - Case of plaintiff is that suit property was owned by his vendor of had executed a power of attorney in favour of son of S. had sold the property to plaintiff under a registered sale deed power of attorney of one Raji - plaintiff would further submit he and his predecessor-in-title were in open, continuous and uninterrupted possession of suit property - While defendant attempted to encroach into suit property and form a road, which was successfully thwarted by plaintiff - Defendant firm is very powerful, the plaintiff apprehends that they would somehow enter into the suit property - Alleged trespass It was their case that suit survey number was originally part 2 - Measuring a total extent of 2.52 acres - These lands belonged to one Kesava Ramanuja Reddiar, who had sold property sale deed said had sold the property to under a sale deed U.D.R was issued in the name of Chinnammal and her two sons Gopu and. Since the plaintiff's vendor Raju was attempting to trespass into the property, and her two sons had filed - Raju from interfering with their peaceful possession and enjoyment of the property - Court had also granted an interim order and the said suit is still pending – Held, High Court should be satisfied that case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of case will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue - Substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but Court below has decided the matter, either ignoring or acting contrary to such legal principle second type of cases, substantial question of law arises not because the law is still debatable, but because the decision rendered 5 AIR 1963 SC 302 on a material question, violates settled position of law - High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule - Some of well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence - decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case evidence, taken as a whole, is not reasonably capable of supporting the finding - Appreciated by both courts below. As already submitted, the suit in question is a suit for bare injunction, in which plaintiff is bound to prove possession in the instant case has not been established. The Substantial Questions of Law are answered against the plaintiff - Second Appeal is dismissed
JUDGMENT :
The unsuccessful plaintiff before the courts below is the appellant before this Court. The relief in the suit, which is the subject matter of this appeal, is for an injunction restraining the defendant from interfering in any portion of the suit property which is in the exclusive possession and enjoyment of the plaintiff. The suit property measures 1.06 acres and is situate in Sriperumbudur Village comprised in S.No.1626/1I2 – measuring 31 cents, S.No.1626/1I4 – measuring 41 cents and S.No.1626/1I5 – measuring 34 cents. The parties are referred in their same rank as in the suit.
2. Plaintiff's Case:
2.1. The case of the plaintiff is that the suit property was owned by his vendor Mr. C. Raji, son of Chinnaswamy. The said Raji had executed a power of attorney in favour of one E.Kalaimani son of S. Elumalai. The said Kalaimani had sold the property to the plaintiff under a registered sale deed dated 08.09.1997, as the power of attorney of one Raji.
2.2. The plaintiff would further submit that he and his predecessor-in-title were in open, continuous and uninterrupted possession of the suit property. While so, on 15.09.1997, the defendant attempted to encroach into the suit property and form a road, which was successfully thwarted by the plaintiff. As the defendant firm is very powerful, the plaintiff apprehends that they would somehow enter into the suit property. Hence the suit.
3. Written statement of the defendant:
3.1. The defendant had filed the written statement initially denying the sale in favour of the plaintiff and that the property belonged to Raju. They also denied the alleged trespass on 15.09.1997. It was their case that the suit survey number was originally part of S.No.1626/2 - measuring a total extent of 2.52 acres. These lands belonged to one Kesava Ramanuja Reddiar, who had sold the property to one Balakrishna Chowdary, under a sale deed dated 17.05.1958. Thereafter, the said Balakrishna Chowdary had sold the property to Chinnammal under a sale deed dated 06.02.1967. The U.D.R patta was issued in the name of Chinnammal and her two sons Gopu and Nithyanandam. Since the plaintiff's vendor Raju was attempting to trespass into the property, Chinnammal and her two sons had filed O.S.No.502 of 1992. They had also taken out an interlocutory application in I.A.No.953/92, restraining the said Raju from interfering with their peaceful possession and enjoyment of the property. This Court had also granted an interim order and the said suit is still pending, consequently the interim order as well.
3.2. On 19.12.1990, Chinnammal had executed a Power of Attorney in favour of the defendant and put them in possession of the property. During the pendency of the suit O.S.No.502 of 1992, and the subsistence of the injunction order, Raju had clandestinely obtained mutation of the revenue records in his favour by an order dated 12.05.1994. This order came to be passed without notice to the owner of the property. On the basis of this patta, the said Raju had executed a Power of Attorney in favour of one R.Vijayaraghavan. Thereafter, Chinnammal and her two sons filed O.S.No.40 of 1995 for a declaration of their title to the suit property and the same is pending. Thereafter, the defendant had filed an additional written statement in which they would contend that the suit properties are the ancestral properties of one Gowri Pandi alias Solai Bandiappan and the patta number allotted in respect of the property was patta No.161. On 14.11.1991, Gowri Pandi and his children had executed a Power of Attorney in favour of V.G. Rajidoss, V.G.P. Rajadoss and V.G.P. Babu Doss, in respect of item Nos.1 and 3 of the suit property and on 16.10.1992, they had executed a Power of Attorney in respect of item No.2. The defendant would submit that the suit properties have been plotted out and the adjacent property had been sold out to persons who have not been made party to the suit. They therefore sought to have the suit dismissed.
4. Rejoinder:
4.1. Th
