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2023 Supreme(Mad) 771
HIGH COURT OF JUDICATURE AT MADRAS
V. LAKSHMINARAYANAN, J.
Muthu Gounder (deceased) & Others - Appellants
Versus
Murugaiyan @ Murugesa Naicker (died) & Others - Respondents
Second Appeal Nos. 480 & 481 of 2007
Decided On : 17-03-2023
For the Appellants:P. Satheesh Kumar, Advocate. For the Respondents:R.T.S. Kannan, R2 to R9, M/s. S. Umapathy, Advocates.
The central legal point established in the judgment is the requirement to prove possession and ownership through admissible documentary evidence, as well as the limitation on seeking injunction relief after a significant delay.
Headnote:
C.P.C. - Property Dispute - Section 100 - O.S.No.817 of 1996, O.S.No.507 of 1996 - Summary of Acts and Sections: C.P.C. Section 100 - The court discussed the interpretation and application of Section 100 of the Civil Procedure Code in the context of property disputes. The court's decision was influenced by the legal provisions regarding possession, title, and injunction, as well as the admissibility of post-suit documents as evidence.
Fact of the Case:
The plaintiff in O.S.No.507 of 1996 filed a suit for bare injunction claiming possession of the property purchased from the 2nd defendant. The plaintiff in O.S.No.817 of 1996 filed a suit for declaration of title and mandatory injunction, claiming ownership of the property and alleging encroachment by the defendant.
Finding of the Court:
The court found that the plaintiff in O.S.No.507 of 1996 failed to prove possession over the property and dismissed the suit. The court also dismissed the suit filed by the plaintiff in O.S.No.817 of 1996, holding that there was no document of title to substantiate the claim and that the relief of mandatory injunction sought after seven years was untenable.
Issues: The issues involved the possession and ownership of the disputed property, admissibility of post-suit documents as evidence, and the grant of declaration of title and mandatory injunction based on revenue records.
Ratio Decidendi: The court's decision was based on the failure to prove possession, lack of documentary evidence to substantiate the claim of ownership, and the untenable nature of the relief sought after a significant delay.
Final Decision: Second Appeal No.480 of 2007 was allowed, setting aside the judgment and decree in O.S.No.817 of 1996, while Second Appeal No.481 of 2007 was dismissed, confirming the judgment and decree in O.S.No.507 of 1996. Costs were awarded accordingly.
JUDGMENT
(Prayer in S.A.No.480 of 2007: Second Appeal under Section 100 of C.P.C., against the judgment and decree dated 09.10.2006 made in A.S.No.47 of 2000 on the file of Sub Court, Arni in confirming the judgment and decree dated 31.08.2000 made in O.S.No.817 of 1996 on the file of Principal District Munsif Court, Arni.
In S.A.No.481 of 2007: Second Appeal under Section 100 of C.P.C., against the judgment and decree dated 09.10.2006 made in A.S.No.9 of 2001 on the file of Sub Court, Arni in confirming the judgment and decree dated 31.08.2000 made in O.S.No.507 of 1996 on the file of Principal District Munsif Court, Arni.)
Common Judgment:
1. These two second appeals S.A.No.480 of 2007 and S.A.No.481 of 2007 arise out of a common judgment pronounced by both the Courts below. Hence, they are disposed of by this common judgment. The parties shall be referred as in the cause title of S.A.No.480 of 2007.
2. The first suit came to be presented by the defendant in O.S.No.507 of 1996. The said suit had been filed for a bare injunction. The claim of the plaintiff is that he had purchased the property from one Krishnan / 2nd defendant for valuable consideration on 22.06.1979. He claimed that an extent of 20 cents was left out beyond the 25 cents purchased by him. According to him, he is in possession of the said 25 cents purchased from Krishnan and the 20 cents of Poramboke land, in all 45 cents. The boundaries, according to him, given in the sale deed refers to 45 cents though what was alienated, was only 25 cents. Since he is in possession and enjoyment of the property, he moved the Court for a bare injunction restraining defendants 1 and 2 ie., his neighbour on the western side as well as his vendor, not to interfere with his peaceful possession and enjoyment of the property. The solitary survey number involved in O.S.No.507 of 1996 is Dry Survey No.123/15B. A written statement was filed in O.S.No.507 of 1996 by the plaintiff in O.S.No.817 of 1996. He claimed ownership with respect to Survey Nos.123/15A, 123/15C, 123/14B, 123/14A and 123/15D. According to him, the plaintiff in O.S.No.507 of 1996 had trespassed into the property situated at Survey No.123/14B to an extent of 18 feet X 20 feet and that in the presence of panchayatdars, the plaintiff had assured that he will hand over possession and did not do so. Instead, he has come forth with the suit for injunction.
3. As a plaintiff in O.S.No.817 of 1996, his plea was that he is the owner of Survey No.123/14B which is full of tamarind trees, neem trees etc., He concedes that the defendant is the adjacent owner in Survey No.123/15B. It is his case that seven years prior to the suit ie., sometime around 1990, the defendant had encroached upon the property to an extent of 18 X 20 feet which he showed as ''A'', ''B'', ''C'' in the plaint. According to him, the portions ''A'', ''B'' and ''C'' belongs to the plaintiff and the encroachment made by the defendant is untenable and therefore, he filed a suit for declaration of his title and for mandatory injunction. The learned trial Judge took up the suit in O.S.No.817 of 1996 as the primary suit and O.S.No.507 of 1996 as the secondary suit. The reason for doing so is because larger relief has been claimed in in O.S.No.817 of 1996 as against the bare injunction suit in O.S.No.507 of 1996.
4. The documents were marked in O.S.No.817 of 1996 and so were the ocular evidence. The plaintiff in O.S.No.817 of 1996 examined four witnesses and marked four documents. The defendant in the said suit, who is the plaintiff in O.S.No.507 of 1996 examined two witnesses in addition to himself and marked Exs.B1 to B21. Pending the suit, an advocate commissioner was appointed to visit the suit property together with a surveyor. The report of the advocate commissioner and the plan annexed thereof were marked as Exs.C1 to C3. The learned trial Judge found that the case of the appellant (plaintiff in O.S.No.507 of 1996) is a kite flying exercise and dismissed the suit.
