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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. VELMURUGAN, J.
Radhakrishnan (died) & Others – Appellants
Versus
Kaliamurthy & Another – Respondents
S.A. No. 1754 of 2003
Decided On : 07-07-2023
Possession - Civil Procedure Code - Section 100 - The appellant filed a suit for bare injunction against the respondents, claiming to be the absolute owner of the suit property. The first appellate Court set aside the judgment and decree passed by the trial Court, stating that the appellant failed to establish his possession of the suit property. The second appeal was filed under Section 100 of the Civil Procedure Code. The substantial question of law was whether the appellate Court's decree and judgment were correct in the absence of evidence to prove the appellant's case. The appellant contended that he was in possession and enjoyment of the suit property, while the respondents claimed adverse possession and family arrangement. The trial Court granted a decree in favor of the appellant, but the first appellate Court re-appreciated the evidence and set aside the decree, concluding that the appellant failed to establish his possession of the suit property. The High Court found no substantial question of law and dismissed the second appeal.
Fact of the Case:
The appellant filed a suit for bare injunction, claiming to be the absolute owner of the suit property and in possession since the date of purchase. The respondents claimed adverse possession and family arrangement, denying the appellant's possession of the property.
Finding of the Court:
The first appellate Court re-appreciated the evidence and set aside the trial Court's decree, concluding that the appellant failed to establish his possession of the suit property. The High Court found no substantial question of law and dismissed the second appeal.
Issues: The main issues were whether the appellant was in possession of the suit property, whether the respondents had acquired right and title through adverse possession, and whether the suit for bare injunction was maintainable.
Ratio Decidendi: The appellant failed to establish his possession of the suit property, and the first appellate Court, as a fact-finding authority, re-appreciated the evidence independently and set aside the trial Court's decree. The plaintiff has to prove his case on his own strength, and in this case, the appellant did not establish his possession of the suit property.
Final Decision: The High Court found no substantial question of law and dismissed the second appeal, upholding the first appellate Court's decision to set aside the trial Court's decree.
JUDGMENT
(Prayer: The Second Appeal is filed under Section 100 of the Civil Procedure Code, against the decree and judgment passed by the Additional Sessions Judge cum Chief Judicial Magistrate, Tanjore at Kumbakonam in A.S.No.41 of 2002 on 05.12.2002 reversing the judgment and decree passed by the Additional District Munsif Judge at Kumbakonam in O.S.No.714 of 1994, dated 05.07.2001.)
1. The appellant herein has filed a suit in O.S.No.714 of 1994 on the file of the Additional District Munsif Court, Tanjore at Kumbakonam against the respondents herein for bare injunction.
2. The said suit was decreed by the trial Court against the respondents herein. The defendants in the said suit filed an appeal in A.S.No.41 of 2002 on the file of Additional District Sessions cum Judicial Magistrate, Tanjore at Kumbakonam. The first appellate Court, after hearing the appeal, has allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit filed by the plaintiff. Against the said judgment and decree passed by the first appellate Court, the plaintiff has filed the present second appeal before this Court.
3. While admitting the second appeal, this Court has formulated the following substantial question of law: In the absence of evidence to prove the case of appellant before the lower appellate Court, whether the appellate Court decree and judgment is correct?
4. The brief facts of the case of the appellant/plaintiff are as follows: The appellant has purchased the suit property under registered sale deed dated 06.02.1979 for a valid consideration and he was put in possession of the suit property. Therefore, the plaintiff is the absolute owner of the suit property. From the date of purchase till the filing of the suit, the appellant was in possession and enjoyment of the suit property as absolute owner. He enjoyed the suit property by paying kist. The first item of the suit property lies on the south of the ancestral house owned by the appellant''s father and the second item of the property lies on the western side of the house owned by the father of the appellant. The respondents, who are the husband and wife, are residing in a portion of the ancestral house owned by the father and in the rest of the house, the mother of the appellant and the sisters were residing. The appellant is permanently residing at Chennai and the suit property was lying as a vacant land. The first respondent is the brother of the appellant. The respondents have no right and interest over the suit property. When the appellant came to the suit property from Chennai on 19.11.1994, the respondents made a request to the appellant to permit them to construct a house in the suit property, since the present occupation in the ancestral house was not convenient for their accommodation. The appellant has refused to give permission to put up a construction in the suit property. The respondents have threatened the appellant on 20.11.1994, that they are going to construct a house. Therefore, the plaintiff has filed the suit for bare injunction restraining the respondents, their men, agents, legal representatives and others claiming right in any manner interfering with the appellant''s peaceful possession and enjoyment of the suit property.
5. The brief facts of the written statement filed by the first respondent are as follows: Though the appellant has purchased the suit property under registered sale deed dated 06.02.1979, for valid consideration and he was in possession and enjoyment of the suit property, however, under a family arrangement between the appellant and the first respondent, the first respondent was enjoying the suit property as absolute owner. The patta was also issued in respect of the suit property to the first respondent. He paid the tax and other Government dues and he has also obtained electricity connection and put up a construction and enjoying the suit property and the first respondent is in possession and enjoyment of the
The plaintiff has to prove his case on his own strength, and in this case, the appellant failed to establish his possession of the suit property, leading to the dismissal of the second appeal.
Suit of the plaintiff for bare injunction is not maintainable and the First Appellate Court could not have decreed the suit of the plaintiff, when the defendants apart from denying the title and poss....
Possession must be assessed by the court based on evidence, not merely on the findings of an Advocate Commissioner.
Revenue records do not confer title or prove possession against commissioner report and admissions showing physical division by road and fencing; injunction suit maintainable on possession without de....
A suit for permanent injunction requires proof of possession; if title is disputed, a declaratory suit is necessary, and failure to include necessary parties renders the suit untenable.
In a suit for bare injunction, the plaintiff bears the burden of proving actual possession of the specific suit survey number; reliance on ambiguous tax receipts that do not reference the contested l....
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