Chembian Selvan v. Rathinakumar & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 12-08-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENS.A.No.1016 of 19941.Chembian Selvan (Died)2.Pakkirisami Thevar3.Kaliyaperumal4.Jayarama Vambuliyar5.Nataraja Thevar6.Mahalinga Nattar7.Pichai8.Usharani9.Idhaya10.Minor Imayavaramban11.Rajam.. Appellants.(Appellants 8 to 11 are brought on record as LRs of the deceased, 1st appellant, vide order of Court,dated 11.6.2008, made in C.M.P.Nos.10304/06 in S.A.No.1016 of 1994.Versus1.Rathinakumar2.Govindarajan.. Respondents.Prayer: Appeal against the judgment and decree, dated 11.11.1993, andmade in A.S.No.21 of 1992, on the file of District Court,Nagapattinam, confirming the judgment and decree, dated 9.1.1992 andmade in O.S.No.71 of 1991, on the file of the District Munsif Court,Nannilam.For Appellants : Mr.T.GowthamanFor Respondents : Mrs.R.T.Shyamala (R2)JUDGMENTThis second appeal has been filed against the judgment anddecree, dated 11.11.1993, made in A.S.No.21 of 1992, on the file ofthe District Court, Nagapattinam, confirming the judgment and decree,dated 9.1.1992, made in O.S.No.71 of 1991, on the file of theDistrict Munsif Court, Nannilam.2. The appellants in the present second appeal were thedefendants in the suit, in O.S.No.71 of 1991. The plaintiffs in thesuit who are the respondents herein, had filed the original suit, inO.S.No.71 of 1991, on the file of the District Munsif Court, https://hcservices.ecourts.gov.in/hcservices/ Nannilam, praying for a decree of permanent injunction against thedefendants in the suit, restraining them from interfering with thepeaceful possession of the plaintiffs in the suit scheduleproperties. 3. The second plaintiff is the son of the first plaintiff. Theyare living together as a joint family. The joint family was owning 7acres of lands and the plaintiffs were in possession and enjoyment ofthe suit schedule properties. The plaintiffs were cultivatingsugarcane crop in the properties. The plaintiffs had entered into anagreement with Arooran sugar mill situated in the area for supplyingsugarcane, for the year 1990-1991. Arooran sugar mill had enteredinto the agreement only after making necessary enquiries and afterverifying the records relating to the possession of the property,which was said to be in the possession of the plaintiffs. Based onthe agreement, the sugar mill concerned had been supplying thenecessary ingredients for the cultivation of sugarcane. No otherperson has any right in respect of the sugarcane crop cultivated bythe plaintiffs. When the sugarcane crop was ready for harvesting, thedefendants in the suit had attempted to disturb the plaintiffs'peaceful possession of the suit properties. Therefore, a policecomplaint had been lodged by the plaintiffs in Kodavasal PoliceStation. In such circumstances, the plaintiffs had filed the suit inO.S.No.71 of 1991, on the file of the District Munsif Court, Nannilam.4. In the written statement filed on behalf of the seconddefendant which has been adopted by defendants No.1, 4 and 6, it hasbeen stated that the plaintiffs had given wrong particulars in theplaint. S.F.No.23/1 is not in the possession and enjoyment of theplaintiffs. The said land belongs to the villagers, as a commonproperty. The defendants are villagers belonging to Arivizhi MangalaVillage. The community properties are administered by the elders ofthe village, designated as `Nattanmaikarargal'. The defendants arealso part of the group of 'Nattanmaikarargal' of the village. Theplaintiffs have not stated as to who is the owner of 1 acre and 70cents, in S.F.No.23/1. It has also not been stated as to how theplaintiffs had obtained possession of the suit properties and as towhat is their right to claim the relief of injunction in respect ofthe suit properties. The plaintiffs had stated that the propertiesin issue is a joint family property. The defendants are stoutlydenying the claim of the plaintiffs that the suit properties arejoint family properties and that the plaintiffs are in peacefulpossession and occupation of the said properties. 5. It has been further stated that, along with the suit scheduleproperties, certain other properties are also belonging to thevillage community. Even though some of the lands are in thepossession of various persons, the suit schedule properties of 1acre and 70 cents, in S.F.No.23/1, is in the possession of thevillage community. The income obtained from the properties is spenton the maintenance of the temples in the village. From the leaseagreement filed by the plaintiffs it is seen that the properties arein the name of one P.K.Subramaniam. In fact, P.K.Subramaniam is notthe absolute owner of the property in S.F.No.23/1. Further, he does https://hcservices.ecourts.gov.in/hcservices/ not have the power or the authority to grant lease in respect of theland in question. The claim of the plaintiffs that they arecultivating the suit properties cannot be accepted. In fact, no othercrop can be cultivated in the suit properties, except paddy. Theincome which is derived from the leasing out of the land in questionis spent on the village community. As such, the first defendant hadgiven the land to the first plaintiff, for one year, for the purposeof cultivation. The first plaintiff had cultivated sugarcane crop inthe suit schedule properties, without the knowledge of the firstdefendant. The land is given on lease to the members of the villagecommunity, for the purpose of cultivation, on turn basis. Even thoughthe granting of the lease of the land to the first plaintiff, by thefirst defendant, is not in accordance with law, the first plaintiffought to have vacated the property on the expiry of the one yearlease period. Even otherwise, the defendants are not attempting tointerfere with the plaintiffs' peaceful possession and enjoyment ofthe suit properties. Unless the plaintiffs are in a position to showthat they are entitled to the possession and occupation of the suitproperties, the reliefs prayed for by them cannot be granted. 6. The written statement filed on behalf of the fifth defendanthad been adopted by the third and seventh defendants. It has beenstated that the plaintiffs are liable to prove that the suitproperties are joint family properties, as claimed by them. The claimof the plaintiffs that they are in possession and occupation of thesuit properties is denied. It has been further stated that the suitproperties belong to the village community and that it is given tovarious persons, who are performing various duties for the villagecommunity. The suit properties have not been given on lease to theplaintiffs, at any point of time. Therefore, the claim of theplaintiffs that they are in peaceful possession and occupation of thesuit properties cannot be accepted.7. On the basis of the averments made on behalf of theplaintiffs and the defendants in the suit in O.S.No.71 of 1991, thetrial Court had framed the following issues for consideration: "i) Whether the plaintiffs are entitled to therelief of permanent injunction, as prayed for by them?ii) Whether the description of the property inthe plaint is correct?iii) Whether the first item of the suitproperties was not in the possession of the plaintiffson the date of the suit?iv) What other reliefs the plaintiffs areentitled to?"8. There were five witnesses examined on behalf of theplaintiffs and 84 documents had been marked as exhibits. On behalf ofthe defendants six witnesses had been examined. However, no documenthad been marked, on their behalf. 9. The trial Court had found that even though seven items ofproperties were involved in the suit, the defendants had contestedonly with regard to the first item of the suit property. During the https://hcservices.ecourts.gov.in/hcservices/ trial the defendants had adduced evidence showing that the first itemof the suit properties was in the possession of the plaintiffs undera lease and that the plaintiffs were cultivating tenants. Even thoughit had been claimed by the first plaintiff that the suit propertiesbelong to Siva temple the second plaintiff had admitted that thefirst item of the suit property belongs to the village community.However, in the written statement filed on behalf of the defendantsit had been stated that the first item of the suit property had beengiven to the first plaintiff by the first defendant for thecultivation of the crops. The income derived from the lease was beingspent on the temples in the village concerned. Further, the trialCourt, based on the documentary evidence available, had come to theconclusion that the first item of the suit properties was in thepossession of the first plaintiff. No such evidence was madeavailable by the defendants before the trial Court to substantiatetheir claims that the suit properties were not in the possession ofthe plaintiffs. In such circumstances, the trial Court, afteranalysing the evidence on record, had come to the conclusion that theplaintiffs were in possession of the suit properties at the time ofthe filing of the suit. Therefore, the suit had been decreed by thetrial Court, in its judgment and decree, dated 9.1.1992, made inO.S.No.71 of 1991.10. Being aggrieved by the judgment and decree of the trialCourt, made in O.S.No.71 of 1991, the defendants had filed an appealin A.S.No.21 of 1992, on the file of the District Court,Nagapattinam. The First Appellate Court by its judgment and decree,dated 11.11.1993, made in A.S.No.21 of 1992, while confirming thejudgment and decree of the trial Court, made in O.S.No.71 of 1991,had framed the following points for consideration:"i) Whether the plaintiffs are entitled to therelief of permanent injunction, as prayed for by them?ii) Whether the description of the property inthe plaint is correct?Iii) Whether the first item of the suitproperties was not in the possession of the plaintiffson the date of the suit?iv) What other reliefs the plaintiffs areentitled to?"11. On analysing the contentions raised on behalf of theappellants, as well as the respondents in the first appeal, the FirstAppellate Court had come to the conclusion that the suit properties,especially, the first item of the suit properties was in thepossession of the first plaintiff. Taking into consideration thedocumentary evidence available, including the lease agreement, markedas Ex.A-1, dated 14.4.1990, entered into between the plaintiffs andArooran Sugar Mill, the First Appellate Court had come to theconclusion that the possession of the property is with theplaintiffs. From the document marked as Ex.A-2, it was found that thefirst plaintiff was given the lease of the first item of the suitproperty. From the other documentary evidence available the claim ofthe defendants that the property concerned was given on lease to thefirst plaintiff, only for a year, and that the possession of the https://hcservices.ecourts.gov.in/hcservices/ properties was taken back by the defendants could not be established.In such circumstances, the First Appellate Court had also found thatthe defendants had not substantiated their claims by sufficientevidence. In such circumstances, the First Appellate Court hadconfirmed the judgment and decree of the trial Court, dated 9.1.1992,made in O.S.No.71 of 1991, on the file of the District Munsif Court,Nannilam.12. Aggrieved by the concurrent findings of the courts below,the defendants in the suit O.S.No.71 of 1991, had filed the presentsecond appeal. 13. This Court had admitted the second appeal on the followingsubstantial questions of law:"1) Whether the Courts below are right in ignoring thequestion of title while considering the prayer forpermanent injunction?2) Whether the Courts below are right in granting therelief of permanent injunction even though the case of theplaintiffs and title is contradictory?3) Whether the suit as framed is maintainable in lawwithout invoking order I Rule 8 of C.P.C.?"14. The second appeal has been filed stating that the courtsbelow had erred in decreeing the suit in favour of the plaintiffs,who are the respondents in the present second appeal, without properappreciation of the facts of the case, the evidence on record and theprobabilities of the case. The courts below had failed to note thatthe plaintiffs did not have any title to the suit properties. Theyhad also erred in coming to the conclusion that the plaintiffs are inpossession of the suit properties. A suit for bare injunction cannotbe maintained, unless the origin of possession can be traced to thetitle in respect of the properties in question. It is not the case ofthe plaintiffs that they had got the lease of the lands in questionfrom the holders of the title. When the suit properties belong to thecommunity of the Village, as a whole, the reliefs sought for by theplaintiffs, in the suit, ought not to have been granted by the Courtsbelow. It was also contended by the learned counsel appearing for theappellants that an equitable relief of injunction cannot be granted,without resolving the issues relating to the title of the propertyconcerned. 15. In view of the contentions raised on behalf of theappellants, as well as the learned counsel appearing for therespondents and on a perusal of the records available, this Court isof the considered view that the appellants have not shown sufficientcause or reason for this Court to interfere with the findings of theCourts below. Both the Courts below have come to the right conclusionbased on the evidence available on record that the respondents in thepresent second appeal, who were the plaintiffs in the suit inO.S.No.71 of 1991, were in possession of the suit propertiesconcerned, at the relevant point of time. Sufficient documentaryevidence was available to substantiate the claims of the plaintiffs,with regard to their possession and enjoyment of the suit properties. https://hcservices.ecourts.gov.in/hcservices/ Even though the appellants have claimed that the lease of theproperties granted in favour of the respondents had expired and thatthe lands had been resumed, they have not been in a position to showsufficient proof in support of their claims. 16. It is well settled that in a suit for mere injunction, it isonly the question of possession that would have to be gone into andnot the issues relating to the title. In such view of the matter, itis clear that the appellants have not been in a position to show thatthe judgment and decree of the Courts below are unsustainable in theeye of law and liable to be set aside. Further, no substantialquestion of law arises for the consideration of this Court, in thepresent second appeal. In such circumstances, the second appeal isliable to be dismissed as devoid of merits. Hence, it is dismissed.No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshTo1) The District Court, Nagapattinam2) The District Munsif Court, Nannilam.3) The Section Officer,V.R.Section, High Court, Madras1 cc To M/s.Muthumani Doraisamy, Advocate, SR.38431.S.A.No.1016 of 1994 KA(CO)RVL 01.09.2009