M.Subramani v. P.Shanmugam2.P.Ganesan3.P.Govindaraj

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.04.2007CORAMTHE HONOURABLE MR. JUSTICE P.JYOTHIMANISecond Appeal No.816 of 1995 &C.M.P.No.8539 of 1995M.Subramani . . Appellant/PlaintiffVersus1.P.Shanmugam2.P.Ganesan3.P.Govindaraj . . Respondents/RespondentsPrayer: This second appeal is filed to set aside the Judgmentand decree of the Subordinate Judge, Poonamallee, Chengai M.G.R.District dated 31.08.1994 made in A.S.No.21 of 1993 and confirm thejudgment and decree of the Additional District Munsif, Poonamallee,Chengai M.G.R.District, dated 29.01.1993 made in O.S.No.2350 of 1990.For Appellant :M/s.R.Radha for Mr.S.SenthilnathanFor Respondents:Mr.V.Chandrakanthan for Mr.K.VerraraghavanJUDGMENTThe plaintiff in the trial Court is the appellant in the secondappeal. The suit filed by the plaintiff for injunction in respect ofa vacant house site to an extent of 1147½ sq.ft admeasuring 13 ½ feetin the North-South and 85 feet in the East-West bounded on the Northby the site of the defendants 1 and 2, on the south by the site ofthe third defendant, on the East by the Channel and on the West bythe common pathway and the open space Vasal for the beneficial useand enjoyment of the plaintiff and his wife and the defendants 1 and2 comprised in Gramanatham Survey No.96 of Thirisoolam Village,Madras. https://hcservices.ecourts.gov.in/hcservices/

2.The case of the plaintiff is that he has purchased the suitproperty under the sale deed dated 14.10.1982 and he is in possessionof the same and before his purchase his brothers were in possessionand the defendants 1 and 2 have attempted to encroach upon thenorthern side of the plaintiff's property and the third defendant hasattempted to encroach upon the southern side, which was prevented bythe Public.3.The defendants however denied any right to the plaintiff inrespect of the passage as well as open space and the defendants arein possession of the property which belonged to them. That apart, itis the case of the defendants that the document dated 04.10.1982 hadbeen fraudulently created. 4.Considering the fact that the defendants in I.A.No.3093 of1990 in the above said suit by way of an affidavit admitted theplaintiff's possession and on that basis, finding that both theplaintiff and defendants are in enjoyment of Grama Natham andtherefore there cannot be any patta or payment of kist and acceptingEx.A1 and Ex.A2 filed on behalf of the plaintiff decreed the suit infavour of the plaintiff, as against which, the defendants have filedthe first appeal and rejecting the document relied upon by theplaintiff under Ex.A1 which is unregistered sale deed but relyingupon Ex.B10 and Ex.B11 stated to have been effected much beforeEx.A1, the appellate Court has allowed the appeal thereby dismissingthe suit. As against which the plaintiff has filed the second appeal.5.While admitting the second appeal, the following substantialquestion of law is framed;"Whether the recital in Ex.B10 and Ex.B11 arebinding on the plaintiff who is not a party to thesaid documents?"6.As correctly pointed out by the learned counsel for theappellant, in a suit for injunction, the point to be considered is asto whether the plaintiff who claims to be in possession has proved ornot on his own merits and not on the demerits of the defendants. Itis with that basic principle the trial Court has considered Ex.A1sale deed even though the same is not a registered one stating thatsince the plaintiff's predecessors have been in possession, there wasno necessity for registration and given a finding that the plaintiffwas in possession. Therefore, the trial Court has held that there wasno necessity for declaration of title and also considering theadmission made by the defendants in the affidavit which forms part ofthe suit in an Interlocutory Application admitting the possession ofthe plaintiff and also clearly given a finding that the Ex.B10 andEx.B11 are not situated in the suit property marked as ABCD and https://hcservices.ecourts.gov.in/hcservices/ therefore granted the decree of injunction. On the other hand, theappellate Court even though has made a reference about Ex.A1 and alsostating the various contents of Ex.A1 has not chosen to decideanything about the possession as pleaded by the plaintiff but haschosen to rely upon the Ex.B10 and Ex.B11 to come to the conclusionthat the plaintiff is not in possession of the disputed portion ofthe suit property. It is also relevant to point out that admittedlythe vendor of Ex.B10 has not been examined and in such circumstancesany contents of Ex.B10 and Ex.B11 to which the plaintiff is not aparty cannot be put against the plaintiff to deny his right ofcontinuous possession. 7.The learned counsel for the appellant by placing reliance onthe judgment of this Court reported in AIR 1999 MADRAS 377(SADHURAJAN V. SRIRAMULU NAIDU) has submitted that recitals as toboundaries in documents are not admissible in evidence unless theexecutants are examined, by referring to the earlier judgmentreported in 1972(1)MLJ 317 (AMIAPPA NAINAR V. ANNAMALAI CHETTIAR).This Court in the above said judgment has held as follows;28. . . . ."Recitals as to boundaries indocuments not inter partes areinadmissible in evidence under Sections11, 13(a), 32(3) and 32(7) of the Act.The only method by which recitals in adocument not inter partes could beadmitted in evidence is by examinationof the executant of the document inwhich such recitals as to boundaries arefound."In the present case the executants of Exs.A9to A11 were not examined. Hence I hold that therecitals as to the boundaries in the documentsmarked as Exs.A9 to A11 not inter parties to thepresent suit are not admissible in evidence withoutexamining the executants of the sale deeds markedas Exs.A9 to A11, and I answer this point also infavour of the appellant/1st defendant and asagainst the respondent 1 to 7/plaintiffs."8.In a suit for injunction what is to be considered in respectof possession of the plaintiff, of course lawfully and the minordiscrepancies in the document cannot be considered for throwing outthe claim of the plaintiff simply based on the documents on the otherside which has not been proved in respect of boundaries as admissibleevidence as stated above. In view of the above said decision, it isclear that the learned first appellate Judge has not considered theissue in its proper perspective and rejected the claim of theplaintiff simply based on the Ex.B10 and B11 in which the plaintiffis not a party. The very fact that the defendants themselves have not https://hcservices.ecourts.gov.in/hcservices/ proved the documents which they rely upon in a manner known to lawshows the case in favour of the plaintiff. The judgment and decree ofthe first appellate Court made in A.S.No.21 of 1993 dated 31.08.1994are set aside and the appeal stands allowed. Consequently, connectedC.M.P. is closed. There is no order as to costs. JikrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Subordinate Judge, Poonamallee2. The Additional District Munsif, Poonamallee3. The Section Officer, VR Section, High Court, Madras+ one cc to Mr. S. Senthilnathan, Advocate sr no,. 21039+ one cc to Mr. V. Chandrakanthan, Advocate sr no. 21456ssv(co)nm(14.04.07)Second Appeal No.816 of 1995