Thulasimani v. Muthusamy Gounder

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.02.2012CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALSECOND APPEAL No.2034 of 1999Thulasimani... Appellant/Defendantvs.Muthusamy Gounder... Respondent/PlaintiffSecond Appeal filed under Section 100 C.P.C. against theJudgment and Decree dated 26.08.1999 made in A.S.No.112 of 1995 onthe file of the Principal District Court, Erode, reversing theJudgment and Decree dated 26.04.1995 made in O.S.No.1738 of 1993 onthe file of the First Additional District Munsif Court, Erode. For Appellant:Mr.V.BharathidasanFor Respondent:Mr.S.KumaradevanJ U D G M E N TThe Appellant/Defendant has projected the present Second Appealanim adverting upon the Judgment and Decree dated 26.08.1999 inA.S.No.112 of 1995 passed by the Learned Principal District Judge,Erode in reversing the Judgment and Decree dated 26.04.1995 inO.S.No.1738 of 1993 passed by the Learned Additional DistrictMunsif, Erode.2.The First Appellate Court, while passing the Judgment on26.08.1999 in A.S.No.112 of 1995 filed by the Respondent/Plaintiffhas observed that the Appellant/Defendant has not established thatthe Suit property belongs to him and also it is an admitted factthat the Respondent/Plaintiff before filing of the Suit, for thepast 20 years has been residing with family at Thirupur in the suitproperty and that the Respondent/Plaintiff is in enjoyment of thesuit property and viewed in that perspective, has granted the reliefof permanent injunction in favour of the Respondent/Plaintiff andresultantly allowed the Appeal directing the parties to bear theirown costs, thereby setting aside the Judgment and Decree of thetrial Court passed in the main Suit. https://hcservices.ecourts.gov.in/hcservices/

3.Before the trial Court, in the main Suit (filed by theRespondent/Plaintiff), 1 to 2 issues have been framed for trial. Onbehalf of the Respondent/Plaintiff, witnesses P.Ws.1 and 2 have beenexamined and Exs.A1 to A5 have been marked. On the side of theAppellant/Defendant, witnesses D.Ws.1 and 2 have been examined andExs.B1 and B2 have been marked. On behalf of Court, Exs.C1 to C4have been marked. 4.The trial court, on an appreciation of the entire oral anddocumentary evidence available on record, has come to a clearconclusion that a trespasser is not entitled to get the relief ofinjunction in his favour and dismissed the Suit without costs. 5.At the time of admission of the Second Appeal, thefollowing Substantial Questions of Law have been framed fordetermination:"(i)Has not the first Appellate Courtcommitted an error of law in holding that therespondent/plaintiff has been proved to havebeen in lawful possession of the suitproperty and therefore is entitled to adecree of permanent injunction?(ii)Is the finding by the firstAppellate Court that the Appellant admits thetrespass and encroachment by the Respondentis true and receivable in evidence and if sowhether it can serve as a legal basis for aDecree?"The Contentions, Discussions and Findings on Substantial Questionsof Law Nos. 1 and 2:6.The Learned Counsel for the Appellant/Defendant submitsthat the first Appellate Court has committed an error in interferingwith the Judgment and Decree of the trial Court and as a matter offact, the Respondent/Plaintiff should have filed a Suit praying fora Declaratory Decree and in the absence of the same, the Suit filedfor permanent injunction is per se not maintainable. 7.Expatiating his submissions, it is the contention of theLearned Counsel for the Appellant/Defendant that the first AppellateCourt has failed to consider Ex.B1-Sale Deed dated 30.05.1991 andfurther the evidence of D.Ws.1 and 2 have not been adverted to bythe first Appellate Court in a real and proper perspective.8.Per contra, it is the submission of the Learned Counselfor the Respondent/Plaintiff that the First Appellate Court in https://hcservices.ecourts.gov.in/hcservices/ Appeal has looked into the oral evidence of parties and thedocumentary evidence and has come to a definite conclusion that theRespondent/Plaintiff is in enjoyment of the Suit property andfurther the Appellant/Defendant has not established that the Suitproperty belongs to him and rightfully disentitled theRespondent/Plaintiff to get the relief of permanent injunction,which need not be interfered with by this Court in Second Appeal.9.According to the Respondent/Plaintiff in the Suit is thatthe Suit property originally is a vacant site and has been possessedand enjoyed by the father of the Respondent/Plaintiff viz., NallappaGounder for about 40 years and during his lifetime he has put up athatched shed in a part of the Suit property and the remainingportion has been used as Cattle Shed and after the death of hisfather, he has inherited the Suit property and is in possession forabout 20 years. According to the Respondent/Plaintiff, the Suitproperty is surrounded by live fence and it is possessed and enjoyedby him without any obstruction by paying the house tax and theavailable Tax receipts have been filed.10.The plea of the Respondent/Plaintiff as per the plaint isthat all of a sudden, on 15.12.1993, the Appellant/Defendant with aband of rowdy elements, tried to trespass into the Suit propertyclaiming that the Suit property belongs to him. But, such unlawfulattempt has been thwarted with the timely help of the neighbours andtherefore, the Suit has been allowed for seeking the relief ofpermanent injunction restraining the Appellant/Defendant, his men,agents from interfering in his peaceful possession and enjoyment ofthe Suit property in any manner.11.In the Written Statement, the Appellant/Defendant hasdenied as rank falsehood that all of a sudden, on 15.12.1993, he,with a band of rowdy elements endeavoured to trespass into the Suitproperty claiming that the Suit property belonged to him. Also, itis the case of the Appellant/Defendant that he and his family areresiding in recent years at Tirupur for business purpose and takingadvantage of the absence of the Appellant/Defendant and his familymembers at Kunampatti, the Respondent/Plaintiff has createddocuments with the help of Panchayat Officials and has come forwardwith a false claim to get unlawful gain. 12.The trial Court, while dismissing the Suit, has observedthat if the property has been enjoyed for 30 years, then theRespondent/Plaintiff should have established the same by means offiling relevant documents. But, the Appellant/Defendant hasproduced Ex.B1-Sale Deed, dated 30.05.1931 to show that the propertybelongs to him and has negatived the relief of injunction in favourof the Respondent/Plaintiff on the ground that a trespasser is notentitled to get the relief of injunction. https://hcservices.ecourts.gov.in/hcservices/

13.The Learned Counsel for the Appellant/Defendant submitsthat in Ex.B1-Sale Deed dated 30.05.1931, there is no reference toSurvey Number, Patta Number and other details have not beenfurnished and as such, one cannot come to a definite conclusion thatbased on Ex.B1-Sale Deed, dated 30.05.1931, the Suit property hasbeen in enjoyment of the Respondent/Plaintiff. TheAppellant/Defendant has admittedly gone to Thirupur in connectionwith business. 14.Admittedly, the Suit Property is a Natham belonging to theGovernment. In Ex.B2, Patta Proceedings, it is clearly mentionedthat since the dispute between the parties is civil in nature, theyhave been asked to establish their case before the Civil Court andlater on to file an Application praying for an issuance of Patta. 15.However, the Learned Counsel for the Respondent/Plaintiffsubmits that in reality the Suit property is concerned with Ex.B1-Sale Deed, dated 30.05.1931 and just because the Survey Number isnot mentioned or Patta Number has not been specified in thedocument, it cannot be said that the Respondent/Plaintiff has nointerest in the Suit property. Also, in Ex.B2, on 03.08.1993, it ismentioned that P.W.1, son of Chandrasekaran and his brother,Sivashanmugam's family have been residing for more than 30 years andin that manner, the Respondent/Plaintiff's people has been mentionedto be residing in the Suit property.16.Before the trial Court, no convincing documents have beenprojected on the side of the Appellant/Defendant to show that thepredecessor in title have been in enjoyment of the Suit property.Also, there is no reference to antecedent title deed in Ex.B1-SaleDeed, dated 30.05.1931. No legal heirs concerned/connected withEx.B1-Sale Deed, dated 30.05.1931 have been examined before thetrial Court to substantiate the case of the Appellant/Defendant, inthe considered opinion of this Court.17.The Learned Counsel for the Respondent/Plaintiff cites adecision of this Court reported in 1998 (2) L.W. 346 (V.Seenivasanvs. Rajalakshmi), wherein, it is held as follows:"The fact that the plaintiff is an encroacher hasnot been denied. But, it must be noted that heobtained interim injunction as against the Governmentfrom the competent Civil Court, though he is anencroacher.It is settled law that even if an encroacher hasestablished his enjoyment and possession by 'B' Memosissued by the Government, he could be evicted and https://hcservices.ecourts.gov.in/hcservices/ removed only under due process of law. In the absenceof any evidence in favour of the defendant, the Courtsbelow, have correctly concluded that the plaintiff hasbeen in possession from 1992.” 18.The term 'trespass' is an unjustifiable intrusion upon theperson's possession. As a matter of fact, it is an injury to apossession rather than to the title. A person in lawful possessionof land, but dispossessed by one who has no title at all can seekinjunction against the wrong done, as per the decision reported inILR 20 Cal. 834 (PC) (Ismahil Ariff vs. Mohamed Ghause).19.However, before, an individual who is not the owner of theland can prevent another individual from using the land to the sameextent as himself, he must establish the right by act of exclusivepossession of a very definite character.20.From the decision Osman vs. Emperor reported in AIR 1936Cal. 124 and Emperor vs. Bandhu Singh reported in AIR 1928 Patna124, the principle that emerges in law is that a trespasser cannotby his act of trespass, acquire the right of ownership in theproperty which he got in his possession by means of his wrongful actof trespass and such a possession cannot prevent the true/real ownerfrom claiming back the properties from the hands of a trespasser.21.It is to be noted that in law, an injunction is theappropriate remedy in an action to trespass. But, to maintain anaction of trespass, the Plaintiff must be in possession of the landin dispute, where, what is complained of as a trespass on his ownpossession rather than the act of dispossession. The Plaintiff'sproper remedy is an injunction as per the decision in Nanga vs. Amrareported in 1936 A.M.L.J. 44. 22.The Respondent/Plaintiff has produced Exs.A1 to A4, but noprior receipts have been filed. Even though no receipts prior toExs.A1 to A4 have been produced and marked on the side of theRespondent/Plaintiff, yet, the very fact that theRespondent/Plaintiff is an encroacher in the Suit property and alsotaking note of another important fact that the Suit property is anatham belonging to the Government, this Court is of the consideredopinion that before the trial Court, the Respondent/Plaintiff hasproved his enjoyment and possession of the Suit property and even anencroacher in law cannot be evicted except by following due processof law by the Appellant/Defendant and viewed in that perspective,the Respondent/Plaintiff is entitled to get the relief of permanentinjunction as prayed for by him in the plaint and in this regard, ongoing through the Judgment and Decree of the First Appellate Courtin A.S.No.112 of 1995, dated 26.08.1999, this Court does not find https://hcservices.ecourts.gov.in/hcservices/ any perversity or misreading of evidence or any materialirregularity or patent illegality and viewed in that perspective,the Substantial Questions of Law Nos.1 and 2 are answered againstthe Appellant/Defendant. Consequently, the Second Appeal fails. 23.In the upshot of discussions mentioned supra and onbalance, the Second Appeal is dismissed leaving the parties to beartheir own costs. Resultantly, the Judgment and Decree of the FirstAppellate Court dated 26.08.1999 in A.S.No.112 of 1995 on the fileof the Learned Principal District Judge, Erode are confirmed for thereasons assigned in this Appeal. It is made clear that thedismissal of the Second Appeal will not preclude theAppellant/Defendant to evict the Respondent/Plaintiff by takingrecourse to the initiation of appropriate proceedings before thecompetent Forum as per Law. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.abeTo :1.The Principal District Court, Erode.2.The First Additional District Munsif Court, Erode. 1 cc to Mr.V. Bharathidasan, Advocate, Sr. 132131 cc to M/s. S. Kumardevan, Advocate, sr. 13089S.A.No.2034 of 1999NR (CO)kk 29/3