Arumugam vs Chelliah

This Second Appeal has been filed challenging the Judgment and Decree dated 16.11.2012 passed in A.S.No.24 of 2011 on the file of the Sub Court, Ambasamudram, confirming the Judgment and Decree dated 27.01.2011 passed in O.S.No.79 of 2009 on the file of the District Munsif-cum-Judicial Magistrate, Cheranmahadevi.

The brief facts of the case are as follows:

After considering the oral and documentary evidence available on record, the Trial Court dismissed the suit with costs by Judgment and Decree dated 27.01.2011. Aggrieved by the same, the appellant/plaintiff preferred an appeal in A.S.No.24 of 2011 before the Sub Court, Ambasamudram. The First Appellate Court, after re-appreciating the evidence, dismissed the appeal and confirmed the Judgment and Decree of the Trial Court by Judgment and Decree dated 16.11.2012. Hence, the present Second Appeal.

I have heard Mr.V.Meenakshi Sundaram, learned counsel appearing for Mr.D.Nallathambi, learned counsel for the appellant. Though the name of the respondent is printed in the cause list, none appeared on behalf of the respondent either in person or through counsel.

This Second Appeal was admitted on the following substantial questions of law:

Whether the Courts below are correct in law in holding that the suit for bare injunction is not maintainable without a prayer for declaration merely because the defendant has disputed the plaintiff's title and set up a rival claim?

Whether the First Appellate Court committed an error of law in adjudicating upon the plaintiff's title and dismissing the suit on that basis without recording a specific finding on the identity and correlation of the suit property with the property covered under Ex.B1 dated 22.01.1979, when the identity of the property was itself a material issue in dispute?

The appellant/plaintiff has filed the suit seeking the relief of permanent injunction restraining the respondent/defendant from interfering with his peaceful possession and enjoyment of the suit property. The appellant/plaintiff claims to have purchased an extent of 2 acres and 72 cents in Survey No.118 from Rajagopalan and Annamalai Nadar under Ex.A1-Sale Deed dated 19.12.2007. According to the appellant/plaintiff, after the purchase, patta was transferred in his name and he was in possession and enjoyment of the property.

However, an perusal of Ex.A1-Sale Deed shows that the property has not been described with the four boundaries. It merely refers to the survey number and the extent. It is not in dispute that the total extent comprised in Survey No.118 is 15 acres and 27 cents. Ex.A1 refers to the alleged ancestral possession and enjoyment of the vendors, namely, Rajagopalan and Annamalai Nadar, and also refers to Patta No.44. However, the mere recital that the vendors were in ancestral possession and enjoyment of the property for a long period cannot, by itself, establish their title over the specific extent conveyed under Ex.A1.

The appellant/plaintiff has not established the antecedent title of his vendors. When the vendors themselves have not been shown to possess a valid title over the property, the appellant/plaintiff cannot claim a better title merely on the strength of Ex.A1-Sale Deed. The appellant/plaintiff cannot claim ownership, right or title over the suit property unless he establishes that his vendors had a valid and subsisting title over the property conveyed under Ex.A1.

It is also relevant to note that, during the course of the trial, the appellant/plaintiff amended the description of the suit property and stated that the suit property was situated in Survey No.118/14, to the north of the Pappakudi Village boundary. Therefore, the identity of the suit property assumes considerable importance in the present case.

On the other hand, the respondent/defendant claims an extent of 93 cents in Survey No.118. According to the respondent, the said property was purchased under Ex.B1-Sale Deed dated 27.01.1979 from one Ganapathy for the purpose of providing a burial ground for the Ariyapuram Harijan Community and that the property has been continuously used for burial purposes.

The schedule contained in Ex.B1 describes the property as lying to the east of Nadar Vagayara land, to the south of Muthupandi Nadar, to the west of Puchandi Nadar and situated in Odaimarichan Panchayat. According to the respondent, the said 93 cents is situated on the southern side of Survey No. 118.

Thus, there is a serious dispute between the parties with regard to the property comprised in Survey No.118. The respondent claims that the 93 cents covered under Ex.B1 is situated on the southern side, whereas the appellant/plaintiff claims an extent of 2 acres and 72 cents under Ex.A1.

When there is such a serious dispute regarding the identity and location of the respective properties, it was incumbent upon the appellant/plaintiff to establish the identity of the suit property by proper survey and measurement. The appellant/plaintiff could have taken appropriate steps for appointment of an Advocate Commissioner for measuring the property and for correlating the property described in Ex.A1 with the property claimed by the respondent under Ex.B1.

The documents marked as Exs.A1 to A7, however, are not sufficient to establish the appellant/plaintiff's case. In particular, Ex.A1-Sale Deed does not contain the four boundaries of the property said to have been conveyed to the appellant/plaintiff. Mere reference to the survey number and extent, in the facts and circumstances of the present case, is not sufficient to establish the identity of the property.

More particularly, the appellant/plaintiff has failed to establish that his vendors had a valid title over the property conveyed under Ex.A1. The recital in Ex.A1 regarding ancestral possession and enjoyment cannot, in the absence of supporting title documents, be treated as sufficient proof of title. The appellant/plaintiff has not purchased the property from a person whose title has been established by acceptable documentary evidence.

It is true that a person who is in settled possession, even without title, may, in an appropriate case, seek protection of such possession against unlawful interference. However, in the present case, the appellant/plaintiff has specifically based his claim upon Ex.A1-Sale Deed and asserted title over the suit property. Therefore, he was required to establish his right and title over the specific property in respect of which the injunction was sought.

The first substantial question of law is as to whether a suit for bare injunction is not maintainable merely because the defendant has disputed the plaintiff's title and set up a rival claim. The mere fact that the defendant has disputed the plaintiff's title does not, by itself, invariably render a suit for bare injunction not maintainable. The question whether a plaintiff is required to seek a declaration depends upon the facts and circumstances of each case and the nature of the dispute raised by the defendant.

In the present case, however, the dismissal of the suit is not merely on the ground that the appellant/plaintiff had not sought a declaration of title. The appellant/plaintiff has failed to establish his title over the suit property and has also failed to establish the identity of the property in respect of which he seeks the relief of permanent injunction. Therefore, the appellant/plaintiff cannot succeed merely on the basis of the contention that a suit for bare injunction is maintainable.

The second substantial question of law relates to the identity and correlation of the suit property with the property covered under Ex.B1. When the identity of the property itself is seriously disputed, the plaintiff has to establish the identity of the property by acceptable oral and documentary evidence. In the present case, Ex.A1 does not contain the four boundaries of the property. The plaintiff subsequently amended the description of the property by referring to Survey No.118/14 and its location with reference to the Pappakudi Village boundary. At the same time, the respondent relies upon Ex.B1 and claims 93 cents in Survey No.118 on the southern side.

In such circumstances, the appellant/plaintiff ought to have established the identity of the suit property by appropriate evidence. The absence of a clear identification of the property is a material defect in the plaintiff's case. The appellant/plaintiff, having approached the Court seeking an injunction in respect of a specific property, was bound to establish the identity of such property.

The learned counsel for the appellant/plaintiff submitted that the matter may be remanded to the Trial Court for appointment of an Advocate Commissioner and for identification and measurement of the property. This Court is unable to accept the said submission. Appointment of an Advocate Commissioner for identification of the property would not cure the fundamental defect in the appellant/plaintiff's case, namely, the failure to establish the title of his vendors and the consequential absence of a valid title in favour of the appellant/plaintiff under Ex.A1. A remand cannot be ordered merely to enable a party to fill up the lacuna in his case, particularly when the basic document relied upon by the appellant/plaintiff itself does not establish the title claimed by him. Therefore, this Court finds no justification to remand the matter to the Court below for obtaining an Advocate Commissioner's report.

The appellant/plaintiff has failed to establish that his vendors had a valid title over the property conveyed under Ex.A1 and consequently has failed to establish any valid right or title over the suit property. The documents relied upon by the appellant/plaintiff are insufficient to prove his case. Hence, there is no justification for granting the relief of permanent injunction in his favour.

On a careful consideration of the oral and documentary evidence available on record, this Court finds that the appellant/plaintiff has failed to establish his title and possession over the specific property described in the plaint. The Courts below have concurrently found against the appellant/plaintiff. Such findings are based upon the materials available on record and do not suffer from any perversity or error of law warranting interference in the present Second Appeal. Accordingly, the substantial questions of law are answered against the appellant/plaintiff.

In the result, the Second Appeal is dismissed. There shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.