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Judgment
Honorable Mr. Justice M. Venugopal
The Appellant/Plaintiff has filed the present Second Appeal before this Court as against the Judgment and Decree dated 13.12.2005 in A.S. No. 90 of 2005 passed by the Learned II Additional Sub Judge, Nagercoil.
The First Appellate Court viz., the Learned II Additional Sub Judge, Nagercoil, while passing the Judgment in A.S. No. 90 of 2005 dated 13.12.2005, has inter alia observed that "the person who executed Ex. A.1 has no right in the suit property and as such it cannot be accepted that the Appellant/Plaintiff has obtained possession and therefore, he cannot claim any kind of relief of permanent injunction and also that the Appellant/Plaintiff has not established his possession clearly and that apart, the suit filed by the Appellant/Plaintiff has been barred by the limitation and resultantly, dismissed the appeal leaving the parties to bear their own costs."
Feeling aggrieved against the Judgment and Decree of the First Appellate Court viz., the Learned II Additional Sub Judge, Nagercoil in A.S. No. 90 of 2005 dated 13.12.2005, the Appellant/Plaintiff has filed the instant Second Appeal as an aggrieved person.
Earlier, in the main suit before the trial Court, 1 to 3 issues have been framed for trial. Also, two additional issues on 26.03.2003, one additional issue on 08.08.2003 and two additional issues on 23.10.2003 have been framed by the trial Court for determination.
Before the trial Court, in the main suit, on behalf of the Appellant/Plaintiff, witness P.W. 1 (Plaintiff) has been examined and Ex. A.1 to A.19 have been marked. On the side of the Respondents/ Defendants, witnesses D.W.1 to D.W.4 are examined and Ex. B.1 to B.13 have been marked. Also, the Commissioner''s Report Ex. C.1 and the Commissioner''s Plan Ex. C.2 have been marked.
The trial Court, on appreciation of oral and documentary evidence available on record has come to a clear and categorical conclusion that the Appellant/Plaintiff has no right in the suit property and resultantly, dismissed the suit with the costs of the second Respondent/fifth Defendant.
At the time of the admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law for determination.
(a) Whether the Courts below are correct in dismissing the suit in toto, on the ground of limitation, when one of the reliefs claimed therein is permanent injunction and the cause of action for the same is available even on the date of filing of the suit?
(b) Whether the Courts below are correct in rejecting the Appellant''s case of possession of the suit property without considering in full the evidence for the same, including Exhibits C.1 and C.2?
(c) Whether the Judgment and Decree of the lower appellate Courts are correct and sustainable on account of its failure to formulate and determine proper points for determination in the appeal before it?.
The Contentions, Discussions and Finding on Substantial Questions of Law (a) and (b):
The Learned Counsel for the Appellant/ Plaintiff submits that the trial Court as well as the First Appellate Court have wrongly dismissed the suit in entirety, on the basis of limitation, though the Appellant/Plaintiff has sought the relief of permanent injunction and the cause of action for the same has been available to the Appellant/Plaintiff, even on the date of filing of the suit.
(ii) It is the contention of the Learned Counsel for the Appellant/Plaintiff that both the Courts have committed an error in negativing the Appellant/Plaintiff''s case of possession of the suit property, without considering the full evidence in that regard, including the Ex. C.1 Commissioner''s Report and Ex. C.2 Commissioner''s Plan.
(iii) The Learned Counsel for the Appellant/Plaintiff urges before this Court that the Appellant/Plaintiff is in possession and enjoyment of the suit property and as a matter of fact, the Appellant/Plaintiff has been put in possession of the suit property in part performance of the agreement of sale in his favour. However, both the Courts have failed to appreciate these material facts, which has resulted in serious miscarriage of justice.
(iv) Added further, the Learned Counsel for the Appellant/Plaintiff submits that the Appellant/Plaintiff has filed the suit in time and the same is not hit by limitation, especially the suit finally remained for the relief of injunction.
(v) Per contra, it is the contention of the Learned Counsel for the Respondents 1 and 2 that both the Courts below have taken into account the oral and documentary evidence available on record and have clearly held that the Appellant/Plaintiff has no right in the suit property and rightly dismissed the suit.
(vi) In the original plaint dated 09.02.1995, the Appellant/Plaintiff has sought (a) the relief of declaring his possession over the suit property and also (b) prayed for the relief of permanent injunction restraining the Defendant (Lissammal Thomas) or persons claiming under her from disturbing or interfering with his possession over the plaint schedule property etc.
(vii) The Defendant(Lisammal Thomas) filed a written statement dated 11.01.1997 inter alia among other things mentioning that the Appellant/ Plaintiff is not having any manner of right, title or possession over the suit property and on 11.05.1995, she got the possession of eastern 17 1/2 cents of the suit property as per the Lease Deed executed by the Trustees for a period of 99 years and she has paid Rs. 10,000/- as deposit. Further, she is in exclusive possession and enjoyment of the same as lessee and she is paying the lease amount regularly. Two other persons are the Lessees of the remaining 10 cents and one of this has executed a sub lease in favour of the Defendant in respect of 5 cents and as such that 5 cents also are in possession and enjoyment of this Defendant etc.
(viii) Moreover, in the written Statement of the Defendant, it is also stated that Perumal Pillai had no right whatsoever over the property and that the Courts upto Honorable High Court have held that Perumal Pillai had no right over the property and that the same has been communicated to the Appellant/Plaintiff as early as on 23.03.1974 though his Advocate etc.
(ix) Apart from the above, the Defendant in the Written Statement has taken a specific plea that when the property belonged to Idol, it is irrelevant to state that the Plaintiff entered into an agreement of sale with some, who have nothing to do with the suit property and therefore, the Appellant/Plaintiff is not entitled to claim the relief of injunction.
(x) In the amended plaint dated 09.10.2003 (filed before the trial Court on 13.10.2003), the Appellant/Plaintiff has sought the following reliefs in the main suit:
(A) a Decree for declaring his possession over the suit property.
A(a) that he will be given a decree for specific performance of the Contract of Sale enforcing the agreement dated 15.09.1959 and the further agreement dated 16.03.1963, directing the Defendants 2 to 4 to execute the sale deed in respect of the suit property in favour of the Plaintiff (Appellant) within a time stipulated by the Court etc.,
(B) that he will be given a decree for permanent injunction restraining the Defendant or persons claiming under the Defendants from disturbing or interfering the possession of the Plaintiff over the plaint schedule property or any potions of the same or from doing any acts prejudicial to the interest of the plaintiff over the suit property.
(xi) Before the trial Court, the fourth Defendant (Sivakami) has filed a written statement stating that the plaint schedule property and other properties belonged to Chidambara Vinayakar Temple in Kaliankadu alias Chidambarapuram belonged to a family of Nanchil Nadu Vellala and because of the disputes in the Management among the members and Perumal Pillai, S/o Sivathanu Pillai instituted a suit O.S. No. 82 of 1124 (Malayalam Era) (English year of 1949) before the Principal Sub Judge''s Court at Nagercoil for framing a scheme for Management. The Principal Sub Judge decreed the aforesaid suit and framed a scheme wherein three members of the Appellant/Plaintiff''s family be elected and the Defendant''s family in that suit and the property has been vested in the Receiver''s hands, etc.
(xii) Moreover, it is mentioned that Perumal Pillai is an incompetent person to enter into any agreement with the Appellant/Plaintiff on 15.09.1959 as alleged for a sale price of Rs. 40 per cent. The property has been in the exclusive possession of the Receiver from the year 1980 onwards. Therefore, the Appellant/Plaintiff neither enter into the property nor made any improvement as alleged and the properties are in possession of the Receivers and without Court permission, it cannot be sold and further no agreement can be entered into. If at all, the Appellant/Plaintiff is in possession of the suit property, it is only through the Receiver and not from Perumal Pillai from 15.09.1959.
(xiii) In the additional written statement file by the fourth Defendant filed on 01.08.2003, it is stated that the plaint schedule property is in possession of the Receiver, who has been appointed by the Court in O.S. No. 68 of 1986 and without getting permission from the Court, an agreement of sale cannot be entered into and therefore, in the absence of Court''s permission, the agreement is a void one and under a void sale agreement, there cannot be any enforceable right showered on the Appellant/Plaintiff. The Appellant/Plaintiff has no legal or moral right to enter into possession of the property or to make improvements over the property.
(xiv) The Learned Counsel for the Appellant/ Plaintiff refers to Ex. C.1 Commissioner''s Report dated 11.04.1997 and submits that through the suit property, there is a pathway for proceeding to the Appellant/ Plaintiff''s Southern side property and that the said pathway is in the same measurement of the Appellant/Plaintiff''s Southern side property etc. Furthermore, the Learned Counsel for the Appellant/Plaintiff invites the attention of this Court to Ex. C.1 Commissioner''s Report dated 11.04.1997, wherein it is inter alia mentioned that the suit property is more than 1 1/2 cents than the suit property mentioned in the Commissioner''s Report in O.S. No. 70 of 1977 furnished by the Appellant/Plaintiff. That apart in Ex. C.1 Commissioner''s Report, it is stated that the suit property is seen jointly with that of the Appellant/Plaintiff''s Souther side property etc.
(xv) The grievance of the Learned Counsel for the Appellant/Plaintiff is that both the Courts below are not considered the full evidence, including that of Ex. C.1 Commissioner''s Report and Ex. C.2 Commissioner''s Plan and this has resulted in an erroneous Judgments being passed against the Appellant/Plaintiff.
(xvi) At this stage, a perusal of Ex. A.1 Sale Agreement dated 15.09.1959 shows that it has been executed by Perumal Pillai S/0 Sivathanu Pillai (in the capacity as Trustee of the first Defendant/Trust) to and in favour of the Appellant/Plaintiff. Ex. A.1 Sale Agreement dated 15.09.1959 is not an registered one. In Ex. A.1 Sale Agreement dated 15.09.1959, Perumal Pillai and the Appellant/ Plaintiff have signed. The time fixed for execution of sale deed is one year from the date of Ex. A.1 Sale Agreement dated 15.09.1959. As per Ex. A.1 Sale Agreement dated 15.09.1959, an advance of Rs. 200/- has been paid by the Appellant/ Plaintiff to the said Perumal Pillai. On 06.08.1963, an additional advance of Rs. 200/- has been paid by the Appellant/Plaintiff to Perumal Pillai.
(xvii) A reading of Ex. A.2 Endorsement dated 06.08.1963 for payment of further advance of Rs. 200/- , there is a reference to a civil case in O.S. No. 82/1124 ME(in the year of 1949). The recital in Ex. A.2 Endorsement dated 06.08.1963 clearly shows that after the dismissal of O.S. No. 82/1124 (Malayalan Era) (English year of 1949) within one month, the sale deed will have to be executed.
(xviii) The stand of the Appellant/Plaintiff is that he has been put into possession as per Ex. A.1 Sale Agreement dated 15.09.1959 and since the possession of the suit property by the Appellant/Plaintiff has been mentioned clearly in Exs.A.1 and A.2, in any event, the possession of the Appellant/Plaintiff has to be protected. Further, the Appellant/Plaintiff is entitled to the relief of permanent injunction, which relief cannot be denied to the Appellant/Plaintiff in law.
(xix) The Learned Counsel for the Appellant/Plaintiff cites the decision of this Court in Chinna Thevar Vs. Gnanaprakasi Ammal and Another, , at page 48 wherein it is held as follows:
S. 53A of the Transfer of Property Act does not confer some right on the transferee, if the conditions of that section are fully satisfied. If the transferee who has fulfilled the conditions of S. 53-A can rely on the agreement of sale in his favour as a shield in a suit for eviction and can even ask for an injunction to protect his possession as against the transferor, there is no reason why he should not rely on the agreement of sale in similar circumstances as a shield against the landlord in proceedings for eviction instituted under the Tamil Nadu Buildings (Lease and Rent Control)Act.
It is obvious that, till the contract of sale was entered into, the petitioner only occupied the position of lessee. But, after the date of the contract and after it was performed in part by consideration being paid for the contract and the landlord allowing the tenant to remain in possession by reason of the new status created under the contract, it was no longer open to the landlord to contend that the right of possession claimed by the petitioner was referable to the contract of lease. Annamalai Goundan Vs. Venkatasami Naidu and Others, Applied.
(xx) He seeks in aid of the decision of this Court in Kannan Vs. Govindasamy, wherein it is held as follows:
In a suit for bare injunction, the main ingredients required to be proved are: (1) actual and physical possession of the property concerned; (2) that the plaintiff has a right (earned) to be in possession of the same and that right is a recognized one under law.
(xxi) He invites the attention of this Court to the Division Bench Judgment of this Court in K.M.M. Kadar Hussain V. O.M.R. Selvaraj and Others reported in (1997) 2 MLJ 57, wherein it is laid down thus:
It is incumbent on the part of the Appellate Court to raise points for determination just to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions which arise for decision.
(xxii) In response, the Learned Counsel for the Respondents cites the decision of this Court in Kannan Vs. Govindasamy, , wherein it is held as follows:
In a suit for bare injunction, the main ingredients required to be proved are: (1)actual and physical possession of the property concerned; (2) that the plaintiff has a right (earned) to be in possession of the same and that right is a recognized one under law.
(xxiii) He also cites the decision of the Honorable Supreme Court in Premji Ratansey Shah and Others Vs. Union of India (UOI) and Others, , at page 736 in Paragraphs 5 and 6, it is held as follows:
Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking, such relief should be given. Injunction is a personal right under S. 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identify of the land should not be an excuse to claim in junction against the true owner.
(xxiv) The Learned Counsel for the Respondents cites the decision of this Court in Selvaraj V. Balaji reported in 2010 (3) T.N.C.J. 91 (Mad), wherein it is held that
a person who is seeking injunction is to prove his possession and enjoyment and show that the person who attempt to interfere with his possession does not have a better right than that of plaintiff and further the plaintiff failed to prove to be in possession of the property and document under which he claimed possession found to be fictitious and hence injunction was rightly denied.
(xxv) He also cites the decision of the Honorable Supreme Court in Hero Vinoth (minor) Vs. Seshammal, wherein it is held that
the High Court will not interfere with concurrent findings of Courts below, except in cases like where Courts below have ignored material evidence or acted on no evidence; courts have drawn wrong inferences from proved facts by applying law erroneously; Courts have wrongly cast burden of proof and the decision based on no evidence would also include cases where evidence taken as whole is not reasonably capable of supporting finding of Courts below.
(xxvi) In the evidence of P.W. 1(Appellant/ Plaintiff) is that the suit property in Vadaseri Village bearing Survey No. 3204 (Re.S. No. G/12/1) 25 cents initially belonged to Chidambara Muthaliar Vinayagar Trust and these properties have been enjoyed by Perumal Pillai during the year 1959 and he has remained as a Managing Trustee of the said Chidamabara Muthaliar Vinayagar Trust and in that capacity, he has been enjoying the properties and on 15.09.1959, Perumal Pillai has agreed to sale the suit property by means of an agreement and during that period, the value of one Cent has been at Rs. 40/- and that he has received an advance of Rs. 200/- and the sale agreement is Ex. A.1, in which he and Perumal Pillai have signed and Perumal Pillai''s Accountant Padmanabha Pillai has also signed as witness and now he has expired and based on the sale agreement, he has been in possession of the properties and on 06.08.1963, when he demanded the execution of sale deed after the receipt of balance money from him by the said Perumal Pillai, Perumal Pillai demanded an advance of Rs. 200/- from him and Perumal Pillai in Ex. A.1 has made an endorsement viz., Ex. A.2 that after completion of O.S.82/1124 ME( of the year 1949), he will execute the sale deed.
(xxvii) It is the further evidence of P.W. 1 that based on sale agreement, till date, the sale deed has not been executed and that he has impleaded the trustees of the Trust for receiving the balance sale consideration from him and he is willing to pay the balance amount of sale consideration and that he has sufficient money in his Bank.
(xxviii) It is the evidence of P.W. 1 (in chief cross examination with permission of the Court) that the possession of the suit property has not been taken by the Receiver at any point of time and it is incorrect to state that even after issuing Ex. A.5 reply notice dated 23.04.1974, as per Ex. A.2 dated 06.08.1963, the suit has not been filed within one year period and he does not know for how many years, the Court Receiver is managing the suit property. Moreover, Perumal Pillai informed P.W. 1 that he is the Managing Trustee of the suit property and that he has not seen any concerned records in this regard.
(xxix) It is the evidence of D.W.1 that the suit property belongs to Chidambara Vinayagar Trust measuring an extent of 27 cents and that he has taken on lease an extent of 17 1/2 cents and Ex. B.1 is the Lease deed dated 11.06.1986 and that the Appellant/Plaintiff has a property to the south of the suit property and that the Appellant/Plaintiff has not enjoyed the suit property at any point of time.
(xxx) D.W.2 in his evidence has deposed that he knows the suit property and in the suit property, he has an interest of 5 1/2 cents and that the suit property belongs to Chidambara Vinayagar Trust, which is managed by the Court Receiver and in the total extent of suit schedule property to an extent of 27 1/2 cents, he is in enjoyment of 5 1/2 cents and the remaining property has been enjoyed by the first Defendant.
(xxxi) D.W.3 (Court Receiver) in his evidence has deposed that in O.S. No. 64/1986, in December 1992, he has been appointed as a Receiver for these properties and that the Trust properties are in his possession and there is a scheme decree in O.S.82/1124(Malayalan Era) (English year of 1949) for managing the Trust properties and that the Trustees have no right to sell the Trust properties and they have to sell the Trust properties only after obtaining the prior permission from the Court and earlier for selling the Trust properties, before the Sub Court E.A. No. 239 of 1977 has been filed and permission obtained and Alagammal, as against the permission being granted for selling the suit properties, filed a Civil Revision Petition before the Honorable High Court and that the Civil Revision Petition has been finally allowed and in the said petition, he has been also arrayed as one of the parties (as Court Receiver) and later E.A. No. 3 of 2002 has been filed for selling the properties.
(xxxii) D.W.4 in his evidence has stated that he has taken 22 Coconut trees on lease and further he has taken the said lease from the Receiver and he has obtained a receipt and Exs.B.9 to B.11 are the receipts paid by him and for the past three years, he has been in enjoyment of the suit property.
(xxxiii) Ex. A.4 is the Appellant/Plaintiff''s Lawyer''s notice dated 18.01.1974 addressed to Perumal Pillai wherein it is mentioned that ''27 cents of property in Survey No. 3204 of Vadasery Village which belongs to Chidambara Vinayagar Pillaiyar Swami Trust was managed by him as Trustee and in that capacity, he has entered into an agreement with the Appellant/Plaintiff on 15.09.1959, by which he has agreed to sell 27 cents at the rate of Rs. 40/- per cent to the Appellant/Plaintiff and further he has received a sum of Rs. 200/- towards advance for the sale amount etc.
(xxxiv) It is pertinent for this Court to make a significant reference to the Appellant/ Plaintiff''s Lawyer''s notice dated 18.01.1974, wherein in Paragraphs 5 to 7, it is stated hereunder:
But on the date of agreement, a suiti No. S. No. 82 of 1124 of the Sub Court, Nagercoil was pending. So even though my party was willing and ready to perform his part of the contract by getting sale deed executed by you, by paying the balance amount, you have been postponing the actual execution of the sale deed because of the pendency of O.S. No. 82 of 1124.
As per agreement of sale my party got possession of the property and he has been in enjoyment of the same by leveling the property by spending more than Rs. 5,000/- and by planting coconut trees which have now begun to yield. My party has also constructed compound wall and put upagate.
My party has taken water connection through these 27 cents of land to his neighboring private land, and the meter is also fitted in this property. For the building in the neighboring land electric connection are also taken through this property. The property that is agreed to be sold is quite indispensible for the peaceful enjoyment of his neighboring land which is lying on the southern side of the property agreed to be sold. This property is being used as front yard of my property and without this property my party has no other access to reach the road on the north.
(xxxv) Also in paragraph 9 of Ex. A.4 the Appellant/Plaintiff''s Lawyer''s notice dated 18.01.1974 addressed to Perumal Pillai, it is mentioned as follows:
You agreed with my party to execute the sale deed immediately after the disposal of O.S. No. 82 of 1124 of the Sub Court of Nagercoil. Accordingly you received Rs. 200/- by way of additional advance from my party and entered into an agreement with my party on 06.08.1963 to execute the sale deed within a month after the ultimate disposal of O.S.82 of1124inSubCourtofNagercoil.
(xxxvi) As a matter of fact in Ex. A.4 the Appellant''s/Plaintiff''s lawyer''s notice dated 18.01.1974 addressed to Perumal Pillai, it is mentioned that "even now the Appellant/Plaintiff is willing to get sale deed executed in his favour as per the agreement of sale and therefore, Perumal Pillai has been directed to execute the sale deed in respect of 27 cents in Survey No. 3204 as per the sale agreement etc."
(xxxvii) In Ex. A.5 reply lawyer''s notice dated 23.04.1974 issued on behalf of Perumal Pillai addressed to the Appellant/Plaintiff''s lawyer, it is mentioned that the property bearing Survey No. 3204 of Vadasery Village belongs to the Idol Chidambaravinayagar and that the properties of the said Trust were in possession of the Receiver till 01.05.1972 and after that Perumal Pillai along with the Co-trustees have taken the possession of the same and because O.S.82 of 1124 has not been finally disposed of and is pending, his party is not in a position to execute the sale deed in favour of the Appellant/Plaintiff, as the property belongs to the Idol and that his party is willing to pay back the sum of Rs. 400/- , he has received from the Appellant/Plaintiff. Also, it is importantly further mentioned in Ex. A.5 that the case has been decided against Perumal Pillai by the Honorable High Court of Madras and therefore, he is not able to do anything in the matter and therefore, a request has been made to advise the Appellant/Plaintiff to receive back a sum of Rs. 400/- .
(xxxviii) A perusal of Ex. B.13 order in E.A. No. 159/72 Batch in O.S. No. 82/1124 on the file of the Learned Sub Judge, Nagercoil shows that in I.A. No. 212/1972, Perumal Pillai has figured as the Petitioner/Plaintiff and in E.A. No. 194/1972, the said Perumal Pillai has figured as one of the Respondents to the said Execution Application. In Ex. B.13 E.A.159/72 Batch orders dated 28.04.1972, it is seen that the Appellant/Plaintiff has got the Managing Trusteeship of the Trust and as per Ex. A.5, it is made clear that the Appellant/Plaintiff has no independent right and the Appellant/Plaintiff has known these facts.
(xxxix) Generally, a suit for specific performance of contract is not to be decreed unless there exists a valid and enforceable contract between the parties. A trespasser is a person, who lawfully enters into but unlawfully remains in the possession of the property without the consent or the acquiescence of the owner. If one goes into the possession of the property of another person with an invitation or permission, then the original/initial entry is lawful. However, if he refuses to leave that place unlawfully squats on it, he becomes a trespasser of transient origin with no vistage of right, as opined by this Court.
(XL) It is to be noted that Section 53(A) of the Transfer of Property Act contemplates a contract in writing and delivery of possession in pursuance of the said contract. If an agreement is not a true and valid one, a person cannot invoke the doctrine of part performance. Continuing further, a lawful possession is not a "LITIGIOUS" possession and should have some foundation in a legal right to possess the property, which cannot be equated with a temporary right to enforce recovery of property, in case a person is wrongfully or forcibly dispossessed of it.
(XLi) As seen from Ex. A.2 Endorsement dated 06.08.1963, the property mentioned in Ex. A.1 Sale Agreement dated 15.09.1959 is in the possession of the Appellant/Plaintiff. Therefore, it cannot be said that the Appellant/ Plaintiff is not in possession of the suit property and that too when a specific case has been projected on behalf of the Appellant/ Plaintiff, that he has been put in possession of the suit property as per Ex. A.1 Sale Agreement dated 15.09.1959 and Ex. A.2 Endorsement dated 06.08.1963. (Even though in Ex. A.5, Perumal Pillai''s Lawyer''s notice dated 23.04.1974 addressed to the Appellant/Plaintiff''s lawyer, it is mentioned that the possession of the Appellant/Plaintiff in respect of the suit property has been denied etc.) As per Ex. A.1 Sale Agreement dated 15.09.1959 and Ex. A.2 Endorsement dated 06.08.1963, it is found that the Appellant/ Plaintiff is in possession of the suit property and though, at the time of coming into existence of Ex. A.1 Sale Agreement, the Receiver is in possession of the suit property as made mention of in Ex. a.5 reply notice dated 23.04.1974, yet this Court is of the considered view that it is not established that Perumal Pillai has been the Trustee or the Managing Trustee of the Trust at the time of execution of Ex. A.1 Sale Agreement. When the real fact is that the suit property belongs to the first Respondent/Trust and it belongs to the Idol of Chidambara Vinayagar Temple, then Idol is a juristic person in law and Perumal Pillai or anybody for that matter or as Trustee of the temple cannot act detriment to the interest of the temple. Moreover, when Perumal Pillai is not the owner of the suit property and when he has not been authorized by the first Respondent Trust or by the Advocate Receiver, then he cannot execute Ex. A.1 Sale Agreement dated 15.09.1959 in favour of the Appellant/Plaintiff.
(XLii) In the considered opinion of this Court, thus, when Ex. A.1 Sale Agreement dated 15.09.1959 has been executed by Perumal Pillai to and in favour of the Appellant/Plaintiff and when the said Perumal Pillai has no authority to execute Ex. A.1 Sale Agreement in respect of the suit property, the Appellant/Plaintiff is only treated as a trespasser and as against the real owner viz., the first Respondent/Trust, a trespasser is not entitled to claim the relief of permanent injunction.
(XLiii). Coming to the aspect of the suit filed by the Appellant/Plaintiff is barred by plea of limitation, it is to be pointed out that Article 54 of the Limitation Act, 1963 in respect of the suit for specific performance of a contract, the period specified is three years limitation and the time begins to run for the purpose of limitation, the date fixed for the performance or, if no such date is fixed, when the Plaintiff has noticed that performance is refused.
(XLiv) At this juncture, this Court worth recalls the decision of Honorable Supreme Court in Puran Singh and Others Vs. The State of Punjab, wherein it is held, the term ''settled possession'' does not carry any special charm of magic in it, nor is it a ritualistic formula which can be confined in a strait jacket.
(XLv). Also, this Court points out that in the decision of Honorable Supreme Court in Munshi Ram and Others V. Delhi Administration reported in AIR 1968 SC 702, at page 707 at paragraph 20, it is observed and held as follows:
In Horam and Others Vs. Rex, , a Division Bench of the Allahabad High Court observed that where a trespasser enters upon the land of another, the person in whom the rightful possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force and if in doing so, he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offense. His action would be covered by the principle of private defence embodied in Sections 96 to 105 I.P.C. Similar was the view taken by a Division Bench of the Hyderabad High Court in Sangappa V. State, ILR (1955) Hyd 466. Therein it was held that if some body enters on the land of a person who does not acquiesce in the trespass he would still retain possession of the land and as the possessor of the land, is entitled to that possession. If he brings friends with him and with force of arms resists those who are trespassing on the land, who are also armed, he and his friends would not be guilty of forming themselves into an unlawful assembly, for those who defend their possession are not members of an unlawful assembly. If the person acquiesces in his dispossession and subsequently, under claim of title, comes again to dispossess his opponents, then he and friends would be members of an unlawful assembly. That is also the view taken by the Madras High Court in re, Mooka Nadar AIR 1948 Mad 590. We are in agreement with the ratio of private defence.
(XLvi) Added further, in the decision of Honorable Supreme Court in Ram Rattan and Others Vs. State of Uttar Pradesh, , it is laid down as follows:
A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recoure to the remedies available under the law. While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished, yet, one of the tests is to find out who had grown the crop on the land in dispute.
(XLvii). Moreover, this Court aptly points out the decision in B. Krishna Murthy Rao and another Vs. C.S. Sakunthalamma and others, wherein it is held as follows:
In Article 54 of the Limitation Act, the word used "when the performance is refused", the limitation starts running from that date but where the petitioners had issued notice for termination of tenancy in which the very existence of the lease agreement was denied and hence if at all the existence of the agreement is denied, the question of refusing to perform the part of the contract on the part of the plaintiffs-petitioners herein would not arise. Therefore, the denial made by the plaintiffs-petitioners herein has a greater force i.e. more force than the word ''refused''. The existence of such alleged agreement is emphatically denied by the plaintiffs-petitioners herein and therefore the limitation has to be counted from the date of the reply notice issued by the plaintiffs-petitioners herein to the defendant-respondents. Thus the counter claim filed by the defendants beyond 3 years of such date is barred by limitation.
(XLviii). To promote the substantial cause of justice, this Court cites the decision in U.N. Sharma V. Puttegowda and another reported in AIR 1986 Kra 99, at page 102 and 103 in paragraphs 9 and 10, it is observed and held as follows:
The learned author Sri. Mulla, Sixth Edition, at page288,hasobserved:
The section has been described by the Privy Council AIR 1934 235 (Privy Council) and the Supreme Court Sheth Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla and Sons, , as a partial importation of the English equitable doctrine of part performance. By virtue of this section, part performance does not give rise to an equity, as in England, but to a statutory right Amrao v. Baburao ILR (1950) Nag 25 : AIR 1951 Nag 403. This right is more restricted than the English equity in two respects, (1) there must be a written contract, and (2) it is only available as a defence.
Therefore, the plaintiff, who has filed the suit mostly basing his claim on Section 53A of the T. P. Act will not be entitled either in law or in equity to claim a relief especially when his claim itself appears to be based on Section 53A of the Act.
Learned Counsel Sri. P.R. Srinivasan placed before me the decision in Krishnamoorthy Koundar Vs. Paramasiva Koundar, . It was a suit for specific performance of an agreement of sale by prospective vendee. In the said case also, the transferee claiming that he was put in possession of the property under an agreement of sale has sought for injunction under Order 39 Rules 1 and 2 C. P. C. It was a case where the defendants denied the execution of the agreement, denied the receipt of consideration and denied the handing over of the possession. The Madras High Court held:
The plaintiff''s assertion that the possession of the suit properties was given on the date of the agreement was also denied by the first defendant. According to him, the plaintiff had trespassed into the possession of the properties and with a view to sustain the possession of the trespassed properties he has come forward with a false claim for specific performance. The trial Court having held that the truth and genuineness of the alleged agreement of sale has to be established in the suit at the stage of the trial chose to grant an injunction in favour of the plaintiff pending disposal of the suit. The said order has been questioned by the first defendant in this appeal. The Court below having posed the question as to whether the plaintiff took possession of the suit properties on the date of the agreement, viz., 16-8-1977 held that the plaintiff took possession in pursuance of the agreement mainly relying on the recital in the agreement. We are of the view that in the circumstances of this case unless the plaintiff establishes the actual delivery of possession of the properties on the date of agreement of sale, he cannot merely rely on the terms of the agreement which is denied by the first defendant and the truth of which the plaintiff has to establish at the stage of the trial.
In this view of the matter, the trial Court is not justified in granting injunction as prayed for by the plaintiff.
The Madras High Court further in para-3 held:
Even assuming that the plaintiff was given possession of the suit properties on the date of the agreement of sale by the first defendant the question still is whether the plaintiff could claim the relief of injunction based on Sec. 53A of the Transfer of Property Act. Admittedly, in this case, the plaintiff has not yet got title to the properties. He can get title to the properties only if he succeeds in the suit and obtains sale deed in respect of the properties. It is well established that an agreement of sale does not create any interest in the property which is subject matter of the agreement. Therefore, the plaintiff if at all can claim only an equitable right based on S. 53A of the Transfer of Property Act. Therefore, the relief of temporary injunction claimed by the plaintiff pending the suit can be taken to have been claimed by the plaintiff only on the basis of S. 53A of the Transfer of Property Act as mere possession of the plaintiff of the suit properties on the date of the suit cannot be taken to enable him to obtain injunction from the Court. If that will be the case even a trespasser in possession can approach the Court and ask for an injunction pending the suit as an application for claiming equitable relief under S. 53A of the Transfer of Property Act. If the application for injunction is so treated then the plaintiff cannot be granted the relief for the reason that S. 53A can be used to resist the defendant when he seeks to dispossess the plaintiff. It is well established that Section 53A of the Transfer of Property Act provides for a passive equity and not for an active equity. Therefore, the plaintiff cannot seek his relief of injunction in a Court of law based on S. 53A of the Transfer of Property Act though he can use S. 53A to debar the transferor who has agreed to sell the property from claiming any right in respect of that property. It is well established that the right conferred by S. 53A is a right available to the defendant only to protect his possession and on the basis of that section the defendant cannot claim any title and it merely operates as a bar to the plaintiff to ascertain his title." Therefore, the facts in the said Madras case appear to be on all fours with the present case. Further, I am of the opinion that the plaintiff, who appears to have filed the suit basing his relief under Sec. 53A of the Act, is not entitled to the relief of a temporary injunction under Order 39 Rules 1 and 2 C.P.C. Therefore, under these circumstances, the Court below, in my opinion, both on facts and in law was justified in dismissing I. A. V. Accordingly, the appeal is dismissed. No costs. I. A. I. filed by the plaintiff-appellant in this appeal is dismissed. It is not necessary to pass any orders on I. A. III filed by the defendants-respondents in this appeal.
(XLix). In the instant case on hand, Ex. A.1 Sale Agreement dated 15.09.1959 is in favour of the Appellant/Plaintiff, executed by Perumal Pillai, in respect of the suit property. Ex. A.2 Endorsement is dated 06.08.1963. A decree in O.S. No. 82/1124 (Malayalan Era) (English year of 1949), on the file of the Principal Sub Court, Nagercoil has been passed in the year 1964. When a decree in O.S. No. 82/1124 (Malayalan Era) (English year of 1949) has been passed in the year 1964, then as per endorsement in Ex. A.2 dated 06.08.1963, the sale deed should have been executed within a month after disposal of the said O.S. No. 82/1124. In the instant case, the sale deed has not been executed till the date of filing of the suit by the Appellant/Plaintiff viz., on 10.02.1995. Therefore, the suit filed by the Appellant/Plaintiff is hopelessly barred by time.
(L). In the upshot of qualitative and quantitative discussions mentioned supra and in view of the fact that Perumal Pillai has no manner of right to deal with the suit property belonging to the first Respondent/Trust and viewed in that perspective, the very same execution of Ex. A.1 Sale Agreement dated 15.09.1959 to and in favour of the Appellant/Plaintiff is not a true, genuine document and the said document is a manufactured one by the said Perumal Pillai and as against the true owner in respect of the suit property viz., the first Respondent/Trust, the Appellant/Plaintiff cannot get the relief of permanent injunction legally and accordingly, it is held by this Court that the trial Court as well as the Appellate Court are correct in dismissing the suit in toto, even without narrating the full evidence on record including Ex. C.1 and C.2(Commissioner''s Report and Plan). (Notwithstanding the fact that, one of the reliefs prayed for by the Appellant/Plaintiff is one of permanent injunction etc.) Accordingly, the first Substantial Question of Law is answered against the Appellant/Plaintiff.
(Li). As regards the plea of the Appellant/ Plaintiff that both the Courts have not considered the full evidence relating to the possession of the suit property by the Appellant/Plaintiff including Exs.C.1 and C.2 Report and Plan of the Commissioner, it is to be pointed out that when the first Respondent/Trust/Chidambara Vinayagar Idol is the owner of the suit property, then Perumal Pillai cannot deal with the suit property, since he is not either the Trustee or the Managing Trustee of the temple at the time of execution of Ex. A.1 Sale Agreement dated 15.09.1959 and as against the true and lawful owner viz., the first Respondent/Trust, the Appellant/Plaintiff cannot claim any relief much less the relief of injunction sought for by him and is taking shelter as per Section 53(A) of Transfer of Property Act, it will not in any manner help the Appellant/Plaintiff''s case and as such, he cannot employ the ingredients of Section 53(A) of Transfer of Property Act and accordingly, the second Substantial Question of Law is answered against the Appellant/Plaintiff.
The Contentions, Discussions and Finding on point No. (c):
The Learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court viz., the Learned II Additional Sub Judge, Nagercoil in Appeal A.S. No. 90 of 2005 has framed an omni bus point for determination viz., "Whether the Appeal is to be allowed or not?" and in fact the First Appellate Court has not framed the necessary points for determination as per Order 41 Rule 31 of the CPC and as such the Judgment of the First Appellate Court in A.S. No. 90 of 2005 dated 13.12.2005 stands vitiated.
(ii) To lend support to the contentions that the ingredients of Order 41 Rule 31 of the CPC are mandatory, the Learned Counsel for the Appellant/Plaintiff cites the decision of the Honorable Supreme Court in H. Siddiqui (Dead) By LRS. V. A. Ramalingam reported in (2011)4 SCC at page 240, at page 247 wherein in paragraphs 20 and 21 it is observed as follows:
The High Court failed to realize that it was deciding the first appeal and that it had to be decided strictly in adherence with the provisions contained in Order 41 Rule 31 of the Civil Procedure Code, 1908 (hereinafter called "CPC") and once the issue of the alleged power of attorney was also raised as is evident from Point(a) formulated by the High Court, the Court should not have proceeded to Point (b) without dealing with the relevant issues involved in the case, particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property.
Order 41 Rule 31 CPC
The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the Judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court''s judgment is based on the independent assessment of the relevant evidence on all importance aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. Thakur Sukhpal Singh Vs. Thakur Kalyan Singh, , Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, , G. Amalorpavam and Others Vs. R.C. Diocese of Madurai and Others, , Shiv Kumar Sharma Vs. Santosh Kumari, and Gannmani Anasuya V. Parvatini Amarendra Chowdhary)
(iii) He also cites the decision of this Court in Kannammal Vs. Kuppanna Gounder, , wherein it is held as follows:
The powers of the Appellate Court to pass an order of remand and to send the case back for trial is well settled. Under O.41, R.23, CPC the Appellate Court has got power to remand a suit for fresh disposal (a) if the suit has been disposed of on a preliminary point or (b) if the Appellate Court considers that it is necessary in the interests of justice that the matter should be disposed of afresh by the trial court has been repeatedly pointed out by this Court that this power of remand ought not to be lightly exercised by the Appellate Court, where it has failed to discharge its own duty of disposing of the appeal on merits. The case on hand is one such.
(iv) It is to be borne in mind that the Judgment of the Appellate Court ought to state the reasons for the decisions. The object is that to provide a litigant an opportunity of knowing and appreciating the grounds upon which the decision proceeds with a view to enable them to exercise, if think fit and or so advised the right of Second Appeal confirmed by Section 100 of Civil Procedure Code. On going though the Judgment of the First Appellate Court in A.S. No. 90 of 2005, it is clear that the First Appellate Court has only framed a wholesale point for determination in a mechanical way viz., "Whether the Appeal is to be allowed or not?", which is not in conformity with the ingredients of Order 41 Rule 31 of the Civil Procedure Code, in the considered opinion of this Court. At this juncture, this Court describes Order 41 Rule 31 of the CPC as follows:
Contents, date and signature of judgment: The Judgment of the Appellate Court shall be in writing and shall state
(a) the points for determination;
(b) the decision there on;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring thereon.
(v) The aim of this Rule is to make it essential on the Appellate Court to raise points for determination, which is to clear up the plea and focus the attention of the Court and of the parties on the specific and rival contentions which crop up for adjudication. The ingredients of the CPC are mandatory. Failure to comply with these requirements cannot be said to be a mere irregularity. A proposition "Whether the Appeal is to be allowed" as framed by the First Appellate Court in A.S. No. 90 of 2005 is no ''point'' at all as opined by this Court. The matters prescribed under Order 41 Rule 31 of C.P.C. are to be stated in the Judgment of the First Appellate Court. Furthermore, in a case open to appeal, it is desirable that a Court of Law must record its findings in all issues in case the Court of Appeal disagrees with in all the findings.
(vi) Indeed, the Appellate Court Judgment must contain decision on each point arising for consideration before it and its omission is contrary to the ingredients of Order 41 Rule 31 of the CPC as opined by this Court.
(vii) Even though, the First Appellate Court in A.S. No. 90 of 2005 in its judgment dated 13.12.2005 has framed a wholesale point for determination of "Whether the Appeal is to be allowed?", yet it has dealt with the subject matter of the disputes/controversies by means of discussions notwithstanding the fact that the First Appellate Court has framed an omnibus point in Appeal for determination as referred to supra. However, this will not preclude this Court to deal with the material facts and legal issues in proper, perspective manner and to arrive at a conclusion independently based on the oral and available materials on record. Therefore, this Court has avoided the remand and has dealt with the subject matter controversies between the parties in the Second Appeal on merits and accordingly, the Substantial Question of Law(c) is so answered.
In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the trial Court viz., the Learned II Additional District Munsif, Nagercoil, in O.S. No. 154 of 1995 as well as the Judgment and Decree of the First Appellate Court viz., the Learned II Additional Sub Judge, Nagercoil are affirmed by this Court for the reasons assigned in this Second Appeal. Consequently, the connected Miscellaneous Petition is also closed.