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Judgment
T.N. Vallinayagam, J.—The plaintiff who lost in both the courts is the appellant. At the time of admitting the Second Appeal and while
framing the substantial question of law this court observed as follows:-
The defendant resisted the suit originally contending that he is in possession of the entire suit property, but the courts below found that the
defendant is in possession of 30 cents of land out of the suit property. Though before the lower appellate Court the plaintiff claimed that even if the
defendant has established his case of possession of 30 cents of land, the plaintiff is entitled to claim injunction for the balance of the suit
extent...........The question is whether it is open to the court to grant an injunction for a lesser extent than the extent claimed by the plaintiff.
Originally the suit was for permanent injunction restraining the defendant, his men, servants or agents from interfering in any manner with the
plaintiff''s peaceful possession and enjoyment of the suit property viz., 1.86 acres of Natham Manthai Poramboke land which forms part of A
Schedule Property. Later on, the plaint was amended for the alternative relief of directing the defendant to put the plaintiff in possession of the B
Schedule Property, if the defendant is found to be in possession of the same. The plaint goes on the footing that the suit property has been having a
sugarcane crushing shed crushing room, crushing machine and a hay rick. In respect of the suit property, already there was a dispute between the
plaintiff and one Palaniappa Nadar son of Nachimuthu Nadar residing at Thirumakkudaloor. There is a suit in O.S.No. 1129 of 1967 wherein the
plaintiff obtained a decree for permanent injunction in respect of the same property on 30.11.1971. In that suit a Commissioner was appointed and
he has filed a report with a plan. The plaintiff claimed that the suit property is 1.86 Acres, but in boosthithi the plaintiff has been in actual possession
and enjoyment of about 1.63 Acres as observed by the Commissioner in O.S.No. 1129 of 1967. It was submitted that whatever may be the
extent mentioned in the B Memo the actual extent within the four boundaries alone will prevail. The plaintiff further accepted that the defendant was
attempting effectively to encroach over some portion of the suit property. Hence the suit for injunction.
In the written statement it was contended by the defendant that it is true that Survey No. 288/2 measuring an extent of 68.30 acres is a Natham
Mandhai Poramboke. But the defendant disputed that the plaintiff is in possession and enjoyment of 1.67 acres of the same. It was the case of the
defendant that even prior to 1950 the defendant had encroached the suit survey fully and is residing there by constructing a house and also doing
cultivation. Further B Memo also has been issued to the defendant. The property in the possession of the defendant has nothing to with the
property in the possession of the plaintiff. Though the defendant has been in possession and enjoyment B Memo has been issued to the extent of
20 cents only. In fact even prior to the encroachment made by the plaintiff when the defendant has already encroached 1.63 acres and he is in
possession and enjoyment of the same; the decree in O.S.No. 1129 of 1967 will not bind the defendant.
In the additional written statement, the defendant contended thus:-
The site marked by the Commissioner as E has been given by the defendant to the plaintiff for the purpose of putting sugarcane crushing shed and
on such permission the plaintiff was in possession of the same. His possession is not as a matter of right. The plaintiff after having known that he has
not been in possession and enjoyment of the suit property has come forward with the alternative relief. The suit property belongs to the
Government. Except the Government, others have no right to evict the person in possession of the said property. The defendant therefore prays
that the suit may be dismissed with costs.
The learned District Munsif dismissed the suit on 2.4.1980. As against that A.S.No. 5 of 1981 was preferred. The Appellate Court dismissed
the appeal observing:
But the plaintiff has chosen to set out the entire 1.86 acres as the subject matter of the suit and his specific case is that he is in possession and
enjoyment of the entire 1.86 acres. In such circumstances the plaintiff''s case cannot be split up just because the defendant has stated that he is in
possession and enjoyment of 30 cents."" and holding when a larger relief is prayed, lesser relief cannot be granted, the Appellate Court dismissed
the appeal.
The respondent is not represented in this appeal.
I heard the learned counsel for the appellant. In my opinion the Second Appeal has to be allowed for the following reasons.
The Appellate court was mainly carried away by the fact that under Ex.A-1 which is the B Memo issued on 28.11.1973, the area of the land has
been corrected as 1.63 Acres and the Number 1 is over written. Therefore, the Appellate Court was not prepared to rely upon Ex.A-1. But the
Appellate Court has failed to note the notice under Ex.A-2 which is also a B Memo issued on 15.8.1974, it is clearly mentioned that the area is
1.63 acres as contended by the appellant. Ex.A-4 is the certified copy of the decree in O.S.No. 1129 of 1967 wherein injunction has been
granted in favour of the plaintiff in respect of the same property. Of course there is a difference in area but the boundaries tally. The only difference
is that the area is mentioned as 1.00 Acre in Ex.A-4 and 1.86 Acres in the plaint. In Ex.A-5 the Commissioner appointed in the earlier suit viz.
O.S.No. 1129 of 1967, in paragraph 7 of his report mentions that the area in the occupation of the plaintiff is 1.86 Acres. It is significant to note
that this Commissioner''s report is dated 18.1.1968. Ex.A-6 is the plan submitted by the Commissioner along with his report wherein the area
occupied and the area which was in possession of the plaintiff is clearly shown. In Ex.A-8, which is mainly relied upon by the counsel for the
appellant, there is a clear finding by the Revenue Authority viz., the Commissioner of Land Revenue and Land Reforms on 13.9.1973 that.
It is seen that the encroachers are only 2 small extents of 1.60 Acres by tiled building and cane-crusher and 83 cents by cultivation in S.No.
282/2.
The encroacher referred to above is the plaintiff. It is pointed out by the learned counsel for the appellant that this report and the finding of the
Revenue Authority has not been considered by the lower Court as well as by the Appellate Court. This practically clinches the issue in favour of
the appellant.
As against these documents Ex.B-1 is a B Memo issued in favour of the defendant in respect of 20 cents in Survey No. 282/2, Natham
Mandhai. In Ex. B-2, B Memo is issued in respect of 35 cents. In Ex.B-3 again the B Memo is issued for 35 cents in Survey No. 282/2 Natham
Mandhai. So Exs.B-1 to B-3 best reveal that the defendant can claim only 35 cents and not more. The counsel for the appellant also fairly
concedes, (notwithstanding the facts the Appellate Judge refers to 30 cents towards the end of the judgment,) 35 cents at best can be held to be in
possession of the defendant and not more. According to the learned counsel Ms. Malar Vizhi, she is satisfied if a decree is given in respect of 1.51
Acres of land alone. I have no hesitation in holding the view that the plaintiff is entitled to injunction in respect of 1.51 Acres of the suit property.
The view of the learned Appellate Judge that when the claim is made in respect of a large extent of property, if it is found that the plaintiff at best
can claim for a lesser extent, the decree for lesser extent cannot be given, is not correct.
In support of this view the learned counsel for the appellant relied upon a case reported in B. Venkatraman and Ors. v. A. Balaramudu and
Ors., 1978 Andhra Weekly Reports 370 wherein in paragraph 13 it is held as follows:-
It is well-settled that court cannot dismiss the suit merely because the plaintiff was not able to establish his claim in its entirety even though he was
able to succeed in establishing a part of his claim. What the Court has to do in those circumstances is to grant relief on what he has been able to
prove.
Therefore, the Appellate Judge is clearly wrong in his view. I also feel that the additional written statement has not been considered by the courts
below. In the additional written statement it is clearly mentioned.
In view of this admission made by the defendant in the additional written statement on 18.1.1980, the courts below ought to have granted an
injunction as prayed for. It is also significant to note that the defendant has not deliberately mentioned the extent in the occupation of the plaintiff in
the said additional written statement. Therefore, what remains to be done is to grant a decree for injunction in favour of the plaintiff in respect of
1.51. acres of the land in the suit property. In view of the alternative prayer for possession, I feel it necessary to grant the decree for possession
also i.e., if it is found that any portion of 1.51 Acres of land is found to be in possession of the defendant the plaintiff is entitled to a decree for
possession, apart from the decree for injunction. To this extent the Second Appeal is allowed, but without costs as the respondent is not
represented.