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Judgment
S.S. Subramani, J.—The suit was filed before the City Civil Court, Madras on 5.9.1991 and numbered as O.S. No. 6725 of 1991. It was
withdrawn to this Court as per judgment in Writ Appeal Nos. 1262 and 1263 of 1994, which are also proceedings between the plaintiff and the
first defendant in this case. A total extent of 5 ''Manais'' and 477 ''Kulies'' in Survey No. 3814, Teynampet, Madras originally belonged to one
Appan, as per sale deed, dated 7.6.1957. The purchaser converted the same into several plots situated on the western and eastern sides of
Kamarajar Salai, Madras. A portion of the layout is marked as Ex.A-28 in this case. Ex.A-28 is in respect of Plot Nos. 6, 7 and 8 situated on the
western side of Kamarajar Salai. The purchaser sold the entire Plot No. 6 in favour of one Prema under registered sale deed dated 16.11.1973.
He also sold the entire Plot No. 8 on 5.12.1979 as per Ex.A-29 to the first defendant in this case.
The subject matter in this suit is Plot No.7. The same is having a total extent of 1774 sq. ft. Plot No. 7 was sold to second defendant in this
case, who is none other than the wife of the first defendant. Ex.A23 is the sale deed in favour of the second defendant. As per the layout which is
Ex.A-28. each of Plot Nos. 6, 7 and 8 is having a length of 76.9'' lying east west and a width of 23'' north south. It is seen that out of plot No. 7,
second defendant sold a portion to one Muniammal on 7.3.1974. Plaintiff himself has produced a registration copy of the document and the same
was marked as Ex.A-30. The remaining portion is the subject matter of the suit. The second defendant sold the same to Ranganathan on
10.6.1974 as evidenced by Ex.A-1. A plan is also attached to that deed. Ranganathan sold the same to Chempaka Malini on 6.5.1978, evidenced
by Ex.A-2. Plaintiff claims to have purchased the property from Chempaka Malini. Her father is also a party, and the document is dated 4.2.1981
(marked as F.x.A-3). The title of the plaintiff is based on Ex.A-3.
Now I will give the circumstances which necessitated the filing of the suit. The first defendant who is the owner of plot No. 8 has his property on
the western side of the plaint schedule. He claimed to be in possession of a portion of the plaint schedule property also. It is said that the first
defendant was in possession of a portion of the plaint property on the western side, and the plaintiff herein trespassed into that portion on 8.8.1981
and he initiated proceedings under S. 6of the Specific Relief Act. He filed O.S. 1584 of 1981 before the City Civil Court, Madras, for recovery of
possession. After taking evidence, that suit was dismissed, against which he preferred a Revision before this Court as C.R.P. No. 1382 of 1985.
The Revision was allowed, and this Court held that the plaintiff is a trespasser and that he has actually committed trespass on 8.8.1981. He was
directed to hand over possession to the first defendant, and cost was also allowed. The order of this Court is dated 5.7.1991. It is subsequent to
the order in the Civil Revision Petition, the present suit is filed for declaration of title and consequential reliefs. It is averred in the plaint that the plan
attached to Ex.A-1 does not correctly state the extent of the property conveyed to Ranganathan and the mistake in the plan was repeated in the
subsequent documents including Ex.A-3 purchased by the plaintiff. According to him, in Ex.A-1 plan, the total extent conveyed is noted as 890 sq.
ft. whereas it is really 1073 sq. ft. According to him, the recital in the sale deed and the plan arc inconsistent and, therefore, it requires rectification.
Along with the plaint, he has also produced a rough plan wherein he has noted the measurement which he is entitled to as per Ex.A-3 sale deed. It
is further averred that after the purchase, plaintiff started an additional construction on the western side to an extent of 20 ft. x 23 ft. excluding a
portion as open space. The same was objected by the first defendant and he filed O.S. No. 5884 of 1981. It is further alleged that the plaintiff
himself filed an earlier suit for a similar relief as O.S. 6295 of 1981, on the file of City Civil Court, Madras and he also filed another suit against the
4th defendant in this case, which is the Corporation of Madras, as O.S. No. 7824 of 1981. Both the suits were withdrawn by him, with liberty to
file fresh suit on the same cause of action. It is further stated that even though he began construction without a plan, he thought that the construction
made could be regularised and he was being assured by the Corporation that permission will be granted. In fact, the plaintiff further says that even
though permission was granted, the same was revoked by the fourth defendant unilaterally and without hearing him and, therefore he has impleaded
the 4th defendant also in this suit to get a relief of mandatory injunction directing it to issue a licence for the construction of the building. It is further
averred that the third defendant has obtained some right under the first defendant and, therefore, he is also impleaded as a party to the suit. The
reliefs that are sought in the plaint are as follows:-
For declaring the plaintiffs title to the suit property marked as ''ABCDFGHIJ'' including the portion coloured in Red and shown as ''CDEF in the
plaint plan which was the subject matter of O.S. No. 5884 of 1981, (City Civil Court, Madras), and also the portion coloured in BLUE and
marked as ''ABU'' in the plaint plan attached hereto.
b. A mandatory injunction directing the second defendant to execute and register a Rectification Deed to the plaintiffs sale deed dated 4.2.1981 by
showing the correct extent of 1.073 sq.ft., in place of 890 and 886 sq. ft. shown in the Schedule and plan to the said sale deed, failing which the
Registrar, City Civil Court, Madras may be directed to execute and register the said Rectification Deed.
c. For a permanent injunction restraining the defendants 1 to 4 from interfering with the plaintiffs possession of the suit property shown as
''ABCDEFGIJ'' in the plaint plan attached hereto, including the portion coloured RED and shown as CDEF in the plaint plan.
d. For a mandatory injunction directing the fourth defendant herein to give its permit in respect of all the constructions put up by the plaintiff in the
portion marked as ''BCDEFGI'' in the plaint that attached hereto
or
e. in the alternative, grant a decree for a declaration that the plaintiff is entitled to the partway of an extent of 5 ft. x 36 ft. 6 inches coloured in blue
and shown as ''ABIJ'' in the plaint plan attached hereto by way of easement of necessity and also by way of prescription and adverse possession.
f. directing the defendants to pay the costs of the suit to the plaintiff, and
g. such further or other orders as this Hon''ble Court may deem fit and proper in the circumstances of the case.
Written statement has been filed by the first defendant wherein it is contended that the suit is barred by res judicator in view of the decision in
C.R.P.1382//85 and, therefore the present suit is not maintainable. He also contended that the suit is not maintainable without complying with the
directions in the Revision Petition, i.e., first he must surrender vacant possession of the property trespassed and thereafter only he can institute a
suit for getting the relief sought for. Therefore, the suit is premature. It is further stated that the documents produced by the plaintiff are all forged
and, therefore, action will have to be taken against the plaintiff, for which he has already taken legal steps. He also said that earlier the plaintiff filed
O.S. No. 6295 of 1981 and the same has been withdrawn and therefore, the present suit is also bad under O. 23 R. 1, C.P.C. It is further
contended by the first defendant that the plaintiff has no till to the property and the description of property as shown in the plaint plan is not true.
He is only a trespasser and a trespasser is not entitled to seek an equitable relief from court. He also says that the mandatory injunction against the
corporation of Madras (4th defendant) also cannot be granted since it is discharging its statutory duties. He also claims that he is the owner of the
property which has been trespassed by the plaintiff and, therefore, the suit is liable to be dismissed with costs.
On 22.11.1994, plaintiff suggested the issues and they were accepted by the Court on the same day. At the time of arguments, learned counsel
appearing on either side, with consent of the respective parties, suggested some more issues. Accordingly the issues were recast, and now the
issues framed are as follows:
Whether plaintiff is entitled to decree declaring his title to the suit property shown as ABCDJIFGIJ in plaint plan//sketch?
Whether the plaintiff is entitled to alternative relief of declaration that he is entitled to possession of ''ABIJ'' in plaint plan by way of easement of
necessity and prescription or by adverse possession?
Whether the plaintiff is entitled to relief of mandatory injunction against the 4th defendant as prayed for
Whether plaintiff is entitled to relief of permanent injunction against defendants 1 to 3 as prayed for?
Whether the plaintiff is entitled to relief against the 4th defendant directing him to give permission for all constructions put up by plaintiff in
possession marked BCDEFGI in plan and prohibitory injunction as prayed for?
Whether the suit is bad for non-joinder of parties as stated in para 16 of written statement?
Whether proper court-fee has been paid on the plaint?
Whether the suit is maintainable under O. 23?
Whether the suit is barred by res judicata?
Whether the suit is barred by limitation?
To what reliefs arc the parties entitled?
On the side of the plaintiff, Ex.A-1 to A-36 were marked and P.W.1 was examined. P.W.1 is the son of the plaintiff. On the side of the
defendants, the first defendant got himself examined as D.W.1, and Ex.B-1 to B-5 were marked. Ex.C-1 to C-5 are the Commissioner''s Report
and plan prepared in O.S. No. 5884 of 1981.
At the time of argument, learned counsel for the plaintiff submitted that he is not pressing issue No. 2, i.e., the claim of easement by necessity,
and he said that even in respect of the plot over which easement of necessity is claimed, he is the owner and, therefore, the only contention that
requires, consideration is, whether he is entitled to get any declaration over the property. Hence issue No. 2 is deleted.
Issue No: l: Along with the plaint, plaintiff has filed a plan showing the property in respect of which he wants declaration. The plan is drawn on
the basis of Ex.A-28 and A-1. But in the plan filed along with the plaint, there are certain mistakes which I will consider at the time of discussion of
the evidence.
The layout plan Ex.A-28 is not disputed by either party. Hence that can be taken as the basic plan to determine the rights of parties. As per
Ex.A-28, Plot No. 7 is the middle plot. In Ex.A-28, the northern boundary of Plot Nos. 6 and 7 is stated to be having a length of 77 ft. 6 inches.
But in the plaint, it is admitted that the northern boundary of plot No. 7 is having a total length of only 76 ''9"". The fact that the length is only 76'' 9
is also admitted by the first defendant. So far as the width of the property is concerned, all the parties agree that each and every plot is having a
width of 23 ft. On the eastern side of plot Nos. 6, 7 and 8, there is a 15'' wide road which leads to Eldams Road. It is situated on the northern
side. The 15 feet wide road is known as Kamarajar Salai, made mention of in the plan.
In the plaint plan, CDEF Plot is marked on the western side situated within the plaint schedule having a total width of 23 feet. The subject
matter of the suit is also that plot even though the entire plot purchased by the plaintiff under Ex.A-3 is scheduled to the plaint. It is in respect of the
red marked portion shown as CDEF plot, the earlier suit under S. 6of the Specific Relief Act was initiated by the first defendant, in which a decree
was granted in his favour.
Even though the red marked portion is shown as having a total length of 23 feet, the same cannot be correct. We find that under Ex.A-1, sale
deed executed by the second defendant in favour of Ranganathan, on the southernmost portion of plot No. 7, she has retained a small portion for
herself a property having a length of 2 feet on the southern portion of plot No. 7. To that extent, the plaint plan is defective.
A Commission ought to have been taken during trial to identify the property and prepare a plan. But either party did not care to do the same,
and therefore, any relief that could be granted can only be on the basis of the documentary evidence that is available in this case. On the basis of
documentary evidence, a plan is also being prepared by me.
Under Ex.A-1, the property conveyed to Ranganathan by the second defendant is marked yellow. The entrance to the property is shown in
the plan which includes ABIJ plot also over which the plaintiff claims a right of passage. From Ex.A-1, it is clear that even in respect of that plot,
the ownership is conveyed to Ranganathan and subsequently the same has also come to the hands of the plaintiff under Ex.A- 3. That is why
learned counsel did not pursue his argument on the basis of easement of necessity over ABIJ plot. There is no dispute by the defendants also in so
far as that plot is concerned.
In the property purchased by the plaintiff, there was a building and from Ex.A-3 we find that the vendors therein have also entered into an
agreement for sale with one M.S. Kumarasami who obtained possession of the same even before the sale could be executed. It is further seen
from Ex.A-3 that the agreement provided for the appointment of a nominee and the plaintiff was named as nominee therein. Ex.A-3 was executed
by Chempaka Malini in favour of the plaintiff and the same was duly attested by M.S. Kumaraswami, the agreement-holder. In the sale deed also
the area conveyed is stated that be 890 sq.ft. or thereabouts. The side measurements of the entire plot No. 7 are also described therein and
thereafter the property conveyed to the plaintiff is demarcated Annexure 1-A is appended to the sale deed Ex.A-3 wherein the vendors have said
that the area sold is 890 sq.ft. and the built-up area is nearly 400 sq.ft.
It is the case of the plaintiff that if we take into consideration the side measurements conveyed, the statement that the area is only 890 sq.ft.
cannot be correct and the same is a mistake which is liable to be corrected. According to him the statement that 890 sq. ft is the extent, is the
reason for the prior litigation between the parties, and if on a proper calculation the area is found to be more, he is entitled to get declaration as
sought for in the plaint.
The said argument of the learned counsel for the plaintiff cannot be brushed aside.
I give reasons for the same. It is not disputed that the total extent of Plot No. 7 is 76.9 x 23 = 1765-3 sq. ft. The same is clear from a proper
calculation of Plot No. 7 according to the lay-out plan and also Ex.A-30 sale deed executed by the second defendant in favour of Muniammal. As
per Ex.A-30, the second defendant conveyed an area of 584-0 sq.ft. (i.e 36.6. x 16) in favour of Muniammal (In the document also it is stated as
584 sq.ft.). The area out of the remaining portion, after retaining a small portion in her favour on the southern extremity of plot No. 7, the remaining
portion has been sold to Ranganathan under Ex.A-1. The southern line is 76'' 9"". In Ex.A-1, on the rear portion of the yellow mark, i.e., on the
western line, there is a correction. It is corrected as ''23 even though it can only be ''21''. Since plot Nos. 6, 7 and 8 are divided by parallel lines,
and when it is stated that each plot is having a width of 23 feet and out of the said plot, when second defendant retains a small portion for herself
on the southern extremity, it cannot be said that the plaintiff could obtain a portion having a width of 23 feet on the western extremity. Further, the
side measurements in regard to the property sold to Muniammal also will show that she has got a property having a width of 16 feet, after leaving a
width of five feet on the southern side. Taking these together, the width of the yellow marked portion can only be 21 feet and the second defendant
herself. That is clear from the plan appended to Ex.A-1.
Even though various arguments were taken, when I asked the defendants whether they claim any portion in the yellow marked area, the
learned counsel fairly conceded that he is not claiming any area over the yellow marked portion. He also said that he has no objection in recording
such concession. On the basis of the documentary evidence, it can safely be concluded that the plaintiff has title to the yellow marked portion
covered by Ex.A-1. It subsequently devolved on him as evidenced by Ex.A-3.
The learned counsel for the first defendant submitted that at the time of passing the decree, the plaint plan should not be the basis for granting
the decree and he wanted that the yellow marked portion must be specifically specified for granting the relief. Since 1 have held that there is a
correction on the western line in Ex.A-1 plan, I think it is just and proper to draw a plan and append the same to this decree. When we calculate
the area of the yellow marked portion after taking into consideration the earlier documents executed by the second defendant, it is clear that the
area mentioned therein as 886 sq. ft. in Ex.-1 cannot be correct. Further, the area is only approximate is clear from the description of property
scheduled therein. In the schedule, it is said as 890 sq.ft. or thereabouts and in the plan it is said as 886 sq.ft. Both these statements cannot be
correct on a calculation of the entire extent.
I give the calculation as follows:
The area retained by Visalakshi Animal (Second defendant) on the southern side of the property is 153.6 sq.ft. (i.e.,76.9 x 2)
Even though the plaintiff has claimed that he is entitled to get title declared on the basis of the plan filed along with the plaint and also to an
extent of 1073 sq.ft., that will not disentitle him to get a relief for a lesser extent. I hold that the plaintiff is entitled to a decree declaring his title to
the property as shown in the plan appended herewith. Issue No. 1 is found accordingly.
Issue No. 4: This issue relates to the grant of injunction against defendants 1 to 4. Grant of injunction is a consequential relief, though prayed as
an independent relief in the plaint. That relief is also based on the plan appended to the plaint, i.e., for a plot of 1073 sq.ft. I have already held
while deciding issue No. 1 that the plaintiff will not be entitled to a relief as stated therein and the title is declared only in respect of 1027-9sq.ft.
But the question whether the plaintiff is entitled to an injunction depends on many other factors.
It is contended by learned counsel for the defendants that under S. 6of the Specific Relief Act, the suit cannot be one for injunction, but must
be one to recover possession. S. 6 (4) of the Specific Relief Act says:
Nothing in this Section shall bar any person from suing to establish his title to such property and to recover possession thereof.
Learned counsel also relied on the decision reported in AIR 1995 Allahabad 64 (Parma Nand and others v. Sm. Chnimmawati and another). In
the said decision, a learned Judge of the Allahabad High Court held thus:-
A suit by the person against whom a decree has been passed under S. 9for restraining the decree-holder from executing the decree does not lie. If
such an injunction is granted the very object and purpose of the suit under S. 9(which is that if a person takes the law in his own hands and forcibly
dispossesses another otherwise than in accordance with law he must surrender possession irrespective of any title that may vest in him) will be
defeated. The judgment-debtor must first surrender possession to the decree-holder in execution of the decree passed under S. 9, Specific Relief
Act, and then may assert any right on the basis of tide which he may possess. The plea of title which cannot be set up in the suit itself cannot also
be set up as a bar to execution proceedings.
But I find that the said decision has been reversed in the decision reported in AIR 1972 Allahabad 418 wherein a Division Bench of that High
Court has held thus:-
The phrase and to recover possession thereof occurring in S. 6does not preclude or bar a suit for title in which a consequential relief other than
recovery of possession is claimed. In a case where the plaintiff is dissatisfied with a decree under S. 6, he can immediately institute a suit for a
declaration of his title. He can claim the available consequential relief. If on the date of the suit, the plaintiff finds himself in possession of the
property he cannot legitimately ask for recovery of possession. All that he can pray for is that the status quo be maintained and an injunction be
issued restraining the defendant from dispossessing him. This consequential relief naturally follows from his claim on title coupled with the reality of
the situation.
The relief sought being for a declaration and for an injunction restraining the defendant from interfering with the peaceful possession of the plaintiff
either by executing the decree or through any other means or ways, it cannot be said that the suit is instituted either to restrain the defendant from
prosecuting a judicial proceeding or from institutions the execution application within meaning of clauses (a) and (b) of S. 41of the Act.
In the said Bench decision, an early decision of the Bombay High Court reported an AIR 1922 Bombay 216 (Man Doddatammal, Markundi v.
Santaya Ram Krishna Pai Kolle) is referred to, wherein it was held thus:-
.....a person in possession against whom a decry under S. 9of the Specific Relief Act has been passed in favour of another person can bring a suit
to destabilize his title to the land, and for an injunction restraining the other person from executing his decree. It was held that such a suit is not
barred by S. 56of the old Species Relief Act, which is equivalent to S. 41 (a) of the present Act.
Similar view has also been taken by the learned judge of the Gujarat High Court reported in AIR 1984 Gujarat 66 (Mohammad Hussain Suleman
Shaikh and another Batukbhai Vatjibhai and others) wherein it was held thus:
In a case where the plaintiff is dissatisfied with a decree under S. 6he can immediately institute a sued for declaration of his title and can claim the
available consequential relief. That is, if he is in possession of suit property, all that can he can pray for is that status quo be maintained and an
injunction be issued restraining the defendant from dispossessing him However, while granting interim injunction the court is required to consider all
the relevant facts, i.e., prima facie case, balance of convenience and irreparable injury to either party.
Our High Court also had occasion to consider the said question and the decision rendered therein is reported in 1967-I-M.L.J.346 (R.
Gopalakrishna Pillai v. P.S. Venkatesam Pillai = 80 L.W. 76). At pages 347 and 348, a learned judge of this Court has held thus:-
There is nothing in the language of the section to take away the remedies available to a person in possession of property as of right, and entitled to
remain in possession. Of course it goes without saying that when there is a valid decree for possession against a plaintiff, he will not be granted an
injunction from executing that decree. If the legality of the decree is not questioned, a decree-holder cannot be restrained from executing the
decree as between the parties to the decree. In the Allahabad case as I see it, the relief being only for injunction the suit had necessarily to be
dismissed. S. 9provides only a summary and speedy remedy to a person dispossessed. The title to the possession is outside the scope of the suit.
When a suit on title questioning the order in the summary suit is filed, in one sense the decree or order for possession is impugned, and in manner
provided by law as no appeal is competent. The object of the title suit is in substance to have the summary order for possession set aside on the
basis of title and right to present possession. In such a suit if the plaintiff in possession has claimed declaration of his title, in my view it may
properly be followed by the consequential relief of injunction: See Mori v. Santaya (AIR 1922 Bom. 216). S. 56of the Specific Relief Act, 1877
will be no bar.
In the present case the plaintiff has not only asked for declaration of his title but he has also prayed in the alternative for possession. As it happened
in this case, in the interlocutory proceedings for injunction the matter went up in appeal and the appellate Court refused interim relief of injunction.
It is noticed by the learned District Judge that the present plaintiff was willing to permit the defendant to take possession of the suit property. Only
he wanted a condition imposed that the compound wall which was erected by him during his possession pending the suit under S. 9of the Specific
Relief Act should not be demolished by the defendant. In the circumstances of the present case the apprehension noticed in the Allahabad case,
assuming it applies, has no application. Without a claim for injunction the present suit could be maintained. The plaintiff has allowed the defendant
to take possession, and has claimed with declaration, possession as consequential relief. As pointed out by a Division Bench of this Court (Leach
C.J. and Byers, J.) in Narasaya v. Subbayya (55 L.W. 515 at 517 = 1942 - 2 - ML 266 at 268), a person without title in possession of property
is only a trespasser. The learned Judges observed:
The appellants were in possession as trespassers and the fact that they succeeded in the suit under S. 9of the Specific Relief Act did not make their
trespass any the less. They remain trespassers in spite of their decree.
This being the true legal position, I do not find any legal flaw in the frame of the suit that would vitiate the action.
In AIR 1972 Allahabad 418 (supra), a Bench of that High Court was dealing with a relief against an interlocutory order. Their Lordships, after
holding that such a suit is maintainable, directed the trial court to decide whether the discretion is to be exercised in favour of the plaintiff in that
case taking into consideration the legal principles enunciated under law.
In AIR 1984 Gujarat 66 (supra) which also arose from an interlocutory application, it was held that while granting the injunction, the Court is
required to consider all relevant facts, prima facie case, balance of convenience, irreparable injury, etc. and directed the trial Court to consider the
injunction application on merits. The decision of our High Court cited above was also in respect of a case regarding maintainability, and the court
held that without a claim for possession, a suit could be maintained, and the suit need not be one for recovery of possession. What are the matters
that are to be decided while granting an injunction were not decided.
In the decision reported in AIR 1988 Punjab and Haryana 146 (Lakshmi Chand v. Sarla Devi), a learned Judge of that High Court did not
accept the view. That was also a Revision against an interlocutory order, and the learned judge said that the provision of S. 41of the Specific Relief
Act will have to be read into O. 39, R. 1, C.P.C. and the conduct of the plaintiff will have to be considered. The learned judge further held that by
granting a prohibitory injunction, the effect will be to restrain the execution of a decree lawfully obtained and, therefore, barred under S. 41of the
Specific Relief Act. Paragraph 6 of the said decision (at page 149) reads thus:
Once it is held that no suit for permanent injunction would be competent, then the court would have no jurisdiction even to grant an ad interim
injunction to restrain the defendant from executing the decree held by the Supreme Court in Cotton Corporation of India Limited Vs. United
Industrial Bank Limited and Others, .. Even if it may be accepted for the sake of argument that a suit for permanent injunction would be
competent, then even it would not be possible to grant any ad interim injunction. The grant of temporary injunction is regulated by O. 39, R. 1of
Civil P.C., but it can be granted in exercise of the inherent powers also in matters not covered by the provisions of the said Rule. However, as held
in Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, . in so far as the matter in question in any particular case or topic falls within the
ambit of the express provisions of the statute, the inherent powers of the court must to that extent be regarded as abrogated by the Legislature and
the court in such cases cannot have recourse to its inherent powers. A specific provision has been made for the grant of temporary injunction
preventing the dispossession of the plaintiff by cl. (c) of O. 39, R. 1, Civil P.C., which provides that the Court may grant a temporary injunction
when the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property. It is only the first portion
of the cl. (c) which could possibly be invoked by the plaintiff, but that clause envisages a wrongful act on the part of the defendant. The use of the
work ""threatens"" in this part of the clause implies a wrongful act on the part of the defendant and the taking of the law into his own hands. When a
defendant seeks to recover possession through judicial process by way of execution of a decree lawfully passed in his favour, by no stretch of
reasoning can it be said that he is threatening to dispossess the plaintiff or doing any wrongful act. The case, therefore, would not be covered by
the said clause. Nor it would be possible to invoke the powers of the court under S. 151of Civil P.C. because of the specific provision available in
the shape of clause (c) of O. 39 R. 1. The courts below, thus, acted illegally in granting the ad interim injunction in utter disregard and violation of
the provisions of O. 39, R. 1of Civil P.C.
Even though the suit as framed will be maintainable, in view of the settled position of law, that does not follow that the relief of permanent
injunction can be claimed as of right. Grant of an injunction is governed by S. 38, read with S. 41of the Specific Relief Act. S. 38begins with the
words, ""subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent
the breach of an obligation existing in his favour, whether expressly or by implication"". S. 41bars grant of injunction and it begins with the words,
An injunction cannot be granted.."" Clause (i) says: ""when the conduct of the plaintiff or his agents has been such as to disentitle him to assistance
of the court.
In AIR 1942 Patna 349 (Sheo Nandan Prasad v. Sheo Parsan Pathak and others) a Division Bench of that High Court was dealing with an
analogous provision under Specific Relief Act, 1877. Ss.54 and 56of Act, 1877 correspond to Ss.38and 41of the Specific Relief Act, 1963. In
the said decision, their Lordship held thus:-
Ss. 54 and 56 should be read together as supplementing each other because the former debase the circumstances under which the perpetual
injunction may be granted and the latter enumerates cases where an injunction must not be granted.
In AIR 1958 A.P. 43 (Hyderabad Stock Exchange Ltd. v. Rangnath Rathi and Co. a Partnership Firm of Stock and Shares Broker), also, a
Division Bench of that High Court held that Ss. 54 and 56of the Specific Relief Act must be read together as supplemental to each other The
former defines the circumstances under which perpetual injunction may be granted the latter enumerates the cases where an Injunction must not be
granted. It would be an erroneous construction of the Statute to hold that a right to injunction should be determined independently of the provisions
of Ss. 54 and 56by reference to the terms of S. 53. Their Lordships further held that as the relief by way of perpetual injunction is purely of
equitable character, plaintiff must satisfy the Court that his own conduct and dealings in the matter had been fair and honest
In S.C. Banerjee''s Law of Specified Relief (Tagore Law Lectures) - 9th Edition (1992) at page 770, it is said thus:
The Court may refuse an injunction, where the conduct of the applicant has not been just and proper or where the state of things complained of is
the outcome of his own wrong or improper conduct or where he fails to satisfy the court that his own acts and dealings in the matter had been fair
and honest.....
In the same book, at page 768, it is further said thus:-
Another ground personal to the plaintiff, which bars injunctive relief, if such conduct on his agent''s part as disentitles him to the assistance of the
court. For, where a discretionary and equitable jurisdiction of the Court is invoked, the applicant must come with clean hands and show that his
own acts which are relevant to the controversy, had been fair and equitable.
Woodroffe ''Law Relating to Injunction'' (Tagore Law Lectures), Revised and Enlarged Edition (1988), at pages 66 and 67, it is held thus:-
An injunction cannot be granted when the conduct of the applicant or his agent has been such as to disentitle him to the assistance of the court by
way of injunction. The conduct of the party who seeks the aid of the court must be (a) fair and honest, (b) and in particular there must be no
acquiescence, (c) or delay. For the jurisdiction of the court to interfere by way of interlocutory injunctions in support of a legal title being purely
equitable, it is governed upon strict equitable principles. The court, where summary interference is invoked, always looks to the conduct of the
party who makes the application, and will refuse to interfere, even in cases where it acknowledges a right, unless his conduct in the matter is free
from blame.
In accordance with a favourite maxim of equity jurisprudence that he who applies for equity must also have done it, a party applying for an
injunction must come into court with clean hands and a clear conscience. As the relief is of a purely equitable character, the plaintiff must come
within the equitable conditions generally imposed upon parties asking equitable relief. The party seeking relief must not be himself at fault. The
applicant must satisfy the Court that his own acts and dealings in the matter have been fair and honest and free from any taint of fraud or illegality,
that he has not put himself in the wrong; or brought about the state of things of which he complains; and that he has not dealt in an unfair or
inequitable manner in his dealings with his opponent or third parties.
The grant of an injunction, whether it is temporary or perpetual, the principles enunciated in Ss. 38and 41will have to be taken into consideration.
Even though the procedure for granting the temporary injunction is regulated by O. 39, R. 1, C.P.C., the general principles provided under the
Specific Relief Act have also to be complied with. Only on such compliance, a temporary injunction is granted till a particular time or till the
disposal of the suit, whereas, on the same principles, permanent injunction is granted as a result of an adjudication.
In this case, the order in C.R.P. No. 1382 of 1985 was pronounced on 5.7.1991, directing the present plaintiff to restore possession to the
first defendant. From the plan appended to the plaint, it is seen that the subject matter of the suit is the westernmost plot included in the plaint
schedule having a width of 9'' 6"" and a length of 23''. It was this plot that was directed to be surrendered by a judge of this Court, and within a
period of two months, the present suit was filed. Along with the plaint, I.A. 16282 of 1991 was also filed for an injunction restraining the
defendants in this case from interfering with the plaintiffs possession.. Even though initially notice was ordered on 25.9.1991 returnable on
24.10.1991, it is seen that an advance petition was filed as I.A. 16440 of 1991. The court allowed that Application, and the hearing of I.A. 16282
of 1919 was advanced to 27.9.1991, and the court directed notice returnable by 4.10.1991. No interim order was granted, on 4.10.1991,
defendants 1, 2 and 4, who are respectively respondents 1, 2 and 4, entered appearance, and the case was adjourned to 11.10.1991, for filing
counter. On 11.10.1991, the case was further adjourned to 25.10.1991, on which date respondents 1 and 2 filed their counter. The case was
further adjourned to 4.11.1991 for the counter of 4th respondent. On 11.11.1991, the 4th respondent filed the counter, and the case was
adjourned to 6.12.1991. On 6.12.1991, it is seen that the third respondent who was declared ex parte in the interlocutory application, filed an
application to set aside the ex parte order, and the same was allowed. On the injunction application, the matter was heard in part, and for
continuation of the arguments, it was adjourned to 9.12.1991, But, on 6.12.1991, the learned Judge passed the following Order: -
.......Considering the urgency ad-interim injunction is granted till then.
Thereafter, we find that the case was being adjourned from time to time, and the interim order already granted on 9.12.1991, was being extended,
and it is that order which is still in force.
While passing the interim order, the learned judge has not considered the provisions of O. 39, R. 1, C.P.C. Further, O. 39 R. 3, C.P.C.
provides that in all cases notice shall be ordered except where the court feels that the object of granting the injunction will be defeated by delay.
So, only in exceptional cases, injunction has to be granted and the reasons are to be recorded before granting the injunction. But in this case, notice
was ordered since the court was not satisfied about the grounds of Exception provided under Rule. 3. Once notice has been ordered and the
opposite party has entered appearance and filed counter, he must also be heard before passing any further order. On 6.12.1991, the arguments
were heard in part and the case was adjourned to 9.12.1991. The court simply passed an order that due to urgency, an interim order is granted.
On that date, namely, on 6.12.1991, while passing the interim order of injunction, the court did not apply its mind, is clear from the further postings
in the case. After the case was adjourned to 9.12.1991, the case was again heard in part, and it was on that date, even the documents filed by the
plaintiff were taken into consideration. The case was again adjourned to 10.12.1991. Even though there had been postings every now and then,
we find that the case was adjourned mostly on the request of the petitioner''s counsel, and the injunction was also being extended from time to
time. Even after the matter was heard in full, the court did not find time to pass a final order. We find that on 17.12.1991, arguments were heard
and the case was posted for orders on 30.12.1991. On 30.12.1991, instead of passing orders on the interim application, the court simply said that
because it is engaged in some other case, it is has no time to dispose of the application and, therefore, reopened the matter, and at the same time,
the interim order is being extended. Naturally, the first defendant lost faith in the proceedings and we find that be moved an application for transfer
elsewhere That application was taken as a lever by the court for granting extension of the interim order.
We find the entire procedure has been flouted, and a decree granted by this Court was not allowed to be executed. I do not want to
characterise any officer for the said purpose. But I say that the procedure adopted by the court has really prejudiced the case of the first defendant
in this case. For, he was prevented from taking possession of a property on the basis of a valid decree obtained by him. Taking into consideration
the official position of the plaintiff, the impartiality of the officers raises a great suspicion.
In this connection, we may also take note of the allegations of the first defendant also. His very case under S. 6of the Specific Relief Act was
that the plaintiff in this case has trespassed into the property making use of his official position. It is seen that during the relevant time, plaintiff was a
Judicial Officer, working as a Magistrate. It is the case of the first defendant in O.S.No. 5884 of 1981 that even though on 8.8.1981, plaintiff
trespassed into the property and he complained to the local police, police officers were also co-operating with the plaintiff in view of his official
position Therefore, he was constrained to file a suit under S. 6of the Specific Relief Act for recovery of property. From the order in C.R.P. No.
1382 of 1985, it is clear that it was with the help of police, even the walls were dismantled and a vegetable garden was also destroyed. We also
find that the police constable and the Sub-Inspector were also present at the time when these acts took place. A Judicial Officer who is bound to
act in accordance with law, has violated it and abused his official position. This Court has taken note of the conduct of the plaintiff in this case, and
on evidence, has come to the conclusion that he trespassed into the property on 8.8.1981.
Ex.A-3 sale deed is in February 1981. By the finding of this Court, plaintiff trespassed into the property on 8.8.1981. It follows that the first
defendant was in possession before that time. According to the first defendant, he was all along in possession of this property as part of his plot on
the western side. Of course, he claimed possession on the basis of some title which he was not in a position to prove. In evidence also, he said that
long before Ex.A-3, he was in possession of the property. As against the same, plaintiff did not enter the box, and only the evidence of plaintiffs
son who deposed as P.W.1, is before court. At the time of Ex.-3, P.W.1 would have been a child, and therefore, he is incompetent to speak
about possession of the property. For reasons better known to the plaintiff, he did not enter the box and speak about the possession. Believing the
words of D.W.1, it may be said that he was in possession. Even on the date of Ex.-3, plaintiff would not have obtained possession of that plot
marked red in the plaint plan, and be must have forcibly entered possession, violating all principles of law.
I have already stated the principles governing the grant of injunction; whether temporary or perpetual, it is governed by the provisions of
Specific Relief Act. In the decision reported in Premji Ratansey Shah and Others Vs. Union of India (UOI) and Others, . the Supreme Court said
that it is not mandatory that for mere asking such relief should be given. Injunction is a personal right under S. 41 (i) of the Specific Relief Act. In
that case, the question was whether injunction could be granted against the owner who was wrongfully dispossessed by a trespasser Their
Lordships said thus:-
... 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 identity of the land should not be an
excuse to claim injunction against true owner.
In this case, the plaintiff who is bound to administer the law, had no faith in it and forcibly dispossessed the first defendant. Till date, plaintiff has no
ease that the earlier possession of the first defendant was on the basis of trespass. He may not have any title. If the plaintiff had no faith in legal
remedies, his asking for an injunction which is an equitable relief, cannot be claimed as of right, and this Court will have to consider his conduct.
Similar is the case reported in Parbathi Devi Jain v. Kedarlal Jain, 1995 (Supp) (4) SCC 574 .. That is a case where after the passing of
decree, a suit was filed to restrain the decree-holder from executing the decree. Their Lordships said that such a claim amounts to abuse of
process of Court. Even if S. 6of the Specific Relief Act enables the plaintiff to file a suit and get his title declared, so long as the order in Civil
Revision Petition stares against him, the discretionary remedy claimed by him cannot be granted merely because he happens to be the owner. We
have to consider his conduct.
Immediately after the first defendant filed O.S. No. 5884 of 1981, plaintiff also filed another suit against him. Subsequently he withdrew the
same with liberty to file a fresh suit on the same cause of action. With eyes open, the trespass also continued for years together, and till the order
was passed in C.R.P. 1382 of 1985, he continued his unlawful possession, and only after the order was passed in the said C.R.P. he thought of
filing a suit to declare his title with consequential reliefs.
From the narration of above facts, it is clear that the plaintiff has not come to court with clean hands and he misused his official position with the
help of police. Even though he may be the owner, law gives certain rights to persons in possession. He cannot be dispossessed without his consent.
Even if the plaintiff is the owner, law requires that the person in possession can be dispossessed only in accordance with law. The plaintiff who
discharges his duty as a guardian of law himself misused his official position with the active connivance of his own associates, namely, police
officers.
When we consider the question of permanent injunction, the conduct of the plaintiff will have to be considered. Whether such a person is
entitled to permanent injunction and whether equitable relief is to be extended in his favour is a matter which the court will have to think twice
before granting it. At the same time, this Court also cannot shut its eyes in view of the interim order passed in this case. That order has been in
force from 1991 till this date. I have also held that the plaintiff has title to the property in accordance with the plan appended to this judgment.
Having found title in favour of the plaintiff over the plot demarcated in the plan appended herewith, if injunction is not granted, the first
defendant will take possession and thereafter the plaintiff will have to again move the court for recovery of possession, and that litigation also will
have to be fought between the parties. To put an end to this litigation, but at the same time to do substantial justice to both parties, I feel it will be
proper on my part, while exercising the discretion under the Specific Relief Act, to put the plaintiff on terms. I take this view for the reason that the
first defendant, though claimed title, abandoned the same or could not prove the same. He has only a right to possession, though no case has been
put forward by the plaintiff that he is a trespasser. Even at the lime of arguments, I expressed my opinion in open court that the plaintiff has acted
high handily and he has to pay for the same. Learned counsel for the plaintiff also submitted that he will abide by the terms, though he wanted a
reduction in the amount. Plaintiff is directed to pay a sum of Rs. 50,000/- (Rupees Fifty thousand only) to the first defendant as compensation for
his illegal acts. There will also be a decree for permanent injunction restraining the defendants 1 to 3 from interfering with the plaintiffs possession
and enjoyment of the property demarcated in the yellow marked portion of the plan appended herewith. The plaintiff is directed to pay the said
amount to the first defendant within a period of ten days from to-day, and in case he fails to do so, first defendant is at liberty to recover the same
by executing the decree.
In so far as the relief prayed for against the fourth defendant is concerned, I will deal with the same separately.
Issue 9: The finding in favour of the plaintiff in the previous proceeding is only for the purpose of showing possession on a particular date. In a
proceeding under S. 6of the Specific Relief Act, parties go to court only to prove possession and the title is not a matter in issue. That is why S. 6
(4) of the Act enables the party to file a suit to establish his title to the property and to recover possession thereof. So, the very statute provides for
the filing of a suit to get necessary reliefs.
As early as in the decision reported in A.I.R.1940 Calcutta 464 (Sana Mia and another v. Prokash Chandra Bhattacharya and others), it was
held thus:-
... The Section has nothing to do with questions of title. It is intended for the purpose of maintaining the possession of persons who are in actual
physical possession of land and for discouraging persons from attempting to take physical possession of land from another by force....
In AIR 1959 Allahabad 709 (Dr. M.C. Batra v. Lakshmi Insurance Co. Ltd.), it was held thus:-
The object of the section is to discourage people from taking the law into their own hands however good their title may be. What the section does
is to provide a summary remedy to a person who has without his consent been dispossessed of immovable property otherwise than in due course
of law, for recovery of possession without establishing title.
It says nothing about the nature of the possession enjoyed by the persons dispossessed, although it may well be that a suit under S. 9cannot be
maintained by a person who is manifestly a trespasser and whose possession is of a very short duration. Save in those cases where the nature of
the possession of the plaintiff is clearly such as to result in proceeding under S. 9defeating the purpose of that section, the title of the plaintiff is no
more to be inquired into than that of the defendant.
In A.I.R.1987 Calcutta 322 (Chandra Bhan Prasad and others v. Mohanlal), in paragraph 8, it was held thus:-
It will be thus seen that the person dispossessed may bring a suit under S. 6of the Specific Relief Act for recovery of possession irrespective of
whether he has any title to the suit properly or not. Where, however, the person dispossessed has title to the property, he has the option to bring a
suit either under S. 6of the Specific Relief Act or under the general law, based on title. Such a suit, clearly, is outside the purview of S. 6of the
Specific Relief Act.
In AIR 1990 Gauhati 85 (Madan Singh v. Taiyab Hussain), it was held thus:
In a suit under S. 6the plaintiff can claim only recovery of possession. Any other claims of the plaintiff cannot be decided in a suit under S.
6because jurisdiction of the court under this section is very limited. In a suit under this section, the court can neither adjudicate on question of the
title nor can it direct the defendant to remove the structures, if any, erected on the suit land or permit the plaintiff to pull down the same.
(Emphasis supplied)
Recently in AIR 1991 Karnataka 51 (Girajawwa v. Basawwa), a learned judge of the Karnataka High Court considered the scope of a suit
under S. 6of the Specific Relief Act. In paragraph 5of the judgment, the learned Judge held thus:-
The only point urged before me as a substantial question of law is that when the title was disputed by the defendants, the suit without a plea for
declaration of title could not have been maintained. I do not think that question arises at all for consideration in this case. The suit pleading was that
plaintiff who was in possession was unlawfully dispossessed by the act of the defendants and therefore the suit was filed under the rights conferred
by S. 6of the Specific Relief Act. Therefore, question of seeking declaration of title would not in such a suit arise. If she proves the illegal act of
dispossession it will be sufficient to give her the cause of action as well as the relief.
On the question of title, there cannot be any question of res judicator. But the judgment in the proceeding under S. 6, Specific Relief Act,
cannot be ignored. It will be res judicator on the question of possession. In AIR 1928 Calcutta 758 (Raj Gopal Bhattacharji and another v. Sarat
Kumari Debt), it was held thus:-
Where it was decided in a suit under S. 9, Specific Relief Act, that the plaintiff was not in possession of a certain property from a certain date, the
question covered by that finding cannot be re-agitated between the parties and is res judicata in a suit for possession on declaration of plaintiffs
title.
In AIR 1933 Calcutta 923 (Hridayanath Ray v. Prabodhchandra Khan) also, a Division Bench of that High Court has held thus:-
Where the time at which the plaintiff was dispossessed was a matter directly and substantially in issue in connection with the question of limitation,
and that was also a question directly and substantially in issue in a case under S. 9, Specific Relief Act, between the same parties, litigating under
the same title, in a court competent to try the subsequent suit and a question, which was finally decided by that court:
Held: that the decision in S. 9case was res judicata on this issue.
On this issue, I hold that to declare the title, the order in C.R.P. No. 1382 of 1985 will not be a bar, and the suit will not be barred by res judicata.
But the plaintiff is barred from agitating the question of possession which was the matter in issue in the earlier proceeding, i.e., that the plaintiff is a
trespasser and that he came into possession only on 8.8.1981 and the finding that the first defendant was in possession before that date is
conclusive and the same cannot be re-agitated in this suit. This issue is found accordingly. Learned counsel for the first defendant relied on the
decision reported in Gulam Abbas and Others Vs. State of Uttar Pradesh and Others, .especially the passage where their Lordships followed an
earlier decision of that court reported in Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), .wherein it was held:
... It is not necessary that the court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the
subsequent suit have the same subject matter. The nature of the former proceeding is immaterial.
Even as per the decision cited, it is the finality that concludes the matter. A reading of the order in CRP 1382/85 makes it clear that possession
alone was considered and not title. Hence the said decision has no application.
Issue Nos. 3 and 10:- Learned counsel for the first defendant submitted that the relief of rectification of document (relief (b)) is barred by
limitation and the same cannot be granted. The further submission is that if the document could not be rectified, the declaratory relief also cannot be
granted. The further argument is that when the title deed makes mention of only a particular extent and so long as the document cannot be rectified
or stands as 890 sq.ft., the plaintiff cannot get a larger area. According to me, the said submission cannot be accepted. S. 26, Specific Relief Act is
only an enabling provision and that is not the only remedy by which plaintiff can claim title to the property. Rectification of instrument is only to
correct the mistakes that have crept therein. If the plaintiff is in a position to prove that the intention of the parties was to convey a larger area and
in fact he obtained title to the same, the mistake that has crept in will not affect his right. Even without rectification of a document, if the plaintiff is in
a position to prove the real intention of parties at the time of executing the document, the relief could be granted.
In Banerjee''s Law of Specific Relief Ninth Edition (1992), commenting on S. 26of the Specific Relief Act, (at page 373), the learned Author
says thus:-
The section is only an enabling one. It entitles a party to a contract, a transferee to seek relief by rectification, but rectification is not the only
remedy. Thus he can sue for a declaration that the property belongs to him without seeking rectification, in which case he can avail himself of the
provisions of Sections 95 to 97of the Evidence Act. The fact that the section is not made use of cannot deprive the purchaser of the rights
conveyed to him by his sale deed.
Suit for declaration of title can be maintained without rectification of Khasra number maintained in the sale deed.
Learned Author has further down said;
S. 26does not lake away the jurisdiction of the court to declare title to property, even without rectification. A decree for declaration of title can be
granted even without rectification of the title document, if without, seeking relief of rectification of the mistake in the document, the plaintiff can
prove his title to the property.
In AIR 1918 Calcutta 809 (Asitulla v. Sadatullu and another), a Division Bench of the Calcutta High Court held thus:-
A plaintiff who was a co-vendee of land along with the defendants but whose name was omitted from the conveyance by the fraud of the
defendants, who were entrusted with the preparation and execution of the document, can by a suit recover possession of has share even though the
limitation period of rectification of the conveyance by insertion of his name, by a suit properly framed for the purpose, has elapsed.
(Emphasis supplied).
In AIR 1923 Calcutta 53 (Nandiram alias Nandi Lal Aqrani v. Jogendra Chandra Dutta and others), it was held thus:
Where there was a mutual clerical error in the description of properties in a mortgage deed and the same had extended into judicial proceedings
and got automatically embodied in the decree, held that notwithstanding the mortgage had merged in the decree, the document was still capable of
rectification
The decision in AIR 1918 Calcutta 807 (supra) was followed by this Court in the decision reported in AIR 1938 Madras 589-47 L.W. 661
(Tetali Sooramma v. Kovvuri Venkata and others), and their Lordships held thus.
... Rut it is contended that a different rule to apply in the case of a plaintiff, i.e., if he wants to get a relief on the basis of mutual mistake, it is his duty
to institute a suit for rectification within three years from the date when the mistake came in his knowledge under Art. 96 of Sch. 2, Limitation Act
and no relief could be given if he allows his claim for rectification to be barred. It seems to us that this contention is not tenable. Art. 96 will be
applicable only if the plaintiff wants to file a suit for rectification of a deed and prays only for that relief. But, if the plaintiff sues for possession of
property or for a declaration of title in regard to property or, as in this case, for sale of property on the basis of the mortgage executed in his favour
and if the relief regarding rectification is only formal or incidental or not necessary for awarding the main relief prayed for, then Art. 96 will have no
application. In a case decided in 28 C.L.J. 197 it was held by Mukherjee and Walmsley JJ. that:
Title may be established without rectification of an instrument even though the time to secure a rectification of the instrument has elapsed, and that it
is open to a party to give evidence to prove that his name has been omitted from the document by fraud or mistake.
It seems to us that this is the correct principle and especially where the rights of third parties have not been intervened. So long as it is open to the
parties to adduce oral evidence on the ground of mutual mistake in regard to misdescription of property, and a court can give effect to the real
intention of the parties, we do not see why any question of limitation should arise at all when the substantial relief prayed for by the plaintiff is not
rectification of the deed but some other relief which he is entitled to claim under the law on the basis of the transaction which he seeks to enforce.
Rectification in such a case is not necessary. Following the decision in 28 C.L.J. 197, we think that even though the right of the plaintiff to sue for
rectification of the mortgage deed is barred by limitation, still he is entitled to the relief for sale of the property which was agreed to be mortgaged
and that the decision of the lower court is therefore correct.
In this case, the intention at the time of executing Ex.-1 was to convey title and possession of the yellow marked portion to Ranganathan. It is
that right that has passed on to the plaintiff under Ex.A-3. In the plan attached to Ex.A-1, the second defendant has conveyed all her rights in Plot
No. 7 which remained in her possession after executing the sale deed in favour of Muniammal and also the 2 feet width of property situated on the
southern extremity of that plot. At the time of executing Ex.A1, parties never cared to verify the actual extent covered by the yellow marked
portion. The same is clear from the schedule where it is said 890 sq. or there about and in the plan, it is said as 886 sq.ft. Both parties did not care
to describe the exact area. The intention was to convey title to that specific plot demarcated in the plan. An arithmetical calculation would have
cleared the doubt, that it is not 886 sq. ft. or 890 sq.ft., but something more. Both parties were satisfied with the demarcation in the plan. They
believed that it was 890 sq. ft. or 886 sq. ft. Both of them were under mutual mistake as to the extent.
I have already said that the suit is one for declaration of title, and that is the main relief in the suit. Under Ex.A-1 to A-3, plaintiff has obtained
title to the yellow marked portion of Ex.A-1 plan. The prayer for rectification in this suit is only incidental to the main relief, and hence there cannot
be any question of limitation as was held in the decision reported in AIR 1938 Madras 589 (supra). While declaring the title that the plaintiff is
entitled to 1029.3 sq. ft., I direct the second defendant to rectify the document executed by her in favour of Ranganathan, which is now assigned to
the plaintiff as per Ex.A-3. The learned counsel for the defendants submitted that the second defendant has not executed any document in favour of
the plaintiff and, therefore, not being a contracting party, rectification cannot be ordered against her. The said submission cannot be correct. Under
S. 55 (2) of the Transfer of Property Act, there is an obligation on the part of the transferor to protect the rights of the transferee. That obligation
runs with the land. That apart, under S. 26of the Specific Relief Act, the parties referred to therein include the representative-in-interest. So the
said contention of the second defendant cannot be accepted, and she is bound to rectify the mistake. In case she refuses to do so, the plaintiff, on
the basis of this decree, can execute the same by compelling the court to rectify the document on behalf of the second defendant. The Registrar,
City Civil Court, Madras, is also directed to execute and register any such rectification deed, if the plaintiff moves for the same on the basis of this
decree. Issue Nos. 3 and 10 are answered accordingly.
Exs.C-1 to C-5, Commissioner''s Plan and Report are of no use to understand the real dispute between the parties, and hence they are not
relied on in this case.
Issue No. 6: In paragraph 16 of the written statement, first defendant has contended that the suit is bad for non-joiner of parties. But he has not
specified the persons who are to be impleaded, and how far they are going to be affected by the decision in this case.
At the time of argument, learned counsel for the first defendant submitted that the purchaser under Ex.A-1 and his assignee and also
Muniammal, the purchaser under Ex.A-30 are necessary parties. So far as the purchaser under Ex.A-10 is concerned, he is not a necessary party
since he has assigned all his rights to the vendees under Ex.A-2 who have sold the same to the plaintiff under Ex.A-3. Therefore, the parties in
Exx.A-1 and A-2 have no longer any interest over the property.
It is at this juncture, learned counsel submitted that when the relief of rectification is prayed for, the presence of parties to the transaction is also
necessary. I have already held in the earlier issue that the intention of the parties was to convey a defined portion in the plan appended to Ex.A-1,
and the obligation of the transferor will continue in spite of various assignments. The primary responsibility of correcting the document is only on the
second defendant and if she corrects the same, others need not be made parties to the transaction or to the suit. So far as Munntammal is
concerned, she has not claimed any portion of the plaint schedule property. Therefore, she is also not a necessary party.
Further, under Code of Civil-Procedure, the question of non-joinder or mis-joinder will have to be decided at or before issues are settled. O.
1, R. 9, C.P.C. and R. 13, C.P.C. provides for the same. No attempt was made on the part of the defendants to press the issue before trial Court.
With the available parties before court, a finality could be reached and for that reason also, I repel the contention of the defendants. Issue No. 6 is
found against the defendants.
Issue No. 7: On this issue, no argument was put forward by counsel on cither side. That apart, on going through the plaint, I find that it has
been properly valued and proper court too been paid. This issue is, therefore, found accordingly.
Issue No. 5: This issue deals with the relief prayed for as against the 4th defendant in this case, which is the Corporation of Madras,
represented by its commissioner. The allegation as against the 4th defendant is found in paragraph 7 of the plaint. II is stated in the plaint that earlier
plaintiff filed O.S. 7824 of 1987 against the 4th defendant for relief of injunction restraining it from interfering with the additional construction on the
western portion of plaintiffs property. It is further averred that the said suit was withdrawn on the assurance given by the 4th defendant-
Corporation that it will regularise the legality of the construction by grant of permit after the disposal of O.S. No. 5884 of 1981 filed by the first
defendant It is stated that after the disposal of O.S. 5884 of 1981, the 4th defendant granted permission But, to the surprise of the plaintiff, as per
dated 28.12.1990, permission already granted that it was revoked, and that he has filed an Appeal before the Appellate Authority uncle the
Statute. He said that he filed the Appeal the 1.2.1991. Learned counsel for the plaintiff submitted that the said Appeal is still pendent consideration
by the Corporation. The apprehension of the plaintiff is that on the last of the revocation of the licence, 4th defendant likely to demolish the building
which he be constructed and since he is the owner at the property, he is entitled to get licence and the revocation is bad. It is further said that the
revocation by the 4th defendant was without hearing the plaintiff. Learned counsel also relied on the Notification of the Government of Tamil Nadu,
namely, G.O.RT. No. 236, Housing and Urban Development Department, dated 20.5.1983. He also impeached the said Government Order on
the ground that the order is mainly based on the representation of the first defendant in this case wherein the extent of the property is mentioned as
896 sq. ft. and not 1073 sq. ft. as claimed by him in the plaint. The question of mandatory injunction will not arise against the Statutory Authority,
especially when Appeal is pending before it. This Court cannot direct the Authority to take a decision in a particular way. It can only direct the
Authority It) reconsider the decision in accordance with law if the earlier decision by it is not correct. Even that direction is not necessary in this
case, since the appeal is already pending before it. The G.O. dated 20.5.1983 is mainly based on the extent as specified in the document. Now
that I have held that the area mentioned in the document is not correct, and the correct extent is 1029.3 sq.ft., I am sure that the 4th defendant will,
before taking a decision in the Appeal, take into consideration the finding of this Court on this issue also and decide the Appeal in accordance with
law. The question of prohibitory injunction as against the 4th defendant also will not arise at this stage, for the reason stated above. Issue No. 5
decided as above.
Issue No. 8: Learned counsel for the defendants submitted that the suit is not maintainable, and the plaintiff is not entitled to any relief, and the
suit is barred. Apart from the contention of res judicator and limitation, learned counsel submitted that without complying with the order passed in
C.R.P. No. 1382 of 1985, the suit cannot be maintained. He also wanted this Court to lake note of certain facts which disentitle the plaintiff from
getting the reliefs sought for. I will discuss the same in seriatim.
The maintainability of a civil suit is governed by S. 9of the Code of Civil Procedure. It cannot be contended that the suit is barred under S. 9of
the Code of Civil Procedure. The suit is of civil nature, and what the plaintiff wants is a declaration of title and consequential reliefs. Such a suit is
perfectly maintainable. The question whether he is entitled to the reliefs asked for, is entirely a different aspect. It has nothing to do with the
maintainability of the suit.
Learned counsel contended that when this Court, in C.R.P. No. 1382 of 1985, has directed the plaintiff to hand over possession to the first
defendant as a condition precedent, without complying with that condition, the suit cannot be maintained. I cannot accept this argument in view of
the provisions in S. 6(4) of the Specific Relief Act. Further, while discussing Issue No. 4, I have already held that in a suit under S. 5of the Specific
Relief Act also, the relief of injunction can be asked for. But, how to exercise the discretion is guided by the principles of Ss. 38and 41of the
Specific Relief Act.
The other contention that is taken by the learned counsel is that in Ex.A-1, there are certain corrections and those corrections are made by the
plaintiff When the plaintiff seeks an equitable relief, the fraud committed by the plaintiff also will have to be taken into consideration.
It is true that in Ex.A-1, certain corrections are there. D.W.1 also says that those corrections were not made by him or by his wife (2nd
defendant). But, according to me, those corrections must have been made even at the time of executing the document. The main reason is, that in
Ex.A-2, the corrected description is accepted and the same is incorporated in the Schedule. In Ex.A-2, there is no correction, and the plaintiff is
not a party therein. The entire schedule in Ex.A-1 without any correction if incorporated in Ex.A-2, that will show that the correction must have
been there at least before Ex.A-2 was executed. The Schedule in Ex.A-2 is further followed in Ex.A-3.
Even on merits, there is no purpose for correcting the document as suggested. The plaintiff is not going to gain anything on the basis of the so
called correction. Even while D.W.1 was examined, he admitted that the southern and northern lines are having a length of 76 9"". If the length of
these two lines is accepted and the property sold to Muniammal is excluded, there cannot be any correction as suggested. At any rate, I do not
find that the plaintiff is a party to any alleged fraud. No evidence has been let in this regard. The circumstances belie the same. The argument of the
learned counsel for the first defendant that the suit is not maintainable for that reason is, therefore, repelled.
The other contention that is raised is, that the plaintiff earlier filed O.S. Nos. 6295 and 7824 of 1981. Both these suits were withdrawn and,
therefore, the suit is barred under O. 23, R.1, C.P.C. The said contention also has no legal basis. Documents have been filed before this Court to
show that the suit O.S. No. 6295 of 1981 was allowed to be withdrawn with permission of the court, and that too with liberty to file a fresh suit on
the same cause of action. The typed paper filed by the first defendant himself (Pages 19 to 22) evidences the same. That apart, present suit is filed
after the order passed in C.R.P. No. 1382 of 1985, and that is a subsequent cause of action which was not in existence at the time when the
earlier suit was filed. Under S. 6 (4) of the Specific Relief Act, plaintiff is entitled to file such a suit after the judgment in a suit under S. 6of that Act.
Again, G.O.Rt. No. 236 dated 20.5.1983 also came into existence after the institution of the earlier proceedings. The Commissioner of the
Corporation of Madras revoked the plan as per order dated 20.12.1990, and the permission was also revoked on 7.1.1991. The documents that
are challenged in this suit also came into existence only after the disposal of the earlier suits. Even as against the 4th defendant in this case, it can be
seen that they passed the order canceling the licence only long after the institution of the earlier suit. So, both on the ground that this Court has
permitted the plaintiff to institute a fresh suit on the same cause of action and also on account of the fact that subsequent to the institution of the suit,
circumstances have changed, and the plaintiff has also cause of action which occurred subsequently, the contention that the suit is barred under O.
23, R. 1, C.P.C. also cannot be accepted. This issue is, therefore, found to favour of the plaintiff. Issue No.11:
For the reasons stated above. I passed decree on the following terms:-
The title of the plaintiff over 1027-9 sq. ft of land more specifically demarcated in the plan appended to this judgment is hereby declared. A copy
of the said plan will form part of the decree. In so far as the relief of permanent injunction is concerned, the same is also granted as against
defendants 1 to 3 in so far as the plot for which plaintiffs title is declared. But the plaintiff is directed to pay a sum of Rs. 50,000/- (Rupees Fifty
thousand only) to the first defendant as compensation for the illegal acts committed by him, within a period of ten days from to-day. In case the
amount is not paid within the stipulated period, first defendant is at liberty to recover the same from the plaintiff by executing the decree. I also
direct by a decree of mandatory injunction the second defendant to rectify the document by correcting the extent as 1027.9 sq. ft. in the schedule
of documents in Ex.A-3 in the place of'' 890 sq. ft. or thereabouts. In case she fails to do so, plaintiff is at liberty in file execution petition and get
the same done through process of court, and the Registrar. City Civil Court, Madras, is directed to execute and register the rectification deed on
behalf of the second defendant. The relief as against the 4th defendant for mandatory and prohibitory injunctions is not granted. Considering the
facts and circumstances of the case, I feel that this is a fit case where the parties should be directed to suffer their own costs.
Plan - Omitted.
Total area of plot No.7 = 1765-3
sq.ft.
(76.9 x 23)
Property sold under = 584.0 sq. ft
Ex.A-30 to Muniammal:
(36.6 x 16)
So, the balance is = 1181.3
sq.ft.
The total area of ABU
Plot;
(36.6 x 5) = 182.6 sq.ft.
The total area of BCDF = 845.3.sq.ft.
Plot x
(40.3x21)
So, the total area of the = 1027-9 sq.
yellow marked portion ft.