The defendant, in a suit in O.S.No.2 of 1997, instituted by the plaintiff/ first respondent for a decree of prohibitory injunction not to disturb latter's possession, having lost both before the trial Court as well as before the First Appellate Court in A.S. No.49 of 1998 on the file of District Court, Sivagangai, has preferred this appeal. The parties would be referred to by their rank before the Trial court.
2. The case of the plaintiff is :
The suit property is described as a house bearing Door No.144-B situated in S.F.No.409/1 having an extent of about 2.5 acres in Sivagangai Taluk. According to the plaintiff, he has been in possession of the suit property for well over 35 years, that he has been paying B-memo charges for the same and that he has also been paying property tax for the building for his house in the suit property and also paying electricity charges. While so, sometime about 13-12-1996, defendants began to claim right over the suit property and attempted to disturb plaintiff's possession. Hence, the suit is laid seeking decree of prohibitory injunction against the defendants and his men from disturbing plaintiff's peaceful possession.
3. The first defendant in his written statement has pleaded that his father Karuppan Chettiyar and Karuppan Chettiyar's elder brother Arunachalam Chettiyar had ?kudivaram.(tenancy) rights? in the suit property, that Arunachalam Chettiyar had the right over western half and Karuppah Chettiyar had right over the eastern half. Karuppan Chettiyar had been cultivating maize in his eastern half of the property, and on his death in 1990, his widow (defendant's mother) and his three sons which include the defendants have been cultivating maize as before and have been enjoying the property. So far as his uncle Arunachalam Chettiar's western half is concerned, after his death, his widow Valliammai and her two sons namely defendants 2 and 3 have sold their right over it, to plaintiff's son. In the portion purchased, plaintiff's son had put up a thatched house, that this was lost in fire whereupon a building was put up by him. So far as the eastern part of the suit property is concerned, the said property continues to be in the enjoyment of the first defendant and his brothers and the plaintiff has no manner of right or enjoyment, even if he had paid any B-memo charges, the same would not bind him.
4.1 Before the trial Court, plaintiff had examined himself as P.W.1 and examined two others as P.W.2 and P.W3. He has also produced Ext.A-1 to Ext.A-9, all of which are either property tax receipts or receipts for payment of electricity charges. The earliest among them is Ext.A-7 dated 11-03-1994, a receipt for payment of electricity charges.
4.2 The contesting first defendant did not examine himself before the Court. Instead he examined his brother Sathiyamurthy as D.W.1. He has also examined two independent witnesses as D.W.2 and D.W.3 and produced Ext.B-1 to Ext.B-4, of which Ext.B4 was a settlement register in favour of a certain Sivakami.
4.3 The trial Court, in order to ascertain who among the rival parties was in settled possession, has found the same in favour of the plaintiff, based on the documentary evidence that he has produced. In his evidence, D.W.1 inter alia had deposed that his father Karuppan Chettiar has obtained patta for the property in the name of one Sivagami, wife of his aunt's grandson and marked the same as Ext.B-4. The trial Court dismissed this piece of evidence on two scores :
a) That Ext.B-4 was not pleaded in the written statement; that no reason was stated as to why patta was obtained in the name of said Sivakami. To substantiate this, Sivakami was not examined.
b) The Commissioner has found the entire property falls within a single fence and there is no demarcation of easter half and western half of the suit property.
4.4 Challenging the said judgment and decree of the trial Court, the appellant herein preferred A.S.No.49 of 1998, the First Appellate Court concurred with the reasoning of the Trial Court and dismissed the appeal.
5. On admission the following substantial questions of law was framed :
a) Whether the Courts below are justified in their approach in treating the suit for bare injunction as a suit for declaration of title by defendant?
b) When admittedly plaintiff has no title and defendant has produced documents of title, is the suit for bare injunction, against the defendant and without Government being impleaded as a party to prove the valid possession, maintainable?
6. The learned counsel for the appellant contended that: In a suit for bare injunction, Court ought to see whether the plaintiff has proved his possession as the entire burden to prove it is on him. It is the case of the plaintiff/ first respondent that he has been paying B-memo charges, implying thereby that the entire suit property is a poromboke property and that penal charges were levied by the Revenue authorities. Secondly, it is his claim that he has been in possession for 35 years and more in the suit property. However, all the documents that he had produced commenced only from 1994 and they pertain only to his house. In other words he has not established his possession over the entire suit property, but the trial court has counted on what it perceived as certain incongruities in the evidence of the first defendant/appellant to grant a decree for the plaintiff/first respondent.
So far as non-examination of Sivakami is concerned, Ext.B-4 is a valid public document whose genuineness in not in dispute. It definitely proves that Sivakami is authorised to possess the property covered thereunder. This defendant did not seek any right to the plaintiff's sons' house and if this is left out, then the presumption that possession would follow title will hold good. Inasmuch as the first defendant has been defending possession in a suit for injunction, and not title in a declaration suit, it is adequate for him to produce such evidence as would be sufficient to cause a dent in the probability of plaintiff's case.
7. Per contra, the learned counsel for the respondents argued towing his argument along the line of reasoning of the Courts below. He also added that as to who is in possession, is a finding on fact and this cannot be agitated in a second appeal since it does not give rise to any substantial questions of law.
8. To address the point that the first respondent/plaintiff has argued, while it is true that finding on possession is only a question of fact, a finding arrived by casting wrong burden on the defendant is not. The argument for the appellant/first defendant is founded on this.
9. As rightly argued, the initial burden to substantiate the facts constituting the cause of action is on the plaintiff. He has come to the court asserting that he is possession of the entire suit property. And, suit property is described in the plaint as one having an extent of 99.5 ares, equalling 2.46 acres in S.F.No:409/1 with a house bearing No:144-B. The plaintiff has asserted in the plaint that he has been paying penal charges to the Govt., the owner of the suit property, under B-Memo, but he has not produced any. If the suit property were to contain 2.46 acres with a small house, it is not just sufficient for him to produce some documents showing possession of the house and attempt to use it as documents showing possession over the entire suit property. In fact, there is no dispute over the plaintiff or his son occupying the house, for it is conceded by the first defendant/appellant himself.
10.So far as possession of vacant land is concerned, the courts below has relied on two pieces of evidence: That there is no fencing dividing the entire property into eastern and western half. Secondly, Commissioner has noted fencing of the entire property along the boundaries.
11. First, the defendant has merely stated that his father and his uncle Arunachalam Chettiar were in enjoyment of eastern and western half of the entire property. Nowhere has the appellant pleaded that there is a demarcation of the entire property by fencing into eastern and western half. Even D.W.1 has not deposed anything like that. Therefore, the Court below has gone wrong in seeing something that is not there. Next, the Commissioner, in his report has shown fencing only upto north-eastern corner point but not along the eastern boundary of the suit property. And, the first defendant/appellant is claiming possession only over the eastern half.
12.A combined reading of both these aspects would only go to prove that the plaintiff has not been able to prove possession over the eastern half of the suit property. Consequently, he is not entitled to a decree of prohibitory injunction over the eastern half of the suit property.
13. In the result, this appeal is partially allowed and the decree of the Courts below is modified whereby the first respondent/plaintiff would be entitled to a decree only as regards the western half of the suit property, and accordingly the appellant/first defendant is injuncted from disturbing first respondent/plaintiff's possession of the western half of the suit property and the suit is dismissed as regards the eastern half. No costs.
To:
1.The Judge Principal District Court, Sivaganga.
2.The District Munsif Sivaganga.
.