The plaintiff is the appellant herein. Suit for permanent injunction dismissed by the trial Court and confirmed by the first appellate Court. Against the concurrent finding, this Second Appeal is laid.
2. 3.85 acres of land in S.No.107 at Kurichi Village, Coimbatore taluk was divided into housing plots by way of layout by its owners Thangavel and Parvathiammal and sold to several persons. The property, which is the subject matter of the appeal was sold to the plaintiff by Thangavel and his mother Parvathiammal vide a registered sale deed dated 21.11.1966. The said sale deed is admitted as Ex.A1. The schedule of property is shown as below:
“Schedule description of property”
“In Coimbatore Registration District and Sub Registration District and Taluk, Kurichi Village and Kurichi Town Panchayat (Machampalayam, Sundarapuram Post)in s.F.No.107 in Punja Acres 3.85.
South of Senga Konar's land North and East of lands belonging to M.Thangavel and Parvathi ammal within these boundaries:-
East to West on both sides 66 feet North to South on both sides 33 feet Total Extent 5 cents.”
3. On 17.07.1975, one Palaiappan has purchased a plot from Thangavel and Parvathiammal vide Ex.B2 with the following description.
“brhj;J tpguk;”
“nfhaKj;J}h; hp/o/L. nkwg; o rg;/o/L nkw;go jhYf;fh Fhpr;rpf;fpuhkj;jpy; f/r/107 be/fhiy m/V/3/85 ,jpy; fyPSf;F tpww;
,lj;jpw;Fk; tlf;F kUjhryk; g{kpf;Fk; bjw;F bjd;tly; nuhl;Lf;Fk; nkw;F nkw;go 107 be/fhiyapy; ,ju g{kpf;Fk; fpHf;F ,jd; kj;jpapy; tlg[uk; fpHnky; yp';!; 100 bjd;g[wk; fpHnky; yp';!; 100 nky; g[uk; bjd;tly; yp';!;
50 fpHg[uk; bjd;tly; yp';!; 50 ,e;j mst[s;s 5 Ie;J brz;L kidfl;Lk; fhyp $hfhit fpiuak; bra;J bfhLj;jpUf;fpnwhk; rfpjKk Fhpr;rp gr;rhaj;Jnghh;L vy;iyf;Fl;gl;lJ/ nkwg; o brhj;J !uhthp 5y; moj;jy; thp 10y; j moj;jy; jw;fhy khh;f;fl;L kjpg;g[ U;/1500 jhd; vd;W cWjp TWfpnwhk;/”
The said Palaniappan has inturn sold the property to the 2nd defendant Palanisamy on 05.03.1982 vide Ex.B1.
4. The case of the plaintiff is that after she purchased the suit property, she put up a barbed wire fence and in her absence, her relatives were taking care of the property. She came to know from her relatives that the second defendant is trying to trespass into her property and removed the barbed wire fence, causing damage worth of Rs.2000/-. Hence,suit for injunction restraining the defendnats from interfering with the peaceful possession of the suit property. Thangavel, who is one of the vendors of the plaintiff and vendors'vendor of the second defendant is the first defendant in this suit.
5. The second defendant case as found in his written statement is that he purchased a vacant site measuring 33 feet by 66 feet on 21.11.1966 and fenced it with barbed wire during the second week of March 1983. When the plaintiff tried to trespass into his property, her attempt was thwarted by the second defendant with the help of his relatives. The third defendant tried to mediate the dispute by measuring the properties situated on all the four sites. The plaintiff, instead of identifying the property, had approached the court prematurely claiming right and title over the property of the defendant, without ascertaining the identify of the property through survey or from vendor. The trial Court held against the plaintiff on the ground that the plaintiff failed to identify the actual location of the property purchased under Ex.A1. In the absence of evidence regarding identity of property, injunction relief cannot be granted. Also held that, though the plaintiff has claimed the suit property, vacant at the time of filing the suit, while deposing before the court PW1 admits that the 2nd defendant has put up construction in the suit property and residing in it. Since the plaintiff was not in possession of the dispute land ought to have sought relief of declaration. Therefore, suit for injunction is not maintainable.
6. On appeal, the first appellate Court entertained the application in I.A.No.196 of 1995 under Section 26, Rule 9 of Code of Civil Procedure for appointment of Advocate Commissioner to note down the physical feature of the suit property. The report and sketch are taken as Exs.C1 to C3. The lower appelalte Court, after referring the evidence in the light of the Commissioner report, held that the identity of the suit property is established through Exs.C1 to C3. The property described in the suit is the property sold to the plaintiff and Palaniappan. Thangavel the first defendant has sold the suit property to the plaintiff in the year 1966 and again to Palaniappan in the year 1975. The Commissioner Report also reveals that by 1993 the second defendant has completed the construction of a house in the suit property The plaintiff and the second defendant claim that they were in possession of the property on the date of filing the suit. However, no evidence to indicate that the plaintiff was in possession. Therefore, instead of amending the relief of the suit for declaration of title and recovery of possession, the plaintiff has continued to pursue the suit for bare injunction, which is not acceptable in law.
7. According to the first appellate Court, since the defendant has not pleaded adverse possession, the right of the plaintiff to seek declaration and recovery of possession is not barred.
8. The aggrieved plaintiff has filed the Second Appeal, to decide the following Substantial Question of Law:
“(1)Whether the Courts below are correct in law in dismissing the suit especially when the plaintiff had proved her title to the suit property and the suit property being a vacant site ought to have decreed the suit as prayed for?
(2)Whether the Courts below are correct in law in dismissing the suit only on the ground that the appellate had not sought for a declaration of title and recovery of possession totally overlooking the fact that the superstructure had been put up by the respondents nearly 3 years after the institution of the suit and that too by wilding the interim orders passed by the trial Court?”
9. The learned counsel for the appellant submitted that it is the settled principles of law that in respect of vacant land, the possession follows title. Once it is established that the defendant has trespassed into the suit property and has put up construction, the Court can mould the relief and grant the relief of possession even without amending the plaint. The plaintiff has established that the 2nd defendant is a ranked trespasser who tried to disturb the peaceful possession based on unvalid document. He later trespassed into the property pending suit and had put up construction. Therefore, the lower appellate court after concluding that the plaintiff is the first purchaser of the suit property ought to have allowed the appeal and granted appropriate relief.
10. In support of her submission, he relied on the following judgments:-
(1)In D.Gopal v. The Kilpauk Muslims Welfare Association and another [1995 MLJ 88], para 7 reads as under:
“7..... the settled law is that in an injunction suit, if the allegation is that the defendant has trespassed into the property, pending suit and taken possession of the property, the Court could very well mould the relief and grant the relief of possession even without amendment of the plaintiff. While so, there can be no bar for granting the proposed amendment seeking the possession relief based on the alleged possessory title of the plaintiff ”
(ii)In V.L.Kaliannan v. Jagadambal dated 25th June 2012, para 9 reads as under:-
“9. At this juncture, I would like to recollect the trite proposition of law that in an injunction susit if the defendant trespass into the suit property pendente lite, then that injunction suit can be converted into a suit for possession because of the fact that pending litigation the defendant drastically trespassed into the suit property. In appropriate circumstances, Courts have even got power to mould the relief and grant possession of the suit property in a suit for injunction, if from the available evidence, the Court could understand that the defendants pending suit trespassed into the suit property. But those are all not the proposed pleading in this case.”
11. Per contra, the learned counsel for the respondents submitted that the principle “possession follows with title in case of vacant land” cannot be applied, in this case since both the parties have title deed over the property and it is proved through the evidence that the defendant was in constructive possession of the property and had also put any construction over it. The specific case of the defendant is that he is the title holder of the suit property and title cannot be recorded in a suit for injunction.
12. In support of his contention, he relied on the judgment of the Supreme Court reported in Anathula Sudhakar v. P.Buchi Reddy (Dead) by Lrs. And others [2008 (6) CTC 237] wherein para 17(b) extracts hereunder:
“17. (b) As a Suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant site, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.”
13. It is an admitted fact that the rival parties are claiming their right through two different sale deeds, but tracing their source to the common vendor. The consistent case of the defendants is that there is a mistaken identity of property. Unless the properties are measured through proper surveyor, the suit property cannot be identified. This is clearly reflected in his written statement. The suit was dismissed by the trial Court for the very same reason thereafter, pending the first appeal, the plaintiff had attempted to identify the property through surveyor. He inspected the property and had submitted his report. It is within the knowledge of the plaintiff that the defendant had been in possession and constructed the house in the disputed property and enjoying it since 1993. The plaintiff has not taken any steps either to prevent or to amend her prayer all along inspite of the trial Court pointing out the grave omission.
14. In the case of such nature, the Hon'ble Supreme Court in Anathula Sudhakar case, which is relied by the learned counsel appearing for the respondents has categorically held in para 11 which extracts therein:
“11. The general principles as to when a mere Suit for permanent injunction will lie and when it is necessary to file a Suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a Suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person, who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a Suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plainitff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a Suit for declaration, possession and injunction.”
15. In the very same judgment, the Hon'ble Supreme Court has also held that in para 17 clause 3, which reads as under:
“17. (c) But a finding on title cannot be recorded in a Suit for injunction. Unless there are necessary pleadings and appropriate issue regarding title(either specific, or implied a snoticed in Annaimuthu thevar (supra). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessry pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive Suit for declaration of title, instead of deciding the issue in a Suit for mere injunction.”
The lower appellate Court has precisely followed the guidelines of the Hon'ble Supreme Court and has relegated the parties to the remedy by way of comprehensive suit for declaration of title.
16. This Court finds no error in judgement of the lower appellate Court.
Hence, the second appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. No costs. Consequently, connected M.P. is also closed.
21.02.2017 ari Index:No Internet:Yes To The II Additional District Court, Coimbatore. The District Munsif Court, coimbatore.
Dr.G.Jayachandran, J.
ari
Pre-delivery judgment made in
S.A.No.511 of 1999
21.02.2017
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