The petitioner is challenging the Judgment dated 01.04.2008 made in C.M.A.No.3 of 2008 on the file of Sub Court, Nagapattinam reversing the order dt.6.2.2008 made in I.A.No.550 of 2007 in O.S.No.355 of 2007 on the file of the District Munsif, Nagapattinam.
2 The defendant in O.S.No.355 of 2007 on the file of the District Munsif Court, Nagapattinam is the revision petitioner before this Court. They are aggrieved by the order of the Appellate Court, namely Sub Court, Nagapattinam allowing C.M.A.No.3 of 2008 filed by the respondent/plaintiff herein and thereby granting an order of interim injunction till the disposal of the original suit.
3 The brief facts are as follows:
The respondent/plaintiff filed O.S.No.355 of 2007 for permanent injunction restraining the revision petitioner/ defendant from in any manner interfering with the respondent/ plaintiff's possession of the suit property.
4 According to the respondent/plaintiff, he purchased the suit property by two sale deeds dated 6.1.2004 and 11.3.2004 for a valuable consideration and took possession of the properties. He repaired the property and reconstructed the fences. He also cultivated banana trees, coconut trees, etc. on the suit property and he also dug up a fish pond wherein fingerlings were let in. The sub division of the survey field was done in the land purchased by him and the land in R.S.No.59/2 was sub divided as R.S.No.59/2B. The defendant/revision petitioner Panchayat was represented by its elected President Thiru Muthukrishnan and he has some enemity towards the respondent/ plaintiff. Therefore, he instigated the revenue authorities to initiate action against him. On 26.10.2007, the Revenue Divisional Officer, Nagapattinam and other revenue officials trespassed into the suit schedule property and destroyed the crops like banana trees, etc. and damaged the Oil engine and fish pond. Therefore, the respondent/ plaintiff issued a notice to the revision petitioner/defendant on 29.10.2007 for which, a reply was sent by the revision petitioner/defendant on 12.10.2007. The case of the revision petitioner/ defendant is that the suit property is a Community property (Grama Samuthayam) which is not correct as per the respondent/ plaintiff. Having failed in their attempt to trespass into the property and dispossess the respondent/plaintiff from the suit schedule property, the revision petitioner/defendant represented by its President again i.e. on 15.12.2007 attempted to prevent the plaintiff while he was repairing and re-constructing the fences. However, the respondent/plaintiff was able to ward off this attempt and feared that there would be another attempt to trespass into the suit property. Hence, the respondent/plaintiff filed the above O.S.No.355 of 2007.
5 Along with the suit, the respondent/plaintiff filed I.A.No.550 of 2007 for interim injunction. The revision petitioner/defendant filed a counter abusing the I.A.No.550 of 2007. The trial court by order dated 6.2.2008 dismissed I.A.No.550 of 2007 by holding that the suit land is a Community land and therefore, the respondent/plaintiff is not entitled to get an order of injunction.
6 Aggrieved by the order of the trial court dated 6.2.2008 in I.A.No.550 of 2007, the respondent/plaintiff filed an Appeal in C.M.A.No.3 of 2008 and by order dated 1.4.2008, the Lower Appellate Court reversed the order of the trial court and allowed the Appeal granting interim injunction till the disposal of the original suit. Challenging the order of the Lower Appellate Court dated 1.4.2008, the defendant in the suit filed the above Civil Revision petition under
Article 227 of the Constitution of India.
7 This Court on 7.5.2008 ordered notice of motion and also granted an interim stay which was extended from time to time.
8 Heard the learned counsel for the revision petitioner/defendant and Thiru T.R.Rajagopalan the learned Senior counsel for the respondent/plaintiff. I have also gone through the entire documents available on record.
9 The learned counsel for the revision petitioner/ defendant strenuously contended that the Lower Appellate court has committed an illegality in granting an injunction in favour of the respondent/plaintiff even though the revision petitioner/defendant was able to prove prima facie before the trial court that the suit land is a Village Community land.
10 Referring the proceedings of the Sub Collector, Nagapattinam, dated 25.12.2004, the learned counsel for the revision petitioner/defendant submits that the suit land being a Village Community land is being used as "Mayanam". The learned counsel further submits that once it is established prima facie that the suit land is a Village community land, then the possession of the respondent/plaintiff is illegal and a person who claim possession illegally cannot seek the help of a Court to protect such illegality. The learned counsel for the revision petitioner/defendant relies on a decision of this Court reported in 2000(3) L.W. 521 (Kamalammal & 3 others Vs Indirani Ammal) in support of his submission. He also relied on a decision of a Division Bench of this Court reported in 1997(2) M.L.J. 584 (S.A.Ramachandran and others Vs The Government of Tamil Nadu and others) to submit that properties which are classified as Samudhaya Well could not be assigned by authorities to individuals to the detriment of the public.
11 Per contra, the learned Senior counsel for the respondent/plaintiff submits that the trial court has wrongly appreciated the 'A' Register to come to a wrong conclusion that the suit land is a Community land and the Lower Appellate Court has correctly appreciated the very same documents and rightly concluded that the suit land is a patta land. Therefore, the well considered order of the Lower Appellate Court in correctly appreciating the documents filed before it should not be interfered with in this revision petition. The learned Senior counsel has also pointed out that the revision has been filed under
Article 227 of Constitution of India and it should have been filed under Sec.115 of C.P.C.
12 I have considered the rival submissions carefully with regard to facts and citations.
13 It is not in dispute that the respondent/plaintiff claimed ownership of the suit property on the basis of the two sale deeds dated 6.1.2004 and 11.03.2004. The case in the suit is that the President of the revision petitioner /Panchayat developed an animosity towards him and thereby he instigated the revenue authorities to trespass into his land and damaged the property as well as the crops. Fearing another such attempt, the suit has been filed for a bare injunction and pending suit, I.A.No.550 of 2007 has been filed by the respondent/plaintiff under Order 39 Rule 1 and 2 C.P.C. for interim injunction.
14 The case of the revision petitioner/defendant is that the plaintiff has no right or title over the suit property as the person from whom he alleged to have purchased the property did not have even a semblance of right over the property as the suit property is a Village Community land.
15 The trial court after hearing both the sides and after going through the documents filed on behalf of both the parties, prima facie found that the suit schedule property is a Village Community property and to come to this conclusion, the trial court relied on the proceedings of the Sub Collector dated 25.12.2004 and the "A" Register of the Village Panchayat dated 27.12.2007. After concluding prima facie that the suit property is a Village Community property and relying on the judgment of this Court, reported in 1997(2) M.L.J. 584 (cited supra) and 2000(3) L.W. 521 (cited supra), decided that the respondent/ plaintiff is not entitled to an order of injunction and accordingly dismissed I.A.No.550 of 2007.
16 The Lower Appellate Court after re-evaluating the documents filed on both sides found that the "A" Register of the suit property referred to the suit property as Ryotwari Punja and if the property is a Government land, then "A" Register should refer the suit property as property of Government or as Poromboke. The Lower Appellate Court has also dismissed the contention of the revision petitioner/defendant that the Revenue Divisional Officer has taken possession of the property and further added that even if possession is to be taken, the same is to be taken only by resorting to due process of law. Therefore, the Lower Appellate Court has set aside the order of the trial court and allowed the appeal.
17 It is to be noted that when an appeal is filed against the order passed by the trial court under Order 39 Rule 1 and 2 C.P.C., it is not a regular appeal wherein the Appellate court can go into each and every issue on its own and re-hear the entire matter. In a petition under Order 39 Rule 1 and 2 C.P.C., the trial court has to exercise its discretion and that discretion is to be based on sound principles of law. Once the trial court has evaluated the documents adduced before it and come to a prima facie finding, it is not illegal or perverse and the same cannot be interfered with by the Lower Appellate Court even though another view is possible.
18 In the present case, the trial court considered the proceedings of the Sub Collector dated 25.12.2004 wherein it was mentioned that the lands are Village Community lands and are used by the public as 'Mayanam'. The trial court has also gone into the "A" Register wherein also it is found that the suit lands are Village Community lands. It is true that the same Register gives room for ambiguity by referring to some other details also. But, it does not mean that this score, that too, at the interlocutary stage, the findings arrived at by the trial court on the basis of these two documents could be interfered with. A reading of the judgment of the trial court shows that it has properly adduced the documents before it and it come to a prima facie conclusion that the suit land is a Village Community land. Thereafter, the trial court on the basis of the above mentioned judgment, rejected the interim injunction application filed by the respondent/plaintiff. But, the Lower Appellate Court was swayed by the 35 names of individuals which are referred to in the "A" Register decided to upset the discretion properly exercised by the trial court. The Lower Appellate Court has failed to consider the fact that the appeal is only an appeal against an order passed by the trial court under Order 39 Rule 1 and 2 C.P.C. and it is not a regular appeal. Once it is found that the trial court has rightly exercised its discretion which is neither illegal nor perverse, then, it is not open to the Lower Appellate Court to reverse such findings of the trial court. Therefore, I have no hesitation to interfere with the order of the Lower Appellate Court and accordingly, the order of the Lower Appellate Court is set aside.
19 It is also necessary to refer to the judgment referred to by the trial court as well as by the learned counsel for the revision petitioner.
20 In 1997(2) M.L.J. 584 (cited supra), a Division Bench of this Court observed as follows:
"7 We have carefully considered all these aspects adverted to by the different authorities like the District Collector, the Board of Revenue and the Government on the one hand and the learned Single Judge on the other. The learned Judge could not have taken the view that what was assigned was land and not of the well, despite his observation that major portion of the property was occupied by the well only. Th well needs necessarily some surrounding space also for access and use. Having regard to the extent of the land itself and the location of the well and the earlier classification of the property as Samudhayam well, it is but necessary to view the property assigned tobe mainly well only with some surrounding space of land. Though Board's Standing Order No.15(14) envisaged the authorities undertaking assignment of lands to value the well or standing trees or other properties also in the extent of the land to be assigned, that is not the same thing permitting assignment of well simpliciter, de hors all other consideration and on the facts of this case it has to be borne in mind then what is sought to be assigned was in reality and in substance a well and well alone, particularly when such well stood classified in the Village accounts as Samudhayam well meaning thereby well for the common use of the villagers. In our view, the properties like the one which had been classified as Samudhayam well cannot be assigned at all by the authorities to any individual to the detriment of the public. We are of the view that the properties of the nature are to be held and has got to be owned and held by the Government in trust for the public and there cannot be any breach of such trust to the detriment of the public and public interest. The sum and substance of the reasons assigned by the District Collector as also by the Board really are in recognition of this vital and well settled principle."
21 In 2000(3) L.W.521 (cited supra), this court held as follows:
"5. It is contended by the learned counsel for the appellants that the appellants were in possession and their possession was a matter of admission by the respondent and such possession must be protected notwithstanding the character of the possession. It is to be immediately noticed that the appellants claimed absolute title, to the A schedule property in the prior proceedings. It was held in the prior proceedings that the first appellant was not the legally wedded wife of Munuswamy Mudaliar and she had no right in any portion of the suit property. It was also held that the settlement deed under which the respondent claimed title was true and valid. When once it was held that the respondent (Sic) did not have any semblance of right, title or interest in the suit property, her possession was rightly held to be unlawful possession. Starting from Alagi Alamelu Achi V Ponniah Mudaliar (1962)I MLJ 383), the courts have consistently held that a trespasser's possession would not be protected. Even recently, the Supreme Court in Mahadeo Saviaram Sheika Vs Pune Municipal Corporation (1995)3 SCC 33) and Premji Ratansey Shah V. Union of India (1994(5) SCC 547 = 1994-2 L.W. 735) has affirmed that view. In Premji Ratansey Shah's case the Supreme Court has held as follows:
"Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under
Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who had no interest in the property. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a persons who gained unlawful possession, as against the owener."
6. In Shive Kumar Chandha V. Municipal Corporation of Delhi (1993) 3 SCC 161 - it has been held that judicial procedure cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court."
22 In the above judgment, it has been clearly held that trespasser's possession as well as unlawful possession could not be protected by the court even if the person is found to be in possession, as judicial procedure cannot be used to perpetuate a wrong committed by a person. The Division Bench also held that the properties classified as Samudhayam is to be owned and held in trust by the Government for the public.
23 Therefore, in the light of the above judgments and also in the light of the facts and circumstances of the case, I am of the considered view that the respondent/ plaintiff does not have a prima facie case to get the order of interim injunction as rightly held by the trial court.
24 Hence, the order passed by the Lower Appellate Court granting interim injunction is set aside.
25 In the result, the above mentioned Civil Revision petition is allowed. No cost.
vaan To
1.The Subordinate Judge, Nagapattinam
2.The District Munsif, Nagapattinam