A Second Appeal was filed under Section 100 of CPC challenging the judgment and decree of the First Appellant Court passed on 07.12.2009 on the file of the Principal Sub Judge, Chengalpattu by confirming the judgment and decree of the District Munsif cum Judicial Magistrate, Thirukkalukundram dated 31.10.2008.
Facts of the Case
A Suit property belonged to the plaintiff. They were in possession and enjoyment of the property. It was a vacant site maintained by the plaintiffs to remove the bushes. The Defendants were the relatives of the plaintiffs. The first defendant, Manickkavelu was the paternal uncle of the plaintiff, and the Second defendant, Rukmani was the son of the Manickkavelu defendant. They had their property adjacent to the plaintiff’s property.
Without the knowledge of the Plaintiffs, the Defendants had put up a compound wall and electricity meter box in the suit property in 1997. They had refused to remove the same when requested by the plaintiffs. The plaintiffs had tried to take further steps through revenue authorities and the electricity department. However, the Defendants refused to do so. The plaintiffs thus filed a suit for mandatory injunction directing the defendants to remove the compound wall and the electricity box. Also, for a permanent injunction to restrain the defendants from altering the physical features. During the pendency of the suit, the First defendant, Manickkavelu died and Defendant Number 3 to 7 (Padmavathi, Deivanayaki, Kanchana, Thirupurasundari) were added as the legal representatives.
The facts as per the written statement filed by the first defendant were:
The plaintiffs were not entitled to any relief. The defendants encroached on the suit property in 1934 and reclaimed it. They had put up hay-rick on the suit property. The defendants also had a motor mechanical shed and between the shed and the suit property, a small portion was let out to a third party. The plaintiff neither had the title nor possession over the suit property.
An extent of 4 cents of Gramanatham was purchased in the plaintiff’s father’s name in his capacity as the Manager of the joint family under a registered sale deed dated 11.07.1960. In the sale deed, the survey number was wrongly mentioned. The suit property was shown as the Eastern boundary and the name of the defendant was shown as the owner of the property on the eastern side. The purchased 4 cents fell to the first defendant in the family oral partition which was later reduced in writing on 20.07.1961.
The plaintiff’s father, the plaintiff, and his sister had already filed a suit before the District Munsif Court, Chengalpattu in respect of 0.06 cents in the old survey. In that suit, the western boundary was shown as the property of the Second defendant. When the suit was pending, the plaintiff had managed to get a Gramanatham patta in his name by annexing the western side of the property. The defendants had taken steps to cancel the same. The plaintiff had suppressed the earlier suit and filed this suit by suppressing the material facts. This suit is barred under Order 2 Rule 2 of CPC. The compound wall was a huge wall of the shed and the meter box is fixed in the wall. By making use of the patta, the plaintiffs had tried to encroach the suit property. There was no cause of action for the suit. The plaintiffs did not own the suit property. This suit itself was not maintainable without a prayer for declaration of title. The suit was barred by res-judicata and was not maintainable. Hence the suit had to be dismissed.
The Trial Court decreed the order as prayed that the aggrieved over the defendants had filed the first appeal before the Sub Court and the first Appellant court allowed the first appeal by setting aside the judgment and decree of the Trial court. Aggrieved by that, the plaintiffs filed the Second appeal and was admitted on following substantial questions of law:
1.Whether the lower appellate court had committed an error in holding that the suit for a permanent injunction was not maintainable without there being a prayer for declaration?
2.Whether the lower appellate court had committed an error in rejecting the prayer for a mandatory injunction on the sole ground that no prayer for recovery of possession was made?
3.Whether the lower appellate court had committed an error in holding that the present suit was barred by Order II Rule 2 CPS considering the decision of the District Munsif Court, Thirukkalukundram in O.S. No. 55/1996?
The Appellants had submitted that the suit property is the Poramboke properties for which no one can claim the title. Also, pattas were given based on possession. The pattas were issued to the respective persons in possession of the same at the relevant time. The respondents, however, claimed that their ancestors had actually occupied the suit property and had been in the enjoyment of the suit property for a long time.
The Appellant, focusing on the evidence submitted that the property which was occupied by his father measures 4 cents with different survey numbers. The plaintiff had claimed that the suit properties are in Gramanatham and measures 6 cents.
The Respondents contended that the Plaintiffs had filed an earlier suit in respect of the same suit property and did not prosecute the same. They were dismissed for default and it was also admitted by them.
However, the Plaintiffs submitted that as the relief of permanent injunction was concerned there might be different interferences and the respective cause of action could also be different. Though the earlier suit was not a bar for the present suit for permanent injunction, it had to be seen whether the suit was not maintainable for non-inclusion of the prayer for declaration also.
This patta was issued in the year 1996 itself. The Defendants had submitted that the Plaintiffs managed to obtain patta by leaving the earlier suit for dismissal and they had filed the present suit for the same relief on the strength of the patta obtained. In the earlier suit, the relief for mandatory induction was not claimed. But it was alleged by the appellants in the suit as well as in their evidence that the defendants had encroached on the suit property and raised the compound wall and thus tried to enhance their possession by including the portion which got covered within the compound wall.
The learned First Appellant Judge revised the judgment of the trial court. It was observed that the Respondent had denied the title of the Appellants over the suit property. Hence, the suit ought to have been filed for relief of declaration along with a permanent injunction. As the plaintiff had not pursued the earlier suit based on the earlier cause of action due to interference, he could not be precluded from filing this suit.
The Court had observed that the suit property being a poramboke land, no one could claim the title. Anyone aggrieved that their possession was disturbed by any third party could get a remedy to safeguard his possession only. If the Government recognized long possession of a person, it would issue a patta in his favour. Even such pattas could be the document of title and the ownership of such lands would always vest with the Government only.
Plaintiff could not be expected to file a suit for declaration of title. Even though the defendants had denied their title. Since the suit is between two private parties and not against the Government, who is the true owner, the appellants could not seek relief for declaration as against the defendants alone.
The reasons for First Appellate Court to dismiss the suit were:
The Court had observed that the plaintiffs had filed the suit for a mandatory injunction without a prayer for recovery of possession. Also, the appellants were claiming that they own 6 cents all along.
The First Appellant Court also observed that despite the cause of action for a mandatory injunction had arisen in 1997 itself, the suit had been filed only in 2003, that too without a prayer for recovery of possession. The suit was itself barred by limitation. Since the period of intimation for the relief of mandatory injunction was 3 years from the date when the cause of action arose, it was observed that the time was barred. No explanation had been given by the Appellants for this observation made by the First Appellate Judge on the point of limitation. The appellants themselves had admitted that there was an electricity meter box fixed on the compound wall and a service connection was also obtained. It would show that there was not only a construction of a compound wall but also occupation and possession.
When a relief for the mandatory injunction was prayed in the suit for removing any structures, proving that such structures within the specific description of boundaries and measurements were essential. In such cases, the report of the commissioner would be of great help and it could reduce the oral evidence. But in this case, neither of the parties had filed a petition for the appointment of the commissioner. Even if the existence of the compound wall which had to be evicted was not denied by the defendants, its measurement was to be proved to get an executable decree for mandatory injunction. The measurement of the portion which got covered within the compound wall is also essential to know the area of the site which was occupied by the defendants through encroachment.
The court had observed that the relief of recovery of possession could have also been prayed and the relief of mandatory injunction could have been consequent to that. Since the limitation for the relief of recovery of possession was 12 years, the suit would not have gotten barred by limitation. Failure to do so has rendered the suit time-barred. Even though the prayer for declaration was not essential for the relief of permanent injunction. In the given context of the matter, the prayer for recovery of possession was essential along with the relief of mandatory injunction.
Even if there were some admissions in the evidence of the defendant, the plaintiff must have proven that the suit was well within limitation.
The Court had held that the learned First Appellant Judge had rightly analyzed the factual matrix of the subject matter combined with the law on the point of limitation. The reasons pointed out were satisfactory to set aside the judgment and decree of the Trial court. And thus, the Court did not interfere with the judgment of the First Appellant Court.
The Second Appeal was dismissed. The judgment and decree of the First Appellant court were confirmed.
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