(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, praying to allow the appeal setting aside the decree and judgment dated 15.06.2010 in A.S.No.71 of 2009 on the file of the learned Principal Subordinate Judge, Kumbakonam confirming the decree and judgment dated 24.07.2009 passed by the learned District Munsif-cum-Judicial Magistrate at Papanasam in O.S.No.78 of 2006.)
1. The unsuccessful plaintiff before the Courts below is the appellant in the above second appeal. The plaintiff / appellant filed a suit in O.S.No.78 of 2006 on the file of the District Munsif-cum-Judicial Magistrate Court, Papanasam, for permanent injunction restraining the defendant and his men from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property. The suit property is described as a property measuring an extent of 26 feet East-West and 168 feet North-South situate in Survey No.797/24 (old survey No.347K/2B) in Melatture 1st Sethi Village in Papanasam Taluk, Thanjavur District.
2. The case of the plaintiff / appellant is that the suit property along with other property measuring an extent of 72 feet East-West and 168 feet North-South belongs to the plaintiff / appellant. According to the plaintiff / appellant, the entire extent of land measuring 72 feet East-West was in three parts, each measuring 24 feet, East-West. According to the plaintiff / appellant, the eastern most 24 feet is the ancestral property of the plaintiff / appellant. The middle 24 feet was purchased by the plaintiff's / appellant's wife by a sale deed dated 18.08.1987 and the western 24 feet was purchased by the plaintiff's / appellant's father one Karuppiya Seppalar by a registered inam sasanam dated 22.05.1980. The further case of the plaintiff / appellant is that they sold middle portion of the three plots measuring 22 feet x 196 feet East-West and North South respectively to one Indira by a registered sale deed dated 27.12.2000. After the sale in favour of the said Indira, the plaintiff / appellant states that he is in possession of 26 feet East-West and 168 feet North-South which is the suit property. Though the defendant / respondent is the owner of the property on the immediate West of the suit property, the plaintiff / appellant stated that he has no right in the suit property. Since the defendant / respondent was interfering with his possession, he has stated that he was constrained to file the suit for bare injunction on the premise that the defendant / respondent has no title to the suit property.
3. The plaintiff's / appellant's claim was resisted by the defendant / respondent on the ground that the defendant / respondent is in possession and enjoyment of the suit property for more than 100 years and that the property was purchased in the name of his mother one Nagammal. It was also the case of the defendant / respondent that the plaintiff / appellant had no title to the property and that the original owner of the suit property is one Sundaresan, son of Late Panchapakesan who is now residing at Mylapore in Chennai. It is also his specific case that the plaintiff / appellant is not in possession as he was residing in another house in Perumal Kovil Street and that there is no cause of action for the present suit.
4. The trial Court dismissed the suit holding that the plaintiff / appellant has not proved his title. Considering the admission of the plaintiff / appellant in the course of evidence that the suit property belonged to one Panchapakesan and that he is claiming only right in respect of the land belonged to Panchapakesan and that he has not produced any document except the patta to prove his right, the lower appellate Court also fell in line with the trial Court and found that the plaintiff / appellant has not proved either his title or possession or enjoyment of the suit property. Though the document Ex.A2-chitta relied upon by the plaintiff / appellant to prove that he is entitled to title to the suit property, the Courts below refused to rely upon the said document on the ground that mere patta cannot be taken as a document of title. Aggrieved by the judgment and decree of the lower appellate Court in A.S.No.71 of 2009, dated 15.06.2010, the plaintiff / appellant has filed the above appeal.
5. At the time of admitting the second appeal, the following questions of law were framed by this court:
1. Whether the trial Court is wrong in not accepting the evidence of D.W.1 and granted the decree of injunction, since he is interested only in S.No.797/23, not in the suit property:
(2) Whether both the Courts below are right in dismissing the suit without appreciating both oral and documentary evidences?
(3) Whether the judgment of both the Courts below is perverse?
6. From the reading of the questions of law framed by this Court, the issues are only factual. However, the learned counsel for the plaintiff / appellant submitted that the document Ex.A2 is a patta in respect of the suit property and that the same is admissible in evidence at least to show that the plaintiff / appellant is in possession of the property. Relying upon the evidence of defendant / respondent during the trial admitting that he is not claiming any right in respect of Survey No.797 / 24, the learned counsel for the plaintiff / appellant further submitted that he is entitled to decree for injunction against the defendant / respondent, who has no title or better title than the plaintiff / appellant. The learned counsel for the plaintiff / appellant relied upon the judgment of the Hon'ble Supreme Court in the case of Prataprai N. Kothari vs. John Braganza reported in (1999) 4 SCC 403 wherein it is held as follows:
11. We have already extracted the summary of conclusions arrived at by the learned Single Judge of the High Court. That shows that his conclusions were vitiated by his view that the appellant had title and possession followed title. It is quite obvious that the learned Single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to the due process of law.
However, the said proposition cannot be applied to a case where the plaintiff admits that he has no title.
7. When this Court pointed out that the evidence of the plaintiff / appellant is not in tune with the pleadings, the learned counsel for the plaintiff / appellant referred to the judgment of the Hon'ble Supreme Court in the case of Nagindas Ramdas vs. Dalpatram Iccharam alias Brijram and others reported in AIR 1974 2 SC 471 wherein the Hon'ble Supreme Court has held as follows:
26. From a conspectus of the cases cited at the bar the principle that emerges is that if at the time of the passing of the decree, there was some material before the Court, on the basis of which the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. Admissions it true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on the higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the trial as evidence are by themselves not conclusive. They can be shown to be wrong.
8. The learned counsel for the defendant / respondent relied upon the findings of the Courts below and submitted that the concurrent findings of the Courts below which are supported by proper reasons are not liable to be interfered with. The learned Counsel for the defendant / respondent also referred to the admission of the plaintiff / appellant that he has no title to the suit property.
9. Considering the rival submissions of the respective counsels, I am in full agreement with the learned counsel for the plaintiff / appellant that the plaintiff in a suit for bare injunction is entitled to protect his possession against any one who is not the real owner or who has no better title than the plaintiff. However, the issue in this particular case has to be dealt with differently as this Court find that the plaintiff / appellant has come forward with a false case and the pleadings of the plaintiff / appellant in the plaint is contrary to the documents and his own evidence as P.W.1. Plaintiff has admitted in his evidence that on the east of defendant's property, the property of Sundaresan is located and that he is conducting this case in respect of the property of one Panchapakesan by treating the same as his property. The suit property also described in the plaint as the property which lies on the east of defendant's land. Thus the plaintiff has admitted that the suit property belonged to some third party. This admission has not been shown to be wrong by the plaintiff by other evidence.
10. From the findings of the Courts below, it can be seen that the plaintiff / appellant has not proved his title to the suit property. The appellate Court has independently considered the documents produced by the plaintiff / appellant to prove his case. From the documents produced, it can be seen that the Courts below are right in recording a finding that the plaintiff / appellant is not the owner of the suit property. It is true that the plaintiff / appellant has produced patta under Ex.A2. This patta is in respect of Survey No.797 / 24 and the total extent is 0.09.73 hectares equivalent to about 22 cents. This patta is for a larger extent and contrary to the plaintiff's / appellant's own case about his entitlement. Hence, this Court find that patta / chitta issued in the name of the plaintiff / appellant cannot be the sole basis for deciding the right, title and interest of the appellant especially when the plaintiff himself admits that the suit property belonged to one Panchapakesan. Though the learned counsel for the plaintiff / appellant is right in his submission that the defendant / respondent has not proved the title and enjoyment and that the plaintiff / appellant in the present suit can protect his possession against the defendant / respondent who is not the real owner, I am not in a position to accept his contention for the following reasons:
(a) The grant of injunction is a discretionary and equitable relief and it is not mandatory in every case where the plaintiff proves possession, to grant a decree for injunction;
b) In the present case, the fact that the plaintiff / appellant is not the owner of the suit property is admitted.
(c) The contention that the plaintiff / appellant is in possession of the property is not proved as found by the Courts below.
(d) His case that he was given patta under Ex.A2 cannot be accepted when the plaintiff admits that he is not the owner of the property. Patta is not, therefore, a document which can be relied upon by the Court to confer even a possessory right in favour of a person who has no title.
11. The Courts below have specifically given a finding that the plaintiff / appellant has not proved his possession and that the plaintiff / appellant has also admitted that he is residing in a different street and that the suit property is only a vacant land. In such circumstances, this Court is not in a position to accept the case of the plaintiff / appellant that he is in possession and enjoyment of the suit property.
12. For the reasons stated above, this Court find that there is no merit in the above second appeal and there is no substantial question of law arise for consideration except the points raised by the plaintiff's / appellant's counsel that were discussed above. The Second Appeal is, therefore, dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed.