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Vengan Poosari and anr. Vs. Chinnu Alias Patchamuthu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1904)14MLJ290
AppellantVengan Poosari and anr.
RespondentChinnu Alias Patchamuthu
Cases ReferredKanakasabai v. Muttu I.L.R.
Excerpt:
.....which would throw light on questions like the present were reviewed and fully examined by kindersley, y. it must be added that, even in the exceptional cases mentioned in the passage just quoted, the plaintiff must satisfy the court that there is an action pending at law between him and the defendant which will try the right as between them. 516 where the defendants had completed the construction of a railway on the plaintiff's land before suit and claimed only a right of way, lord cottenham dismissed the bill for an injunction observing, the thing complained of has been done; 516 and observed that no injunction would be granted if the trespass were complete and perfect, however clear the original right might be. 445 seems, therefore, to be correct as a general rule and as there is..........the district munsif was of opinion that as prior thereto pooja had been performed by the 2nd plaintiff, possession should be presumed to be still with the plaintiffs. but the district judge took a different view and 1 take the effect of his finding to be that the plaintiffs are out of possession and that the defendant is in possession. indeed it being admitted that from a time at least 4 years before the plaint the plaintiffs had been prevented from having access to the temple and that the defendant has had it under his lock and key ever since, it is not easy to see how any other conclusion can be arrived at. it would follow from some of the allegations in the plaint, that the case of the 1st plaintiff is that he is exclusively entitled to the buildings, etc. assuming that his.....
Judgment:

Subrahmania Aiyar, J.

1. This is not a suit for the establishment of the first plaintiff's right to the office of Poojari. The claim herein is distinctly limited to a building called Semmuniswamy temple situated within the boundaries set forth in the plaint and certain articles contained therein. The defendant inter alia contended that the property was not in the plaintiff's possession but in that of the defendant and it was with reference to this contention that the 4th issue was framed, viz., ' Whether plaintiffs are in possession of the plaint temple and the room and articles mentioned in plaint item No. 2 'I Can they sue for mere injunction.'

2. While finding upon the evidence that the plaintiffs had been prevented from having access to the place from 1895 and that the place was locked up by the defendant and continued so ever since, the District Munsif was of opinion that as prior thereto pooja had been performed by the 2nd plaintiff, possession should be presumed to be still with the plaintiffs. But the District Judge took a different view and 1 take the effect of his finding to be that the plaintiffs are out of possession and that the defendant is in possession. Indeed it being admitted that from a time at least 4 years before the plaint the plaintiffs had been prevented from having access to the temple and that the defendant has had it under his lock and key ever since, it is not easy to see how any other conclusion can be arrived at. It would follow from some of the allegations in the plaint, that the case of the 1st plaintiff is that he is exclusively entitled to the buildings, etc. Assuming that his right is not larger than that of Mallakkal, his alleged adoptive mother, it is clear from para. 6 of Exhibit E, the judgment of the District Court in the litigation of 1881--1382, that he and the defendant are entitled to joint possession of the temple etc.

3. The question therefore is whether a party in the position of the plaintiff can sue for a perpetual injunction.

4. The observations advisedly made by Handley and Weir, 33., in Kanakambai v. Muttu I.L.R. 13 M. 445 cited, for the respondent, are clearly against such a suit. (See also Abdulkadar v. Mahomed I.L.R. 15 M. 15. Many of the English authorities which would throw light on questions like the present were reviewed and fully examined by Kindersley, Y.C. in Lowndes v. Bettle 33 L.J. 451. The result of the authorities as briefly expressed in Kerr on Injunctions (3rd Edition, page 111) is that ''Where a plaintiff is out of possession, the court will refuse to interfere by granting an injunction unless there be fraud or collusion or unless the acts perpetrated or threatened to be perpetrated are so injurious as to tend to the destruction of the estate.' It is scarcely necessary to say that the refusal on the part of courts of Equity to interfere by way of injunction in such cases is on the ground that the plaintiff, having an adequate remedy at law must pursue it. It must be added that, even in the exceptional cases mentioned in the passage just quoted, the plaintiff must satisfy the court that there is an action pending at law between him and the defendant which will try the right as between them. (Kerr on Injunctions, p. 111.) Further even where there is no question of ouster, a mandatory injunction will not issue against a trespasser whose act is complete. Thus in Deere v. Guest 1 Cr. 516 where the defendants had completed the construction of a railway on the plaintiff's land before suit and claimed only a right of way, Lord Cottenham dismissed the bill for an injunction observing, 'The thing complained of has been done; the tram road has, with the leave of the tenant in possession, been completed and the court is asked by the bill to restrain the defendants, who, having finished the undertaking, are now in the daily use and occupation of it, from continuing so to use it and from interrupting the servants and workmen of the plaintiffs in their attempt to destroy it; in other words, the court is virtually asked to eject the defendants and authorize the plaintiffs themselves to take possession of the tramroad. The case originally may have been a case of waste occasioned by the cutting of the tramroad and the laying of the iron rails over the plaintiff's land; but what is now claimed by the defendants is simply a right of way and if they are not entitled to that right they are mere trespassers and the plaintiffs have their proper legal remedy against them as such Ibid 522. In Moreland v. Richardson 22 Beav. 596 Sir John Romilly, M.R., expressed his concurrence with the view laid down in Deere v. Guest 1 Myl. 516 and observed that no injunction would be granted if the trespass were complete and perfect, however clear the original right might be. No doubt in Goodson v. Richardson L.R. 9 Ch. Ap. 221 Lord Selbourne and Lord Justice James, apparently attach to the facts in Deere v. Guest 1 Myl. 516 an effect somewhat different from that attributed to them by Lord Tottenham, as they both thought that the possession was with the defendant Guest, bat the reasons assigned by them for considering that the injunction was rightly refused by Lord Cottenham go only to support the view of the law as stated in the passage quoted from there; for, according to the judgments of those learned Judges no bill for ma injunction would lie against a defendant in possession in the absence of any impediment to the institution of an action of ejectment or any equitable circumstances which would induce Chancery to assume jurisdiction. I have only to add that to allow a plaintiff in this country who is entitled to ask for possession to ask for an injunction only instead, would be to enable him to evade the pro. visions of the law as to the proper tribunal to try the right and, as to the court fees payable in suits for possession. The opinion expressed in Kanakasabai v. Muttu I.L.R. 13 M. 445 seems, therefore, to be correct as a general rule and as there is no question in the present instance of fraud, irreparable damage, continuing trespass or other equitable grounds warranting the issue of an injunction and as the case is clearly one where the plaintiffs ought to sue for such possession as they are entitled to, it is not a proper case for the grant of the injunction sought. On these grounds, I come to the conclusion that the appellate decree of the lower appellate Court dismissing the plaintiffs suit should be sustained and I would dismiss this appeal with costs.


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