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Alagi Alamelu Achi Vs. Ponniah Mudaliar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 850 of 1958 and C.M.P. Nos. 980 and 981 of 1961
Judge
Reported inAIR1962Mad149; (1962)1MLJ383
AppellantAlagi Alamelu Achi
RespondentPonniah Mudaliar
Excerpt:
- - no court can by its own order help a party who is found to be in wrongful possession as against the lawful owner were to institute a suit, he might possibly fail on the ground that he was not in possession within 12 years of suit, could make no difference and that cannot, in my opinion, be a proper justification for the issue of an in junction virtually maintaining or advancing the wrongful act of the plaintiffs......of the respondent's title and for an injunction against the appellant in respect of the suit properties. both the courts below have concurrently found that plaintiffs are not entitled to the properties. they have also held that the plaintiffs have not acquired title to the properties by adverse possession. nevertheless, the lower appellate court, differing from the trial court, considered that the fact that plaintiffs had been in possession of the suit properties, since 1939 would entitle them to an injunction against the first defendant. the reasoning of the lower appellate court for that view is stated thus:'it is true that a person in wrongful possession can maintain his possession against all the world except the real owner can take the law into his own hands and enter.....
Judgment:

(1) This second appeal by the first defendant arises out of a suit for a declaration of the respondent's title and for an injunction against the appellant in respect of the suit properties. Both the courts below have concurrently found that plaintiffs are not entitled to the properties. They have also held that the plaintiffs have not acquired title to the properties by adverse possession. Nevertheless, the lower appellate court, differing from the trial court, considered that the fact that plaintiffs had been in possession of the suit properties, since 1939 would entitle them to an injunction against the first defendant. The reasoning of the lower appellate court for that view is stated thus:

'It is true that a person in wrongful possession can maintain his possession against all the world except the real owner can take the law into his own hands and enter upon the property and dispossess the person in wrongful possession there-of by force. The proposition means that the person in wrongful possession of the property has to surrender his possession to the real owner on his taking the necessary steps to recover possession in a manner recognised by law. If courts of law do not afford protection to persons in possession of property though wrongful, and allow the real owners to take the law into their own hand and enter upon the property and push out the person in wrongful possession thereof, serious consequences will follow.'

(2) I must confess that I am completely at a loss to appreciate this view of the lower appellate court and I have not the slightest doubt that it is utterly erroneous. No case has been cited before me in support of the proposition that a person in wrongful possession is entitled to be protected against the lawful owner by an order of injunction directed against him. But the contention of the learned counsel for the respondents is that inasmuch as in effect the finding is that the first defendant had not been in possession of the properties within 12 years of the institution of the suit by the respondent and she would, therefore, not have succeeded if she had instituted a suit for recovery of possession, she should be regarded as a person not having a subsisting title and therefore not lawful owner. On that basis the learned counsel contends that the lower appellate court was right in granting the injunction.

I am wholly unable to accept this contention. The question in the present suit is not whether the first defendant has a subsisting title. Once the lower appellate court found, that the plaintiffs' possession is wrongful, it immediately followed that such possession is not entitled to protection by an injunction, because such an order will be only assisting the plaintiffs in their wrongful possession. No court can by its own order help a party who is found to be in wrongful possession as against the lawful owner were to institute a suit, he might possibly fail on the ground that he was not in possession within 12 years of suit, could make no difference and that cannot, in my opinion, be a proper justification for the issue of an in junction virtually maintaining or advancing the wrongful act of the plaintiffs. I hold, therefore, that the lower appellate court went wrong in that the lower appellate court went wrong in granting an injunction against the first defendant.

(3) The learned counsel for the respondent pressed before me two applications, one for calling for documents and the other for admission of the documents to be called for. No proper reason has been given in the affidavit in support of the applications why any attempt to summon those documents had not been made in the courts below. The documents which are sought to be called for, are certain counterfoils said to be with the Ariyakudi and Illuppakudi devastanams. I can find no justification for allowing these two applications. They are dismissed.

(4) In the result, the second appeal is allowed. The decree and judgment of the lower appellate court are set aside and the suit will stand dismissed. The appellant will be entitled to her costs throughout. No leave.

(5) Appeal allowed.


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