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Ramasamy Moopanar Vs. Rathnammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1976)2MLJ363
AppellantRamasamy Moopanar
RespondentRathnammal and ors.
Cases ReferredRaghubir Saran and Ors. v. Param Kirti Saran
Excerpt:
- .....he and his predecessor-in-title had been in occupation for over 70 years. the defence was that the suit property belonged to the defendant and that under a licence granted by his father, the plaintiff was running the school in the property. the defendant relied on a partition of 1918, in which this property was dealt with by his family. the defendant's case was that the plaintiff was not entitled to the relief claimed.2. the trial court took the view that neither the plaintiff nor the defendant had established title to the suit property. it, however, granted an injunction, as the plaintiff was in possession. the learned subordinate judge, to whom the respondent appealed, held, on the basis of exhibits b-3 to b-7, a partition-deed and certain other sale-deeds, in which in the description.....
Judgment:

V. Sethuraman, J.

1. The defendant is the appellant. The plaintiff, who is running an elementary school on the suit property, filed a suit against the defendant for an injunction restraining him from interfering with his possession and enjoyment. The site, on which there is said to be a school building, was classified as Government poramboke or natham land. The plaintiff claimed that he and his predecessor-in-title had been in occupation for over 70 years. The defence was that the suit property belonged to the defendant and that under a licence granted by his father, the plaintiff was running the school in the property. The defendant relied on a partition of 1918, in which this property was dealt with by his family. The defendant's case was that the plaintiff was not entitled to the relief claimed.

2. The trial Court took the view that neither the plaintiff nor the defendant had established title to the suit property. It, however, granted an injunction, as the plaintiff was in possession. The learned Subordinate Judge, to whom the respondent appealed, held, on the basis of Exhibits B-3 to B-7, a partition-deed and certain other sale-deeds, in which in the description of boundaries, the present property was referred to as the defendant's property, that the predecessor-in-title of the defendant had dealt with the suit property as their own, though it was natham land. He also held, on the basis of possession, that the suit for an injunction had to be decreed. Hence the present second appeal by the defendant.

3. The learned Counsel for the appellant, who lost in both the Courts, submitted that the learned appellate judge having found that the appellant and his prodecessor-in-title had treated the property as their own, should not have granted an injunction in favour of the plaintiff who had no title to the suit property. He further contended that the plaintiff was in the position of a trespasser on his own showing and that a trespasser could not seek to hold his possession against the lawful owner. For the respondent, the submission was that the defendant had filed a title suit subsquently in which the question of title would have to be gone into. He, therefore, submitted that the lower Courts did not act wrongly in granting the injunction, so that the injunction, could continue till the disposal of the title suit.

4. The learned Counsel for the appellant brought to my notice the decision in Govindaraj v. Kandasamy Goundar : AIR1957Mad186 . It is to support the proposition that the plaintiff cannot change his case and rely on the defendant's stand. In the present case, I am not satisfied that the plaintiff is trying to change his case. The plaintiff relies on his own possession for the purpose of getting the relief of injunction. I am, therefore, not satisfied that the decision in Govindaraj v. Kandasamy Goundar (1956) : AIR1957Mad186 has any application.

5. The learned Counsel then submitted that a party cannot change his case in appeal. This has reference to the reliance on the licence, pleaded by the defendant, in support of the plaintiff's right of injunction. For this purpose counsel relied on a decision of the Supreme Court in Chayalier, I.I. Iyyappon and Anr. v. The Dharmodayam Co. : [1963]1SCR85 . The relevant passage occurs at page 94. Kapur, J., pointed out that it was not open to a party to change his case at the appellate stage. Here also, I am not satisfied that the plaintiff is trying to change his case at this stage. No doubt, he relies on the permission that was granted by the father of the defendant. This is only as a kind of shield to support his case of possession. In a case like this where the suit is for an injunction based on possession, it has been held by the Supreme Court in N.S.S. Ltd. v. K.C. Alexander : [1968]3SCR163 and also in Yeshwant Singh v. Jagdish Singh : [1968]2SCR203 that the plaintiff need not prove title. Therefore the question of title is not relevant for the purpose of considering the eligibility for the injunction prayed for by the plaintiff. In view of the fact that the question of title is in issue in a different suit, which has been subsequently filed, I do not think it proper to go into it because the matter may be gone into fully in that suit. I, therefore, hold that the plaintiff is entitled to the injunction on the basis of his possession, and nothing said in the present proceeding would prejudice the rights of either parties with reference to the question of title in issue in the pending suit.

6. Learned Counsel for the respondent relied on the provisions of Section 60 of the Easements Act and also on the decision in Raghubir Saran and Ors. v. Param Kirti Saran : AIR1962All444 to show that in the present case the plaintiff had put up construction on the property and that the licence cannot be revoked unilaterally by the defendant. But, as pointed out by the learned Counsel for the appellant, the question as to whether the plaintiff has put up any structure over the property is not clear, In these circumstances, I do not think it necessary to go into the question of applicability of Section 60 of the Easements Act or the decision in Raghubir Saran and Ors. v. Param Kirti Saran : AIR1962All444 . As the plaintiff is entitled to the injunction and has been properly granted by both the Courts below, I do not think it proper to interfere with the said decision. Subject to the above, the appeal is dismissed. I may reiterate that nothing said here will prejudice the rights of parties in the title-suit. There will be no order as to costs. No leave.


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