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VENKATACHALAM & ANOTHER V/S NALLATHAMBI, decided on Tuesday, February 12, 2013.
[ In the High Court of Madras, S.A. No. 2016 of 2004. ] 12/02/2013
Judge(s) : G. RAJASURIA
Advocate(s) : P. Valliappan. N. Manoharan.
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  "2013 (4) CTC 45"  







        (Prayer: The Second Appeal is filed against the Judgment and Decree dated 26.4.2004 passed by the Subordinate Court Sankari and made in A.S. No.2 of 2004 reversing the Judgment and Decree dated 27.11.2003 passed by the District Munsif Court Sankari in O.S. No.131 of 2002.)1. This Second Appeal is filed by the Defendants animadverting upon the Judgment and Decree dated 26.4.2004 passed by the Subordinate Court Sankari reversing the judgment and decree dated 27.11.2003 passed by the District Munsif Court Sankari in O.S. No. 131 of 2002 which was one for permanent injunction.2. The parties for the sake of convenience are referred to hereunder according to their litigative status and ranking before the Trial Court.3. The epitome and the long and short of the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:(i) The Respondent/Plaintiff herein-Nallathambi filed the Suit seeking permanent injunction in respect of the house property described in the schedule of the Plaint.(ii) The Appellants/Defendants filed the Written Statement resisting the Suit.(iii) Whereupon issues were framed. Up went the trial during which the Plaintiff examined himself as PW1 along with one Solomon as PW2 & Exs.A1 to A7 were marked on his side. On the Defendants’ side one Chellammal was examined as DW1 along with Madhu as PW2 and Exs.B1 to B21 were marked on their side. Ex.11 was marked as Court document.(iv) Ultimately the Trial Court dismissed the Suit as against which the First Appellate was filed. Whereupon the First Appellate Court reversed the judgment and decree of the Trial Court and decreed the Suit.4. Being aggrieved by and dissatisfied with the judgment and decree of the First Appellate Court this Second Appeal has been filed by the Defendants on various grounds suggesting the substantial question of law.5. Whereupon my learned Predecessor formulated the following substantial questions of law:“1. Whether the Sale Deed under Ex.A2 convey title to the Plaintiff especially when the Power of Attorney Deed-Ex.A3 was executed by Ramasamy (Principal) authorizing his agent Ramakrishnan only to sell the property to one Perumal and not the Plaintiff?2. Whether the Suit for bare Injunction is valid in law especially when the title of the Plaintiff is seriously disputed by the Defendants?3. Whether the Lower Appellate Court right in holding that the Plaintiff is in possession of the suit property ignoring the very valid documentary evidence under Exs.B6 to B21 ?”6. Heard both sides.7. The learned Counsel for the Appellants/Defendants would pyramid his arguments which could succinctly and precisely be set out thus:(i) The First Appellate Court fell into error in ushering in the presumption to wit ‘possession follows title’ in respect of house property. Such a presumption is possible only in respect of vacant site and not in respect of house property.(ii) Absolutely there is no shard or shred molecular or jot of objective evidence available to prove that the Plaintiff was in possession and enjoyment of the suit property as on the date of filing of the Suit.(iii) The Suit also was bad for want of a prayer for declaration of title in view of the fact that the records would reveal that there is serious title dispute between the Plaintiff and the Defendants.(iv) The Defendants went to the extent of disputing Ex.A2 – the Sale Deed dated 21.8.1993 executed by Ramakrishnan in favour of Nallathambi as well as Ex.A3 – the Power Deed dated 26.3.1993 executed by Ramasamy Gounder in favour of one Ramakrishnan.(v) The First Appellate Court was not right in ignoring Ex.B6 to B21 which would speak in support of the contention of the Defendants that they have been in possession and enjoyment of the suit property.Accordingly the learned Counsel for the Appellants/Defendants would pray for setting aside the judgment and decree of the Appellate Court.8. Per Contra the learned Counsel for the Respondent/Plaintiff in bid to torpedo and pulverize the arguments as put forth and set forth on the side of the Appellant/Defendants would advance his arguments which could tersely and briefly be set out thus:(a) Ex.A2 is a registered Sale Deed dated 21.8.1998 executed by Ramakrishnan – the Power of Attorney holder of the deceased Ramsamy – the propositus of the Defendants. In fact the said Ramakrishnan executed the registered Sale Deed – Ex.A2 on the strength of Ex.A3 which is registered Power Deed executed by the said Ramasamy in favour of Ramakrishnan.(b) In Ex.A3 – the Power Deed there is a specific clause to the effect that Ramasamy the original owner had put Ramakrishnan the registered power holder in possession of the suit property as on the date of the execution of the Power Deed itself.(c) Over and above that Ex.A2 – the Sale Deed dated 21.8.1998 would also show that the said Ramakrishnan on selling the suit property had put the purchaser in possession of the suit property. Quite antithetical to the aforesaid versions found embodied in Ex.A2 & A3 the Defendants went to the extent of contending otherwise which unfortunately found favour with the Trial Court. But the Appellate Court appropriately appreciated those documents and granted injunction.(d) It is not that the Appellate Court simply decided the lis in favour of the Plaintiff based on the mere presumption referred to supra but the Appellate Court considered the pro et contra and decreed the Suit in favour of the Plaintiff warranting no interference in Second Appeal.(e) Simply because the Defendants raised some title dispute that would not lead to the inference that the Plaintiff should have prayed for declaration of his title over the suit property. The Plaint averments alone would govern the prayer.(f) The Defendants by taking untenable pleas cannot give an impression that the Suit was bad.Accordingly the learned Counsel for the Respondent/Plaintiff would pray for the dismissal of the Second Appeal.9. All the substantial questions of law are taken together for discussion as they are interwoven and interlinked interconnected and entwined with one another.10. A mere running of the eye over the decision of the First Appellant Court would exemplify and demonstrate that the First Appellate Court instead of analyzing in detail the objective evidence as put forth by the Defendants in the form of Exs.B6 to B21 mostly relied on the presumption that ‘possession follows title’ and accordingly held that with regard to the suit property is concerned the Plaintiff should be held to be in possession. The said conclusion was arrived at by the Appellate Court mainly after giving a finding that Ex.A2 – the Sale Deed dated 21.8.1998 & Ex.A3 – the Power Deed dated 26.3.1993 conferred title on the Plaintiff even though the Suit is not one for declaration of title.11. On both sides various decisions have cited.(a) The learned Counsel for the Appellants/Defendants cited the following precedents of the Honourable Apex Court as well as this Court:(i) The judgment of the Honourable Apex Court in Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and others 2008 (6) CTC 237;(ii) Judgment of this Court in E.Sathidass v. I.C. Ponnuswamy 2. C.Arumugum 2011 (1) CTC 801;(iii) Judgment of this Court in Vagappa and others v. V. Nagaraj and others 2010 (3) MLJ 26;(iv) Judgment of this Court in Ramalingam v. Thiruvenkadam 2010 (2) MLJ 333;(v) Judgment of this Court in Jothi Ramalingam v. M.N. Sivagnana Prakasam and others 2010 (3) MLJ 85;(vi) Judgment of this Court in Chinna Nachiappan and another v. P.L. Lakshmanan 2007 (7) CTC 70;(vii) Judgment of this Court in Lalitha and another v. Selvaraj 2006 (2) CTC 24 : 2006 (1) MLJ 313;(viii) Judgment of this Court in Iqbal Mohammed Bijili v. K. Arumugam and others 2005 (3) CTC 420 : 2005 (2) MLJ 411;(ix) Judgment of this Court in K. Sadasivam and another v. B. Harikrishnan 2001 (2) CTC 590; and(x) Judgment of this Court in Chellathurai and 5 others v. Perumal Nadar 1998 (3) LW 119.(b) The learned Counsel for the Respondent/Plaintiff cited the following precedents of the Honourable Apex Court as well as the this Court:(i) The judgment of the Honourable Apex Court in Anathula Sudhakar v. P. Buchi Reddy (dead) by LRs and others 2008 (6) CTC 237;(ii) The judgment of the Honourable Apex Court in State of Andhra Pradesh and others v. D. Raghukul Pershad (dead) by L.Rs. and others 2012 (3) MWN (Civil) 215 (SC) : 2010 (8) SCC 584; and(iii) The judgment of this Court Syed Dhasthakeer v. Navab john 2012 (6) CTC 892.12. A mere running of eye over those precedents would clearly show that in a bare Suit for injunction the Plaintiff could succeed provided he could prove that he was in established possession of the suit property as on the date of filing of the Suit. If the Plaint averments disclose that there was any title dispute then the Suite would be bad for want of a prayer for declaration of title.13. So far this case is concerned in the Plaint no title dispute is found exemplified. However the Defendants raised serious title dispute challenging the genuineness of Ex.A2 – the Sale Deed dated 21.8.1998.14. In fact the learned Counsel for the Appellants/Defendants would put forth his arguments mainly based on a clause in Ex.A3 – the registered Power Deed to the effect that the deceased Ramasamy authorized Ramakrishnan to execute the Sale Deed only in favour of one Perumal with whom he entered into an Agreement to Sell. But quite antithetical to the said clause Ramakrishnan as per Ex.A2 sold the suit property in favour of son-in-law of Perumal.15. Whereas the learned Counsel for the Plaintiff would submit that the said clause in Ex.A3 authorising Ramakrishnan to sell the suit property in favour Perumal should not be construed rigidly without even taking into consideration the instances where the holder of an Agreement to Sell can either purchase it for himself or he could call upon the owner of the land to sell the property to a person in whose favour the agreement holder might direct him to do so. No doubt these are all facts which could be decided after farming appropriate issues in an appropriate Suit.16. The core question arises as to whether in a bare injunction Suit these complicate questions relating to title and validity of the documents could be adjudged finally.17. In my considered opinion in a bare injunction Suit such deciding on those issues would be beyond the scope of the Suit. In fact in this case what actually happened was that the Appellate Court dilated much on the title of the rival parties and gave a finding that title was with the Plaintiff and whereupon the Appellate Court ushered in the presumption to the effect that ‘possession follows title’.18. In my considered opinion in respect of the house property is concerned such presumption ‘possession follows title’ cannot be ushered in. There should be clinching evidence relating to the possession of a house to grant injunction.19. The pertinent questions to be raised in a case of this nature touching upon house property are as to who was actually paying the Electricity Consumption Charges Water Consumption Charges and whether any Ration Card or Voter Card speak in favour of the alleged possessor. Even though the Plaintiff would was eloquence on the issue that he was put in possession even since the emergence of Ex.A2 – the Sale Deed no clinching evidence on his side has been produced to show that he was paying Electricity Consumption Charges Water Charges etc.20. Over and above that it is the case of the Plaintiff that the said Power Agent- Ramakrishnan even since 1993 was in possession and enjoyment of those properties till he allegedly part with his possession in favour of the Plaintiff after emergence of Ex.A2 – the Sale Deed. As such the analysis of evidence is concerned virtually on the Plaintiff’s side there is no clinching evidence. But the First Appellate Court failed to take note of the same. Hence regarding possession is concerned the findings rendered by the First Appellate Court does not merit consideration.21. In this factual matrix I am of the considered view that a comprehensive Suite for declaration and recovery of possession would be the proper solution and for that there could be no embargo legally and in this connection I would like to refer to the following Judgment of the Honourable Apex Court:Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others 2008 (6) CTC 237 certain excerpts from it would run thus:“29. We therefore allow this Appeal set aside the judgment of the High Court and dismiss the Suit. Nothing stated herein or by the Coutts below shall be construed as expression of any opinion regarding title in any future Suit for declaration and consequential reliefs that may be filed by the Appellants in accordance with law. Parties to bear their respective costs.”22. Accordingly the substantial questions of law are decided and the Judgment and Decree of the First Appellate Court is set aside giving liberty to the Plaintiff to file a comprehensive Suit for declaration and recovery of possession of the suit property in the way known to law. In such an event of filing such Suit it is for the Court concerned to consider afresh all the relevant issues untrammeled and uninfluenced by any one of the Judgments rendered by any one of the for a in this matter.23. The Second Appeal is disposed of accordingly. No costs.