(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 28.03.2008 in A.S.No.42 of 2007 on the file of the learned Additional District Judge (Fast Track Court No.IV), Bhavani, Erode District, reversing the Judgment and Decree dated 30.07.2007 in O.S.No.429 of 2005 on the file of the learned Principal District Munsif, Bhavani, Erode District.)
1. The plaintiff in a suit for bare injunction has filed this Second Appeal challenging the Judgment and Decree dated 28.03.2008 in A.S.No.42 of 2007 on the file of the learned Additional District Judge (Fast Track Court No.IV), Bhavani, Erode, reversing the Judgment and Decree dated 30.07.2007 in O.S.No.429 of 2005 on the file of the learned Principal District Munsif, Bhavani, Erode. The parties are referred to in their litigative status as in the trial Court.
2. The plaintiff had filed the suit O.S.No.429 of 2005 on the file of the learned District Munsif, Bhavani, Erode District, for the following reliefs:
'(a) restraining the defendants, their men and agents from in any manner interfering with the plaintiff’s peaceful possession and enjoyment of the suit property by means of a permanent injunction,
(b) directing the defendants to pay the cost of the suit.'
3. The property which is the subject matter in dispute is hereinbelow reproduced:
(Amended as per I.A.No.1435/2005 dated 25.01.2006).
The pleadings of the plaintiff and the defendants are briefly extracted hereinbelow:
4. The plaintiff has filed the suit for bare injunction with reference to the property described hereinabove. Originally, the suit was filed for a total extent of 2434 sq.ft comprising of D.Nos.179 and 170. The suit was thereafter amended and the extended was reduced to 1236 sq.ft and restricted to Door No.169 alone. The boundary on the West was originally described as that of A.P.Chellappa Gounder and this was later amended as Dr.Bakthavachalam’s house. The plaintiff’s case is that the larger extent of the suit property which was a vacant site originally belonged to one Kolantha Gounder. He had built tiled houses over this vacant site. Thereafter, the property was sold to one Chinna Thambi Gounder under a registered Sale Deed dated 16.05.1943.
5. The plaintiff’s parents had taken the properties on lease for running a hotel in the year 1957 in the name and style of 'Hotel Japan'. The larger extent of the suit property was sold to the plaintiff’s mother Krishnaveniammal by the sons of Chinna Thambi Gounder under a Sale Deed dated 30.03.1977. Thereafter, the Survey Number was sub-divided and re-numbered as S.No.1642/1C and Door Numbers were assigned to the building as D.Nos.169 and 170. The plaintiff’s parents could not run the hotel business and therefore, they had leased out the same to the tenants. One of the tenant was running the hotel business and the other a fruit shop in the same premises. The Arulmighu Badrakaliyamman Koil is situate to the South of the suit property in S.F.No.1624/2. The defendants wanted to extend the area of the Temple and therefore, demolished the suit property in the months of March 2005. They requested the plaintiff not to precipitate the matter and therefore, no action was taken by the plaintiff, particularly, since the demolition is for the benefit of the Temple.
6. The plaintiff would submit that the defendants had no right or title or interest in the property comprised in Survey No.1624/1C. However, they had been giving out that they would demolish the suit buildings. This threat was first made on the night of 22.07.2005. Immediately, the plaintiff’s mother had lodged a complaint with the Anthiyur Police Station and a police bundobust was provided through the night. However, the defendants reiterated their threat that they would demolish the suit buildings. Therefore, the suit came to be filed for and on behalf of the plaintiff by his Power Agent who is his brother-in-law.
7. The defendants had resisted the suit at the outset denying the title of the plaintiff to the suit property. They would contend that the property belonged to the Temple and the plaintiff has no right or interest over the same and the property is a Temple poramboke. The defendants would contend that the documents have been created by the plaintiff to show a semblance of right over the suit property. The defendants would further contend that the mother of the plaintiff had filed an identical suit in O.S.No.251 of 2005 which suit she had not pressed and the suit came to be dismissed on 31.08.2005. Therefore, the present suit is barred under Section 11 of the Code of Civil Procedure. The defendants would further deny the allegations that they had demolished the buildings. In fact, the defendants would submit that they have never demolished any type of the building at any point of time and nor have they threatened the plaintiff in any fashion. They contended that there was no cause of action for filing the suit. They had also questioned the filing of the suit for bare injunction without seeking a declaration since the title of the plaintiff is denied.
8. The defendants had also filed an Additional Written Statement after the amendment of the suit in which they would, in addition, contend that the plaintiff is an absolute stranger who is not aware about the details of the suit property. They reiterated that the suit property belonged to the Temple and the Government cannot grant any Patta to the plaintiff.
9. The learned Principal District Munsif, Bhavani, had framed the following issues which translated from the Vernacular would read as follows:
'(1) Whether the plaintiff is entitled to a Decree as claimed in the suit?
(2) What are the other reliefs to which the plaintiff would be entitled to?'
10. On the side of the plaintiff, the Power Agent had examined himself as P.W.1 and marked Ex.A.1 to Ex.A.8. On the side of the defendants, the Executive Officer had adduced evidence as D.W.1 and marked Ex.B.1 to Ex.B.3. The trial Court on considering the evidence on record proceeded to decree the same, however, on an Appeal by the defendants in A.S.No.42 of 2007, the learned Additional District Judge (Fast Track Court No.IV), Bhavani, Erode District had allowed the appeal and dismissed the suit. Challenging the same, the plaintiff is before this Court.
Substantial Questions of Law:
11. The Second Appeal has been admitted on the following Substantial Questions of Law on 31.08.2010:
'(a) Whether the First Appellate Court was right in holding that the appellant should have asked for the prayer of declaration while asking for the permanent injunction against the respondents/defendants?
(b) Whether the First Appellate Court was right in holding that the document, dated 16.05.1943, i.e, Sale Deed executed in favour of Chinnathambi Gounder cannot be taken into consideration when the said document is more than 30 years of old document?'
12. On hearing the submissions made by either party and considering the fact that the extensive arguments had been adduced regarding the suit, subject matter of this Appeal, being barred on account of the dismissal an earlier suit for the very same cause of action as not pressed and there being no cause of action for the institution of the suit, exercising my powers under the proviso to Section 100(5), I am formulating the following Additional Substantial Questions of Law:
Additional Substantial Questions of Law:
'(1) Whether the dismissal of O.S.No.251 of 2005 filed by the mother of the plaintiff for an identical cause of action and the same relief would be a bar to the filing of the instant suit O.S.No.429 of 2005 on the file of the learned Principal District Munsif, Bhavani, Erode?
(2) Whether the plaintiff has proved the cause of action for filing the suit and seeking a relief?'
13. The plaintiff has filed the suit for bare injunction on the ground that the suit property belongs to him and his predecessors in title and that the defendants were obstructing his peaceful possession and enjoyment of the same. The plaintiff’s claim that he is the owner of the property has been denied by the defendants who have stated that the Survey number in which the suit property is situate belongs to the Temple and that neither the plaintiff nor their predecessors in interest or have any right or title over the property in question and that the suit filed without seeking the relief of declaration was per se erroneous. Therefore, taking note of the fact that the 1st Substantial Question of Law has been framed in regard to the above the same needs to be examined.
14. The plaintiff’s case is that the property belonged to one Kolantha Gounder from whom the same had been purchased by one Chinna Thambi Gounder under Ex.A.1 -Sale Deed in the year 1943. Thereafter, the plaintiff’s parents had taken the property on lease from the said Chinna Thambi Gounder and ultimately, the plaintiff’s mother Krishnaveniammal had purchased the same from the sons of Chinna Thambi Gounder under Ex.A.2 -Sale Deed. Krishnaveniammal thereafter settled the properties on her two sons, the plaintiff and his brother Bakthavachalam. An extent of 2778 sq.ft. was settled on the plaintiff under Ex.A.3 along with the buildings measuring 40 sq.m.. Pursuant to Ex.A.3, the plaintiff had taken possession of the suit property. The plaintiff has traced his right to the property as above.
15. Juxtaposed with the above claim, the claim of the defendants need to be examined. The case of the defendant is that Survey No.17 belongs to the Temple and in support of the same, Ex.B.1 -Re-Settlement Register has been filed, though subject to objections. A perusal of the same would show that the property comprised in S.No.17 is shown as that of the Temple and the persons holding the patta are described as the Priest K. Kaliyandi and Kolantha Gounder. The remarks column describes the property as Bhadrakali Amman Temple. However, no document pursuant to the sub-division has been filed on the side of the defendants. The defendants would state that there is a serious dispute with reference to title and therefore, a suit simpliciter for injunction is not maintainable.
16. The counsel for the plaintiff would submit that they have produced documents from the year 1943 to show how the property had devolved upon the plaintiff. Further, the plaintiff being in admitted possession of the same even assuming that they are strangers to the property they can be evicted only by due process of Law.
17. In the Judgment in Anathula Sudhakar v. P.Buchi Reddy (Dead) by legal representatives and others (AIR 2008 SC 2033), the Hon’ble Supreme Court has set out the principles regarding the filing of the suit for bare injunction where title was disputed. In paragraph 17, the Hon’ble Supreme Court held as follows:
'17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff’s title and hedoes not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.'
18. In the instant case, though the suit is one for bare injunction, however, the plaintiff has provided the documents of title under which they claim to be in possession of the property and the plaintiff has also adduced evidence in support of the said document. Further, D.W.1 in his cross has stated that the defendants are ready to purchase the suit property for a sum of Rs.1,00,000/-which only goes to show that the defendants have recognised the plaintiff’s right to the suit property. The plaintiff has therefore established a prima facie case of tile and therefore, the suit filed simpliciter for a bare injunction is maintainable. The Lower Appellate Court has proceeded to reject Ex.A.1 -Sale Deed dated 16.05.1943 only on the ground that the said document does not specify how the Vendor i.e., Kolantha Gounder has got a right to the property. In this regard, the learned Judge has himself extracted the recitals of Ex.A.1 wherein it is mentioned that the property devolved on Kolantha Gounder by way of a Sale. Further, the defendants have not objected to the document and nor have they rebutted the same. The document is of the year 1943 and therefore, presumed to be true. Therefore, Substantial Questions of Law 1 and 2 are answered in favour of the plaintiff.
19. Another argument advanced by the defendants was that the present suit is barred on account of the dismissal of the earlier suit O.S.No.251 of 2005 filed by the mother of the plaintiff in respect of identical cause of action and relief.
20. It is the argument of the learned counsel for the plaintiff that the suit is barred under Section 11 and Order 9 Rule 9 of the Code of Civil Procedure.
21. Admittedly, the plaintiff’s mother had filed a suit O.S.No.251 of 2005 on the file of the learned District Munsif, Bhavani which is evident from Ex.B.2 and the said suit came to be not pressed by the plaintiff therein by filing a Memo and accordingly, the suit was dismissed as not pressed on 31.08.2005. A reading of the pleadings in the said suit O.S.No.251 of 2005 would clearly reveal that the pleadings in the suit subject matter of the Second Appeal is identical and the only changes made is the name of the plaintiff in the short and long cause title and the date of verification of the Plaint. Cosmetic changes have also been made to modify the sentence to suit the fact that this suit is filed by the plaintiff herein.
22. In fact, Paragraphs 7 and 8 of the suit O.S.No.251 of 2005 is extracted hereinbelow:
'7. On the night of 22.07.2005 the defendants openly declared that they were going to demolish the suit building with a bockline. Immediately, The plaintiff gave a complaint to the Anthiyur Police about the proclaimed threat of the defendants and sought for a bandhobast. Immediately, the police bandhobast was provided throughout the night. But the defendants have challenged that they will demolish the building after a lapse of few days. The defendants are likely to demolish the building. Unless the defendants are restrained by means of an order of this Hon’ble Court the plaintiff cannot protect her property. Therefore, the plaintiff has come forward with this suit for permanent injunction.
8. The cause of action for the suit arose on 22.07.2005 the date on which the defendants made attempt to demolish the building and on all subsequent dates at Anthiyur Village, Bhavani Taluk and within the jurisdiction of this Hon’ble Court.'
23. Likewise, Paragraphs 7 and 8 of the present suit O.S.No.429 of 2005 is extracted hereinbelow and the changes in this suit is highlighted:
'7. On the night of 22.07.2005 the defendants openly declared that they were going to demolish the suit building with a bockline. Immediately, The plaintiff’s mother gave a complaint to the Anthiyur Police about the proclaimed threat of the defendants and sought for a bandhobast. Immediately, the police bandhobast was provided throughout the night. But the defendants have challenged that they will demolish the building after a lapse of few days. The defendants are likely to demolish the building. Unless the defendants are restrained buy means of an order of this Hon’ble Court the plaintiff cannot protect his property. Therefore, the plaintiff has come forward with this suit for permanent injunction. Since the plaintiff is residing at the above address in U.S.A. he has given a power of attorney to his brother in law E.R.Ravichandran to title the suit and prosecute the same. The plaintiff is also filing a separate application to permit him to be represented by the Power of Attorney.
8. The cause of action for the suit arose on 22.07.2005 the date on which the defendants made attempt to demolish the building and on all subsequent dates at Anthiyur Village, Bhavani Taluk and within the jurisdiction of this Hon’ble Court.'
24. A reading of both the pleadings would clearly demonstrate that the cause of action in the earlier suit and the cause of action in the present suit is one and the same. Considering the defence taken out, it is necessary to extract the provisions of Section 11 and Order 9 Rule 9 of the Code of Civil Procedure as follows:
'Section 11. Res judicata.No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.'
'Order IX Rule 9. Decree against plaintiff by default bars fresh suit.(1) Where a suit is wholly or partly dismissed underrule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.'
25. Another Order of Code of Civil Procedure which could have a bearing is the provisions of Order XXIII Rule 1(4)(b) of the Code of Civil Procedure which reads as follows:
'1. Withdrawal of suit or abandonment of part of claim.(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. ...
(4) Where the plaintiff(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.'
26. A reading of Section 11 would indicate that the former suit should have been between the same parties or parties claiming under the party in the former suit and should have been finally heard and decided by the Court. No doubt, in the instant case, the plaintiff is claiming only under Krishnaveniammal who was the plaintiff in the earlier suit. However, the earlier suit has not been heard on merits. The suit was dismissed as not pressed. Likewise, if the provisions of Order IX Rule 9 of the Code of Civil Procedure is taken note of, once again the language of the provision would indicate that it is the very same plaintiff who is precluded from bringing on the fresh suit and not another plaintiff.
27. Therefore, the Judgment relied on by the learned counsel for the defendants reported in Bharathidasan vs. Shanmugavel [2020 (1) CTC 321] would not have application to the case on hand. The provisions of Order XXIII Rule 1(4)(b) of the Code of Civil Procedure would also not be applicable to the case of hand since the plaintiff in the two suits are totally different. Therefore, the dismissal of the earlier suit in O.S.No.251 of 2005 would not be a bar on the instant suit and therefore, the Additional Substantial Question of Law-1 is answered in favour of the plaintiff.
28. Coming to the 2nd Substantial Question of Law as to whether the plaintiff has proved the cause of action for filing the suit, it would be useful to refer to the averments in Paragraph 8 of the Plaint which has been extracted hereinabove at Paragraph 23.
29. The plaintiff has come forward with the specific case that on the night of 22.07.2005, there has been an open declaration by the defendants that they would be going ahead with demolishing the suit property en bloc. The Cause of action pleaded in only the attempt on 22.07.2005 and subsequent dates. In this regard, it is also necessary to peruse the Written Statement filed where the 1st defendant has categorically denied the alleged cause of action and they have gone on record to state that there has never been an attempt to demolish any portion of the property and that the defendants had not given out any such threat of demolition. Considering the fact that the plaintiff has knocked the doors of the Court on the allegation that the defendants had threatened to demolish the building an onus is placed on them to prove the same. However, there is absolutely no evidence that has been let in on the side of the plaintiff to prove the allegation. The plaintiff has pleaded that his mother had given a police complaint, however, the police complaint is not filed for the consideration of the Court and his mother has also not been examined as a witness. Therefore, the allegation made in the Plaint has not been substantiated by any evidence and on the contrary, the best evidence namely the police complaint and the evidence of the mother has been kept away from the Court.
30. In this regard, it is necessary to understand the terms Cause of action. Cause of action is two fold; one for fixing jurisdiction of the Court and another for obtaining the relief from the Court. As regards the first factor, any one of the causes of action can be taken into consideration for fixing the jurisdiction of the Court. However, with reference to latter, the plaintiff has to prove that cause of action which has given a right to the plaintiff to invoke the jurisdiction of the Court and in respect of which he requires the remedy.
31. In the Judgment reported as Muhammad Hafiz and others v. Muhammad Zakariya and others [AIR 1922 PC 23], a five members Bench of the Privy Council drawing inference from the Judgment, Rajah of Pittapur v. Venkata Mahipatisurya [(1885) L.R.12 I.A. 116] observed that the cause of action is the cause of action which gives occasion for and forms the foundation of the suit.
32. The Calcutta High Court had occasion to consider the principle of cause of action in relation to whether notice under Section 80 of the Code of Civil Procedure was a part of the plaintiff’s cause of action in the case reported in AIR 1959 Cal 273 as Jaharial Pagalia v. Union of India the learned Judge after relying on the Judgement of (a)Muhammad Hafiz v. Muhammad Zakaria [AIR 1922 PC 23 at P.26], (b)Cooke v. Gill [(1873) 8 C.P.107] and (c)Read v. Brown [1888-22 QBD 128] brought about the distinction between the cause of action in relation to the basis of the claim and in relation to the jurisdiction in Paragraph 6 as follows:
'6. Thus cause of action has one meaning in relation to the basis of a claim and another in relation to the jurisdiction of Court. The former is the restricted and the latter is the wider meaning of cause of action. In the restricted sense, it includes facts constituting the infringement of the right and is thus the cause which is the foundation of the suit. In the wider sense, it includes facts constitution the right itself.'
33. In the Judgment reported as State of Rajasthan v. Swaika Properties [(1985) 3 SCC 217], the Hon’ble Supreme Court has observed as follows:
'The ‘cause of action’ means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a Judgment of the Court.'
34. Likewise, the Hon’ble Supreme Court in its devision in Rajasthan High Court Advocates’ Association v.Union of India [(2001) 2 SCC 294] has stated as follows:
'The expression 'cause of action' has acquired a judicially-settled meaning. In the rest
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ricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. 35. The cause of action has been defined in P.Ramanatha Aiyar in Advanced Law Lexicon, 3rd Edition, Volume 1 as follows: 'Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of the grievance founding the action, not merely the technical cause of action. 36. Therefore, from a conjoint reading of the above, it is very clear that in order to succeed in their claim, the plaintiff is bound to prove the cause of action. In the instant case as already discussed, the plaintiff has not proved the fact that there has been a threat by the defendants to their possession. This assumes great significant in the light of the fact that the mother of the plaintiff had earlier in the month of July 2005 filed a suit stating that her possession had been disturbed on 22.07.2005 and that she had lodged a police complaint in this regard. Except for this statement/ cause of action, there is no other cause of action pleaded in the Plaint. Even this has not been substantiated by the plaintiff. 37. That apart, it is the case of the plaintiff that he has leased out the property and that in one portion there is a hotel functioning and the other a fruit stall. The plaintiff had not deemed it to fit to examine any one of them to prove the threat/attempted threat by the defendants. As already discussed, the plaintiff has also not examined his mother who was the person who is alleged to have lodged the police complaint. 38. In the light of the above, it is very clear that the plaintiff has not proved the cause of action for filing the above suit and therefore, the suit deserves to be dismissed. The Appellate Court has totally lost sight of the above fact. In these circumstances, the Additional Substantial Question of Law 2 is answered against the plaintiff. In the result, this Second Appeal is dismissed. The Judgment and Decree of the learned Additional District Judge (Fast Track Court No.IV), Bhavani, Erode District in A.S.No.42 of 2007 is confirmed. There shall be no order as to costs.