The Hon''ble Mr. Justice R.S. Ramanathan
1. The defendant is the appellant herein. The plaintiff is the respondent. The respondent filed a suit for permanent injunction stating that the suit
property was originally purchased by his father under a registered sale deed dated 25.11.1940 and after his death, he was in possession of the
property and enjoying the same without any interruption and the appellant/defendant is the owner of the land adjacent to the suit property and he
has no right over the suit property. The respondent/plaintiff enquired with the revenue officials and came to know that in the revenue records, the
suit property is described as Madhakovil Promboke. Thereafter he applied to the Sub Collector, Namakkal for granting patta in respect of the suit
property and the Sub Collector, Namakkal, after conducting enquiry, passed an order dated 03.04.1996 granting patta in favour of the
respondent/plaintiff for the suit property. Thereafter, he also applied for cancellation of the entry of the suit property made in the revenue records
as poromboke and the suit property in S.No.322/6 was subdivided as S.Nos.322/6A and 322/6B and the patta was issued in favour of the
respondent/plaintiff in respect of S.No.322/6A by an order dated 24.05.1996. While so, the appellant/defendant attempted to interfere with the
peaceful possession of the property. Hence, the present suit.
2. The appellant/defendant contested the suit disputing the claim of the plaintiff over the suit property and he has stated that the suit property has
been mentioned in the revenue records as Madhakovil Promboke and by suppressing the same, the respondent/plaintiff has got patta in respect of
the suit property and the respondent/plaintiff has no title whatsoever to the suit property and even according to the sale deed in favour of the
plaintiff''s father, the plaintiff''s father did not get full right over the suit property. The respondent/plaintiff is not entitled to get the relief of injunction.
3. The trial Court partly decreed the suit holding that as per Ex. A1 sale deed in favour of the plaintiff''s father, he purchased undivided half share
over the suit property of an extent of 90'' east, 75'' west and therefore, the respondent/plaintiff is entitled to get 45'' east west and 37 1/2'' north
south in S.No.322/6. The respondent/plaintiff is in possession of the property under document Ex. A1 and therefore the respondent/plaintiff is
entitled to a decree for injunction in respect of property admeasuring 45'' east west and 37 1/2 '' north south in S.No.322/6. Aggrieved by the
judgment and decree of the the trial court, the respondent/plaintiffs as well as the appellant/defendant filed two appeals and the first appellate court
allowed the appeal filed by the respondent/plaintiff and granted decree in respect of the entire suit property and dismissed the appeal filed by the
appellant/defendant. Hence, these two second appeals.
4. Mr.S.Subbiah, the Learned Counsel for the appellant/defendant submitted that the Courts below without properly appreciating the evidence of
Ex. A1 erred in granting injunction in respect of the entire suit property. Admittedly, the respondent/plaintiff purchased only undivided half share in
S.No.322/6. He further submitted that the suit property was originally assessed as Madhakovil promboke in the revenue records and without
giving notice to the appellant/defendant, the patta was issued in the name of the respondent/plaintiff by the Sub Collector and on the basis of the
patta granted in his favour, the respondent/plaintiff filed a suit for injunction without being in possession. Therefore, the lower Appellate court erred
in granting injunction in respect of the entire extent of the suit property having regard to the specific recital in Ex. A1 that the respondent/plaintiff
purchased only undivided half share; the trial Court also erred in granting injunction in respect of half of the extent of property without specific
boundary and therefore the judgments of the Courts below are liable to be set aside.
5. He further submitted that the respondent/plaintiff also admitted in his evidence that after subdivision, he attempted to take possession of the
property and that was prevented by the appellant/defendant and thereafter he filed a suit for injunction and contended that having regard to the
admission of the respondent/plaintiff that he was prevented while taking possession, the courts below ought to have held that the
respondent/plaintiff was not in possession of the property on the date of filing of the suit and ought to have dismissed the suit. He further contended
that when the title is seriously disputed, without a prayer for declaration of title, the suit filed for bare injunction is not maintainable.
6. On the other hand, the Learned Counsel for the respondent/plaintiff submitted that patta was granted by the Sub Collector, after enquiries held
by the VAO and other Revenue officials and on being satisfied that the respondent is in possession of the suit property, an order was passed
granting patta and the defendant/appellant also admitted in his evidence that he received notice from the Sub Collector and therefore if cannot be
contended that without notice, the appellant/defendant has passed the order. He further submitted that even according to the Village Administrative
Officer, who was examined as DW2, the suit roperty was originally classified as village natham poromboke and later on, converted into
MadhaKovil Promboke and hereafter it was found to be in possession of the respondent/plaintiff and patta was granted and the order passed by
the Sub ollector in Ex. A2 and order passed by the Tahsildar Ex. A3 would prove the possession of the respondent/plaintiff in the suit property.
He further submitted that the appellant/defendant has no right or title over the suit property in the absence of any etter itle proved by the
defendant/appellant. The respondent''s/plaintiff''s possession in respect of the suit property cannot be isturbed nd the respondent/plaintiff is entitled
to protect his possession unless his possession is challenged by a person having better itle nd admittedly the defendant/appellant has no title over
the property. On the basis of above submission the following substantialuestions of law are framed :-
1. Whether the suit for bare injunction, when the title of the plaintiff is disputed and when the plaintiff admittedly purchased the undivided half share
in the suit property under Ex. A1, is maintainable?
2. Whether the orders passed by the Revenue Officials in granting patta could prove the possession of the property when the respondent got sale
deed only in respect of the undivided half share in the suit property?
7. In para 4 of the plaint, it is stated that the appellant/defendant claimed the suit property belonging to the Madhakovil promboke and thereafter
the respondent/plaintiff enquired with the revenue officials and came to know that in the revenue records in the year 1993, the suit property was
classified as Madhakovil Promboke and thereafter he applied to the Sub Collector for granting patta and after enquiry, the patta was granted in his
favour on 3.4.1996 vide Ex. A2. It is further stated in para 5 of the plaint that after the patta was issued by the Sub Collector under Ex. A2, he
applied for cancellation of classification of the land as Madhakovil Promboke and the Tahsildar also subdivided the property in S.No.322/6 into
322/6A and 322/6B and granted patta in respect of 322/6A. It was further stated that thereafter the appellant/defendant claimed the suit property
as Madhakovil promboke and attempted to interfere within peaceful possession and hence he filed the suit for injunction.
8. Further, under Ex. A1, admittedly the plaintiff''s father purchased the undivided half share in the suit property and it is not stated that how the
respondent/plaintiff came into the possession of the entire extent of property, when his father purchased only undivided half share. Further, it was
also not made clear to whom the other half share belonged to as per Ex. A1. The vendor was one Mrs.Nallaiammal and when she executed a sale
deed in respect of undivided half share, she must have retained the other undivided half share and in the absence of any evidence produced by the
respondent/plaintiff, how he came into possession in respect of the entire property, it cannot be accepted that the respondent/plaintiff is in
possession of the entire extent of suit property.
9. Further, as rightly contended by Mr.S.Subbiah, the Learned Counsel for the appellant, when the suit property was classified as Madhakovil
promboke in the revenue records, how the same was treated as natham property and patta was granted by the Sub Collector, was also not
explained. No doubt, under Ex. A2 the Sub Collector has granted patta in respect of the suit property in favour of the respondent/appellant. But a
reading of the order passed under Ex. A2 does not disclose that the order was passed after giving notice to all the parties concerned and as per
the order extracted in the first appellate court, the Village Administrative Officer and other revenue officials were enquired and on the basis of their
statements, the patta was granted. Further Exs.A2, A3, A4 and A5 were issued between April 1996 and July 1996 and the suit was filed in
September 1996. Therefore, after getting some orders from the revenue authorities, the suit was filed by the respondent/plaintiff, as if he is in
possession of the property. According to me, when the order passed by the Sub Collector under Ex. A2 appears to be an ex parte order, it is not
binding on the appellant/defendant and therefore that would not prove the possession of the respondent/plaintiff. Further, the plaintiff himself has
stated in the plaint that the appellant/defendant is claiming right over the property and the respondent/plaintiff purchased only undivided half share in
the suit property under Ex. A1.
10. Under such circumstances, the respondent/plaintiff ought to have filed a suit for declaration and the suit for bare injunction will not lie, especially
when a dispute in respect of title is involved. The Honourable Supreme Court Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others,
has laid down the guidelines for granting injunction and in clause ''C'' it is stated as follows:-
(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). 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 implicated 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.
As per clause ''c'' when question regarding title is raised and that cannot be resolved without proper pleadings, the Court should not grant
injunction and direct the parties to file a suit for declaration.
11. In the instant case also there is a dispute regarding title to the suit property and admittedly under Ex. A1, the respondent/plaintiff purchased
only undivided half share and in the revenue records the property was classified as Madhakovil promboke and the appellant/defendant also
disputed the title and possession of the respondent/plaintiff. In such circumstances, the respondent/plaintiff ought to have filed a suit for declaration
and in a suit for injunction, complicated question of title cannot be decided. Hence, the 1st substantial question of law is answered in favour of the
appellant/defendant and the suit filed by the plaintiff for bare injunction is not maintainable, when the appellant/defendant disputed the title of the
respondent/plaintiff and the respondent/plaintiff also does not have full title as per the sale deed in his favour.
12. The Learned Counsel for the respondent/plaintiff contended that the patta would prove the possession and therefore in a suit for injunction, the
court concerned only with possession and therefore the lower appellate court was right in decreeing the suit. Normally the patta would be issued
on the basis of enquiry conducted by the revenue officials. In this case the VAO who has been examined as PW2 did not say that the
plaintiff/respondent is in possession of the property. He only deposed that after enquiry, the patta was granted in favour of the plaintiff/respondent.
Further the respondent/plaintiff also admitted in cross examination that after getting patta he applied for subdivision of the property and the
Tahsildar passed an order for subdividing the property as evidenced by Ex. A3 and while he tried to take possession, he was prevented by the
appellant/defendant. The admission of the respondent/plaintiff in the cross examination would prove that he was not in possession of the property
and when he attempted to take possession, he was prevented. Therefore, merely because patta has been issued in favour of the
respondent/plaintiff, it cannot be contended that the respondent/plaintiff is deemed to be possession of the property. Hence, the substantial
questions of law No.2 is also answered in favour of the appellant/defendant and I hold that in this case having regard to the admission of the
respondent/plaintiff, the grant of patta will not prove the possession of the respondent/plaintiff.
13. In the result, the judgment and decree of the lower appellate court is set aside. The second appeals are allowed and liberty is granted to the
respondent to file appropriate suit for declaration to establish their rights over the suit property. There will be no order as to costs. Consequently,
connected Miscellaneous Petitions are closed.
