R.S. Ramanathan, J.@mdashThe unsuccessful Plaintiff is the Appellant. Originally, the mother of the Plaintiff filed a suit for injunction.
2. The case of the Plaintiff was that the Plaintiff''s mother, Narayanammal purchased the suit property under a registered sale deed, dated 16.08.1961 and originally a part of the suit property measuring an extent of 26 feet x 26 feet was owned by Murugappa Reddy and he sold the same to one Kannappa Reddy, under a registered sale deed, dated 01.08.1941 and thereafter, the said Kannappa Reddy sold the property to Pichaiammal, under a registered sale deed, dated 10.05.1982 and the said Pichaiammal, who is the sister of the Plaintiff, orally purchased some portions from Murugappa Reddy and sold an extent of 76 feet east-west and 26 feet north-south to the Plaintiff, under a registered sale deed, dated 16.08.1961 and the Plaintiff continued to be in possession and enjoyment of the property. The Defendants, who are having property on the northern side, are creating trouble and are trying to interfere with the Plaintiff''s property and hence, the suit was filed for injunction.
3. The Defendants contested the suit denying the right, title and possession of the Plaintiff and claimed to be in possession of the property that is situate on the western side of the dilapidated house and also disputed the oral purchase claimed by the Plaintiff and contended that they are in possession and enjoyment of the western portion of the property and the Plaintiff was not in possession of the western property and therefore, the Plaintiff is not entitled to the relief of injunction.
4. Both the Courts below concurrently held that the Plaintiff has not proved his possession of the suit property and the Plaintiff has also not explained how the Plaintiff become entitled to 76 feet east-west and 26 feet north-south, when the Plaintiff''s vendors were in possession and enjoyment of 26 feet east-west and 26 feet north-south and admittedly, the suit property is a vacant site and in the absence of proof of possession, the Plaintiff cannot claim the relief of injunction and dismissed the suit. Aggrieved by the same, this second appeal is filed.
5. At the time of admission, the following substantial question of law was framed by this Court:
Is it not the possession over the suit property the primary question to be decided than the title over the same which is only ancillary, in a suit for bare injunction?
6. Mr. T. Murugamanickam, the learned Counsel appearing for the Appellant filed a memo stating that three more substantial questions of law arise for consideration in the second appeal and they are as follows:
01. Whether the judgments of the Courts below are vitiate din that they have held that the Plaintiff has to seek for a declaration of title, even in the light of the fact that the Defendants have not produced any document of title to create a cloud of title over the Plaintiff''s right over suitproperty?
02. Whether the Courts below are vitiated in that they have refused to grant a decree, when the settled principle is that possession followstitle?
03. When the Defendants admit the title to the suit property traced to Ex.A3, sale deed, then, whether the Courts below ought to have decreed the suit based on this admission?
7. Mr. T. Murugamanickam, the learned Counsel appearing for Appellant submitted that both the Courts below failed to appreciate the recitals with respect to boundaries in the earlier documents and even assuming that the Plaintiff is entitled to 26'' x 26'' as per the document Ex.A3 in the year 1941 and Ex.A2 in the year 1954, the title and possession of the Appellant/Plaintiff was clearly stated in those two documents and therefore, both the Courts below erred in holding that the Appellant has not proved the title.
8. According to the learned Counsel appearing for the Appellant, the western boundary as per Ex.A3 and Ex.A2 is a street and as per Ex.A1 also, the western boundary is a street. Therefore, east of the street belonged to the Appellant and western boundary of the suit property remains the same as per Exs.A2 & A3 and that is the property belonging to Arumugha Reddy and therefore, in between the street on the western side and the land belonging to the Arumugha Reddy on the eastern side, the property belongs to the Appellant is situate and that was not properly appreciated by the Courts below. He further submitted that the northern property was owned by the Respondents and they have not claimed any title over the property situate south of the property and admittedly, the property that is situate south of the property belongs to the vendors of the Appellant/Plaintiff and therefore, they cannot claim any right on the western portion of the suit property and therefore, the suit for injunction ought to have been decreed.
9. He further relied upon the judgment reported in
10. The Hon''ble Supreme Court in that judgment has stated in Clause 13, when the suit is one for injunction simpliciter, the Court has to find out whether the Plaintiff is in possession of the property and the question of title need not be gone into and therefore, even assuming that the Appellant/Plaintiff was not able to prove the title for a larger extent, having regard to the fact that the Appellant/Plaintiff was able to prove the possession, the Appellant/Plaintiff is entitled to injunction.
11. On the other hand, the learned Counsel appearing for the Respondents, Mr. M.S. Subramanian submitted that in a suit for injunction, the Plaintiff has to prove the possession over the suit property and in this case, both the Courts below concurrently held that the Plaintiff has not proved the possession and dismissed the suit and the concurrent finding of the Courts below need not be interfered with and therefore, the second appeal is liable to be dismissed.
12. Heard both sides.
13. In this case, both the Courts below after considering both oral and documentary evidence held that the Plaintiff has not proved the possession and therefore, the Plaintiff is not entitled to the relief of injunction. Therefore, the additional substantial questions of law submitted by the learned Counsel appearing for the Appellant will not arise for consideration in this appeal.
14. Therefore, we will have to see whether the Courts below have rightly held that the Plaintiff/Appellant has not proved the possession.
15. The main contention of the Appellant/Plaintiff was that the suit property is situate eastern side of the street and western side of the property belonging to Arumugha Reddy, as per Exs.A2 and A3 and this was also confirmed in Ex.A1 and in Ex.A1, a larger extent was conveyed and having regard to the boundaries, the property was sold to the Appellant and when the suit property is admittedly a vacate site, the possession follows title and when the Appellant is able to prove his title, he is entitled to be injunction. But in this case, as rightly submitted by the learned Counsel appearing for the Respondents, the Appellant has not proved his title to the suit property. Admittedly, under Exs.A2 and A1, 26 feet east-west and 26 feet north-south was sold to the vendor of the Plaintiff and only an extent of 26 feet east-west and 26 feet north-south was conveyed to the Plaintiff''s vendor. In Ex.A1 it has not been stated that in addition to the property purchased by the Plaintiff''s vendor and issued documents, he purchased some portions orally from his mother and whole extent was conveyed to the vendor of the Plaintiff under Ex.A1 and in Ex.A1, it is only stated that the property belonged to the Plaintiff''s vendor as she acquired the same and conveyed the same to the Plaintiff under Ex.A1. Therefore, the allegation of oral sale by the Plaintiff''s vendor for her purchase in the year 1952 was not proved.
16. Further, as rightly held by the Lower Appellate Court, the suit property is admittedly a vacate site and in the absence of title to an extent of 26 feet east-west and 26 feet north-south to the suit property as claimed by the Plaintiff, the Plaintiff cannot claim to be in possession of the entire extent and the argument that possession follows title cannot be accepted in this case. Both the Courts below took into consideration of all these aspects and held that the Plaintiff has not proved possession in respect of the property and dismissed the suit and such concurrent findings of the Courts below cannot be interfered with in the second appeal. In the absence of any adverse finding, according to me, both the Courts below have rightly come to the conclusion that the Appellant has not proved possession and dismissed the suit and the substantial questions of law is answered against the Appellant and I do not see any reason to interfere with the concurrent findings of the Courts below
17. In the result, the judgment and decree of the Courts below are confirmed and the second appeal is dismissed. No. costs.
