A.Subramanian vs R.Pannerselvam on 8 February, 2021


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Supreme Court of India

A.Subramanian vs R.Pannerselvam on 8 February, 2021

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy

                                                                                     1


                                                                          REPORTABLE

                                  IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION

                                   CIVIL APPEAL NO.9472 of 2010


          A.SUBRAMANIAN & ANR.                                       ...APPELLANT(S)

                                                VERSUS

          R. PANNERSELVAM                                        ...RESPONDENT(S)



                                          J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed by the defendants in

the civil suit challenging the judgment dated

28.04.2009 of Madras High Court in Second Appeal

No.39 of 2009 by which judgment the High Court had

allowed the second appeal of the plaintiff setting

aside the judgment of the First Appellate Court dated

26.11.2008 in A.S. No.172 of 2005 and restoring the

judgment dated 06.02.2004 in O.S.No.188 of 2002 of

the trial court decreeing the suit.

Signature Not Verified

Digitally signed by
ARJUN BISHT
Date: 2021.02.08
17:10:25 IST
Reason:

2. Parties shall be referred to as referred in the
2

Original Suit. Brief facts of the case giving rise to

this appeal are:

The plaintiff, R. Pannerselvam, who is the

respondent in this appeal, filed O.S. No.188 of 2002

in the Court of District Munsif, Namakkal praying for

permanent injunction interdicting the defendants from

disturbing the peaceful possession and enjoyment of

the plaintiff over the suit property. The suit

property was measuring 1777-1/2 sq.ft. comprising in

Survey No.172/1 situated at Kalappanaickenpatti

Village. Plaintiff’s case in the suit was that suit

property originally belonged to one Dhasi Naidu son

of Thalama Naidu who went to Sri Lanka as a Farm

Labour and died at Sri Lanka. The son of Dhasi Naidu,

Krishnasamy Naidu came to India in 1981 and entrusted

the suit property and other properties to one Ghani

Sahib, who had been managing and enjoying the

properties.

3. The plaintiff claimed to have purchased the suit

property by registered deed on 16.07.2001 for a valid

consideration from the descendants of Dhasi Naidu.

The plaintiff’s further case was that the first
3

defendant was formerly military serviceman, and the

second defendant who was son-in-law of the first

defendant, working as constable in police department,

attempted to disturb the plaintiff’s peaceful

possession and enjoyment over the suit property.

Hence, the suit was filed. The documents filed along

with the plaint were power of attorney executed by

legal heirs of Dhasi Naidu dated 22.05.2001, sale

deed dated 16.07.2001 and sale deed dated 14.03.1946

in favour of Dhasi Naidu and house tax receipt dated

27.02.2001.

4. Defendant No.1 filed written statement refuting

the claim of the plaintiff; defendant admitted that

suit property belonged to Dhasi Naidu. The defendant

pleaded that registered sale deed dated 16.07.2001

itself is a fabricated and forged one. So called

legal heirs-descendants of Dhasi Naidu as alleged in

sale deed are fictious and are not true legal heirs

of the said Dhasi Naidu. The title of the suit

property is itself questionable, the plaintiff along

with Ghani Sahib has fabricated two special powers

and plaintiff under Order VII Rule 14 of C.P.C. with
4

the said documents had filed suit. The defendants in

the written statement had set up the claim that Dhasi

Naidu’s son Sanjeevi Naidu had entrusted the suit

property and other properties to one P. Rangaraju

Naidu by a registered power of attorney, who later

died, leaving behind his only legal heir Mrs. Arjuna

Devi, who died leaving behind her daughters, Nalanda,

Indira and Gunabarathi. Defendant No.1 on behalf of

her three daughters filed a suit against the Ghani

Sahib questioning his tenancy which suit was

dismissed and had been taken in appeal being

A.S.No.297 of 1994.

5. The plaintiff examined himself as PW.1. Defendant

examined DW.1 to DW.6. Plaintiff filed seven

exhibits. The trial court framed the following three

issues:

“a) Is the permanent injunction sought for by
the plaintiff in the suit is available to him?

b) Is the statement of the defendants that
the plaintiff is not the real owner of the suit
property correct?

c) What are the other reliefs available to the
plaintiff?

6. The trial court held that power of attorney dated
5

22.05.2001 was prepared at Sri Lanka and registered

at Namakkal Sub-Registrar’s office. The documents

filed on behalf of the plaintiff are Exhibits PW1 and

PW2. The trial court held that the plaintiff has

right over the property, the possession of plaintiff

was also found proved. The trial court decreed the

suit.

7. The defendants filed an appeal before the Sub

Court, Namakkal being A.S. No.172 of 2005. The First

Appellate Court entered into the validity of power of

attorney Exhibits PW1 and PW2 and observed that

Exhibit PW1 is in circumstances by suspicious

surrounding. The First Appellate Court, however, came

to a conclusion that power deed written abroad need

not be registered. The First Appellate Court,

further, came to the conclusion that execution and

authentication of power of attorney, Exhibit PW1

having not been proved, the sale deed Exhibit PW2 is

also adversely affected. Hence, plaintiff has failed

to establish his title over the suit property. The

First Appellate Court has, further, found that

defendant No.1 had instituted O.S.No.524 of 1987
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which was for the same property in which defendant

No.1 had claimed declaration and possession of the

property for himself and her three daughters which

suit having been dismissed, the defendant has also

not been able to prove that suit property belonged to

the three daughters of defendant No.1 and possession

lies with them. The First Appellate Court allowed the

appeal and set aside the decree on the ground that

plaintiff had failed to prove his title. Aggrieved by

the judgment of the First Appellate Court the

plaintiff has filed the second appeal.

8. The High Court vide its judgment dated 28.04.2009

allowed the second appeal by deciding three

substantial questions of law affirming the decree of

trial court granting injunction in favour of the

plaintiff. The High Court found that defendant having

filed Original Suit No.524 of 1987 for declaration

and recovery of possession of the suit property which

was dismissed by the trial court against which A.S.

No.297 of 1994 having also been dismissed, the

finality was achieved to the previous proceedings

that defendant has neither title nor in possession of
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the suit property and the possession of the plaintiff

having been admitted by the defendant, the suit of

the plaintiff deserved to be decreed. The High Court

was further of the view that the First Appellate

Court ought not to have entered into the validity of

the Exhibits A-1 and A-2. The High Court allowed the

appeal. Aggrieved against the judgment of the High

Court, the defendants have come up in this appeal.

9. Ms. K. Abhirame, learned counsel has appeared on

behalf of the appellants and Shri V. Prabhakar,

learned counsel has appeared for the respondent.

10. Learned counsel for the appellants submits that

the plaintiff having claimed right to the suit

property on the basis of sale deed dated 16.07.2001

which sale deed was not found to be valid having not

been executed by proper power of attorney by the

heirs of Dhasi Naidu, the suit of the plaintiff

deserved to be dismissed. It is submitted that the

plaintiff can succeed in the suit on the strength of

his own case and the plaintiff cannot take any

advantage of the weakness of the case of the

defendants. Even defendants failed to prove their
8

title and possession the suit of the plaintiff could

not have been decreed mere on the fact that the

defendants failed to prove their title and

possession.

11. Learned counsel for the appellants further

submitted that the documents filed by the defendants

were not considered by the trial court as well as by

the High Court. Learned counsel for the appellant has

placed reliance on the judgments of this Court in

Nagar Palika, Jind vs. Jagat Singh, Advocate, (1995)

3 SCC 426; Yamuna Nagar Improvement Trust vs.

Khariati Lal, (2005) 10 SCC 30 and Jagdish Prasad

Patel (dead) Through Legal Representatives and

another vs. Shivnath and others, (2019) 6 SCC 82.

12. Shri V. Prabhakar, learned counsel appearing for

the respondent refuting the submission of the counsel

for the appellants contends that plaintiff has

successfully proved his possession which was also

admitted by the defendant in his statement, the suit

for injunction was rightly decreed by the trial

court. It is submitted that in essence the plaintiff

has also successfully proved his titled by registered
9

sale deed. The property was purchased by a registered

sale deed on the basis of power of attorney executed

by legal heirs of Dhasi Naidu. The power of attorney

having been prepared at Sri Lanka and registered by

Sub-Registrar Namakkal, First Appellate Court

committed error in holding the power of attorney not

properly executed and authenticated. It is submitted

that the plaintiff having demolished the old

structure which is proved from the evidence on

record, the possession of the plaintiff could not be

denied by the defendant. The defendant having filed

suit for declaration as well as recovery of

possession of the suit property against Ghani Sahib,

the manager of the property which suit having been

dismissed there is no right in the defendant to

resist the suit of the plaintiff.

13. We have considered the submission of the learned

counsel for the parties and have perused the records.

14. The plaintiff in his plaint claimed title and

possession, and sought restraining the defendants

from disturbing plaintiff’s peaceful possession and

enjoyment over the suit property. In the suit
10

plaintiff has prayed for the following reliefs:

a)by means of permanent injunction interdicting
the defendants, and their man from disturbing
the peaceful possession and enjoyment of the
plaintiff over the suit property in any
manner;

b)by granting further other relief or reliefs
as the Hon’ble Court deems fit in the
circumstances of the case;

c)awarding the cost of the suit by the
defendants and thus render justice.”

15. The trial court found that the plaintiff has

proved his right over the property as well as

possession, he was entitled for decree of injunction.

All the three courts have referred to the earlier

suit being O.S.No.524 of 1987 filed by the defendants

which suit was dismissed by the trial court and

appeal against which being A.S. No.297 of 1994 was

also dismissed which judgments were brought before

the trial court by the plaintiff. The copy of the

judgment dated 23.11.1992 in O.S. No.524 of 1987 of

the trial court has been brought on record as

Annexure P5. The suit was filed by defendant No.1

along with his three minor daughters and he being
11

father, guardian and next friend of daughters, the

plaintiff of O.S. No.524 of 1987 claimed title over

the suit property through Shri P. Rangaraju Naidu.

Ghani Sahib who was manager, was impleaded as

defendant and suit was filed for declaration and

possession and permanent injunction. The defendant

contested the suit where defendant took the plea that

the property belonged to Dhasi Naidu whose son

Krishnasamy Naidu, who came to India and executed

power of attorney in favour of defendant for managing

the suit property since then the defendant was in

possession and user. The trial court held that the

plaintiff has failed to prove his title as well as

possession. The possession of defendant was admitted

by Subramanian who was the plaintiff in the said

suit. In paragraph 11 of the judgment following was

held by the trial court:

“11…..In this suit, it has been admitted by
the plaintiffs that the defendant is in
possession of the suit properties. Under the
circumstances since the plaintiffs have
admitted that the defendant is in possession of
the suit properties, it is held that even
though the defendant has not produced the power
of attorney executed by Krishnasamy in favour
of defendant, in the deposition DW1 has made a
12

claim that the defendant is the power of
Krishnasamy is an acceptable one. From the
deposition of DW2, it is held that Dasi Naidu
died leaving behind Sanjeevi Naidu, Nallu Naidu
and Krishnasamy Naidu as his legal heirs…..
It is also held that the defendant is in
possession and managing the suit property in
his capacity as the power agent of Krishnasamy
and defendant is not a tenant in the suit
property and accordingly issue number 2 and 5
are answered respectively. ….”

16. The suit for declaration and possession filed by

Subramanian was dismissed against which A.S. No.297

of 1994 was filed which was dismissed by the District

Court, Salem on 08.09.1995.

17. The High Court in its judgment has rightly

referred to the earlier litigation and held that in

view of the findings in the earlier suit filed by

Subramanian and his three daughters it is sufficient

to hold that defendants are not in possession of the

suit property. The High Court has also rightly

observed that plaintiff’s possession is based on the

admission of the defendant himself made in the suit.

In paragraph 24, the High Court has held:

“24…..The Plaintiff’s possession is based on
admissions made by the defendants themselves
and also the factum of the previous
13

proceedings, which D-1 initiated and met with
his waterloo.”

18. The submission which has been made by the counsel

for the appellants is that in the suit, plaintiff has

claimed his title and possession, the High Court

committed error in not entering into the question of

title of plaintiff and without determining the title

of the plaintiff the suit ought not to have been

decreed. Learned counsel for the appellants has

placed reliance on the judgment of this Court in

Nagar Palika, Jind vs. Jagat Singh, Advocate, (1995)

3 SCC 426. In the above case suit was filed by the

respondent for injunction which was resisted by

Municipal Committee on the ground that the respondent

was neither the owner of the land in question nor was

he in possession. The trial court dismissed the suit.

The First Appellate Court had decreed the suit and

second appeal was dismissed by the High Court. Nagar

Palika filed appeal before this Court. The argument

was raised before this court by Nagar Palika that the

Court of law proceeded on the assumption that the

acquisition of title through the sale deed which has
14

not been produced before the High Court was admitted

fact in the case and had never been questioned by the

Municipal Committee. This Court in paragraph 6

disapproving the judgment of the First Appellate

Court held following:

“6. The counsel appearing for the
respondent, could not explain as to how in face
of such clear denial of the title and
possession of the respondent by the Municipal
Committee in its written statement, the Court
of Appeal proceeded on the assumption that the
acquisition of the title through the sale deed,
which had not been produced before the Court,
was an admitted fact in the case and had never
been questioned by the Municipal Committee.
According to us, when the Court of Appeal
proceeded to consider the evidence relating to
the possession of the respondent after the
alleged date of purchase by him through the
sale deed in question, which was never produced
before the Court, the Court of Appeal committed
a grave error. It never applied its mind to the
main issue, in a suit based on title, whether
the respondent had proved his title to the suit
property. It cannot be disputed that onus to
prove his title to the property in question was
on the said respondent. It further appears,
that on behalf of the appellant, it was pointed
out before the Court of Appeal that the said
respondent was claiming the share of one of the
co-shares in the patti, but no co-sharer can
convey title to a specific part of joint
property. However omitted to consider the basic
issues in the case, the Court of Appeal
proceeded only to consider the revenue records
from the year 1974-75 like jamabandhi for the
year 1974-75 and Khasra Girdwari pertaining to
the year 1977-79.”
15

19. In the suit stand was taken by the respondent

that the suit be treated under Section 6 of the

Specific Relief Act, 1963. This Court repelled the

above submission. In paragraph 9, the plea of

respondent based on Section 6 was rejected by this

Court by making following observation:

“9. We fail to appreciate as to how the
principle of Section 6 of Specific Relief Act,
1963 can be applied in the facts and
circumstances of the present case. The
respondent, who was the plaintiff, never
alleged that he had been dispossessed by the
appellant-Municipal Committee. On the other
hand, he claimed to be the owner of the land in
question and asserted that he was in possession
over the same. He sought for permanent
injunction restraining the appellant from
interfering with his possession. Both the
parties led evidences in support of their
respective claims including on the question of
title.”

20. In the present case the possession of the

plaintiff was upheld by the High Court on two main

reasons. Firstly, the defendant of the suit,

Subramanian had earlier filed a suit for recovery of

possession and declaration for the same property

against Ghani Sahib who was manager of the property
16

which suit was dismissed and recovery of possession

having been rejected, defendant cannot even make a

plea to be in possession and secondly defendant in

his cross-examination himself admitted that the

plaintiff after purchase had demolished the

construction. The High Court in paragraph 13 of its

judgment has extracted the relevant excerpts from the

statement of DW1’s deposition during cross-

examination. In paragraph 13 of the judgment after

quoting from deposition of DW1, the High Court held:

“13…..A bare perusal of those excerpts would
clearly display as to how DW1(D1) went to the
extent of half-Heartedly admitting partly the
reality) and denied the rest of the truth,
without having any responsibility to speak
truth. For the purpose of achieving success in
the litigative battle, by hook or crook, D-1
went to the extent of pleading before this
Court quite antithetical to the Judgments and
decrees in O.S.No.524 of 1987 and in A.s.
No.297 of 1994 (Exs.A-3, A-5, A-6 and A-7) that
the previous suit was not for recovery of
possession of the suit property. But, those
judgments and decrees would clearly indicate
that the earlier suit was filed by D-1 and his
three children for declaration and recovery of
possession of the entire property including the
suit property. In the said previous suit, the
first defendant and his legal heirs contended
that they derived title from their original
porosities Rangarajulu Naidu and obtained the
suit property under a power deed and they
failed in both the courts. As such, that is
17

much more than sufficient to hold that the
defendants are not in possession of the suit-
property herein.”

21. The High Court was also right in its view that it

is a common principle of law that even trespasser,

who is in established possession of the property

could obtain injunction. However, the matter would be

different, if the plaintiff himself elaborates in the

plaint about title dispute and fails to make a prayer

for declaration of title along with injunction

relief. The High Court has rightly observed that a

bare perusal of the plaint would demonstrate that the

plaintiff has not narrated anything about the title

dispute obviously because of the fact that in the

previous litigation, DW1 failed to obtain any relief.

The High court has rightly observed that the

principle that plaintiff cannot seek for a bare

permanent injunction without seeking a prayer for

declaration is not applicable to the facts of the

present case.

22. We may also refer to judgment of this Court in

Nair Service Society Ltd. vs. K.C. Alexander and
18

others, AIR 1968 SC 1165, where three-Judge Bench of

this Court presided by Hidayatullah, J. has

reiterated the principle that possession is good

against all but the true owner. The principle

enumerated in judgment of Judicial Committee in Parry

v. Clissold, (1907) AC 73, was noticed in paragraph

17 to the following effect:

“(17) In our judgment this involves an
incorrect approach to our problem. To express
our meaning we may begin by reading 1907 AC 73,
to discover if the principle that possession is
good against all but the true owner has in any
way been departed from. 1907 AC 73 reaffirmed
the principle by stating quite clearly:

“It cannot be disputed that a person in
possession of land in the assumed character of
owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title
against all the world but the rightful owner.
And if the rightful owner does not come forward
and assert his title by the process of law
within the period prescribed by the provisions
of the statute of Limitation applicable to the
case, his right is for ever extinguished and
the possessory owner acquires an absolute
title.”

23. In paragraph 22 of the judgment, the Bench

approved the dictum in 1907 AC 73.

24. Learned counsel for the appellants has also

referred to judgment of this Court in Ajendra

Prasadji Narendra Prasadji Pandey vs. Swami K.
19

Narayandasji and others, (2005)10 SCC 11, in which

case this Court elaborated the cumulative factor for

granting a temporary injunction which case is clearly

distinguishable and has no application in the present

case. Next judgment relied by the learned counsel for

the appellant is in Jagdish Prasad Patel (dead)

through Legal Representatives and another vs.

Shivnath and others, (2019) 6 SCC 82. In the above

case in the suit for declaration of title and

possession this Court reiterated the principle that

suit for declaration of title and possession the

plaintiffs will succeed on the strength of their own

title irrespective of whether defendants proved their

case or not. In paragraph 44 and 45 following was

laid down:

“44. In the suit for declaration for title
and possession, the Plaintiffs-Respondents
could succeed only on the strength of their own
title and not on the weakness of the case of
the Defendants-Appellants. The burden is on the
Plaintiffs-Respondents to establish their title
to the suit properties to show that they are
entitled for a decree for declaration. The
Plaintiffs-Respondents have neither produced
the title document i.e. patta-lease which the
Plaintiffs-Respondents are relying upon nor
proved their right by adducing any other
evidence. As noted above, the revenue entries
20

relied on by them are also held to be not
genuine. In any event, revenue entries for few
Khataunis are not proof of title; but are mere
statements for revenue purpose. They cannot
confer any right or title on the party relying
on them for proving their title.

45. Observing that in a suit for
declaration of title, the Plaintiffs-
Respondents are to succeed only on the strength
of their own title irrespective of whether the
Defendants-Appellants have proved their case or
not, in Union of India v. Vasavi Coop. Housing
Society Limited
, (2014) 2 SCC 269, it was held
as underSCC p.275, para 15)

“15. It is trite law that, in a suit
for declaration of title, the burden
always lies on the Plaintiff to make out
and establish a clear case for granting
such a declaration and the weakness, if
any, of the case set up by the Defendants
would not be a ground to grant relief to
the Plaintiff.””

25. There cannot be any dispute to the proposition

laid down by this Court in the above cases. But

coming to the facts in the present case the present

suit giving rise to this appeal, was not a suit for

declaration of title and possession rather the suit

was filed for injunction. As noted above, the High

Court has given cogent reasons for holding that the
21

suit filed by the plaintiff for injunction was

maintainable without entering into the title of the

plaintiff in facts of the present case specially in

view of the previous litigation which was initiated

at the instance of defendant No.1 where he lost the

suit for declaration and recovery of possession of

the same property. The submission of learned counsel

for the appellants that evidence filed by the

defendant were not looked into is not correct. The

trial court as well as the High Court has looked into

not only the oral evidence but the exhibits which

were filed on behalf of the defendant which is clear

from the discussion made by the High Court in

paragraphs 13 and 16.

26. We do not find any error in the view of the High

Court that it was not necessary to enter into the

validity of Exhibits A-1 and A-2 and the suit for

injunction filed by the plaintiff deserved to be

decreed on the basis of admitted and established

possession of the plaintiff. We, thus, do not find

any error in the judgment of the High Court allowing

the second appeal filed by the plaintiff by setting
22

aside the judgment of the First Appellate Court and

restoring that of trial court.

27. In the result, the appeal is dismissed.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( R. SUBHASH REDDY )

………………….J.

( M.R. SHAH )
New Delhi,
February 08, 2021.



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