K SADASIVAM Vs. B HARIKRISHANAN

JUDGEMENT

(1.) The defendants are the appellants. The case of the respondent is as follows He is a tenant of the land in old No 77, New No. 128, Gangadeshwar Koil Street, Chennai-4, which belongs to the Devasthanam Four shops were constructed by one Vadivelu Mudaliar, who sold those shops to the respondent's father K.P Radhakrishnan alongwith the leasehold right Therefore, the respondent's father became a direct tenant under the Devasthanam and he was carrying on the business of Astrology After his death the respondent became entitled to the shops since his mother had given up her rights in favour of the respondent The shop in dispute is the second shop where the respondent is carrying on business under the name and style of Malayala Jothida Nilayam. The respondent had earlier filed O.S No.67 of 1990 for possession. The respondent claimed the right to purchase the land under Section 9 under the Tamil Nadu City Tenants Protection Act. The suit is still pending. After the death of his father, the respondent's maternal grandfather M.K. Pillai, who is the appellant's father (M.K.P. in short) was carying on the business as Astrologer in Shop No.2. After the death of the grandfather and after the respondent came of age he has been carrying on his profession as an Astrologer under the name and style of Malayala Jothida Nilayam. The appellants are the maternal uncles of the respondent and they are also astrologers by profession. They would visit Shop No.2 and would help the plaintiff in his profession. But recently, because of some ill- feelings they have been acting in a wholly illegal and highhanded manner and in the first week of January, 1991, the appellants have threatened to prevent the respondent from entering his shop which they have no right to do and therefore, the suit has been filed. In the written statement the plaint averments are denied and it is their case that they joined M.K.P., in the astrology business ever since 1960 as sub-tenants of the respondent's mother Dhana Lakshmi. M.K.P. died in 1979 and they continued the astrology business in the suit property as sub-tenants paying rent regularly. According to the written statement the respondent, is not in absolute possession of the suit property but only the appellants and they are paying the rent to the respondent's mother. They denied that they threatened the respondent or physically prevented him from entering into the suit property and according to the written statement the police forced the appellants to give accommodation to the respondent in the suit property for particular hours. According to them, the suit must be dismissed. The Trial Court decreed the suit and the Appellate Court confirmed it. Aggrieved thereby the present second appeal has been filed. The substantial question of law framed that arises in the! second appeal is whether the suit for permanent injunction can be maintained when the plaintiff has admitted the defendant's possession of the suit property and whether a decree for injunction may be granted when no finding is given that, the defendants are not in possession and if the materials show that the defendants are atleast in possession alongwith the plaintiffs.

(2.) Mr. Sadasharam, learned counsel for the appellant submitted that the respondent has not categorically stated as to when the respondent acquired absolute possession of the suit property since admittedly the appellants' father who is the respondent's grandfather was in joint possession of the suit property alongwith the respondent. He also submitted that even as per the evidence the M.K.P. was in possession of the property after the death of the respondent's father and continued in possession till he died in 1979, and unless, the respondent satisfies the Court that after the death of M.K.P, he took control of the entire suit porperty, the presumption would only be that thereafter both the plaintiffs and the defendant were injoint possession. He submitted that even if his case of sub-tenancy is not accepted and he is found to be only a trespasser he cannot be ejected by force. For this he relied on a decision of the Kerala High Court reported in Karthiyayani Amma v. Govindan. In that decision, the following extract from M.K. Setty v. M.V.L.Rao:

(3.) In that case, the Supreme Court held that the plaintiff's possession has to be protected even if he had failed to prove it satisfactorily. The ultimate position was reduced to this that a person in possession can be evicted only by due process of law and even the rightful owner cannot eject the trespasser by force. In this case both the Courts below have concurrently held in favour of the respondent as regards his title though the suit is only one for permanent injunction.