SRINIVASA PILLAI DIED Vs. K RAGUNATHAN

JUDGEMENT

(1.) THE defendant in O S. No. 103 of 1976 on the file of the District Munsif of Kumbakonam is the appellant in teis second appeal. THE respondent herein, is the plaintiff in the suit. THE plaintiff laid the suit for a bare permanent injunction. THE averments in the plaint proceeded on the basis that the property belongs to him ancestrally and even otherwise he has prescribed title to it by adverse possession. THE defendant contested the suit by stating that he has purchased the suit property under the sale deed dated 5th June, 1961 from one Somu Samban, the maternal uncle of the plaintiff. THE further case of the defendant is that his vendor Somu Samban was the exclusive owner of the suit property by virtue of his purchase under a sale deed dated 23rd June, 1948 from one G. Ramalingam. It is needless to point out that on the above contentions put forth by the parties, it is not possible to grant relief to the plaintiff with regard to the possession claimed by him without adjudicating the question as to whether the defendant has got title to the suit property or not. THE first Court took up the question of possession alone and found, on as assessment of the materials placed in the case, that the defendant was in possession of the suit property on the date of the suit and hence the plaintiff is not entitled to the injunction as prayed for by him and accordingly dismissed the suit. THE plaintiff appealed and the lower appellate Court chose to come to a different conclusion on the question of possession and holding that the plaintiff was is possession and the defendant was not in possession, allowed the appeal with costs and decreed the suit of the plaintiff as prayed for with costs. Hence the second appeal by the defendant.

(2.) AS the time of admission of the second appeal, the following substantial question of law was mooted out for consideration.

(3.) IN the present case, there is a dispute on the question of title to the suit property between the plaintiff and the defendant. Either it must be found that the plaintiff has title by deed or by adverse possession and if is found to be in possession on the date of the suit, the plaintiff is entitled to have his possession protected by a decree of permanent injunction or it must be found that the plaintiff is in possession on the date of the suit and the defendent has no title to the suit property and in that circumstance also the plaintiff.s possession can be protected. On going through the judgment of the lower Appellate Court, I find that there is a glaring omission to approach the controversy in issue and find the resolution for the same keeping in mind the above principles and as stated above only on the ground that the plaintiff is in possession and the defendant is not in possession and without adjudicating the question of title one way or the other, the lower Appellate Court has chosen to decree the suit of the plaintiff. This approach and the reasoning of the lower Appellate Court do not fit in with the well-accepted principles deliniated above. This obliges me to interfere in second appeal and accordingly the second appeal is allowed and the matter A. S. No. 119 of 1976 will stand remitted to the file of the lower appellate Court for into consider the same afresh in the light of the observations and the principles set out above. The parties are directed to appear before the lower Appellate Court on 30th November, 1982 for the purpose of obtaining further directions with regard to the proceedings before it. Costs will abide the results in the appeal before the lower Appellate Court. The appellant is entitled to the refund of the court-fee paid in this appeal. SAPNA