(1.) BY invoking section 114 of the Code of Civil Procedure and Order 47 Rule 1 C. P. C, the Tamilnadu Housing Board sought to review the judgment and decree rendered by this Court by Justice Swamidurai, J, as he then was, in Second Appeal No. 1526 of 1988 dated 7-4-1994 on the ground of legal error causing injustice to the appellant herein.
(2.) THE suit property, a land situated in Survey No. 140/4 in Kodambakkam village within the Registration district of Madras bounded on north by 8th Avenue R. S. No. 140/3, on east by property of Appavoo Mudaliar and 48th street on the west by 1st Avenue Main Road, on south by plot -30 with the superstructure thereon and marked in the plaint sketch filed along with the plaint, was claimed to have belonged to one Mr. Viswam, the 1st plaintiff, who died during the pendency of the proceedings, and consequently his legal representatives 2 to 11 were brought on record. Claiming title on the basis of a long adverse possession pursuant to the grant made by one Appavoo Mudaliar to the 1st plaintiff Viswam long back apprehending interference by the Tamilnadu housing Board under the pretext of the acquisition done to the surrounding area, the relief of permanent injunction was prayed for in the suit filed by the said Viswam. THE suit was resisted by the Tamilnadu Housing Board by filling a written statement specifically denying the very title of the plaintiff to the land and contending that the same has been acquired long back and for which compensation amount duly fixed, has been paid already and out of grace and sympathy, the plaintiff was allowed to reside therein by putting a hut and however, filing of a suit without giving notice to the Authorities as provided under Section 138 of the Tamilnadu Housing Board Act, is clearly a total bar and that even so, the Housing Board has got possession from the government after the acquisition proceedings were over and thus the suit filed by the plaintiff was not maintainable.
(3.) A careful reading of the judgment delivered by the learned single Judge on 7-4-1994 in Second Appeal No. 1526 of 1988 would make it clear that even aspect of the adduced legal evidence has been considered by both the Courts and accordingly, the learned single Judge, after having a thorough discussion, confirmed the finding given by the lower appellate Judge. It is worthwhile at this stage to note that the alleged error was found within pleadings not specifically spelt out in the plaint pertaining to the source of title acquired or manner of title got through by the plaintiff-respondent. I am totally unable to accept the contention of the learned senior counsel that the above omission identified in the plaint is not an error of law at all for the simple reason that while considering the relief of bare injunction asked for in the plaint, the main element to be decided by a Court for ascertaining a prima facie case in order to grant equitable remedy of injunction, is mere possession and not with regard to title and even so, take it for granted for a moment the question of title can be looked into, but however very incidentally and not in detail. If a person claiming possession or to be in possession, is alleged to be a trespasser supposed to be in lawful possession thereof, it is for that person then to prove such a defence by placing acceptable, cogent and legal evidence. If I have a look in the judgment rendered by the lower appellate judge as well as the learned single Judge of this Court, I am constrained to hold that what legal requirement became absolutely necessary, has been fulfilled and that therefore, there is no concept of error.