BEGUM JANAMMAL Vs. SELVA ARASU

JUDGEMENT

(1.) This revision is by the plaintiff in the suit O.S. No. 696 of 1974 on the file of the District Munsif of Thanjavur. The respondents herein are the defendants in the suit. The suit of the plaintiff was for declaration of title and for permanent injunction. That suit was decreed by the first Court as prayed for. On appeal by the defendants A.S. 42 of 1978 on the file of the Subordinate Judge, Thanjavur, the title of the plaintiff in respect of a portion alone was upheld and injunction thereof granted; and the suit in respect of the remaining portion was dismissed. The plaintiff preferred S.A. 2028 of 1978 to this Court, and there was a cross-objection by the defendants. The second appeal by the plaintiff was dismissed by this Court, and the cross-objection by the defendants was allowed dismissing the suit as a whole. Defendants 5 and 6 with the consent of the other defendants took out E.P. 195 of 1985 for delivery of possession, demolishing the construction made thereon by the plaintiff. The plaintiff contested this move of the defendants stating that her suit for declaration of title and possession having been dismissed, the defendants could not ask for such independent reliefs. However, the Court below thought reliefs to the defendants could be accorded under S.144, C.P.C. hereinafter referred to as the Code, and allowed the application. This revision is directed against the orders of the Court below.

(2.) Before me, Mr. U. Thyagarajan, learned counsel for the petitioner-plaintiff would submit that it is nobody's case, that plaintiff obtained possession and put up construction pursuant to or under the covet of any decree or order of Court so that the defendants on reversal of such order or decree, could seek the aid of Sec.144 of the Code. and claim restitution. If I assess and take note of the principle under Sec.144 of the Code, in the background of the facts of the present case, I have to sustain the submission of the learned counsel for the plaintiff. The suit of the plaintiff was one for declaration of title and for permanent injunction. The finding rendered by the Court while dismissing the suit for the plaintiff is that the plaintiff was not in possession on the date of the suit. It is not and it could not be the case of the defendants that the plaintiff got possession pursuant to and under the cover of the decree passed by the first Court or the decree passed by the lower appellate Court. S.144 of the Code, as a whole, reads as follows :-

(3.) In Govinda v. Muniswami, AIR 1937 Mad 315, Venkataramana Rao, J. (as he then was) dealing with a case where the plaintiff the sued for assertion of their rights as against the defendants, taking advantage of the order of injunction granted to them, unlawfully took possession of certain properties to which they were not entitled, and when the defendants ought restitution, held that the proper remedy of the defendants, who were aggrieved by the action of the plaintiffs was by suit and not by way of restitution inasmuch as the defendants did not lose their possession because of any action taken by plaintiffs under the decree but by an unlawful act independent of the decree. The learned Judge chose to follow the ratio of the Bench in Periasami Thevan v. Karuthiah Thevan, 6 Mad LW 631. The principles remaining what they are, certainly the defendants were not in order to seek restitution in the manner as they did, and the Court below erred in granting the reliefs to the defendants under the cover of S.144 of the Code. The result is, this revision has got to be allowed, and accordingly the same is allowed. I make no order as to costs. Revision allowed.