M M PONNUSWAMI Vs. MMARIAPPA SERVAI

JUDGEMENT

(1.) This appeal arises out of a suit for injunction brought with the object of restraining the defendant from interfering with the plaintiff's possession and enjoyment of an open space marked DLHG in the commissioner's plan, dated 30 September 1941. The suit was decreed by the trial Court, but the decree was reversed on appeal by the Subordinate Judge of Trichinopoly and the suit was ordered to be dismissed. The plaintiffs preferred a second appeal to this Court. When it came up for hearing before me, I held the decision of the lower appellate Court confessing its inability to localise the plot in suit to be unsatisfactory and called for a fresh finding on that point with reference to Ex. A (the deed relied on by the plaintiff) and to Ex. 9, (the deed relied on by the defendant). As some reference was made in the judgment of the lower appellate Court to Ex. 4 and Ex. 5, I permitted those two documents to be taken into consideration as well.

(2.) The second contention advanced on behalf of the plaintiffs was that in view of the decision of the survey officer under the Survey and Boundaries Act (Act 8 of 1923) being conclusive, it was not possible for the defendant to resist the suit. This contention had been accepted by the trial Court. It did not however find favour with the lower appellate Court, although the grounds on which it came to that decision did not seem to be sufficient. For reasons stated in my order of 2l August, 1941 I permitted the parties to adduce such further evidence in regard to this question as they cared to do and called for a fresh finding in this respect as well. This has now been done. The principal Subordinate Judge has not expressed himself quite clearly in regard to the first point and has mainly contented himself with recapitulating the report made by the Commissioner. This was to the effect that the western boundary of the plot No. 243/3 extended up to line SL shown in his (i.e., the Commissioner s) plan dated 30 September 1941. According to this report, the plaintiff would be entitled to almost half of what he claimed in the suit and this would have to be finally accepted, unless the plaintiffs succeeded in their other contention as to the conclusive nature of the order passed by the survey officer. If this prevails, the suit for injunction, which naturally implies a declaration as to the title to the plot in suit, would have to be decreed.

(3.) Learned Counsel for the respondent contended at the hearing that in view of the finding of the lower appellate Court in the main appeal that the plaintiffs had failed to establish their possession of the plot in dispute for twelve years prior to the suit, it could not be decreed. But that is not how I read the finding of the lower appellate Court. Its decision was that the plaintiffs wore not the owners of the site in suit and the occasional user by their tenants of the plot in dispute and that of the latrine was not sufficient to hold them to be in the plaintiff's possession. This was because the land was found to be lying waste and fugitive acts of the plaintiffs or of their tenants could not be regarded as acts of possession. But if the title to the plot in suit were ultimately found to be vesting in the plaintiffs, their user of the plot in dispute or the occasional user of the same by their tenants could not lead to that conclusion. Had the lower appellate Court come to the finding that the plaintiffs were the owners of the plot in dispute the nature of these acts would have been seen in an entirely different light and would have been sufficient for the purpose of granting an injunction in their favour.