SECOND APPEAL 201 of 1997 on 23 December 1996

JUDGMENT

Challenge in this second appeal is made to the judgment anddecree dated 29.4.1999 passed in A.S.No.201 of 1997, on the fileof the First Additional District Court, Coimbatore, confirmingthe judgment and decree dated 23.12.1996 passed in O.S.No.2004of 1991, on the file of the Third Additional District MunsifCourt, Coimbatore.

2. Parties are referred to as per their rankings in thetrial Court.

3. Suit for permanent injunction.

4. The case of the plaintiff, in brief, is that the suitproperty was purchased by the plaintiff under a registered saledeed dated 5.12.1990, from one Subbakkal through her power agentKamalam and thereby, the plaintiff has been enjoying the suitproperty by keeping the same in his possession and enjoyment andthe suit property was originally owned by late Ammasai gounder and after his demise, the property left by him were dividedamongst his three sons namely Karuppa gounder, Nanjappa gounderand Krishna gounder, by way of a registered partition deed dated3.9.1932 and by way of the above said partition deed, the suitproperty was allotted to the share of Karuppa gounder andKaruppa gounder took possession of the suit property andenjoying the same and after his demise, his property includingthe suit property were inherited by his only daughterK.Subbakkal and she was in possession and enjoyment of the sameand thereafter, K.Subbakkal conveyed the suit property under thesale deed dated 5.12.1990. After the plaintiff became the ownerof the suit property, he has taken steps to transfer the pattaon his name and accordingly, patta had been transferred in hisname, in respect of the suit property and on the steps taken byhis predecessor in interest, a separate patta was granted inrespect of the suit property in favour of K.Subbakkal and thedefendant is a total stranger to the suit property and attemptedto interfere with the possession and enjoyment of the plaintiffin respect of the suit property, without having any right orinterest over the suit property and though the defendant didhave any better title than the title of the plaintiff, he alongwith his henchmen attempted to interfere with the enjoyment ofthe suit property by the plaintiff and hence the suit forappropriate reliefs.

5. The case of the defendant, in brief, is that the suit isnot maintainable either in law or on facts. It is false tostate that the suit property belongs to the plaintiff absolutelyand it is false to state that K.Subbakkal was the owner of thesuit property and on the other hand, K.Subbakkal was not theowner of the suit property and never been in possession andenjoyment of the suit property at any point of time and she didnot execute power of attorney in favour Kamalam and K.Subbakkalcould not pass on a valid title of the suit property in favourof the plaintiff and in this connection, the defendant had fileda suit in O.S.No. 1099 of 1991 against K.Subbakkal, Kamalam andNanjappa gounder and it is false to state that the suit propertyoriginally belonged to Ammasai gounder and after his demise, theproperties of Ammasai gounder were partitioned amongst his threesons and in the partition, the suit property was allotted to theshare of Karuppa gounder and it is false to state that Karuppagounder was in possession and enjoyment of the suit property, byway of alleged partition deed and it is false to state that theonly daughter K.Subbakkal inherited the suit property fromKaruppa gounder and enjoying the same and the plaintiff cannotclaim any valid title to the suit property by his allegedpurchase of the same, from K.Subbakkal, who herself has no titleto the suit property. It is false to state that the plaintiff,after his purchase, had obtained patta of the suit property andit is false to state that his vendors had also obtained patta inrespect of the suit property. The defendant is the sole ownerof the suit property and in actual possession and enjoyment of the same and hence, the case of the plaintiff that the defendantattempted to interfere with the plaintiff's possession andenjoyment of the suit property is not true. The defendantpurchased the suit property on 07.12.1975 from Ganesa gounderand Palaniswamy, both are sons of Rayappa gounder and thedefendant had deposited the original document in respect of thesuit property with Ramaswamy for obtaining loan and after thepurchase, the defendant levelled the land and submitted aproposal for forming a lay out in the suit property andaccordingly, Panchayat officials inspected the suit property andexamined the land and recommended the proposal for the lay outscheme and all the above factors would go to show that thedefendant is in possession and enjoyment of the suit property.Patta had also been granted in favour of the defendant inrespect of the suit property and after getting the patta byunfair means, the plaintiff attempted to trespass into the suitproperty illegally and hence, the plaintiff has no title to thesuit property and hence, the suit laid by the plaintiff forpermanent injunction has no basis and liable to be dismissed asdevoid of cause of action.

6. In support of the plaintiff's case PW1 was examined,Exs.A1 to A22 were marked. On the side of Defendant, DW1 wasexamined and Exs.B1 to B20 were marked.

7. On a consideration of the oral and documentary evidenceadduced by the respective parties and the submissions made, theCourts below were pleased to accept the plaintiff's case anddecree the suit in favour of the plaintiff as prayed for.Challenging the same, the second appeal has been laid.

8. At the time of admission of the second appeal, thefollowing substantial questions of law were formulated forconsideration:

1. When the plaintiff himself hadadmitted in evidence that thedefendant alone was in thepossession of the suit property hadnot the Courts below committed anact of illegality, in decreeing thesuitmerelyforpermanentinjunction?2. When the question of title cannot be anissue in a suit for permanent injunctionand when the trial Court itself had notframed such an issue is not the lowerappellate Court exceeded its power inframing a point for determination underorder XLI Rule 31 of CPC relating to thetitle of the respondent over the suitproperty?

3. Whether in the suit for permanentinjunction based upon the possession ofthe plaintiff over the suit property,can the lower appellate Court declarethe title of the appellant over it, evenwithout the payment of the Court feebased upon the marked value underSection 25 of the Tamil Nadu Court Feesand Suits Valuation Act, 1955?

9. The suit has been laid for the relief of permanentinjunction. For seeking the above said relief, the plaintiffhas putforth a case that the suit property originally belongedto Ammasai gounder and after his demise, his three sons dividedthe property of Ammasai gounder, including the suit property byway of a registered partition deed dated 3.9.1932 and in thesaid partition, the suit property was allotted to the share ofKaruppa gounder and following the same, it is only Karuppagounder, who had been in possession and enjoyment of the suitproperty as absolute owner and after his death, the suitproperty was inherited by his only daughter K.Subbakkal andderiving absolute title and enjoying the same by keeping in herpossession through the power agent Kamalam, her daughter andsold the suit property in favour of the plaintiff by way of aregistered deed dated 5.12.90 and thereby, it is the case of theplaintiff that he has acquired a valid title to the suitproperty and been in possession and enjoyment of the same, byobtaining patta etc., and according to the plaintiff, inasmuchas the defendant without any authority attempted to interferewith his possession and enjoyment of the suit property, he hasbeen necessitated to lay the suit for appropriate reliefs.

10. The plaintiff's case is stoutly resisted by thedefendant contending that it is false to state that the suitproperty originally belong to Ammasai gounder and it is false tostate that after his death, the suit property and other propertyof Ammasai gounder were partitioned amongst his three sons andin the said partition, the suit property was allotted to Karuppagounder and it is false to state that Karuppa gounder acquired avalid title to the suit property and enjoying the same, bykeeping in his possession and it is false to state thatK.Subbakkal was the daughter of Karuppa gounder and false tostate that Subbakkal inherited the suit property on the demiseof Karuppa gounder and it is false to state that Subbakkal hadacquired a valid title to the suit property and been inpossession and enjoyment of the same by obtaining patta etc.,and it is false to state that Subbakkal had conveyed the suitproperty in favour of the plaintiff, by way of a registered saledeed dated 5.12.1990, as putforth by the plaintiff and it isfalse to state that the plaintiff acquired a perfect and validtitle to the suit property and also obtained patta thereto andit is thus pleaded by the defendant that the plaintiff has no valid title to the suit property and never been in possessionand enjoyment of the suit property at any point of time andhence, the suit is liable to be dismissed. On the other hand,the defendant has set up a rival title to the suit property byclaiming that he had acquired the suit property by way of aregistered sale dated 07.12.1975, from Ganesa gounder andPalaniswamy, both are sons of Rayappa gounder and accordingly,enjoying the suit property and thereafter, obtained lay outapproval in respect of the suit property from the officialsconcerned and also secured patta in respect of the suit propertyand therefore, it is contended that it is only the defendant,who has a valid title to the suit property and enjoying the sameby retaining in his possession and also pleaded that theplaintiff under the guise of the false patta, attempted tointerfere with his possession and enjoyment and hence, the suitis liable to be dismissed. Thus, from the nature of thepleadings set out by the plaintiff as well as the defendantparticularly the pleadings set out by the defendant in thewritten statement, it is found that the defendant has stoutlyresisted the plaintiff's claim of title to the suit property andalso his claim of being in possession and enjoyment of the suitproperty as a valid title owner. In fact, a reading of theplaint averments as a whole, would go to show that the plaintiffdenies the defendant's claim of title to the suit property andalso contended that the defendant is not having a better titleto the suit property than his claim of title, hence he cannot beallowed to interfere with his possession and enjoyment of thesuit property as such and accordingly, prayed for relief ofpermanent injunction against the defendant.

11. In the light of the above position, it is found thatwhen the parties to the lis fight with each other vis-a-vis, theclaim of title to the suit property, tooth and nail and whenboth parties claim to be in possession and enjoyment of the suitproperty only on the basis of the title and when the partieshave putforth pleas that their claim of title to the suitproperty is better than the claim of title to the suit propertyput forth by rival party, it is seen that the plaintiff havingcome forward with the suit, in the face of the above said pleasput forth by the defendant, in the written statement, stronglydisputing the title of the plaintiff in the suit property andalso disputing his possession and enjoyment of the suitproperty, as rightly putforth by the defendant's counsel, theplaintiff should have accordingly sought for the relief ofdeclaration in respect of the suit property as such. Further,it is found that the above said resistance has been putforth bythe defendant constantly with regard to the claim of the suitproperty by the plaintiff in all aspects, right from theinception i.e., from the days of his alleged predecessor intitle to the suit property, and in such view of the matter, theplaintiff should have sought for the relief of declaration inrespect of the suit property.

12. In this connection, strong reliance is placed upon thedecision of the Supreme Court by the defendant's counselreported in (2008) 4 SCC 594 (Anathula sudhakar Vs.P.Buchi Reddy(dead) By Lrs. And others). A perusal of the above saiddecision would go to show that where a cloud is raised over theplaintiff's title and the plaintiff claims to be in possessionof the suit property only on the basis of the said title, a suitfor declaration with or without a consequential relief is theremedy available to the plaintiff and in cases where de-jurepossession has to be established on the basis of the title tothe suit property as in the case of vacant site, the issue oftitle may directly or substantially arise for consideration aswithout a finding thereon, it will not be possible to decide theissue of possession, ie., where the plaintiff claims to be inpossession but his title to the property is in dispute or undera cloud or where the defendant asserts title thereto and thereis also a threat of dispossession from the defendant as in thiscase, the plaintiff will have to go for declaration of title andconsequential injunction and when the title of plaintiff is incloud or in dispute and he does not have possession or not ableto establish the possession, necessarily, the plaintiff willhave to file a suit for declaration and possession with orwithout consequential injunction. Thus, it is found that aprayer for declaration is necessary, if there is denial of titleby the defendant or the defendant challenges the plaintiff'stitle to the property concerned and in such circumstances, theaction for declaration is the remedy to remove the cloud on thetitle of the suit property in issue.

13. That apart, as above seen when even as per the plaintaverments read as a whole, the apprehension entertained on thepart of the plaintiff is that the defendant, on the basis ofclaiming title to the suit property, has attempted to interferewith his possession and enjoyment in respect of the same andwhen it is further pleaded that the defendant cannot have anybetter title to the suit property than that of the plaintiff andin addition to that, when the defendant has averred in hiswritten pleading that the plaintiff has no title to the suitproperty and not in lawful possession and enjoyment of the suitproperty by having a valid title and it is only the defendant,who has acquired a valid title to the suit property by aparticular mode and in enjoyment of the suit property as such,considering the above pleadings projected by the respectiveparties, it is seen that a reading of the plaint as a whole, inthe context of the relief claimed thereunder would go to showthat the issue of title is not wholly foreign to the controversyand it is relevant to determine while considering the grant ofpermanent injunction. Thus, this case could also be coveredunder the decision of the Apex Court in 2017-5-LW.490 Velayudhan& others Vs. Mohammedkutty & ors. In the light of the abovedecision, it is found that the plaintiff should have made all the endeavours to seek the relief of declaration in respect ofthe suit property and despite the above resistance putforth tohis case by the defendant, still the plaintiff had not chosen toamend the plaint for including the relief of declaration inrespect of the suit property and therefore, it is seen that theplaintiff has himself placed in a predicament by not asking forthe appropriate relief of declaration as regards the suitproperty and therefore has to suffer the consequences thereto.

14. However, it is argued by the plaintiff's counsel that ina suit for permanent injunction simpliciter even the question oftitle could be gone into incidentally and therefore, it iscontended that the plaintiff's omission to seek the relief ofdeclaration is not fatal to his case as such and in thisconnection, reliance is placed upon the decisions reported in2012 (1) MWN (Civil) 835 (Parvathi and 4 others Vs. K.K.Bellan),1997 (1) CTC 407 (Yadhavan and another Vs.Md.Dayanudin and 2others) and 2001 (3) CTC 393 (Murugaiyan and 2 others Vs.Subbaiyan). Based on the above said authorities, it iscontended that the Courts below had rightly gone into thequestion of title also incidentally to determine whether theplaintiff is entitled to obtain the relief of permanentinjunction as prayed for and therefore, inasmuch as thedefendant has failed to establish a valid title to the suitproperty and on the other hand, the plaintiff has established avalid title to the suit property, it is contended that theplaintiff's suit cannot be rejected on the footing that theplaintiff has not sought for the relief of declaration as such.

15. In so far as the facts and circumstances of the case athand, as above mentioned, strong resistance had been putforth bythe defendant in his written plea, disputing the claim of titleof the plaintiff to the suit property and not only that, thedefendant has also disputed the claim of title of the plaintiffpredecessor in interest to the suit property. That apart, thedefendant has also disputed the claim of possession andenjoyment of the suit property by the plaintiff by acquiring avalid title to the same. Such being the position, in myconsidered opinion, following the decision of the Apex Courtrelied upon by the defendant's counsel, it is seen that theplaintiff should have made all the necessary endeavours to amendthe plaint and seek the relief of declaration. The above saidcourse has not been adhered to by the plaintiff.

16. No doubt, in a incidental manner, the claim of titlecould be gone into in a suit for permanent injunction. But in asuit for permanent injunction, as in the present case,considering the rival contentions putforth by the respectiveparties on the question of title, it is found that necessarilythe question of title alone assumes significance for determining whether the plaintiff or the defendant is in lawful possessionand enjoyment of the suit property. Inasmuch as the parties viewith each other claiming to be in possession and enjoyment ofthe suit property based on a title, as putforth by themrespectively, in the light of the above position, it is foundthat without determining the question of title of the suitproperty as claimed by the respective parties, it is seen thatthe lawful possession of the same cannot be determined as such.The Courts below also had been made aware of the above saidposition and while considering the issues involved in the suit,as rightly contented by the defendant's counsel, haveextensively gone into the title of the suit property as putforthby the respective parties and disposed of the present lis as asuit for title and not as a suit simpliciter for permanentinjunction. It is thus found that the Courts below have notdecided the question of title as an incidental matter todetermine the relief of injunction in the suit. On the otherhand, they had gone into in an extensive manner into the claimof title to the suit property as putforth by the respectiveparties. Thus, as rightly putforth by the defendant's counsel,this has seriously prejudiced the case of the defendant as suchand that apart, it is found that when the Courts below find thatthe question of title centres around the respective pleadings ofthe parties concerned, should have directed the plaintiff toamend the plaint for including the relief of declaration alsobefore going into the question of title in extenso as putforthby the respective parties. However, neither of the Courts belowhad directed the plaintiff to seek for the relief of declarationnor the plaintiff himself has endeavoured to amend the plaintfor including the relief of declaration in the suit. Thus, itis found that, in the light of the decision of the Apex Courtabove referred to, on the failure of the plaintiff to includethe relief of declaration in the suit, has to suffer on the saidground alone in the light of the facts and circumstances of thepresent case.

17. That apart, it is seen that the approach by the Courtsbelow in determining the lis is found to be totally perverse anderroneous and on the above ground also, the judgment and decreeof the Courts below have to be set-aside. It is found thatthough the issue is as to whether the plaintiff is entitled tothe relief of permanent injunction as prayed for, fordetermining the issue as regards the title as putforth by therespective parties, on a reading of the judgment and decree ofthe trial Court, it is found that the trial Court has gone intothe question of title in detail and accordingly, proceeded withthe suit, as if, it is suit for title and thus, it is found thatwhile ending up with the discussions, the trial Court has heldthat inasmuch the defendant has failed to establish his side ofthe case beyond all doubt, accordingly, concluded that theplaintiff is entitled to claim the relief of permanentinjunction as prayed for and it is seen that the trial Court has

Issues

approached the issue placing the burden of proof entirely on theshoulder of the defendant and accordingly, concluded thejudgment by holding that inasmuch the defendant has failed toestablish his case beyond all doubt, upheld the plaintiff's caseand granted the plaintiff, the relief of permanent injunction asprayed for. Thus, it is seen that the very approach of theissues involved in the matter by the trial Court is found be toerroneous and unsustainable in the eyes of law. That apart,the first appellate Court has gone one step ahead and whileframing the points for determination, the first appellate Courthas framed the first point as to whether the appellant/defendantis in possession and enjoyment of the suit property based on thetitle to the suit property as claimed in the written statement.Thus, it is found that the first appellate Court has framed thefirst point for determination throwing the entire burden uponthe defendant to establish as to whether he has title to thesuit property as putforth by him and whether he is in possessionand enjoyment of the suit property, based on such a title asputforth by him. Similarly while framing the second point fordetermination, the first appellate Court has framed the saidpoint as to whether the appellant/defendant is right incontending that the respondent/plaintiff is not entitled toclaim the relief of permanent injunction as claimed in theplaint. Even as regards the second point for determination, asframed by the first appellate Court, the burden is placed onlyon the defendant to establish that the plaintiff is not entitledto claim the relief of permanent injunction as prayed for.Therefore, the above points for determination formulated by thefirst appellate Court would only go to disclose that even theapproach of the first appellate Court in the lis is not inaccordance with law and the first appellate Court has also goneinto the question of title in extenso and accordingly, placedthe entire burden of proof on the defendant, to show that he hasa valid title to the suit property, whether he is in possessionand enjoyment of the suit property pursuant to the alleged titleas putforth by him and to cap it all, the first appellate Courthas also directed only the defendant to establish that theplaintiff is not entitled to seek the relief of permanentinjunction as prayed for in the plaint and therefore, it isfound that in a suit for permanent injunction, simpliciter, thefirst appellate Court has also decided the question of titlemainly and not as an incidental issue and that apart, hascommitted a patent error in fixing the responsibility on thepart of the defendant to establish his title to the suitproperty and his possession of the suit property without callingupon the plaintiff to establish his case as putforth in theplaint. Thus, it is seen that the above approach of the firstappellate court as well as the trial Court, as seen supra, wouldonly go to show that both the Courts below have not understoodthe lis in the true perspective as per the law and accordingly,proceeded with the matter in a erroneous manner and accordingly,it is seen they had shifted the burden of proof on the shoulderof the defendant for upholding the claim of the relief sought

for by the plaintiff. Therefore, the facts would only go toshow that the Courts below have not gone into the question oftitle incidentally in the matter but gone into the question oftitle in a detailed manner as the defendant has disputed theclaim of title of the suit property tooth and nail from theorigin and therefore, it is seen that the contention of theplaintiff's counsel that the Courts below had only incidentallygone into the question of title and not in details as regardsthe rival claims of the parties concerned, as such, cannot becountenanced in any manner. Such being the approach of theCourts below, in the light of the decision of the Apex Courtabove referred to, the plaintiff, having failed to seek therelief of declaration by paying necessary fees as required underlaw, cannot be allowed to sustain his suit merely on the basisof the relief of permanent injunction.

18. That apart, it is also found that the plaintiff hasmiserably failed to establish that he is in lawful possessionand enjoyment of the suit property as putforth by him and on theother hand, as rightly contended by the defendant's counsel, theplaintiff himself has admitted that the suit property is only inthe possession and enjoyment of the defendant and despite thesame, it is found that the Courts below have proceeded to acceptthe plaintiff's case and grant the relief accordingly. Even asper the plaintiff's case, only after the alleged sale dated05.12.1990, he had endeavoured to change the patta of the suitproperty in his name. This has also been admitted by theplaintiff during the course of his evidence. That apart, theplaintiff examined as PW1 has also admitted during the course ofcross examination that only after his sale deed, the patta hadbeen converted in his name. It is thus found that theplaintiff has not established that despite the defence putforthby the defendant, the suit property originally belonged toAmmasai gounder and that it was allotted to Karuppa gounderduring the partition said to have been taken placed in 1932 andfurther, there is no material placed on the part of theplaintiff to show that either Ammasai gounder or Karuppa gounderhad been in possession and enjoyment of the suit property rightfrom 1932 onwards or earlier to that. It has also not beenestablished that the plaintiff's vendor Subbakkal had been inpossession and enjoyment of the suit property on the demise ofKaruppa gounder. On the other hand, it is found that theplaintiff has moved the revenue authorities to convert the pattain his name only after the obtainment of the sale deed in hisname from Subbakkal on 05.12.1990. In the partition deed dated03.09.32, marked as Ex.A3 and in the power of attorney dated02.4.1990, marked as Ex.A2, the suit property has been shown tobe comprising in S.No.561/3, however, for the first time, onlyin the sale deed dated 05.12.1990, marked as Ex.A1, the suitproperty has come to be declared as comprising in S.No.561/3B.Only thereafter, the plaintiff has moved the revenue authoritiesto obtain the patta in his name. However, the plaintiff has

clearly admitted during the course of evidence that the pattafor the suit property stands in the name of the defendant and itis only the defendant who is in possession and enjoyment of thesuit property. In this connection, the plaintiff has admittedthat Ex.B3 contains the name of the defendant and from 1972onwards, the suit property has been in possession and enjoymentof the defendant and it is only he, who had interfered with thedefendant's possession and when the defendant resisted hisinterference, according to him, it is correct to state that hehas instituted the suit with false particulars. Not stoppingwith that, the plaintiff has admitted during the course of hisevidence that as per Ex.B15, the sale deed, it is correct tostate that the defendant has purchased 1.53 acres in S.No.561/3and in Ex.B21, the sale transaction of the defendant has beenreflected and further, he has also admitted that it is correctto state that prior to his purchase, it is only the defendant,who had purchased the suit property and enjoying the same bykeeping the suit property in his possession. Such being theclear admission of the plaintiff during the course of hisevidence, it is found that as rightly argued by the defendant'scounsel, when the possession and enjoyment of the suit propertyby the defendant prior to the alleged purchase of the suitproperty under Ex.A1 has been admitted without any ambiguity andwhen according to the plaintiff, he has endeavoured to changethe patta of the suit property only after Ex.A1 and prior toEx.A1 and prior to the conversion of the patta in his name, itis only the defendant who is in possession and enjoyment of thesuit property by obtaining patta etc., it is seen that whenthere is no material, as such, placed on the part of theplaintiff that he had validly and lawfully dispossessed thedefendant from the suit property through Court means, the suitlaid by the plaintiff for the relief of permanent injunctionsimpliciter cannot be allowed to maintain as such without therelief of declaration, particularly, when the defendant hasstrongly resisted the claim of title to the suit property aspleaded by him. That apart, when it has been admitted clearlythat it is only the defendant who has been in possession andenjoyment of the suit property prior to Ex.A1 and thereafter,to establish the possession of the plaintiff, only the revenuerecords have been placed, it is seen that the plaintiff shouldhave laid the suit against the defendant only for recovery ofpossession as such and on the other hand, it is seen that hehas, without any basis, laid the suit simpliciter for permanentinjunction that too without seeking the relief of declaration.Therefore, on the above aspect also, it is seen that theplaintiff's suit should fail. It is however contended by theplaintiff's counsel that the defendant has failed to establishhis claim of title to the suit property and in this connection,it is stated that the defendant/appellant's title deed wouldonly go to show that he can claim title to an extent of 77 centin the suit survey number and not more than that and thedefendant has suppressed the other title deed said to be in hispossession and enjoyment for the remaining extent suit in the

survey number and on that basis it is argued that thedefendant's version should be rejected. However, as rightlyputforth by the defendant's counsel, the plaintiff having comeforward with the suit for necessary relief, has to stand or fallon the merits of his case. He cannot be allowed to pick holesin the defendant's case and try to succeed his case withoutplacing any acceptable materials pertaining to the same. Asabove seen, the plaintiff has not established as to how Ammasaigounder had derived title to the suit property. It has not beenestablished that the sons of Ammasai gounder are entitled topartition the suit property. Thus, it has not been establishedthat Karuppa gounder had acquired a valid title to the suitproperty under Ex.A3. It has not been established thatSubbakkal had acquired a valid title. Such being the position,when the plaintiff has not established that his predecessors hada valid title to the suit property, it is seen that theplaintiff cannot be allowed to contend that the defendant hasnot established his claim of title to the suit property andtherefore, he should be granted the relief prayed for withoutany materials pointing to the same. This argument of theplaintiff seems to have found acceptance by the Courts below andas above seen, the first appellate Court framed points fordetermination only placing the burden of proof on the shouldersof the defendant instead of directing the plaintiff to establishhis case and that apart, as above mentioned, the Courts belowhave also in a suit simpliciter for permanent injunction hasgone into the question of title in detail, without the plaintiffpaying the necessary court fees for the same and accordingly,had given findings that the plaintiff has a valid title to thesuit property, which run contrary to the dictum of the apexCourt mentioned supra.

19. In the light of the above position, when it is foundthat the findings of the Courts below as regards the title ofthe plaintiff to the suit property and the possession andenjoyment of the suit property and the alleged lawful possessionand enjoyment of the suit property by the plaintiff are perverseand illogical without any basis or valid material pointing tothe same and on the other hand, found to be contrary to theevidence on record, it is seen that such findings of the Courtsbelow cannot be allowed to sustain further and in such view ofthe matter, this Court sitting in the second appeal is entitledto interfere with the erroneous findings of the Courts belowunder Section 100 of the Code of Civil Procedure. In such viewof the matter, the principles of law enunciated in the decisionsreported in (2012) 7 SCC 288 (Vishwanath Agrawal Vs. SarlaVishwanath Agrawal) and (1989) 3 SCC 612 (Corporation of thecity of Bangalore Vs. M.Papaiah and another) relied upon by theplaintiff's counsel are taken into consideration and followed asapplicable to the case at hand.

20. In view of the above position, the substantial questionsof law formulated in this second appeal are answered against theplaintiff and in favour of the defendants. Resultantly, thejudgment and decree dated 29.4.1999 rendered in A.S.No.201 of1997, on the file of the First Additional District Court,Coimbatore, confirming the decree and judgment dated 23.12.1996rendered in O.S.No.2004 of 1991, on the file of the ThirdAdditional District Munsif, Coimbatore are set aside andconsequently, the suit laid by the plaintiff is dismissed withcosts and accordingly, the second appeal is allowed with costs.Consequently, connected miscellaneous petition, if any is closed.

Assistant Registrar(CS V)

//True Copy//

Sub Assistant Registrar

sliTo1. The First Additional District Court, Coimbatore.2. The Third Additional District Munsif Court, Coimbatore.

Copy to:The Section Officer, VR Section, High Court, Madras(2 copies)

+1cc to M/s.P.Raja, Advocate SR.No.1249+1cc to Mr.T.M.Naveen, Advocate Sr.No.785

SV1(CO)sm:5.2.2018