2019 (9) TMI 168 - HC - Indian Laws

Relief of permanent injunction - restraint on respondents/defendants from putting up any construction in the suit property - appointment of advocate to resolve the dispute - main contention of the revision petitioner/plaintiff is that though the respondents/ defendants 2 and 3 are aware of the fact that the suit property belongs to the Central Government, they attempted to tresspass into the suit property - time limitation. HELD THAT - In the instant case, the revision petitioner/plaintiff did not seek for recovery of possession of the suit property from the defendants, especially when they admitted that the defendants had constructed a building in the suit property. Further more, it is seen from the written statement that the defendants have questioned the title of the plaintiff to the suit property. In such circumstances, it is the bounden duty of the plaintiff to seek for a relief of declaration of their title to the suit property and for recovery of possession of the same from the defendants, which has not been done by the plaintiff in the instant case. As per Article 113 of the Limitation Act, right to sue accrues when there is an accrual of the rights asserted in the suit and an unequivocal threat by the defendant to infringe the right asserted by the plaintiff in the suit and the period of limitation is 3 years - In the instant case, even though the revision petitioner/plaintiff admits that the defendants had completed the construction over the suit property at the time of disposal of petition, they did not file a petition to amend the plaint for inclusion of the prayer for recovery of possession from the defendants. In the instant case, on the date of filing of amendment petition, admittedly the revision petitioner/plaintiff was not in possession of the suit property - On the other hand, the respondents/defendants have put up construction over the suit property and they have also alleged in their written statement that as per the proceedings of the Board of Revenue in G.O.Ms.No.2953, Public Works Department dated 30.09.1947, the suit property was transferred to the Police Department and thus, they have exclusive right over the suit property. Seeking for amendment of the plaint for inclusion of the prayer of mandatory injunction for demolition of the construction is not appropriate and inview of the reasons expressed by me in the preceedings paragraphs, such a relief sought for by the revision petitioner/plaintiff is also barred by limitation - appointment of an advocate commissioner is not also necessary to resolve the dispute between the parties in the instant case. Revision petition dismissed.

Issues Involved:
1. Title and possession of the suit property.
2. Maintainability of the suit for a bare injunction.
3. Appointment of an advocate commissioner.
4. Amendment of the plaint to include a prayer for mandatory injunction.
5. Limitation period for filing the amendment petition.

Detailed Analysis:

1. Title and Possession of the Suit Property:
The civil revision petitioner (Commissioner of Customs and Central Excise) filed a suit for permanent injunction, claiming that the suit property belongs to the Government of India and that they are entitled to its possession. The respondents (Tamil Nadu State Government and its officials) questioned the plaintiff's title to the suit property in their written statement. The court noted that when the title of the plaintiff is in dispute, the plaintiff must seek a declaration of title and recovery of possession, which was not done in this case.

2. Maintainability of the Suit for a Bare Injunction:
The court referenced the principles from the case of Ananthula Sudhakar Vs. P.Buchi Reddy, stating that a suit for an injunction simpliciter will lie if the plaintiff is in lawful possession and the title is not disputed. However, if the title is disputed, the plaintiff must seek a declaration of title and possession. Since the plaintiff did not seek these reliefs, the suit for a bare injunction was deemed not maintainable.

3. Appointment of an Advocate Commissioner:
The petitioner filed I.A.No.72 of 2010 under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure to appoint an advocate commissioner to inspect the suit property. The II Additional District Munsif, Coimbatore, dismissed this petition, reasoning that since the petitioner admitted the defendants had completed construction, measuring the extent of construction would not help resolve the matter. The court upheld this decision, stating that the appointment of an advocate commissioner was unnecessary.

4. Amendment of the Plaint to Include a Prayer for Mandatory Injunction:
The petitioner filed I.A.No.118 of 2010 under Order VI Rule 17 of the Code of Civil Procedure to amend the plaint to include a prayer for mandatory injunction directing the defendants to remove the construction. The court noted that the amendment sought was barred by limitation, as the plaintiff was aware of the construction as early as 1999 but did not seek the amendment until 2010. The court emphasized that amendments should be allowed to avoid multiplicity of proceedings, but in this case, it was not appropriate due to the delay and the nature of the relief sought.

5. Limitation Period for Filing the Amendment Petition:
The court referred to Article 113 of the Limitation Act, which provides a three-year period for filing a suit from the date of accrual of the right. The court observed that the plaintiff admitted the defendants had completed the construction by 1999, but the amendment petition was filed only in 2010. Therefore, the relief sought was barred by limitation.

Conclusion:
The court dismissed both civil revision petitions (CRP No.775/2011 and 776/2011) and upheld the orders dated 09.11.2010 passed by the II Additional District Munsif, Coimbatore, in I.A.No.72/2010 and I.A.No.118 of 2010. The court concluded that the suit for a bare injunction was not maintainable without seeking a declaration of title and possession, the amendment petition was barred by limitation, and the appointment of an advocate commissioner was unnecessary.

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