Madras High Court
Ponraj vs Arulmigu Chidambara Vinayagar ... on 19 April, 2021
S.A.(MD)No.720 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.720 of 2006
and
M.P.(MD)No.1 of 2006
Ponraj ... Appellant
Vs.
Arulmigu Chidambara Vinayagar Swamy Thirukoil,
Rep. by its Managing Trustee,
Ponraj @ Thirumal ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 24.11.2005 made in A.S.No.19 of 2004,
on the file of the Sub Court, Srivilliputhur, confirming the judgment and decree
dated 10.12.2003 made in O.S.No.51 of 2001 on the file of Principal District
Munsif Court, Srivilliputhur.
For Appellant : Mr.G.Maruthaiah
For Respondent : Mr.V.Chandrasekar
JUDGEMENT
The unsuccessful defendant is the appellant in this second appeal. The
respondent filed O.S.No.51 of 2001 on the file of the Principal District Munsif
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.720 of 2006
Court, Srivilliputhur seeking the relief of declaration and permanent injunction.
The appellant filed written statement claiming that he had entered into a sale
agreement with the respondent on 21.12.1989 and had also paid a sum of
Rs.50,000/- towards advance. He would also claim that he is in possession of
the suit property. The respondent examined himself as P.W.1 and marked
Exs.A.1 to A5. The appellant examined himself as D.W.1 and two others were
examined as D.W.2 and D.W.3 and marked Exs.B1 to B9.
2.The Trial Court after considering the evidence on record decreed the
suit as prayed for vide judgment and decree dated 10.12.2003. Questioning the
same, the appellant filed A.S.No.19 of 2004 before the Sub Court,
Srivilliputhur. By judgment and decree dated 24.11.2005, the appeal was
dismissed. Aggrieved by the same, this second appeal has been filed.
3.The second appeal was admitted on the following substantial questions
of law:-
“(i) Whether the Courts below are correct in decreeing the
suit for declaration when the title over the suit properties is not
proved by the plaintiff?
(ii) Whether the Courts below are correct in decreeing the
suit when the defendant claimed right of adverse possession by
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.720 of 2006
way of sale agreement dated 21.12.1989 entered into between
the plaintiff and the defendant and when possession was handed
over to the defendant subsequent to the agreement?
(iii) Whether the Courts below are right in decreeing the
suit when a necessary party i.e., the defendant's wife was not
impleaded as party to the suit?”
4.Heard the learned counsel on either side.
5.The learned counsel for the appellant reiterated all the contentions set
out in the memorandum of grounds and called upon this Court to answer the
substantial questions of law in favour of the appellant. He strongly contended
that in view of the execution of the sale agreement by the plaintiff in his favour
and payment a sum of Rs.50,000/-, possession was handed over to the appellant
and therefore, the Courts below erred in granting the relief of permanent
injunction.
6.Per contra, the learned counsel for the respondent submitted that no
substantial question of law arises for consideration and he pressed for dismissal
of the second appeal.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.720 of 2006
7.I carefully considered the rival contentions and perused the evidence of
record. The suit properties are agricultural lands. The first question that arises
for determination is whether the respondent had established his claim of title
over the suit property. As rightly pointed out by the learned counsel for the
respondent, Ex.B.1 filed by the appellant himself establishes the title of the
respondent. According to the appellant on 21.12.1989, he entered into a sale
agreement with the respondent for purchase of the suit property. The appellant
would further claim that he paid a sum of Rs.50,000/- as advance. That clearly
shows that the appellant himself recognized and acknowledged the title of the
respondent. Therefore, the relief of declaration granted by the Courts below
does not call for interference. Hence, I have no difficulty in answering the first
substantial question of law against the appellant and in favour of the
respondent.
8.The next question that arises for consideration is whether the Courts
below were justified in granting the relief of injunction. Only if the plaintiff
had established that the suit property is in their possession, relief of injunction
can be granted and not otherwise. To render a finding in favour of the
respondent, the Trial Court had relied on the testimony of the appellant himself.
The appellant in his testimony had admitted that when Ex.B.1 was executed, the
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.720 of 2006
suit property was in the possession of the plaintiff. It is further admitted by him
during the period of sale agreement, the plaintiff was in possession and
enjoyment of the suit property. However, he would make a claim in the same
breath that it is only under Ex.B.1, he is enjoying the suit property. There is
nothing on record to indicate that by virtue of Ex.B.1 possession was entrusted
to the appellant. There is no other document to show that the appellant is in
possession of the property. The documents filed by the appellant have been
negatived by the Courts below by giving convincing reasons. For instance,
when the appellant wanted to rely on the certificate issued by Village
Administrative Officer, the Trial Court rightly held that since the certificates
were not obtained from the competent authority, they were of no avail. The
question of possession is purely a question of fact. When the Courts below
have concurrently found the issue against the appellant, while exercising my
jurisdiction under Section 100 of Civil Procedure Code, I will not be justified in
interfering with the same. The second substantial question of law is also
answered in favour of the respondent and against the appellant.
9.I do not find any substance in the third substantial question of law. If
the wife of the appellant was true stakeholder, nothing stopped her from filing
an application for impleading herself. According to the plaintiff, title as well
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.720 of 2006
the possession remained only with them. If according to the appellant, his wife
had been in possession, the appellant's wife would have got herself impleaded
in the suit proceedings. She had not chosen to do so. Therefore, the Courts
below rightly held that she was not a necessary party. The third substantial
question of law is also answered against the appellant and in favour of the
respondent. I do not find any merit in the second appeal and it stands
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
19.04.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.720 of 2006
To:
1.The Sub Court,
Srivilliputhur
2.The Principal District Munsif Court,
Srivilliputhur.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.720 of 2006
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.720 of 2006
19.04.2021
https://www.mhc.tn.gov.in/judis/
