Madras High Court
P.Padmavathy vs Indira on 1 February, 2021
S.A.(MD)No.53 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.02.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.53 of 2021
and
C.M.P.(MD)No.572 of 2021
G.Balasubramanian (Died)
1.P.Padmavathy
2.Gurukesav
3.Gengavardhini : Appellants
Vs.
Indira : Respondent
PRAYER:- Second Appeal filed under Section 100 of Code of Civil Procedure,
to set aside the judgment and decree passed in A.S.No.34 of 2014 by the
Subordinate Court, Kovilpatti, dated 08.01.2020 confirming the judgment and
decree passed in O.S.No.65 of 2011 by the District Munsif Court, Kovilpatti,
dated 06.06.2014 and consequently decree the suit with costs throughout.
For Appellants :Mr.M.L.Ramesh
****
JUDGMENT
The legal heirs of the plaintiff in O.S.No.65 of 2011 have come with this
second appeal.
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S.A.(MD)No.53 of 2021
2.The suit was laid by the deceased plaintiff seeking a bare injunction
restraining the defendant from interfering with his possession, contending that
he has been in possession of the property, despite the sale deed, dated
20.10.2004 executed by him in favour of the defendant. The claim of the
plaintiff was that the sale deed was not intended to be acted upon, but, it was
executed as a security for a borrowing made by the plaintiff. The fact that the
building situated in the suit property was not made a part of the sale deed was
also taken as a ground to buttress the contention of the plaintiff that the sale
deed, dated 20.10.2004 was not acted upon. The dismissal of the suit filed by
the defendant seeking recovery of arrears of rent was also projected as a ground
to justify the claim of the plaintiff for an injunction.
3.The suit was resisted by the defendant contending that the sale deed
was a genuine document and the omission of the building was only an accident.
It was also claimed that there is no finding in the earlier suit in O.S.No.83 of
2008 laid by the defendant for recovery of arrears of rent regarding the
relationship of landlord and tenant. The defendant would claim that the said
suit was dismissed on the ground that she had not sought for declaration of her
title in the said suit.
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S.A.(MD)No.53 of 2021
4.Pending suit, the sole plaintiff died and his legal heirs were brought on
record as plaintiffs 2 to 4.
5.At trial, the second plaintiff, Padmavathy, was examined as PW-1 and
Ex-A1 to A13 were marked. The defendant was examined as DW-1 and Ex-B1
to B8 were marked.
6.The trial Court, upon a consideration of the evidence on record,
concluded that the plaintiff though in possession, is not entitled to a decree for
injunction, as his possession is without title. The trial Court also applied the
principles of law that a person, who is in illegal possession, is not entitled to an
injunction against the true owners. Aggrieved, the plaintiffs preferred an appeal
in A.S.No.34 of 2014. The learned Appellate Judge, upon a reconsideration of
the evidence on record, concurred with the findings of the trial Court and
dismissed the appeal. The application in I.A.No.4 of 2006 filed seeking to
receive additional document was allowed and the order of this Court in W.P.
(MD)No.3559 of 2010 and W.P.(MD)No.1 of 2010 was marked as Ex-B9.
Aggrieved, the plaintiffs have come with this second appeal.
7.I have heard Mr.M.L.Ramesh, learned Counsel appearing for the
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S.A.(MD)No.53 of 2021
appellants.
8.Mr.M.L.Ramesh, learned Counsel appearing for the appellants would
vehemently contend that non-inclusion of the building in the suit property in the
sale deed, dated 20.10.2004 would justify the claim of the appellants that the
sale deed was not intended to be acted upon or it was a forged instrument. It is
his further contention that in view of the dismissal of the suit in O.S.No.83 of
2008, which is a suit for recovery of arrears of rent, the plaintiffs' possession
being a settled one, the defendant cannot evict them, except under due process
of law.
9.I have considered the submissions of the learned Counsel for the
appellants.
10.The Courts below have rejected the claim of the plaintiffs that the sale
deed, dated 20.10.2004 is not a valid instrument of transfer. Once the land is
sold, the building also stood conveyed, according to the Courts below. The suit
is one for a bare injunction restraining the defendant from evicting the plaintiffs,
except under due process of law. Admittedly, there is a sale deed executed by
the deceased first plaintiff in favour of the defendant, dated 20.10.2004, which
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S.A.(MD)No.53 of 2021
conveys the suit property. No doubt, the building is not included therein. The
suit filed by the defendant for recovery of arrears of rent was dismissed by the
trial Court on the conclusion that there is a genuine dispute regarding title and it
is for the plaintiff in the said suit, namely the defendant herein, to have sued for
declaration of title. The same analogy would apply to the present suit filed by
the plaintiffs seeking a bare injunction. They have not sought for a declaration
that the sale deed executed by them is invalid. The settled principle of law is
that when there is a serious dispute about title, that lingers, there cannot be a
suit for bare injunction. If that principle is applied, then the present suit is also
liable to be thrown out on the ground that the present plaintiffs have not sued
for declaration of their title.
11.I, therefore, do not find any perversity in the findings of the Courts
below. I do not see any questions of law, much less a substantial question of
law arising for consideration. The second appeal fails and accordingly, it is
dismissed. No costs. Consequently, connected miscellaneous petition is closed.
Internet: Yes/No 01.02.2021
cmr
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S.A.(MD)No.53 of 2021
To
1.The Subordinate Judge, Kovilpatti.
2.The District Munsif, Kovilpatti.
3.The Section Officer,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.53 of 2021
R.SUBRAMANIAN, J.
cmr
Judgment made in
S.A.(MD)No.53 of 2021
01.02.2021
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