Madras High Court
K.Sournam vs J.M.Rahamatulla on 24 February, 2021
S.A.No.1482 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2021
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S.A.No.1482 of 2008
K.Sournam ... Appellant
Vs.
J.M.Rahamatulla ... Respondent
Prayer: The second appeal has been filed under Section 100 of C.P.C.
against the judgment and decree dated 01.08.2008 passed in A.S.No.29 of
2007 on the file of the Subordinate Court, Mannargudi, reversing the
judgment and decree dated 14.09.2007 passed in O.S.No.247 of 2005 on the
file of the District Munsif Court, Mannargudi.
For Appellant : Mr.B.Ramamoorthy
For Respondent : Mr.K.Chandrasekaran
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S.A.No.1482 of 2008
JUDGMENT
Challenge in this second appeal is made to the judgment and decree
dated 01.08.2008 passed in A.S.No.29 of 2007 on the file of the
Subordinate Court, Mannargudi, reversing the judgment and decree dated
14.09.2007 passed in O.S.No.247 of 2005 on the file of the District Munsif
Court, Mannargudi.
2.For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
3.The defendant in O.S.No.247 of 2005 is the appellant in this second
appeal.
4.Suit for permanent injunction.
5.Briefly stated, the case of the plaintiff is that the suit property and
the other properties belong to the plaintiff's family ancestrally and by way of
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S.A.No.1482 of 2008
the document No.695/60 dated 05.04.1960, the suit property and the other
properties had been allotted to the plaintiff as 'C' schedule and it is only the
plaintiff, who has been enjoying the suit property by paying kist. Though
the patta stands in the name of the plaintiff's mother and the patta for the
suit survey number has been jointly issued in favour of the plaintiff's
mother, the plaintiff and one Natarajan and the plaintiff has been enjoying
the suit property as described in the plaint by raising coconut and teak trees
and the defendant has no manner of right, title, possession and enjoyment of
the suit property and he is a total stranger and taking advantage of the
plaintiff's living at a distance from the suit property, endeavoured to disturb
the plaintiff's possession and enjoyment of the suit property one way or
other and in that connection, the police complaint has also been lodged and
as the defendant acts persisted, according to the plaintiff, the suit has been
laid for appropriate relief.
6.The defendant resisted the plaintiff's suit contending that the claim
of the plaintiff that the suit property has been in his possession and
enjoyment following the document dated 05.04.1960 as 'C' schedule is
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S.A.No.1482 of 2008
incorrect and considering the property involved in O.S.No.79 of 2003 laid
by the plaintiff's sister, the suit property is not mentioned and when the case
of the plaintiff that the joint patta had been issued in respect of the suit
survey number, his case that he is in the exclusive possession and
enjoyment of the suit property is untenable and the suit property is in the
possession and enjoyment of the defendant and it is only the defendant, who
has been enjoying the coconut and teak trees available in the suit property
and the plaintiff has not placed any document to evidence that he has a valid
title to the suit property and therefore, according to the defendant, the
plaintiff has not entitled to secure the relief prayed for and the suit is liable
to be dismissed.
7.In support of the plaintiff's case, PWs1 & 2 were examined and
Exs.A1 to A6 were marked. On the side of the defendant, DWs1 & 2 were
examined and no documentary evidence has been marked.
8.On a consideration of the oral and documentary evidence adduced
by the respective parties and the submissions put forth, the trial Court was
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S.A.No.1482 of 2008
pleased to dismiss the plaintiff's suit. On appeal by the plaintiff, the first
appellate Court, on an appreciation of the materials available, both oral and
documentary and the submissions put forth by the respective parties, was
pleased to set aside the judgment and decree of the trial Court and by way of
allowing the appeal preferred by the plaintiff, decreed the suit in favour of
the plaintiff as prayed for. Impugning the judgment and decree of the first
appellate Court, the second appeal has been preferred by the defendant.
9.At the time of admission of the second appeal, the following
substantial questions of law were formulated for consideration:
"a.Whether the plaintiff who files a suit
for permanent injunction against the defendant,
who is in possession of the suit property is
entitled for a decree of permanent injunction on
the basis of title?
b.Whether the plaintiff in a suit for
permanent injunction is entitled for a decree
even if he is owner of undivided interest without
sub division and without exclusive possession of
suit property?
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S.A.No.1482 of 2008
c.Whether the onus of proving possession
of suit property is on the plaintiff or defendant in
a suit for permanent injunction?"
10.The suit has been laid simplicitor for the relief of permanent
injunction by the plaintiff. The plaintiff claims title to the suit property by
way of Ex.A1 partition deed dated 05.04.1960 and according to the plaintiff,
the suit property has been allotted to him under Ex.A1 partition deed as 'C'
schedule and since then it is only the plaintiff, who has been in the
possession and enjoyment of the suit property by paying kist etc., and
evidencing his claim of possession and enjoyment, the plaintiff has marked
the Chitta extract and Adangal extract as well as the receipt marked as
Exs.A2 to A6. The defendant, without any entitlement to the suit property,
endeavoured to disturb his possession and enjoyment and hence, according
to the plaintiff, he has been necessitated to lay the suit against the defendant
for the relief of permanent injunction.
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S.A.No.1482 of 2008
11.The defendant would resist the plaintiff's suit contending that the
plaintiff has no title, possession and enjoyment of the suit property and it is
only the defendant, who is in the possession and enjoyment of the suit
property and therefore, the plaintiff's suit is not maintainable and liable to be
dismissed.
12.Considering the evidence adduced in the matter, both oral and
documentary, particularly, the evidence of DWs1 & 2, it is found that as
rightly held by the appellate Court, the plaintiff has title to the suit property
by way of Ex.A1 partition deed and when the defendant's witnesses have
clearly admitted that the suit property belongs to the plaintiff's family, it is
evident that the suit property is in the possession and enjoyment of the
plaintiff's family. Now, according to the plaintiff, the suit property had been
allotted to him in Ex.A1 partition deed, more so, when as held by the first
appellate Court, the defendant herself has admitted that the suit property is
in the joint possession of the plaintiff and his family members impliedly
thereby the title of the plaintiff as one of the coowners of the suit property
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S.A.No.1482 of 2008
having been admitted by the defendant and as above pointed out, when
Ex.A1 partition deed go to show that the suit property had been allotted to
the plaintiff as 'C' schedule, considering the abovesaid facts in toto as held
by the first appellate Court, the plaintiff is found to be the owner or at least
the coowner qua the suit property and in such view of the matter, the
plaintiff as the coowner of the suit property, in my considered opinion, is
entitled to maintain the suit against the defendant for claiming the relief of
permanent injunction.
13.When the defendant has not established her source of her title to
the property and also her claim of possession and enjoyment of the suit
property in any manner and when the defendant has not come forward with
any specific pleas pointing to the same and to capt it all, when the defendant
has failed to place any document to sustain her claim of title, possession and
enjoyment of the suit property in any manner and on the other hand, when
DWs1 & 2 have clearly admitted the title, possession and enjoyment of the
suit property by the plaintiff's family, as reasoned by the first appellate
Court, the first appellate is found to be justified in upholding the
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maintainability of the plaintiff's suit and granting the relief of permanent
injunction as prayed for by the plaintiff.
14.The contention has been raised by the defendant's counsel that the
first appellate Court should not have granted the relief of permanent
injunction in favour of the plaintiff mainly on the basis of the title as
according to him, the plaintiff is only one of the coowners and not
established his exclusive possession and enjoyment of the suit property.
When as above pointed out, the plaintiff has established his claim of title to
the suit property on the basis of Ex.A1 partition deed and the same has also
been admitted by the defendant's witnesses as held by the first appellate
Court rightly and even assuming for the sake of arguments, the plaintiff is
one of the coowners of the suit property, when the coowner is entitled to
maintain the suit for permanent injunction on behalf of the other coowners
and when the defendant has failed to establish her claim of title, possession
and enjoyment of the suit property in any manner, in all, it is found that
considering the abovesaid factors, the plaintiff is not required to seek the
relief of declaration for maintaining the suit and the suit laid by him seeking
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the relief of permanent injunction based on title is found to be legally
sustainable, particularly, when the defendant has not come forward in any
manner as to how she claims title, possession and enjoyment of the suit
property. In such view of the matter, the contention put forth by the
defendant's counsel that the appellate Court should not have upheld the
plaintiff's suit in the absence of the relief of declaration sought for by the
plaintiff, as such, cannot be countenanced.
15.On a reading of the reasonings and conclusions of the first
appellate Court, it is found that the first appellate Court has properly
assessed, analysed and considered the materials placed on record, both oral
and documentary and rightly held that the plaintiff has established his claim
of title, possession and enjoyment of the suit property and the defendant
having failed to establish her claim of title, possession and enjoyment of the
suit properties in any manner and when the judgment and decree of the first
appellate Court are not shown to be perverse, illogical and irrational, in my
considered opinion, no substantial question of law is involved in this second
appeal. Be that as it may, the substantial questions of law formulated in this
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S.A.No.1482 of 2008
second appeal are accordingly, answered against the defendant and in favour
of the plaintiff.
In conclusion, the judgment and decree dated 01.08.2008 passed in
A.S.No.29 of 2007 on the file of the Subordinate Court, Mannargudi,
reversing the judgment and decree dated 14.09.2007 passed in O.S.No.247
of 2005 on the file of the District Munsif Court, Mannargudi, are
confirmed. Resultantly, the second appeal is dismissed with costs.
Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes/No 24.02.2021
Internet:Yes/No
sms
Copy to
1.The Subordinate Court, Mannargudi.
2.The District Munsif Court, Mannargudi.
3.The Section Officer, V.R.Section, High Court, Madras.
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S.A.No.1482 of 2008
T. RAVINDRAN, J.
sms
S.A.No.1482 of 2008
24.02.2021
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