Madras High Court
J.Munavar Sulthana vs A.Kuthupullah Sha on 21 January, 2021
S.A.(MD)No.89 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)No.89 of 2015
Mahaboob John Begam (Died)
1. J.Munavar Sulthana
2. Shajathi Begam
3. Mehajabeen
4. Shamim
5. Nasim
6. Mumtaj
7. Mehaboob Begam
8. Shanaj
9. Sharmili ... Appellants/
(Appellants 2 to 9 are 2 to 10 defendants
represented through
1st appellant as Power Agent)
versus
A.Kuthupullah Sha ... Respondent/
Plaintiff
Second Appeal filed under Section 100 of the Civil Procedure Code,
against the Judgment and decree dated 09.09.2014 passed in A.S.No.90 of
2013 on the file of the Principal Sub-Court, Madurai, confirming the Judgment
and Decree dated 19.10.2012 passed in O.S.No.268 of 2007 on the file of the
District Munsif, Madurai.
For Appellants : Mr.T.C.S.Thillai Nayagam
for M/s.C.Vakeeswaran
For Respondent : Mr.V.Meenakshi Sundaram
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S.A.(MD)No.89 of 2015
JUDGMENT
The defendants in O.S.No.268 of 2007, who suffered a decree for
bare injunction at the hands of the Court below, have come up with this second
appeal. The suit was laid by the plaintiff seeking permanent injunction,
contending that a larger extent of the suit property along with other properties
belonged to his grand father, Ismail Gani Rauthar, who died leaving behind his
two sons, Sikkander Rowther and Abdul Rahuman. Both the sons effected
partition among themselves on 17.10.1983 by way of a registered instrument.
Under the said partition, the suit property, measuring about 1 acre 64 cents in
S.No.158/4 was allotted to the share of the plaintiff's father Abdul Rahman.
2. It is claimed by the plaintiff that his father Abdul Rahman died on
25.03.1996 and thereafter, the plaintiff has been in possession and enjoyment
of the property. Claiming the defendants who were strangers of the property
are attempted to interfere with his possession, the plaintiff filed the suit for
injunction.
3. The defendants resisted the suit, contending that the suit property
originally belonged to one Makhdhoon Ibrahim Sahib, who purchased the
same from Karuppiah Pillai Vagaiyara under a sale deed dated 03.03.1942 and
the said Makhdhoon Ibrahim Sahib, subsequently, sold an extent of 1 acre
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S.A.(MD)No.89 of 2015
65 ½ cents each to one Maajaan Beebi and Aameena Beevi under two sale
deeds dated 21.11.1944. It is also claimed that the father of the first defendant,
Gulam Dasthahir Sahib, purchased the entire extent of 6 acres 62 cents from
Makhdhoon Ibrahim Sahib, Aameena Beebi and Majan Beebi, under a sale
deed dated 30.04.1947. It is also claimed that the property was the subject
matter of the partition between the first defendant and her two brothers, which
took place on 25.08.1966. In the said partition, the suit property was shown as
5th item of the B schedule. An extent of 3 acres 30 cents was allotted to the
first defendant and an extent of 1 acre 66 cents was allotted to Kadhar Ahemad
Batcha. It is also claimed that the boundaries mentioned in the partition would
clearly reveal that the suit property was belonged to the family of the
defendants and they had been in possession of the property. Subsequent to
that, the documents executed by the heirs of Kadhar Ahemad Batcha were also
relied to prove title.
4. At trial, the plaintiff was examined as P.W.1 and Exs.A1 to A15
were marked. The second defendant was examined as D.W.1 and Exs.B1 to
B10 were marked.
5. The trial Court, upon consideration of the evidence on record,
found that Ex.A1-Settlement Register coupled with Ex.A2-Partition Deed and
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S.A.(MD)No.89 of 2015
subsequent revenue records marked as Exs.A4, A5 and A6, established the title
and possession of the plaintiff. On the claim of the title made by the
defendants, the trial Court found that none of the documents, produced by the
defendants, namely, Exs.B1 to B6, contained the survey number of the
property dealt with under those instruments. They only refer to a patta number
with certain specific boundaries. Therefore, the trial Court concluded that the
absence of survey number would make all the difference and these documents
cannot be taken as documents relating to the suit property. On the said
conclusion, the learned trial Judge decreed the suit as prayed for. Aggrieved,
the defendants preferred an appeal in A.S.No.90 of 2013. The lower Appellate
Court, upon re-consideration of the evidence on record, concurred with the
findings of the trial Court and dismissed the appeal. Hence, the second appeal.
6. The following substantial questions of law were framed at the
time of admission.
(i) Whether the Courts below are right in appreciating the document
marked on the side of the appellants/defendants (i.e.) Ex.B4 to B6, warrants
interference?
(ii) Whether the Courts below are right in appreciating the document
marked on the side of the Appellants/Defendants in Ex.B4 to B6 which did not
contain Survey Number, but, it contains only the boundaries, whether the
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S.A.(MD)No.89 of 2015
boundaries prevail when there is a dispute in Survey number, warrants
interference?
(iii) Whether the Courts below are right in holding that the suit for
permanent injunction is maintainable, when there is a title in dispute raised by
the Appellants/Defendants, warrants interference under Section 41(h) Specific
Relief Act?
7. Mr.T.C.S.Thillai Nayagam, learned counsel appearing for the
appellants would vehemently contend that the Courts below were not right in
concluding that the suit for permanent injunction would be maintainable in the
absence of the relief of declaration of title. He would also submit that the
Courts below had erred in concluding that the plaintiff has proved title in the
absence of any proof of ownership of the plaintiff's predecessor-in-interest of
the suit property. The learned counsel would further contend that the Courts
below were not right in rejecting Exs.B4 to B6 on the ground that they do not
contain the survey number of the suit property.
8. Per contra, Mr.V.Meenakshisundaram, learned counsel appearing
for the respondent would submit that Ex.A1-Settlement Register stood in the
name of the plaintiff's grand father and there was a subsequent partition in the
year 1983 between the plaintiff's father and his brother. The settlement
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S.A.(MD)No.89 of 2015
Register as well as the partition deed referred to the suit survey number and
the extent was mentioned as 1 acre 64 cents. He would also point out that the
subsequent documents, namely, Exs.A4, A5 and A6-patta and chitta extract
would show that the plaintiff has been in continuous possession of the
property. He would also point out that the attack on Ex.A3 has been rejected
by the trial Court on the ground that the subsequent document proved that
there is a sub division effected under Ex.A3.
9. I have considered the rival submissions.
10. No doubt, the defendants set up title themselves over the suit
property. The rule that when the defendant disputed the title and set up the
title themselves, in the suit for permanent injunction, the plaintiff should
amend the plaint and seek the relief of declaration, is not absolute, as held by
the Hon'ble Supreme Court in Anathula Sudhakar vs. P.Buchi Reddy (Dead)
by LRs. And others, reported in 2008 (4) SCC 594. Only in the cases where
there is a doubt as to title, the Court can drive the plaintiff to file a suit for
declaration. But, in the case on hand, the plaintiff has come to the Court with a
specific claim, tracing his title through the Settlement Register (Ex.A1), the
Partition Deed (Ex.A2) and other revenue records Exs.A3 to A7. These
documents prima facie established the title of the plaintiff. On the other hand,
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S.A.(MD)No.89 of 2015
the documents produced by the defendants do not contain any survey number
and refer to the patta number. Therefore, the Courts below have rightly
rejected those documents on the ground that the defendants have not
established that those documents related to the suit property. The subsequent
documents produced by the defendants would show that they have sought to
include the said survey number, namely, No.158/4B only in the year 2000 for
the first time in the Power Deed that was marked Ex.B7. Therefore, the Courts
below are justified in rejecting those documents on the ground that it has not
been established that they related to the suit property. Hence, the substantial
question of law Nos.1 and 2 are answered against the appellants.
11. In my view, the suit cannot be said to be not maintainable in the
absence of a prayer for declaration of title. The 3rd substantial question of law
is also answered against the appellants. In view of the answers to the
questions of law as above, the Second Appeal fails and it is accordingly
dismissed. No costs.
21.01.2021
Index : Yes / No
Internet : Yes / No
ogy
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S.A.(MD)No.89 of 2015
R.SUBRAMANIAN, J.
ogy
To
1. The Principal Sub-Court,
Madurai.
2. The District Munsif,
Madurai.
S.A.(MD)No.89 of 2015
21.01.2021
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