Madras High Court
M.L.Veerabathiran (Died) vs Kothandaraman on 27 January, 2021
S.A.No. 873 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on Judgment pronounced on
23.8.2021 27.08.2021
CORAM
THE HON'BLE Mr. JUSTICE ABDUL QUDDHOSE
S.A.No. 873 of 2007
and
M.P.No. 1 of 2007
1.M.L.Veerabathiran (Died)
2.Indirani
3.V.Nanjammal
4.V.C.Chandrakanthan
5.V.Mangala Gouri
6.V.Babu Rajasekaran
7.V.Nagarathinam
8.V.Sridharan
9.V.Saraswathi ..Appellants
(Appellants 3 to 9 brought on record as LRs of the
deceased 1st Appellant viz., M.L.Veerabathiran
vide Order of this Court dated 27.01.2021)
Vs
Kothandaraman,
S/o Kandasamy,
Rep.by his power agent,
Ragan, ..Respondent
Prayer:- Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 13.06.2007, made in A.S.No. 41 of 2006
on the file of the Sub-Court, Tirupattur in reversing the judgment and
decree dated 06.02.2006, made in O.S.No.1328 of 1993 on the file of
the District Munsif Court, Tirupattur.
1/17
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S.A.No. 873 of 2007
For Appellants : Ms.Abirami
for V.Raghavachari
For Respondent : Mr.K.Dharnidharan
*****
JUDGMENT
This Second Appeal has been filed challenging the reversal
findings given by the lower appellate court namely Sub Court,
Tirupattur by judgment and decree dated 13.06.2007 passed in
A.S.No. 41 of 2006 by which the findings of the trial Court namely
District Munsif Court, Tiruppatur by judgment and decree dated
06.02.2006 in O.S.No. 1328 of 1993 was reversed and the suit came
to be decreed in favour of the plaintiff.
2. The appellants 3 to 9 are the legal representatives of the
deceased 1st appellant who is the 1st defendant in the suit in O.S. No.
1328 of 1993 on the file of the District Munsif Court, Tiruppattur. The
2nd appellant is the 2nd defendant in the said suit. The suit was filed by
the respondent/plaintiff against the defendants for permanent
injunction, restraining the defendants from interfering with the
peaceful possession and enjoyment of the property situated in North
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S.A.No. 873 of 2007
Arcot District, Tiruppatur Taluk, Amman Kovil Village and comprised in
survey no. 168/A1 measuring to an extent of 0.30 acres out of 2.22
acres, hereinafter referred to as the suit schedule property.
3. In the forth coming paragraphs the parties are described as
per their litigative status in the suit.
4. The case of the plaintiff is that the suit schedule property
along with other properties originally belonged to Poova Chettiar, S/o.
Nallappa Chettiar, he having got the same under a sale deed dated
20.11.1933 registered as document No. 3587/1933. It is the case of
the plaintiff that Poova Chettiar after his purchase was in possession of
the suit schedule property by paying the Kist.
5. It is the case of the plaintiff that during the lifetime of Poova
Chettiar, the properties belonging to him were divided orally between
Poova Chettiar and his sons and Poova Chettiar was allotted the land
measuring 1.46 acre in Survey No.1687/A1.
6. It is the case of the plaintiff that after the death of Poova
Chettiar, his three sons namely 1. Arunachalam, 2. Kandasamy and 3.
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S.A.No. 873 of 2007
Kanniyappa Chettiar inherited his properties as his legal heirs.
According to the plaintiff, the sons of Poova Chettiar namely
Arunachalam, Kandasamy and Kanniappa Chettiar have partitioned the
properties orally in the year 1976. According to the plaintiff, under the
oral partition, Kandasamy Chettiar was allotted 0.60 Cents in Survey
No. 168/A1. After the death of Kandasamy Chettiar, his two sons
namely Kothandaraman and Panbanathan orally partitioned 60 cents
(0.30 cents each) inherited by them from their late father Kandasamy
Chettiar in the year 1980. According to the plaintiff, Kothandaraman is
in possession and enjoyment of 30 cents in survey no. 168/A1, which
is the suit schedule property and he has absolute right over the same.
7. It is the case of the plaintiff that K. Kothandaraman executed
a General Power of Attorney on 22.09.1993 in his favour for disposing
of the suit schedule property by executing a sale deed and receiving
sale consideration. According to the plaintiff ever since the date of
execution of the power of attorney dated 22.09.1993, he has been in
possession and enjoyment of the suit schedule property. But according
to him, on 29.09.1993, the defendants attempted to tresspass into the
suit schedule property and take forcible possession of the same from
the plaintiff. In the aforementioned circumstances, the plaintiff had
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S.A.No. 873 of 2007
filed the suit in O.S.No. 1328 of 1993 seeking for permanent injunction
against the defendants not to interfere with his peaceful possession
and enjoyment of the suit schedule property.
8. The defendants have filed written statement and denied the
allegations of the plaintiff. According to the defendants, Arunachalam,
Kandasamy and Kanniappa Chettiar and their descendants are in
possession of other properties including the suit schedule property for
more than 50 years. According to them, there was no oral partition in
the year 1980 as alleged by the plaintiff in the plaint.
9. It is the case of the defendants that the plaintiff has concocted
a false story only for the purpose of filing a false suit against the
defendants. In the written statement, they have also denied that the
power of attorney dated 22.09.1993 was executed by Kothandaraman
in favour of Rangan/Plaintiff.
10. It is the case of the defendants that the 1 st defendant has a
flour mill in the suit schedule property ever since 1996 and he has
been paying all the taxes for the suit schedule property.
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S.A.No. 873 of 2007
11. It is also the case of the defendants that Kandasamy Chettiar
had four children out of his 1st wife and two daughters out of his 2nd
wife. One of the 2nd wife's child by name Panbanathan has not been
made as a party to the suit and hence the suit has to be dismissed for
non joinder of necessary parties.
12. The trial Court framed 12 issues and after trial, dismissed
the suit in O.S.No. 1328 of 1993 by judgment and decree dated
06.02.2006 on the following grounds;
(a). The suit filed by the plaintiff's father Kothandaraman in O.S.No.
1216 of 1993 was dismissed and hence filing a fresh suit in O.S.No.
1328 of 1993 for the same cause of action will amount to res-
judicata.
(b). Ex.B36 to Ex.B51 marked on the side of the defendants will
prove that the defendants are in possession of the suit schedule
property. No documentary evidence has been produced by the
plaintiff to prove his title over the suit schedule property and hence,
the plaintiff who claims to be the power of attorney holder of
Kothandaraman has no locus-standi to file a suit against the
defendants in respect of the suit schedule property.
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S.A.No. 873 of 2007
(c) In the deposition of DW1, he had deposed that Poova Chettiar's
2nd son Kandasamy had three wives. He had deposed that 1 st wife
of Kandasamy did not have any issues, the 2nd wife had 4 children
namely Viswanathan, Sampoornammal, Manickammal and Chandra
and through his 3rd wife, he had four children namely 2 sons and 2
daughters. Since the plaintiff had not cross examined on the
aforementioned statement of DW1 relating to the legal heirs of
Kandasamy, the trial Court has given a finding that the
aforementioned persons are in fact the legal heirs of Kandasamy
having interest over the suit schedule property and are necessary
parties.
(d). Ex.B6 and Ex.B3 will prove that the suit schedule property has
been alloted only to the family members of Arunachalam. Ex.B6 is
the judgment dated 30.08.1991 passed in O.S.No. 714/1998.
Ex.B3 is the judgment passed in O.S.No. 1216 of 1993 which is
against the interest of the plaintiff and it pertains to the very same
suit schedule property.
(e). The settlement deed dated 19.10.1992 has been executed by
Radhammal in favour of Indirani/2nd defendant which has been
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S.A.No. 873 of 2007
marked as Ex.B28 which will reveal that the property in survey no.
168/1B/2D has been settled only in favour of the 2nd defendant.
(f). The plaintiffs have not filed any title deed standing in their
name but only filed sale deed dated 20.11.1933 standing in the
name of Poova Chettiar, which has been marked as Ex.A1 before
the trial Court.
(g). The judgment and decree passed in O.S.No. 743/1988 and
O.S.No. 1523 of 1991 which have been marked as Exs.A4 and A7
respectively have attained finality as the same have not been
challenged by filing appeal. Ex.B6 reveals that the disputed
property in the said suit bears patta no.264 and survey no.
168/A/1B and the new survey number as survey no. 168/A/1B,2D
and new patta number as 524 and the land in the suit schedule
property in O.S.No. 1328/1983 is also situated in survey no.
168/A1/1B, 2B. Hence, the plaintiff cannot once again file a suit for
the very same relief that was rejected earlier under Exs.B3 and B4.
(h).The plaintiff has not filed any documents before the Court to
show as to how he became entitled to the suit schedule property.
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S.A.No. 873 of 2007
He has also not filed any documents to prove his possession over
the suit schedule property. Since the defendants have denied the
oral partition, the claim of the plaintiff that he is possession of the
suit schedule property has to be rejected.
(i) The Judgment passed in O.S.No. 714/1988 and O.S.No.
1216/1983 and pata standing in the name of 2nd defendant
(Ex.B29) will prove that the defendants are in possession of the suit
schedule property.
(j)The other legal heirs of Kandasamy Chettiar have not been made
as party defendants in the suit and therefore for non-joinder of
necessary parties, the suit will have to be dismissed.
(k). Having not proved their title over the suit schedule property,
the plaintiff is not entitled for permanent injunction as prayed for in
the suit.
13. Aggrieved by the judgment and decree dated 06.02.2006
passed by the District Munsif Court, Tiruppattur in O.S.No. 1328 of
1993, the plaintiff in the said suit preferred a regular first appeal
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S.A.No. 873 of 2007
before the Sub Court, Tiruppatur in A.S.No. 41 of 2006. By judgment
and decree dated 13.06.2007 in A.S. No. 41/2006, the lower appellate
court namely Sub Court, Tiruppattur reversed the findings of the trial
Court and allowed the appeal filed by the plaintiff and decreed the suit
in favour of the plaintiff by giving the following reasons;
(a). The power of attorney holder Rangan and his father
Kothandaraman are in possession of the suit schedule property as
tenants and they are entitled to the relief of permanent injunction
till they are evicted by following the due process of law.
(b). The lower appellate Court has relied upon Ex.A3 to Ex.A10 and
came to the conclusion that the plaintiff is in possession of the suit
schedule property.
(c) Even though the defendants have filed documents to show that
ever since 1961, the descendants of Arunachala Chettiar have
dealt with the property and there has been mutation of revenue
records through Patta, Chitta, Adangal and Encumbrance
Certificate and Tax receipts, the plaintiff who is in legal possession
of the schedule property can be evicted only by due process of law.
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S.A.No. 873 of 2007
(d) Since the plaintiff is in possession of the suit schedule property,
he is entitled for grant of permanent injunction in his favour.
14. Aggrieved by the reversal findings of the lower appellate
court in judgment and decree dated 13.06.2007 passed in A.S.No. 41
of 2006, the present Second Appeal has been filed.
15. At the time of admission of this Second appeal on
31.08.2007, the following substantial questions of law were formulated
by this Court ;
1. Whether the suit filed by the plaintiff's power agent as
against the true owner is maintainable in law, when
admittedly the plaintiff's predecessor was held to have no
interest over the suit property?
2. Whether the court below ought not to have rejected the
claim of the plaintiff as barred by resjudicata in view of the
judgment and decree in O.S.No.No.1216 of 1983?
16. The trial Court in its judgment and decree dated 06.02.2006
passed in O.S.No. 1328/1993 has categorically given a finding that the
plaintiff has not proved his possession over the suit schedule property.
Admittedly there were prior suits over the suit schedule property and
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S.A.No. 873 of 2007
as per the judgment and decree passed in O.S.No. 1216 of 1983 and
O.S.No. 714 of 1988 which have been marked as Exs.B3 and B6, the
said judgments are adverse to the interest of the plaintiff. No appeal
has been filed as against those judgments and hence the findings
given by the Court in those judgments have attained finality.
17. Before the trial Court, the plaintiff has filed 10 documents,
which have been marked as Exs.A1 to A10 and the defendants have
filed 51 documents, which have been marked as Ex.B1 to B51. The
trial Court has considered the oral and documentary evidence and only
thereafter, has come to the right conclusion that the plaintiff has not
proved his possession over the suit schedule property and therefore he
is not entitled to the relief of permanent injunction as prayed for in the
plaint.
18. Before the trial Court, the defendants have filed various
documents which includes Kist receipts, Patta standing in the name of
the 2nd defendant for the suit schedule property and house tax receipts
for the suit schedule property. The defendants have also filed a copy
of judgment passed in O.S.No.714 of 1998 and in O.S.No. 1216 of
1983 and the findings given in those judgments are adverse to the
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S.A.No. 873 of 2007
interests of the plaintiff. As seen from the evidence available on
record, there is a cloud over the title of the suit schedule property.
The Lower appellate Court in its judgment and decree dated
13.06.2007 passed in A.S.No. 41 of 2006 has reversed the findings of
the trial Court despite the findings given by the trial court that several
documents have been filed by the defendants to prove their title over
the suit schedule property. The lower appellate court has reversed the
findings of the trial court only on the ground that the plaintiff who is in
legal possession of the suit schedule property can be evicted by the
defendants only by following due process of law. The Lower Appellate
Court without any pleadings to that effect in the plaint, has
erroneously treated the plaintiff and his father Kothandaraman as
tenants in the suit schedule property. The plaint averments will clearly
reveal that the plaintiff is not a tenant. When there is absolutely no
pleading that the plaintiff is a tenant, the lower appellate court has
erroneously by total non application of mind to the pleadings and
evidence available on record, has reversed the well considered findings
of the trial Court in its judgment and decree dated 06.02.2006 passed
in O.S.No.1328 of 1993. The trial Court has framed 12 issues based
on the pleadings and has given its well considered findings holding that
the plaintiff is not in possession of the suit schedule property.
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S.A.No. 873 of 2007
19. In Anathula Sudhakar Vs. P.Buchi Reddy (Dead)by LRs
and Others reported in (2008) 4 SCC 594 the Hon'ble Supreme
Court held that when cloud is raised over the plaintiff's title and he
does not have possession, suit for declaration and possession with or
without consequential injunction is the remedy and a simple suit for
bare injunction is not maintainable.
20. In the case on hand, it is seen from the evidence available
on record, that the plaintiff has been unable to prove that he is in
possession of the suit schedule property. On the other hand, the
defendants have produced various documents which have been
marked as Exs.B1 to B51 before the trial Court in support of their
contention that they are the owners and in possession of the suit
schedule property. Unless and until a comprehensive suit for
declaration of title is filed by the plaintiff, in a simple suit for bare
injunction that too when there is a cloud over his title and possession,
the plaintiff is not entitled to seek for injunction alone without seeking
a declaratory relief.
21. The judgment relied upon by the learned counsel for the
respondent in the case of A.S.Subramanian and another, appellant
versus R. Pannerselvan, respondent rendered by the Hon'ble Supreme
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S.A.No. 873 of 2007
Court in Civil Appeal No.9472 of 2010 on 8.02.2021 does not have any
bearing for the facts of the instant case as in the instant case, the
plaintiff has been unable to proove through documentary evidence that
he is in possession of the suit schedule property. In the case of
A.Subramanian and another relied upon by the learned counsel for the
respondent, referred to supra, the possession of the plaintiff over the
property was established and admitted by the defendants which is not
so in the case on hand.
22. For the foregoing reasons, the substantial questions of law
formulated by this Court at the time of admission of this Second
Appeal are answered in favour of the appellants/defendants by holding
that the suit filed by the respondent/plaintiff for bare injunction
restraining the defendants from interfering with the peaceful
possession and enjoyment of the suit schedule property is not
maintainable in view of the fact that the pleadings and the
documentary evidence produced by the defendants conclusively proves
that there is a cloud over the title of the suit schedule property and
therefore the only remedy available to the plaintiff is to file a suit for
declaratory relief to declare himself as the absolute owner of the suit
schedule property and having not chosen to file such a suit, the
present suit seeking for bare injunction alone is not maintainable. The
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S.A.No. 873 of 2007
judgment passed in O.S.No. 1216 of 1983 which is adverse to the
interest of the plaintiff has also not been pleaded in the plaint and the
plaint was also not amended subsequent to the filing of the written
statement to incorporate the plaintiff's case insofar as the other suit in
O.S.No. 1216 of 1983 is concerned. Hence this Court is of the
considered view that the lower appellate court ought not to have
reversed the well considered findings of the trial Court in judgment and
decree dated 06.02.2006 in O.S.No. 1328 of 1993 and therefore the
impugned judgment of the lower appellate court has to be set aside by
this Court. By total non application of mind to the materials and
evidence available on record as well as to the settled law as laid down
by the Hon'ble Supreme Court in Anathula Sudhakar's case, the lower
appellate court has erroneously reversed the findings of the trial court
by decreeing the suit in favour of the plaintiff.
23. In the result, the impugned judgment and decree dated
13.06.2007 passed by the lower appellate Court viz., Sub Court,
Tiruppatur in A.S.No. 41 of 2006 is hereby set aside and the Second
Appeal is allowed by confirming the findings of the trial court dated
06.02.2006, made in O.S.No.1328 of 1993 on the file of the District
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S.A.No. 873 of 2007
Munsif Court, Tirupattur, which has dismissed the suit. Consequently,
connected Miscellaneous Petition is closed.
27.08.2021
Index: Yes / No
Internet: Yes
Speaking order/non-speaking order
ak
To
The Sub Court,
Tirupattur.
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S.A.No. 873 of 2007
ABDUL QUDDHOSE, J.
vsi2
Pre-Delivery Judgment in
S.A.No. 873 of 2007
and
M.P.No. 1 of 2007
27.08.2021
https://www.mhc.tn.gov.in/judis/
