Madras High Court

L.Devaraj … vs Vasantha on 18 January, 2021

                                                                          S.A.Nos.632 and 633 of 1999

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                          RESERVED ON   : 05.08.2021
                                          PRONOUNCED ON : 11.08.2021

                                                     CORAM:

                                   THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                                             SA Nos.632 and 633 of 1999


                     L.Devaraj                                  …..   Appellant in
                                                                       both appeals

                                                     versus
                     1. Vasantha
                     2. Padmanabhan (Died)
                     3. B.Sulochana
                     4. J.Vimala
                     5. S. Kokila
                     6. P. Ashok kumar                          ….    Respondents in

both appeals *RR3 to 6 brought on record as LR's of the deceased 2nd respondent Padmanabhan, vide order of the Court, dated 18.01.2021 made in CMP Nos.5495 to 5497 of 2018 in S.A. No.632 of 1999

*RR3 to 6 brought on record as LR's of the deceased 2nd respondent Padmanabhan, vide order of the Court, dated 18.01.2021 made in CMP Nos.5498 to 5500 of 2018 in S.A. No.633 of 1999

Prayer in S.A. No.632 of 1999 : Second Appeal filed under Section 100 of Civil Procedure Code against the decree and judgment of the II Additional Appellate Court and II Additional District Judge, Coimbatore dated 31.08.98 and passed in A.S. No.124/97 confirming the decree and https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

judgment of the Principal District Munsif Coimbatore, dated 01.04.1997 and passed in O.S. No.756 of 1991

Prayer in S.A. No.633 of 1999 : Second Appeal filed under Section 100 of Civil Procedure Code against the decree and judgment of the II Additional Appellate Court, II Additional Appellate Court and II Additional District Judge, Coimbatore dated 31.08.98 and passed in A.S. No.123/97 confirming the decree and judgment of the Principal District Munsif Coimbatore, dated 01.04.1997 and passed in O.S.No.2747 of

For Appellant in : Ms.K.Janani both appeals for M/s.N.S.Sivakumar

For Respondents in : Mr.N.Sridhar for R1, R3, R5 to R8 both appeals for M/s.V.Sanjeevi Not ready in notice reg.R4

COMMON JUDGMENT

(This case was heard through Video Conferencing)

These Second Appeals have been filed challenging the concurrent

findings of the Courts below.

2.The appellant is the plaintiff in the suit O.S. No.2747 of 1990 on

the file of District Munsif Court, Coimbatore. The said suit was filed for

permanent injunction against the respondents to restrain them from

interfering with the appellant's peaceful possession and enjoyment of the

property at Kallapatti Village, Survey No.337/1 measuring an extent of

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S.A.Nos.632 and 633 of 1999

4.02 acres, hereinafter referred to as the “suit schedule property”.

3.The respondents are the defendants in the said suit. The

respondents Nos.1 and 2 have also filed a separate suit in O.S.No.756 of

1991 against the appellant before the very same District Munsif Court at

Coimbatore seeking for the very same relief of permanent injunction for

the very same suit property.

4.The case of the appellant who is the plaintiff in O.S. No.2747 of

1990 is that he is the son-in-law of Narayanasamy Naidu, who had sold

the suit schedule property to him under a registered sale deed dated

16.04.1981 (Ex.A2). According to the appellant, even after the death of

his father-in-law Narayanasamy Naidu, the appellant and

Narayanasamy's Naidu's son continued to pay the Kist for the suit

schedule property to the Government and they are in possession of the

suit schedule property. However, it is the case of the appellant that the

original of the sale deed dated 16.04.1981 executed in his favour was

retained by his father-in-law Narayanasamy Naidu. It is the case of the

plaintiff that in the schedule to the sale deed dated 16.04.1981, due to a

typographical error, the survey number was wrongly mentioned as GS

No.338 instead of GS No.337. It is the case of the appellant that he had https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

also requested his brother-in-law i.e. Narayansamy's son, his vendor to

rectify the mistake. Since, he did not come forward to rectify the

mistake, it is the case of the appellant that he was forced to file a suit

O.S.No.807 of 1990 against Narayansamy's son N.Selvaraj for the

purpose of rectifying the mistake with regard to the survey number in the

schedule to the sale deed dated 16.04.1981. It is also the case of the

appellant that a judgment and decree dated 26.07.1990 was passed in his

favour in O.S. No.807 of 1990 filed against the appellant's brother-in-law

(son of the deceased Narayanasamy Naidu). According to the appellant,

he has been put in possession of the suit schedule property ever since

16.04.1981 when the sale deed was executed and registered in his favour.

5.It is the case of the appellant that the respondents/defendants

interfered with his peaceful possession and enjoyment of the suit

schedule property by attempting to tresspass into the said property and by

attempting to lay out the same as plots. According to the appellant, the

respondents are total strangers to the suit schedule property.

6.However, it is the case of the respondents, who are the

defendants in the suit O.S. No.2747 of 1990 and the plaintiffs in the suit https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

O.S. No.756 of 1991 that they are the absolute owners of the suit

schedule property. According to them, the appellant is a meddler and an

interloper and is a total stranger to the suit schedule property. According

to them, the first respondent (Vasantha), who is the first plaintiff in O.S.

No.756 of 1991 is the owner of 2.01 acres out of the total extent of 4.02

acres which is the suit schedule property having got the same under the

following documents :

a) V.Rangasamy Naidu purchased the said extent of 18.15 acres along with a larger extent totalling 25.53 acres in various survey fields including S.F.No.337/1 as auction purchaser under Sale certificate dated 28.03.1925 issued by District Munsif Court, Coimbatore in E.P.No.2694/1924 marked as EXA7. The appellant himself admitted during cross examination that the said court auction Sale was not cancelled till date under any other legal proceedings.

b) Sama Naidu’s father Appa Naidu under Sale Deed dated 30.12.1933 (marked as EXA6) purchased an extent of 18.15 acres in various survey fields including S.F.No.337/1 from the said Rangasamy Naidu.

c) Sama Naidu was allotted various land along with S.F.No.337/1 under final decree dated 11.08.1986 (marked as EXB13) passed by District Munsif Court, Coimbatore in a partition suit.

d) The said Sama Naidu executed a registered Will dated 4.3.1988

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(EXB11) in favour of her daughter Vasantha, the first plaintiff by and under which he bequeathed 2.01 acres in S.F.No.337/1 among other properties. Execution of the Will was proved in accordance to the law by examining one of the attestors to the Will by name Mani as DW2.

e) Further other registered documents marked as exhibits B14 dated 15.07.1957, B10 dated 10.04.1961 and B4 dated 23.11.1966 clearly refers that the lands of Sama Naidu in S.F.No.337/1 is the southern half.

7.It is also the case of the respondents that Padmanabhan, the

second respondent herein and the second plaintiff in O.S. No.757 of 1991

is the owner of the remaining extent of 2.01 acres in the suit schedule

property, he having got the same under the following title deeds :

a) Under Partition Deed dated 4.7.1952 (EXB9) one Narayanasamy Naidu was allotted undivided half share measuring 2.01 acres out of the larger extent of 4.02 acres in S.F.No.337/1

b) The said Narayanasamy viz., allotted under EXB9 thereafter executed a registered Settlement Deed dated 15.07.1957 (EXB14) in favour his minor children Govindarajulu, Kanagaraj, Kumuthavalli represented by guardian Mother Bagyalakshmiammal settled the said extent of 2.01 acres and other lands.

c) The said minors viz., settles under EXB14 through their

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S.A.Nos.632 and 633 of 1999

guardian old 2.01 acres on the Northern side on the East West direction out of 4.02 acres in S.F.No.337/1 with specific boundaries to Guruvanavithan under Sale Deed dated 10.04.1961 (EXB10)

d) The said Guruvanavithan sold the said extent of 2.01 acres on the Northern side on the East West direction out of 4.02 acres in S.F.No.337/1 with specific boundaries to Padmanaban under Sale Deed dated 23.11.1966 marked as EXB4.

8.The Trial Court framed issues in both the suits and a joint trial

was conducted.

9.By a common judgment and decree dated 01.04.1997 passed in

O.S. No.2747 of 1990 and O.S. No.756 of 1991, the learned District

Munsif, Coimbatore dismissed the suit filed by the appellant in O.S.

No.2747 of 1990 and decreed the suit in favour of the respondents in

O.S. No.756 of 1991, i.e. the relief of permanent injunction was granted

in favour of respondents and the relief of permanent injunction sought

for by the appellant was rejected.

10.The Trial Court held in the aforesaid common judgment by

giving a finding based on the materials and evidence available on record https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

that the appellant or his alleged vendor did not have any title in SF

No.337/1 measuring 4.02 acres, which is the suit schedule property. The

Trial Court has also given a finding that the decree obtained by the

appellant against his brother-in-law in O.S. No.807 of 1990 is a collusive

decree. The Trial Court has therefore ignored the same and granted the

relief of permanent injunction only in favour of the respondents, who had

sought for the same in O.S. No.756 of 1991, but rejected the relief of

permanent injunction sought for by the appellant, who is the plaintiff in

O.S. No.2747 of 1990. The Trial Court has also in its finding has held

that the sale deed dated 16.04.1981 in favour of the appellant (Ex.A2) is

only a nominal sale deed executed to enable the appellant to file the bare

injunction suit against the respondents in O.S. No.2747 of 1990.

11.Aggrieved by a common judgment and decree dated 01.04.1997

passed by the District Munsif Court, Coimbatore in O.S No.2747 of 1990

and O.S. No.756 of 1991, the appellant, who is the plaintiff in O.S.

No.2747 of 1990 and the defendant in O.S. No.756 of 1991 preferred two

regular first appeals in A.S. Nos.123 of 1997 and 124 of 1997 before the

II Additional District Court, Coimbatore.

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S.A.Nos.632 and 633 of 1999

12.The Lower Appellate Court by its common judgment and

decree dated 31.08.1998 confirmed the findings of the Trial Court in O.S.

No.2747 of 1990 and O.S. No.756 of 1991 and dismissed both the first

appeals.

13.Aggrieved by the same, these Second Appeals have been filed

by the appellant, who is the plaintiff in OS. No.2747 of 1990 and the

defendant in O.S. No.756 of 1991.

14.Since Lower Appellate Court has disposed of A.S.Nos.123 and

124 of 1997 by a common judgment, which is the subject matter of

challenge in these Second Appeals, this Court is also disposing of both

these Second Appeals by a common judgment.

15.This Court at the time of admission of these Second Appeals on

29.04.1991 formulated the following substantial questions of law :

1. Is the suit of the appellant in O.S. No.2747 of 1990 for permanent injunction without a declaration of title bad in law as held by the lower appellate court in para 13 of the judgments especially when the suit of the respondents also in O.S. No.756 of 1991 is only for a https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

permanent injunction without a prayer for declaration of title which has been allowed, when in both the suits title to the suit property has been questioned?

2. When the 1st respondent's father got only an undivided share in 5 Survey Nos. including the suit S.No.337/1 for 5.70 acres out of 29.57 acres as supported by earlier title deeds Ex.A4, A5, A7 and no specific extent in suit S. No.337/1 has been allotted to him under any instrument does the 1st respondent desire title under the will B11 of Sama Naicker giving the 1st respondent 2 acres?

16.Heard Ms.K.Janani, learned counsel for the appellant and

Mr.N.Sridhar, learned counsel for the respondents in both the Second

Appeals.

Submissions of the learned counsels :

17.Ms.Janani, the learned counsel for the Appellant would submit

that originally, the suit schedule property belonged to one

Mr.Narayanasamy Naidu and his son Mr.N.Selvaraj and it is an ancestral

property. According to her, as per the registered mortgage deed dated

10.06.1918 registered as Document No.554 of 1998 (Ex.A1)

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S.A.Nos.632 and 633 of 1999

Mr.Narayana Naidu, the father of the Narayanasamy Naidu was the

owner of the suit schedule property. She would further submit that the

Appellant is the son-in-law of Narayanasamy Naidu who had executed a

sale deed in his favour on 16.04.1981 (Ex.A2) for the suit schedule

property. She would further submit that eversince the sale deed dated

16.04.1981 (Ex.A2), the Appellant/plaintiff is in possession of the suit

schedule property.

18.According to Ms.Janani, learned counsel, the survey number

and the extent was erroneously described as S.No.338/2 and as 5.15 acres

in the sale deed dated 16.04.1981 (Ex.A2) and therefore the

Appellant/plaintiff was constrained to file a suit for declaration and to

correct the survey number and extent against his brother-in-law

N.Selvaraj, who is the son of his father-in-law Narayanasamy Naidu in

O.S.No.807 of 1990. She drew the attention of this Court to the

judgment and decree dated 26.07.1990, passed in O.S.No.807 of 1990

wherein the District Munsif Court at Coimbatore in the said suit has

directed Selvaraj, the brother-in-law of the Appellant/plaintiff and the

son of Narayanasamy Naidu to rectify the sale deed dated 16.04.1981

(Ex.A2) by correcting the survey number and extent from G.S.No.338/2 https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

to No.337/1 and the extent from 5.40 acres to 4.02 acres. Hence she

would submit that the findings of the Courts below that only a deed of

rectification should have been filed and that the decree obtained by the

Appellant/plaintiff on 26.07.1990 in O.S.No.807 of 1990 (Ex.A9) is a

collusive decree is a perverse finding.

19.She would also submit that the reasoning given by the Courts

below that the boundaries in Ex.A1 mortgage deed dated 10.06.1918

executed by Narayanasamy Naidu do not tally with the boundaries of the

suit schedule property is not tenable and is a perverse finding as

according to her, the boundaries will naturally change by efflux of time.

20.Learned counsel for the Appellant would finally conclude her

submissions by submitting that when there is a cloud over the title, it is

settled law that a suit for permanent injunction without seeking a prayer

for declaration is not maintainable. However, according to her, the

Courts below have by total non-application of mind to the settled law

have entertained the suit filed by the respondents in O.S.No.786 of 1991

for a bare injunction and have also erroneously granted permanent

injunction in their favour.

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S.A.Nos.632 and 633 of 1999

21.She would also submit that the Appellant/plaintiff who filed the

suit in O.S.No.2747 of 1990 for a similar relief in respect of the same suit

schedule property was prior in point of time, but however, the Trial Court

has erroneously dismissed the same under the impugned common

judgment by giving a perverse finding that he is not entitled for the relief

of injunction.

22.Per contra, Mr.N.Sridhar, learned counsel representing

Ms.V.Sanjeevi, counsel on record for the respondents at the outset would

submit that the respondents are the absolute owners of the suit schedule

property. He drew the attention of this Court to the title deeds which

were marked as exhibits on the side of the respondents before the Trial

Court to establish their title over the suit schedule property.

23.He would submit that Vasantha the first plaintiff in O.S.No.756

of 1991 and the first respondent in these Second Appeals is the absolute

owner of 2.01 acres in S.F.No.331/7 which is a portion of the suit

schedule property, apart from other properties and her title is traced under

the following documents which were marked as exhibits before the Trial

Court:

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S.A.Nos.632 and 633 of 1999

a) V.Rangasamy Naidu purchased the said extent of 18.15 acres along with a larger extent totalling 25.53 acres in various survey fields including S.F.No.337/1 as auction purchaser under Sale certificate dated 28.03.1925 issued by District Munsif Court, Coimbatore in E.P.No.2694/1924 marked as EXA7. The appellant himself admitted during cross examination that the said court auction Sale was not cancelled till date under any other legal proceedings.

b) Sama Naidu’s father Appa Naidu under Sale Deed dated 30.12.1933 (marked as EXA6) purchased an extent of 18.15 acres in various survey fields including S.F.No.337/1 from the said Rangasamy Naidu.

c) Sama Naidu was allotted various land along with S.F.No.337/1 under final decree dated 11.08.1986 (marked as EXB13) passed by District Munsif Court, Coimbatore in a partition suit.

d) The said Sama Naidu executed a registered Will dated 4.3.1988 (EXB11) in favour of her daughter Vasantha, the first plaintiff by and under which he bequeathed 2.01 acres in S.F.No.337/1 among other properties. Execution of the Will was proved in accordance to the law by examining one of the attestors to the Will by name Mani as DW2.

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S.A.Nos.632 and 633 of 1999

24.Mr.N.Sridhar, learned counsel would then submit that the

remaining portion of the suit schedule property measuring 2.01 acres in

S.F.No.337/1 is absolutely owned by the second respondent

(Padmanabhan)/second plaintiff (deceased). He having got the same

under a sale deed dated 23.11.1966 marked as Ex.B4 before the Trial

Court.

25.He also drew the attention of this Court to the various exhibits

marked on the side of the respondents before the Trial Court which traces

the title of Padmanabhan, the second respondent/second plaintiff

(deceased) to the extent of 2.01 acres in S.F.No.332/1 and the documents

are as follows:

a) Under Partition Deed dated 4.7.1952 (EXB9) one Narayanasamy Naidu was allotted undivided half share measuring 2.01 acres out of the larger extent of 4.02 acres in S.F.No.337/1.

b) The said Narayanasamy viz., allotted under EXB9 thereafter executed a registered Settlement Deed dated 15.07.1957 (EXB14) in favour his minor children Govindarajulu, Kanagaraj, Kumuthavalli represented by guardian Mother Bagyalakshmiammal settled the said extent of 2.01 acres and other lands.

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S.A.Nos.632 and 633 of 1999

c)The said minors viz., settles under EXB14 through their guardian old 2.01 acres on the Northern side on the East West direction out of 4.02 acres in S.F.No.337/1 with specific boundaries to Guruvanavithan under Sale Deed dated 10.04.1961 (EXB10).

d)The said Guruvanavithan sold the said extent of 2.01 acres on the Northern side on the East West direction out of 4.02 acres in S.F.No.337/1 with specific boundaries to Padmanabanunder Sale Deed dated 23.11.1966 marked as EXB4.

26.After drawing the attention of this Court to the various exhibits

marked on the side of the respondents, Mr.Sridhar, learned counsel would

submit that the respondents are the absolute owners of the suit schedule

property and they have also proved that they are in possession of the

same.

27.He then drew the attention of this Court to the judgment and

decree dated 26.07.1990 passed in O.S.No.807 of 1990 in favour of the

Appellant/plaintiff against his brother-in-law Selvaraj wherein a

mandatory direction was issued by the District Munsif Court, Coimbatore

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S.A.Nos.632 and 633 of 1999

to the Appellant's brother-in-law to rectify the schedule under the sale

deed dated 16.04.1981 (Ex. A2) by correcting the survey number and

extent of the property as S.F.No.337/1 instead of S.F.No.338/2 and 4.02

acres instead of 5.15 acres. He would submit that the said decree is a

collusive decree as the respondents were not made party in the said

proceedings and behind their back, the said decree was fraudulently

obtained by the Appellant/plaintiff.

28.He drew the attention of this Court to the findings of the Courts

below and would submit that the Courts below have rightly given a

finding that the Appellant/plaintiff is an interloper and meddler having no

right and interest in the suit schedule property and the decree obtained by

him in O.S.No.807 of 1990 is a collusive decree. He would further

submit that having conclusively proved their title over the suit schedule

property, there is no necessity for the respondents to seek the relief of

declaration as submitted by the learned counsel for the Appellant.

According to him, there is no cloud over the title of the suit schedule

property since the respondents have proved their title by virtue of the title

deeds marked as exhibits on their side before the Trial Court.

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S.A.Nos.632 and 633 of 1999

29.In support of his submissions, Mr.N.Sridhar, learned counsel

drew the attention of this Court to the oft quoted judgment of the Hon'ble

Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy

(Dead) by LRs. and Ors. reported in AIR 2008 SC 2033 and in particular

he would refer to paragraph No.17(d) of the said judgment and would

submit that Hon'ble Supreme Court has categorically held that when

persons having clear title and possession suing for injunction should not

be driven to the costlier and more cumbersome remedy of a suit for

declaration, merely because some meddler vexatiously or wrongfully

makes a claim or tries to encroach upon their property.

30.Mr.N.Sridhar, learned counsel would submit that since the

Appellant/plaintiff is a meddler and an interloper with regard to the suit

schedule property, the suit for bare injunction filed by the respondents in

O.S.No.786 of 1991 before the District Munsif Court at Coimbatore is

perfectly valid and the Courts below have also rightly held the suit to be

maintainable and the relief for permanent injunction in favour of the

respondents was also rightly granted. According to him, there is

absolutely no perversity in the findings of the Courts below which calls

for any interference by this Court under Section 100 CPC. https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

31.He would further submit that the factual issues have been duly

and rightly considered by the Courts below. According to him, there is

absolutely no substantial question of law involved in these Second

Appeals.

Discussion:

32.Before the Trial Court, the Appellant in the joint trial in

O.S.Nos.2747 of 1990 and 786 of 1991 has filed 11 documents which

were marked as Exs.A1 to A11. The Appellant claims ownership of the

suit schedule property pursuant to the sale deed dated 16.04.1981

executed by Narayanasamy Naidu in his favour which has been marked

as Ex.A2.

33.Admittedly, the schedule to Ex.A2 sale deed dated 16.04.1981

mentions the survey number as S.F.No.338 and the extent as 5 acres and

15 cents. Whereas, the survey number and extent of the suit schedule

property is different. The survey number of the suit schedule property is

S.No.337/1 and its extent is 4.02 acres. The Appellant traces his title to a

mortgage deed dated 10.06.1918 which has been marked as Ex.A1. The

said mortgage deed dated 10.06.1918 (Ex.A1) executed by Chinnappan https://www.mhc.tn.gov.in/judis/

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alias Narayana Naicken, who the Appellant claims to be his father-in-law

Narayanasamy Naidu's father. As seen from the mortgage deed dated

10.06.1918 (Ex.A1), there is no reference as to how Chinnappan alias

Narayana Naicken became the owner of the properties which included

the property comprised in S.F.No.337/1. The sale deed dated 16.04.1981

(Ex.A2) executed by Narayanasamy Naidu in favour of the Appellant

does not also pertain to S.F.No.337/1 and the extent is also different. As

observed earlier, it pertains to S.F.No.338 and the extent mentioned in

that sale deed is 5.15 acres, whereas the suit schedule property is

comprised in S.F.No.337/1 and its extent is 4.02 acres. Eventhough, the

Appellant would allege that Narayanasamy Naidu, the seller under his

sale deed dated 16.04.1981 (Ex.A2) is his father-in-law, no oral and

documentary evidence has been produced by him before the Trial Court

to prove his relationship with Narayanasamy Naidu.

34.Admittedly, in the suit O.S.No.807 of 1990 filed by the

Appellant against his brother-in-law N.Selvaraj, the respondents were not

parties to the said suit. In the said suit, by a judgment and decree dated

26.07.1990, a mandatory direction has been issued to the brother-in-law

(N.Selvaraj) to rectify the schedule under the sale deed dated 16.04.1981 https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

(Ex.A2) by correcting the survey number as S.F.No.337/1 instead of

S.No.338/2 and also by correcting the extent of the land as 4.02 acres

instead of 5.15 acres. The respondents have produced before the Trial

Court their title deeds which have been marked on their side as exhibits

to prove their ownership of the suit schedule property. The Trial Court as

well as the Lower Appellate Court has also given a finding that the

respondents are the absolute owners of the suit schedule property. This

being the case, they are certainly necessary parties in O.S.No.807 of

1990. However, the Appellant has chosen to exclude the respondents as

party defendants in the suit O.S.No.807 of 1990 for the reasons best

known to him. Admittedly, only behind the back of the respondents, the

judgment and decree dated 26.07.1990 was obtained in favour of the

Appellant in O.S.No.807 of 1990. Before the Trial Court, the

respondents have traced their title over the respective portions under the

suit schedule property through various title deeds which will indicate that

they are the absolute owners of the suit schedule property. Both the

Courts below have concurrently held that Padmanabhan and Vasantha are

the owners of their respective portions in the suit schedule property.

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35.Before the Trial Court, the respondents have filed the following

documents to prove the title of Vasantha and Padmanabhan over their

respective properties:

(A) Vasantha (first respondent)

a) V.Rangasamy Naidu purchased the said extent of 18.15 acres along with a larger extent totalling 25.53 acres in various survey fields including S.F.No.337/1 as auction purchaser under Sale certificate dated 28.03.1925 issued by District Munsif Court, Coimbatore in E.P.No.2694/1924 marked as EXA7. The appellant himself admitted during cross examination that the said court auction Sale was not cancelled till date under any other legal proceedings.

b) Sama Naidu’s father Appa Naidu under Sale Deed dated 30.12.1933 (marked as EXA6) purchased an extent of 18.15 acres in various survey fields including S.F.No.337/1 from the said Rangasamy Naidu.

c) Sama Naidu was allotted various land along with S.F.No.337/1 under final decree dated 11.08.1986 (marked as EXB13) passed by District Munsif Court, Coimbatore in a partition suit.

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S.A.Nos.632 and 633 of 1999

to the law by examining one of the attestors to the Will by name Mani as DW2.

(B) Padmanabhan (second respondent deceased)

a) Under Partition Deed dated 4.7.1952 (EXB9) one Narayanasamy Naidu was allotted undivided half share measuring 2.01 acres out of the larger extent of 4.02 acres in S.F.No.337/1.

b) The said Narayanasamy viz., allotted under EXB9 thereafter executed a registered Settlement Deed dated 15.07.1957 (EXB14) in favour his minor children Govindarajulu, Kanagaraj, Kumuthavalli represented by guardian Mother Bagyalakshmiammal settled the said extent of 2.01 acres and other lands.

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S.A.Nos.632 and 633 of 1999

d)The said Guruvanavithan sold the said extent of 2.01 acres on the Northern side on the East West direction out of 4.02 acres in S.F.No.337/1 with specific boundaries to Padmanabanunder Sale Deed dated 23.11.1966 marked as EXB4.

36.The Trial Court has gone into the title of the suit schedule

property after examining the aforementioned documents as well as the

documents filed by the Appellant which has been marked as exhibits and

only thereafter has come to the categorical conclusion that the suit

schedule property is absolutely owned by the respondents and that the

Appellant has no right and interest over the same. The Courts below

have also rightly given a finding that the judgment and decree dated

26.07.1990 obtained by the Appellant in O.S.No.807 of 1990 is a

collusive decree as the respondents who are the absolute owners of the

suit schedule property were not made parties to the said suit, despite the

fact that they are claiming ownership of the very same property. Having

obtained a decree behind the back of the respondents though, they are

necessary parties, the Courts below have concurrently and correctly held

that the judgment and decree dated 26.07.1990 is a collusive decree and

therefore both the Courts below have rightly ignored the same. Having https://www.mhc.tn.gov.in/judis/

S.A.Nos.632 and 633 of 1999

conclusively proved their title over the suit schedule property, there is no

necessity for them to file a suit for declaration as the Appellant/plaintiff

is only a meddler and an interloper having no right and interest over the

suit schedule property.

37.The principles laid down by the Hon'ble Supreme Court in

Anathula Sudhakar case referred to supra will infact support the case of

the respondents when they have conclusively proved their title over the

suit schedule property. The Hon'ble Supreme Court in paragraph

No.17(d) in Anathula Sudhakar's case referred to supra has held as

follows:

17….

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a

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S.A.Nos.632 and 633 of 1999

claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

38.In the case on hand also, the respondents through their

pleadings and oral and documentary evidence have conclusively

established their title over the suit schedule property and therefore, they

need not be driven to the costlier and more cumbersome remedy of a suit

for declaration as claimed by the Appellant as he is only a meddler and

an interloper having no right and interest over the suit schedule property.

39.Both the Courts below have given their findings only based on

the materials and evidence available on record and there is no perversity

in the same which calls for any interference by this Court under Section

100 CPC. There are no debatable issues of law involved in these Second

Appeals and the factual issues have been adequately and correctly

considered by the Courts below.