Madras High Court
Krishnan vs Palanisamy on 9 July, 2021
S.A. No.1338 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.07.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
S.A. No.1338 of 2005
1. Krishnan
2. Palaniammal ... Appellants
Versus
1. Palanisamy
2. Raja Gounder
3. Chinnammal
4. Thangavelu
5. Kanthayee
6. Palanisamy
7. Thangavelu
8. Yethu (alias) Raji
9. Raja
10. Chinnathayee
11. Govindammal
12. Madesh
13. Balusamy ... Respondents
(Respondents 4, 12 & 13 given up as
un-necessary parties to this Second Appeal)
Second Appeal filed under Section 100 of the Civil Procedure
code, against the judgment and decree dated 22.01.2004 made in
A.S.No.42 of 2001 (on the file of the subordinate Judge, Sankari)
confirming the judgment and decree dated 29.08.2000 made in O.S.
No.342 of 1996 on the file of the District Munsif Court, Sankari.
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S.A. No.1338 of 2005
For Appellants : M/s. Zeenath Begum
For Respondents : Mr.B.Singaravelu
for R1, R2, R3, R5, R8, R9 to R11
R4, 12, & 13 – Given up
R6 & R7 – Served – No appearance
JUDGMENT
This Second Appeal has been filed challenging the concurrent
findings of the Courts below. The appellants are the plaintiffs in the suit
O.S. No.342 of 1996 on the file of the District Munsif Court, Sankari.
They filed the suit against the respondents / defendants seeking for
permanent injunction restraining the respondents /defendants from
interfering with their peaceful possession and enjoyment of the suit
schedule property.
2. The case of the appellants / plaintiffs is that the appellants
/plaintiffs father had purchased the suit schedule property under the sale
deed dated 18.11.1964, which has been marked as Ex.A1 before the Trial
Court. It is the contention of the appellants/ plaintiffs that the suit
schedule property was the self acquired property of their father, which
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S.A. No.1338 of 2005
was later on inherited by them after his death. However as seen from the
Written Statement filed by the respondents / defendants before the Trial
Court, they have disputed that it is a self acquired property of the
appellants/plaintiffs father. According to them, it is a joint family
property. It is also their case that the appellants / plaintiffs are also
parties to the partition deed, dated 17.06.1998, which has been marked as
Ex.B4 before the Trial Court and the subject matter of the said partition
included the suit schedule property also.
3. Issues were framed by the Trial Court and thereafter, after trial,
the Trial Court by its judgment and decree dated 29.08.2000 passed in
OS No.342 of 1996 dismissed the suit filed by the appellants /plaintiffs.
4. Aggrieved by the judgment and decree dated 29.08.2000 passed
in OS No.342 of 1996, the appellants / plaintiffs filed an appeal before
the Sub Court Sankari in A.S. No.42 of 2001.
5. By judgment and decree dated 22.01.2004, the Lower Appellate
Court in A.S. No.42 of 2001 confirmed the findings of the Trial Court
and dismissed the appeal.
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S.A. No.1338 of 2005
6. Aggrieved by the same, the present Second Appeal has been
filed by the plaintiffs in the suit.
7. Heard Ms. Zeenath Begum, learned counsel for the appellants
and Mr.B.Singaravelu, learned counsel for the contesting respondents.
8. This Court perused and examined the materials and evidence
available on record.
9. This Court while admitting the Second Appeal on 15.12.2005
formulated the following substantial questions of law :
1. When Ex.B4, partition deed shows that in that
partition, the land situated in Survey No.106/2 alone was
allotted to the defendants' branch and when the suit for
injunction is laid only in respect of the property situated in
Survey No.104/1, for which the title deed Ex.A1 stands in the
name of the first plaintiff's father, have not the courts below
committed an error of law in misreading the said partition
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S.A. No.1338 of 2005
deed to conclude that the suit property stands allotted to the
defendants' branch?
2) Is not the judgment of the courts below vitiated in
law when it failed to appreciate the documentary evidence
filed on behalf of the plaintiffs marked as Ex.A3 to A6, which
relate to the suit property, when compared to Ex.B8 to B12
which relate to the property in Survey No.102/6 in their
proper perspective and consequently finding that the
plaintiffs have not established possession?
10. As seen from the pleadings of the respondents / defendants as
well as the Exhibits, which were marked on the side of the respondents /
defendants, they have disputed that the suit schedule property is a self
acquired property of the appellants / plaintiffs father. According to the
respondents/ defendants, even though the sale deed dated 18.11.1964
stands in the name of the appellants / plaintiffs father, the said property
was purchased only out of the joint family funds. Further it is their case
of the respondents / defendants that the appellants /plaintiffs were parties
to the subsequent partition effected under a partition deed dated
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S.A. No.1338 of 2005
17.06.1998 which has been marked as Ex.B4 before the Trial Court
which also included the suit schedule property also. The Trial Court as
well as Lower Appellate Court has concurrently held that in view of the
fact that there is a cloud over the title, a simple bare injunction suit is not
maintainable and the only remedy available to the appellants/ plaintiffs
is to file a suit for declaration claiming ownership of the suit schedule
property.
11. This Court is of the considered view that the concurrent
findings of the Courts below is a correct finding as it is in accordance
with the settled law laid by the Hon'ble Supreme Court in the case of
Anathula Sudhakar vs. Buchi Reddy reported in AIR 2008 SC 2033,
wherein it has been made clear that whenever there is a cloud over a title,
a bare injunction suit is not maintainable without seeking a declaratory
relief for ownership.
12. This Court does not find any infirmity in the findings of the
Courts below. There is no substantial questions of law involved in this
Second Appeal and substantial questions of law formulated by this Court
on 15.12.2005 at the time of the admission of the Second appeal are
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S.A. No.1338 of 2005
answered against the appellants / plaintiffs. Accordingly, the Second
Appeal is dismissed. No costs.
09.07.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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To
1. The Subordinate Judge, Sankari)
2. The District Munsif, Sankari.
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S.A. No.1338 of 2005
ABDUL QUDDHOSE, J.
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S.A. No.1338 of 2005
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