Madras High Court
Madhavasudharasanam vs Kaliaperumal on 23 June, 2021
S.A.No.1624 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.06.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
S.A.No.1624 of 2008
and
C.M.P.No.2077 of 2008
Madhavasudharasanam
...Appellant
versus
Kaliaperumal
...Respondent
Second Appeal filed to set aside the judgment and decree dated
28.03.2002 in A.S.No.163/2000 & Cross Appeal in the Court of
Additional District Judge-cum-Chief Judicial Magistrate, Cuddalore
confirming the judgment and the decree in O.S.No.22/97 on the file of
the Sub Court, Panruti and dated 22.11.2000.
For Appellant : Ms. R. Meenal
For Respondent : No appearance
JUDGMENT
The unsuccessful plaintiff is the appellant before this Court
challenging the judgment and decree of the Courts below in and by
which his relief claimed for permanent injunction has been negatived.
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S.A.No.1624 of 2008
2. The facts upon which the appellant is before this Court are as
follows:
Plaintiff's Case:
3. It is his case that the suit properties were his ancestral
properties. Under a registered partition deed dated 16.03.1969 the
plaintiff's father, his mother and brother had partitioned the property
and the 'B' Schedule property therein was alloted to his father. The
appellant, his father and his only brother constituted a hindu undivided
family and were enjoying the suit property jointly.
4. Meanwhile, a suit was filed by St. Joseph School,
Thirupapuliyur on the file of the Subordinate Judge, Cuddlore to
recover the amount that was due to the School by plaintiff's father.
The suit was decreed and the appellant's father's 1/3rd share was
brought to sale in execution. Even at that time, it is the case of the
plaintiff that the property remained undivided. Thereafter, one
Annamalai had purchased the properties in Court auction. However,
the said Annamalai had not got the property purchased by him divided
by metes and bounds and the appellant would also state that the
delivery of 1/3 rd share pleaded by the said Annamalai is false. It is
the case of the appellant that Annamalai had never taken physical
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S.A.No.1624 of 2008
possession of the property purchased by him. The said Annamalai had
sold a portion of the property purchased by him to the defendant and
the defendant after the purchase started to interfere with the peaceful
possession and enjoyment of the suit property by the plaintiff, thereby
constraining the appellant to file the suit in question namely O.S.No.22
of 1997 on the file of the Sub Court, Panruti.
Defendant's Case:
5. The defense to the above suit was that the respondent's
vendor Annamalai had purchased not only the 1/3rd share in the suit
property but also other items in the auction held on 16.03.1989 which
was confirmed in E.P.No.59 of 1988 on the file of the Sub Court,
Cuddalore.
6. The said Annamalai had taken possession of his 1/3rd share
through process of court on 8.07.1990. The 1/3rd share purchased by
Annamalai was carved out from the larger extent with the help of a
Taluk Surveyor in the presence of plaintiff, his brother and father. The
portion which was alloted to Annamalai is an 1/3rd share on the
western side in the 1st and 3rd item and middle portion in the 2nd
item and the eastern portion in the 4th item. From the date of the
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S.A.No.1624 of 2008
said allotment, Annamalai was in exclusive and absolute possession
and enjoyment of that portion.
7. The respondent's case is that by reason of this allotment
Annamalai was in exclusive possession and enjoyment of 1 acre 47
cents out of the total extent of 4.48 acres in the 1st item, 17 cents out
of 53 cents in the Second item; 12 cents out of 38 cents in the 3rd
item; 74 cents out of 2.22 acres in the 4th item. Thus, the defendant
had purchased an extent of 2.50 acres in all the four survey numbers
with specific boundaries on 17.07.1995 under two registered sale
deeds.
8. The respondent would submit that after his purchase, he had
been in possession of the said property and also got the revenue
records mutated in his name. He had also been paying kist in respect
of the properties from the fasli year 1405. The respondent had also
taken out a plea that the suit was not maintainable since the defendant
is a co- owner and there cannot be an injunction against the co-owner.
Trial Court:
9. The Trial Court had framed an issue as to whether the plaintiff
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S.A.No.1624 of 2008
was entitled to the relief of permanent injunction.
10. The plaintiff had examined himself as P.W.1. One Malayyan
as P.W.2, Samikkannu as P.W.3 and marked Ex. A.1 alone. On the
side of the defendant, the defendant had examined himself as D.W.1
and the original auction purchaser as D.W.2. Exs. B.1 to B.13 were
marked on the side of the respondent.
11. The learned Subordinate Judge, Panruti by judgment and
decree dated 22.11.2000 dismissed the suit.
Appellate Court:
12. Challenging the said judgment and decree, A.S.No.163 of
2000 was filed on the file of the Additional District Judge cum Chief
Judicial Magistrate, Cuddalore. The learned judge also confirmed the
judgment and decree of the Trial Court and challenging the same, the
appellant is before this Court.
Submission:
13. Ms. Meenal, learned counsel for the appellant would submit
that the defendant has not proved that the property had been
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S.A.No.1624 of 2008
partitioned by metes and bounds and that he is in possession of the
same. On the contrary, it is the plaintiff who is in possession and
enjoyment of the said suit property and the possession of the appellant
has been confirmed by P.W.2 and P.W.3. She would submit that the
Courts below having found that respondent has not proved his case of
division of the property ought to have granted the decree for
injunction.
14. Heard the counsel and perused the papers.
Discussion:
15. The Courts below have clearly held that the auction
purchaser Annamalai has been alloted property in each of the items of
the property and possession has been handed over through court in
execution proceedings.
16. This factum has been admitted by the plaintiff. Therefore,
Annamalai, auction purchaser become the co-owner in respect of the
suit property and he had sold the portion of the same to the
defendant, the respondent herein. Therefore, the respondent has also
become the co-owner.
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S.A.No.1624 of 2008
17. It is the a well-settled principle of law that there cannot be
injunction against the co-owner. The respondent and his predecessor
in title are co-owners in the suit schedule property. Therefore, the
Courts below have rightly dismissed the suit for bare injunction.
18. I do not find any substantial question of law for consideration
in the above Second Appeal. Therefore, the Second Appeal stands
dismissed. Consequently, the Miscellaneous petition is closed. No
costs.
23.06.2021
Index: Yes/no
mrn
To
1. The Additional District Judge-cum-Chief Judicial Magistrate,
Cuddalore
2. The Sub Court, Panruti
https://www.mhc.tn.gov.in/judis/
S.A.No.1624 of 2008
P.T.ASHA, J.
(mrn)
S.A.No.1624 of 2008
and
C.M.P.No.2077 of 2008
23.06.2021
https://www.mhc.tn.gov.in/judis/
