Vijayalakshmi vs Anbarasi
2021 Latest Caselaw 5573 Mad

                                                                                   S.A.(MD)No.257 of 2015

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    DATED : 03.03.2021

                                                            CORAM

                             THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

                                               S.A.(MD)No.257 of 2015 and
                                                  MP(MD) No.1 of 2015

                      1.Vijayalakshmi
                      2.Muniyappan                                                        Appellants
                                                               Vs.

                      1.Anbarasi
                      2.Sathish Babu
                      3.Saranya
                      4.Deepak Prabu
                      5.Chellammal
                      6.Pandiyarajan
                      7.Balasubramanian                                                   Respondents

                      Pitchaiammal(Died)
                      (The name of the fourth respondent is amended as 'Deepak Prabu' vide Court order dated
                      17.02.2021, made in CMP Managing Director No.1481 of 2021 in SA(MD) No.257 of 2015,
                      by RSMJ)

                      PRAYER:- Second Appeal filed under Section 100 of Code of Civil
                      Procedure, against the decree and judgment passed on 12.11.2014, made
                      in A.S.No.18 of 2013, on the file of the Additional Sub Court, Dindigul,
                      confirming the judgment and decree passed on 28.11.2012, in O.S.No.
                      251 of 2002, on the file of the Principal District Munsif Court, Dindigul.
                                            For Appellant          : Mr.G.Gomathi Sankar
                                            For R1 to R6           : Mr.H.Lakshmi Sankar
                                            For R7                 : Mr.K.Hema Karthikeyan

                      1/11
http://www.judis.nic.in
                                                                          S.A.(MD)No.257 of 2015



                                                  JUDGMENT

The defendants in O.S.No.251 of 2002 are on appeal,

challenging the judgment and Decree of the Appellate Court in A.S.No.

18 of 2013, which in turn affirms the Judgment and decree of the trial

Court in O.S.No.251 of 2002.

2.The Suit in O.S.No.251 of 2002 was laid by the plaintiffs

seeking permanent injunction restraining the defendants from interfering

with the plaintiff's possession of the suit property. The plaintiffs would

trace the title and possession to the suit property as follows. According

to the plaintiffs, the property originally belonged to Maruthamuthu,

Vedhagiri Pillai and Muthukrishna Pillai, sons of Angamuthu, as

ancestral property. The said brothers entered into an agreement of sale

with one Selvamanoharan on 20.10.1988, for a consideration of

Rs.94,919/- and out of which, a sum of Rs.61,000/- was paid towards

advance. On the death of the said Selvamanoharan, the right under the

agreement devolved on the present plaintiffs, who are his wife, children

and parents.

http://www.judis.nic.in S.A.(MD)No.257 of 2015

2.1.Since the agreement vendors refused to execute the sale

deed upon demand, the plaintiffs sued for specific performance in

O.S.No.13 of 1992. The said suit came to be decreed and sale deed was

also executed in favour of the plaintiff by the Court on 24.02.1995. The

said decree was put in execution in E.A.No.38 of 1996 and the plaintiffs

were put in possession of the property conveyed to them. Claiming that

the defendants who have no right over the property are attempting to

interfere with the possession, the plaintiffs sought for permanent

injunction.

3.The defendants resisted the suit contending that the

brothers namely, Maruthamuthu Pillai, Vedhagiri Pillai and

Muthukrishna Pillai had no right over the property to convey the

property to the plaintiffs. It is also contended that in the Execution

proceedings in O.S.No.13 of 1992, physical possession of the property

was not delivered to the plaintiffs. The defendant would also set up a

title under Ex.B.1 Sale Deed dated 26.03.1984, through which, the

defendants claimed to have purchased the property from one Alamelu

Ammal and others. The defendants also filed an additional written

http://www.judis.nic.in S.A.(MD)No.257 of 2015

statement contending that though the sale deed dated 26.03.1984 refers

to the suit survey Number as TS 351/2 and new No.351/A/3B, the same

is a mistake and it should be read as 353/B/3B. On the above contention,

the defendants are sought for dismissal of the suit.

4.At trial, the second plaintiff was examined as PW 1 one

Ganesan was examined as PW 2. Exs.A1 to A9 were marked. The second

defendant was examined as DW 1 and Exs.B1 to B6 were marked. A

Commissioner was appointed and he filed his report and plan, which are

marked as Ex.C1 and C2.

5.The trial Court upon consideration of evidence on record

concluded that the plaintiffs' vendors were the absolute owners of the

property in question and upon execution of the sale deed by the Court

and upon delivery of the actual physical possession to the plaintiffs, the

plaintiffs are in possession of the property. The claim of the defendants

that the Sale Deed dated 26.03.1984 is erroneous, was rejected by the

Court. The trial Court also found that the vendor of the defendant did not

have title to any portion of the land in Survey No.351/3B. The trial Court

http://www.judis.nic.in S.A.(MD)No.257 of 2015

also relied upon the boundary recitals in the present suit. On the above

conclusion, the learned trial Judge decreed the suit as prayed for.

Aggrieved, the defendants preferred an appeal in A.S.No.18 of 2013. The

learned Appellate Judge upon re-appreciation of the evidence on record,

concurred with the findings of the trial Court and dismissed the appeal.

Hence, this Second Appeal.

6.While admitting the Second Appeal, the following

substantial questions of law have been framed.

i. Whether the lower Appellate Court failed to consider the contention of the appellants that the trial Court failed to render a finding on an issue framed regarding the correctness or otherwise of the description of the suit property?

ii. Whether the Courts below have rendered a perverse finding holding that the property purchased by the plaintiffs under Ex.A1 and the property purchased by the defendants under Ex.B1 were not one and the same?

http://www.judis.nic.in S.A.(MD)No.257 of 2015

iii. Whether the Courts below have committed an error in law in non-suiting the plaintiff in granting injunction, even after holding that the property claimed by the defendants under Ex.P. 1 is different from the suit property?

7.I have heard Mr.Gomathi Sankar, the learned counsel

appearing for the appellant, Mr.Hemakarthikeyan, the learned counsel

appearing for the seventh respondent and Mr.H.Lakshmi Shankar, the

learned counsel appearing for the respondents 1 to 6.

8.Learned counsel appearing for the appellants while

elaborating the questions of law would contend that the trial Court erred

in rendering a finding relating to the identity of the property and it

should not have granted a decree for injunction. He would also

specifically contend that the Appellate Court was not right in not going

into the question of identity of the property. The learned counsel would

further contend that the property purchased by the defendant under

Ex.B1 and the property, subject matter of the suit in O.S.No.13 of 1992

being one and the same, the Courts below ought not to have granted a

http://www.judis.nic.in S.A.(MD)No.257 of 2015

decree for injunction. He would also claim that once it is found that the

properties covered by Ex.A.1 and Ex.B1 are different, there was no

necessity for decree for injunction.

9.Contending contra, Mr.H.Lakshmi Shankar, the learned

counsel appearing for the respondents would submit that the entire

edifice of the defence case stood shattered because of the additional

written statement to the effect that the survey numbers given under

Ex.B1 is a mistake and defendants are entitled to the land in Survey No.

353/B3/B and not in Survey No.351/A/3B, since there is a mistake in the

Sale Deed. Once the defendants plead mistake, it is for them to establish

the mistake. The learned counsel would also point out that there is a total

lack of evidence on the plea of mistake projected in the additional

written statement. They would also contend that the findings of the Court

below that the defendants had not established the plea of mistake and the

defendants have miserably failed to establish that their vendors had title

to some portion of the land in S.No.351/A/3B to have conveyed the same

under Ex.B1.

http://www.judis.nic.in S.A.(MD)No.257 of 2015

10.Considered the submissions on either side.

11.The plaintiffs have sought for decree for injunction, on

the specific plea that the property belonged to the brothers, namely,

Maruthamuthu, Vedhagiri Pillai, Muthukrishna Pillai, sons of

Angamuthu, they had entered into a sale agreement with

Selvamanoharan, a suit was laid by the plaintiffs against three brothers,

which resulted in exparte decree and the fact that the plaintiffs had taken

possession of the property in the execution of the said decree. These

pleas are beyond dispute. It is the contention of the defendants that their

property is also situated within 8629 sq.ft of land covered by the decree

in O.S.No.13 of 1992, the plaintiffs would seek decree in respect of the

land in Survey No.351/A3/B, within the specific boundaries. The

defendants, who plead that there is a mistake in Survey number in the

sale deed dated 26.03.1984 and the fact that they had purchased the land

in Survey No.353/B/3B from their vendors cannot oppose the decree for

injunction in favour of the plaintiffs, unless they prove the mistake. As

rightly pointed out by the learned counsel for the respondents that the

said plea of mistake has not been established. The Advocate

http://www.judis.nic.in S.A.(MD)No.257 of 2015

Commissioner has found that the property in question has now been

assigned TS No.77. It is predominantly a vacant land. The principle

possession follows title can be safely applied to the case on hand. The

trial Court has found that the plaintiffs have established that they are in

possession of the property as described by them in the plaint within four

boundaries. An issue that has been framed regarding the identity of the

property has been answered by the trial Court to the effect that the

defendant has not established that 351/A/3B includes certain extent of

353/B3/A.

12.As regards the second question of law, I am of the

opinion that the second question of law has been framed without taking

into account the pleadings in the additional written statement filed by the

defendants. The defendants in the additional written statement have very

clearly pleaded that what was purchased by them is different from the

suit property, namely, 351/A/3B. They have taken a specific plea in the

additional written statement that there is a mistake in Ex.B.1 and it

should read as 353/B/3B and not as 351/A/3B, which is the categorical

stand taken by the defendant in the additional written statement. It is not

http://www.judis.nic.in S.A.(MD)No.257 of 2015

open to the appellants /defendants to now contend that the property dealt

with in Ex.A1 and Ex.B1 are one and the same. As far as the suit for

injunction is concerned, there is sufficient cause of action. The very fact

that the defendants had projected the case that the delivery effected in

O.S.No.13 of 1992 is not physical delivery and paper delivery would

provide the cause of action for the plaintiff to sue for injunction. The

case of the defendants that their property is situated within 8629 sq.ft of

land as described in plaint schedule has been found to be incorrect. The

third question of law is answered against the appellants. Hence, the

Second Appeal is dismissed. No costs. Consequently, connected

Miscellaneous Petition is closed.

03.03.2021 Index : Yes/No Internet: Yes/No vrn

To

1.The Principal District Munsif Court, Dindigul.

2.The Additional Sub Court, Dindigul,

3.The Section Officer, Madurai Bench of Madras High Court, Madurai.

http://www.judis.nic.in S.A.(MD)No.257 of 2015

R.SUBRAMANIAN, J.

vrn

Judgment made in S.A.(MD)No.257 of 2015 and MP(MD) No.1 of 2015

Dated 03.03.2021

http://www.judis.nic.in