Madras High Court
R.Ramalakshmi Ammal vs Thiruvarangathammal on 22 November, 2021
S.A(MD)No.703 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.703 of 2009
and
M.P(MD)No.1 of 2009
R.Ramalakshmi Ammal ... Appellant/Appellant/2nd Defendant
Vs.
1.Thiruvarangathammal
through her power agent
S.Maruthaiah Thevar ... 1st Respondent/1st Respondent/Plaintiff
2.Anthonisami
3.Alaguduraichi ... Respondents 2 & 3/Respondents 2 & 3/
Defendants 1 & 3
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 31.03.2009 passed in
A.S.No.28 of 2007, on the file of the Principal Subordinate Court,
1/10
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
Tenkasi, confirming the judgment and decree dated 04.08.2006 passed in
O.S.No.558 of 2005 on the file of the Additional District Munsif Court,
Tenkasi.
For Appellant : Mr.D.Srinivasa Raghavan
For Respondents : Mr.M.Mohamed Ibram Saibu
for M/s.Ajmal Associates - R1 & R2
Given up - R3
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.
558 of 2005 by the Additional District Munsif Court, Tenkasi and in
A.S.No.28 of 2007, by the Principal Subordinate Court, Tenkasi, are
being challenged in the present second appeal.
2. The first respondent / plaintiff has instituted a suit in
O.S.No.558 of 2005, on the file of the trial Court for the relief of
permanent injunction, wherein, the present appellant has been shown as
the second defendant.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
3. In the plaint, it is averred that the plaintiff's husband
S.Maruthiah Thevar as the power agent of the plaintiff. Defendants 2
and 3 are the daughters of the plaintiff's brother namely, Raja @
Periyasami Thevar. The suit schedule property and other properties are
originally belonged to one S.K.Ramasamy Thevar, who is the father of
the plaintiff and her elder brother namely, Raja @ Periyasami Thevar.
After the death of her father, an oral partition was entered into between
the plaintiff and her brother and that a registered partition deed, dated
07.07.1976 was entered into between them and that the fifth schedule
property mentioned in the registered partition deed, which is the subject
matter of the present suit, was allotted to the plaintiff and she is in
possession and enjoyment of the same, from then. The second
defendant/ present Appellant had filed a suit in O.S.No.213 of 2003
impleading the plaintiff as fourth defendant and that the plaintiff then
only came to know that only limited interest alone has been given to her
in the suit schedule property and the suit filed by the second defendant
was dismissed and that the appeal in A.S.No.133 of 2004 filed against
O.S.No.213 of 2003 was also dismissed. Hence, the suit was filed for
permanent injunction.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
4.In the written statement filed on the side of the second
defendants, there are several deeds registered in the Pavoorchatram Sub
Registrar Office with respect to the suit schedule property and the claim
of the plaintiff has become infructuous and that the relief as claimed by
the plaintiff is not maintainable. The second defendant denied the false
contentions of the plaintiff and therefore, prayed for dismissal of the suit.
5. Before the trial Court, on the side of the plaintiff, the
plaintiff's power agent examined himself as P.W.1 and Exs.A1 to A7
were marked. On the side of the defendants, one Ramaiah was examined
as D.W.1 and Exs.B.1 to B.6 were marked.
6. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has decreed the suit in favour of the first
respondent / plaintiff.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
7. Aggrieved by the Judgment and decree passed by the trial
Court, the first defendant as appellant, had filed an Appeal Suit in
A.S.No.28 of 2007. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court. Challenging the said concurrent Judgments and decrees passed
by the Courts below, the present second appeal has been preferred at the
instance of the first defendant, as appellant.
8.While admitting the Second Appeal, the following
substantial questions of law have been framed for consideration :-
1) Whether the Courts below are right in holding the
plaintiff is entitled for decree of permanent
injunction when there is no proof or evidence to
show that the defendants are not interfering with the
position or admitting to sale of the property and they
have only vested interest ? and
2) Whether the Courts below are right in granting a
decree of permanent injunction permitting the
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
plaintiff who is not in a position that 40% of the
property is already plotted and sold by the first
defendant ?
9. Heard the learned counsel for the appellant and the
learned counsel for the respondents and also perused the materials
available on record.
10.The second appeal has been filed for setting aside the
judgment and decree, dated 31.03.2009 passed in A.S.No.28 of 2007 by
the Principal Subordinate Court, Tenkasi, confirming the judgment and
decree of the trial Court in O.S.No.558 of 2005. dated 04.08.2006 by the
Additional District Munsif Court, Tenkasi.
11.The Appellant submits that the Courts have granted
relief of injunction as prayed for by the plaintiff, even after holding that
the plaintiff is only having limited interest over the suit schedule
properties as per Exs.A.1, A.3 and Exs.B.7 and B.8 and the said interest
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
is only for limited interest, for life. If life interest has been given to her
and the appellant, the second respondent shall not disturb her possession
regarding the said house property alone. The limited interest till her life
time was only granted and hence, the appeal suit has also been decided in
favour of said Thiruvarangathammal.
12.Now learned counsel for the appellant submit that
connected Second Appeal in S.A.(MD)No.661 of 2007 filed by
Thiruvarangathammal as appellant / first defendant. The appellant
counsel namely, one Ramesh @ Ramiah had informed the Court that the
sole appellant passed away and the legal heirs are not interested to come
on record and the Second Appeal is dismissed as abated. This Second
Appeal has been filed by the second defendant alone and submits that as
the life interest alone has been given to Thiruvarangathammal and the
said Thiruvarangathammal is no more, the life interest become abated
and the other question relating to the sharing of the property between the
legal heirs of the said Thiruvarangathammal brother’s children will be
sort out by them in a separate proceedings or amicably.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
13.In view of the above said submission made by the
learned counsel for the appellant, who has produced the death certificate
issued on 22.09.2014 by the Executive Officer & Birth & Death
Registration, Keelapavoor Town Panchayat, which proves that the said
Thiruvarangathammal is no more. This Court is of the view that the
Second Appeal need not be pursued further and the Second Appeal can
be disposed of with the aforesaid findings and it is left open to the
parties to work out their remedy in the manner known to law, if any
dispute arises. The substantial questions of law are ordered accordingly.
14.With the above observations, the Second Appeal is
disposed of. No costs. Consequently, connected Miscellaneous Petition
is closed.
22.11.2021
Index : Yes/No
Internet : Yes/No
rm
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Principal Subordinate Court,
Tenkasi.
2.The Additional District Munsif Court,
Tenkasi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.703 of 2009
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.703 of 2009
22.11.2021
https://www.mhc.tn.gov.in/judis
