Madras High Court
Lakshmi Ammal vs Sivaprakasam on 22 October, 2021
SA NO.443 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22 / 10 / 2021
CORAM:
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SECOND APPEAL NO.443 OF 2017
Premananda (Died)
1.Lakshmi ammal
2.Goutham
3.Prathap ... Appellants
Vs.
Rajeswari ammal (Died)
1.Sivaprakasam
2.Nithyakalyani
3.Anjalakshi
4.Paramasivam
5.Kalaivani
6.M/s.VVA Properties Pvt. Ltd.,
Represented by its Director
Having Registered Office at
No.9, Crescent Street,
ABM Avenue, Chennai - 600 028.
(The petitioner in CMP No.11397/2021
impleaded as R6 vide Court order dated
30.09.2021 made in CMP No.11397/2021
in SA No.443/2017) ... Respondents
1/14
SA NO.443 OF 2017
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code
against the judgment and decree dated 26.08.2016 passed in A.S.No.75/2009
(CPPT SC A.S.No.119/2005 dated 26.08.2016 on the file of the Subordinate
Judge Court at Tambaram) confirming decree and judgment in
(O.S.No.403/1984 on the file of District Munsif Court, Poonamallee, re-
numbered as O.S.No.85 of 1997 order dated 29.10.1999 passed by the
District Munsif cum Judicial Magistrate Court at Alandur.
For Appellants : Mr.P.Subba Reddy
For Respondents : Mr.Srinath Sridevan
JUDGMENT
Unsuccessful plaintiffs are the appellants in the present Second
Appeal.
2.Plaintiffs filed a Suit for permanent injunction against the
defendants. According to them, they are the absolute owners of the Suit
property, which was purchased by the first plaintiff's grandfather
P.P.Thangavelu Chettiar. The said Thangavelu Chettiar was in absolute
possession and enjoyment of the Suit property among other properties and
SA NO.443 OF 2017
after his death, the plaintiffs are in absolute possession and enjoyment of the
Suit property till date. Other than them, no one else has got any right, title,
interest or possession over the Suit property. The first defendant claiming
herself as legal heir of one Anjalakshmi Ammal, who is no more now, alleges
right over the property, whereas, the first defendant as well as Anjalakshmi
Ammal were not in possession. The plaintiffs fenced the property on all four
sides and the defendants attempted to trespass therein. Defendants 3 to 6
claim to have purchased the property attempted to dispossess the plaintiffs on
01.04.1984 and hence, the Suit.
3.In the written statement, the defendants denied all the
allegations and contended it as re-litigation. The Suit property was purchased
by the first defendant's brother Sachidanandam on 16.06.1925. He died
intestate in the year 1939 leaving behind his mother Anjalakshmi Ammal as
his only surviving legal heir. Thus, the mother of the first defendant became
the absolute owner and was in absolute possession and enjoyment of the Suit
property. Since the grandsons of the said P.P.Thangavelu Chettiar, who is the
SA NO.443 OF 2017
husband of the second plaintiff and father of the third and fourth plaintiffs
attempted to interfere with her possession, she filed a Suit in O.S.No.260 of
1968 for declaration of title and permanent injunction and for alternative
recovery of possession. On appeal by the plaintiffs predecessor, their claim of
adverse possession was decreed. This Court in S.A.No.1256 of 1973 set aside
the decree of adverse possession and restored the decree of the Trial Court
and granted the prayer for declaration of title and permanent injunction
against the second plaintiff, who was the second defendant therein, the
husband of the second plaintiff and father of the third and fourth plaintiffs.
The first defendant being the legal heir of Anjalakshmi Ammal became the
absolute owner and in possession of the Suit property. Patta stands in the
name of the first defendant. The possession of the plaintiffs denied. The
cause of action alleged is false. There is no question of trespass as alleged on
01.04.1984. The plaintiffs live in a different place and filed the Suit on false
allegations and hence, the Suit is liable to be dismissed.
SA NO.443 OF 2017
4.The Trial Court after framing appropriate issues and after
elaborate trial had categorically found that as per the admission of fourth
plaintiff as P.W.1 and Ex.B5, the first defendant is proved to be the legal heir
of Anjalakshmi Ammal and was in possession of the Suit property. It was
also held that the Suit is hit by resjudicata and dismissed the Suit. On appeal,
the appellants herein projected their case taking support of the dismissal of
the execution proceedings filed for substitution of the first defendant as legal
heir of Late Anjalakshmi Ammal. The First Appellate Court has considered
the arguments advanced and held that in the absence of detailed order copy in
the execution proceedings and in view of the findings rendered by this Court
with regard to possession and enjoyment in its judgment and decree in
S.A.No.1256 of 1973 dated 05.10.1977 the contentions of the appellants are
not material to decide the appeal and confirmed the findings of the Trial
Court. Aggrieved over the same, the present Second Appeal has been
preferred.
SA NO.443 OF 2017
5.At the outset, Exs.A3 and A4 disclose the fact that there was
previous litigation with regard to the same subject matter, between the same
parties and it was decided on merits and the appellants / plaintiffs were non-
suited for their claim by the highest Court of this Country. Suppression of
fact is writ large. The Hon'ble Supreme Court in T.ARIVANANDAM VS.
T.V.SATYAPAL AND ANOTHER [1977 (4) SCC 467] has held as under:
“5.We have not the slightest hesitation in
condemning the petitioner for the gross abuse of the process
of the court repeatedly and unrepentently resorted to. From
the statement of the facts found in the judgment of the
High Court, it is perfectly plain that the suit now, pending
before the First Munsif's Court, Bangalore, is a flagrant
misuse of the mercies of the law in receiving plaints. The
learned Munsif must remember that if on a meaningful-not
formal-reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right to sue,
be should exercise his power under Or. VII r. 1 1 C.P.C.
taking care to see that the ground mentioned therein is
SA NO.443 OF 2017
fulfilled. And, if clever, drafting has created the illusion of a
cause of action, nip it in the bud at the first hearing by
examining the party searchingly under Order X C.P.C. An
activist Judge is the answer to irresponsible law suits. The
trial court should insist imperatively on examining the party
at the first bearing so that bogus litigation can be shot
down at the earliest stage. The Penal Code (Ch. XI) is also
resourceful enough to meet such men, and must be triggered
against them. In this case, the learned Judge to his cost
realised what George Bernard Shaw remarked on the
assassination of Mahatma Gandhi:
"It is dangerous to be too good."
On this ground alone, the appellants are not entitled to any consideration.
6.Secondly, the contention that the first respondent herein is not
the legal heir is belied by the admission of P.W.1 during cross examination.
Both the Courts have considered the above aspect and had given a well
considered findings, which could not be repudiated by the appellants.
SA NO.443 OF 2017
7.Thirdly, it was categorically held that Exs.A13 and A14
documents produced by the appellants as proof of their possession were
fabricated as it does not contain the seal and signature of the authority
claimed to have issued the same and it was further held that those documents
were fabricated for the purpose of the Suit. Apart from the same, it is
categorically found that this Court in S.A.No.1256 of 1973 had set aside the
findings of the First Appellate Court with regard to adverse possession
claimed by the appellants herein and declared that the predecessor of the first
respondent was in possession. Ex.B5 substantiates the possession in the
hands of the first respondent Rajeswari Ammal. This finding of fact is based
on material evidence.
8.Fourthly, it is noted from the additional typed set of documents
filed by the appellants that on 21.04.1979 in C.R.O.P.No.171 of 1974, the
Sub-Court, Chengalpattu, had enhanced the compensation in favour of the
predecessors of the appellants. It is also noted that an execution petition was
filed by Late Anjalakshmi Ammal in E.P.No.425 of 1980. It is very crucial to
SA NO.443 OF 2017
note that the relief prayed in the execution petition was that proclamation of
injunction under Order XXI Rule 32(1) CPC. Sub-rule 1 of Rule 32 of Order
XXI reads as under:
" 32. Decree for specific performance for restitution of
conjugal rights, or for an injunction
(1) Where the party against whom a decree for the
specific performance of a contract, or for restitution of
conjugal rights, or for an injunction, has been passed, has
had an opportunity of obeying the decree and has wilfully
failed to obey it, the decree may be enforced in the case of a
decree for restitution of conjugal rights by the attachment of
his property or, in the case of a decree for the specific
performance of a contract or for an injunction by his
detention in the civil prison, or by the attachment of his
property, or by both."
9.The above sub-rule enables a party who has obtained an order
of injunction in his favour to enforce the same. At no stretch of imagination,
SA NO.443 OF 2017
can it be construed that the execution petition is one filed for recovery of
possession. As rightly held by the First Appellate Court, the dismissal of
execution application without production of any detailed order cannot be
considered as material to decide the appeal overlooking the declaration
confirmed by this Court in S.A.No.1256 of 1973. This Court has taken
judicial notice of the affidavit and petitions filed before the execution court
and of the considered opinion that the findings of the First Appellate Court is
correct and legal and thereby affirm the same. Hence, the judgments relied on
by the appellants in KARNATAKA BOARD OF WAKF VS.
GOVERNMENT OF INDIA AND OTHERS [2004 (10) SCC 779];
L.N.ASWATHAMA AND ANOTHER VS. P.PRAKASH [2009 (13) SCC
229] and KANNAPPAN VS. PARGUNAN AND 9 OTHERS [2000 (II) CTC
219] are not applicable to the facts and circumstances of this appeal. Thus,
the main contention projected by the learned counsel that the respondents
have not taken over possession in the manner known to law or by due process
of law is without basis. This Court has categorically set aside the findings of
adverse possession claimed by the appellants in the previous litigation and on
SA NO.443 OF 2017
the other hand, recognised the possession of mother and predecessor of the
first respondent. It is substantiated by Ex.B5 patta issued in favour of the first
respondent. Therefore, this appeal is nothing but re-litigation, by suppressing
the material facts, thereby absolute exploitation of due process of law,
malafide and liable to be struck off. It is well settled principle that possession
follows title. This Court not only declared title but also found that the first
respondent's mother was in possession and granted injunction against the
present second appellant and father of third and fourth appellants, through
whom they claim title. One can get an injunction against the whole world but
not against a true owner. The appellants knowing well that they do not have
title, on the other hand, they have suffered a decree against the first
respondent over the title of the Suit property have come forward with a Suit
for bare injunction on false and illusory cause of action and hence, they are
not entitled to any relief.
10.The legal notice dated 21.03.2019 enclosed in the additional
typed set of papers filed by the appellants evidences the fact that the
SA NO.443 OF 2017
subsequent purchaser of the property is in possession of the Suit property.
When it is admitted that the appellants are not in possession of the Suit
property, on the other hand, the subsequent purchaser of the first respondent
is in possession, the Suit itself becomes infructuous and appellants have to
work out their remedies in the manner known to law.
11.The questions of law raised in the Memorandum of Grounds
of Second Appeal impliedly questions the title of the respondents. The Suit
filed by the appellants is for bare injunction and not for declaration of title. If
the doctrine of estoppel is to be applied, it shall emanate from the dispute
raised for declaration of title. Having suffered a decree for title, the
appellants cleverly maneuver this case to get undue advantage. The course
adopted by the appellants is sheer abuse of process of law. The questions
raised in the above appeal are not questions of law emanating the facts and
circumstances of this case, but they are question of facts, much less there is
no substantial question of law arising to admit the Appeal.
SA NO.443 OF 2017
12.The Second Appeal merits no consideration for admission
and accordingly, the same is dismissed. No costs.
22 / 10 / 2021
Index : Yes/No
Internet : Yes/No
Speaking / Non-speaking order
TK
To
1.The Subordinate Judge
Subordinate Court
Tambaram.
2.The District Munsif cum Judicial Magistrate
District Munsif cum Judicial Magistrate Court
Alandur.
SA NO.443 OF 2017
M.GOVINDARAJ, J.
TK
SECOND APPEAL NO.443 OF 2017
22 / 10 / 2021
