P.Krishnan ... 2Nd Defendant / 2Nd ... vs Sankara Gomathi
2021 Latest Caselaw 18411 Mad

                                                                                  S.A.No.992 of 2003

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 08.09.2021

                                                      CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               S.A.No.992 of 2003

                   P.Krishnan                   ... 2nd Defendant / 2nd Respondent / Appellant

                                                      -Vs-


                   1.Sankara Gomathi
                   2.Maharasi
                   3.Chinnadurai
                   4.Ramkumar
                   5.Cithra
                   6.Muthu Pandi                       ... Plaintiffs / Appellants / Respondents
                    (R2 to R5 declared as majors and the guardianship is discharged
                       as per order dated 06.03.2019 in C.M.P(MD)No.10437 of 2018)


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree dated 13.11.2002 rendered in
                   A.S.No.19 of 2000 on the file of the Subordinate Judge, Ambasamudram,
                   reversing the judgment dated 25.04.2000 rendered in O.S.No.262 of 1996
                   on the file of the District Munsif, Cheranmahadevi.
                                      For Appellant          : Mrs.P.Jessi Jeeva Priya
                                      For R1                 : Mr.S.Kumar
                                      For R2 to R5           : Mr.K.Esakki

https://www.mhc.tn.gov.in/judis/


                   1/10
                                                                               S.A.No.992 of 2003



                                                   JUDGMENT

This second appeal arises out of an injunction suit. The second

defendant is the appellant herein. The respondents 1 to 5 herein filed

O.S.No.251 of 1995 on the file of the District Munsif Court,

Ambasamudram claiming the relief of permanent injunction against the

appellant. The suit property is an agricultural land measuring 90 cents.

It originally belonged to the parents of the first defendant Muthupandi.

Muthupandi is none other than the husband of the first plaintiff and the

father of the other plaintiffs. The suit properties were settled in favour of

Muthupandi vide Ex.B7, dated 06.04.1983. Thereafter, Muthupandi had

executed Ex.A3-settlement deed dated 21.04.1983. As per the terms of the

settlement deed, the possession over the suit property was to remain with

the first plaintiff Sankara Gomathi and the first defendant Muthupandi and

that they were not to make any encumbrance in respect of the suit property.

After their life time, children namely plaintiffs 2 to 5 were to take it

absolutely. While so, the first defendant Muthupandi had entered into a sale

agreement dated 06.06.1994(Ex.B1) with the appellant herein. That

necessitated filing of the present suit. The appellant herein filed a detailed

written statement controverting the plaint averments.

https://www.mhc.tn.gov.in/judis/

S.A.No.992 of 2003

2. The first plaintiff examined herself as P.W.1 and marked Ex.A1 to

Ex.A9. The appellant examined himself as D.W.1. Muthu Pandi as well as

Subbiah Pandian were examined as D.W.2 and D.W.3. Ex.B1 to Ex.B8

were marked on the side of the defendants. The trial Court after a

consideration of the evidence on record by judgment and decree dated

25.04.2000 dismissed the suit after rendering a finding that

Krishnan/second defendant had taken possession of the suit property under

Ex.B1-sale agreement. Aggrieved by the same, the plaintiffs filed A.S.No.

19 of 2000 before the Sub Court, Ambasamudram. The first appellate court

by the impugned judgment and decree dated 13.11.2002 set aside the

decision of the trial Court and allowed the appeal and dismissed the suit as

prayed for. Challenging the same, the present second appeal came to be

filed.

3. The second appeal was admitted on the following substantial

questions of law:-

“1. Whether the judgment of the lower appellate court is vitiated by reason of its failure to point out the mistake if committed by the trial Court?

2. Can the appellate court reverse the findings of the trial court without giving reasons for its disagreement with the findings of the trial court?

3. When there was no decision finally rendered in earlier suit, whether the subsequent suit is barred by the principles of res judicata?

https://www.mhc.tn.gov.in/judis/

S.A.No.992 of 2003

4. When a settlement on which the plaintiffs lay their claim had been disputed by the contesting defendants is it not the duty of plaintiff to prove the document executed by calling atleast one attestor as witness to prove the document as required under Section 68 of the Evidence Act?

5. Is not the finding of lower appellate court up holding the unproved document under the law even without adverting this aspect by the judgment of the trial Court, a dereliction of duty of the appellate court under Order XLI Rule 11 of Code of Civil Procedure?

6. Whether the finding of the appellate court that the title of the plaintiffs alone in their suit for permanent injunction is proper?

7. Whether the recitals in Ex.A3 are a settlement or a Will?

8. Whether a delivery memorandum without assigning any right in immovable property requires registration under Section 17 of Registration Act?

9.Whether any delivery memo for agreement can be used as document admissible in evidence under Section 49 of the Registration Act?

10.Whether without adverting to Section 53-A of Transfer of Property Act relating to part performance or agreement of sale can the Court reject a document relating to delivery of possession of an immovable property as part of an agreement of sale?

11. Whether a suit for permanent injunction against a person alienating the suit property is maintainable in law without declaration of title for the plaintiffs over the suit property?”

4. The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds. Her core contention is

that the appellant was given possession of the suit property not only by the

first defendant / Muthu Pandi but also by the first plaintiff Sankara

Gomathi. She drew my attention to the fact that Ex.B1-sale agreement was https://www.mhc.tn.gov.in/judis/

S.A.No.992 of 2003

executed by the first defendant as well as the first plaintiff. The appellant

had been in possession of the suit property for almost 30 years. The trial

Court had dismissed the suit and the first appellate court had reversed the

same. While admitting the second appeal, this Court had granted interim

order in favour of the appellant. She also pointed out that Ex.B2 to Ex.B6 -

kist receipts clearly establish the appellant's possession. She also submitted

that this being a civil proceeding, standard of proof must be one of balance

of probabilities. Obviously, the first defendant must have been in

possession of the suit property as head of the family. Even the settlement

deed dated 21.04.1983-Ex.B3 states that the first defendant was to retain the

possession of the suit property along with his wife. Therefore, it is highly

probable that the first defendant had inducted the appellant in possession

under Ex.B1-sale agreement dated 06.06.1994. Since the possession of the

appellant is apparent, the plaintiff could not have maintained the suit

without the main prayer being one of declaration. The learned counsel

appearing for the appellant placed reliance on the decision of the Hon'ble

Supreme Court reported in (2008) 4 SCC 594 (Anathula Sudhakar Vs.

P.Buchi Reddy). She also pointed out that the first defendant as well as his

mother Sivagamiammal had entered into an agreement for possession dated

14.10.1993 (Ex.B8).

https://www.mhc.tn.gov.in/judis/

S.A.No.992 of 2003

5. Per contra, the learned counsel appearing for the contesting

respondents submitted that the impugned judgment and decree do not call

for any interference.

6. I carefully considered the rival contentions and went through the

evidence on record. The suit property no doubt was settled in favour of the

first defendant Muthu Pandi under Ex.B7 dated 06.04.1983. But the fact

remains that shortly thereafter, he executed Ex.A3-settlement deed dated

21.04.1983. The terms of the settlement deed are fairly clear. The husband

and the wife namely the first defendant and first plaintiff were to remain in

possession of the suit property and the children namely the plaintiffs 2 to 5

were to take the property absolutely after their life time. A restrictive

stipulation was incorporated in Ex.A3. It is to the effect that neither the

first plaintiff nor the first defendant were to create any kind of

encumbrance. Any kind of encumbrance would obviously include handing

over possession also. Therefore, the first defendant could not have entered

into any kind of agreement with the appellant herein. Ex.B1 dated

06.06.1994 sale agreement could not have conferred any kind of right on

the appellant. Of-course, the learned counsel appearing for the appellant

would strongly contend that the first defendant was also a party to the sale https://www.mhc.tn.gov.in/judis/

S.A.No.992 of 2003

agreement. The first plaintiff who examined herself as P.W.1 denied that she

was a party to Ex.B1-sale agreement. The appellant did not take any step to

show that the first plaintiff along with her husband had jointly executed

Ex.B1.

7. At the request of the learned counsel appearing for the contesting

respondents, I went through the original document (Ex.B1). The signature

attributed to the first plaintiff differs from page to page. That is why, the

Courts below did not render any finding that the first plaintiff was a party to

Ex.B1-sale agreement. I would go one step further. It has not been

established that the first plaintiff had also jointly executed the sale

agreement along with her husband. Therefore, the appellant could not have

claimed any right under the said agreement. It has already been noted that

Muthu Pandi's mother Sivagamiammal had divested herself of all her rights,

the moment she executed a settlement deed dated 06.04.1983 in favour of

her son. Therefore, Ex.B8-agreement for possession can also not advance

the case of the appellant.

8. More than anything else, the trial Court had gone by Ex.B2 series.

As rightly pointed out by the learned counsel appearing for the contesting

respondents, one of the kist receipts dated 09.05.1992 includes the name of https://www.mhc.tn.gov.in/judis/

S.A.No.992 of 2003

the appellant Krishnan. Even according to the appellant, he got rights in

respect of the suit property only under Ex.B8-agreement for possession

dated 14.10.1993. By no stretch of imagination, his name could have been

mentioned in the kist receipt dated 09.05.1992. Thus, it appears that these

documents have been fabricated for the purpose of projecting the case of

possession in favour of the appellant. In Ex.B2 to Ex.B6, of-course, the

appellant's name is figuring but the name of the first plaintiff Sankara

Gomathi is also mentioned. Patta in respect of the suit property stands in

the name of the first plaintiff and the first defendant. Ex.A4 and Ex.A5

clearly establishes the same. The question of possession is more a question

of fact. The first appellate Court after a detailed consideration of the

evidence on record has rendered a finding in favour of the plaintiffs.

Exercising jurisdiction under Section 100 of C.P.C., I hold that no

substantial question of law arises for consideration. The second appeal is

dismissed. No costs.

08.09.2021

Internet : Yes/No Index : Yes/No rmi

https://www.mhc.tn.gov.in/judis/

S.A.No.992 of 2003

To

1.The Subordinate Judge, Ambasamudram.

2.The District Munsif, Cheranmahadevi.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

S.A.No.992 of 2003

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.No.992 of 2003

08.09.2021

https://www.mhc.tn.gov.in/judis/