Madras High Court
Dharmaraj vs Arunachalam on 30 September, 2021
SA NO.361 OF 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.09.2021
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.361 OF 2014
AND MP NO.1 OF 2014
Dharmaraj ... Appellant
VS.
1.Arunachalam
2.Rasu
3.Maruthamuthu
4.Murugesan
5.Manickam ... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgment and decree dated 24.10.2013 made in
A.S.No.15 of 2012 on the file of the Court of the Subordinate Judge,
Perambalur, reversing the judgment and decree dated 06.08.2012 made in
Original Suit No.373 of 2005, on the file of the Court of the District
Munsif, Perambalur.
For Appellant : Mr.R.Narayanan
for Mr.M.V.Krishnan
For Respondents : Mr.S.Kamadevan
1/12
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SA NO.361 OF 2014
JUDGMENT
The plaintiff is the appellant. According to the plaintiff, he
purchased the Suit schedule property by virtue of registered Sale Deed
dated 27.10.1988 from one Perumal Muthiriyar and his sons
Balakrishnan and Ganesan. He was in possession and obtained patta in
respect of the property and he has been paying Kists in respect of the
same. He mortgaged the property and thereafter, got it discharged. His
continuous possession and enjoyment has been disturbed by the
defendants and hence, he filed the Suit for permanent injunction.
2.In the written statement, the defendants have denied the
title of the plaintiff and claimed that the vendor of the plaintiff was not
having title for more than 38 Cents and whereas he has sold 1.51 Cents
of land, which belongs to the ancestors of the defendants and that they
are in possession of the property and therefore, the plaintiff is not entitled
to the relief sought for.
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SA NO.361 OF 2014
3.The Trial Court, after framing appropriate issues has
decreed the Suit in favour of the plaintiff. The Trial Court relied on a
judgment of the Hon'ble Supreme Court in ANNATHULA SUDHAKAR
VS. P.BUCHI REDDY (DEAD) BY LRS AND OTHERS [2009 (II) LW
546] wherein the Hon'ble Supreme Court has held that in a Suit for
injunction, the Court should restrain themselves from venturing into the
question of title of the parties.
4.However, on appeal, the First Appellate Court went into
the title of the parties and held that the plaintiff has filed a Suit
suppressing the title of the vendor and held that when a cloud is raised
over the title of the plaintiff, he has to seek for the relief of declaration of
title and the mere Suit for bare injunction is not maintainable. In so far as
the plaintiff's father was not in possession and enjoyment over 0.38 Cents
out of 1.58 Cents, the burden is heavier on the plaintiff to prove his
possession and enjoyment over the remaining extent of 1.13 Cents in the
Suit property. On examining the documents marked before the Court, it
held that the vendor of the plaintiff had only title over 0.38 Cents and it
is not proved that the vendor had acquired title to the remaining extent of
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SA NO.361 OF 2014
the property. On the other hand, the possession of the Suit property was
proved by Ex.B8 by the defendants. In view of the joint patta in the name
of the defendants and the corroborating evidence of D.W.1 and D.W.3,
has reversed the finding of the Trial Court and dismissed the Suit.
Aggrieved over the same, the plaintiff has preferred the above Second
Appeal.
5.This Court admitted the Second Appeal on 12.10.2020 on
the following substantial questions of law:
"1.Whether the Lower Appellate Court was right
in reversing the judgment and decree of the Trial Court on
the ground that the plaintiff should have sued for
declaration of title.
2.Whether the Lower Appellate Court was right
in concluding that there was a serious dispute in title and
the same cannot be gone into a suit for injunction."
6.Heard the submissions made on either side.
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SA NO.361 OF 2014
7.Before the Trial Court, the plaintiff marked 11 documents
vide Exs.A1 to A11 and examined two witnesses on his side. On the side
of the defendants, the fourth defendant has himself examined as D.W.1
and two other witnesses and marked Exs.B1 to B9.
8.From the perusal of the records, it is noted that the
property originally belonged to one Sellamuthu Muthiriyar and it
devolved on his sons. By virtue of a registered Sale Deed bearing
Registration No.400/1966 dated 29.12.1966, marked vide Ex.B2,
Ramasamy Muthiriyar sold his share to one of his brothers Rengasamy
Muthiriyar viz.,
Survey No. Measurement
77/6 0.15 Cents
77/4 0.08 Cents
1/4th share in the well and land in
S.No.77/15
77/15 0.06 Cents
77/7 0.48 Cents
0.12 + 0.5 Cents
77/10 0.21 Cents
78/1 0.19 Cents
78/6 10 3/4 Cents
64/1 0.15 Cents
+ 0.15 Cents - 1/6th share in the well
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SA NO.361 OF 2014
Thereafter, vide registered Sale Deed dated 04.10.1969, the said
Rengasamy Muthiriyar sold his properties in favour of his brother
Perumal viz.,
Survey No. Measurement
77/4 0.05 Cents
77/6 0.30 Cents
77/7 0.24 Cents
77/10 0.41 Cents
77/15 0.06 Cents and 1/4th share in the
well
78/1 0.38 Cents
78/6 0.21 1/2 Cents
Thus, the said Perumal had sold the above properties in favour of the
plaintiff vide Ex.A1 viz.,
Survey No. Measurement
77/4-A 0.15 Cents
77/4-B 0.25 Cents
77/6 0.30 Cents
77/15 0.06 Cents + 1/4th share in the well
77/10B 0.18 Cents
77/10C 0.41 Cents
78/1 1.51 Cents
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SA NO.361 OF 2014
9.In the year 1993, vide Sale Deed No.506/1983 dated
22.03.1983, one Indira wife of Murugesan, the fourth defendant herein
sold the following properties to the plaintiff, viz.,
Survey No. Measurement
77/4-A 0.15 Cents
77/7C 0.10 Cents
77/10A 0.23 Cents
78/6 0.11 Cents
77/15 1/8th share in the well
10.It is also pertinent to note that the plaintiff is the son of
Rengasamy Muthiriyar who sold his property to his vendor Perumal. The
defendants have taken a strong ground that when Rengasamy Muthiriyar
sold 0.38 Cents to Perumal, he cannot have title over 0.38 Cents in
S.No.78/1. But the fact remains that originally the property stood in the
name of the Sellamuthu Muthiraiyur and it was sold in between his
children, namely, Rengasamy, Ramasamy and Perumal and they have
conveyed the property to the present plaintiff, who is none other than the
grandson of Sellamuthu Muthiriyar, who was the original owner.
11.The respondents / defendants claimed title through a
Settlement Deed executed by one Valambal in favour of one Manivel
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SA NO.361 OF 2014
who is the son of the first defendant. The properties conveyed reads as
under:
77/1 1.04 - 0.25 Cents
2 Thakku 0.33 Cents
77/2 0.64 - 0.20 Cents
77/1 1/2 share in the well
1/2 share in the thulai
The title of the properties mentioned Settlement Deed has no connection
with the properties mentioned in the Suit. The defendants claimed title
only in respect of the properties in S.Nos.77/1 and 77/2 whereas, the Suit
property is entirely different. The entire case of the defendants is based
on the joint patta obtained by them through the Tahsildar. Other than the
joint patta, the defendants have not claimed title over the property
through any document other than making a statement that there is some
cloud over the title of the plaintiff, the defendants have not come out
with any evidence to show that they are the title holders and the plaintiff
is not entitled to title and possession of the property.
12.It is true to state that the Hon'ble Supreme Court has laid
a clear principle that in a Suit for bare injunction, the Court shall not
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SA NO.361 OF 2014
venture into the title of the parties. In case a cloud is raised, the plaintiff
is entitled to amend the plaint and convert it into a Suit for declaration
and injunction. But, the plaintiff in this case has categorically rested his
case on the basis of his title by virtue of registered sale deeds. The
predecessors in title have sold the property from the year 1996 onwards.
Those sale deeds were not questioned by the defendants. Without
claiming title and without challenging the sale deeds, which conveyed
the title to the plaintiff, the defendants are not entitled to question the
title of the plaintiff. If at all the defendants want to establish their title,
they have to file a comprehensive Suit for declaration and recovery of
possession.
13.In the instant case, the plaintiff has clearly proved that he
is in possession of the properties pursuant to the derivation of title and
the patta issued to him. In that event, the First Appellate Court venturing
into the title of the parties and holding that by virtue of the boundaries
mentioned in the title deeds of the plaintiff, the plaintiff has not
established his title is illegal and erroneous. The Court should have
restricted its jurisdiction only with respect to the possession in a Suit for
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SA NO.361 OF 2014
bare injunction and it is proceeded on the wrong assumption into the title
without any evidence therefor. Therefore, this Court holds that the First
Appellate Court has wrongly proceeded into the title in a Suit for bare
injunction exceeding its jurisdiction. Accordingly, the questions of law
are answered in favour of the appellant.
14.The decree and judgment dated 24.10.2013 passed in
A.S.No.15 of 2012 by the learned Subordinate Judge, Perambalur,
reversing the judgment and decree dated 06.08.2012 passed in Original
Suit No.373 of 2005 by the learned District Munsif, Perambalur stand set
aside. The Suit is decreed.
15.In fine, the Second Appeal stands allowed. It is open to
the defendants to file a comprehensive Suit for declaration of title, if they
choose to do so. No costs. Consequently, connected miscellaneous
petition is closed.
30.09.2021
Index : Yes/No
Internet : Yes/No
TK
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SA NO.361 OF 2014
To
1.The Subordinate Judge
Subordinate Court
Perambalur.
2.The District Munsif
District Munsif Court
Perambalur.
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SA NO.361 OF 2014
M.GOVINDARAJ, J.
TK
SA NO.361 OF 2014
30.09.2021
https://www.mhc.tn.gov.in/judis
