Madras High Court
G.Rajan vs Jothi on 28 February, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.02.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.174 of 2012
and MP No.1 & 2 of 2012
1. G.Rajan
2. Chezhiyan .....Appellants/Respondents/Defendants
1&2
Vs.
Jothi .. Respondent /Appellant /Plaintiff
Prayer: Second Appeal filed under section 100 of the Code of
Civil Procedure to set aside the Judgment and decree dated
18.10.2011 made in A.S.No.15 of 2009 on the file of Subordinate
Judge, Harur, reversing the decree and judgment dated
05.09.2007 passed in O.S.No.392 of 2000 on the file of the
District Munsif Court, Harur and allow the second appeal.
For Appellant : Mr.C.Prabakaran
For Respondent : Mr.K.Nagarajan
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The 1st and 2nd defendants are the appellants in this
second appeal.
2. The respondent plaintiff filed a suit seeking for the
relief of permanent injunction restraining the defendants from in
any way interfering with the possession and enjoyment of the
suit properties.
3. The case of the plaintiff is that the suit property
originally belonged to her husband by virtue of a registered
partition deed dated 07.10.1985 and as per the family
arrangement. It is stated that the 1st defendant is the brother in-
law of the plaintiff and the 2nd defendant is the son of the 1st
defendant. The 3rd defendant is the mother in law of the
plaintiff.
4. The further case of the plaintiff is that by virtue of
the partition deed, valuable properties were allotted to the
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share of the 1st defendant. Hence, apart from what was alloted
under the partition deed, some more properties was also given in
favour of the husband of the plaintiff as per the family
arrangement. Thereafter, the patta was also given in the name of
the husband of the plaintiff with respect to the suit property and
the other revenue records also stands in his name. The plaintiff
lost her husband in the year 2000 and he died leaving behind the
plaintiff and her minor children
5. The grievance of the plaintiff is that the defendants
were attempting to tresspass into the suit property and were
trying to take forcible possession of the property. Left with no
other option, the suit was filed seeking for the relief of
permanent injunction.
6. The 1st defendant filed a written statement. The case
of the 1st defendant is that his brother Manokaran and his parents
had jointly entered into a partition on 07.10.1985 and the same
was reduced to writing and a registered partition deed was
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executed. As per the partition deed, the 1st defendant was
alloted an extent of 2.64 acres and the deceased Manokaran was
alloted an extent of 2.45 acres in various survey numbers. The
further case of the 1st defendant is that each of the sharer
started enjoying the properties that were alloted to them under
the partition deed. It is stated that the plaintiff is claiming for a
right over a property which was not even a subject matter of the
partition deed and based on a patta that was granted in the
name of her husband. The 1st defendant has taken a very specific
stand that the plaintiff has not even explained as to how she is
entitled for the suit property and hence, the 1st defendant has
questioned the title of the plaintiff and has sought for the
dismissal of the suit.
7. The Trial Court after appreciating the oral and
documentary evidence and after taking into consideration the
facts and circumstances of the case, categorically came to a
conclusion that the plaintiff has not made out a case and
dismissed the suit by judgment and decree dated 05.09.2007.
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Aggrieved by the same, the plaintiff filed an appeal before the
Sub-Court, Harur in A.S.No.15 of 2009. At the time of final
hearing, the Appellate Court also took into consideration the
petition filed under Order 41 Rule 27 for Additional evidence and
it was allowed and the Trial Court marked Ex.A4 to A8 and those
documents were also taken into consideration at the time of
deciding the appeal. Ultimately, the Appellate Court by judgment
and decree dated 18.10.2011 allowed the appeal and set aside
the judgment and decree of the Trial Court. Thereby, the suit
filed by the plaintiff was decreed as prayed for. Aggrieved by the
same, the defendants have filed the present second appeal
before this Court.
8. The Second appeal was admitted and the following
substantial questions of law were framed :-
1. Whether the Lower Appellate Court had failed
to adopt the procedure contemplated under
Order 41 Rule 28 of Civil Procedure Code for
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recording additional evidences in the appellate
Stage?
2. Whether the non-adherence to the procedure
contemplated under Order 41 Rule 28 of Civil
Procedure Code shall make the finding of the
lower appellate court regarding the title of the
plaintiff, a perverse one?
9. Heard the learned counsel for the Appellant and the
learned counsel for respondents. This Court has also carefully
perused the materials available on record and the findings of
both the Courts below.
10. In the present case, the defendants had directly
questioned the title over the suit property on the ground that the
suit property does not form part of the partition deed and the
plaintiff has not even explained as to how her husband became
entitled to the said property. The Trial Court on considering this
issue, came to a very categorical conclusion that the defendants
had created a cloud over the title of the plaintiff and hence, the
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plaintiff ought to have sought for the relief of declaration of title
and the suit filed for bare injunction is not maintainable.
11. The Lower Appellate Court while considering this
issue, had reversed the finding of the Trial Court on the ground
that in a suit for bare injunction, the Court has to only look into
the fact as to who is in possession of the property. Therefore, the
Appellate Court proceeded to rely upon Ex.A3 and the additional
documents marked as Ex.A4 to A8. By relying upon these
documents, the Lower Appellate Court found that the plaintiff is
in possession of the suit property and therefore held that she is
entitled for the relief of permanent injunction.
12. It is an admitted case that the suit property does not
form part of the partition deed that was marked as Ex.A1. Even
the Appellate Court has given a finding to that effect. The case
of the plaintiff is that there was some family arrangement
through which the suit property was alloted to the husband of
the plaintiff. The reason given by the plaintiff is that her husband
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was given a lesser extent of property and the 1st defendant was
given a larger extent of a valuable property and in order
compensate the same, the suit property was given to the husband
of the plaintiff through the family arrangement.
13. The Lower Appellate Court failed to appreciate the
fact that the suit property was an agricultural land totally
measuring an extent of 6.52 acres. If really the husband of the
plaintiff was compensated for having been given a lesser extent,
while executing the partition deed, there was absolutely no
reason to allot such a large extent of property in his favour. It
must be borne in mind that the husband of the plaintiff was
alloted 2.45 acres and the 1st defendant was alloted 2.64 acres.
For the short fall of 19 cents, it is quite unbelievable that an
extent of 6.52 acres was given by way of a family arrangement.
This fact has not been properly pleaded or proved by the plaintiff
and the plaintiff has not explained as to how the title is derived.
This becomes crucial since the defendants are questioning the
title over the property which are agricultural lands. Hence,
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where the defendants are creating a cloud over the title, as
rightly held by the Trial Court, the plaintiff ought to have sought
for the relief of declaration of title and the suit for bare
injunction is not maintainable. To that extent, the Appellate
Court was not right in reversing the findings of the trial Court.
14. The appellate Court also failed to take note of Ex.B3,
which is the proceedings of the Revenue Divisional Officer. The
plaintiff was claiming a right over the suit property by relying
upon the patta issued under Ex.A3. This patta was challenged by
the defendants before the concerned authority. An enquiry was
conducted and ultimately, an order was passed under Ex.B3. By
virtue of the same, a recommendation was made for the
cancellation of the patta granted in favour of the husband of the
plaintiff with respect to the suit property and it was kept pending
subject to the result of the suit. It must be borne in mind that
Ex.A3 itself came into existence after the filing of the suit in the
year 2000. Therefore, not much reliance can be placed on Ex.A3.
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This fact was considered by the Trial Court and the Appellate
Court lost sight of the proceedings of the RDO and the fact that
Ex.A3 was obtained after the filing of the suit.
15. The Lower Appellate Court while reversing the findings
of the Trial Court with respect to the possession over the suit
property, did not properly consider the findings of the Trial Court
and state as to why it is differing from the findings of the Trial
Court. This is a mandate that is expected to be fulfilled under
Order 41 Rule 31 of CPC and the Appellate Court did not fulfill
this mandate and the findings of the Appellate Court is liable to
be interfered on this ground also.
16. The last issue is with regard to the substantial
questions of law that have been framed at the time of admission.
It is seen that the plaintiffs had filed a petition under Order 41
Rule 27 of CPC for additional evidence during the pendency of
the appeal and Ex.A4 to A8 have been marked. These documents
have also been relied upon by the Lower Appellate Court. While
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taking these documents on file, the Lower Appellate Court failed
to follow the procedure under Order 41 Rule 28 of CPC, wherein
the Appellate Court was expected to record additional evidence.
This is more so since the defendants are questioning the very
possession of the plaintiff in the suit property.
17. The law on this issue is now well settled and this
Court in [K.M.Thangavel and others Vs. K.T.Udaya Kumar and
another] reported in 2014 2 CTC 113 has explained about the
procedure while dealing with the application for additional
evidence. This mandatory procedure has not been followed by
the Appellate Court and the findings of the Appellate Court are
liable to be interfered on this ground also. The substantial
questions of law are answered accordingly.
18. In view of the above discussion, this Court has
absolutely no hesitation to interfere with the findings of the
Lower Appellate Court and the Substantial questions of law are
also answered in favour of the appellants. Accordingly, the
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judgment and decree of the Trial Court in O.S.No.392 of 2000 is
hereby restored and as a result, the suit filed by the plaintiff
stands dismissed. The second appeal is allowed. Considering the
facts and circumstances of the case, there shall be no order as to
costs. Consequently, the connected miscellaneous petitions are
closed.
28.02.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
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N.ANAND VENKATESH.,J
rka
To
1.The Subordinate Judge, Harur.
2. The District Munsif Court, Harur
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.174 of 2012
28.02.2022
https://www.mhc.tn.gov.in/judis
