Madras High Court
Muthu Kothanar (Died) vs S.Dhanasundaram (Died) on 10 March, 2022
S.A.(MD)No.66 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.66 of 2010
1.Muthu Kothanar (Died)
2.Periya Nayaki
3.Chitradevi
4.Shanmugam
5.Sundarraj
6.Ganesan ... Appellants
(Appellants 2 to 6 are brought on record as LRs
of the deceased sole appellant vide order dated
10.03.2022 in M.P.(MD)No.1 of 2011 in
S.A.(MD)No.66 of 2010 by GRSJ)
Vs.
1.S.Dhanasundaram (Died)
2.Muthazhagan
3.Muthuselvam
4.Balamurugan
(Fourth respondent is brought on record as LRs
of the deceased sole appellant vide order dated
10.03.2022 in M.P.(MD)No.1 of 2011 in
S.A.(MD)No.66 of 2010 by GRSJ)
5.T.Vasanthakumari
6.Kayailvizhi
7.Niranjana
8.Ramkumar Raja ... Respondents
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1/10
S.A.(MD)No.66 of 2010
(Respondents 5 to 8 are suo motu impleaded as LRs
of the deceased 1st respondent vide order dated
10.02.2022 in S.A.(MD)No.66 of 2010 by GRSJ)
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree in A.S.No.9 of 2005 on the file of the Sub
Court, Pudukkottai, dated 21.04.2006, confirming the judgment and decree
passed in O.S.No.527 of 1996 on the file of the Principal District Munsif Court,
Pudukkottai, dated 23.12.1998.
For Appellants : Mr.K.Baalasundharam
For Respondents : Mr.P.Thiagarajan for R3, R3, R5 and R8
Mr.RMS.Sethuraman for R4
JUDGEMENT
Ma.Aranganathan, a noted Tamil literary figure, comes to my mind as I
dispose of this second appeal. He did not (to borrow the lines of Dylan
Thomas) write for ambition or bread or the strut and trade of charms on the
ivory stages. When he passed away, the Madurai Bar organized a memorial
meeting. One of the speakers posed a question, “Who is Muthukaruppan?”
The renowned writer Shri.Jeyamohan in his homage also remarked that the
main character in all his fictional writings bore the constant name of
Muthukaruppan.
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S.A.(MD)No.66 of 2010
2.This second appeal arises out of a suit for permanent injunction. The
respondents herein who are the sons of one Subbaiah Pillai filed O.S No.527
of 1996 on the file of the Principal District Munsif Court, Pudukkottai for
restraining the defendant from interfering with their possession and enjoyment
of the suit property. The defendant filed written statement controverting the
plaint averments. Based on the divergent pleadings, the trial Court framed the
following issues:-
“a) Have the plaintiffs been in possession of the
suit- property?
b) Has the defendant prescribed title to the suit-property?
c) Is the suit for bare injunction without seeking the relief of
declaration of title not maintainable?
d) Are the plaintiffs entitled to the relief of permanent
injunction?
e) To what other relief are the plaintiffs entitled?”
3.The second plaintiff examined himself as P.W.1 and one
Periyanayagam was examined as P.W.2 and Exs.A1 to A10 were marked. The
defendant examined himself as D.W.1 and one Rangarajan was examined as
D.W.2 and Exs.B1 to B5 were marked. After consideration of the evidence on
record, by judgment and decree dated 23.12.1998, the suit was decreed as
prayed for. Aggrieved by the same, the defendant filed A.S No.9 of 2005
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S.A.(MD)No.66 of 2010
before Sub Court, Pudukkottai. By the impugned judgment and decree dated
21.04.2006, the first appellate Court confirmed the decision of the trial Court
and dismissed the first appeal. Challenging the same, this second appeal came
to be filed.
4.The second appeal was admitted on 10.02.2010 on the following
substantial questions of law:-
“a. Whether a suit for permanent injunction without
prayer for declaration of title is maintainable when the title of
the plaintiffs is vehemently denied by the defendant? and
b. Whether plaintiffs are entitled to the equitable relief of
injunction when he has not come to Court with clean hands?”
5.During the pendency of the second appeal, the defendant passed away
and his legal heirs were brought on record. The learned counsel for the
appellants reiterated all the contentions set out in the memorandum of grounds
and called upon this Court to answer the substantial questions of law in favour
of the appellants and set aside the impugned judgements and decrees and
dismiss the suit. According to the learned counsel for the appellants, the
Courts below have sustained the claim of the plaintiffs because of the
perceived weaknesses in the case of the defendant. The plaintiffs trace the title
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S.A.(MD)No.66 of 2010
to Ex.A3 sale deed dated 05.03.1954 said to have been executed in favour of
their father Subbaiah Pillai by Thiru.Sundaram, the father of the defendant.
The defendant had questioned the genuineness of the said document. The
original sale deed was not produced by the plaintiffs. Therefore, the
presumption under Section 90 of the Indian Evidence Act, 1872 was not
available. The plaintiffs have anchored their case more on the patta obtained
in their favour virtually on the eve of filing of the suit. Ex.A4 patta transfer
order reads that the earlier pattadhar was one Muthukaruppan. The counsel for
the appellants laboured much on this. If the title stood in the name of
Sundaram and then was transferred to Subbaiah Pillai, there was no scope for
the revenue record reflecting the name of Muthukaruppan. The learned counsel
repeatedly raised the question “Who is Muthukaruppan?”. According to him,
the plaintiffs have failed to answer this and therefore they have to be non-
suited. Since the suit property is a vacant site and the plaintiffs did not speak
about the mode of enjoyment, a simple suit for injunction without prayer for
declaration is not maintainable.
6.Per contra, the learned counsel for the respondents submitted that no
case for interference has been made out.
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S.A.(MD)No.66 of 2010
7.I carefully considered the rival contentions and went through the
evidence on record. There is some confusion as to who the earlier pattatdhar
was. Ex.A4/patta transfer order reads that in the place of Muthukaruppan, the
name of Subbaiah Pillai stood substituted. It is true that the plaintiffs have not
been able to shed light on this mysterious character Muthukaruppan. But that
would not weaken their case which rests primarily on the sale deed dated
05.03.1954 (Ex.A3). The name of the defendant's father is Sundaram. The
specific stand of the plaintiffs is that the defendant's father Sundaram executed
the sale deed dated 05.03.1954 in favour of their father Subbaiah Pillai. It is
true that the original document has not been filed. But the certified copy has
been filed. Under Section 60 of the Registration Act, presumption of validity
attaches to any registered document. Of course, it is a rebuttable presumption.
In this case, the defendant had pleaded fraud. Therefore, the burden lay only
on the defendant to show that Ex.A3 is not a genuine document. The defendant
had miserably failed to discharge the burden cast on him.
8.The suit property is a vacant site. To show that the suit property was
purchased by their father, the plaintiffs marked Ex.A9 sale deed dated
01.02.1961 standing in the name of one Perumal. Subbaiah Pillai's land has
been shown as the southern boundary for the property sold under Ex.A9. Thus,
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S.A.(MD)No.66 of 2010
in a subsequently registered sale deed, the property purchased by the plaintiffs'
father has been shown as the southern boundary. I am more than satisfied that
the plaintiffs have established their title over the suit property. The suit
property is a vacant site. Therefore, possession follows title (2001-1- LW.724
(Arasappan Karayalar and Another v. Subramania Karayalar).
9.More than anything else, the plaintiffs have marked the patta issued in
favour of their father as Ex.A5. The patta transfer order has also been marked.
The defendant had not filed any appeal or revision questioning the mutation of
patta in favour of the plaintiffs' father. On the side of the defendant, there is
absolutely zero evidence regarding his possession over the suit property. On
the other hand, the plaintiffs by overwhelming evidence have shown that not
only they have title but also possession over the suit property.
10.Next comes the question if the suit was maintainable in the absence of
a prayer for declaration of title. The Hon'ble Supreme Court in the decision
reported in [2008 (6) CTC 237 (Anathula Sudhakar Vs. P.Buchi Reddy (Dead)
by LRs and Others] held as follows:-
“17.To summarize, the position in regard to suits for
prohibitory injunction relating to immovable property, is as
under :
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S.A.(MD)No.66 of 2010
(a) Where a cloud is raised over plaintiff's title and he
does not have possession, a suit for declaration and possession,
with or without a consequential injunction, is the remedy. Where
the plaintiff's title is not in dispute or under a cloud, but he is
out of possession, he has to sue for possession with a
consequential injunction. Where there is merely an interference
with plaintiff's lawful possession or threat of dispossession, it is
sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only
with possession, normally the issue of title will not be directly
and substantially in issue. The prayer for injunction will be
decided with reference to the finding on possession. But in cases
where de jure possession has to be established on the basis of
title to the property, as in the case of vacant sites, the issue of
title may directly and substantially arise for consideration, as
without a finding thereon, it will not be possible to decide the
issue of possession.”
A mere plea challenging the plaintiff's title is not sufficient. Something more is
required. The defendant had not adduced any evidence casting cloud over the
plaintiffs' title. That is why, the courts below concurrently answered the issue
framed in this regard in favour of the plaintiffs. The defendant had also not
established that the plaintiffs have approached the court with unclean hands.
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S.A.(MD)No.66 of 2010
The substantial questions of law are answered against the appellants. The
decisions of the courts below are confirmed and the second appeal is dismissed.
No costs.
10.03.2022
Index : Yes / No
Internet : Yes/ No
ias/skm
To:
1.The Sub Court, Pudukkottai.
2.The Principal District Munsif Court,
Pudukkottai.
Copy to:
The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.66 of 2010
G.R.SWAMINATHAN, J.
ias/skm
S.A.(MD)No.66 of 2010
10.03.2022
https://www.mhc.tn.gov.in/judis
