Madras High Court
Thirugnanam vs Balakrishnan on 24 March, 2022
S.A.Nos.1327 & 1328 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.03.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.Nos.1327 & 1328 of 2011
and
M.P. Nos.1 & 1 of 2011
S.A. No.1327 of 2011
Thirugnanam ...Appellant
Vs.
1. Balakrishnan.
2. Rasammal
3. Gandhimathi @ Vasuki ... Respondents
S.A. No.1328 of 2011
Saravanan ... Appellant
Vs.
1. Balakrishnan.
2. Rasammal
3. Gandhimathi @ Vasuki ... Respondents
Common Prayer : Second Appeals filed under Section 100 CPC, 1908
against the decree and judgment dated 21.04.2011 passed in A.S.
Nos.16 and 17 of 2009, on the file of the Subordinate Court,
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S.A.Nos.1327 & 1328 of 2011
Chidambaram, upholding the decree and judgment dated 29.11.2008
passed in O.S. Nos.233 and 232 of 2002, on the file of the Principal
District Munsif, Chidambaram.
For Appellant
(in both appeals) : Mr.A. Muthukumar
For Respondents
(in both appeals) : Ms. R. Meenal
COMMON JUDGMENT
The unsuccessful plaintiffs before both the courts below have
filed the present second appeals. The appellants are the plaintiffs in O.S.
Nos.233 and 232 of 2002 respectively, on the file of the Principal District
Munsif, Chidambaram. They filed the suits for a permanent injunction
restraining the respondents/defendants from interfering with their
possession and enjoyment of the suit properties and for costs.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present appeals would also be indicated.
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S.A.Nos.1327 & 1328 of 2011
3. The case of the plaintiffs in both the suits in nutshell is as
follows:
3.1 The plaintiff in O.S. No.232 of 2002 and the plaintiff in
O.S.No.233 of 2002 are brothers. The case of Saravanan, the plaintiff in
O.S. No.232 of 2002, is that the suit property in Survey Nos.52/10, 52/11
and 52/12 of Keezhakundalapadi Village, measuring 30¾ cents out of 92
cents originally belonged to the three sons of Anjan, namely,
Thirugnanam, Thirumeni and Thirusanku. Thirusanku died leaving
behind his two sons, namely, Sekar and Thirunavukkarasu.
Thirugnanam, Thirumeni, Sekar and Thirunavukarasu executed a
registered Release Deed dated 01.07.2002 in favour of the plaintiff and
ever since the date of the said Release Deed, the plaintiff is in possession
and enjoyment of the suit property by cultivating crops. The patta also
stands in his name and he has also been paying kists for the suit
properties. The first defendant (since deceased) owns a property adjacent
to the land of the plaintiff. The second defendant is the son of the first
defendant. The first defendant died during the pendency of the suit and
his legal heirs were brought on record as defendants 3 and 4. According
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S.A.Nos.1327 & 1328 of 2011
to the plaintiff, the defendants 1 and 2 demanded the plaintiff to sell the
suit property in their favour and since the same was refused by the
plaintiff, they started interfering with the possession and enjoyment of the
suit property by the plaintiff. Hence he filed the suit for a bare injunction.
3.2 The case of Thirugnanam, the plaintiff in O.S.No.233 of
2002 is that the suit property in S.No.52/12 of Keezhakundalapadi
Village measuring 21 cents out of 50 cents originally belonged to one
Manickam who died intestate. The plaintiff purchased the suit property
from the legal heirs of Manickam through a registered sale deed dated
26.12.2000. He has been in possession and enjoyment of the suit
property by cultivating the same and also paying necessary kists ever
since the date of sale in his favour. He also obtained patta in his name.
The defendants demanded the plaintiff to sell the suit property in their
favour as they have lands adjacent to his property. Since the plaintiff did
not pay heed to their request, they started interfering with his peaceful
possession and enjoyment of the suit property and hence he filed the suit
for a bare injunction.
4. The suit was resisted by the defendants on the ground that
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S.A.Nos.1327 & 1328 of 2011
the suit properties in Survey Nos.52/10, 52/11 & 52/12 of
Keezhakundalapadi Village belonged to three brothers namely
Gundusamban, Veerapan, Pakkirisamban. They divided the suit
properties among themselves and northern portion measuring 17 cents
out of 37 cents in RS.No.52/10 and southern portion measuring 17 cents
out of 51 cents in R.S.No.52/12 were allotted to the share of
Gundusamban and southern portion of 18 cents out of 37 cents in
R.S.No.52/10 was allotted to the share of Pakkirisamban. On 05.06.1940
the legal heirs of Pakkirisamban sold the southern 18 cents in
R.S.No.52/10 to one Navammal, mother of the first defendant. After the
death of Gundusamban his son Marudhan and his wife Navammal were
in enjoyment of 37 cents in S.No.52/10 and 17 cents in S.No.52/12. After
the death of Marudhan and Navammal the first defendant and his elder
brother Rathinam continued to enjoy the suit property jointly and they
also executed a registered gift deed dated 06.07.1959 (Ex.B2) in respect
of one cent of land out of 37 cents in favour of Tamilnadu Government.
The suit filed by the plaintiff for bare injunction is not maintainable as the
plaintiff has not sought for the relief of declaration of title. They have,
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S.A.Nos.1327 & 1328 of 2011
therefore, prayed for the dismissal of the suit.
5. Both the suits were tried jointly and evidence was recorded
in common in O.S.No.233 of 2002. In the trial court, the plaintiffs
examined themselves and one another witness and marked Ex.A1 to
Ex.A7. The second defendant examined himself and one another witness
and marked Ex.B1 to Ex.B12. An Advocate Commissioner was
appointed by the trial court and he filed his report which was marked as
Ex.C1.
6. After full contest, the learned Principal District Munsif
dismissed the suits filed by the plaintiffs vide his decree and judgment
dated 29.11.2008 on the ground that both the plaintiffs have not adduced
acceptable evidence to show that they are in possession of the suit
properties. It is further observed that the defendants have adduced
sufficient documentary evidence to show that the suit properties belonged
to them.
7. Aggrieved over the same, the plaintiffs filed appeals in
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S.A.Nos.1327 & 1328 of 2011
A.S.Nos.16 & 17 of 2009 before the Subordinate Court, Chidambaram.
The learned Subordinate Judge after analysing oral / documentary
evidence adduced on both sides, upheld the findings recorded by the trial
court vide his decree and judgment dated 21.04.2011.
8. Now the present second appeals are filed on the following
substantial questions of law :
1) Whether the suit for bare injunction could be disposed of without
rendering any finding with regard to possession when the
defendant is not found to be the true owner?
2) Whether the lower appellate court erred in law in not considering
the issue regarding possession of the suit property that too in a suit
for bare injunction?
9. Heard, Mr.A. Muthukumar, learned counsel for the appellant
and Ms. R. Meenal, learned counsel for the respondents in both the
appeals.
10. In order to establish possession over the suit properties, the
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S.A.Nos.1327 & 1328 of 2011
appellants/plaintiffs relied on their oral evidence as well as Ex.A1 to
Ex.A7. The contention of the plaintiff in O.S.No.232 of 2002 is that the
suit properties belonged to Thirugnanam, Thirumeni and Thirusanku, out
of whom Thirusanku expired 12 years prior to the filing of the suit
leaving behind his two sons namely Sekar and Thirunavukarasu.
According to the plaintiff, he got possession of the suit property through a
relinquishment deed dated 01.07.2002 (Ex.A6) executed by
Thirugnanam, Thirumeni and the legal heirs of Thirusanku namely Sekar
and Thirunavukarasu. However, the plaintiff Saravanan did not adduce
any documentary evidence to show that Thirugnanam, Thirumeni and
Thirusanku were the original owners of the suit properties. Ex.A2 patta is
a joint patta for the property in S.No.52/11 of Keezhakundalapadi Village
measuring 0.20.5 cents in the names of one Ganapathy son of Anjan and
Thirugnanam and the patta Number is 259. Ex.A3 to Ex.A5 are the kist
receipts for patta No.259. In the relinquishment deed (Ex.A6), the
description of the property is indicated as S.No.52/12 measuring 0.51
cents. It is further mentioned that it was in possession of Anjan but in
Ex.A2 patta the measurement in S.No.52/12 is shown as 0.20.5 cents.
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S.A.Nos.1327 & 1328 of 2011
The plaintiff Saravanan also deposed that his grandfather Veerappan had
three sons namely Vaithilingam, Anjan and Manickam and that his
grandfather did not own any property other than the suit property.
According to him, Vaithilingam, Anjan and Manickam divided the suit
properties equally and thus they each became entitled to 31 cents in the
suit properties. However, he admitted that he did not file any
documentary evidence to show that his grandfather Veerappan originally
owned the suit properties and that his sons divided the suit properties
among themselves equally. On the other hand, a perusal of the sale deed
dated 05.06.1940 (Ex.B1) and a copy of Suit Register in
O.S.No.366/1947 (Ex.B3), shows that Gundusamban, Veerapan and
Pakkirisamban were brothers and S.No.52/10 belonged to Marudhan
family. Therefore, the evidence of the plaintiffs that the suit properties
were allotted to the share of Anjan cannot be accepted. Apart from that,
in Ex.A2 patta, the name of Vaithilingam is not mentioned.
11. According to Thirugnanam, the plaintiff in
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S.A.Nos.1327 & 1328 of 2011
O.S.No.233/2002, the middle portion of S.Nos.52/10, 52/11 & 52/12 was
allotted to the share of Vaithilingam. In order to show his possession over
the suit property he relied on the sale deed dated 26.12.2000 (Ex.A1)
executed in his favour. However, the patta was issued prior to the sale
deed. Therefore, as rightly pointed out by the learned counsel for the
respondent there is nothing to show that kist receipts Ex.A3 to Ex.A5
relate to the suit properties. Similarly, Ex.A2 patta is not also in the name
of the plaintiff Saravanan. Ex.A7 kist receipt is also prior to the
relinquishment deed (Ex.A6). Thus, both the plaintiffs have not proved
their possession over the suit properties. It is settled law that in a suit for
bare injunction title need not be gone into. However, both the plaintiffs
state that they have title over the suit properties and are in possession of
the same. When the plaintiff in O.S.No.232/2002 relies on the
relinquishment deed (Ex.A6) in his favour and the plaintiff in
O.S.No.233/2002 relies on the sale deed dated 26.12.2000 (Ex.A1)
executed in his favour, the onus of proof lies with them to adduce
satisfactory evidence. As already observed, both of them were not able to
state how their vendors/predecessors in title became entitled to the suit
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S.A.Nos.1327 & 1328 of 2011
properties. The plaintiffs also did not adduce any acceptable evidence to
show that they were in possession of the suit properties.
12. Mr.A. Muthukumar, learned counsel for the appellant
contended that the plaintiffs/appellants filed a petition in I.A.No.21/2011
before the first appellate court for receiving two additional documents
namely, Registration copy of usufructuary mortgage deed dated
21.06.1971 and the registration copy of the sale deed dated 17.07.1972
executed by Vaithilingam and others in favour of Ganapathy. According
to the counsel, these two documents would throw some light on the title
and possession of the suit properties in favour of the plaintiffs. According
to him, the first appellate court without considering these two documents
dismissed the first appeal. A perusal of the judgment of the first appellate
court shows that I.A.No.21/2011 was dismissed. The counsel who
appeared on behalf of the appellants before the first appellate court did
not take any steps to mark these two documents. No revision was filed
against the dismissal of the petition by the first appellate court. These two
documents were not also filed before this court as additional documents.
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S.A.Nos.1327 & 1328 of 2011
13. Both the courts below have concurrently held that the
plaintiffs have not proved their possession over the suit properties and
this is purely based on oral/documentary evidence and by no stretch of
imagination it can be stated to be perverse. In view of the same the
substantial questions of law 1 & 2 are answered against the
plaintiffs/appellants in both the appeals.
14. It is also pertinent to mention that this a second appeal
under Section 100 of the Code of Civil Procedure where the jurisdiction
of the High Court is confined to substantial questions of law. A full
Bench of the Supreme Court in Bholaram Vs. Ameerchand reported in
AIR 1981 SC 1209 has held that the High Court cannot interfere with the
concurrent factual findings of court below in a second appeal. In fine,
these second appeals fail and are dismissed.
15. In the result,
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S.A.Nos.1327 & 1328 of 2011
i. the second appeals are dismissed. No costs.
Consequently connected miscellaneous petitions are
closed.
ii. The decree and judgment dated 21.04.2011 passed in
A.S. Nos.16 and 17 of 2009, on the file of the
Subordinate Court, Chidambaram, and the decree and
judgment dated 29.11.2008 passed in O.S. Nos.233
and 232 of 2002, on the file of the Principal District
Munsif, Chidambaram, are upheld.
24.03.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1.The Subordinate Judge, Chidambaram
2.The Principal District Munsif, Chidambaram.
3. The Section Officer, VR Section, High Court, Madras.
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S.A.Nos.1327 & 1328 of 2011
R. HEMALATHA, J.
bga
S.A.Nos.1327 & 1328 of 2011
24.03.2022
https://www.mhc.tn.gov.in/judis
