S.Parthiban vs P.Vengiyan
2022 Latest Caselaw 6089 Mad

                                                                                 SA.No.136/2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 24.03.2022

                                                      CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                       SA.No.136/2022 and CMP.No.2813/2022


                    S.Parthiban                                       .. Appellant/Plaintiff

                                                       Vs.

                    1.P.Vengiyan
                    2.P.Marimuthu                                 .. Respondents/Defendants

                    Prayer:- Second Appeal preferred under 100 of CPC against the judgment

                    and decree passed in AS.No.44/2016 on 28.09.2021 by the learned

                    Additional Subordinate Judge, Kallakurichi confirming the judgment and

                    decree in OS.No.389/2011 on the file of the learned 3rd Additional District

                    Munsif, Kallakurichi on 29.01.2016.



                                      For Appellant          :   Mr.V.Ramamurthy




https://www.mhc.tn.gov.in/judis
                                                                                     1 Page of 5
                                                                                             SA.No.136/2022




                                                          JUDGMENT

(1) The unsuccessful plaintiff before the Courts below is the appellant

in the above Second Appeal.

(2) The plaintiff/appellant has filed the suit in OS.No.389/2011 for

bare injunction. It is the case of the plaintiff/appellant that the suit

property originally belonged the grandfather of plaintiff. It is

further stated that the plaintiff 's grandfather executed a Will in

favour of the plaintiff 's mother in the year 1984 and that the

mother of plaintiff had subsequently executed a Settlement Deed in

favour of the plaintiff in respect of the suit property.

(3) Both the Courts have concurrently found that the plaintiff who has

come to Court for permanent injunction on the basis of his title, has

failed to prove his case. After considering the pleadings and

evidences, the Courts below have found that the property which

was covered under the Will in favour of plaintiff 's mother is not

the property that was conveyed by the plaintiff 's mother in favour

of the plaintiff under the Settlement Deed. Therefore the Courts

https://www.mhc.tn.gov.in/judis 2 Page of 5 SA.No.136/2022

below have held that the plaintiff is not entitled to title and a decree

for permanent injunction cannot be given in favour of the plaintiff

based on title.

(4) Learned counsel appearing for the appellant has ultimately

conceded that the property covered under the Will executed by the

plaintiff 's grandfather in favour of his mother is not the property

that was conveyed in his favour under the Settlement Deed and that

the suit property is not the subject matter of Will that was executed

by the plaintiff 's grandfather in favour of the plaintiff 's mother.

This finding is intact. The case of the appellant that the suit

property was bequeathed under the Will in favour of the plaintiff 's

mother cannot be countenanced.

(5) Though learned counsel appearing for the appellant raised several

issues, this Court is unable to find any merits in any of the

submissions of the learned counsel appearing for the appellant and

the Courts below have categorically found that the plaintiff is not

entitled to any relief as he has not established his title so as to seek

permanent injunction. None of the questions of law raised by the

https://www.mhc.tn.gov.in/judis 3 Page of 5 SA.No.136/2022

appellant in the Second Appeal have any substance.

(6) Having regard to the concurrent findings of the facts by the Courts

below, the identity of the suit property is not an issue and therefore,

this Court is unable to find any merits in the above Second Appeal.

(7) Learned counsel appearing for the appellant seeks liberty before

this Court to file a suit for declaration of title. The plaintiff has

already filed the suit for bare injunction based on his claim of title.

When the plaintiff is unable to prove his title in the present suit, he

cannot be given an opportunity to establish his title based on

different source or cause as the decision against him in the present

suit will operate as res judicata and hence the request is declined.

(8) In the result, the Second Appeal is dismissed.

24.03.2022 cda Internet : Yes

To

1.The Additional Subordinate Judge Kallakurichi.

2.The 3rd Additional District Munsif Kallakurichi.

3.The Section Officer VR Section, High Court, Chennai.

https://www.mhc.tn.gov.in/judis 4 Page of 5 SA.No.136/2022

S.S.SUNDAR, J.,

cda

SA.No.136/2022 and CMP.No.2813/2022

24.03.2022

https://www.mhc.tn.gov.in/judis 5 Page of 5