Madras High Court
Nagarathinam Ammal vs Sivagami on 29 March, 2022
S.A.No. 1241 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No. 1241 of 2013
and
M.P.No. 1 of 2013
Nagarathinam Ammal ... Appellant
Vs
1. Sivagami
2. K. Sekar ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside
the Judgment and Decree dated 05.08.2013 in A.S.No.85 of 2012 on the
file of the Subordinate Court, Poonamallee and confirming the Judgment
and Decree dated 11.08.2012 in O.S.No.456 of 2003 on the file of the
District Munsif Court, Ambattur.
For Appellant : Mr.V. Balamurugane
For Respondents : Mr.S.Ilamvaluthi
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S.A.No. 1241 of 2013
JUDGMENT
The plaintiff is the appellant in this second appeal.
2. The plaintiff filed a suit seeking for the relief of permanent
injunction restraining the defendants from interfering with the peaceful
possession and enjoyment of the suit property.
3. The case of the plaintiff is that the suit properties originally
belonged to one Sakunthala and Lakshmi. The first defendant was also
one of the sister of Sakunthala and Lakshmi. The three sisters
partitioned the properties through a Koorchit dated 16.06.1983, marked
as Ex.A2. After the partition, Sakunthala and Lakshmi appointed a
power attorney agent to deal with their shares in the property. The
plaintiff purchased a plot to an extent of 892 ½ sq.ft under a registered
sale deed dated 18.03.1993, marked as Ex.A6 and this is shown as the
'A' Schedule property. The plaintiff and her family members constructed
a small thatched temple adjacent to the 'A' Schedule property and this
was shown as the 'B' Schedule property in the suit schedule.
4. The further case of the plaintiff is that the defendants are utter
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S.A.No. 1241 of 2013
strangers to the suit property and they attempted to trespass into the suit
properties. Left with no other alternative, the suit came to be filed
seeking for the relief of permanent injunction.
5. The defendant filed the written statement and took a stand that
the first defendant and her sisters Sakunthala and Lakshmi erected the
thatched hut with a deity and they never intended to give this property to
anyone. They took a further stand that the plaintiff does not have any
right over the 'B' Schedule property and they sought for the dismissal of
the suit.
6. Both the Courts below, on considering the facts and
circumstances of the case and after analysing the oral and documentary
evidence, concurrently held in favour of the plaintiff with respect to the
'A' Schedule property and granted the permanent injunction for this
property. The suit was dismissed insofar as the 'B' Schedule property is
concerned. Aggrieved by the same, the plaintiff has filed the second
appeal.
7. Heard, Mr.V.Balamurugane, learned counsel for the appellant
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S.A.No. 1241 of 2013
and Mr.S.Ilamvaluthi, learned counsel for the respondents. This Court
also carefully perused the materials available on record and the findings
of both the Courts below.
8. The issue involved in the second appeal only pertains to the 'B'
Schedule property since the relief has already been granted in favour of
the plaintiff for the 'A' Schedule property and it has became final.
Insofar as the 'B' Schedule property is concerned, both the Courts found
that the small thatched temple belongs to the family of the vendors of the
plaintiff from time immemorial and it was always treated as a common
property in order to perform poojas. Both the Courts also took into
consideration, Ex.C1, wherein the Commissioner had given a report
stating that even public are performing poojas in the 'B' Schedule
property. The Lower Appellate Court refused to entertain Ex.A2-
Koorchit and Ex.A7-Settlement Deed, since both these documents are
inadmissible in evidence. Apart from these two documents, the plaintiff
produced one 'B' Memo, marked as Ex.A8 and kist receipt, marked as
Ex.A9 and both the Courts found that the plaintiff cannot establish
ownership over the 'B' Schedule property through these documents. The
Courts below took into consideration the fact that there was a serious
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S.A.No. 1241 of 2013
dispute with regard to the ownership over the 'B' Schedule property and
the plaintiff had not sought for the relief of declaration of tile.
Accordingly, the suit for bare injunction was found not maintainable with
respect to the 'B' Schedule property.
9. In the considered view of this Court, the findings of both the
Court below with respect to the 'B' Schedule property does not suffer
from any perversity and there is no ground to interfere with the same. In
any event, no substantial questions of law are involved in the second
appeal.
10. In the result, this second appeal is dismissed. Consequently,
connected miscellaneous petition is closed. Considering the facts and
circumstances of the case, there will be no order as to costs.
29.03.2022
Index :Yes/No
Internet :Yes/No
Lpp
N. ANAND VENKATESH, J.
https://www.mhc.tn.gov.in/judis
S.A.No. 1241 of 2013
Lpp
To
1.The Subordinate Judge, Poonamallee.
2.The District Munsif, Ambattur.
S.A.No. 1241 of 2013
and
M.P.No. 1 of 2013
29.03.2022
https://www.mhc.tn.gov.in/judis
