A.Ramalingam vs A.Shanmugam
2022 Latest Caselaw 16626 Mad

                                                                                               S.A.No.767 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED: 19.10.2022

                                                              CORAM

                                        THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                                        S.A.No.767 of 2022

                     A.Ramalingam                                               ...Appellant
                                                                 Vs

                     A.Shanmugam                                                ... Respondent

                     Prayer: Second Appeal is filed under Section 100 of C.P.C against the
                     Judgement and Decree dated 10.12.2020 made in A.S.No.80 of 2019 by the
                     I Additional Subordinate Judge at Erode upheld the Judgment and Decree
                     dated 26.07.2016 by the Chief District Munsif Court, Erode in O.S.No.37 of
                     2014.


                                        For Appellant       : Mr.K.Karthikeyan


                                                          JUDGEMENT

The plaintiff in a suit for bare injunction who has lost before both the

Courts below is the appellant before this Court.

https://www.mhc.tn.gov.in/judis S.A.No.767 of 2022

2. The facts in brief are narrated herein below and the parties are

referred to in the same ranking as before the trial Court.

3. The plaintiff had filed O.S.No.37 of 2014 on the file of the

Principal District Munsif, Erode seeking a decree for injunction restraining

the defendant from in any manner interfering with his peaceful possession

and enjoyment of the suit schedule property. The suit property has been

described as follows:

DESCRIPTION OF PROPERTY

''<nuhL gjpt[ khtl;lk;. N:uk;gl;o rhh; gjpt[ khtl;lk;. <nuhL tl;lk;. g["i ; rfhsk';fyk; fpuhkk;. giHa f/r/be/4. g[jpa hP/rh;nt vz;/844-1 g[/bcwf;/0/71/5f;F juk; U:/1/18.

,jpy; g[/V/0/74 brz;l; tp!;jPuz g{kp thjpf;Fg;ghj;jpag;gl;Lk; thjpapd; mDgtj;jpy; cs;sJkhd g["i; r g{kp tifauht[f;Fr;brf;Fge;jp

bjd;tly; ,l;nlhpf;Fk; ///fpHf;F fpHnky; fhsp';fuhad; tha;f;fhYf;Fk; ///bjw;F khug;gf;ft[z;lh; g{kpf;Fk;. Mh;/Jiurhkp g{kpf;Fk; ///nkw;F fpHnky; g[wk;nghf;F Vhpf;Fk; ///tlf;F

https://www.mhc.tn.gov.in/judis S.A.No.767 of 2022

,jd;kj;jpapy; cs;s g[/V/0/74 brz;l; tp!;jPuz ePh;f;Typ g["i ; r g{kp g{uht[k;. nkw;go g{kpapd; tlnkw;F K:iyapy;

cs;s thzp fpzw;wpy; ghj;jpaKk;. nkw;go fpzw;wpy; cs;s Mapy; vd;$pd; gk;g; brl; ghj;jpaKk; rfpjk;/

nkw;go g{kpf;Fhpa khK:y; tHpeil. tz;og;ghij. jlghj;jpak rfpjKk;/ nkw;go g{kpf;Fhpa ghrd trjpfs; rfpjKk; nrh;e;J g{uht[k;/ nkw;go brhj;J fzgjpghisak; Cuhl;rp xd;wpa vy;iyf;Fl;gl;lJ/''

4. It is the case of the plaintiff that he had purchased 37 cents of

undivided share of the property from one A.Ramasamy, the brother of the

defendant herein and that he has been in possession on the same from the

date of sale. With reference to the remaining extent of 37 cents it is the case

of the plaintiff that he has entered into an agreement of sale with the

defendant and his sons under an agreement dated 12.10.1999, wherein, the

plaintiff had agreed to purchase the said property for a total sale

consideration of Rs.55,500/- and that on the date of agreement, Rs.50,000/-

has been paid and a balance of Rs.5,500/- was to be paid after two years.

The plaintiff would further contend that since the said Shanmugam and

https://www.mhc.tn.gov.in/judis S.A.No.767 of 2022

others had not come forward to execute the sale had he had filed

O.S.No.442 of 2004 before the District Munsif Court, Erode for specific

performance. The suit was dismissed by the judgment and decree dated

27.10.2005, against which the plaintiff had preferred an appeal before the

learned I Additional Subordinate Judge, Erode. That appeal was also

dismissed by judgment dated 18.08.2006, wherein, the learned Subordinate

Judge had observed that the plaintiff would be entitled to recover all the

advance amount. The plaintiff had accordingly filed execution proceedings

against A.Shanmugam in E.P.No.2 of 2011 for recovery of money and the

same was pending.

5. While so, it is the contention of the plaintiff that the defendant is

interfering with his possession and enjoyment of the suit property and

therefore, the plaintiff has come forward with the suit in question.

6. The suit has been filed for an injunction in respect of 74 cents,

despite the fact that the plaintiff's suit for specific performance had been

https://www.mhc.tn.gov.in/judis S.A.No.767 of 2022

dismissed and confirmed in appeal. The defendant had filed written

statement inter-alia contending that the extent of 74 cents originally

belonged to one Ayeeappa Nadar, father of A.Shanmugam. Ayeeappa

Nadar died intestate leaving behind his two sons Ramasamy and

Shanmugam and three daughters Saraswathi, Angammal and Pavayee.

Pavayee had died intestate leaving behind a son called Venkatachalam and a

daughter by name Lakshmi. By reason of the death of Ayeeappa Nadar, all

the legal representatives became entitled to 1/5 share in the property.

Therefore, the alleged vendor of the plaintiff had only a 1/5 share in the

property. The defendant had also denied the purchase of 37 cents by the

plaintiff from Ramasamy. He had also contended that Ramasamy was not

entitled to 37 cents since he only owned a 1/5 undivided share. Therefore,

each of the owner would be entitled to an extent of 14.8 cents. In the

meanwhile, one of the sisters had filed a suit for partition and separate

possession in O.S.No.767 of 2001 on the file of the Sub-Court, Erode and

preliminary decree came to be passed on 05.03.2002. On 31.01.2006, the

defendant had purchased 3/5 shares from Saraswathi, Angammal and

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Venkatachalam and Lakshmi for a valid consideration. Therefore, the

defendant had filed I.A.No.195 of 2008 for passing of a final decree. Final

decree was also passed on 21.09.2010 and the defendant was allotted 44.5

cents with specific boundaries in the property and possession was also taken

by the defendant. The defendant would further contend that even when the

suit for specific performance filed by the plaintiff has been dismissed, he

has not mentioned about the sale by A.Ramasamy in his favour. The

plaintiff had also entered appearance in the execution proceedings and filed

an application in E.A.No.178 of 2013. In the said proceedings, the plaintiff

has acknowledged the ownership of Ayeeappa Nadar to the property.

Therefore, he sought to have the suit dismissed.

7. The learned Principal District Munsif, Erode by judgment and

decree dated 26.07.2016 was pleased to dismiss the suit. Challenging the

same, the plaintiff had filed A.S.No.80 of 2019 on the file of the I

Additional Subordinate Judge, Erode. The learned Judge also concurred

with the findings of the trial Court and dismissed the appeal. Aggrieved by

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the same, the plaintiff is before this Court.

8. Heard the learned counsel for the appellant and perused the

materials available on record.

9. The plaintiff claims a right to an extent of 74 cents under two

documents. Ex.A1-Sale Deed, dated 05.06.2000 and Ex.A4-Agreement of

Sale. In both these documents, the subject matter is 37 cents each in Survey

No.844/1. The defendant would submit that the vendor of the plaintiff under

Ex.A1, sale deed did not have the right to alienate 37 cents since he was a

owner of only a 1/5 share in the total extent of 74 cents. Further, as regards

the agreement of sale Ex.A4, even prior to its execution, the preliminary

decree had been passed in O.S.No.767 of 2001, whereby each of the legal

representatives of Ayeeappa Nadar was allotted 1/5 shares and ultimately

final decree was passed on 21.09.2010 itself. Therefore, each of the sharers

was held to be entitled to only an extent of 14.8 cents. The suit filed by the

plaintiff for specific performance on the basis of Ex.A4 agreement of sale

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had been dismissed and confirmed in appeal and therefore, the plaintiff's

claim in respect of an extent of 37 cents which was agreed to be sold by one

of the legal representatives to him is not maintainable. With reference to the

other extent of 37 cents covered under Ex.A1 sale deed, the vendor of the

plaintiff had a right only to an extent of 14.8 cents constituting his 1/5th

share in the suit property. The suit being one for injunction the plaintiff has

to prove his possession of the property subject matter of suit. The suit is in

respect of 74 cents whereas from the discussion above the plaintiff's right is

only to an extent of 14.8 cents. Therefore, the plaintiff cannot have a decree

in respect of the property of which he has not entitled to. Both the Courts

below have rightly dismissed the suit and I see no reason to interfere with

the same. Further, no substantial questions of law arise in the above second

appeal.

10. Accordingly, the second appeal is dismissed and Judgement and

Decree dated 10.12.2020 made in A.S.No.80 of 2019 by the I Additional

Subordinate Judge at Erode upheld the Judgment and Decree dated

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26.07.2016 by the Chief District Munsif Court, Erode in O.S.No.37 of 2014

are confirmed. No costs.

19.10.2022

Index : Yes/No Speaking order/non-speaking order ssn

To

1. The I Additional Subordinate Judge, Erode.

2. The Chief District Munsif Court, Erode.

3. The Section Officer, V.R.Section, High Court, Madras.

https://www.mhc.tn.gov.in/judis S.A.No.767 of 2022

P.T.ASHA, J.,

ssn

S.A.No.767 of 2022

19.10.2022

https://www.mhc.tn.gov.in/judis