Madras High Court
Balamurugan vs Mookayee Ammal on 11 December, 2023
SA.No.548 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.12.2023
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.548 of 2022
and
C.M.P.No.9650 of 2023
Balamurugan ... Appellant
- Vs -
1. Mookayee Ammal
2. Sivaperuman ... Respondents
Second Appeal filed under Section 100 of the Civil Procedure Code
against the Judgment and decree dated 14.02.2020 made in A.S.No.98 of
2016 on the file of the Subordinate Court at Kallakurichi confirming the
Judgment and decree dated 18.11.2016 made in O.S.No.172 of 2012 on the
file of the II-Additional Munsif Court at Kalakurichi.
For Appellant : Mr.T.L. Thirumalaisamy
For Respondents 1 and 2 : Mr.K.A. Mariappan for
M/s G.V. Seethalakshmi
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1/11
SA.No.548 of 2022
JUDGMENT
This Court disposes of this Second Appeal as per the instructions of
My Lord the Hon'ble Chief Justice vide administrative order dated
29.09.2023.
2. The instant second appeal has been filed at the instance of the
plaintiff.
3.For the sake of convenience, the parties will be referred according to
their litigative status before the Trial Court.
4.The brief facts, which led to filing of the suit, are as follows:
The suit properties belonged to plaintiff's father ancestrally and by way
of self acquisition. He was in actual physical possession and enjoyment of the
same. Whileso, he executed a registered gift deed on 28.03.2012 settling the
suit properties in favour of the plaintiff. Hence, by virtue of the said
settlement deed, the plaintiff is in possession and enjoyment of the suit
properties. He is the absolute owner of the same. The revenue records also
stand in his name whereas, the defendants attempted to interfere with his
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possession. Hence, the plaintiff came forward with a suit seeking the relief of
permanent injunction.
5. The said suit was resisted by the defendants by contending that the
said settlement deed dated 28.03.2012 is null and void, as the plaintiff's father
did not have any right to execute such settlement deed. According to the
defendants, as against the father of the plaintiff herein and his brother, D1
filed a suit in O.S. No.1057 of 1994 on the file of the Second Additional
District Munsif Court, Kallakurichi. Wherein, the trial Court granted a decree
of declaration on 27.03.1997 in respect of item Nos.1 to 4, 8 and 11 to 17 of
the suit properties and also directed the D1 to take possession through Court
in respect of the decreed properties. Aggrieved by the Judgment of the Trial
Court dated 27.03.1997, the first appeal was filed by the defendants therein in
A.S. No.70 of 1997 on the file of the Subordinate Court, Kallakurichi.
However, the First Appellate Court by Judgment dated 25.10.1999 modified
the Judgment of the Trial Court holding that in items No.1 and 8, 0.10 cents,
in Item No.3, 1/5th share in Item No.4 and Item Nos. 11 to 17 belongs to D1
herein and set aside the Judgment of the Trial Court in respect of item No.2
of the suit properties in O.S.No.1057 of of 1994. Therefore, the instant suit
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is hit by the principles of res judicata as the plaintiff has not come forward
with true and correct facts, rather he suppressed the material facts.
6.Evidence and Documents:-
Before the Trial Court the plaintiff examined himself as P.W.1 and two
more witnesses as P.W.2 & P.W.3 and marked 13 documents as Ex.A1 to
Ex.A13. On behalf of the defendants, the D2 was examined as D.W.1 and six
documents were marked as Ex.B1 to Ex.B6.
7.Findings of the Courts below:-
The Trial Court, after having gone into various aspects, ultimately
dismissed the suit on the ground that when some items of the suit properties
were declared as the properties of the defendants and the defendants disputed
the plaintiff's title over the suit properties, in the absence of seeking the relief
for declaration, the plaintiff herein sought the relief of permanent injunction
alone, which could not be permitted. Aggrieved by the Judgment of the Trial
Court, the plaintiff approached the First Appellate Court by filing an appeal.
However, the First Appellate Court confirmed the findings recorded by the
Trial Court and dismissed the suit by the impugned judgment. Aggrieved by
that, the plaintiff is before this Court by way of this second appeal.
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8. On 07.06.2023, the Second Appeal was admitted on the following
substantial questions of law:-
“(i) Were not the Courts below in egregious
error in insisting that the appellant ought to have
sought declaration of his title when in terms of
Ex.A11 and confirmed in S.A.No.43 of 2003 the
plaintiff's right to be in possession of the suit property
have been upheld? and
(ii) Were not the Courts below in error in
declining a decree of prohibitory injunction when the
tenor of Ex.A10, Ex.A11 and also the Judgment in
S.A.No.43 of 2003 only requires the defendant/1st
respondent institute a separate suit for the recover of
possession which the defendant has not instituted?”
Submissions of the counsels:-
9. The learned counsel for the appellant has invited the attention of
this Court to the judgment rendered in S.A. No.43 of 2003 dated 02.12.2009
based on which, he submits that in the earlier round of litigation, even though
this Court confirmed the findings of the First Appellate Court through which,
the possession of the first defendant herein- Mookayee Ammal was
disbelieved, the present suit filed by the plaintiff for permanent injunction is
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very well maintainable. Hence, he prayed to allow the second appeal.
10. The learned counsel for the plaintiff/appellant would further
vehemently contend that the findings recorded by the First Appellate Court
in confirming the judgment of the Trial Court, dismissing the suit for not
seeking the relief of declaration is unwarranted, as there was a decree in
favour of the plaintiff in O.S.No.1057 of 1994 and it was confirmed by the
judgment of this Court in S.A.No.43 of 2003 dated 02.12.2009. The learned
counsel for the appellant would also submit that in the earlier suit, the
plaintiff herein was not granted any injunction and it was the finding that
certain properties therein are in the possession of the defendants therein
namely the father of the plaintiff herein and his brother and that the plaintiff
has not filed the present suit for recovery of possession.
11. Per contra the learned counsel for the defendants/respondents
would submit that in the earlier suit, which has been referred to by the
plaintiff herein, in O.S.No.1057 of 1994 was appealed in A.S. No.70 of 1997.
Wherein, the First Appellate Court, in respect of item Nos.1, 8 and 10, 0.10
cents, in Item No.4, 1/5th share and Item Nos. 11 to 17 declared the right of
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the D1. The learned counsel for the respondents would also submit that in
the earlier suit, the Trial Court has not granted the decree for permanent
injunction and in the first appeal, the First Appellate Court also granted the
relief of permanent injunction in respect of Item Nos.1,and 0.10 cents in item
No.3 1/5th share, in item no.4 and in respect of Item nos. 11 to 17. Therefore,
he would further submit that the plaintiff has approached this Court with
unclean hands. Hence, he prayed for dismissal of the second appeal
12. This Court has given its anxious consideration to either side
submissions.
Analysis:-
13. The core substantial question of law arising in this second appeal is
as to whether in the presence of earlier decree namely Ex.A10, the plaintiff
need not file a suit for relief of the permanent injunction. If we go by the
earlier decree, the Trial Court in O.S. No. 1057 of 1994 granted declaration in
respect of item Nos. 1,3,8 and 11 to 17 of the suit properties. Whereas, the
relief for injunction was not granted. In the first appeal in A.S.No.70 of 1997,
the First Appellate Court granted a decree for declaration and permanent
injunction only in respect of Item Nos.1,and 0.10 cents in item No.3 1/5th
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share, in item no.4 and in respect of Item nos. 11 to 17 and the decree for
injunction was not granted in favour of the first defendant. It was the
contention by the defendants/respondents before this Court that in view of the
judgment in the earlier suit, the settlement deed, which stands in the name of
the plaintiff is null and void and that the suit properties belong to the
defendants herein.
14. On a close reading of the plaint avernments, it is clear that the suit
properties are not the absolute properties of the plaintiff. Whereas, he became
the owner after the demise of his father Mr.Kandasamy and that his father
Mr.Kandasamy derived his title through their ancestors and also by way of
self acquisition. The common ancestors of the plaintiff and the first defendant
were one and the same. The First Appellate Court found that though a decree
for declaration was granted in favour of the first defendant for certain
properties, the plaintiff has sought for the relief of permanent injunction
suppressing the earlier judgment of the First Appellate Court.
15. It was also the finding of the First Appellate Court that when the
plaintiff' as well as defendants have common ancestor and that the defendants
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disputed the very title of the plaintiff and the execution of the settlement
deed, it is mandatory on the part of the plaintiff to seek the relief of
declaration also. Therefore, only upon the two grounds both the Court
dismissed the present suit. In respect of the first substantial question of law,
as already discussed herein above, in Ex.A11 decree no injunction was
granted. However, in the First Appeal injunction was granted in favour of the
first defendant, as confirmed by this Court in the earlier second appeal.
16. Therefore, when the D1's title has been declared in the earlier suit
in respect of item Nos.2,3,6 & 7 of the suit properties in the present suit, and
when the defendants are in possession and enjoyment of the suit properties,
the attempt made by the plaintiff seeking mere permanent injunction,
without seeking the relief of declaration, is contrary to the settled legal
principles. In this regard it is useful to refer to the Judgment of the Apex
Court in the case of Ananthula Sudhkar Vs. P. Buelin Reddy [2008 (4) SCC
594]. Thus, the substantial questions of law are answered in favour of the
respondents.
17. In the result, this second appeal is dismissed and the Judgment of
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the First Appellate Court is confirmed. No costs. Consequently, the
connected miscellaneous petition is closed.
11.12.2023
smn
To
1.The Subordinate Judge's Court at Kallakurichi
2. The II-Additional Munsif Court at Kalakurichi.
C.KUMARAPPAN, J
smn
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and
11.12.2023
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