Madras High Court
Gnanaraj vs Alagu Nachi on 15 June, 2023
S.A.(MD).No.500 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.06.2023
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
S.A.(MD).No.500 of 2022
and
C.M.P.(MD).Nos.6528 of 2022 and 4644 of 2023
Joseph Mary (died)
1.Gnanaraj
2.Joseph Felix Jerald
3.Jerome ... Appellants/LRs of Appellants/
LRs of Plaintiffs
(1st appellant Gnanaraj is recognized as Power Agent of the 2nd and 3rd
appellants vide Court order dated 08.07.2022 made in C.M.P.(MD).No.8996 of
2021 in S.A.(MD).SR.No.19847 of 2020)
Vs.
1.Alagu Nachi
2.Balamurugan ...Respondents/Respondents/Defendants
Prayer: Second Appeal is filed under Section 100 of CPC to set aside the
judgment and decree dated 26.08.2019 made in A.S.No.33 of 2017 on the file
of the II Additional Subordinate Court, Madurai, confirming the judgment and
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S.A.(MD).No.500 of 2022
decree dated 07.12.2016 made in O.S.No.235 of 2010 on the file of the District
Munsif Court, Madurai Taluk, Madurai and allow this Second Appeal.
For Appellants : Mr.S.Hameed Ismail
For Respondents : Mr.M.Arjun Varman
for M/s.Lajapathi Roy and Associates
JUDGMENT
This Second Appeal has been filed challenging the concurrent findings of
the Courts below. The appellants are the legal representatives of the deceased
plaintiff in the suit.
2. The plaintiff had filed a suit O.S.No.235 of 2010 on the file of the
District Munsif Court, Madurai Taluk, Madurai for a bare injunction restraining
the respondents/defendants from interfering with her peaceful possession and
enjoyment of the suit schedule property. The plaintiff claims that she is the
absolute owner of the suit schedule property having purchased the same under a
sale deed dated 19.11.1991 (Ex.A1).
3. However, the ownership of the plaintiff was disputed by the
respondents/defendants as seen from their written statement. They claim that
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S.A.(MD).No.500 of 2022
Alagu Nachi and Chinnaponnu, who are also the co-owners of the suit schedule
property, never executed a power of attorney in favour of Duraipandian under a
power of attorney dated 11.11.1991 registered as Document No.1208 of 1991,
SRO Mahal. According to the defendants, the suit schedule property originally
belonged to one Malaiyan. He had one daughter by name, Malaiyakkal. After
the death of Malaiyan, his daughter has succeeded his property. According to
the defendants, the said Malayakal had four sons and three daughters, by name,
a) Alagu, b) Perumal, c) Chinnaperumal, d) Machakalai, e) Alagi,
f) Alagu Nachi and g) Chinnaponnu. According to the defendants, Malaiyakkal
is still alive. According to the defendants, Alagu Nachi and Chinnaponnu did
not join in the execution of the power of attorney in favour of Duraipandian
along with Alagu, Perumal, Chinnaperumal, Machakalai, Alagi and her son
Malaiyan. According to the defendants, Alagu Nachi and Chinnaponnu also
claimed that the power of attorney was executed only to manage the suit
property and not to sell the same. However, according to the defendants, by
misusing the power of attorney, Duraipandian had executed a sale deed dated
19.11.1991 (Ex.A1) in favour of the plaintiff (late L.Joseph Mary). Hence,
according to the defendants, the plaintiff is not the absolute owner of the suit
schedule property and the defendants continued to be its absolute owner.
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S.A.(MD).No.500 of 2022
4. The Trial Court, namely, the District Munsif Court, Madurai Taluk,
Madurai based on the pleadings of the respective parties framed issues
including the issue as to whether the suit is maintainable as the plaintiff has not
filed a suit for declaration despite the fact that the defendants have categorically
contended that the plaintiff is not the absolute owner. Before the Trial Court,
the plaintiff had filed 11 documents which were marked as exhibits A1 to A11
and the husband of the plaintiff, by name, Gnanaraj was examined as P.W.1. On
the side of the defendants, eight documents were filed which were marked as
exhibits B1 to B8. Three witnesses were also examined on the side of the
defendants, namely, D.W.1 to D.W.3.
5. After giving due consideration to the oral and documentary evidence
available on record, the Trial Court by its judgment and decree dated
07.12.2016 in O.S.No.235 of 2010 on the file of the District Munsif Court,
Madurai Taluk, Madurai dismissed the suit filed by the plaintiff on the ground
that since there is a cloud over the title, a suit for bare injunction is not
maintainable without filing a suit for declaration to declare the plaintiff's title
over the suit schedule property.
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S.A.(MD).No.500 of 2022
6. Aggrieved by the judgment and decree of the Trial Court dated
07.12.2016 passed in O.S.No.235 of 2010, the plaintiff in the suit filed a first
appeal before the II Additional Sub Court, Madurai in A.S.No.33 of 2017. The
Lower Appellate Court by its judgment and decree dated 26.08.2019 confirmed
the findings of the Trial Court by dismissing the first appeal filed by the
plaintiff. Aggrieved by the concurrent findings of the Courts below, this
Second Appeal has been filed by the legal representatives of the plaintiff in the
suit.
7. Along with this Second Appeal, the appellants have now filed an
application in C.M.P.(MD).No.4644 of 2023 to receive additional documents as
additional evidence under Order 41 Rule 27 CPC. The additional documents
filed by the appellants are as follows:
a) certified copy of the power of attorney registered as Document
No.1208/1991,
b) Old Patta No.1875 and New Patta No.1875 in respect of the suit
schedule property.
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S.A.(MD).No.500 of 2022
8. Admittedly, Alagu Nachi and Chinnaponnu, who are also the legal
heirs of the deceased Malaiyakkal who was the original owner of the suit
schedule property, are not parties to the power of attorney registered as
Document No.1208/1991 in favour of one Duraipandian, who has executed the
sale deed dated 19.11.1991 (Ex.A1) in favour of the plaintiff. A categorical
stand has been taken in the written statement filed by the defendants that two of
the legal heirs of the deceased Malaiyakkal, who are also the co-owners, never
executed a power of attorney to enable Duraipandian to execute a sale deed in
favour of the plaintiff. The defendants have also contended that the power of
attorney executed in favour of Duraipandian was only to empower him to
manage the suit schedule properties and not for effecting sale.
9. Based on the oral and documentary evidence available on record, both
the Courts below have concurrently held that the evidence available on record
will clearly establish that there is a cloud over the title of the plaintiff over the
suit schedule property and hence, a bare injunction suit is not maintainable
without seeking for a declaratory relief to declare the plaintiff as the absolute
owner of the suit schedule property. This Court does not find any infirmity in
the findings of the Courts below as it is well settled law as laid down by the
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S.A.(MD).No.500 of 2022
various decisions of the Hon'ble Supreme Court as well as this Court that
whenever there is a cloud over the title, a bare injunction suit is not
maintainable without seeking for a declaratory relief as aforesaid. Hence, the
application filed by the appellant in C.M.P.(MD).No.4644 of 2023 to receive
additional documents, which includes the certified copy of the power of
attorney registered as Document No.1208/1991 in favour of Duraipandian, Old
Patta No.1875 and New Patta No.1875, cannot be entertained in view of the
fact that the very suit filed by the plaintiff for bare injunction is not
maintainable, since there is a cloud over the plaintiff's title over the suit
schedule property. Without filing a suit for declaration, the plaintiff has filed a
suit for bare injunction despite the fact that there is a cloud over her title in
respect of the suit schedule property as seen from the pleadings of the
defendants and the evidence available on record.
10. For the foregoing reasons, this Court is of the considered view that
the substantial questions of law raised by the appellants in the grounds of
appeal are all issues which have already been considered by the Courts below
and the Courts below have correctly held that the suit for bare injunction is not
maintainable in view of the cloud over the title of the plaintiff in respect of the
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S.A.(MD).No.500 of 2022
suit schedule property and that the plaintiff ought to have filed a suit for
declaration to declare that she is the absolute owner of the suit schedule
property. Hence, there is no merit in this Second Appeal. There is no
substantial question of law involved for further consideration by this Court
under Section 100 CPC. In the result, this Second Appeal is dismissed.
However, liberty is granted to the appellants to file a suit for declaration, if so
advised, to declare that they are the absolute owners of the suit schedule
property before the appropriate Civil Court. The defendants are also granted
liberty to raise whatever objections available to them under law in the proposed
suit to be filed by the appellants. There shall be no order as to costs.
Consequently, C.M.P.(MD).No.4644 of 2023 filed by the appellants to receive
additional documents as additional evidence is also dismissed. The connected
C.M.P.(MD).No.6528 of 2022 stands closed.
15.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
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S.A.(MD).No.500 of 2022
To
1.The II Additional Sub Court,
Madurai.
2.The District Munsif Court,
Madurai Taluk,
Madurai.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD).No.500 of 2022
ABDUL QUDDHOSE, J.
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S.A.(MD).No.500 of 2022
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