Madras High Court
S.Sonaimuthu vs Ganesan Asari ....1St on 1 March, 2023
S.A.(MD)No.341 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE. S. SOUNTHAR
S.A.(MD)No.341 of 2015
and
Cros.Obj.(MD)No.25 of 2015
S.Sonaimuthu ...Appellant / 4th Respondent
/ 4th Defendant
/Vs/
1.Ganesan Asari ....1st Respondent / Appellant
/ Plaintiff
2.State of Tamil Nadu
Rep.through the
District Collector,
Maruthupandiyar Nagar,
Sivagangai Town,
Sivagangai District.
3.Thiruppuvanam Panchayat Union
Represented by its Commissioner,
Manamadurai Taluk,
Sivagangai District.
4.The Panchayat President,
Thiruppachethi,
Manamadurai Taluk,
Sivagangai District.
5.Muthuraja ...Respondents 2 to 5
/ Respondents 1 to 3 and 5
/ Defendants 1 to 3 and 5
1/16
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S.A.(MD)No.341 of 2015
PRAYER: Second Appeal filed under Section 100 of Civil Procedure
Code to set aside the judgment and decree dated 19.08.2014 passed in
A.S.No.26 of 2012 on the file of the Sub-Court, Sivagangai which was
reversed in O.S.No.145 of 2003 on the file of the Principal District
Munsif, Manamadurai dated 10.11.2011.
For Appellant : Mr.C.Vakeeswaran
For R1 : Mr.S.Natarajan
For R2 to R4 : Mr.C.Baskaran
Government Advocate
For R5 : Notice dispensed with
JUDGMENT
The fourth defendant in the suit is the appellant. The first
respondent herein filed a suit for declaration of title and injunction. The
trial Court dismissed the suit. On appeal filed by the first respondent, the
first appellate Court confirmed the findings of the trial Court with regard
to the prayer for declaration, however, reversed the findings of the trial
Court with regard to the prayer for injunction and granted a qualified
injunction restraining the appellant and other respondents from
interfering with the possession of first respondent over a lesser extent of
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S.A.(MD)No.341 of 2015
property as mentioned in the decree. Aggrieved upon the qualified
injunction granted by the first appellate Court, the fourth defendant is
before this Court. The first respondent also filed a cross objection in
cross objection in Cros.Obj.(MD)No.25 of 2015 challenging the
dismissal of the first appeal in respect of the declaration prayer.
2. According to the first respondent / plaintiff, the suit property
was gifted to his grantfather, Periyasamy Asari, under Ex.A1, gift deed
dated 27.04.1909. It was averred in the plaint that Periyasamy Asari had
put up a thatched house in the suit property and resided there. After
death of Periyasamy Asari, the father of the first respondent, namely,
Mahalingam converted the thatched house into a tiled house and resided
there. After death of Mahalingam, the first respondent has been in
possession and enjoyment of the suit property by paying tax to the local
authority. It was also averred by the first respondent that in recognition
of his possession over the suit property, he was issued with Natham
Nilavarai Thittam patta under Ex.A16. It was also averred that the first
respondent had been in possession and enjoyment of the suit property by
putting up house and black smith shop (kollu pattarai). It was further
averred in the plaint that the respondents 2 to 5 attempted to interfere
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S.A.(MD)No.341 of 2015
with the possession of the first respondent claiming that the house and
black smithy (kollu pattarai) of the first respondent were in poramboke
properties. It was further averred that the appellant herein attempted to
interfere with the right of the first respondent without any manner of
lawful claim and hence, the first respondent was constrained to file the
suit for declaration and for injunction.
3. The appellant herein filed a written statement denying the title
of the first respondent over the suit property. The appellant specifically
averred in his written statement that the suit property was given to
Periyasamy Asari, grandfather of the first respondent, for the purpose of
putting up Pillaiyar temple with no right of alienation. Therefore, it is
the case of the appellant that the property was not given to Periyasamy
Asari in his individual capacity. It was further averred that patta granted
in the name of the first respondent was cancelled by the Revenue
Divisional Officer in a specific proceedings, which was marked as
Ex.B9. It was averred that the first respondent himself petitioned to the
second respondent stating that his house was removed by the authorities
and hence, the averment found in the plaint as if he was in possession of
the suit property was not correct. It was further averred that as per the
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S.A.(MD)No.341 of 2015
Field Map, the extent of said S.No.178/3 is only 0.00.52 ares, but not
3000 sq.feet as claimed by the first respondent. On these pleadings, the
appellant sought for dismissal of the suit. The respondents 2 to 5 also
filed a written statement denying the right and possession of the first
respondent over the suit property.
4. The trial Court, on consideration of oral and documentary
evidence available on record, came to a conclusion that the suit property
was not given to grandfather of the first respondent, namely Periyasamy
Asari in his individual capacity and consequently, the first respondent
was not entitled to declaration as prayed for. The trial Court also based
on evidence available on record, came to the conclusion that the first
respondent was not entitled to the consequential relief of injunction and
dismissed the suit. Aggrieved by the same, the first respondent filed an
appeal in A.S.No.26 of 2012 on the file of the Sub Court, Sivagangai.
The first appellate Court confirmed the findings of the trial Court with
regard to the declaration prayer. However, the first appellate Court came
to the conclusion that the possession of the first respondent over lesser
extent of property was admitted and hence he was entitled to qualified
injunction restraining the appellant and other respondents from
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S.A.(MD)No.341 of 2015
interfering with his possession by due process of law. Aggrieved by the
same, the appellant has come up by way of this Second Appeal.
Challenging the Judgment of the first appellate Court confirming the
findings of the trial Court with regard to the prayer for declaration, the
first respondent also filed a cross objection in Cros.Obj.(MD)No.25 of
2015.
5. This Court, at the time of admitting the Second Appeal,
formulated the following the substantial questions of law:
“1.Whether the Lower Appellate Court has committed
an error in law in granting the relief of permanent injunction
with a qualification that it shall be restricted to evicting the
Plaintiff without adopting, due process of law, when the relief
of injunction has been sought for as a consequential relief
based on the main relief of declaration of title?
2.Whether the Lower Appellate Court has committed an
error in law in not considering the fact that the adjudication of
rights of the parties in a suit filed by the Plaintiff himself for
injunction shall be construed as a due process of law?
6. The learned counsel appearing for the appellant, elaborating the
substantial questions of law formulated at the time of admission,
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S.A.(MD)No.341 of 2015
submitted that when first appellate Court came to the conclusion that the
first respondent / plaintiff was not entitled to the main relief of
declaration ought not to have granted the consequential relief of
injunction. The learned counsel further submitted that Ex.A1, Gift deed
in favour of Periyasami Asari established that the suit property was given
for construction of Pillaiyar Temple and it was not given to Periyasamy
Asari in his individual capacity. The first respondent has not come to the
Court with true facts. The learned counsel further submitted that patta
issued in favour of the first respondent under Ex.A16 was cancelled by
the Revenue Divisional Officer by subsequent proceedings under Ex.B9
and the same was suppressed by the first respondent. The learned
counsel by taking this Court to the reports of the Advocate
Commissioner, Exs.C1 to C4, submitted that if the suit property is
measured with reference to Ex.A1, it covers the house of the third
person, namely Malliga, Pillaiyar Temple and Madurai Ring Road Etc.
Therefore, it is the submission of the learned counsel that the first
respondent has not given proper measurements of the suit property and
consequently his prayer for injunction must fail.
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S.A.(MD)No.341 of 2015
7. The learned Senior Counsel appearing for the first respondent
submitted that the possession of the first respondent over lesser extent of
suit property was very much admitted by the appellant even in his written
statement. Therefore, there is no dispute with regard to the possession of
the first respondent. The learned counsel further submitted that when a
party approached the Court with a larger relief, in the facts and
circumstances of the case, the Court can always grant a lesser relief. In
the case on hand, the first respondent prayed for declaration of his title
and unqualified injunction in his favour. However, the first appellate
Court thought it fit to grant lesser relief of qualified injunction to protect
the possession of the first respondent. Therefore, the decree passed by
the first appellate Court granting qualified injunction in favour of the
first respondent need not be interfered with. The learned Senior Counsel
by taking this Court to the recitals found and Ex.A1, Gift Deed executed
in favour of Periyasami Asari submitted that the property was given to
Periyasami Asari with a condition that he has to perform certain
obligations. Merely because the property is burdened with certain
obligations, it cannot be said that the property was not gifted to
Periyasami Asari. Therefore, the Courts below mis-appreciated the
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S.A.(MD)No.341 of 2015
recitals found in Ex.A1 and wrongly dismissed the prayer for declaration
of title.
8. The learned Senior Counsel appearing for the first respondent,
in respect of his contention that the Courts are empowered to grant a
lesser relief, relied upon on the Judgment of the Hon'ble Supreme Court
in the case of Sopanrao and another vs. Syed Mehmood and others
[2019 (4) CTC 730].
9. The learned Government Advocate appearing for the
respondents 2 to 4 submitted that recitals found in Ex.A1, Gift Deed
make it clear that the property was not given to Periyasami Asari
individually and hence, the Courts below were justified in dismissing the
prayer for declaration. He further submitted that a perusal of Exs.C1 to
C4 would make it clear that the first respondent failed to give correct
description of the suit property and hence, he is not entitled to the relief
of injunction in the absence of proper identity of the property in his
favour.
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S.A.(MD)No.341 of 2015
10. Heard the arguments of the learned counsel appearing for the
appellant, the learned Senior Counsel appearing for the first respondent /
cross objector and the learned Government Advocate appearing for the
respondents 2 to 4. Perused the records and typed set of papers.
11. The learned counsel appearing for the appellant filed a memo
dated 20.12.2022 stating that the fifth respondent is not a necessary party
as he is not seeking any relief against him. The memo is recorded.
Notice to the fifth respondent is dispensed with.
12. As far as the contention raised by the learned counsel
appearing for the first respondent / cross objector with regard to the
dismissal of the suit in respect of the prayer for declaration, a perusal of
recitals found in Ex.A1, gift deed executed in favour of Periyasami Asari,
grandfather of the first respondent would make it clear that the property
was given only for the purpose of putting up Pillaiyar Temple. It was not
given to Periyasami Asari for putting up his residential house. Therefore,
neither Periyasami Asari nor his descendents are having absolute right
over the suit property. Therefore, the Courts below, by properly
appreciating the recitals found in Ex.A1, came to the conclusion that the
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S.A.(MD)No.341 of 2015
first respondent / plaintiff cannot claim absolute right over the property
under Ex.A1 and dismissed the prayer for declaration of title. I do not
find that the appreciation of recitals by the Courts below is vitiated by
any perversity. Therefore, the said finding of the Courts below is
confirmed.
13. The learned counsel appearing for the first respondent / cross
objector forcefully submitted that when the appellant himself admitted
the possession of the first respondent over lesser extent of the suit
property in his pleadings, the first appellate Court was justified in
granting a qualified injunction to protect his possession. The first
respondent in his plaint averment has stated that in recognition of his
possession, Natham Nilavarai Thittam patta was issued in his favour
under Ex.A16. However, as contended by the learned counsel appearing
for the appellant, the said patta was cancelled by the order passed by the
Revenue Divisional Officer under Ex.B9. Therefore, it is clear that the
first respondent, who approached the Court seeking equitable relief of
injunction projected his case, based on a document, which was already
set aside by the higher authority. However, in the plaint pleadings, the
first respondent claimed that the property was given to his grandfather,
Periyasami Asari under Ex.A1 and he had put up a house thereon.
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S.A.(MD)No.341 of 2015
14. As discussed earlier, the recitals in Ex.A1 make it clear that
the property was given for the purpose of putting up Pillaiyar Temple and
it was not given to Periyasami Asari individually for putting up his own
house. Therefore, the claim made by the first respondent as if he was
entitled to the absolute right over the suit property under Ex.A1 is far
from truth. Therefore, it is clear that the first respondent is guilty of
suppression of material facts. It is settled law that a person who seeks
equity must do equity. The first respondent, who approached the Court
with tainted hands cannot expect the Court to exercise its discretionary
power in his favour.
15. With regard to the proposition that the Courts are empowered
to grant a lesser relief as against the larger relief prayed by the plaintiff,
there is no quarrel that the Courts are empowered to grant a lesser relief.
However, in the case on hand, the first respondent approached the Court
with tainted hands. Therefore, the first appellate Court ought not to have
exercised its equitable jurisdiction and granted a qualified injunction in
favour of the first respondent. Therefore, the judgment and decree relied
upon by the learned Senior Counsel appearing for the first respondent
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S.A.(MD)No.341 of 2015
reported in Sopanrao and another vs. Syed Mehmood and others
reported in [2019 (4) CTC 730] will not advance his case.
16. The Advocate Commissioner's reports, which were marked
Ex.C1 to C4 would suggest that if the property is measured with
reference to Ex.A1, it covers Pillaiyar Temple, house of Malliga and
Madurai Ring Road. The Survey Field Map, Ex.B6, relevant to S.No.
178/3 would make it clear that east west measurement of the survey
number on the northern side is five meters, the east west measurement on
the southern side is 5.8 meters, the north south measurement on either
side is 8.8 meters, the property on east of S.No.178/3 is 178/4 and 5,
wherein the Pillaiyar Temple is situated and the property on the north of
S.No.178/3 is 178/1, which is poramboke (voorani). Therefore, it is clear
that the first respondent has not given proper description of the suit
property. The extent given in the plaint description as if the extent of
S.No.178/3 is 3,000 sq.ft., may not be correct.
17. In view of the conclusion reached by this Court that the first
respondent has not approached the Court with true facts and the
description of the property as given in the plaint schedule is not correct.
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S.A.(MD)No.341 of 2015
The first appellate Court ought not to have granted a qualified injunction
in favour of the first respondent. Consequently, the same is liable to be
interfered with.
18. In view of the discussions made earlier, the substantial
questions of law framed at the time of admission are answered in favour
of the appellant and this Second Appeal is allowed by setting aside the
Judgment and decree passed by the first appellate Court. The cross
objection filed by the first respondent is dismissed.
19. In a nutshell,
(a) this Second Appeal is allowed by setting aside the Judgment
and decree passed by the first appellate Court insofar as the relief of
injunction is concerned;
(b) the Judgment and decree passed by the first appellate Court in
respect of the prayer for declaration is confirmed;
(c) Cros.Obj.(MD)No.25 of 2015 filed by the first respondent is
dismissed;
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S.A.(MD)No.341 of 2015
(d) In the facts and circumstances, there shall be no order as to
costs.
01.03.2023
Index: Yes / No (2/2)
NCC : Yes / No
Sm
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S.A.(MD)No.341 of 2015
S. SOUNTHAR, J.
Sm
TO:
1.The Sub-Court, Sivagangai.
2.The Principal District Munsif, Manamadurai.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.341 of 2015
(2/2)
01.03.2023
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