Madras High Court
S.Sarasu vs M.Sakunthala on 2 March, 2023
S.A(MD)No.676 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.676 of 2014
1.S.Sarasu
2.Anbumani
3.Mahalakshmi
4.Janaki
5.S.Sivakumar ...Appellants
-Vs-
1.M.Sakunthala
2.M.Selladhurai ... Respondents
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 17.07.2013 made in
A.S.No.231 of 2012 on the file of the Ist Additional Subordinate Judge,
Tiruchirapalli, confirming the judgment and decree dated 19.06.2012 made in
O.S.No.944 of 1995 on the file of Principle District Munsif cum Judicial
Magistrate Court, Lalgudi.
1/8
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S.A(MD)No.676 of 2014
For Appellants : Mr.P.Thiagarajan
For Respondents : Ms.J.Anandavalli
JUDGMENT
The plaintiffs in the suit are the appellants. They filed a suit for bare
injunction and the same was dismissed. The first appeal filed by the appellants
before the first appellate Court was also dismissed. Challenging the concurrent
findings of the Courts below, the appellants are before this Court.
2. According to the appellants/plaintiffs, they are absolute owners of the
suit property. They claimed title to the suit property under a Will executed by his
maternal aunt, Anandayee Ammal, dated 25.04.1979. It was averred in the plaint
that the respondents are the southern owners of the suit property and they had no
right over the same. It was the case of the appellants that from 07.07.1991
onwards, the respondents tried to interfere with the possession of the appellants
and hence, they were constrained to file a suit for bare injunction.
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S.A(MD)No.676 of 2014
3. The respondents herein filed a written statement admitting that the
appellants are the owners of the suit property. However, the respondents claimed
that they are the cultivating tenants of the suit property. It was averred by the
respondents that they had been raising vegetable crops in the suit property by
contributing their physical labours. It was further averred that the father of the
deceased first defendant, namely, Vaithi Muthuraja was a cultivating tenant of the
suit property under the predecessor of the appellants, Anandayee Ammal. The
said Anandayee Ammal filed a suit for recovery of possession against Vaithi
Muthuraja in O.S.No.220 of 1971, on the file of the District Munsif Court, Trichy,
on the ground that Vaithi Muthuraja was holding over the property after expiry of
the lease period. The said suit was decreed. However, the respondents had been
continuously in possession and enjoyment of the suit property. It was also alleged
that there was a fresh lease deed executed on 10.06.1998 between the appellants
and the respondents.
4. The trial Court, on consideration of evidence available on record,
came to the conclusion that the appellants failed to establish their possession over
the suit property and dismissed the suit. Aggrieved by the same, the appellants
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S.A(MD)No.676 of 2014
filed an appeal in A.S.No.231 of 2012 on the file of First Additional Subordinate
Judge, Tiruchirappalli. The first appellate Court affirmed the findings of the trial
Court and dismissed the appeal. The first appellate Court had also rendered the
finding that the decree passed in O.S.No.2319 of 1992 filed by the deceased first
defendant Manivel against the appellants would operate as res judicata on the
present suit. Aggrieved by the said judgments and decrees, the appellants are
before this Court.
5. The learned counsel for the appellants tried to assail the findings
rendered by the Courts below on the ground that the respondents having pleaded
cultivating tenancy in respect of the suit property, failed to establish the same by
any acceptable evidence. The learned counsel further submitted that the decree
passed in O.S.No.2319 of 1992 against the appellants would not operate as
res judicata as the said suit was decreed ex parte without hearing the appellants.
The learned counsel further submitted that the judgment and pleadings in the
earlier suit were not produced by the respondents. So that without perusing the
pleadings and judgment in the earlier suit, the first appellate Court ought not to
have come to a conclusion that the decree in O.S.No.2319 of 1992 would operate
as res judicata against the present suit for bare injunction.
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S.A(MD)No.676 of 2014
6.The copy of Ex.B7 is produced before this Court by the learned
counsel for the petitioner. On perusal of the same, it is clear that the second
respondent and his father Manivel filed a suit for bare injunction in O.S.No.2319
of 1992 on the file of the District Munsif Court, Tiruchirappalli, against one
Krishnasamy and Sambasivam. The said Sambasivam is the original plaintiff in
the present suit filed by the appellants. The said Sambasivam died pending suit.
Therefore, the appellants were brought on record as his legal representatives. The
suit in O.S.No.2319 of 1992 filed by the second respondent and his father
Manivel against the predecessors of the appellants was decreed by granting an
injunction restraining the defendants therein from interfering with the possession
of second respondent and his father Manivel except by due process of law.
In fact, the present suit was originally filed by the deceased Sambasivam against
Manivel. Pending suit, Manivel passed away. Therefore, the respondents herein
were brought on record as his legal representatives.
7. Though the pleadings and the judgment in O.S.No.2319 of 1992 were
not produced before this Court, from the description of the property found in the
decree, it is clear that the suit in O.S.No.2319 of 1992 was filed by the second
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S.A(MD)No.676 of 2014
respondent and Manivel in respect of the very same suit property. However, in
the earlier suit, the extent of the suit property was mentioned as 10 cents with 24
coconut tress. In the present suit, the appellants mentioned the extent of the suit
property as 28 cents with 24 coconut tress along with a pond and samadhi. When
the decree for injunction is passed against the appellants in O.S.No.2319 of 1992
and the same is in operation atleast against a portion of the suit property, the
appellants are not entitled to maintain the suit for bare injunction. When
possession of the respondents was upheld in O.S.No.2319 of 1992, and limited
injunction was granted in favour of the respondents, the appellants are not entitled
to say that they are in possession of the property and seek injunction without
seeking to set aside the said decree on any of the grounds permissible under law.
8. Therefore, I do not find any error in the findings rendered by the
Courts below that the appellants failed to prove his possession over the suit
property. Consequently, the second appeal is dismissed as it does not involve no
substantial question of law. However, the dismissal of the suit for injunction filed
by the appellant would not come in the way of appellants maintaining a suit for
recovery of possession or any other relief, if so advised and permitted under law.
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S.A(MD)No.676 of 2014
9. In nutshell,
(i) The Second Appeal is dismissed by confirming the judgment and
decree, dated 17.07.2013, made in A.S.No.231 of 2012 on the file of
Ist Additional Subordinate Judge, Tiruchirapalli, confirming the judgment and
decree dated 19.06.2012 made in O.S.No.944 of 1995, on the file of Principle
District Munsif cum Judicial Magistrate Court, Lalgudi; and
(ii) In the facts and circumstances, there will be no order as to costs.
02.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
cp
To
1.The Ist Additional Subordinate Judge, Tiruchirapalli,
2.The Principle District Munsif cum Judicial Magistrate,
Lalgudi.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.676 of 2014
S.SOUNTHAR, J.
CP
S.A(MD)No.676 of 2014
02.03.2023
https://www.mhc.tn.gov.in/judis
