Madras High Court
Srinivasan vs Alammal (Died) on 6 March, 2023
S.A.No.1321 of 2007 & M.P. No.1 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.03.2023
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1321 of 2007 &
M.P. No.1 of 2007
1. Srinivasan
Anjapuli (died)
2. Arumugam
3. Sivanthayi Ammal ...Appellants
Vs.
1. Alammal (died)
2. Gandhi
3. Karuthal @ Kubendran
4. Nepolian ...
Respondents
RR2 to 4 brought on record as LRs of the deceased first
respondent vide order of Court dated 04.08.2021 made
in CMP Nos.9762, 9766 & 9763 of 2021 in S.A.
No.1321/2007.
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 31.01.2007 passed in A.S. No.83 of 2004, on
the file of the Subordinate Judge, Kallakurichi, reversing the decree and
judgment dated 05.03.2004 passed in O.S. No.321 of 1994, on the file of
the III AdditionalDistrict Munsif Court, Kallakurichi.
Page 1 of 14
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
For Appellants : Mrs.T.R. Gayathri
for M/s. Sarvabhauman Associates
For R2 & R3 : No appearance.
JUDGMENT
The appellants are the defendants 1,3 and 4 in
O.S.No.321/1994 on the file of the III Additional District Munsif Court,
Kallakurichi. The first respondent Alammal (since deceased) filed the
above suit for a permanent injunction restraining the defendants 1 to 4 in
the suit including the present appellants from interfering with her
peaceful possession and enjoyment of the suit properties and also for a
mandatory injunction to remove the wall in the second item of the suit
properties.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present appeal would also be indicated.
3. The first respondent/plaintiff filed two suits before the III
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
Additional District Munsif, Kallakurichi, one in O.S. No.321/1994 and
another in O.S. No.945/1997. The suit properties in both the suits are
one and the same. While O.S. No.321/1994 was filed for permanent
injunction restraining the defendants, his men or agents from interfering
with the plaintiff's possession and enjoyment of the suit properties and for
a mandatory injunction to remove the foundation which was put up for
constructing a wall (2 nd item of the suit properties), O.S.No.945/1997
was filed for the relief of bare injunction in respect of the very same suit
properties. Since the cause of action, parties and the suit properties in
both the suits were one and the same, they were tried simultaneously.
4. The case of the plaintiff is that the suit properties originally
belonged to one Arumugam. The plaintiff's husband filed a suit in Small
Causes Case No.625/71 against the said Arumugam for realising the loan
amount borrowed from him by the latter. A decree was passed in the
said suit and the suit property was sold in court auction in which the
plaintiff Alammal was the successful bidder. She took possession of the
suit properties as per the Delivery Receipt Ex.A2. Ever since the date of
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
court auction purchase, the plaintiff has been in possession and
enjoyment of the suit properties by paying necessary tax to the
Government (Ex.A3 to Ex.A10). According to the plaintiff, the
defendants, in order to grab the suit properties from the plaintiff, have
been interfering with her possession over the suit properties and also
trespassed into the 2nd item of the suit properties by putting up a
foundation. She, therefore, filed two suits as stated above.
5. The suit was resisted by the defendants on the following
grounds:
i. The suit Items 2 and 3 do not belong to Arumugam.
ii. The Suit Items 2 and 3 originally belonged to one Kuppan and
after his death his wife Poongavanam Ammal executed a Gift deed
dated 24.06.1965 (Ex.B4 marked in O.S.No.945/97) in favour of
one Arumugam, Son of Sengaraiyan.
iii. The said Arumugam sold the properties settled in his favour to the
4th defendant vide a registered sale deed dated 09.03.1970 (Ex.B5).
Ever since the date of purchase, the 4th defendant has been in
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
possession and enjoyment of suit items 2 and 3. Though the 4 th
defendant took steps to stop the sale in respect of suit Items 2 and
3, the sale was confirmed in favour of the plaintiff's husband, as
the plaintiff's husband had given wrong boundary description in
respect of suit Items 2 and 3.
iv. The 3rd defendant had put up construction only in his property
which was purchased on 03.03.1986.
v. All the allegations contained in the plaint are false. They,
therefore, prayed for dismissal of the suit.
6. The trial court on the basis of the above pleadings framed the
following issues:
i. Whether the plaintiff has acquired prescriptive right and right of
adverse possession over the suit property?
ii. Whether the plaintiff is entitled for the relief of permanent
injunction as prayed for?
iii. Whether the plaintiff is entitled to a relief of mandatory injunction
as prayed for?
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
iv. To what other relief plaintiff is entitled?
7. In the trial court in O.S. No.321/94, the plaintiff's husband
was examined as P.W.1 and Ex.A1 to Ex.A10 were marked. On the side
of the defendant no witenesses were examined and no documents were
marked. In O.S.No.945/97, the plaintiff examined herself and one
another witness and marked Ex.A1 to Ex.A11. On the side of the
defendants, the 2nd defendant examined himself and two other witnesses
and marked Ex.B1 to Ex.B5.
8. After full contest, the learned trial court judge, vide her
decree and judgment dated 05.03.2004 dismissed both the suits filed by
the plaintiff on the following grounds:
i. The plaintiff has not proved her continuous possession over the suit
properties.
ii. The Sale Certificate and Delivery receipt are not sufficient to hold
that the plaintiff has been in possession and enjoyment of the suit
properties.
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
iii. Except the oral evidence of P.W.1, there is no other material
records to substantiate the contention of the plaintiff. On the
contrary, the 4th defendant has filed Ex.B1 to B3, which would go
to show that he has been in possession and enjoyment of the suit
properties.
9. Aggrieved over the decree and judgment passed by the trial
court dated 05.03.2004, the plaintiff filed an appeal in A.S. No.83/2004
before the subordinate Judge, Kallakurichi. The learned Subordinate
Judge, after analysing the oral and documentary evidence adduced on
both sides, set aside the decree and judgment passed by the trial court
and allowed the appeal on the following grounds:
i. The suit Items 1 to 3 were sold in court auction in E.P. No.237/73
in S.C. No.625/71.
ii. The sale certificate (Ex.A1) clearly shows that the suit properties
were sold in favour of the plaintiff.
iii. There is no error apparent on the face of the document Ex.A1.
Moreover, the plaintiff had also taken possession of the suit
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
properties vide Delivery Receipt on 03.10.1973 (Ex.A2) through
court in the presence of witnesses. Thereafter the plaintiff and her
husband has been in continuous possession and enjoyment of the
suit properties.
iv. Though the 4th defendant claims title over the suit items 2 and 3
through a settlement deed dated 24.06.1965, he did not file the
said document.
v. Moreover, the suit properties were handed over to the plaintiff
subsequent to the sale in favour of the 4th defendant and the 4th
defendant did not take any steps to set aside the court auction sale.
vi. The evidence of P.W.1 clearly shows that she has been in
possession of the suit properties and the 2nd item of the suit
properties was encroached upon by the defendants.
vii.In such circumstances, the plaintiff is entitled for a permanent
injunction and mandatory injunction as prayed for.
10. Now the present Second Appeal is filed by the defendants
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
on the following substantial questions of law.
(1) Whether the lower appellate court is correct in reversing the
judgment and decree in O.S. No.321 of 1994 when the decree in
O.S. No.945 of 1997 passed by way of a common judgment
remains unchallenged and has become final?
(2) Whether the lower appellate court is justified in law in granting an
order of permanent injunction against a true owner?
(3) Whether the lower appellate court is correct in decreeing the suit
without considering the admission of the plaintiff that she sold
items 2 and 3 properties to the first defendant in O.S. No.945 of
1997 and she had no locus standi to maintain the suit for
injunction against her also?
11. Heard Ms.T.R. Gayathri, learned counsel for the
appellants. Though notice was served on the respondents, there is no
representation on behalf of the respondents.
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
12. Ms.T.R. Gayathri, learned counsel for the appellants
contended that when the defendants had clearly stated that the boundary
descriptions of the suit properties are incorrect, the first appellate court
did not take note of the same. She also drew attention of this court to the
cross examination of the plaintiff, wherein she had deposed that she and
her husband had sold 2nd item of the suit properties in favour of the 1 st
defendant. She had further deposed that the survey number of suit Items
2 and 3 are one and the same. Relying on the evidence of the plaintiff,
the learned counsel for the appellants contended that the first appellate
court had committed a grave error in decreeing the suit in favour of the
plaintiff especially when the plaintiff has not adduced any documentary
evidence to show that she has been in possession and enjoyment of the
suit properties. She also drew the attention of this Court to the evidence
of Murugesan (P.W.2), the husband of the plaintiff, who had deposed
that he sold suit items 2 and 3 in favour of the 1st defendant and that the
1st defendant has been in possession of suit items 2 and 3 for the past 30
years. She, therefore, would contend that the first appellate court was
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
wrong in granting the decree of permanent injunction and also mandatory
injunction as prayed for by the plaintiff.
13. The case of the plaintiff is that she purchased the suit
properties in court auction sale. The sale certificate (Ex.A1) and delivery
receipt (Ex.A2) were marked by her. However, her husband Murugesan
had deposed that he sold suit Items 2 and 3 in favour of the 1 st defendant
and that the 1st defendant is in possession of the same for the past 30
years. It is pertinent to point out that the plaintiff Aalammal was the
successful bidder in the court auction sale and the sale certificate and the
delivery receipt were issued in her favour. In such circumstances, the
husband of the plaintiff cannot say that he sold suit items 2 and 3 to the
first defendant and that the 1st defendant has been in possession and
enjoyment of suit items 2 and 3. In fact, the husband of the plaintiff in his
evidence had not given any details about the sale in favour of the 1 st
defendant by him and his wife. The first appellate court had rightly
observed that the defendants did not raise any objection in E.P.
No.237/73 in S.C. No.625/71 when the suit properties were brought for
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
court auction sale. Prior to the court auction, the property would have
been attached and even at that point of time the defendants did not take
steps to set aside the attachment made in respect of suit items 2 and 3. It
is also pertinent to point out that the plaintiff took possession of the suit
properties on 03.10.1973 in the presence of the witnesses as is seen from
delivery receipt Ex.A2. The 4th defendant having failed to take steps for
setting aside the Court auction sale, cannot now contend in the present
suit that he purchased the suit property in the year 1970. It is true that
the plaintiff did not enter into the witness box as far as the present suit is
concerned, but she was, in fact, examined by the trial court in the other
suit filed by her in O.S. No.945/1997 (which was tried simultaneously
with the present suit), in which she had clearly deposed about the court
auction sale and the sale receipt issued in her favour. In such
circumstances, I do not see any reason to interfere with the findings
recorded by the first appellate court especially when it is based on oral
and documentary evidence adduced on both sides. The substantial
questions of law are answered accordingly.
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
14. In the result,
i. the second appeal is dismissed. No costs.
consequently connected miscellaneous petition is
closed.
ii. the decree and judgment dated 31.01.2007 passed in
A.S. No.83 of 2004, on the file of the Subordinate
Judge, Kallakurichi, is upheld.
iii. the decree and judgment dated 05.03.2004 passed in
O.S. No.321 of 1994, on the file of the III Additional
District Munsif Court, Kallakurichi, is set aside.
06.03.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Subordinate Judge, Kallakurichi.
2. The III Additional District Munsif Court, Kallakurichi.
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.1321 of 2007 & M.P. No.1 of 2007
R. HEMALATHA, J.
bga
S.A.No.1321 of 2007 &
M.P. No.1 of 2007
06.03.2023
https://www.mhc.tn.gov.in/judis
