Madras High Court

Navaneetham vs Dhanabackiammal on 29 November, 2023

                                                                                 S.A.No.127 of 2018

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 29.11.2023

                                                        CORAM

                                  THE HONOURABLE MR. JUSTICE S.SOUNTHAR

                                                   S.A.No. 127 of 2018


              1.Navaneetham
              2.Elangovan
              3.S.P.Eswaran
              4.ChandraAmmal                                                     ...Appellants
                                                          Vs.

              Dhanabackiammal
              ...Respondent

              PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
              against the judgment and decree passed in A.S.No.45 of 2014 dated 13.03.2017
              on the file of Subordinate Judge, Vellore confirming the Decree and Judgment
              passed in O.S.No.565 of 2006 dated 18.06.2014 on the file of Principal District
              Munsif Court, Vellore.

                                  For Appellants          : M/s.R.T.Sundari

                                  For Respondent          : Mr.M.Sathish Kumar

                                                     JUDGEMENT

The unsuccessful defendants are the appellants. The respondent/plaintiff

filed a suit for bare injunction restraining the defendants from interfering with

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her peaceful possession and enjoyment of the suit property. She also sought for

permanent injunction restraining the defendants from putting up any

construction in the suit property. Pending the suit, the defendants appeared to

have put up construction in the middle portion of the suit property. Therefore,

the plaintiff amended the plaint and sought for mandatory injunction seeking

direction to defendants to demolish the illegally put up construction in the

middle portion of the suit property. The suit filed by the respondent/plaintiff was

decreed by the Trial Court. Aggrieved by the same, the appellants/defendants

preferred an appeal in A.S.No.45 of 2014 on the file of Sub-Ordinate Court,

Vellore. The First Appellate Court also concurred with the findings of the Trial

Court. Aggrieved by the same, the appellants/defendants are before this Court by

way of second appeal.

2.According to the appellants/defendants, the suit property originally

belonged to one Unnamalai Ammal. The said Unnamalai Ammal had three sons

namely Govindarajan, Narayanasamy and Krishnan. She died 60 years ago

leaving behind her sons as legal heirs to succeed her estate. The son of

Unnamalai Ammal namely Govindarajan had three daughters namely the

plaintiff, the 4th defendant and one Santhi. The legal heirs of said Santhi are

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defendants 1 to 3. It was averred by the appellants that Unnamalai Ammal son

Govindarajan and his brothers namely Narayanasamy and Krishnan were settled

down in Malaysia long back. The respondent/plaintiff got married in the year

1961. As the entire family of Govindarajan's sons and his brothers got settled

down in Malaysia, Govindarajan Mudaliyar and his brothers handed over the

suit property to the respondent/plaintiff and surrendered possession by allowing

the plaintiff to enjoy the suit property as absolute property without any

reservation. It was pleaded by the respondent/plaintiff that the suit property was

given to her in the year 1961 as sridhana for her marriage and from that date

onwards, she had been enjoying the property as an exclusive owner. The

defendants namely the legal representatives of one Santhi/deceased sister of

plaintiff and her another sister, the 4th appellant do not have any share in the suit

property. Earlier one Subramaniam and his mother Valliammal claimed right

over the suit property and hence, the respondent/plaintiff was constrained to file

a suit in O.S.No.285 of 1983 on the file of learned District Munsif Court, Vellore

for declaration of title and injunction against the said Valliammal and

Subranmanian. The appellants 1, 2 and 4 were also made as parties to the said

suit. The 3rd appellant was also given a notice of the proceedings for his

appointment as guardian of the 1st and 2nd appellants, who were minors at that

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point of time. Though 3rd appellant received notice, he failed to contest the suit

and represent the minor appellants 1 and 2. In such circumstances, the Court

guardian was appointed representing the minor appellants 1 and 2 in the said

suit. The above said suit in O.S.No.285 of 1983 was dismissed after trial.

Subsequently, the respondent/plaintiff preferred an appeal in A.S.No.69 of 1996.

The said appeal was partly allowed declaring the title of the respondent/plaintiff

over the present suit property excluding the northern 2 feet wall which was

shown as B schedule property in the said suit. The declaration and injunction

prayed for in the earlier suit was granted in respect of A schedule property which

is the present suit property. Since the plaintiff's title over the suit property based

on family arrangement was already declared in O.S.No.285 of 1983, the

appellants/defendants who were parties to the earlier suit were not entitled to

question the title of the respondent/plaintiff again. Since the defendants without

having any manner of right attempted to interfere with the possession of the

plaintiff, she was constrained to file a suit for the above said relief.

3. The appellants/defendants filed a written statement denying the title and

possession of the respondent/plaintiff over the suit property. The defendants in

their written statement specifically denied the plea of plaintiff that suit property

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was given to her as sridhana in the year 1961 by Govindarajan and his brothers.

The defendants also claimed possession over the suit property. It was also

averred by the defendants that they never made any attempt to put up new

construction in the suit property. It was further averred by the defendants in their

written statement that the decree passed in O.S.No.285 of 1983 would not bind

them as 1st and 2nd defendants, who were minors at that point of time were

represented by Court guardian in the said suit. On these pleadings, they prayed

for dismissal of the suit.

4. The Trial Court, on appreciation of oral and documentary evidence

available on record, came to the conclusion that title of the respondent/plaintiff

was declared even in the earlier suit in O.S.No.285 of 1983 as modified in

A.S.No.69 of 1996. The Trial Court also confirmed that the judgment and decree

passed in earlier litigation would bind the appellants herein and consequently,

the respondent was entitled to decree as prayed for. Aggrieved by the said

judgment and decree, the appellants preferred an appeal in A.S.No.45 of 2014

on the file of Sub-Court, Vellore. The First Appellate Court also confirmed the

findings of the Trial Court. Aggrieved by the same, the appellants have come by

way of second appeal.

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5. The learned counsel for the appellants submitted that the earlier suit

between the parties was not in respect of the very same suit property and in fact,

the earlier suit was only in respect of 2 feet northern wall and hence, the Courts

below erred in coming to the conclusion that in view of the declaration decree

granted in earlier suit, the respondent was entitled to decree as prayed for. The

learned counsel submitted that the plaintiff/respondent, who pleaded right over

the suit property under sridhana miserably failed to prove the same and hence,

both the Courts below committed error in coming to the conclusion that

plaintiff/respondent was entitled to decree as prayed for. The learned counsel for

the appellants submitted that earlier litigation between the parties was not in

respect of the same suit property and the same was only in respect of the

northern portion of the wall.

6. Both the Courts below, on proper appreciation of Ex.A27 to Ex.A45,

correctly came to the conclusion that A schedule property in the earlier suit is the

present suit property. In fact, the Trial Court in earlier litigation granted decree

only in respect of the B schedule northern wall portion. Aggrieved by the same,

the respondent/plaintiff preferred an appeal in A.S.No.69 of 1996. The appeal

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was partly allowed by granting declaration in respect of A schedule property. The

Courts below, on proper appreciation of documents relating to the earlier

litigation, came to the conclusion that the title of the respondent/plaintiff over the

suit property was declared in the earlier suit to which the appellants 1, 2 and 4

herein were parties. In fact, notice in earlier hearing was issued to 3rd appellant in

his capacity as guardian of 1st and 2nd appellants and he failed to appear before

the Court. Thereafter, the Court guardian was appointed to represent the minor

appellants 1 and 2, who were minors during earlier litigation. In such

circumstances, the Courts below correctly concluded when title of respondent

was declared in earlier suit, the present suit filed by the respondent for bare

injunction is deserved to be decreed.

7. Though the learned counsel for the appellants submitted that the

respondent failed to prove that the suit property was gifted to her as Sridhana,

the said point was considered in the earlier litigation and the plea of Sridhana

raised by the respondent was upheld and her title was declared. In such

circumstances, the appellants are not entitled to contend that respondent failed to

prove that the suit property which was given to her as sridhana gift at the time of

marriage. Therefore, the contentions raised by the learned counsel for the

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appellants are not acceptable to this Court. The Courts below, on proper

appreciation of evidence available on record, came to correct conclusion that title

of respondent was declared in earlier suit and consequently, she is entitled to

relief of injunction and mandatory injunction sought for in the present suit.

8. In such circumstances, I do not find any substantial questions of law

arising for consideration in this second appeal calling for interference while

exercising jurisdiction under Section 100 of CPC.

9. Accordingly, the second appeal stands dismissed.

a) by affirming the judgment and decree passed in A.S.No.45 of 2014

dated 13.03.2017 on the file of Subordinate Judge, Vellore confirming the decree

and judgment passed in O.S.No.565 of 2006 dated 18.06.2014 on the file of

Principal District Munsif Court, Vellore.