B.Balasubramani … vs B.Amuthaveni
2023 Latest Caselaw 13524 Mad

                                                                               S.A.No.722 of 2023


                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 05.10.2023

                                                     CORAM

                                  THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                               S.A.No.722 of 2023


                     B.Balasubramani                              … Appellant/Plaintiff

                                       Vs

                     B.Amuthaveni                              . . . Respondent / Defendant


                     Prayer: Second Appeal is filed under Section 100 of C.P.C against the

                     Judgement and Decree dated 15.09.2022 passed in A.S.No.44 of 2021

                     on the file of the I Additional Subordinate Judge, Erode, confirming

                     the judgment and decree dated 02.03.2020 in O.S.No.89 of 2016 on the

                     file of II Additional District Munsif Court, Erode.


                                       For Appellant     : Mr.M.Guruprasad


                     1/11



https://www.mhc.tn.gov.in/judis
                                                                                     S.A.No.722 of 2023


                                                     JUDGMENT

The unsuccessful plaintiff before the Courts below is the

appellant before this Court.

2. The parties are referred to in the same litigative status as

before the trial Court, namely, the II Additional District Munsif, Erode.

3. The plaintiff had filed O.S.No.89 of 2016 on the file of the

above Court, seeking the relief of permanent injunction restraining the

defendant, her men or agents from interfering with the plaintiff's

possession and enjoyment of the suit schedule properties which are two

items of property.

4. It is the case of the plaintiff that he had got married to the

defendant at Erode and out of this wedlock, they are blessed with two

sons. The plaintiff had started a small jewellery shop in Erode town

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

with the financial assistance of his father. He has been saving small

amounts from the income earned by him and out of this savings

amount and from the chit amount, on 25.06.2009, the plaintiff had

purchased the first item of the suit property, which was a vacant site

with a house at Periasemmur Village, Erode in the name of the

defendant.

5. On 06.09.2012, the property was mortgaged for a sum of

Rs.8,00,000/- and together with savings of Rs.4,00,000/-, the plaintiff

had put up further constructions on the said property. The plaintiff

would submit that he has been paying the monthly installment of

Rs.23,500/- to the bank for the loan.

6. It is the further case of the plaintiff that the second item of the

suit property was purchased by him on 19.11.2012 in the joint names

of himself and the defendant. The property measures an extent of 1820

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

sq.ft and is a house together with a vacant site. Both the properties are

house sites purchased in layout. It is his case that the second item of

the suit property was also mortgaged with Diwan Housing Finance

Corporation Limited, Erode for a sum of Rs.11,49,560/- towards

which the plaintiff is paying a monthly installment of Rs.15,503/-.

7. It is the case of the plaintiff that the defendant never saw eye

to eye with his parents and on her insistence, they had set up a separate

residence in the second item of the suit property along with their

children in the year 2014. The plaintiff would submit that the defendant

was often going to her parental home after picking up a quarrel with

the plaintiff. On 10.04.2014, the plaintiff had purchased another

property in his name in R.S.No.107/6 with two storied house and

vacant land by taking a loan of Rs.16,50,000/- which is being repaid by

him on a monthly installment of Rs.18,642/-.

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

8. In the month of October 2014, the defendant had left her

matrimonial home and not returned, which constrained the plaintiff to

file a petition for divorce in Family Court at Erode on 05.03.2015.

With an intent to usurp the property of the plaintiff, the defendant has

lodged a police complaint and during the mediation attempted by the

police authorities, the plaintiff and the defendant were asked to work

out their remedies elsewhere. On 26.02.2016, the defendant along with

her relatives and henchmen had attempted to trespass into the suit

properties and disturb the plaintiff's peaceful possession and

enjoyment. Hence, the plaintiff has come forward with the suit in

question.

9. The defendant had filed a written statement inter-alia denying

the allegations contained in the plaint and it is her specific case that the

properties were purchased by the defendant with the money provided

by her parents. It is her case that on 15.10.2014, she was chased out of

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

her matrimonial home since she had questioned the illicit relationship

that the plaintiff had with one Sukanthi. It is also her case that when

the bank loans were subsisting, the plaintiff had further borrowed from

one Vivekanandan by mortgaging the property and it was her brother

Sakthivel, who had repaid the loan of Rs.2,97,440/-. The second item

of the suit property, according to the defendant, is a joint property and

the plaintiff cannot seek an injunction against a co-owner, The

defendant is residing in the first floor of the “A” schedule property and

she is the joint owner of the second item of the suit property.

Therefore, there cannot be an injunction against her.

10. The II Additional District Munsif, Erode had framed a single

issue, namely, whether the plaintiff is entitled to the decree for

permanent injunction.

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

11. The plaintiff had examined himself as P.W1 and marked

Exs.A1 to A9. The defendant had adduced evidence as D.W1 and had

not marked any document in support of her case.

12. Ultimately, the learned II Additional District Munsif, Erode

by judgment and decree dated 02.03.2020 had dismissed the suit.

Challenging the said judgement and decree, the plaintiff had filed

A.S.No.44 of 2021 on the file of the I Additional Subordinate Judge,

Erode. The learned Subordinate Judge by judgment and decree dated

15.09.2022 was pleased to dismiss the appeal. Aggrieved by which,

the plaintiff is before this Court.

13.The Courts below have concurrently held that the plaintiff,

who had claimed that he had purchased the first and second items of

suit properties from the income earned by him in the name of the

defendant and in the joint names of himself and the defendant,

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

respectively, has failed to let in any documentary evidence to prove the

same. On the contrary, the Courts below have held that it is the

specific case of the defendant that the plaintiff had mortgaged her

jewellery, weighing about 40 sovereigns and from the amounts

received therein, the purchase has been made. This factum has not

been disputed by the plaintiff. The Courts below have also observed

that the defendant has paid the consideration towards the purchase of

the first item of the property which is evidenced by Ex.A1-Sale Deed.

Further, since the first item of the property stands in the name of the

defendant, the onus is upon the plaintiff to prove that he has

contributed to the purchase of both the first item as well as the second

item of the property. The plaintiff has failed to prove the same. That

apart, the suit is not one for declaration, but it is one for permanent

injunction. The plaintiff had contended that he has been paying the

monthly installments towards the loan, but however documents in

support of the same has not been filed. The defendant had contended

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

that she is residing in the first floor of the first item of the suit property

and is a joint owner of the second item of the property and there cannot

be an injunction against a co-owner.

14. Considering the fact that the plaintiff has not been able to

establish the case pleaded by him and taking note of the fact that the

defendant is residing in the first item of the property and the second

item of the property stands in the joint names of both plaintiff and the

defendant, the Courts below have rightly rejected the claim of the

plaintiff. The plaintiff has also not made out any substantial question

of law warranting interference of this Court. Accordingly, the Second

Appeal is dismissed. No costs.

05.10.2023

Index: Yes/No Speaking order/non-speaking order srn

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

To

1. I Additional Subordinate Judge, Erode,

2. II Additional District Munsif Court, Erode.

3. The Section Officer, V.R.Section, High Court, Madras.

https://www.mhc.tn.gov.in/judis S.A.No.722 of 2023

P.T.ASHA, J.,

srn

S.A.No.722 of 2023

05.10.2023

https://www.mhc.tn.gov.in/judis