Madras High Court
Chandira Ammal … vs Kanniyappan on 10 October, 2023
S.A.Nos.512 and 516 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.10.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.Nos.512 and 516 of 2023
and
C.M.P.Nos.15856 and 15996 of 2023
S.A.No.512 of 2023
Chandira Ammal … Appellant
Vs.
Kanniyappan ... Respondent
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
Judgement and Decree dated 06.02.2023 passed by the Learned
Subordinate Judge, Cheyyar, Tiruvannamalai in A.S.No.16 of 2017
confirming the judgement and decree dated 20.01.2017 passed in
O.S.No.372 of 2007 by the Learned Additional District Munsif,
Cheyyar, Tiruvannamalai.
https://www.mhc.tn.gov.in/judis
S.A.Nos.512 and 516 of 2023
S.A.No.516 of 2023
Chandira Ammal … Appellant
Vs.
Kanniyappan ... Respondent
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
Judgement and Decree dated 06.02.2023 passed by the Learned
Subordinate Judge, Cheyyar, Tiruvannamalai in A.S.No.10 of 2017
confirming the judgement and decree dated 20.01.2017 passed in
O.S.No.340 of 1998 by the Learned Additional District Munsif,
Cheyyar, Tiruvannamalai.
For Appellant : M/s.Nagarajan
For Respondent : M/s. A.Praveen
COMMON JUDGMENT
Since the facts in both the Second Appeals overlap, a common
judgement is being pronounced in the above Second Appeals. The
plaintiff is the appellant in both the appeals.
https://www.mhc.tn.gov.in/judis
S.A.Nos.512 and 516 of 2023
2.1. S.A.No.516 of 2023 is filed challenging the Judgment and
Decree in A.S.No.10 of 2017 on the file of the Subordinate Judge
Cheyyar, Thiruvannamalai District in and by which the learned Judge
had confirmed the judgement and decree passed by the learned
Additional District Munsif, Cheyyar in O.S.No.340 of 1998. This suit
is filed for a declaration and for an injunction.
2.2. S.A.No.512 of 2023 is filed challenging the judgment and
decree in A.S.No.16 of 2017 on the file of the Subordinate Judge
Cheyyar, Thiruvannamalai District in and by which the learned Judge
has confirmed the judgement and decree passed by the Additional
District Munsif, Cheyyar in O.S.No.372 of 2007. This suit is filed for
the grant of a permanent injunction.
3. The facts which have given rise to the above Second Appeals
are herein below set out and the parties are referred to in the same
ranking as in the suit O.S.No.372 of 2017.
https://www.mhc.tn.gov.in/judis
S.A.Nos.512 and 516 of 2023
3.1. The suit property belongs to one Kanniyappan who is the
husband of the plaintiff, he having purchased the same under a
registered sale deed dated 07.01.1986. It is the case of the plaintiff that
9 years prior to the institution of the suit, the said Kanniyappan had
passed away and the property devolved upon the plaintiff, his
daughters and his son Natarajan. The said Natarajan had thereafter
passed away.
3.2. It is the case of the plaintiff that it is the plaintiff who is in
possession of the suit property, paying taxes and electricity charges etc.
The plaintiff would submit that on 15.04.1986, the said Kanniyapan
had mortgaged the suit property to the defendant under a registered
mortgage deed. The defendant had attempted to trespass into the suit
property on 31.07.1998, constraining the plaintiff to file the suits in
question.
https://www.mhc.tn.gov.in/judis
S.A.Nos.512 and 516 of 2023
4. The defendant had filed a written statement inter alia admitting
the fact that the Kanniyapan had purchased the property on 07.01.1986
and had mortgaged the property in his favour under a mortgage deed
dated 15.04.1986. However, the defendant would submit that on the
very same day, taking into consideration the fact that the interest for
repaying the loan would work out to a large extent, the said
Kanniyapan had decided to sell the property to the defendant and
accordingly, an agreement of sale was executed on the very same day.
The total sale consideration was fixed at a sum of Rs.8,500/- and the
sum of Rs.7,975/- which was given as a hand loan was adjusted
towards the sale consideration and the balance sum of Rs.525/- was
paid on the very same day. The said Kanniyapan therefore put the
defendant in possession of the suit property.
4.1. It is also the contention of the defendant that he had filed a
suit for injunction against the plaintiff in OS.No.241 of 1997 which
was decreed in his favour. The defendant in his written statement had
https://www.mhc.tn.gov.in/judis
S.A.Nos.512 and 516 of 2023
also sought a counter claim for a direction to the plaintiff to execute the
sale deed in his favour on the basis of the agreement of sale dated
15.04.1986. The suit O.S.No.372 of 2007 came to be filed by the
plaintiff for a bare injunction on the ground that on 26.11.2006 and 02
.07.2007, the defendant had attempted to trespass into the suit property.
The defendant had denied this allegation and stated that even as early
as on 15.04.1986, he had been put in possession and enjoyment of the
suit property. The defendant had also pleaded that the suit O.S.No.372
of 2007 is hit by the provisions of Order 2 Rule 2 CPC since already
the suit O.S.No.340 of 1998 was filed for the very same issue.
5. Though separate issues were framed initially in the above two
suits, ultimately, consolidated issues were framed in keeping with the
provisions of Order 14 Rule 5 of the CPC and nearly 12 issues were
framed.
https://www.mhc.tn.gov.in/judis
S.A.Nos.512 and 516 of 2023
6. The 1st plaintiff had examined herself as P.W.1 and one
Masilamni as P.W.2. Ex.A.1 to A.9 were marked on the side of the
plaintiff. On the side of the defendant, the defendant had examined
himself as D.W.1 and one Venugopal as D.W.2. Ex.B.1 to B.20 were
marked on the side of the defendant. The Report of the hand writing
expert, his opinion etc., has been marked as Court documents, Ex.C.1
to C.3.
7. The learned District Munsif had held that the agreement of sale
dated 15.04.1986 though denied by the plaintiff has been proved to be
executed by the said Kanniyapan in the light of the Ex.C.1 to C.3
which is the opinion of the hand writing expert. That apart, the Trial
Court had found that Kanniyapan had put the defendant in possession
of the property and the defendant is in possession of the same since the
date of the agreement of sale. However, the tax in respect of the
property is being paid in the name of Kanniyapan. Ultimately, the two
https://www.mhc.tn.gov.in/judis
S.A.Nos.512 and 516 of 2023
suits were dismissed by the Trial Court and the counter claim filed by
the defendant seeking specific performance of the agreement of sale
dated 15.04.1986 was allowed.
8. Aggrieved by the said judgement and decree, the plaintiff had
filed appeals only against the judgement and decree passed in the suits
and not against the judgement and decree passed in the counter claim.
A.S.No.10 of 2017 was filed challenging the judgement and decree in
O.S.No.340 of 1998 and A.S.No.16 of 2017 was filed challenging the
judgement and decree in O.S.No.372 of 2007. The Lower Appellate
Court also confirmed the judgement and decree passed by the Trial
Court and observed that the plaintiff has not chosen to challenge the
judgement and decree in the counter claim and therefore, the appeals
have to necessarily be confirmed. It is challenging these judgements
and decree that the plaintiff is before this Court.
9. Heard the counsels on either side.
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S.A.Nos.512 and 516 of 2023
10. The Courts below have extensively considered the documents
available on record as well as the evidence of parties and based upon
the same have proceeded to dismiss the suits filed by the plaintiff.
11. It is seen that though the plaintiff had denied the signature of
Kanniyapan in the agreement of sale, however, the signatures when
referred to and examined by the hand writing expert has been held to be
the signatures of Kanniyapan. Therefore, it is very clear that the
agreement of sale has been executed by Kanniyapan in favour of the
defendant.
12. Further, the defendant has also got a decree for specific
performance by filing a counter claim in the suit O.S.No.340 of 1998.
This judgement and decree has not been challenged by the appellant
and the same has attained finality. Therefore, the right of the defendant
to the suit property as an agreement holder has been confirmed and the
Courts below have directed the plaintiff to execute the sale deed.
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S.A.Nos.512 and 516 of 2023
13. In the light of the above, the plaintiff has no legs to challenge
the judgement and decree in A.S.Nos.10 and 16 of 2017. Further, no
substantial question of law has been made out by the appellant. Accordi
ngly, both the Second Appeals are dismissed. No costs. Consequently, t
he connected Miscellaneous Petitions are closed.
10.10.2023
Index: Yes/No
Speaking order/non-speaking order
Neutral Citation: Yes/No
shr
To
1. The Subordinate Judge, Cheyyar, Tiruvannamalai.
2. The Additional District Munsif, Cheyyar, Tiruvannamalai.
3. The Section Officer,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.A.Nos.512 and 516 of 2023
P.T.ASHA, J.,
shr
S.A.Nos.512 and 516 of 2023
and
C.M.P.Nos.15856 and 15996 of 2023
10.10.2023
https://www.mhc.tn.gov.in/judis
