Madras High Court
T.Soundaraj vs D.Sankaran on 2 January, 2024
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.896 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.01.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No. 896 of 2022
T.Soundaraj ...Appellant
Vs.
D.Sankaran ...Respondent
Prayer: Second Appeal is filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 27.04.2022 passed in
A.S.No.3 of 2021 on the file of the Principal Sub Judge, at Ponneri,
Thiruvallur District, setting aside the Judgement and Decree dated
30.04.2019 passed in O.S.No.96 of 2016 on the file of the District
Munsif, Thiruvottriyur.
For Appellant : Mr. M.Sankar
For Respondent : Mrs. Hema Sampath
Senior Counsel
for Mr. R.Suryaprakash.
1/10
https://www.mhc.tn.gov.in/judis
S.A.No.896 of 2022
JUDGMENT
The defendant is the appellant before this Court challenging the
Judgement passed by the Principal Sub Court, Ponneri in A.S.No.3 of
2001 in and by which the learned Sub Judge has reversed the
Judgement and Decree passed by the District Munsif, Thiruvottriyur.
The brief facts which has culminated in the filing of the above Second
Appeal are as follows and the parties are referred to in the same rank as
before the Trial Court.
2. The plaintiff had filed the above referred suit for permanent
injunction restraining the defendant from interfering with the plaintiff's
peaceful possession and enjoyment of the suit schedule property. It is
the case of the plaintiff that he had purchased an extent of 11262 ½
sq.ft., of gramanathan land comprised in S.No.288/1 under a sale deed
dated 09.07.2004 from five persons, namely, Karpagam, Nagappan,
Meiyalagan, Vedhachalam and Kiliyammal. Since the date of the
https://www.mhc.tn.gov.in/judis
purchase, the plaintiff has been in peaceful possession and enjoyment
of the suit property.
3. The plaintiff would submit that since March 2016, certain
antisocial elements were trying to disturb the plaintiff's possession and
on 27.03.2016, the defendant with the help of these antisocial elements
tried to forcibly enter the suit property which was successfully
prevented by the plaintiff. The defendant is a local politician and have
considerable clout in the area.
4. The plaintiff had lodged a Police complaint and both the
parties were directed to approach the Civil Court. Therefore, the suit.
5. The plaintiff has also filed a suit in O.S.No.213 of 2016 to
declare the settlement deed dated 17.06.2011 executed by the 1st
defendant therein in favour of his sons in respect of the suit property as
null and void and the said suit was also pending.
https://www.mhc.tn.gov.in/judis
6. The defendant had filed a written statement denying all the
allegations contained in the plaint. It is the case of the defendant that
the suit property is an ancestral property of the defendant and has been
in their possession for over 10 decades. On 17.06.2011, the defendant
had settled the suit property on his three sons, Silambarasan,
Kuralarasan and Kalaiarasan. However, these persons have not been
made a party in the instant suit. The patta has also been issued in
favour of the settllees. The defendant had further contended that no
cause of action has been pleaded against the defendant and therefore
the suit has to be dismissed. The defendant had denied the plaintiff's
title to the property.
7. The learned District Munsif had framed an issue as to Whether
the plaintiff was entitled for permanent injunction as prayed for?.
8. The plaintiff had examined himself as P.W.1 and Ex.A.1 to
Ex.A.3 were marked on his side. The defendant had examined himself
https://www.mhc.tn.gov.in/judis
as D.W.1 and Ex.B.1 to Ex.B.12 were marked on his side.
9. Ultimately, the learned District Munsif had dismissed the suit
on the ground that though there has been serious contest to the
plaintiff's title over the suit property, the plaintiff has not filed a suit for
declaring his title to the suit property. Even the suit O.S.No.213 of
2016 has been filed only to declare the settlement deed executed by the
1st defendant in favour of his children as null and void.
10. Challenging the said Judgement and Decree, the plaintiff had
filed A.S.No.3 of 2021 on the file of the Sub Court, Ponneri. The
learned Sub Judge, Ponneri, has on hearing the arguments and
considering the documents allowed the appeal and set aside the
Judgement and decree passed by the learned District Munsif. The
learned Sub Judge had observed that the properties of the defendant
and the plaintiff are different and tax receipts which have been filed by
the defendant shows different door numbers. Further, the description
of the property in Ex.B.2 and Ex.B.4 are totally different. The learned
https://www.mhc.tn.gov.in/judis
Sub Judge had also observed that Ex.A.1 reflected title of the appellant
to the suit schedule property.
11. Challenging this Judgement and Decree, the above Second
Appeal has been filed.
12. Heard the learned counsels on the either side.
13. From the arguments the following substantial question of law
arises and arguments have also been advanced on the same:
“Whether the plaintiff is entitled to a decree for
permanent injunction?”.
14. The plaintiff has come to the Court on the basis that he has
purchased an extent of 11262 ½ in S.No.288/1 from Karpagam and
four others on 09.07.2004. This sale deed has been marked as Ex.A.1.
The plaintiff in this suit has pleaded that the defendant had attempted to
enter the property on 27.03.2016 and that a Police complaint was
https://www.mhc.tn.gov.in/judis
lodged. It is their further contention that on the advice of the Police
authorities, the present suit has been filed. The plaintiff has not filed
the Police complaint which has been lodged by them.
15. Further, the plaintiff who claims to have purchased the
property from the original owner in the year 2004 did not have the
revenue records mutated in his name. Ex.A.3, containing four original
house tax receipts has been filed. These house tax receipts relate to
door number 3/21B. The tax receipts have been filed from the year
2009. However, a perusal of the schedule given in the suit property
does not reflect the existence of the building and therefore the
documents filed does not relate to the suit property which is described
as a vacant land.
16. That apart, the schedule given in the other suit O.S.No.213 of
2016 shows an extent of 12800 sq.ft of gramanatham land. Even in
this schedule the existence of the building is not found. Though the
plaint in O.S.No.213 of 2016 has not been filed before the Courts
https://www.mhc.tn.gov.in/judis
below, a copy of the same has been filed along with the typed set of
papers and the institution of this suit has not been denied by the
plaintiff. Apart from the sale deed, Ex.A.1 there is no other document
to show the possession of the property by the plaintiff.
17. As stated earlier, Ex.A.3 relates to a building bearing door
No.3/21 B which building is not reflected in the suit schedule
properties. Further, the suit has been filed on the ground that there has
been an attempt of trespass by the defendant along with the other
antisocial elements on 27.03.2016. This fact has not been proved by
the plaintiff. Therefore, the cause of action as pleaded not having been
proved the Judgement of the Lower Appellate Court has to necessarily
be set aside.
18. Though there has been a serious contest to the title of the
property, the plaintiff has not chosen to seek a declaration of the title to
the property. Even in the subsequent suit in O.S.No.213 of 2016, the
plaintiff has not sought for the relief. Therefore, the general principle
https://www.mhc.tn.gov.in/judis
stated in the Judgement in Anathula Sudhakar Vs. Buchi Reddy
((2008) 4 SCC 594) = AIR 2008 SC 2033 would apply to the facts of
the above case and the suit for bare injunction without seeking
declaration is not maintainable since the plaintiff's title to the property
is questioned and the defendant has set up title on himself. However, it
is left open to the parties to raise all the defense in the suit O.S.No.213
of 2016.
19. Consequently, the Second Appeal is allowed. No costs.
02.01.2024
Index : Yes/No
Internet : Yes/No
kan
To
1.The Principal Sub Judge, at Ponneri,
Thiruvallur District.
2.The District Munsif,
https://www.mhc.tn.gov.in/judis
Thiruvottriyur.
P.T. ASHA, J,
kan
02.01.2024
https://www.mhc.tn.gov.in/judis
