Madras High Court
K.Mathan Raja vs R.Shivani on 9 April, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R..P.(PD)(MD).No.1020 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.04.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P(PD)(MD)No.1020 of 2025
and
C.M.P(MD) No.5514 of 2025
K.Mathan Raja ... Petitioner/Petitioner/
Defendant
Vs.
R.Shivani ... Respondent/Respondent/
Plaintiff
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the fair and decreetal order dated 20.02.2025 passed in
I.A.No.6 of 2023 in O.S.No.108 of 2020 on the file of learned I Additional
District Munsif Court, Nagercoil.
For Petitioner : Mr.M.P.Senthil
For Respondent : Mr.H.Lakshmi Shankar
ORDER
The defendant in O.S.No.108 of 2020 on the file of the I Additional
District Munsif Court, Nagercoil, has filed the present Civil Revision Petition
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C.R..P.(PD)(MD).No.1020 of 2025
challenging the dismissal of his application filed under Order 7 Rule 11 of
C.P.C r/w 7, 12 (2), 37 and 37(2) of Tamil Nadu Court Fees and Suits
Valuations Act 14 of 1955.
2. A perusal of the records reveal that the above said suit has been filed
for the relief of mandatory injunction to hand over possession of the suit
schedule properties to the plaintiff. A perusal of the plaint averments reveal
that the plaintiff is the sister's daughter of the defendant. The suit property
originally belonged to one V.Krishnan, who had died leaving behind his son
K.Mathan Raja (defendant) and daughter Parvathy. Parvathy's daughter is
Shivani, who is the plaintiff in the present suit. According to the plaintiff,
Mr.V.Krishnan has executed a Will in her favour on 27.05.2005 and he passed
away in the year 2014. Therefore, she is the absolute owner of the property.
3. The plaintiff has further claimed that the defendant in the suit who is
her maternal uncle was permitted to be in occupation of the suit schedule
properties. When she was asked to vacate, he has refused to vacate. Hence,
the present suit.
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C.R..P.(PD)(MD).No.1020 of 2025
4. The defendant has filed a written statement disputing the
genuineness and validity of the Will dated 27.05.2005 and has further
contended that the Will was executed under undue influence and coercion.
When the suit was posted for cross examination of P.W.1, the plaintiff has
filed the present application in I.A.No.6 of 2023 seeking to reject the plaint.
The main contention in the said application is that the title of the plaintiff has
been specifically disputed in the written statement and unless the plaintiff
proves the Will and establishes the title over the suit schedule properties, the
suit for mandatory injunction would not be maintainable. The suit should
have been laid either for recovery of possession or the prayer should have
been sought for declaration of title.
5. The trial Court after considering the submissions made on either side
has proceeded to dismiss the said application on the ground that the character
of possession of the defendant is in dispute. In such circumstances, the said
character could be decided only after trial. Challenging the same, the present
Civil Revision petition has been filed.
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C.R..P.(PD)(MD).No.1020 of 2025
6. According to the learned counsel appearing for the revision
petitioner, the plaintiff is attempting to prove the Will and get the title
declared for the suit schedule properties in a suit for mandatory injunction.
When the title is specifically disputed, the first prayer should be for
declaration of title, and without the same the plaintiff cannot seek a prayer for
mandatory injunction. The learned counsel appearing for the revision
petitioner has relied upon the judgment of the Hon'ble Supreme Court
reported in (2008) 4 SCC 594 (Anathula Sudhakar Vs.P.Buchi Reddy
(Dead) by LRS and others) and contended that when a cloud has been created
over the title of the plaintiff, the suit for bare injunction is not maintainable
without a prayer for declaration of title. The learned counsel has also relied
upon the decision of this Court reported in 2024 2- LW.740 (Palani (dead)
and others Vs.Ramadoss @ Seenu and another), wherein this Court has held
that even if the prayer for relief of recovery of possession is couched as a
relief of mandatory injunction, the Court fee has to be paid accordingly.
7. Per contra, the learned counsel appearing for the respondent/plaintiff
had contended that it is the specific case, that the defendant in the suit is a
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C.R..P.(PD)(MD).No.1020 of 2025
permissive occupant. Immediately after the death of Mr.V.Krishnan, all the
revenue records have been mutated. Even during mutation, the only defence
on the side of defendant was that the Will was executed under undue
coercion. In such circumstances, there is no cloud over the title of the
property and therefore, the present suit is maintainable.
8. Heard both sides and perused the materials available on record.
9. The plaintiff has specifically pleaded that the possession of the
defendant is that of a permissible occupant. According to the plaintiff, she is
the absolute owner of the property based upon the Will said to have been
executed by the grandfather on 27.05.2005. The defendant, who is the
maternal uncle of the plaintiff is specifically disputing the Will and claims
that his possession is that of a co-owner. The defendant has also claimed title
to the suit schedule properties by way of adverse possession.
10. The above said averments would clearly indicate that there is a
serious dispute with regard to the character of possession of the defendant.
Whether the defendant is in possession as that of a co-owner or as that of a
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C.R..P.(PD)(MD).No.1020 of 2025
permissive occupant of the plaintiff can be decided only after trial. In case, if
the Court arrives at a finding that the defendant is in possession as a
permissive occupant, then the plaintiff would be entitled to a decree. On the
other hand, the Court arrives at a finding that the Will has not been proved
and the possession of the defendant is that of the co-owner, then the suit has
to be dismissed. In such circumstances, without conducting a trial, the issues
raised by the defendant in the application filed under Order 7 Rule 11 of
C.P.C cannot be decided at this moment. Leaving the said issues open to be
raised to the trial, this Civil Revision Petition stands dismissed. There shall
be no order as to costs. Consequently, connected Miscellaneous Petition
stands closed.
09.04.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ebsi
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C.R..P.(PD)(MD).No.1020 of 2025
To
1. The I Additional District Munsif Court,
Nagercoil.
2. The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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C.R..P.(PD)(MD).No.1020 of 2025
R.VIJAYAKUMAR,J.
ebsi
C.R.P(PD)(MD)No.1020 of 2025
09.04.2025
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