Madras High Court
S.P.Chandran (Died) vs Muniyayee on 10 March, 2025
SA(MD)No.133 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 10/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.133 of 2005
1.S.P.Chandran (Died)
2.S.P.Mohan (Died)
3.Thiyagavali
4.Poongothai
5.Renganayaki : A1 to A6/Appellants/
Plaintiffs 2 to 6
6.Amaravathy
7.S.P.C.Jeeva
8.S.P.C.Balu : LR.s of the deceased
1st appellant
(A6 to A8 are brought on record
as LR.s of the deceased 1st appellant
vide court order, dated 26/10/2016
in CMP(MD)No.2553 of 2016 in SA(MD)
No.133 of 2005)
9.M.Renugadevi
10.M.Indajith
11.M.Jayasri
12.M.Periyakaruppan : LR.s of the deceased
2nd appellant
(Appellants 9 to 12 are brought
on record as LR.s of the deceased
2nd appellant, vide court order,
dated 26/11/2021 made in CMP(MD)
No.2930 to 2932 of 2021 in SA(MD)
No.133 of 2005)
Vs.
1.Muniyayee
2.Somasundaram (Died)
3.Narayanan Ambalam
4.Sankaranarayanan
5.Velayutham
6.Pandidurai : Respondents 1 to 4/
Respondents/
Defendants
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1/23
SA(MD)No.133 of 2005
(R4 to 6 are brought on record
as LR.s of the deceased 2nd respondent
vide Court order, dated 10/02/2021
made in CMP(MD)No.2933, 2936 and 2937
of 2021 in SA(MD)No.133 of 2005)
PRAYER: Second Appeal is filed under Section 100 of
the Civil Procedure Code, to set aside the judgment and
decree passed in AS No.48 of 2003 on the file of the
District Judge, Sivagangai, dated 20/07/2004 confirming
the judgment and decree passed in OS No.86 of 1995, dated
21/02/2003 on the file of the Principal District Munsif,
Manamadurai.
For Appellants : Mr.Natarajan
Senior counsel
for M/s.Vijayakumari Natarajan
For R4 to R6 : Mr.D.Sundarraj
for Mr.A.Sivaji
For R1 and R3 : Ex-parte
For R2 : Died
J U D G M E N T
This second appeal is filed against the judgment and
decree passed in AS No.48 of 2003 by the District Judge,
Sivagangai, dated 20/07/2004, confirming the judgment and
decree passed in OS No.86 of 1995, dated 21/02/2003 by
the Principal District Munsif, Manamadurai.
2.The plaint:-A portion of the suit property
situated in Survey No.326/118 measuring about 0.11.34
Hectare belongs to the plaintiffs ancestors. Another
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portion was purchased by the father of the 2 nd plaintiff
on 23/06/1945. After purchase, they are enjoying the
property without any division and partition, in
occupation and possession by constructing the house,
cattle shed, etc. They were issued with patta No.1607.
The defendants have no right over the property. They are
having house and vacant site on the north of the suit
property. When the defendants started constructing a
house in the vacant site, attempted to encroach upon the
suit property. Hence, the suit for permanent injunction
and costs.
3.The second defendant filed written statement
adopted by the first defendant:- The title and possession
of the plaintiffs are denied. The suit property belongs
to the second defendant ancestrally. They were dealing
with the property right from the beginning and enjoying
the same by paying kist. It was locally called as
'Kalangarai Thottam'. The enjoyment of the second
defendant was objected. So, a panchayat was arranged, in
which the possession and enjoyment of the second
defendant's ancestors were recognized and issued a
receipt by the objectors. In the receipt, Sevugan Ambalam
the grand father of the plaintiffs 2 and 3 signed as a
witness. Similarly in various documents, the possession
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and title of this defendant are mentioned and they were
in the habit of mortgaging and redeeming the same. Apart
from that, it is also stated that the suit is bad for
non-joinder of necessary parties and the suit simpliciter
for permanent injunction is not valid, since the title of
the plaintiff is denied.
4.Additional statement filed by the second defendant
states that the description of the property is not proper
and correct. In the property measuring about 6 cents,
wherein one SP.Sekaran, the brother of the 3rd plaintiff
and Kannathal constructed houses. The remaining 22 cents
belonged to the second defendant as mentioned in the
written statement. In the suit, the father of the second
plaintiff is not added as party, since the sale deed
dated 23/06/1945 was standing in his name. In the main
plaint, the sale deed, dated 23/06/1945 was suppressed.
But they have stated in the petition before the DRO
during patta transfer proceedings. The sale deed, dated
23/06/1945 is fabricated one. The suit property was not
mentioned in the partition that took place between the 1st
plaintiff's father and his sharer in 1950. Right from
1937 onwards, the document was available to show the
title and possession of the defendants. The second
defendant is in enjoyment of the property by constructing
cattle shed, raising trees, dumping yard.
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5.On the basis of the pleadings, the following
issues were framed by the trial court:-
(1)Whether the suit property is the
ancestral property of the plaintiffs?
(2)Whether the plaintiffs are
entitled for injunction as prayed for?
(3)Whether the suit property is
property owned by the 2nd plaintiff
ancestrally?
(4)Whether the suit is bad for non-
joinder of necessary parties?
(5)Whether the plaintiffs are
barred by estoppel?
(6)To what other reliefs, the
plaintiffs are entitled to?
(7)Whether the sale deed, dated
23/06/1945 is a genuine document?
6.During trial, on the side of the plaintiffs, 2
witnesses were examined and 7 documents marked. On the
side of the defendants, 4 witness were examined and 36
documents marked. The Commissioner's report & plan are
marked as Exs.C1 to C4.
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7.At the conclusion of the trial, the trial court
dismissed the suit without any costs. Against which, the
plaintiffs filed appeal before the District Court, which
confirmed the judgment and decree of the trial court.
8.Against which, this second appeal is preferred.
9.At the time of admission, the following
substantial questions of law are framed:-
(1)When the plaintiffs' lawful
possession on the date of and prior to
the filing of the suit is established,
whether the courts below are right in
dismissing the suit for bare
injunction?
(2)When the suit is for mainly
against the 1st defendant, who is the
owner of the property which is north of
the suit property and attempting to
encroach into the suit property and
when she has not contested the suit and
further remained ex-parte in the
appeal, whether the courts below are
right in not passing decree for
injunction against the 1 st
defendant?
(3)Whether the view of the courts
below that by attesting the document
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Ex.B3 by the grand-father of the
plaintiffs 2 and 3 will amount to
admission, is in consonance with the
settled principles under section 115 of
Evidence Act and the Judicial
Pronouncement in 2003(1)MLJ (DB)?
10.Heard both sides.
Substantial question of law No.2:-
11.This question of law is taken up first before
proceeding further for clarity.
12.The learned Senior counsel appearing for the
appellants would repeatedly contend that in the plaint,
permanent injunction was sought primarily against the
first defendant. But she did not contest the matter.
Remained ex-parte before the appellate court. So, both
the courts committed an error on law and in-fact in not
passing the order of permanent injunction against him.
Whether this argument is correct on record is to be
clarified first.
13.In the plaint, there is specific plea that the
defendants are having property on the north. They
attempted to encroach upon the suit property at the time
of constructing the house.
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14.But there is no specific plea in the plaint to
the effect that the first defendant namely Muniyaee
attempted to encroach upon the property. It has been
simply stated that the defendants attempted to encroach
upon the property. Even in the prayer portion, injunction
was sought against all the defendants and not against the
first defendant alone. So, the argument raised by the
appellants at the first instance is not correct on
record.
15.Now coming to the next question, whether the
first defendant did not contest the matter before the
trial court is concerned, this is also not correct on
record. The statement was filed by the second defendant
on the ground that he claimed exclusive title and
possession over the suit property. The first defendant
adopted the written statement. She was represented by
Counsel before the trial court. But did not appear before
the appellate court. When the plaint is filed against all
the defendants claiming permanent injunction, now it is
too late for the appellants to say that primarily it was
against the first defendant. Simply because the first
defendant did not file any independent written statement
and lead evidence, it does not mean that she remained ex-
parte or she ought to have been set ex-parte by the trial
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court. This argument does not appeal to me. There is no
compulsion of law that a party to the suit must lead
evidence, failure will amount to remain ex-parte. Such a
course is not at all available. So, this primary
contention made by the appellants is devoid of merit and
rejected outright. So, the judgments cited by the
appellants in Ramachandra Keshav Adke (Dead) by Lrs. Vs.
govind Joti Chavare and others {AIR 1975 SUPREME COURT
915); and Chintaman Sukhdeo Kaklij and others Vs. Shivaji
Bhausaheb Gadhe and others [2004(4)MHLJ 739] have no
application at all. So, this argument is rejected
outright and this substantial question of law does not
arise at all.
Substantial question law No.1:-
16.Since it is the concurrent finding by the trial
court and appellate court with regard to the possession
and title of the plaintiffs, it is submitted by the
learned Senior Counsel appearing for the appellants that
by virtue of law settled by the Hon'ble Supreme Court in
State of Rajasthan and others Vs. Shiv Dayal and another
[2019(5)CTC 843], there is no bar for this court to
interfere if the following conditions as narrated in para
21 and 22 of the judgment attract.
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“21.When any concurrent finding of
fact is assailed in Second Appeal, the
Appellant is entitled to point out that
it is bad in law because it was
recorded de hors the pleadings or it
was based on no evidence or it was
based on misreading of material
documentary evidence or it was recorded
against any provision of law and
lastly, the decision is one which no
Judge acting judicially could
reasonable have reached (See
observation made by learned Judge
Vivian Bose,J., as His Lordship then
was a Judge of the Nagpur High Court in
Rajeshwar Vishwanath Mamindwar and
others Vs. Dashrath Narayan Chilwelkar
and othrs, AIR 1943 Nag. 117, Para 43).
22.In our opinion, if any one more
ground, as mentioned above, is made out
in an appropriate case on the basis of
the pleadings and evidence, such ground
will constitute Substantial Question of
Law within the meaning of Section 100
of the Code.”
17.So, according to him, when the finding of the
trial court and the appellate court are not in consonance
of the principles set out above, this court can
interfere. According to him, the trial court and the
appellate court non-suited the plaintiff mainly based
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upon the boundary recitals in various documents and the
attestation made in Ex.B3 by the grand-father of the 2 nd
plaintiff. So, according to him, re-appreciation of the
facts is required.
18.Before we go into the main issue, one primary
point which requires to be addressed first is absent of
declaratory relief in the plaint. In a suit for
injunction simpliciter, when a genuine plea is raised
regarding the title, it is the duty of the plaintiffs to
amend the plaint. This is the settled proposition of law.
19.The learned counsel for the respondents 4 to 6 is
referring to the judgment of the Hon'ble Supreme Court in
Anathula Sudhakar Vs. P.Buchi Reddy [2008(6)CTC 237(SC)],
which is a classics on this point, wherein it has been
held as follows:-
“21.To summarize, the position in
regard to suits for prohibitory
injunction relating to immovable
property, is as under:
(a) Where a cloud is raised over
plaintiff's title and he does not have
possession, a suit for declaration and
possession, with or without a
consequential injunction, is the remedy.
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Where the plaintiff's title is not in
dispute or under a cloud, but he is out
of possession, he has to sue for
possession with a consequential
injunction. Where there is merely an
interference with plaintiff's lawful
possession or threat of dispossession,
it is sufficient to sue for an
injunction simpliciter.
(b)As a suit for injunction
simpliciter is concerned only with
possession, normally the issue of title
will not be directly and substantially
in issue. The prayer for injunction will
be decided with reference to the finding
on possession. But in cases where de
jure possession has to be established on
the basis of title to the property, as
in the case of vacant sites, the issue
of title may directly and substantially
arise for consideration, as without a
finding thereon, it will not be possible
to decide the issue of possession.
(c)But a finding on title cannot be
recorded in a suit for injunction,
unless there are necessary pleadings and
appropriate issue regarding title
[either specific, or implied as noticed
in Annaimuthu Thevar (supra)]. Where the
averments regarding title are absent in
a plaint and where there is no issue
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relating to title, the court will not
investigate or examine or render a
finding on a question of title, in a
suit for injunction. Even where there
are necessary pleadings and issue, if
the matter involves complicated
questions of fact and law relating to
title, the court will relegate the
parties to the remedy by way of
comprehensive suit for declaration of
title, instead of deciding the issue in
a suit for mere injunction.
(d)Where there are necessary
pleadings regarding title, and
appropriate issue relating to title on
which parties lead evidence, if the
matter involved is simple and straight-
forward, the court may decide upon the
issue regarding title, even in a suit
for injunction. But such cases, are the
exception to the normal rule that
question of title will not be decided in
suits for injunction.”
20.Against this judgment, the learned counsel
appearing for the appellants would rely upon the judgment
of the Hon'ble Supreme Court in Iqbal Basith and others
Vs. N.Subbalakshmi and others [2021(2)CTC 104] and would
contend that since the title of the plaintiffs is not
disputed and the possession is proved on the basis of the
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evidence on record, both the courts committed illegality
in dismissing the suit.
21.But in the judgment reported in 2021(2)CTC 104,
there was no issue with regard to the title of the
property. But in spite of that, the suit was dismissed
stating that title was not established. Only on that
circumstance, the Hon'ble Supreme Court allowed the suit
for permanent injunction. Here, it is not the case. As
mentioned above, the title was disputed by the defendants
in a bona-fide and genuine manner as the documents and
the discussion made by the trial court and the appellate
court indicates. With this background, we will go
further.
22.Another important feature is that the trial court
and the appellate court committed an error in
appreciating the documentary evidence. They relied upon
the boundary recitals in various documents filed by the
defendants. Now it is well settled principles of law,
boundary recitals in a document, which is not inter party
is not an evidence in the absence of examination of
executants V.Amaiappa Nainar died and others Vs.
A.Annamalai Chettiar (died) and others (1972(1)MLJ 317
(DB).
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23.We can eschew or remove those documents from
consideration and takn up only title document relied on.
24.So, before we go into the documents of the
defendants, it is the duty of the plaintiffs to prove the
possession and of course, the title prima facie. Before
that, we will take up the physical feature available in
the suit property as brought by the Commissioner. In a
portion of the suit property, houses of one Kannathaal,
SP.Sekaran (who are not parties) and the third plaintiff
are situated. Here and there, we find some trees and
haystack on the north of the third plaintiff's house and
on the south-east. The importance of the physical feature
is that when SP.Sekaran and Kannathal houses are
situated, the suit is filed for permanent injunction
without impleading them as parties.
25.It is admitted by the defendants that the
plaintiffs are entitled for 6 cents situated on the
north- east side. Even during the course of the argument,
it was fairly conceded that they have no objection in
respect of their 6 cents on the north-east. On that
account, the learned Senior counsel appearing for the
appellants would submit that the trial court as well as
the appellate court have committed an error in not
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granting the limited prayer in respect of the admitted
portion. But a valid reason was assigned by the trial
court for not granting this limited portion of injunction
and we will discuss about that point later.
26.Now coming back to the case of the plaintiffs, as
mentioned above, they are claiming title over the
property by virtue of the sale deed, dated 23/06/1945 for
a portion, which covers 6 cents, which is admitted by the
defendants. So, we can concentrate on the remaining
portion. Whether the plaintiffs established the title
and possession, the trial court has traced the genealogy
of the plaintiffs. As per the trial court finding, one
Karuthan Ambalam was the ancestor. He had two sons namely
Sevugan Ambalam and Krishnan Ambalam. Sevugan Amablam
had two childrens namely Periya Karuppan and Chinna
Karuppan. The plaintiffs 2 and 3 are the children of
Peria Karuppan. Krishnan had a son by name Paulchamy.
Paulchamy's wife is Kannathal. The daughter was Ayyammal.
The plaintiffs 1 and 2 are the childrens of the deceased
first plaintiff. The first plaintiff is the maternal
Uncle of the plaintiffs 2 and 3.
27.This is not disputed by the parties. As mentioned
above, the house of Kannathal is situated in a portion of
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the suit property. Now coming to the second defendant's
case is that the first defendant ancestor purchased the
property from one Yesal. From the legal heirs of Yesal,
the first defendant purchased the property under Ex.B1,
on 03/12/1991 and we will go to the evidentiary value of
Ex.B1 later. So, except Ex.A1, no other title document is
produced by the plaintiffs. Ex.A4 is the patta standing
in the name of SP.Mohan and Vellaichamy. Ex.A5 is Natham
survey patta issued in the name of SP.Mohan and
Vellaichamy. This, according to the defendants, was
cancelled under the order, dated 07/06/1996 by the DRO.
28.At this juncture, the learned Senior counsel
appearing for the appellants would submit that against
the order passed by DRO, he filed writ petition before
this court. That writ petition was allowed and the order
passed by the DRO was set aside. The matter was remitted
back to the DRO. But so far, no order was passed. This
was not noticed by the appellate court. So, according to
him, when the order was set aside and so far no proper
order was passed, the patta granted under Ex.A5 will show
their possession.
29.Since the revenue proceedings are still pending,
no definite finding can be recorded by this court in
respect of the relevancy of the pattas.
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30.Now ignoring the patta, we will go to the other
documents produced on the side of the defendants to show
that the suit property did not belong to the plaintiffs.
They would rely upon Ex.B2 partition deed took place in
the family of the plaintiffs, which is dated 01/06/1950.
31.It is contended on the side of the defendants
that if really the property belongs to the plaintiffs
family and in enjoyment, they would have definitely
partitioned the property under Ex.B2, wherein specific
recital is made to the effect that except the property
mentioned in the partition deed, no other properties are
available, ancestral in character for division. So, this
was admitted by PW1 during the course of the evidence
that in the partition deed under Ex.B2, this property was
not shown.
31.Another indirect plea raised by the defendants is
that Ex.B3 arose, when the possession of the second
defendant was disputed by the third party. A panchayat
was convened, in which they received Rs.25/-, recognized
the possession of the second defendant, in which the
plaintiffs' grand father signed as a witness. In respect
of which, the 3rd substantial question of law was framed.
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32.In this context, the learned Senior counsel
appearing for the appellants would submit that mere
attestation to a document will not operate as estoppel
that too against the interest of the plaintiffs and for
that purpose, he would rely upon the judgment of the
Hon'ble Supreme Court reported in K.A.Selvanachi and
another Vs. Dr.S.R.Sekar and another [(2003)5 MLJ 769].
33.No doubt that mere estoppel will not create any
title in favour of any party. More over, the document
Ex.B3 under was not executed in the presence of the
plaintiffs. Only their grand-father signed as a witness
in the document. More over, none was examined on the side
of the defendants to prove the document that it was
executed in the presence of the grandfather of the
plaintiffs. So, that document need not be taken into
account.
34.But the documents filed by the defendants in the
form of mortgage, redemption and more particularly, the
suit in OS Nos.69/1945, 124/1962, 142/1962 and 331/1994
between the parties, it was admitted by the plaintiff
himself, which shows that he has knowledge about the
previous suits. Para 24 of the trial court judgment is
devoted to this pervious suits. When the plaintiff's
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predecessor-in-title or ancestors as the case may be are
parties to the above said proceedings, now the plaintiffs
are estopped from disputing the correctness of those
findings.
35.More importantly, ignoring all those things, the
present plaintiffs are the parties in the partition deed,
dated 01/06/1950. As mentioned above, the present suit
property was not mentioned in the partition deed, which
fact is also admitted by the plaintiffs. The relevancy of
this document is elaborately discussed by the trial court
in para 18. Wherein a specific admission by the
plaintiff's ancestor that the suit property belongs to
the defendants. This finding of fact was approved by the
appellate court also. So, this record of finding with
regard to the factual aspect clearly shows that the
plaintiffs or their ancestors were not having any right,
title or possession over the suit properties. Without any
basic document, it appears that the suit has been filed
for mere injunction. When a genuine dispute of title is
raised by the defendants, it is the duty of the
plaintiffs to amend the plaint for declaratory relief.
But they failed to do so. So, the judgment of the Hon'ble
Supreme Court in Anathula Sudhakar's case clearly
applies. On that ground also, the suit is not
maintainable.
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36.Now coming back to the limited request made by
the plaintiffs regarding north-east 6 cents, as mentioned
above, that request of the plaintiffs or limited prayer
was rejected by the trial court for valid reasons.
37.Now we will see the reason assigned by the trial
court for negativing the limited request. As mentioned
above, within the north-east 6 cents, the house of
Kannathal and SP.Sevugan Ambalam are situated. Kannathal
was allotted with the property as per Ex.B2, partition
deed. When this being the position, how the plaintiffs
are entitled for injunction in respect of north-east 6
cents is not satisfactorily explained by the plaintiffs.
The plaintiffs are not entitled to get injunction,
wherein they had no houses, but the houses of third
parties are available. It is also the finding of the
trial court, which requires no interference.
38.Accordingly, the first substantial question of
law is answered that the plaintiffs failed to establish
the possession and title on the date of filing of the
suit. The finding of fact recorded by the trial court as
confirmed by the appellate court are sustained and no
substantial question of law arises.
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39.The second substantial question of law does not
arise at all for the reasons or discussion made above.
40.The third substantial question of law is also
answered that dehors Ex.B3 the title and possession of
the defendants are established. On the contra, the
plaintiffs were not.
41.In the result, this second appeal is dismissed
with costs, confirming the judgment and decree passed by
the courts below.
Index:Yes/No 10/03/2025
Internet:Yes/No
er
To,
1.The Principal District Munsif,
Sivagangai.
2.The District Judge,
Sivagangai.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
10/03/2025
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