Madras High Court
Saroja vs Munusamy Mudaliar on 12 September, 2025
S.A.No.533 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 17.07.2025
Pronounced on 12.09.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.533 of 2019
1. Saroja
2. Rangammal
3. Viruthambal
4. Muniammal ...Appellants
Vs.
Munusamy Mudaliar ...Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 21.09.2007 passed in A.S. No.110 of 2006,
on the file of the Principal Subordinate Judge, Thiruvannamalai,
confirming the Judgment and decree dated 28.09.2006 passed in
O.S.No.299 of 2005, on the file of the Principal District Munsif,
Thiruvannamalai.
For Appellants : Ms.AL. Ganthimathi, Senior Advocate
for Mr. L. Palanimuthu
For Respondent : Mr. P.G. Thiyagu
Page 1 of 20
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S.A.No.533 of 2019
JUDGMENT
In this Second Appeal, challenge is made to the decree and
judgment dated 21.09.2007 passed in A.S. No.110 of 2006, on the file of
the Principal Subordinate Judge, Thiruvannamalai, confirming the
Judgment and decree dated 28.09.2006 passed in O.S. No.299 of 2005,
on the file of the Principal District Munsif, Thiruvannamalai.
2. For the sake of convenience the parties are referred to as per
their ranking in the trial court.
3. The appellants, as plaintiffs, filed the above suit in
O.S.No.299/2005 for the following reliefs:
a) To restrain the defendant, his men, agents and servants by means
of permanent injunction from ever interfering in any manner with
the 4th plaintiff's exclusive possession and enjoyment of the 1st item
of the suit properties.
b) To restrain the defendant, his men, agents and servants by means
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of permanent injunction from ever interfering in any manner with
the plaintiffs' exclusive possession and enjoyment of the 2nd item
of the suit properties.
c) Towards the costs of the suit payable by the defendant to the
plaintiffs.
4. The case of the plaintiffs is that the suit properties originally
belonged to one Parvathy Ammal, who alienated the same along with her
children in favour of one Nandagopal Mudaliar, the father of the
plaintiffs, for a valuable consideration of Rs.300/- under a registered sale
deed dated 17.01.1947. Right from the date of purchase, the said
Nandagopal Mudaliar was in possession and enjoyment of the suit
properties. He then mortgaged the properties to one Rathina Naidu on
10.02.1956 for a sum of Rs.600/- and subsequently the mortgage was
discharged by him. Thereafter, the said Nandagopal Mudaliar divided
the suit properties into two halves and settled the eastern half in favour of
the 4th plaintiff under a registered settlement deed dated 12.10.1983 and
retained the western half share. The eastern and western half of the
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properties were shown as the first and second item of the suit properties
respectively. The said settlement deed was accepted by the 4 th plaintiff
and acted upon and she is in exclusive possession of the first item of the
suit properties.
4.1. The plaintiffs' father executed a registered Will with respect to
the 2nd item of the suit properties, which was retained by him, in favour
of the plaintiffs' mother Chellammal on 03.08.1987. It is the last Will
executed by Nandagopal Mudaliar, out of his free will and volition.
After the death of Nandagopal Mudaliar, the plaintiffs' mother
Chellammal became the absolute owner of the second item of the suit
properties. She died intestate in the year 2003 at the residence of the 3rd
plaintiff at Olakkur Village, Tindivanam Taluk. Hence the plaintiffs
alone are the legal heirs to inherit the second item of the suit properties.
The plaintiffs had one brother by name Kannan who died intestate after
the death of Nandagopal Mudaliar leaving behind his wife Chandra and a
son by name Chakrapani and a daughter by name Baby. They are
residing at Pondicherry and they are in good terms with the plaintiffs.
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The suit properties are managed by the plaintiffs on their behalf. While
so, the defendant herein, having no right over the suit properties,
demanded the plaintiffs to alienate the properties for a meagre amount.
Since the plaintiffs refused to alienate the properties, the defendant is
attempting to trespass into the suit properties. Hence the plaintiffs were
constrained to file the above suit for permanent injunction.
5. The claim of the plaintiffs was resisted by the defendant by
stating that the plaintiffs' father Nandagopal Mudaliar sold his joint
family properties and purchased the present suit properties. He had a
male child by name Kannappan and the plaintiffs through his wife
Chellammal. Nandagopal and Kannappan constituted the Hindu
undivided Joint family and they partitioned the suit properties in which
the eastern 15 feet was allotted to Nandagopal and the western 23 feet
was allotted to the share of Kannappan. From the date of the said oral
partition, the respective sharers are in possession and enjoyment. From
the year 1980, the 4th plaintiff had been residing with her parents. Out of
love and affection, Nandagopal executed a settlement deed in respect of
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his share. The western property was allotted to Kannappan which is a
vacant land. The said Kannappan settled his family at Pavazha Kunru
Street, Tiruvannamalai Town. On 25.11.1986, the said Kannappan sold
his share of property to one Anna Durai, son of Velu, who took
possession of the suit property and constructed a thatched shed and he
was tethering cattle in the said shed enjoying the same as original owner.
The said Anna Durai sold the property in favour of the defendant's son
Shankar on 22.04.2005 for a valuable consideration of Rs.15,000/-. The
defendant's son Shankar took possession of the second item of the suit
properties and he started to construct a terraced house in the said
property and also put up a basement. Under such circumstances, the
plaintiffs have come forward with the present vexatious suit in order to
make wrongful gain. Even now the defendant's son Shankar is continuing
his construction work. By getting an ex parte order of injunction, the
plaintiffs are harassing the defendant. The registered Will date
03.08.1987 was created with an intention to defeat the rights of Anna
Durai. The plaintiffs and Kannappan's legal heirs are away from the suit
properties for the past 15 years. This defendant never attempted to
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trespass into the suit properties and moreover he is not a proper person.
Hence the suit is liable to be dismissed.
6. The trial court upon considering the pleadings and appreciating
the evidence let in by the plaintiffs and the defendant and considering the
arguments put forth by the respective counsel for the parties, dismissed
the suit against which the plaintiffs preferred an appeal suit in
A.S.No.110/2006 on the file of the Principal Sub-Court, Tiruvannamalai.
The said appeal suit was also dismissed by the learned Principal
Subordinate Judge, Tiruvannamalai, confirming the judgment and decree
passed in O.S. No.299/2005 passed by the trial court. Challenging the
same, the present Second Appeal has been preferred by the plaintiffs.
7. The following substantial questions of law were raised in the
memorandum of second appeal.
i. Whether the courts below are correct in dismissing the suit for non
joinder of parties?
ii. Whether the courts below are correct in observing that the
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plaintiffs have to implead the legal representatives of the deceased
brother when the plaintiffs are not aggrieved against them and
there is no interference by them?
iii. Whether the courts below are correct in dismissing the suit without
going into the documents and evidence which prove the plaintiffs'
possession and enjoyment of the suit property?
8. The learned counsel for the appellants/plaintiffs would submit
that the plaintiffs' father has executed a Will in respect of Item No.2 of
the suit property in favour of the plaintiffs' mother, who died intestate
and as such the plaintiffs became absolute owners of the suit properties.
She would further submit that though the defendant had pleaded that
there was an oral partition between the plaintiffs' father and brother, the
same has not been proved and therefore, the suit ought not to have been
dismissed. Her further submission is that the Will executed by the
plaintiffs' father in respect of Item No.2 of the suit property has been
produced by the plaintiffs. However, the courts below failed to accept
the said Will and title of the plaintiffs. She would submit that once the
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plaintiffs have proved the case by producing the Will of their father and
in the event the Will is not denied by the defendant, the suit ought to
have been decreed. Since the suit is only for bare injunction against the
defendant who tried to interfere with the possession and enjoyment of the
plaintiffs, it is not for the plaintiffs to implead the legal representatives of
the deceased brother from whom the defendant alleged to have purchased
the property.
9. On the other hand, the learned counsel appearing for the
respondent/defendant submits that once the defendant claims that the
plaintiffs are not in possession or do not have right to the property, it is
essential for the plaintiffs to prove otherwise through concrete evidence.
If they failed to do so, the Court need not consider the case of the
plaintiffs and grant the relief sought for. He would further submit that
when the defendant disputes the title of the plaintiffs, a suit for mere
injunction is not suffice and that it is well settled by catena of judgment
of this Court and the Hon'ble Apex Court that in each and every case,
where the defendant disputes the title of the plaintiff, it is not necessary
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that in all those cases, the plaintiff has to seek the relief of declaration. A
suit for mere injunction does not lie only when the defendant raises a
genuine dispute with regard to title and when he raises a cloud over the
title of the plaintiff, then necessarily in those circumstances, the plaintiff
cannot maintain a suit for bare injunction. To support his contentions, the
learned counsel for the respondent has relied upon the judgment in the
case of Jharkand State Housing Board vs. Didar Singh reported in
2018 SCC online SC 2170. Therefore, the learned counsel submits that
the courts below have properly analysed the documents filed by the
plaintiffs and the defendant. Moreover, the title of the defendant has
been clearly demonstrated by virtue of the title deed marked as Ex.B3
and it clearly supports the version that the 2nd item of the suit properties
is owned by the defendant's son. Hence the finding of the courts below
warrants no interference by this Court.
10. Heard on both sides. Records perused.
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11. Admittedly it is a suit for bare injunction. According to the
plaintiffs, one Nandagopal Mudaliar, father of the plaintiffs purchased
the suit properties through a registered sale deed marked as Ex.A1 dated
17.01.1947. He then divided the suit properties into two equal portions
and settled the eastern half in favour of the 4th plaintiff under a registered
settlement deed dated 12.10.1983 and retained the western half. The
eastern and the western half are referred to as first and second item of
the suit properties respectively. The further case of the plaintiffs is that
the said Nandagopal executed a registered Will on 03.08.1987 in respect
of the second item of the suit properties bequeathing the same in favaour
of his wife Chellammal, who died intestate in the year 2003. As such, the
plaintiffs, legal heirs of Chellammal entitled to inherit the second item of
the suit properties. The further case of the plaintiffs is that they had a
brother namely Kannan who also died intestate leaving behind his wife
and children. The suit properties are managed by the plaintiffs on behalf
of all the legal heirs. While so, the defendant without any right
whatsoever attempted to trespass into the suit properties,which
compelled the plaintiffs to file the above suit for the relief of permanent
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injunction.
11.1. Whereas the case of the defendant is that the said
Nandagopal and his son Kannappan divided the suit properties in which
the eastern stretch of 15 feet was allotted to Nandagopal and the western
stretch of 23 feet was allotted to Kannappan in an oral partition.
Thereafter, the said Nandagopal executed a settlement deed in favour of
the 4th plaintiff. The said Kannappan sold his share of the property to one
Annadurai who took possession of the property and constructed a
thatched shed and used the same for tethering his cattle. Thereafter, on
22.04.2005, the said Annadurai sold his property to the defendant's son
namely Shankar, under a registered sale deed. While so, when the
defendant intended to construct a terraced house on the second item of
the suit properties, the plaintiffs have come forward with this vexatious
suit under the guise of fabricated Will dated 03.06.1987 with an intention
to defeat the valuable rights of Annadurai and the defendant's son.
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11.2. The alleged Will said to have been executed by Nandagopal
in the year 1987 is marked as Ex.A4. The property tax receipts in the
name of the 4th plaintiff were marked as Ex.A5 to Ex.A9 and the tax
receipts in the name of Chellammal were marked as Ex.A10 and Ex.A11.
The sale deed executed by Kannappan in favour of Annadurai is marked
as Ex.B2 and the sale deed executed by Annadurai in favour of the
defendant's son Shankar dated 22.04.2005 is marked as Ex.B3. The trial
court has held that the documents relied upon by the plaintiffs do not
relate to the second item of the suit property and that the plaintiffs failed
to produce the relevant documents to substantiate that the said
Chellammal, mother of the plaintiffs, was in possession of the suit
property. The trial court further held that the cross examination of P.W.1
indicates that the plaintiffs were aware of the fact that their brother had
sold the suit property and also about the sale deed in favour of the
defendant's son. Therefore, the trial court concluded that the suit
property was not in possession of the plaintiffs. Moreover, under Ex.B3
the said Kannappan has sold the property in the year 1986, whereas
Ex.A4 Will was executed in the year 1987. Hence the trial court
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dismissed the suit stating that the legalheirs of the said Kannappan are
the necessary parties to the suit and further held that a bare injunction
suit is not maintainable since there is a cloud on the title of the suit
property. The first appellate court also held that when the defendant is
setting up a rival title in favour of his son, the plaintiffs ought to have
amended the plaint seeking the relief of declaration of title against the
defendant's son and further held that the suit is bad for non joinder of
necessary parties since the legal heirs of he said Kannappan were not
made parties to the suit. Moreover, the first appellate court held that since
the defendant in the written statement pleaded that he is in no way
connected with the suit property and that his son is the owner of the suit
property who is possession and enjoyment of the same, the plaintiffs,
despite of the above averments, failed to take any steps to implead the
defendant's son as party to the suit. Accordingly, the first appellate Court
confirmed the judgment and decree passed by the trial court.
11.3. Admittedly in a suit for bare injunction, the plaintiffs must
first prove their possession. Moreover, when the defendant claims right
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over the suit property under Ex.B3 sale deed, the genuineness of the Will
cannot be determined in a suit for injunction alone. Moreover, it is not
established on the side of the plaintiffs that Ex.A10 and Ex.A11 house
tax receipts pertain to the suit properties. Except for the above
documents, the plaintiffs have not produced any other documents to
show that they are in possession and enjoyment of the suit properties.
11.4. As discussed above, the tax receipts Ex.A10 and Ex.A11 do
not establish the possession and enjoyment in the suit property by the
plaintiff since it lacks essential details such as door number, etc. Even
otherwise, as rightly pointed out by the learned counsel for the
respondent, when there is a cloud over the title of the plaintiffs and
particularly when the defendant disputed the title of the plaintiffs, a bare
injunction suit is not sufficient. Though in all cases where the defendant
disputes the title of the plaintiff, it is not necessary that the plaintiff has
to seek the relief of declaration, but, when the defendant raises a genuine
dispute with regard to the title, then necessarily in those circumstances,
the plaintiff cannot maintain a suit for bare injunction. The plaintiff, in
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such circumstances, ought to have sought for the relief of declaration. In
Anathula Sudhakar Vs. P Buchi Reddy & ors reported in AIR 2008 SC
2033, the Hon'ble Supreme Court clarified the general principles as to
when a mere suit for permanent injunction will lie and when it is
necessary to file a suit for declaration and or possession with injunction
as consequential relief, which is extracted as under.
13.1. Where a plaintiff is in lawful or peaceful possession of
a property and such possession is interfered or threatened
by the defendant, a suit for an injunction simpliciter will lie.
A person has a right to protect his possession against any
person who does not prove a better title by seeking a
prohibitory injunction. But a person in wrongful possession
is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is
not in possession, his remedy is to file a suit for possession
and seek in addition, if necessary, an injunction. A person
out of possession, cannot seek the relief of injunction
simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the
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property is in dispute, or under a cloud, or where the
defendant asserts title thereto and there is also a threat of
dispossession from the defendant, the plaintiff will have to
sue for declaration of title and the consequential relief of
injunction. Where the title of the plaintiff is under a cloud or
in dispute and he is not in possession or not able to
establish possession, necessarily the plaintiff will have to
file a suit for declaration, possession and injunction.
11.5. Moreover, the courts below categorically held that the
defendant's title to the suit property is established through a chain of title
originating from the plaintiffs' brother Kannappan and that the suit is bad
for non joinder for necessary parties since the same cannot be
adjudicated without defendant's son being part of the proceedings.
Therefore, the courts below rightly dismissed the suit for non joinder of
parties. Moreover, the property in dispute is originated from the
plaintiffs' brother Kannappan, who alienated it to one Annadurai.
Evidently, the defendant's son purchased the property from Annadurai.
The chain of title involves the plaintiffs brother and the defendant's claim
to the property is mainly based on title. Therefore, the legal heirs of the
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plaintiffs' deceased brother are necessarily to be impleaded in the suit.
Moreover, in a suit for bare injunction, the burden is upon the plaintiffs
to prove the possession and enjoyment of the suit property. No infirmity
or perversity is found in the findings of the courts below which warrants
interference by this court. Therefore, I do not see any question of law
much less a substantial question of law in order to enable me to entertain
this appeal.
12. In the result,
i. The Second Appeal is dismissed. No costs.
ii. The decree and judgment dated 21.09.2007 passed in A.S. No.110
of 2006, on the file of the Principal Subordinate Judge,
Thiruvannamalai, confirming the Judgment and decree dated
28.09.2006 passed in O.S. No.299 of 2005, on the file of the
Principal District Munsif, Thiruvannamalai, is upheld.
12.09.2025
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Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Principal Subordinate Judge, Thiruvannamalai.
2. The Principal District Munsif, Thiruvannamalai.
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery Judgment in
12.09.2025
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