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2009 DIGILAW 4516 (MAD)

Manoharan v. Jayaraman

2009-10-28

R.BANUMATHI

body2009
Judgment :- Being aggrieved by the judgment in A.S.No.93 of 2005 reversing the judgment of the trial Court in O.S.No.99 of 2002 and dismissing appellants/plaintiffs suit for permanent injunction, unsuccessful plaintiff has filed this Second Appeal. For convenience, parties are referred in their original rank in the suit. 2. Suit property relates to 2.21 acres comprised in S.F.No.78/4B of Kainur Village. The case of the plaintiff is that suit property was the self acquired property of the defendants father Ponnan and the said Ponnan sold the suit property to plaintiffs father Munusamy under Ex.A1 sale deed dated 210. 1962. After purchase, the plaintiffs father was in possession and enjoyment of said extent of 2.21 acres. The plaintiffs father died intestate on 17.04.2001 leaving behind his wife Muthubackiammal, sons namely plaintiff and other sons and daughters. The plaintiffs mother Muthubackiammal also died intestate. Plaintiff and his brothers and sisters are in joint possession and enjoyment of the suit property. A portion of the suit land was converted into plots and the plaintiff being Power of Attorney of his brothers and sisters had also sold away 16 plots to third parties and the said third parties are in possession and enjoyment of the said plots purchased by them. The defendant who is son of vendor Ponnan has no right, title or interest over the suit property and while so the defendant is unlawfully attempting to interfere with the plaintiffs possession and enjoyment of the suit property and hence the suit for permanent injunction. 3. The respondent/defendant resisted the suit contending that suit property in S.No.78/4B was assigned to defendants father by the government on condition that it should not be alienated/mortgaged to anybody else and therefore Ex.A1 sale deed (dated 210. 1962) executed by late Ponnan will not bind the defendant, since it is against the conditions of Assignment. In the Written Statement, it is further averred that Ex.A1 sale deed in the name of the plaintiffs father is invalid, inoperative and not binding upon the defendant. The defendant denied having threatened to interfere with the possession of the suit property particularly of third parties, who purchased the plots from the plaintiff. 4. On the above pleadings, trial Court framed two issues. On plaintiffs side, plaintiff was examined as PW.1 and another Witness as PW.2 and Ex.A1 to Ex.A15 were marked. The defendant denied having threatened to interfere with the possession of the suit property particularly of third parties, who purchased the plots from the plaintiff. 4. On the above pleadings, trial Court framed two issues. On plaintiffs side, plaintiff was examined as PW.1 and another Witness as PW.2 and Ex.A1 to Ex.A15 were marked. On the defendants side, DW.1 (defendant) to DW.3 were examined and Ex.B1 to Ex.B5 were marked. Upon consideration of oral and documentary evidence, trial Court held that even though suit property was assigned to defendants father Ponnan, the same was sold for valuable consideration to the plaintiffs father Munusamy. Based upon evidence, trial Court further held that after death of Munusamy, plaintiff and his brothers and sisters were in joint possession and enjoyment of the suit property. Referring to Exs.A2 to A6, patta and kist receipts, trial Court held that plaintiff has established his possession and enjoyment in the suit property and that defendant has no manner of right or interest to interfere with the plaintiffs possession and on those findings decreed the suit granting permanent injunction. 5. Being aggrieved, the defendant preferred Appeal in A.S.No.93 of 2005. Observing that a portion of the suit property was divided into plots and 16 plots were sold to third parties, the lower Appellate Court held that without impleading those 16 persons, the suit as framed is bad for non-joinder of necessary parties. It was further held that without impleading those 16 purchasers, the plaintiff cannot claim to be in possession of the entire extent of the property and therefore the plaintiff would not be entitled to permanent injunction and the first Appellate Court reversed the findings of the trial Court and allowed the Appeal. 6. Unsuccessful plaintiff has filed this Second Appeal. At the time of admission of the Second Appeal, the following substantial questions of law was formulated for consideration:- a) Has not the Plaintiff/Appellant proved his possession of the suit Property, as per Ex.B.3 Lawyer Notice dated 13.09.2001 issued by the Defendant to the Plaintiff, directing the Plaintiff to deliver possession? b) Has not the Appellate Court erred in allowing the Appeal, on the technical ground of not impleading the Purchasers when the Plaintiff proved possession of the property?" 7. b) Has not the Appellate Court erred in allowing the Appeal, on the technical ground of not impleading the Purchasers when the Plaintiff proved possession of the property?" 7. Assailing the findings of the trial Court, learned counsel for the Appellant Mr.N.S.M.MD.Jafarullah contended that the Appellate Court failed to see that the plaintiff sought for permanent injunction only in respect of property barring the extent of the sites sold away by the plaintiff and while so the lower Appellate Court was not right in saying that third parties/purchasers of 16 plots ought to have been impleaded in the suit. It was further contended that the lower Appellate Court failed to consider that the defendant demanded possession of the property from the plaintiff only under Ex.B1 legal notice. Laying emphasis upon Exs.A2 to A6, patta and kist receipts, learned counsel for the appellant contended that the lower Appellate Court erred in giving overwhelming evidence adduced by the plaintiff. 8. Countering the arguments, learned counsel for the respondent submitted that when plaintiff has already parted with possession, plaintiff has not come to the Court with correct particulars and therefore lower Appellate Court rightly negatived the relief of Permanent Injunction. It was further argued that in the absence of definite pleadings, Court cannot exercise its discretionary jurisdiction to grant Permanent Injunction. Placing reliance upon (2009) 4 MLJ 575 (SC) (K.V.Ratnam ..vs.. Pamarti Venkayamma), it was further submitted that Second Appeal has to be decided only on the substantial questions of law formulated and in the instant case, no substantial question of law is involved warranting interference with the judgment of the trial Court. 9. There is no denial that the suit property was originally assigned to the defendants father Ponnan. Equally it is not in dispute that the property in S.No.78/4B-2.21 acres was sold to the plaintiffs father under Ex.A1 sale deed dated 210. 1962. According to plaintiff, after death of his father Munusamy, plaintiff and his brothers and sisters were in joint possession and enjoyment of the property. To substantiate his claim, the plaintiff has filed Ex.A2, patta in the name of his father Munusamy and Exs.A3 to A5, kist receipts and Ex.A6, patta in the name of plaintiff. 10. In the Written Statement filed by the defendant, the only defence raised by the defendant was that Ex.A1 sale deed dated 210. To substantiate his claim, the plaintiff has filed Ex.A2, patta in the name of his father Munusamy and Exs.A3 to A5, kist receipts and Ex.A6, patta in the name of plaintiff. 10. In the Written Statement filed by the defendant, the only defence raised by the defendant was that Ex.A1 sale deed dated 210. 1962 executed by his father will not bind the defendant and the sale deed is against the conditions mentioned in A Register. The defendant has taken a further plea that Ex.A1 sale deed in favour of plaintiffs father is invalid, inoperative and non-binding upon the defendant. It is pertinent to note that such a plea was taken by the defendant nearly four decades after the sale deed. By perusal of Ex.B2-Assignment, there seems to be no such restraint upon such alienation. Clause 3 of Ex.B2 only stipulates that without the permission of the Government, the property cannot be alienated to a person who is not an Indian Citizen. Clause 3 in Ex.B2 reads as under:- 3) fth;d;bkz;lhUila mDkjpapy;yhky; nkw;go epyj;ij ,e;jpad; a{dpad; FoahfthtJ ahbjhU ,e;jpa rk!;jhdj;ijr; nrh;e;j FoahfthtJ ,uhj xU egUf;Fg; guhjPdk; bra;jhy; milkhdk; rl;l rk;kjkw;wjha; tpLk;;. There seems to be no impediment for alienation of property to Indian Citizen. In any event, as held by the Courts below Ex.A1 Sale Deed cannot be challenged nearly after four decades. 11. As pointed out earlier, the defendant has raised the only plea of challenging the sale deed. The defendant has not raised any plea of non-impleading of purchasers of 16 plots. While so, in the first Appellate Court, the defendant appears to have taken a new plea that non-impleading of purchasers of 16 plots. Lower Appellate Court accepted the plea raised by the defendant that third parties, who have purchased 16 plots in S.No.78/4B, were not impleaded and that the plaintiff has not come out with correct particulars. The lower Appellate Court was not right in saying that the plaintiff has not come forward with the correct particulars in respect of the properties in S.No.78/4B. As rightly submitted by the learned counsel for the appellant, the suit was in respect of the property in S.No.78/4B-2.21 acres barring the extent sold away by the plaintiff. While so, the lower Appellate Court was under misconception that the suit was for the entire extent of property in S.No.78/4B. As rightly submitted by the learned counsel for the appellant, the suit was in respect of the property in S.No.78/4B-2.21 acres barring the extent sold away by the plaintiff. While so, the lower Appellate Court was under misconception that the suit was for the entire extent of property in S.No.78/4B. The First Appellate Court did not seem to have kept in view the schedule of property. 12. In fact in his Written Statement defendant himself has not raised such a plea of nonjoinder of purchasers of 16 plots. While so, the lower Appellate Court misdirected itself that non-impleading of third party purchasers would vitally affect the plaintiffs case and the lower Appellate Court erred in reversing the judgment of the trial Court. 13. The plaintiff is the dominus litus cannot be compelled to implead the parties whom the plaintiff does not feel necessary to implead. All objections as to question of misjoinder or non-joinder of parties must be decided on the basis of plaint averments and the averments in the Written Statement. In the absence of any pleading as to non-impleading of third party purchasers, lower Court erred in accepting the defence plea of non-impleading of third party purchasers of 16 plots. 14. As per Order 1 Rule 13 CPC objection as to non-joinder or mis-joinder must be taken at the earliest possible opportunity. Non-raising of a plea of non-joinder of necessary parties requiring proof of certain facts and the evidence on record at the earliest stage as enjoined under Order 1 Rule 13 CPC would amount to waiver of pleading the facts. When the respondent/defendant has not raised the plea of nonjoinder of parties in his Written Statement, he ought not to have been allowed to raise such a plea before the First Appellate Court. Having allowed the defendant to raise a plea of non-joinder of necessary parties, the lower Appellate Court had not given any reasoning as to how non-impleading of those third party purchasers has affected the adjudication of the dispute between the plaintiff and the defendant. First of all, lower Appellate Court has not adverted to the plaint schedule of property, whether the plaintiff had sold the suit property barring the extent of the property already sold by him. First of all, lower Appellate Court has not adverted to the plaint schedule of property, whether the plaintiff had sold the suit property barring the extent of the property already sold by him. In fact, in the plaint, plaintiff himself has averred that he has converted the land into plots and also sold away 16 plots to third parties and that the defendant is attempting to interfere with the possession of suit property. The plaintiff does not seem to have suppressed any material fact from the Court. Based upon the materials and upon analysis of evidence, the trial Court rightly exercised the discretion granting permanent injunction in favour of the appellant/plaintiff. When there was proper exercise of discretion, the lower Appellate Court ought not to have interfered with the exercise of discretionary power by the trial Court granting permanent injunction. By reversing the judgment of trial Court, lower Appellate Court committed serious error and therefore, the judgment of the lower Appellate Court is to be set aside restoring the judgment of the trial Court. 15. The judgment in A.S.No.93 of 2005 is set aside and Second Appeal is allowed. The judgment of the trial Court in O.S.No.99 of 2002 (dated 25.02.2005) on the file of District Munsif Court, Sholinghur is restored. No costs.