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2010 DIGILAW 1448 (MAD)

Radha & Others v. M. Shanthi

2010-04-01

M.CHOCKALINGAM, T.RAJA

body2010
Judgment :- M.CHOCKALINGAM, J. This intracourt appeal arises from the order of the learned Single Judge made in O.A.No.641 of 2009 in C.S.No.141 of 2009 whereby an order to maintain status quo of the suit property of vacant land was made. 2. The Court heard the learned counsel for the appellants and also for the respondent/plaintiff. 3. It was a suit for declaration in respect of the schedule mentioned property to the plaint. The case of the respondent/plaintiff who sought the interim relief was that the property originally belonged to one Shanmugam and the Power of Attorney of the said Shanmugam executed a sale deed in favour of one Rani and on purchase, the said Rani sold the property to the mother of the plaintiff and the mother of the plaintiff, in turn, has executed the settlement deed in favour of the plaintiff and she got the title to the property along with the possession and has been enjoying the same. There was interference by the respondents 1 to 3, who are the appellants herein. Under such circumstances, it has became necessary to maintain status quo in respect of the suit property till a decision is taken by the Court. 4. When the matter was taken up for enquiry by the learned trial Judge, the first and second defendants/respondents did not make any representation. Though the counsel appeared for the third defendant/respondent, no counter was filed. The counsel for the fourth and the fifth defendants who was present was also heard. After hearing the contentions putforth by the counsel and also looking into the materials available the learned single Judge has made an order to maintain status quo till a decision is taken in the suit. Under such circumstances, the appeal has arisen before this Court at the instance of the defendants 1 to 3. 5. The learned counsel appearing for the appellants inter alia would state that, before the trial court, no opportunity was given to the defendants to put forth their contentions or file a counter. The s 1st and the 2nd respondents are the owners of the suit property. One Dhandapani has filed O.S.No.6486/2004 on the file of the City Civil Court, Madras. Subsequently, the present defendants 1 and 2, who are the wife and son of Dhandapani along with the third defendant, their power of attorney, have been prosecuting the suit. The s 1st and the 2nd respondents are the owners of the suit property. One Dhandapani has filed O.S.No.6486/2004 on the file of the City Civil Court, Madras. Subsequently, the present defendants 1 and 2, who are the wife and son of Dhandapani along with the third defendant, their power of attorney, have been prosecuting the suit. The exparte decree was passed against the present plaintiff/respondent and also her mother and an application to set aside the exparte was filed at the stage, when the decree was put in execution. Added further learned counsel that in the instant case, the plaintiff has no iota of right in the property at all and all the evidence putforth before the court has to be considered and appreciated. Under such circumstances, it was not a fit case where interim order could be granted in favour of the plaintiff. Apart from that, there was a super structure in the property and it has also been demolished by the appellants. Hence, the order passed by the trial Court has got to be set aside and the appeal has got to be ordered. 6. The Court heard the learned counsel for the respondent/plaintiff. According to him, it is true that in the suit filed in O.S.No.6486/2004 the plaintiff is shown as one of the defendants. It is also true that an exparte order was passed and an application to set aside the exparte order was filed and the same was ordered on payment of costs. When the cost was tendered to the plaintiffs counsel therein, it was refused to be received. Under such circumstances, a memo has been filed before the Court and it remains to be ordered. The learned counsel would further submit that the property originally belonged to two persons viz., Shanmugam and Dhandapani and properties which belonged to these two persons were put together and plotted out and the power of attorney of Shanmugam sold the property to one Rani who has sold the same to the plaintiffs mother and the plaintiffs mother has settled the property on the plaintiff and thus, the plaintiff has acquired title to the property and before the trial Court, a suit for declaration was filed in respect of the same property. Learned counsel further pointing to the plaint in O.S.No.6486/2004 would submit that the reliefs asked for are declaration, mandatory injunction, etc. Learned counsel further pointing to the plaint in O.S.No.6486/2004 would submit that the reliefs asked for are declaration, mandatory injunction, etc. but the plaintiff in that suit has never asked for possession of the property. The possession is all along with the plaintiff and the predecessors in title. Under such circumstances, the trial Judge, after considering the merits of the matter has passed the order to maintain status quo till a decision is taken on the merits of the matter on appreciation of evidence. Hence, the order of the trial Judge has to be affirmed. 7. The Court paid its consideration on the submissions made and looked into the materials available. 8. It is not in controversy that the plaintiff has filed a suit for declaration that the suit property belonged to her; that the same was purchased by one Rani from the power of attorney of the owner and the said Rani also sold the property to the mother of the plaintiff and the mother of the plaintiff in turn executed a settlement deed in favour of the plaintiff and thus, she derived title to the property and she is in possession of the property. 9. It is also not in controversy that the property measuring 4.2 acres belonged to two persons namely Dhandapani and Shanmugam and the entire property was plotted out and sold to different persons and O.S.No.6486/2004 was originally filed by Dhandapani and the present plaintiff and her mother were shown as defendants and an exparte decree came to be passed and an application to set aside the exparte decree was ordered on condition of payment of costs. A perusal of the plaint in O.S.No.6486/2004 would indicate that the declaration is sought for, for the vast area of property including the property in question. Apart from that, as rightly pointed out by the learned counsel for the respondent/plaintiff recovery of possession has not been asked for . The plaintiff in the present suit has averred that the plaintiff is actually in possession of the property and sought for declaration in respect of the property. The only question that would arise for consideration would be whether the status quo order now ordered by the learned single Judge in the interlocutory application in the suit has got to be sustained. 10. The only question that would arise for consideration would be whether the status quo order now ordered by the learned single Judge in the interlocutory application in the suit has got to be sustained. 10. Considering the facts and circumstances of the case, the Court is of the opinion that it is a fit case where status quo has got to be maintained for the reason that the property, in respect of which, the plaintiff has sought for declaration and the defendants who are the appellants herein who are prosecuting the suit in O.S.6486/2004 and the property mentioned in the said suit, are actually common property. It is also admitted, at present, the property is a vacant site. Till a decision is taken in the suit, either of the parties should not be allowed to raise any construction. Under such circumstances, the trial Judge, on considering the factual position, has taken a correct view that status quo has got to be maintained. The Court is of the opinion that the order of the learned Single Judge does not require any interference. Therefore, the order passed by the learned single Judge is sustained. After the exparte decree passed in O.S.No.6486/2004 is set aside, it could be taken on file of this Court for the purpose of joint trial of both the suits, to take a decision in the matter, on appreciation of the evidence to be let in by both the parties. Accordingly, the appeal is disposed of. No costs. Consequently, M.P.No.1 of 2009 is closed.