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2011 DIGILAW 1247 (MAD)

J. Venkatraman @ Venkatramanan v. K. Venu

2011-03-04

G.RAJASURIA

body2011
Judgment : G. RAJASURIA, J. 1. This second appeal is filed by the plaintiff, inveighing the judgment and decree dated 30.1.2010 passed by the First Fast Track Court-I, Chennai, confirming the dismissal decree and judgment dated 16.12.1997 passed by the VI Assistant City Civil Judge, Chennai, in O.S. No. 4550 of 1989, which was filed for permanent injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: The appellants herein, as plaintiffs, filed the suit seeking the following reliefs: “To pass a decree and judgment: (i)granting a permanent injunction restraining the defendant his men, agents and servants from in any way blocking the front side B schedule main passage of the ‘A‘ Schedule suit property by raising a wall at the point EF as per plaint plan near the stair case and in any manner interfering with the plaintiffs peaceful possession and enjoyment of the A and B schedule properties; (ii)directing the defendants to pay the cost of the suit.” (extracted as such) (b) Resisting the said suit, the defendant filed the written statement. (c) Whereupon issues were framed by the trial Court. On the side of the plaintiffs, the first plaintiff examined himself as P.W.1 along with P.W.2 and marked Exhibits A-1 to A-16. On the defendant‘s side the defendant examined himself as D.W.1 along with D.W.2 and Exhibits B-1 to B-19 were marked. (d) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court. 4. On the defendant‘s side the defendant examined himself as D.W.1 along with D.W.2 and Exhibits B-1 to B-19 were marked. (d) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court. 4. Being aggrieved by and dissatisfied with the judgments and decrees of the Courts below, the second appeal has been filed by the plaintiffs on various grounds, inter alia to the effect that the Courts below misdirected themselves by applying the broad proposition that one co-owner cannot get injunction as against the other co-owner; they also gave certain verdicts as though there was a adoption of the defendant by the deceased Jaganatha Naidu and they also rendered their finding relating to the validity of the settlement deed and other documents and those findings cannot be taken as the ones, which achieved finality in the suit, which was one for bare permanent injunction. Accordingly, the following alleged substantial questions of law are found set out in the memorandum of grounds of second appeal. “a)Whether the lower appellate Court is right in law in relying upon Exhibits B-7 and B-8 which has not been proved as per Section 68 of the Indian Evidence Act? (b)Whether the lower appellate Court has properly construed and applied provisions of Section 3 and 4 of the Benami Transaction (Prohibition) Act, 1983 and the presumption established in the said provision particularly when the suit property is in the name of the wife of Jagannathan? (c)Whether the lower appellate Court is right in relying upon Exhibits B-1, B-2 and B-3 the contents of which has not been proved in a manner known to law and whether has properly appreciated the law relating to admissions as per the provisions of Indian Evidence Act, 1872? (d)When the Presiding Officer who recorded the evidence and has given a decision that question of adoption in a suit for bare injunction, whether the subsequent Presiding Officer can go into the question of adoption after having prevented the parties from letting in evidence relating to adoption and whether the lower appellate Court is right in law in not even considering the said point in the judgment? (e)Whether the Courts below have properly considered the Exhibits B-1, B-2, B-3, B-4, B-6, B-7, B-8 and A-15 while considering the question of adoption by properly applying the law of Evidence regarding proof of adoption? (f) Whether the Courts below have properly applied the provisions of Specific Relief Act, 1963, while dismissing the prayer for injunction sought for by the defendants restraining them from in any way blocking the passage/entrance?” (extracted as such) 6. My learned predecessor adapted virtually the aforesaid substantial questions of law. 7. Heard both. 8. The gist and kernel of the arguments as put forth and set forth on the side of the plaintiffs would run thus: (i) The Courts below failed to take Into consideration the scope of the suit and the trial Court framed various issues, which were beyond the scope of a bare injunction suit. (ii) Any finding rendered in a suit for injunction, on matters and issues which are not within the para meters or scope of the said suit, cannot be taken as one which attained finality. (iii) Even though, at the time of recording the evidence, the then trial Judge passed order in the deposition itself that evidence relating to adoption could not be entertained, still the Judge, who subsequently decided the lis held as though there was valid adoption of the defendant by Jaganatha Naidu. (iv) The plaintiffs are not seeking any injunction as against the defendant that he should be prevented from enjoying any part of the property, but here the scope of injunction is to the effect that the plaintiffs‘ enjoyment of the passage found described in the ‘B‘ schedule only should be protected and since the defendant attempted to raise a wall on the EF portion in the ‘B‘ schedule passage, the plaintiffs were constrained to file the suit. Accordingly, the learned senior counsel for the plaintiffs would pray for setting aside the judgments and decrees of the Courts below and for decreeing the original suit as prayed for. 9. Piloting the arguments on the side of the defendant and in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, the learned counsel for the defendant would submit thus: (a) The bare suit for injunction itself should not have been entertained as without proper pleadings the suit was filed. Piloting the arguments on the side of the defendant and in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, the learned counsel for the defendant would submit thus: (a) The bare suit for injunction itself should not have been entertained as without proper pleadings the suit was filed. (b) The defendant in the written statement was virtually constrained to justify his status and hence in that connection he detailed and delineated, narrated and expatiated the relevant facts and his status as that of the adopted son of Jagannatha Naidu and also the fact as to how he is entitled to occupy the, suit property, more specifically the ‘B‘ schedule property up to EF portion. (c) Whereas, the plaintiffs are only occupying the ‘C‘ schedule property. Had a blanket injunction been given in favour of the plaintiffs by this time, the defendant would have been thrown out of the premises with the help of such injunction. Hence, the Courts below understanding the real motive of the plaintiffs in seeking for such blanket bare injunction dismissed the suit, warranting no interference in second appeal. According to the learned counsel for the defendant there is no question of law much less substantial question of law is involved in this appeal and accordingly he prayed for the dismissal of the second appeal. 10. After hearing both sides, I am of the considered view that for the disposal of this second appeal the following substantial questions of law would be necessary. Whether both the Courts below were justified in understanding the prayer for permanent injunction in the suit as though it is a prayer for injuncting the defendant from enjoying the suit property in toto ignoring the fact that it was only for the purpose of safe-guarding the enjoyment of the plaintiffs over the suit passage? 2. Whether the findings rendered by the Courts below relating to the substantive rights of the parties concerning the adoption and the settlement deed etc. , by relying on Exhibits B-1, B-2 and B-3 are necessary at all for deciding the lis? 3. Whether there is any perversity or illegality in the orders passed by the Courts below? All these points are taken together for discussion as they are interlinked and inter-woven with one another. 11. , by relying on Exhibits B-1, B-2 and B-3 are necessary at all for deciding the lis? 3. Whether there is any perversity or illegality in the orders passed by the Courts below? All these points are taken together for discussion as they are interlinked and inter-woven with one another. 11. Indubitably and indisputably, unarguably and unassailably, the facts remain that the suit itself is for permanent injunction so as to see that the defendant is not preventing the plaintiffs from enjoying the suit common passage described in the B schedule and also to see that the defendant is not making any construction at the EF point so as to prevent the plaintiffs from using the said passage. 12. I would like to point out that this suit cannot be construed as one trying to prevent the defendant from enjoying the suit property on the contrary, it is only an endeavour on the part of the plaintiffs to see that their of enjoyment of the common passage is not obstructed by the defendant. In such a case, the broad proposition that one co-owner cannot get injunction as against another co-owner is having no application in the facts and circumstances of this case. 13. The distinction sought to be made here is not one that of tweedledum or tweedledee, or six of the one and half a dozen of the other, or between the rock and hard place but it is one that of chalk and cheese. 14. If a co-owner unjustifiably tries to prevent the other co-owner from enjoying the property, certainly, it would be in violation of the concept “all for each and each for all”. But, here in this case, the plaintiffs and the defendant are in the occupation of the house described in the plaint, of course they are admittedly occupying two different portions. The plaintiffs are occupying the front portion upto EF point. The defendant is enjoying the C schedule portion, which is at the back of B schedule EF point. No doubt, there are certain controversies existing between the plaintiffs and the defendant. On the one hand, the plaintiffs would contend that the defendant is a trespasser, who managed to enter into the said portion and occupying it. The defendant is enjoying the C schedule portion, which is at the back of B schedule EF point. No doubt, there are certain controversies existing between the plaintiffs and the defendant. On the one hand, the plaintiffs would contend that the defendant is a trespasser, who managed to enter into the said portion and occupying it. Whereas it is the contention of the defendant that he is the adopted son of Jagannatha Naidu, who happened to be husband of Baby Ammal in whose name the document of title stands relating to that property. Still there are controversies between the parties as to whether the said property belonged to Baby Ammal or Jagannatha Naidu. 15. To the risk of repetition and pleonasm but without being tautologous, I would like to reiterate that in a bare suit for injunction, all those complicate issues cannot be decided. If at all, the parties are so advised, it is for them to institute appropriate proceedings and seek their remedy. For the disposal of this matter, one point is clear to the effect that both are in occupation of the suit premises under some right and in such a case, if the defendant at EF point raises a wall certainly, the plaintiffs would be prejudiced. 16. While holding so, this Court cannot be oblivious of the grievance of the defendant that the plaintiffs are in the habit of bringing in outsiders to the annoyance of the defendant, for which the learned senior counsel for the plaintiffs would submit that the plaintiffs are having no intention of bringing outsiders so as to use the common passage by them and the plaintiffs would be satisfied if the injunction is to the limited extent of protecting the plaintiffs enjoyment of the common passage without an/restriction whatsoever. The learned senior counsel would also insist upon the fact that the defendant should not block the passage at EF point by raising any construction. 17. I could see reasonableness in the submission made by the learned senior counsel for the plaintiffs. Once the passage happens to be the common passage for the occupants of that property, then one occupant of that property should not prevent the other occupant of the said property arbitrarily without finally getting their respective rights decided and adjudged by the competent Court in appropriate proceedings. 18. Once the passage happens to be the common passage for the occupants of that property, then one occupant of that property should not prevent the other occupant of the said property arbitrarily without finally getting their respective rights decided and adjudged by the competent Court in appropriate proceedings. 18. My mind is reminiscent and redolent of the maxim “Sic utere tuo ut alienum non laedas - Enjoy your own property in such a manner as not to injure that of another person (Broom‘s Legal Maxim (Tenth Edition), which virtually epitomizes the pith and marrow of the mutual respect and concern which one co-sharer should have towards the other. Both sides should adhere to it in letter and spirit. 19. Wherefore, I am of the view that both the, Courts below misunderstood the scope of the suit as well as the actual issues involved in it. The trial Court was not justified also In framing detailed issues, which could only be framed in a declaratory suit or in a partition suit. As such, any finding rendered by the Courts below relating to those complicate issues would have no bearing in the subsequent suit or any proceedings that might be initiated by either of the parties. 20. Accordingly, the first substantial question of law is decided to the effect that both the Courts below failed to construe the prayer in this case for permanent injunction as the one for injuncting one co-owner as against the another co-owner from enjoying the property. But, here the factual position is different. The injunction sought is to safe guard the enjoyment of one co-owner from being disturbed by another co-owner. 21. The second substantial question of law is decided to the effect that the findings rendered by the Courts below relating to substantive rights of the parties concerning the adoption and the settlement deed etc. by relying on Exhibits B-1, B-2 and B-3 will have no bearing in the subsequent proceedings if any instituted by any of the parties to establish their rights. 22. The third substantial question of law is decided to the effect that since both the Courts misdirected themselves and decided the lis without au fait with law and au courant with facts, interference in second appeal is warranted. 23. 22. The third substantial question of law is decided to the effect that since both the Courts misdirected themselves and decided the lis without au fait with law and au courant with facts, interference in second appeal is warranted. 23. In the result, the judgments and decrees of both the Courts below are set aside and the original suit is decreed to the limited extent by granting permanent injunction to the effect that the defendant shall not prevent the plaintiffs from using the suit common passage described in the B schedule and the defendant also shall not raise any wall at the EF point found set out in the B schedule and the plaintiffs are not entitled to bring outsiders to use such passage. 24. With the above direction, this second appeal is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.