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2013 DIGILAW 1363 (MAD)

Saraswathi v. Malaiappa Gounder

2013-03-18

G.RAJASURIA

body2013
JUDGMENT 1. This Second appeal is focused by the first defendant animadverting upon the judgment and decree dated 22.10.2007 passed in A.S.No.46 of 2006 by the Subordinate Judge at Tiruppur, reversing the judgment and decree of the District Munsif Court, Tiruppur in O.S.No.256 of 2003. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this Second Appeal would run thus: At the entertaining stage itself the appellant was heard and the judgment is being pronounced. Pithily and precisely the averments in the plaint would run thus: (a) The property originally belonged to one Malayappa Gounder, the plaintiff and Thirumurthy, D7. While so, D7 and D1 colluded together and Ex.B1, the sale deed dated 10.11.2003 emerged in favour of D-1 at the instance of D7. D2 to D6 are aiding D1 for trespassing into the suit property (b) Per contra, D1 filed the written statement resisting the suit on the main ground that the suit was bad for want of a prayer for declaration of title to the suit property. D1 has been in possession and enjoyment of the suit property and it is wrong to describe her as though she was attempting to trespass into the suit property. D1, being a co-sharer of the suit property, is in possession and enjoyment of a specific share in it, so to say, half share, as originally the property belonged to the plaintiff and D7, who sold his half share in it in favour of D1 genuinely. Accordingly, she would pray for the dismissal of the suit. (c) The trial Court framed the relevant issues. (d) Up went the trial, during which the plaintiff/Malayappa Gounder examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A15 were marked; and the seventh defendant/Thirumurthy examined himself as D.W.1 along with D.W.2/Saraswathy(D1) and D.W.3/Palanisamy Gounder (D6) and Exs.B1 to B7 were marked. 4. Ultimately the trial Court dismissed the suit, as against which the appeal was filed; whereupon the appellate Court set aside the judgment of the trial Court and decreed the suit as against D1, granting injunction as under: 5. 4. Ultimately the trial Court dismissed the suit, as against which the appeal was filed; whereupon the appellate Court set aside the judgment of the trial Court and decreed the suit as against D1, granting injunction as under: 5. Challenging and impugning the judgment and decree of the first appellate Court, this Second Appeal has been focused on various grounds and also suggesting the following substantial questions of law: “Tamil” (emphasis supplied) "(a) When the plaintiff has failed to prove her case that she is in possession of the suit property as a tenant, whether her suit property for permanent injunction in that capacity can be decreed? (b) When the plaintiff has failed to prove discharge of mortgage and subsequent taking of possession of the suit property as a Lessee, whether her alleged possession in that capacity can be protected by a decree for permanent injunction? (c) When the Appellant herein is held to be a co-owner of the suit property, whether a suit for permanent injunction by one co-owner namely the plaintiff can lie against the Appellant herein who is the other co-owner of the suit property?" (extracted as such) 6. Heard the learned counsel for the appellant. 7. The learned counsel for the appellant reiterating the grounds of appeal as well as the cited substantial questions of law, would pyramid her argument, which could succinctly and pithily be set out thus: (a) D1 on purchasing the half share of D7, is entitled to be in possession of the suit property and cultivate the same, and suppressing the material fact that it was D1 who cultivated turmeric in the suit property, the plaintiff is trying to get injunction as against her. (b) One co-owner cannot get injunction as against another co-owner. By virtue of purchase as per Ex.B1, the sale deed, the plaintiff stepped into the shoes of D7 and hence, injunction granted by the appellate court is a misconceived one, which has to be axed by the second appellate court. 8. At the outset, I would like to fumigate my mind with the recent decision of the Hon'ble Court reported in 2012 (8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus: "59. Section 100 CPC provides for a second appeal only on the substantial question of law. 8. At the outset, I would like to fumigate my mind with the recent decision of the Hon'ble Court reported in 2012 (8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus: "59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N. Goyal (2008) 8 SCC 92 , this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added) 9. As such I would like to see as to whether any substantial question of law is involved in the matter. No doubt, it is a common or garden principle of law, that one co-owner cannot get injunction as against another co-owner. The pertinent question arises as to whether that concept can be made elastic, so as to enure it to the benefit of a third purchaser who is D1 herein, to enter into the joint property along with the remaining co-sharer, who is the plaintiff herein. The answer is at once in the negative. No doubt, an undivided share could be purchased by a third party to the co-parcenary or the family concerned, but the only remedy available for such a third party who is the D1 herein is to file a suit for partition. The answer is at once in the negative. No doubt, an undivided share could be purchased by a third party to the co-parcenary or the family concerned, but the only remedy available for such a third party who is the D1 herein is to file a suit for partition. A third party cannot violating every rule in the book, simply barge into the land and start enjoying the joint family property or co-parcenary property along with other co- sharer or co-sharers. This is a fitting example as to how D1 being a third party to the family of plaintiff and D7, simply tried to enter into the property on the strength of the sale deed executed by D7 in her favour. The first appellate Court au fait with law and au courant with facts, correctly granted injunction as against Saraswathi/the appellant herein not to interfere with the joint possession. 10. The learned counsel for Saraswathi/the appellant herein would submit that already a suit for partition is pending, at the instance of Saraswathi. Not to put too fine a point on it, it is open for her to work out her remedy and if any interim order is required to protect her right over the property, then it is open for her to do so. As such, I could see no substantial question of law in this matter. Accordingly, this Second Appeal stands dismissed. No costs.