Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 1305 (MAD)

Marimuthu v. Kaveri Ammal

2014-06-13

S.VIMALA

body2014
Judgment 1. The second defendant/purchaser is the appellant. 2. The plaintiffs filed the suit for permanent injunction. The suit was decreed. The second defendant filed the appeal in A.S.No.31 of 2010. By the judgment dated 08.09.2011, the appeal was dismissed and the trial Court judgment in O.S.No.939 of 2009 dated 26.02.2010 was confirmed. Challenging the judgment and decree of the Courts below, the second defendant has filed this second appeal. Brief facts: 3. The suit property originally was purchased in the name of Pavayammal on 12.05.1955. Pavayammal and Sengoda Gounder had two daughters, by name Chinnapappammal and Perumayee and two sons, by name, Subbu Gounder and Elayappa. The wife and daughters of one son, Elayappa are the plaintiffs in O.S.No.939 of 2009. The son of Subbu Gounder, Venkatachalam, is the first defendant and the second defendant is the purchaser from the first defendant. 3.1. The property in the name of Pavayammal was purchased from the income of the joint family consisting of the sons of Sengoda Gounder. The property was divided during the year 1963 and the suit property, i.e., eastern portion, was allotted to Elayappa Gounder. On 29.05.1965, there was a Varthamanam letter executed by Subbu Gounder and Pavayammal relinquishing their right in the pump set in favour of Elayappa Gounder. After the death of Elayappa Gounder, the plaintiffs, as legal heirs of Elayappa Gounder, are enjoying the property. 3.2. The first defendant, Venkatachalam, was allotted the western half-share, which was adjacent to the suit property. He sold the property in favour of the second defendant through a registered sale deed. 3.3. Pavayammal executed a settlement deed dated 14.12.1978 bequeathing 50 cents of land in the suit property to her daughter, Perumayee @ Pappayammal. Perumayee @ Pappayammal filed a suit in O.S.No.1111 of 1979 against the first plaintiff (Kaveriammal) for declaration of her right, possession and other reliefs and it was dismissed. There was a finding that the gift settlement deed was not valid. Further finding was that it was a joint family property which had been divided between Elayappa Gounder and Subbu Gounder. The first appeal preferred in A.S.No.107 of 1982 and the second appeal filed in S.A.No.1719 of 1983 were also dismissed. 3.4. One Sarasu, daughter of Chinna Pappammal, filed a partition suit in O.S.No.305 of 1997 on the file of Sub Court, Salem, against the first plaintiff (Kaveriammal) and Subbu Gounder. It was dismissed on 17.10.2005. The first appeal preferred in A.S.No.107 of 1982 and the second appeal filed in S.A.No.1719 of 1983 were also dismissed. 3.4. One Sarasu, daughter of Chinna Pappammal, filed a partition suit in O.S.No.305 of 1997 on the file of Sub Court, Salem, against the first plaintiff (Kaveriammal) and Subbu Gounder. It was dismissed on 17.10.2005. In that suit also, it was held that it is not the self-acquired property of Pavayammal. There was no further appeal. There is a house in the property bearing door No.4/331, new door No.446. The well portion is sub-divided as Survey No.30/9/B and the suit property is subdivided as Survey No.30/9/C. 3.5. Subbu Gounder filed a suit against the plaintiffs in O.S.No.244 of 2003 and that was dismissed for default. Contending that the defendants are creating false documents and trying to disturb the possession of the suit property, the plaintiffs have filed the suit for permanent injunction. 4. The suit was resisted by the defendants on the ground that in the judicial proceedings referred above, they are not parties and therefore, the judgments are not binding upon them. The suit property was said to be in possession and enjoyment of Subbu Gounder, who is the father of the first defendant. The second defendant entered into a sale agreement with Subbu Gounder and obtained a sale deed through Court of law. Thus, the second defendant is the lawful owner of the property. 5. On the above pleadings, the trial Court framed the following issues:- 1. Whether the plaintiffs are entitled for the relief of injunction as prayed for. 2. Such other reliefs, if any. 6. The trial Court relied upon the judgment rendered in O.S.No.1111 of 1979 by the Principal District Munsif Court, Salem (Ex.A-1), whereunder the partition between the first plaintiff's husband Elayappa Gounder and the first defendant's father, Subbu Gounder, had been upheld. The trial Court also relied upon another judgment in O.S.No.895 of 2004 (Ex.A-7), where the father of the first defendant was a party, in which also, the partition between Elayappa Gounder and Subbu Gounder, had been upheld. Holding that the second defendant's vendor, Subbu Gounder, was a party in the partition suit and therefore, the judgment in O.S.No.895 of 2004 is binding upon the defendants, the prayer for injunction was granted. 6.1. Holding that the second defendant's vendor, Subbu Gounder, was a party in the partition suit and therefore, the judgment in O.S.No.895 of 2004 is binding upon the defendants, the prayer for injunction was granted. 6.1. So far as the sale deed said to have been executed by Subbu Gounder in favour of the second defendant is concerned, it was held that Subbu Gounder has no right to execute any document in favour of anybody and therefore, the sale deed executed by the Court (on behalf of Subbu Gounder) is void ab initio and therefore, the document can be simply ignored by the plaintiffs. 6.2. So far as possession of property is concerned, the trial Court referred the Commissioner's report, wherein the Commissioner has mentioned that there had been a demolished building and an electric wire in the suit property. Observing that there are innumerable documents showing the possession of the suit property in favour of the plaintiffs, it was held that plaintiffs are entitled to an order of injunction. 7. The First Appellate Court observed that it is only Subbu Gounder, who was driving the plaintiffs from pillar to post for the purpose of grabbing the property right from the year 1978. The Court also gave a finding that the first defendant has colluded with the second defendant and they had a plan to snatch away the suit property from the plaintiffs. While dismissing the appeal with costs throughout, there is a very important observation that the first defendant and his father did not allow the plaintiffs to enjoy the suit property peacefully from the beginning and therefore, the first defendant is liable to pay compensatory cost to the plaintiffs. The first defendant is also stated to have entered into an agreement of sale with the second defendant without any right over the suit property. Challenging these findings, the second appeal has been filed. 8. The second appeal has been heard on the following substantial questions of law: 1. Whether the Judgments of the Courts below are vitiated in that they have held that the declaratory decrees obtained by the plaintiffs are Judgments in rem and binding on the defendants, even though these defendants are not parties to such proceedings ? 2. When the suit property is not in existence, whether a decree for permanent injunction can be granted to protect possession of such non-existing property. 9. 2. When the suit property is not in existence, whether a decree for permanent injunction can be granted to protect possession of such non-existing property. 9. The relationship between the parties, who were the legal heirs of the original owners of the property, is an admitted fact. The relationship between the plaintiffs and the first defendant is also an admitted fact. The filing of the suit by one Sarasu, who is the daughter of Chinna Pappammal, against Subbu Gounder (D-1), Perumayee @ Pappayammal (D-2), Kaveri Ammal (D-3), Sarasu (D-4) and Sampoornam (D-5) in O.S.No.895 of 2004 before II Additional District Munsif, Salem, is an admitted fact. The copy of the judgment in O.S.No.895 of 2004 has been filed as Ex.A-7. 9.1. The first defendant, Venkatachalam, in O.S.No.939 of 2009, admittedly being the son of Subbu Gounder, is bound by the judgment in O.S.No.895 of 2004, in which, Subbu Gounder is the first defendant. The issues framed in O.S.No.895 of 2004 are relevant. Following are the issues: 1. Whether the suit property is the self-acquired property of Pavayammal is true and correct ? 2. Whether the suit is barred by law of res judicata ? 3. Whether the oral partition pleaded by the defendant is true ? 4. Whether the defendants have perfected title by adverse possession ? 5. Whether the plaintiff is entitled to the relief of partition ? 6. To what other reliefs ? 10. The finding in O.S.No.895 of 2004 is that the suit property is not the self-acquired property of Pavayammal. The plaintiff therein, viz., Sarasu, was held not entitled to the relief of partition. The relief was declined on the ground that the property is not the self-acquired property of Pavayammal. 10.1. In O.S.No.1111 of 1979 also (suit filed by Perumayee @ Pappayammal against Kaveriammal), there is a finding that Pavayammal had no right and title over the property and the settlement deed executed by her is also not valid. Considering the documents under Ex.B-1 to B-49 produced therein (in O.S.No.1111 of 1979), it was held that Kaveriammal, first defendant therein (first plaintiff herein), had proved her possession. Even though Subbu Gounder was not a party in O.S.No.1111 of 1979, it was his daughter, Perumayee @ Pappayammal who was the plaintiff in the said suit. Considering the documents under Ex.B-1 to B-49 produced therein (in O.S.No.1111 of 1979), it was held that Kaveriammal, first defendant therein (first plaintiff herein), had proved her possession. Even though Subbu Gounder was not a party in O.S.No.1111 of 1979, it was his daughter, Perumayee @ Pappayammal who was the plaintiff in the said suit. Though this judgment may not be binding upon Subbu Gounder, the judgment in O.S.No.895 of 2004 Ex.A-7 would be binding upon Subbu Gounder and therefore, it is binding upon his son, the first defendant, Venkatachalam also. Hence, the appellant, who is claiming through Venkatachalam and Subbu Gounder is bound by the judgment in O.S.No.895 of 2004 (Ex.A-7). Therefore, the contention of the learned counsel for the appellant that the suit property is an undivided property and therefore, there cannot be an order of injunction as against the co-owner cannot be accepted. 11. The next contention of the learned counsel for the appellant is that the house property in respect of which injunction is sought for is not in existence at all and therefore, the order of injunction granted has no legal sanctity. Learned counsel for the respondents pointed out the discussions in paragraph 9 of the judgment in O.S.No.939 of 2009, whereunder the report of the Commissioner has been considered. In the Commissioner's report, it has been mentioned that there was a demolished building and an electric wire. It is not as if there was no house at all. It is not as if that the plaintiffs have no claim over that house which is located in the suit property. The injunction can be granted in respect of anticipated injury in praesenti or in future also. Considering the conduct of the respondents, the Courts below thought it proper to grant an order of injunction. The order of injunction granted is perfectly legal and valid. Hence, the contention of the appellant cannot be accepted. 12. Therefore, the second appeal is liable to be dismissed and it is dismissed accordingly. No costs.