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2015 DIGILAW 73 (MAD)

Subramaniyam v. P. Duraisamy

2015-01-07

P.R.SHIVAKUMAR

body2015
JUDGMENT : The plaintiffs in the original suit O. S. No. 90 of 2001 are the appellants in the second appeal. The defendant therein is the respondent in the second appeal. The appellants herein filed O.S. No. 90 of 2001 on the file of District Munsif, Tiruppur for the relief of permanent injunction restraining the respondent herein from interfering with their running 8 power looms located in the suit property, namely an extent of 1.29.5 Hectare and the power loom godown constructed therein bearing old Door No.1/1, New Door No. 1/2B with electricity connection No. 381 comprised in S. No. 153/1E in Thoravalure village within the sub-registration district of Kunnathur, Tiruppur Taluk. 2. The said prayer was made on the basis of the plaint averment that the above said immovable property was purchased by the second appellant, who is none other than the father of the first appellant, under two sale deeds dated 6-6-1978 and 6-6-1979; that in the property thus purchased by the second appellant, the first appellant put up a power loom godown and a residential house at one part of the property based on the promise made by the second appellant by executing an undertaking deed dated 31-8-1983 to the effect that as and when the property would be partitioned, the said portion would be allotted to the share of the first appellant; that the first plaintiff put up power looms in the godown constructed by him and was doing waiving business for some time; that thereafter due to his inability to maintain and run the power looms, he sold the power looms to third parties and let out the power loom godown to one Thirumoorthy, son of Ramasamy Gounder on lease; that the said Thirumoorthy was also not able to properly run the power looks as he had other businesses also, as a result of which the said Thirumoorthy by a lease deed dated 16-4-2001 leased out 8 power looms and their accessories to the first appellant for a monthly rent of Rs. 4000/-; that the respondent/defendant, who is related to Thirumoorthy, wanted Thirumoorthy to lease out the power looms to him and the same was declined by Thirumoorthy; that aggrieved by the same, the respondent/defendant developed jealousy against the first appellant and made an attempt to trespassed into the power loom godown on 11-5-2011, which was thwarted by the first appellant with his well wishers and that under the said circumstances, the appellants/plaintiffs were constrained to file the suit for the relief of permanent injunction. 3. The suit was resisted by the respondent herein/defendant on the basis of the averments made in the written statement in which the plaint allegations were denied. Besides the denial of the plaint allegations, the respondent/ defendant also made the following contentions : 4. The first appellant sold four power looms owned by him along with 8 HP oil engine, one 5HP electric motor, one splitter, two shafts of 45 feet and other accessories to the respondent/plaintiff on 8-5-1996 for a sum of Rs. 90,000/-. The said sale was made by the first appellant because he was not able to run and maintain the power loom business. Besides selling four power looms and their accessories as indicated above, the first appellant also leased out the power loom godown by a lease agreement dated 8-5-1996 under which a sum of Rs. 5,000/- was paid by the respondent as advance as against the agreed rent of Rs. 75/- per power loom. After the respondent/defendant purchased four power looms from the first appellant, he purchased four more power looms on 31-3-1998 by availing Rs. 1,56,000/- as loan from Tiruppur Co-operative Agricultural and Rural Development Bank Limited (NK677). Since the first appellant got castrated due to an accidental fall over the power loom belt during the period when he was running the power looms, his wife Palaniammal developed illicit intimacy with one Thirumoorthy referred to in the plaint. The said illicit intimacy created a rift in the relationship between Thirumoorthy and the respondent/defendant. Due to the said circumstances and also the fact that the first appellant along with his wife Palaniammal provided hurdles to the respondent/defendant for running the power looms and also failed to provide necessary facilities as agreed to in the agreement, the respondent/defendant was thinking of vacating the power loom godown. Due to the said circumstances and also the fact that the first appellant along with his wife Palaniammal provided hurdles to the respondent/defendant for running the power looms and also failed to provide necessary facilities as agreed to in the agreement, the respondent/defendant was thinking of vacating the power loom godown. Under the said circumstances, the first appellant along with Thirumoorthy, Chinnasamy, Senthil Kumar, Ponnusamy Selvan, another Chinnasamy, Ramasamy Gounder and Rasu came to the godown on 31-3-2001 at 1.00 a.m. (early morning) and threatened that the respondent should not run the power looms and he should leave the godown leaving the power looms as they were. When the respondent/defendant refused to accede to their demand, they started dismantling the power looms and attempted to attack the respondent/defendant who tried to prevent them, pursuant to which a complaint was lodged on the file of Perumanallur Police Station. However, the police acted against the respondent/defendant and registered a case against the respondent/defendant, his friends and relatives in Cr. No. 86 of 2001 after getting a complaint against him from Palaniammal, the wife of the first appellant. The power looms had been hypothecated in favour of the Tiruppur Co-operative Agricultural and Rural Development Bank Limited, based on which the Bank issued a notice dated 28-5-2001. The respondent/defendant also instituted a criminal case by filing a private complaint against the first appellant and others on file of Judicial Magistrate II, Tiruppur and the said private complaint case was also pending. Under the said circumstances, the said Thirumoorthy also filed a suit in O. S. No. 60 of 2001 against the respondent on the file of the very same trial Court, but subsequently left the suit to be dismissed as not pressed on 14-6-2001. As the respondent/plaintiff has became the owner of four power looms sold by the first appellant and four more power looms were purchased by him and installed in the suit power loom godown, the suit filed by the appellants for bare injunction without seeking a declaration regarding their title to the power looms shall not be maintainable. The suit came to be filed with false averments and untenable claims, besides committing contempt of Court in violating the order of the High Court dated 19-11-2001 made in Cri. The suit came to be filed with false averments and untenable claims, besides committing contempt of Court in violating the order of the High Court dated 19-11-2001 made in Cri. R. C. No. 831 of 2001 restraining the said Thirumoorthy from operating the power looms and directing him to preserve the power looms and produce them as and when the same woud be directed by the Court. The present suit is nothing but an attempt to flout and wriggle the order of the High Court dated 19-11-2001. 5. Based on the above said averments, the respondent herein/defendant prayed for the dismissal of the suit with costs. 6. The trial Court framed five issues and conducted trial. The issues framed by the trial Court are as follows : 1) Whether the lease agreement dated 16-4-2001 is true? 2) Is it true that on 16-3-2001, the defendant sold the suit power looms to Thirumoorthy for valid sale consideration? 3) Whether 8 power looms fitted in the suit property belong to the defendant? 4) Whether the plaintiff is entitled for the relief of permanent injunction? 5) To what other reliefs the plaintiffs are entitled? 7. In the trial, four witnesses were examined as PWs. 1 to 4 and 23 documents were marked as Exs. A1 to A 23 on the side of the appellants herein/plaintiffs, whereas three witnesses were examined as DWs 1 to 3 and 30 documents were marked as Exs.B1 to B30 on the side of the respondent herein/defendant. 8. The trial Court, at the conclusion of trial, on an appreciation of evidence, decided the Issue Nos. 1 and 2 against the appellants/plaintiffs and issue No. 3 in favour of the respondent/defendant. Based on the said findings, Issue Nos. 4 and 5 were also decided against the appellants/plaintiffs and in favour of the respondent/ defendant. Consequently, by a judgment and decree dated 5-8-2004, the learned trial Judge dismissed the original suit without costs. 9. Aggrieved by and challenging the decree of the trial Court dismissing the suit filed by the appellants, they filed an appeal in A. S. No. 33 of 2004 on the file of the lower appellate Court (Sub-Court, Tiruppur). Consequently, by a judgment and decree dated 5-8-2004, the learned trial Judge dismissed the original suit without costs. 9. Aggrieved by and challenging the decree of the trial Court dismissing the suit filed by the appellants, they filed an appeal in A. S. No. 33 of 2004 on the file of the lower appellate Court (Sub-Court, Tiruppur). The learned lower appellate Judge (Subordinate Judge, Tiruppur), after hearing, concurred with the findings of the trial Court in all respects and dismissed the appeal confirming the decree of the trial Court dated 5-8-2004 made in O. S. No. 90 of 2001 by its judgment and decree dated 31-8-2005 made in A.S. No. 33 of 2004. As against the said decree of the lower appellate Court, confirming the decree of the trial Court dismissing the suit filed by the appellants, the present second appeal has been filed on various grounds set out in the memorandum of grounds of second appeal. 10. At the time of admission of the second appeal, two questions were formulated as substantial questions of law involved in the second appeal and they are as follows : 1. When there is dispute with regard to the ownership of power looms between Thirumoorthy and the defendant and that the second plaintiff has taken the said powerlooms as lease from the said Thirumoorthy, whether the Courts below are correct in not giving protection to the second plaintiff to safeguard his interest and rights till such disputes are settled between them? 2. When the defendant was interfering with the running of the power looms, without deciding his dispute with Thirumoorthy over the said power looms, whether the Courts below are correct in not preventing him from taking the law into his own hands so as to interfere with the running of the powerlooms? 11. The arguments advanced by Mr. V. Nicholas, learned counsel for the appellants and by Mr. N. Manokaran, learned counsel for the respondent were heard. The judgments of the Courts below and the other materials available on record were also perused. 12. Before dealing with the questions formulated as substantial questions of law, dealing with the factual matrix and the findings rendered thereon, shall be of immense help to answer the questions formulated as substantial question of law. 13. The judgments of the Courts below and the other materials available on record were also perused. 12. Before dealing with the questions formulated as substantial questions of law, dealing with the factual matrix and the findings rendered thereon, shall be of immense help to answer the questions formulated as substantial question of law. 13. The unsuccessful plaintiffs in the original suit, who also lost their appeal before the lower appellate Court, have knocked at the doors of this Court with the present second appeal. The case of the appellants that the immovable property in which the power loom godown concerned in this case stands belongs to the appellants/plaintiffs is a fact which has not been disputed. It is also an admitted fact that the power loom godown belongs to the appellants and the electricity service connection provided to the godown also stands in the name of the first appellant. To be brief, the respondent/defendant does not claim title to either the land or the godown. The title of the appellants in respect of the land and godown has been conceded by the respondent/defendant. However, it is the case of the respondent/defendant that he got the godown on lease for a monthly rent of Rs. 75/- per power loom installed in the godown. It is also his contention that he paid a sum of Rs. 5,000/- as advance for leasing out the power loom godown to him. 14. The case of the appellants/plaintiff, on the other hand, is that the first appellant, who was running power looms in the godown, due to circumstances leading to his inability to maintain the power looms, sold the power looms to the third party and after selling the power looms to a third party, the godown alone was let out to one Thirumoorthy, son of Ramasamy Gounder for running the power looms. Even though the appellants would have stated in the plaint that due to circumstances leading to the inability of the first appellant to run the power looms, the power looms he had installed in the godown were sold to third parties, the appellants have not made it unambiguous as to who were the purchasers of the power looms and what did they do after purchasing the power looms. Did they dismantle and remove the power looms from the godown or did they keep the power looms in the godown belonging to the appellants? Did they dismantle and remove the power looms from the godown or did they keep the power looms in the godown belonging to the appellants? has not been clarified. The further case of he appellants is that after getting the godown on lease from the first appellant, Thirumoorthy had installed 8 power looms, but he was also not able to run them as he was having other businesses also and that therefore, the said Thirumoorthy besides surrendering the lease in respect of the godown gave all the 8 power looms he had installed in the godown to the first appellant on lease for a monthly rent of Rs. 4,000/-. According to the appellants/plaintiff, the said lease of 8 power looms by Thirumoorthy was made on 16-4-2001 under the lease deed produced as Ex. A11. 15. Admittedly, all the power looms that had been installed by the first appellant were sold to third parties before the alleged induction of Thirumoorthy as a leasee in respect of the godown. Though an averment came to be made in the plaint that Thirumoorthy got the godown on lease from the first appellant, ran the power looms for some time and then leased out on 16-4-2001 all the 8 power looms he had in the godown to the first appellant, details regarding the date on which the first appellant sold the power looms to third parties, the date on which Thirumoorthy took the godown on lease and the manner in which and from when the said Thirumoorthy purchased 8 power looms said to have been installed by in the godown and leased out by him to the first appellant under Ex. A 11, have not been furnished in the plaint. 16. On the other hand, though the appellants had not stated in clear terms as to whom the power looms owned by the first appellant were sold in the plaint, while deposing as PW1, the first appellant made it clear that he installed only 4 power looms in the godown and sold them to the respondent/defendant for a sum of Rs. 90,000/-. It is also his clear admission that the respondent/defendant, who purchased those 4 power looms, ran those power looms keeping the same in the godown belonging to the appellants for which the parties agreed that a sum of Rs. 90,000/-. It is also his clear admission that the respondent/defendant, who purchased those 4 power looms, ran those power looms keeping the same in the godown belonging to the appellants for which the parties agreed that a sum of Rs. 75/- per power loom should be paid as monthly rent, besides the respondent himself paying the electricity consumption charge. It is also his admission that the respondent/defendant purchased four more power looms and installed them also in the very same power loom godown and was running all the 8 power looms. 17. However, without making a plea in the plaint, PW1 ventured to state in his evidence that the respondent/defendant availed a loan of Rs. 1,00,000/- from Thirumoorthy for purchasing those 4 power looms by executing a deed evidencing the loan transaction to the said effect in which the first appellant himself signed as an attestor. Curiously, no such document has been produced by the appellants. It is the evidence of PW1 that the respondent/defendant, unable to run the power looms sold them to Thirumoorthy and that in the said receipt for the sale, PW1 has also signed as an attestor. The said receipt allegedly executed by the respondent/defendant has been produced as Ex. A13. Ex. A13 was not marked through PW1. Admittedly, all the four power looms owned by the first appellant were sold by him to the respondent/defendant for a sum of Rs. 90,000/- and the respondent/defendant was allowed to run the power looms keeping them in the very same godown based on an agreement. The said agreement has been produced as Ex. B1 and a copy of the same has been produced as Ex. B18. Ex. B18 is a copy of Ex. B1 produced by the respondent to the bank while availing a loan for the purchase of 4 additional power looms. Though Ex. B 1 is not dated, stamp paper for the same came to be purchased on 8-5-1996. The execution of Ex. B1 agreement was admitted by PW 1 (the first appellant) and based on his admission alone, the document was marked as Ex. B1. Ex.B1 was executed as a lease deed for leasing out the godown to the respondent/defendant for a period of 5 years. The execution of Ex. B1 agreement was admitted by PW 1 (the first appellant) and based on his admission alone, the document was marked as Ex. B1. Ex.B1 was executed as a lease deed for leasing out the godown to the respondent/defendant for a period of 5 years. PW1 himself admitted that he sold four power looms owned by him and their accessories to the respondent/defendant in 1996 and it was agreed that the respondent/defendant shoud be permitted to use the godown as lessee for running the power looms for 5 years for a rent of Rs. 75/- per month for each power loom and that a sum of Rs. 5,000/- was also paid by the respondent as advance. The entire contents of Ex. B1 have been clearly admitted by PW1. Therefore, the trial Court and the lower appellate Court have rightly arrived at the conclusion that the sale of 4 power looms in favour of the respondent/defendant and the lease in respect of the godown in favour of the respondent/defendant were made on 8-5-1996. 18. Subsequent to Ex. B1, the respondent availed a loan of Rs. 1,54,000/- from Tiruppur Co-operative Agricultural and Rural Development Bank Limited for the purchase of 4 more power looms and for the said loan he had hypothecated all the 8 power looms in favour of the bank. The said facts are brought to light by the evidence of DW1, DW2 and also DW3, the Secretary of the Co-operative Bank in which the respondent availed the loan. From the evidence of DW 3 and Exs.B 17 and B 19 to B 30, it is quite obvious that the respondent availed a loan of Rs. 1,54,000/- in 1998 itself for the purchase of 4 more power looms and hypothecated all the 8 power looms (4 power looms he already had and the four power looms to be purchased with the funds to be provided by the Bank), besides creating an equitable mortgage by producing his title deeds in respect of his immovable properties situate in Moongilpalayam, Thoravalure village, Tirupur Taluk. The same is evident from the copy of the register of deposit of title deeds produced as Ex. B.19. The same is evident from the copy of the register of deposit of title deeds produced as Ex. B.19. It is also obvious that a registered mortgage deed has been execued in respect of the immovable properties of the respondent/defendant for the credit facility extended by the Tiruppur Co-operative Agricultural and Rural Development Bank Limited for the purchase of 4 power looms. The certified copy of the mortgage deed has been marked as Ex. B3. From the above said evidence, it is quite obvious that in 1998 itself, the respondent/defendant purchased 4 more power looms and installed them in the suit godown along with four power looms purchased by him from the first appellant in 1996. It is not the case of the appellant that the respondent removed some out of the 8 power looms and for the substitution of the some, he purchased 4 more power looms for which he had to avail a loan from Thirumoorthy, who was examined as PW 2. 19. According to PW2 - Thirumoorthy, the respondent/defendant borrowed a sum of Rs. 1,00,000/- from him and executed a security deed in 16-6-1996. But no such document to substantiate his contention that the respondent borrowed a sum of Rs. 1,00,000/- from PW2-Thirumoorthy on 16-6-1996 has been produced. It is also pertinent to note that there is no averment in the plaint as to any financial assistance made by Thirumoorthy to the respondent for purchasing the initial 4 power looms from the first appellant/first plaintiff. There is no plea in the plaint to the effect that PW2 Thirumoorthy lent any amount either for the purchase of the initial four power looms from the appellant or for the purchase of the additional four power looms. Evidence has been sought to be adduced without there being any plea to the said effect as against the established principle that no evidence shall be allowed in the absence of a plea. Apart from that, the evidence of PW 1 is that the respondent, who purchased 4 power looms from him, ran the power looms for 4 to 5 years, thereafter purchased 4 more power looms and for the purchase of those additional power looms he borrowed a sum of Rs. 1,00,000/- from PW 2 Thirumoorthy. Apart from that, the evidence of PW 1 is that the respondent, who purchased 4 power looms from him, ran the power looms for 4 to 5 years, thereafter purchased 4 more power looms and for the purchase of those additional power looms he borrowed a sum of Rs. 1,00,000/- from PW 2 Thirumoorthy. The evidence of PW 1 will give a picture that in 1996 the respondent purchased the 4 power looms and he purchased 4 more power looms in the year 2000 or 2001 with the help of a sum of Rs. 1,00,000/- borrowed from PW 2 - Thirumoorthy. 20. The evidence of PW2- Thirumoorthy in this regard is quite conflicting and contrary to the evidence of PW1. According to the evidence of PW 2, soon after the purchase of 4 power looms from the first appellant in 1996, the respondent borrowed a sum of Rs. 1,00,000/- from PW 2 and with the help of the said amount, the respondent purchased 4 more power looms. It is his further evidence that respondent had executed a security agreement ................... in favour of PW2 on 16-6-1996 itself. 21. In this regard, as pointed out supra, the evidence of PW 2 is quite conflicting with and contrary to the evidence of PW 1. Apart from that, the respondent was able to prove by reliable oral and documentary evidence that after the purchase of 4 power looms from the first appellant, he purchased 4 more power looms availaing a loan from the Tiruppur Co-operative Agricultural and Rural Development Bank Limited in 1998. In view of the contradictory and conflicting evidence, that too in the absence of necessary plea and in the light of the clear and cogent evidence adduced on the side of the respondent, both the Courts below have correctly arrived at the conclusion that the appellants/plaintiffs had not proved their contention raised in the course of evidence that the respondent/defendant borrowed a sum of Rs. 1,00,000/- from PW2-Thirumoorthy and using the said amount alone the additional power looms were purchased. Such a finding, concurrently made by the Courts below, does not deserve any interference and the same deserves to be confirmed. 22. 1,00,000/- from PW2-Thirumoorthy and using the said amount alone the additional power looms were purchased. Such a finding, concurrently made by the Courts below, does not deserve any interference and the same deserves to be confirmed. 22. The next contention of the appellants/plaintiffs is that the respondent/defendant, who was the owner of the 8 power looms installed in the godown concerned in this case, due to his inability to run the same, sold all those 8 power looms to PW 2-Thirumoorthy on 16-3-2001; that thereafter PW2-Thirumoorthy entered into a lease agreement with the first appellant and continued to run the power looms for himself and that having run the power looms for about 9 months, he could not continue to run the same and hence, he leased out the power looms with the accessories to the first appellant/first plaintiff for a monthly rent of Rs. 4,000/- by virtue of a document dated 16-4-2001 marked as Ex. A11. In support of their contentions, the appellants have produced Ex. A11 lease agreement dated 16-4-2001. Ex. A12 is the receipt issued by PW 2 Thirumoorthy in favour of the first appellant dated 5-5-2001. Ex. A 13 is the sale receipt dated 16-3-2001 and Ex. A14 is the rental agreement dated 23-3-2001. In this regard, the respondent/defendant, while deposing as DW1, totally denied having executed any document in favour of Thirumoorthy, especially Ex. A13 sale receipt. He also has contended that the signature found therein is also not his signature. PW2 claims to have purchased all the 8 power looms from the respondent/defendant on 16-3-2001 under Ex. A13 sale receipt. It is seen from the said document that it has been prepared in a white paper with a one rupee Revenue Stamp affixed on it. The signature of the respondent/defendant found on the revenue stamp in Ex. A13 is denied and disputed by the respondent/defendant. While all other admitted documents between the parties do not contain the thumb impression of the parties and they contain only the signatures, in Ex. A13 contains a left thumb impression below the revenue stamp. There is no acceptable explanation as to why thumb impression was also obtained in that document. 23. There are material contradictions between the evidence of PWs 1 to 3 regarding the execution of Ex. A13. In addition, it is obvious from Ex. A13 and Ex. A13 contains a left thumb impression below the revenue stamp. There is no acceptable explanation as to why thumb impression was also obtained in that document. 23. There are material contradictions between the evidence of PWs 1 to 3 regarding the execution of Ex. A13. In addition, it is obvious from Ex. A13 and Ex. A23 that the first three unnumbered paragraphs have been written with letters of normal size, whereas the last paragraph has been written with letters of bigger size with more gap giving rise to an inference that the same was done in order to fill up the gap above the signature found on the revenue stamp. The evidence of PWs 2 and 3 are to the effect that the respondent/defendant was unable to repay the amount borrowed from PW 2-Thirumoorthy and hence he sold all the 8 power looms to PW 2-Thirumoorthy under Ex. A13 and Ex. A23. The first plaintiff and PW 3-Sivasamy are the attestors. We have already seen the discrepancies in the evidence of PW 1 regarding the alleged borrowal made by the respondent from PW2. PW3, who is said to have attested Exs.A13 and A23, has admitted during his cross-examination that he did not directly know anything about Ex. A23. Furthermore, while referring to Ex. A13 - sale receipt, PW3 stated that it was written on green bond papers, whereas Ex. A13 has been prepared in plain white paper. While referring to Ex.A 11, PW 3 stated that the said document was prepared in a single page, whereas Ex. A11 has been prepared using a stamp paper and an additional sheet. PW4, who is also said to have attested Ex. A11 and A14 does not speak anything about the alleged amount lent by PW2- Thirumoorthy for the purchase of 4 more power looms in addition to the 4 power looms purchased from the first plaintiff by the respondent/defendant. The evidence of PW4 is also contrary to the evidence of other witnesses examined on the side of the appellants/plaintiffs and also against the contents of the documents relied on by the appellants/plaintiffs. In his evidence, PW4 would state that though 8 power looms and accessories were stated to have been leased out to the first appellant/first plaintiff of PW2-Thirumoorthy, only 4 power looms were there and the first plaintiff is running only 4 power looms. 24. In his evidence, PW4 would state that though 8 power looms and accessories were stated to have been leased out to the first appellant/first plaintiff of PW2-Thirumoorthy, only 4 power looms were there and the first plaintiff is running only 4 power looms. 24. A conjoint reading of the evidence of PWs 1 to 4 will make it clear clear that there are many imponderables and vital contradictions making the case of the appellants/plaintiffs regarding the alleged loan transaction between PW2-Thirumoorthy and the respondent/ defendant and also regarding the alleged sale of the power looms by the respondent/ defendant in favour of PW 2-Thirumoorthy improbable. We have already seen that there are vital contradictions as to when PW 2 lent Rs. 1,00,000/- to the respondent/defendant and using which amount additional 4 power looms were purchased by the respondent/ defendant. As a crown of such discrepancies, PW4 does not speak about any additional power loom installed in Door No. 1/1, New Door No. 1/2B comprised in S. No. 153/1E in Thoravalure village within the sub-registration district of Kunnathur, Tiruppur Taluk, over and above the 4 power looms purchased by the respondent/defendant from the first appellant/first plaintiff. His evidence proceeded on the premise that there was no additional purchase and the four power looms purchased by the respondent/defendant from the first appellant/first plaintiff alone were sold to PW 2 and PW 2 in turn leased out those four power looms to the first appellant/first defendant. 25. Quite contrary to the contradictory evidence adduced on the side of the appellants/plaintiffs, the evidence of DWs 1 to 3 is quite cogent, natural and reliable. Their evidence also stands corroborated by documentary evidence to show that the respondent/ defendant purchased 4 power looms from the first appellant/first plaintiff in 1996 and added four more power looms by purchasing them with the help of the loan facility availed from Tiruppur Co-operative Agricultural and Rural Development Bank Limited as evidence by Exs. B 17 and Exs. B 19 to B 30. As such there was no necessity for the respondent/defendant to borrow Rs. 1,00,000/- from PW 2-Thirumoorthy to purchase those four additional power looms. By clear evidence, the respondent has proved that he purchased those four additional power looms in the year 1998 by availing loan from the bank hypothecating the machineries and creating equitable mortgage in respect of his immovable properties. 26. 1,00,000/- from PW 2-Thirumoorthy to purchase those four additional power looms. By clear evidence, the respondent has proved that he purchased those four additional power looms in the year 1998 by availing loan from the bank hypothecating the machineries and creating equitable mortgage in respect of his immovable properties. 26. On the other hand, the evidence of plaintiffs side witnesses are quite unnatural, unreliable and contradictory. According to PW 1s evidence, loan was availed and the additional power looms were purchased somewhere in the year 2000-2001, whereas according to the evidence of PW2-Thirumoorthy, the respondent/defendant borrowed a sum of Rs. 1,00,000/- and purchased 4 power looms from the first appellant using the said amount and that such a loan transaction took place on 16-6-1996. Even in Ex. A23 there is nothing to show that the said amount was used for purchasing 4 more power looms. It is not the case of the appellants/plaintiffs that the amount mentioned in Ex. A 23 was used for purchasing the original 4 power looms from the first appellant/first plaintiff and on the other hand, it is the categorical stand made by them that the amount of Rs. 1,00,000/- was allegedly borrowed from PW2-Thirumoorthy for purchasing 4 more power looms. If at all, four power looms were purchased with the help of the amount borrowed from PW2 1996 itself, there would not have been any necessity for the respondent/defendant to avail loan from the Tiruppur Co-operative Agricultural and Rural Development Bank Limited for the purchase of 4 power looms. It is the case of neither of the parties that 4 power looms were sold, dismantled and removed from the godown and in that place 4 more power looms were brought and installed. 27. From various documents produced by the respondent/defendant, it is obvious that it was the respondent/defendant who gave a complaint to the police at Perumanallur Police Station on 30-3-2001 and later on filed a private complaint on 31-3-2001 on the file of learned Judicial Magistrate II, Tiruppur. It is also evident from the documents produced on the side of the respondent that as against an order passed by the Judicial Magistrate II, Tiruppur in Cri. M.P. No. 1416 of 2011 dated 10-4-2011, a criminal revision case in Cri. It is also evident from the documents produced on the side of the respondent that as against an order passed by the Judicial Magistrate II, Tiruppur in Cri. M.P. No. 1416 of 2011 dated 10-4-2011, a criminal revision case in Cri. R. C. No. 831 of 2011 was filed in this Court and this Court permitted Thirumoorthy to have the safe custody of the power looms without using them. Since Thirumoorthy had suffered such an order which incorporates a kind of injunction against him not to use the power looms, the suit came to be filed through the appellants/plaintiffs against the respondent alone, without even making the above said Thirumoorthy as a party. It is also an admitted fact that the said Thirumoorthy filed a previous suit O. S. No. 60 of 2001 on the file of the District Munsif, Tiruppur and the said suit was dismissed as not pressed. Upon a proper appreciation of evidence in comparison of the pleadings made by the parties to the suit, both the Courts below have arrived at a conclusion that the alleged sale of the power looms by the respondent/defendant to PW 2-Thirumoorthy was quite improbable and that the case of the appellants/plaintiffs in this regard had got to be rejected as improbable and unsustainable. The said concurrent findings of the Courts below cannot be stated to be either defective or infirm much less perverse. Therefore, this Court is of the considered view that the above said findings of the Courts below do not warrant any interference by this Court in exercise of its power of appeal under Section 100 of the Code of Civil Procedure. 28. It is true that there is a dispute between the respondent/defendant and PW2-Thirumoorthy regarding the ownership of the power looms. The claim of the plaintiffs that the power looms have been leased out by PW2-Thirumoorthy to the first appellant/first plaintiff has also been disputed by the respondent/defendant. When such a dispute regarding the title has been raised and the very basis on which the appellants claim right to possession of the power looms is also in dispute, the appellants could have very well made the said Thirumoorthy a co-plaintiff or a party defendant. But it has not been done. When such a dispute regarding the title has been raised and the very basis on which the appellants claim right to possession of the power looms is also in dispute, the appellants could have very well made the said Thirumoorthy a co-plaintiff or a party defendant. But it has not been done. However, in an attempt to prove PW2-Thirumoorthys title to the power looms and the alleged leasehold right of the first appellant, the said Thirumoorthy was examined by the appellants/plaintiffs as PW2. Despite the examination of Thirumoorthy as PW 2 and two more witnesses, who are said to have attested the documents relied on by the appellants in support of their case, they were not able to substantiate their case and the improbabilities of the case of the appellants in this regard have been brought to light in the foregoing discussions. Neither the first plaintiff nor Thirumoorthy has chosen to seek a declaration of their right as owner of the power looms or as lessee of the power looms. On the other hand, the appellants have chosen to file the suit only for the relief of injunction against the respondent/ defendant. Even a suit filed by Thirumoorthy as O. S. No. 60 of 2001 was allowed to be dismissed as not pressed. Under such circumstances, it cannot be said that the rights claimed by the plaintiffs in the suit should be protected till the dispute regarding the title to the power looms is settled between the respondent/defendant and PW 2 Thirumoorthy. The appellants/plaintiffs having chosen to file the suit for bare injunction cannot contend that there is a dispute regarding title to the power looms between the respondent and a third party (namely Thirumoorthy) and that till the resolution of the dispute between the respondent/plaintiff and the third party the first appellants possession should not be disturbed. When he has filed the suit for bare injunction on the strength of the right allegedly derived from Thirumoorthy, who, according to him claims ownership of the power looms, the appellants/plaintiffs shall either succeed or fail in the case depending upon their ability or otherwise to establish the Thirumoorthys ownership of the power looms and the genuineness and validity of the alleged lease created by Thirumoorthy in favour of the first appellant. In the event of their failure to prove the same, they shall not be entitled to the relief of bare injunction sought for against the respondent/defendant. 29. Even otherwise, in a suit for bare injunction question of title can be incidentally gone into. Title of the appellants to the land and the godown is not in dispute. On the other hand, the respondent/defendant claims lease hold right in respect of the godown besides a claim of title to the power looms. As pointed out in the forgoing discussions, the respondent/defendant was able to substantiate his claim to title in respect of the power looms and also the leasehold right in respect of the godown, whereas the appellants/plaintiffs miserably failed in their attempt to prove their case. Hence, the appellants/plaintiffs cannot claim that their possession and interest should be protected till the dispute regarding the title to the power looms is settled between the respondent/defendant and PW2- Thirumoorthy. The first substantial question of law is answered accordingly against the appellants and in favour of the respondents. 30. The dispute between the respondent/defendant and PW2-Thirumoorthy regarding the title to the power looms have not been established by PW2-Thirumoorthy, who filed O. No.60 of 2001 and allowed it to be dismissed as not pressed. Even in this case, the appellants, who claim to have derived rights from PW2-Thirumoorthy, have failed to substantiate their contention even prima facie that the power looms belong to PW2-Thirumoorthy. They were not able to prove their case despite the fact that the said Thirumoorthy was examined as PW2. PW2 was not unaware of the existence of the dispute and the claim as to ownership to the power looms made by the respondent/defendant. Still he has not chosen to come on record as a party to the proceedings. Under such circumstances, since his title was canvassed by the appellants/plaintiffs and they claimed to have derived right from PW 2 Thirumoorthy, the said question was also decided on merits by the Courts below. The said decision, according to this Court is correct and in any event it cannot be stated to be perverse. The title of the respondent/defendant in respect of the power looms stands established. As such the appellants/plaintiffs cannot sustain their claim for an injunction aginst the respondent/defendant, who is the true owner of the power looms. 31. The said decision, according to this Court is correct and in any event it cannot be stated to be perverse. The title of the respondent/defendant in respect of the power looms stands established. As such the appellants/plaintiffs cannot sustain their claim for an injunction aginst the respondent/defendant, who is the true owner of the power looms. 31. Even in respect of the godown, the respondent/defendant has proved to have a right as a lessee. Unless and until he is evicted by due process of law, the appellants/plaintiffs cannot sustain their claim for an injunction against the respondent/defendant. The second substantial question of law seems to have been formulated as if the respondent/defendant was trying to take possession of the power looms and the godown without adopting due process of law and by taking the law on his own hands. The truth is otherwise. It was the respondent/defendant who was in possession and enjoyment of the power looms as owner and the godown as lessee till the dispute arose and the appellants along with PW 2 Thirumoorthy were the persons who attempted to disturb his peaceful possession and enjoyment. When a complaint was lodged by the respondent/defendant, the police did not take action and on the other hand, they got a complaint from the wife of the first appellant and registered a case against the respondent/defendant which prompted him to file a private complaint on the file of the Judicial Magistrate II, Tiruppur. The above said facts and circumstances will make it clear that it is not the respondent/defendant who is attempting to disturb the alleged peaceful possession and enjoyment of the appellants in respect of the godown and the power looms installed therein and on the other hand, the appellants and PW2-Thirumoorthy are the persons who try to prevent the respondent/defendant from exercising his right as owner of the power looms and lessee of the godown. The appellants have not approached the Court with clean hands. Hence, the second substantial question of law also deserves to be answered against the appellants and in favour of the respondents. 32. The appellants have not approached the Court with clean hands. Hence, the second substantial question of law also deserves to be answered against the appellants and in favour of the respondents. 32. In view of the answers given by this Court to the first and second substantial questions law formulated in this second appeal and in the light of the other findings, this Court comes to the conclusion that there is no merit in the second appeal and the same deserves to be dismissed with costs. 33. Accordingly, the second appeal is dismissed with costs. Appeal dismissed.