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2018 DIGILAW 2406 (MAD)

Palani Gounder v. Marayal

2018-08-03

T.RAVINDRAN

body2018
JUDGMENT : In this second appeal, challenge is made to the judgment and decree dated 20.09.2004 passed in A.S.No.14/2004 on the file of the Principal Subordinate Court, Gobichettipalayam, partly reversing the judgment and decree dated 16.02.2004 passed in O.S. No.313 of 2000 on the file of the II Additional District Munsif Court, Gobichettipalayam. 2. The second appeal has been admitted on the following substantial question of law: “Whether on facts of this case, without a prayer for declaration, a suit for bare injunction alone is maintainable?” 3. Considering the scope of the issues involved in the matter as regards the subject matter between the parties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The suit has been laid simpliciter for the relief of permanent injunction by the plaintiff against the defendants and considering the plaint averments, it is found that the plaintiff seeks exclusive possession and enjoyment of the suit properties mainly upon the partition deed dated 10.07.91, marked as Ex.A1 and on that footing contending that the suit properties, as described in the plaint, are in his exclusive possession and enjoyment and alleging that the defendants, without any authority, are attempting to interfere with his possession and enjoyment with reference to the suit properties, the suit has come to be laid by the plaintiff for the relief of permanent injunction. 5. The defendants have disputed the claim of title, possession and enjoyment of the suit properties as projected in the plaint and further, the defendants have also contended that the description of the suit properties are not correct, both particulars wise as well as extent wise and alleging that the defendants are also enjoying the suit properties in proportion as detailed in the written statement and also claiming that they are also in the possession and enjoyment of the properties as having been acquired by them and further alleging that the plaintiff has suppressed the common enjoyment of the properties in dispute by the parties concerned, contended that the suit laid by the plaintiff is liable to be dismissed. Further, the defendants have also taken a plea that the suit laid by the plaintiff without seeking the relief of declaration is not maintainable and accordingly, on that ground also, claimed that the suit is liable to be dismissed. 6. Further, the defendants have also taken a plea that the suit laid by the plaintiff without seeking the relief of declaration is not maintainable and accordingly, on that ground also, claimed that the suit is liable to be dismissed. 6. Based on the materials placed on record by the respective parties, the trial Court was pleased to grant the relief sought for by the plaintiff in respect of survey Nos.1175/1, 5, 10, 15 and 19 and dismissed the suit as regards survey No.1175/6 and 12. As against the dismissal of the plaintiff's suit with reference to the survey Nos.1175/6 and 12, the plaintiff has not preferred any appeal. However, as against the grant of decree in favour of the plaintiff in respect of the survey numbers as above stated, the defendants, challenging the same, preferred the first appeal. The first appellate Court, on an appreciation of the materials placed on record, was pleased to set-aside the judgment and decree of the trial Court as regards the grant of the relief of permanent injunction in favour of the plaintiff in respect of the survey Nos.1175/1, 5, 10, 15 and 19 and accordingly, by way of allowing the appeal preferred by the defendants, dismissed the plaintiff's suit in entirety. Impugning the same, the present second appeal has been laid. 7. The second appeal has been admitted on the short point as to whether the suit laid by the plaintiff, without seeking the relief of declaration, simpliciter for the relief of permanent injunction is maintainable. 8. Considering the pleas put forth by the respective parties in the matter, it is found that the defendants have tooth and nail disputed the claim of title to the suit properties as projected by the plaintiff. Not only that, the defendants have also disputed the description of the suit property, both particulars wise as well as extent wise. Further, the defendants have also contended that they are also in the possession and enjoyment of the portions of the suit properties and alleged that the plaintiff has come forward with the suit suppressing the same. The defendants have also claimed title, possession and enjoyment of the portions of the suit properties as having been purchased by them. In toto, it is found that the defendants have strongly resisted the plaintiff's claim of title, legal possession and enjoyment of the suit properties as claimed in the plaint. The defendants have also claimed title, possession and enjoyment of the portions of the suit properties as having been purchased by them. In toto, it is found that the defendants have strongly resisted the plaintiff's claim of title, legal possession and enjoyment of the suit properties as claimed in the plaint. Despite the same, the plaintiff has not endeavoured to seek the relief of declaration in respect of the suit properties. No valid reason has been projected for the same. When there is a stiff resistance as to the claim of title made by the plaintiff to the suit properties by the defendants on all angles, in the light of the decision of the Apex Court reported in (2008) 4 SCC 594 (Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by Lrs and others) it is found that the suit laid by the plaintiff simpliciter for the relief of permanent injunction without seeking the relief of declaration is found to be not maintainable. 9. In addition to that, as rightly determined by the first appellate Court, the plaintiff has mainly based his claim on the basis of the partition deed marked as Ex.A1. However, quite inconsistent to the abovesaid claim, the plaintiff, examined as PW1, during the course of cross examination would state that the suit properties had been purchased by his grandfather Karuppa gounder and also purchased by his father and also would admit that the sale deeds acquired in the name of his grandfather and his father are available and however, would state that he had not filed the said documents. Thus, according to the plaintiff, during the course of his evidence, the suit properties had been acquired by way of purchase by his grandfather and father. Still the sale deeds, although available, had not been produced in the Court. No reason is offered for the same. Thus, according to the plaintiff, during the course of his evidence, the suit properties had been acquired by way of purchase by his grandfather and father. Still the sale deeds, although available, had not been produced in the Court. No reason is offered for the same. Further, as rightly determined by the first appellate Court, the documents marked as Exs.A2 to A4, being the revenue records, it is found that the plaintiff had been included as one of the joint pattadharars in the abovesaid revenue records and accordingly, the plaintiff has also admitted that the patta remains joint and there is no separate patta issued in his favour and also admitted that the names of the other persons had been shown as the joint pattadharars in the abovesaid revenue documents and also admitted that the defendants have purchased the portions of the suit properties. Further, it has also been admitted by the plaintiff, during the course of evidence, that the defendants also own shares in the suit survey numbers and further admitted that he has laid the suit as if the defendants do not own shares in the suit survey numbers and also would state that it is incorrect to state that he has levied the suit contending that the defendants do not own any right in respect of the suit properties and would still proceed to admit as per Exs.B1 to B3 and B9, the defendants also own shares in the suit properties and thus, it is evident that the plaintiff has clearly admitted that the defendants are also the co-owners in respect of the suit properties. Accordingly, when the revenue documents projected by the plaintiff show various persons as joint pattadharars in respect of the suit survey numbers and when the plaintiff has also admitted that the defendants also own shares in the suit survey numbers and also admitted that the defendants have acquired certain portions in the suit survey numbers and the plaintiff having suppressed the claim of purchase of the suit properties by his grandfather and father and also not produced the said sale deeds and also not pleaded the same in his plaint and accordingly, it is found that as rightly determined by the first appellate Court, when the defendants are also found to be the co-owners/joint pattadharars in respect of the suit survey numbers and the parties had not divided the shares belonging to them in the suit survey numbers as owned by them by metes and bounds, it is evident that the plaintiff cannot claim any exclusive title, possession and enjoyment in the portions of the suit survey numbers without endeavouring to determine his title to the suit properties by seeking necessary reliefs. Accordingly, it is rightly noted by the first appellate Court that the suit laid by the plaintiff as against the other co-owners, namely, the defendants for the relief of permanent injunction is not maintainable as such. As above noted, the plaintiff having not sought the relief of declaration for sustaining his claim of title to the suit properties, despite the stiff resistance of his claim of title by the defendants, in toto, it is found that the first appellate Court is all justified in rejecting the plaintiff's case. Accordingly, no interference is called for in the judgment and decree of the first appellate Court. The substantial question of law formulated in the second appeal is accordingly answered against the plaintiff and in favour of the defendants. 10. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.