Research › Search › Judgment

Madras High Court · body

2022 DIGILAW 2178 (MAD)

Raman v. Subramani Achari (Died)

2022-07-18

C.V.KARTHIKEYAN

body2022
JUDGMENT : C.V. KARTHIKEYAN, J. Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 24th October 2002 passed in A.S. No. 7 of 2001 on the file of the Subordinate Judge, Ranipet confirming the Judgment and Decree of the Trial Court dated 29th December, 2000 passed in O.S. No. 206 of 1995 on the file of the District Munsif-cum-Judicial Magistrate No. 1, Walajah, Vellore District. 1. The defendant in O.S. No. 206 of 1995 on the file of the District Munsif cum Judicial Magistrate I, Walajah is the appellant herein. 2. The said suit had been filed by the respondent herein, who died pending the second appeal, and whose legal representatives had been brought on record as 2nd to 4th respondents for permanent injunction restraining the defendant/appellant herein from interfering with peaceful possession of vacant lands measuring 2.86 acres in Dry S. No. 12/1B, in Thenkadapanthangal Village, Walajah, Arakkonam, in the then North Arcot District, now Vellore District. 3. The suit in O.S. No. 206 of 1995 was decreed by judgment dated 29.12.2002. 4. The defendant filed an appeal in A.S. No. 7 of 2001 before the Sub Court at Ranipet. The appeal suit was dismissed by judgment dated 24.10.2002. 5. The defendant then filed the present second appeal. 6. The second appeal had been admitted on the following substantial questions of law: “1. The suit being one for permanent injunction whether the Court below is right in granting an injunction overlooking the evidence adduced in the case by the plaintiff? 2. Whether the suit itself is maintainable in the absence of a prayer claiming relief of declaration of title to the property? 3. When admittedly the plaintiff has purchased only from three of the shares out of four and the appellant has purchased from the other sharer whether the plaintiff is entitled to a relief of injunction for the entire extent of the property?” O.S. No. 206 of 1995 (District Munsif cum Judicial Magistrate-I Walajah): 7. The plaintiff, Subramani Achari, claimed that the property, vacant land in Dry S. No. 12/1B, measuring 2.86 acres in Thenkadapanthangal Village, Walajah, belonged to his father Ramachari, who had purchased it by registered sale deed dated 30.05.1960 and had been in enjoyment from that date. The plaintiff, Subramani Achari, claimed that the property, vacant land in Dry S. No. 12/1B, measuring 2.86 acres in Thenkadapanthangal Village, Walajah, belonged to his father Ramachari, who had purchased it by registered sale deed dated 30.05.1960 and had been in enjoyment from that date. The property had been mortgaged and the plaintiff had redeemed the mortgage and continued to be in peaceful possession. The plaintiff complained that the defendant, Raman, a neighbour, interfered with peaceful possession, and therefore after issuing a pre-suit notice, instituted the suit for permanent injunction to protect possession. 8. In his written statement, the defendant, Raman, denied the plaintiff’s claim to title to the entire 2.86 acres. He stated that the property originally belonged to Chinnasamy Achari, and on his death devolved to his three sons, Munusamy, Thangavelu and Chinnadurai and daughter, Muniammal. He stated that Thangavelu sold his undivided 1/3rd share of 99 cents to one Subramani by sale deed dated 06.05.1982, who in turn sold the same to the defendant by sale deed dated 17.03.1986. The defendant claimed to be in possession of the said 99 cents as owner. He also stated that the suit for injunction without seeking the relief of declaration of title was not maintainable. 9. On the basis of the pleadings, the District Munsif framed the following issues: “1. Whether the sale deed dated 30.05.1960 is true and valid? 2. Whether the claim that Chinnasami Achari purchased the suit property by sale deed dated 12.06.1943 is correct? 3. Whether the sale deeds dated 06.05.1982 and 17.03.1986 are true and valid? 4. Whether the contention that the plaintiff has no title over the suit property is correct? Whether the contention that it is the defendant who has title over the suit property is correct? 5. Whether there is cause of action for the suit? 6. Whether the plaintiff is entitled for the reliefs sought? 7. To what reliefs is the plaintiff entitled to?” 10. During the course of trial, the plaintiff, Subramani Achari examined himself as PW-1 and marked Exs.A1 to A23. The sale deeds dated 30.05.1960 and 18.07.1977 were marked as Exs.A1 and A2. The patta was marked as Ex.A4. The kist receipts were marked as Exs.A5 to A18 and as A21 to A23. The exchange of notices were marked as Exs.A19 and A20. 11. The defendant, Raman examined himself as DW-1 and examined another witness as DW-2. The sale deeds dated 30.05.1960 and 18.07.1977 were marked as Exs.A1 and A2. The patta was marked as Ex.A4. The kist receipts were marked as Exs.A5 to A18 and as A21 to A23. The exchange of notices were marked as Exs.A19 and A20. 11. The defendant, Raman examined himself as DW-1 and examined another witness as DW-2. He marked Exs.B1 to B20. The sale deeds dated 17.03.1986, 06.05.1982 and 12.06.1943, were marked as Exs.B1 to B3. The patta was marked as Ex.B5. The kist receipts were marked as Exs.B6 to B12 and B20. The notices exchanged between the parties were marked as Exs.B13 to B18. The extract of land register was marked as Ex.B19. 12. The District Munsif, launched herself into discussion on title in the course of the judgment. She held that Ex.A1, sale deed for 2.86 acres in favour of Chinnasamy Achari was valid and also held that his legal heirs had title to convey the suit property of 2.86 acres to the father of the plaintiff by Ex.A2. She further found fault with Thangavelu, one of the sons of Chinnasamy Achari, who had not joined in the sale deed, Ex.A2 in favour of the father of plaintiff, for not having taken steps to question or set aside the said sale-deed, Ex.A2 executed by the other legal representatives, even after the filing of the suit. She then held that failure to do so had rendered the sale deed executed by Thangavelu for 99 cents to the vendor of the defendant, Ex.B2 as null and void and consequently also declared that the sale deed Ex.B1 in favour of the defendant as null and void. She therefore declared that the plaintiff had title over the suit property measuring 2.86 acres and held that the defendant cannot claim title for the 99 cents purchased by him. She rejected the claim of the defendant that he was in possession of the 99 cents. Holding as above, the suit was decreed. A.S. No. 7 of 2001 (Sub Court, Ranipet): 13. The defendant then filed the above appeal suit. She rejected the claim of the defendant that he was in possession of the 99 cents. Holding as above, the suit was decreed. A.S. No. 7 of 2001 (Sub Court, Ranipet): 13. The defendant then filed the above appeal suit. The Sub Judge re-examined the pleadings and evidence and observed the contention of the appellant that the suit was not maintainable without seeking the relief of declaration, but again held that since Thangavelu did not seek to set aside the sale deed in favour of the father of the plaintiff, he had no right to thereafter execute a sale deed for 99 cents, by holding that the same was his share in the joint family property. The Sub Judge also examined the patta granted to both the plaintiff and th4e defendant, but held that the patta granted to the defendant is not sufficient proof to hold that he was in possession of 99 cents purchased by him. The Sub Judge also brushed aside the admission of the plaintiff during evidence that the defendant was actually in possession, as being of no relevance. The decree of the trial court was upheld and the appeal suit was dismissed. S.A. No. 2017 of 2003: 14. The defendant then filed the present second appeal. Pending the second appeal, the respondent/plaintiff died and his legal representatives were brought on record as 2nd to 4th respondents. The second appeal had been admitted on the following substantial questions of law: “1. The suit being one for permanent injunction whether the Court below is right in granting an injunction overlooking the evidence adduced in the case by the plaintiff? 2. Whether the suit itself is maintainable in the absence of a prayer claiming relief of declaration of title to the property? 3. When admittedly the plaintiff has purchased only from three of the shares out of four and the appellant has purchased from the other sharer whether the plaintiff is entitled to a relief of injunction for the entire extent of the property?” 15. The first and third substantial questions of law actually revolve around facts - facts relating to possession and title. Let me address the second substantial question of law first. 16. For the sake of convenience, let me refer to the parties as plaintiff and defendant. The appellant was the defendant in O.S. No. 1995 filed by the 1st respondent/plaintiff. 17. The first and third substantial questions of law actually revolve around facts - facts relating to possession and title. Let me address the second substantial question of law first. 16. For the sake of convenience, let me refer to the parties as plaintiff and defendant. The appellant was the defendant in O.S. No. 1995 filed by the 1st respondent/plaintiff. 17. The plaintiff claimed that the suit property, being vacant land measuring 2.86 acres originally belonged to Chinnasamy Achari. There is no dispute on this fact. Chinnasamy Achari died leaving behind his widow, three sons, Munusamy, Thangvelu and Chinnadurai and also one daughter. 18. The widow and two of the sons, Munusamy and Chinnadurai, sold, Ex.A1, sale deed dated 30.05.1960, the entire 2.86 acres to Ramachari, the husband of the daughter and the father of the plaintiff. The plaintiff claimed that he had redeemed a mortgage over the property after the death of Ramachari, was in possession, obtained patta and was paying kist, or land taxes for the property. Thangavelu, the son who did not join in executing Ex.A1, then sold undivided 99 cents out of the 2.86 acres, claiming that the land had fallen to his share in an oral partition among the three brothers, and therefore right to sell, by sale deed dated 06.05.1982, Ex.B2 to one Subramani, who then sold the 99 cents to the defendant by sale deed dated 17.03.1986, Ex.B1. The defendant also obtained patta for the 99 cents and was also paying land taxes. 19. In his written statement, the defendant disputed and denied the title and possession of the plaintiff to the entire 2.86 acres, and on the other hand, claimed title and possession to 99 cents out of the 2.86 acres. It must be mentioned that the plaintiff had not given the boundaries to the suit property of 2.86 acres. However, the sale deed executed by Thangavelu in Ex.B2 and the subsequent sale deed in favour of the defendant, Ex.B1 contained specific boundaries. It was stated that the 99 cents was part of the 2.86 acres and was to the north of the lands allotted to Munusamy and to the south of the lands allotted to Chinnadurai who were the executants, along with their mother of Ex.A1 to the entire extent of 2.86 acres including the 99 cents subsequently sold by Thangavelu, their other brother. PW-1 in his cross examination very specifically admitted that the defendant is in possession of 99 cents growing bug trees like coconut, mango and teak. The above leads to the following inferences: “1. Plaintiff claims title to 2.86 acres of land. 2. Out of that 2.86 acres, defendant claims title to 99 cents with specific boundaries. 3. Both claim title on the basis of registered sale deeds in their favour. 4. They have both obtained patta, indicating possession had been recognized by the revenue officials. 5. Both are paying land tax and naturally expect protection of possession. 6. Plaintiff had specifically admitted to the possession of the defendant.” 20. In the above factual background, it is clear that either one of the two parties will have to seek their respective titles to be adjudicated and determined. That can be done only if a suit for declaration of title is filed. The finding of the learned District Munsif, holding the sale deeds, Exs.B2 and B1 in favour of the defendant as null and void is beyond the scope of enquiry in a suit for permanent injunction. Those findings are specifically set aside. 21. In Anathula Sudhakar vs. P. Buchi Reddy, (2008) 4 SCC 594 : AIR 2008 SC 2033 , the Hon’ble Supreme Court had laid down the guidelines to be observed while adjudicating a suit for permanent injunction where the issue of title also comes up for consideration. It was held as follows, with respect to a suit for permanent for injunction, where the defendant also claims title and also possession: “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a)........... (b)........... (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar vs. Alagammal, (2005) 6 SCC 202 . Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d)...........” 22. In the instant case, the defendant had questioned the title and possession of the plaintiff over the 99 cents out of the 2.86 cents for which the suit for permanent injunction was laid. 23. As held by the Supreme Court, this Court will have to “relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.” 24. I hold that the suit for permanent injunction alone is not maintainable in the circumstances and the plaintiff should have filed the suit for declaration of title, and if claims title over the 99 cents also, then with specific pleadings as to how he is entitled to the said 99 cents and how the defendant is disentitled to the said 99 cents and then also seek permanent injunction seeking protection of possession, and if the defendant is in possession of the said 99 cents, as admitted by the plaintiff himself, seek recovery of possession. Equally, the defendant may also take upon himself to file a suit for declaration of title and seek protection possession of the 99 cents. 25. The second substantial question of law is thus answered holding that the suit in O.S. No. 206 of 1995 on the file of the District Munsif cum Judicial Magistrate-I, Walajah is not maintainable since the plaintiff had not sought declaration of title, in the teeth of the rival claim to title by the defendant to a portion of the suit property. 26. In view of the above conclusion, it may not be prudent on the part of this Court to take up for discussion the issues of possession and title as stated in the first and third substantial questions of law. 26. In view of the above conclusion, it may not be prudent on the part of this Court to take up for discussion the issues of possession and title as stated in the first and third substantial questions of law. I would leave that adjudication to the privilege of the Court, where a comprehensive suit for declaration of title is filed by either of the parties. However, it must also be held that though the suit is held to be not maintainable, since, the plaintiff has admitted to the possession of the defendant to 99 cents as described in Exs.B1 and B2, I hold that such possession of the defendant must be maintained and protected. Similarly, the possession of the plaintiff to the remainder lands in S. No. 12/1B is also maintained and is protected. The observations of the Courts below, particularly by the District Munsif in the judgment dated 29.12.2002 declaring that Exs.B1 and B2 as null and void is specifically set aside. 27. In the result, the second appeal is allowed, with the observations relating to protection of respective possession as stated above. No costs. Consequently, connected Miscellaneous Petition is closed.