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2022 DIGILAW 564 (MAD)

Karuppan (died) v. T. Marappan

2022-03-04

N.ANAND VENKATESH

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 31.10.2013 made in A.S.No.5 of 2011 on the file of the Subordinate Judge, Namakkal confirming the judgment and decree dated 24.09.2010 made in O.S.No.1678 of 2004 on the file of the Additional District Munsif Court, Namakkal.) 1. The defendants are the appellants in this Second Appeal. 2. The 1st respondent/plaintiff filed the suit seeking for the relief of permanent injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the suit properties. 3. The case of the plaintiff is that he is the absolute owner of the suit property by virtue of a registered Partition Deed dated 27.03.1975. According to the plaintiff, he was allotted the ‘B’ Schedule property measuring an extent of 2.16 acres. The further case of the plaintiff is that the 1st defendant was allotted the ‘A’ Schedule property measuring an extent of 2.09 acres. The grievance of the plaintiff is that the defendants were attempting to interfere with the possession and enjoyment of the suit property and were trying to alter the character of the property. Hence, the suit was filed seeking for the relief of permanent injunction. 4. The defendants took a stand that the plaintiff had already filed a suit in O.S.No.1391 of 2004 claiming for a larger relief with respect to the same property and hence, the present suit is not maintainable. The defendants further stated that the ‘B’ Schedule property was allotted in favour of the plaintiff under the Partition Deed and they never attempted to trespass into the property. The defendants challenged the extent of property that was actually under the possession and enjoyment of the plaintiff and that there is a variation in the extent of the property enjoyed from what is actually mentioned in the Partition Deed. The defendants therefore sought for the dismissal of the suit. 5. Both the Courts below based on the oral and documentary evidence and considering the facts and circumstances of the case, found that the plaintiff proved the possession over the suit property and also took into consideration the admission made by the 1st defendant in this regard and accordingly held against the defendants concurrently. Aggrieved by the same, the present Second Appeal has been filed before this Court. 6. Aggrieved by the same, the present Second Appeal has been filed before this Court. 6. This Court framed the following substantial questions of law: “1) Whether the present suit O.S.No.1678 of 2004 on the file of the District Munsif Court, Namakkal which was filed on 20.12.2004 is maintainable since the plaintiff has already filed O.S.No.1391 of 2004 on the file of the Principal District Munsif Court, Namakkal on 03.09.2004 on the basis of Ex.A.1 Partition Deed relating to the same properties for the same reliefs?. 2) Whether the plaintiff has proved the title and possession over the suit properties since as admitted by the plaintiff the properties are in tentative enjoyment of the parties on the basis of Ex.A.1 Partition Deed? 3) Whether the Courts below are right in deciding O.S.Nos.1391 of 2004 and 1678 of 2004 independently without joint trial?” 7. Heard the learned counsel for the appellants and the learned counsel appearing on behalf of the respondents. 8. This Court carefully went through the pleadings and also the findings rendered by both the Courts below based on the evidence available on record. 9. This Second Appeal is quite a straight forward case where most of the facts are admitted by both sides. There is no dispute with regard to the fact that there was a partition among the parties and the same is reflected under Ex.A1. There is also no dispute with regard to the fact that the plaintiff was allotted 2.16 acres shown as ‘B’ Schedule and the defendants were allotted 2.09 acres shown as ‘A’ Schedule. It is also not disputed that the respective sharers also obtained patta for their respective properties. 10. The 1st defendant was examined as DW1 and he stated as follows: 11. Both the Courts below also took into consideration the documentary evidence and the report of the Commissioner and found that the plaintiff is entitled for the relief sought for. This Court does not find any perversity in the findings of both the Courts below. 12. The issue that is involved in O.S.No.1391 of 2004 and the extent of property is completely different from the present case. Therefore, both the Courts below were right in not conducting a joint trial. That apart, the pendency of O.S.No.1391 of 2004 was not a bar for maintaining the present suit and this issue has also been discussed in extenso by the trial Court. Therefore, both the Courts below were right in not conducting a joint trial. That apart, the pendency of O.S.No.1391 of 2004 was not a bar for maintaining the present suit and this issue has also been discussed in extenso by the trial Court. Hence, the 1st and 3rd substantial questions of law are answered against the appellants. 13. In the considered view of this Court, the plaintiff has proved the title and possession over the suit properties and both the Courts have correctly held the case in favour of the plaintiff. The second substantial question of law is answered accordingly. 14. In the result, this Court does not find any merits in this Second Appeal and accordingly the same shall stand dismissed. Considering the facts and circumstances of the case, there will be no order as to costs.