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2023 DIGILAW 765 (MAD)

S. Sarasu v. M. Sakunthala

2023-03-02

S.SOUNTHAR

body2023
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 17.07.2013 made in A.S.No.231 of 2012 on the file of the Ist Additional Subordinate Judge, Tiruchirapalli, confirming the judgment and decree dated 19.06.2012 made in O.S.No.944 of 1995 on the file of Principle District Munsif cum Judicial Magistrate Court, Lalgudi.) 1. The plaintiffs in the suit are the appellants. They filed a suit for bare injunction and the same was dismissed. The first appeal filed by the appellants before the first appellate Court was also dismissed. Challenging the concurrent findings of the Courts below, the appellants are before this Court. 2. According to the appellants/plaintiffs, they are absolute owners of the suit property. They claimed title to the suit property under a Will executed by his maternal aunt, Anandayee Ammal, dated 25.04.1979. It was averred in the plaint that the respondents are the southern owners of the suit property and they had no right over the same. It was the case of the appellants that from 07.07.1991 onwards, the respondents tried to interfere with the possession of the appellants and hence, they were constrained to file a suit for bare injunction. 3. The respondents herein filed a written statement admitting that the appellants are the owners of the suit property. However, the respondents claimed that they are the cultivating tenants of the suit property. It was averred by the respondents that they had been raising vegetable crops in the suit property by contributing their physical labours. It was further averred that the father of the deceased first defendant, namely, Vaithi Muthuraja was a cultivating tenant of the suit property under the predecessor of the appellants, Anandayee Ammal. The said Anandayee Ammal filed a suit for recovery of possession against Vaithi Muthuraja in O.S.No.220 of 1971, on the file of the District Munsif Court, Trichy, on the ground that Vaithi Muthuraja was holding over the property after expiry of the lease period. The said suit was decreed. However, the respondents had been continuously in possession and enjoyment of the suit property. It was also alleged that there was a fresh lease deed executed on 10.06.1998 between the appellants and the respondents. 4. The said suit was decreed. However, the respondents had been continuously in possession and enjoyment of the suit property. It was also alleged that there was a fresh lease deed executed on 10.06.1998 between the appellants and the respondents. 4. The trial Court, on consideration of evidence available on record, came to the conclusion that the appellants failed to establish their possession over the suit property and dismissed the suit. Aggrieved by the same, the appellants filed an appeal in A.S.No.231 of 2012 on the file of First Additional Subordinate Judge, Tiruchirappalli. The first appellate Court affirmed the findings of the trial Court and dismissed the appeal. The first appellate Court had also rendered the finding that the decree passed in O.S.No.2319 of 1992 filed by the deceased first defendant Manivel against the appellants would operate as res judicata on the present suit. Aggrieved by the said judgments and decrees, the appellants are before this Court. 5. The learned counsel for the appellants tried to assail the findings rendered by the Courts below on the ground that the respondents having pleaded cultivating tenancy in respect of the suit property, failed to establish the same by any acceptable evidence. The learned counsel further submitted that the decree passed in O.S.No.2319 of 1992 against the appellants would not operate as res judicata as the said suit was decreed ex parte without hearing the appellants. The learned counsel further submitted that the judgment and pleadings in the earlier suit were not produced by the respondents. So that without perusing the pleadings and judgment in the earlier suit, the first appellate Court ought not to have come to a conclusion that the decree in O.S.No.2319 of 1992 would operate as res judicata against the present suit for bare injunction. 6. The copy of Ex.B7 is produced before this Court by the learned counsel for the petitioner. On perusal of the same, it is clear that the second respondent and his father Manivel filed a suit for bare injunction in O.S.No.2319 of 1992 on the file of the District Munsif Court, Tiruchirappalli, against one Krishnasamy and Sambasivam. The said Sambasivam is the original plaintiff in the present suit filed by the appellants. The said Sambasivam died pending suit. Therefore, the appellants were brought on record as his legal representatives. The said Sambasivam is the original plaintiff in the present suit filed by the appellants. The said Sambasivam died pending suit. Therefore, the appellants were brought on record as his legal representatives. The suit in O.S.No.2319 of 1992 filed by the second respondent and his father Manivel against the predecessors of the appellants was decreed by granting an injunction restraining the defendants therein from interfering with the possession of second respondent and his father Manivel except by due process of law. In fact, the present suit was originally filed by the deceased Sambasivam against Manivel. Pending suit, Manivel passed away. Therefore, the respondents herein were brought on record as his legal representatives. 7. Though the pleadings and the judgment in O.S.No.2319 of 1992 were not produced before this Court, from the description of the property found in the decree, it is clear that the suit in O.S.No.2319 of 1992 was filed by the second respondent and Manivel in respect of the very same suit property. However, in the earlier suit, the extent of the suit property was mentioned as 10 cents with 24 coconut tress. In the present suit, the appellants mentioned the extent of the suit property as 28 cents with 24 coconut tress along with a pond and samadhi. When the decree for injunction is passed against the appellants in O.S.No.2319 of 1992 and the same is in operation atleast against a portion of the suit property, the appellants are not entitled to maintain the suit for bare injunction. When possession of the respondents was upheld in O.S.No.2319 of 1992, and limited injunction was granted in favour of the respondents, the appellants are not entitled to say that they are in possession of the property and seek injunction without seeking to set aside the said decree on any of the grounds permissible under law. 8. Therefore, I do not find any error in the findings rendered by the Courts below that the appellants failed to prove his possession over the suit property. Consequently, the second appeal is dismissed as it does not involve no substantial question of law. However, the dismissal of the suit for injunction filed by the appellant would not come in the way of appellants maintaining a suit for recovery of possession or any other relief, if so advised and permitted under law. 9. Consequently, the second appeal is dismissed as it does not involve no substantial question of law. However, the dismissal of the suit for injunction filed by the appellant would not come in the way of appellants maintaining a suit for recovery of possession or any other relief, if so advised and permitted under law. 9. In nutshell, (i) The Second Appeal is dismissed by confirming the judgment and decree, dated 17.07.2013, made in A.S.No.231 of 2012 on the file of Ist Additional Subordinate Judge, Tiruchirapalli, confirming the judgment and decree dated 19.06.2012 made in O.S.No.944 of 1995, on the file of Principle District Munsif cum Judicial Magistrate Court, Lalgudi; and (ii) In the facts and circumstances, there will be no order as to costs.