Madras High Court
M.Ramamoorthy vs R.Thirunavukkarasu on 6 July, 2015
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.07.2015 CORAM THE HON'BLE MS. JUSTICE R. MALA S.A.No.1570 of 2005 Date of Reserving the Judgment 24.06.2015 Date of Pronouncing the Judgment 06.07.2015 1.M.Ramamoorthy 2.R.Senthilkumar ... Defendants/Respondents/Appellants -Vs- R.Thirunavukkarasu ... Plaintiff/Appellant/Respondent Prayer: Second appeal filed under Section 100 of CPC against the judgment and decree of the learned Principal Subordinate Judge, Virudhachalam in A.S.No.43 of 2004, dated 24.02.2005 reversing the judgment and decree of the learned Second Additional District Munsif, Virudhachalam in O.S.No.254 of 1999, dated 27.02.2004. For Appellants : Mr.S.Raghu For Respondent : Mr.D.Bharatha Chakravarthy J U D G M E N T
The second appeal arises out of the judgment and decree dated 24.02.2005 made in A.S.No.43 of 2004 on the file of the learned Principal Subordinate Judge, Virudhachalam, reversing the judgment and decree dated 27.02.2004 passed in O.S.No.254 of 1999 on the file of the learned Second Additional District Munsif, Virudhachalam.
2. The averments made in the plaint are as follows:-
The suit properties originally belong to one Uthandi. The plaintiff purchased the property from the said Uthandi in the year 1987 through oral sale and thereafter, the plaintiff was in possession and enjoyment of the suit property. The said Uthandi died in the year 1990 without executing the sale in favour of the plaintiff. However, the plaintiff was in open, continuous and uninterrupted possession of the suit property and further, the plaintiff was paying the kist. Thereafter, on 18.12.1998, one Gurusamy, the legal heir of the deceased Uthandi executed a sale deed in favour of the plaintiff. While so, the defendants who are the neighboring land owners and who have got dispute with the plaintiff in respect of the water course attempted to interfere with the possession of the suit property from 03.05.1999, as though they have got right in the property. Hence, the plaintiff filed the suit for permanent injunction.
3. The gist and essence of the written statement filed by the defendant is as follows:
Originally the entire suit properties belong to Uthandi and his brother Subbarayan. In the first item of the property in S.No.117/2, out of 49 cents, Eastern 24= cents was allotted to Subbarayan. In the second item of the property in S.No.117/4B2, out of 18 cents, Northern 9 cents was allotted to Subbarayan in oral partition in April 1980. From the date of partition onwards, he was in possession and enjoyment of the properties. Thereafter, he mortgaged the said property to one Balakrishnasamy along with other properties. In the said Mortgage Deed, one side of the boundary has been mentioned as Uthandi property. The said mortgage was discharged on 14.11.1984 and subsequently, he mortgaged the properties in favour of one Ammavasai on 15.04.1988. The said mortgage was discharged on 06.09.1995. So, the said Subbarayan was dealing with the property in his own. Thereafter, Subbarayan sold the property to the defendant on 31.12.1997 for Rs.1,75,000/- and from the said date onwards, he is in possession and enjoyment and mutation of revenue records was also made. So, Uthandi has no right over the property. Further, the sale deed in favour of the plaintiff is not true and impersonation has been made. Uthandi is not in possession and enjoyment of the said property. Gurusamy left the village. Uthandi died leaving behind his wife Anajala Ammal and besides, Gurusamy, he was having three more sons viz., Poovaraghavan, Balasundaram and Kaliamurthy. So, the plaintiff has not purchased the property from the other legal heirs of Uthandi. Hence he prayed for dismissal.
4. The brief facts set out in the reply statement are as follows:
The suit properties were purchased by Uthandi, S/o.Kesavan on 24.04.1967 for Rs.3400/-. Major portion of the amount has been paid by him in the presence of the Sub-Registrar. So, the suit properties are the separate properties of Uthandi and no share has been given to Subbarayan in the suit properties. There is no oral partition. After the death of Uthandi, all the legal heirs had sold the property on 01.09.1992 for Rs.58,500/-. Thereafter, he dealt with the property and mortgaged the same in favour of one Thirusangu on 1.11.1995 for Rs.55,000/-. The remaining properties had been purchased by him under the sale deed, dated 30.12.1998. So, the plaintiff is the owner of the property. Subbarayn, brother of Uthandi had purchased the property in S.No.118/2 and has also obtained usufactory mortgage of 67 cents from one Chellappan in S.No.117/5. Since then he is in enjoyment of the property. Thereafter, he sold the property in S.No.118/2 to this defendant. So, the suit properties are not joint family properties but it is the separate property of Uthandi. There was also a criminal case in C.C.No.20 of 2000 and the same is pending before the Judicial Magistrate Court. In that they have attempted to long possession. Hence, he prayed for decree.
5. The gist and essence of the additional written statement filed by the defendant is as follows:
It is true that Kesavan was having three sons viz., Uthandi, Subbarayan and Narayanan. Narayanan stayed at his native Mudhanai and only the other two sons viz., Uthandi and Subbarayan had migrated to Gopalapuram for their livelihood and purchased the properties jointly and individually and enjoying the property. At the time of oral partition, the properties in Mudanai village has been allotted to Narayanan and the properties purchased at Gopalapuram was divided between Uthandi and Subbarayan. Even though the suit properties were purchased in the name of Uthandi, it is not a separate property as the same was purchased out of income derived from the properties at Mudanai village. Hence, he prayed for dismissal.
6. The Learned Trial Judge after considering the averments made in the plaint, written statement, reply statement and additional written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidences viz., P.W.1 to P.W.6, D.W.1 to D.W.4 and Exs.A.1 and A.40 and Exs.B.1 to B.25 and Exs.X.1 and X.2, dismissed the suit. Aggrieved against the judgment and decree passed by the trial court, the plaintiff preferred an appeal in A.S.No.43 of 2004 on the file of the learned Principal Subordinate Judge, Virudhachalam.
7. The learned First Appellate Court has considered the arguments advanced on either side and framed necessary point for consideration and reversed the Judgment and Decree passed by the Trial Court and allowed the appeal. Against the Decree and Judgment passed by the first Appellate Court, the present second appeal has been preferred by the defendants/appellants.
8. At the time of the admission, the following question of law has been framed.
1. Whether the suit for bare injunction as filed is maintainable especially, when there is dispute regarding title?
2. Having noticed that patta stands in joint names, is the lower appellate Court correct and justified in granting the relief of injunction and will not the pattadars in the position of co-owners?
9. The learned counsel appearing for the appellant would submit that though the properties had been purchased in the name of Uthandi, they are the joint family properties. In the property in S.No.117/2B, as far as the first item is concerned, the Eastern 24= cents was allotted to Subbarayan from whom the appellant had purchased the property and the Western 24= cents was allotted to Uthandi. As far as the second item of the property is concerned, Northern 9 cents was allotted to Subbarayan and the Southern 9 cents was allotted to Uthandi. That factum was not considered by the Trial Court. It is further stated that the Ex.A.16/Sale Deed, dated 18.12.1998 under which the plaintiff had purchased the property from one Gurusamy, S/o.Uthandi is not true and genuine. Furthermore, Uthandi died on 01.09.1992 leaving behind his wife Anjala Ammal and four sons viz., Poovaraghavan, Balasundaram, Kaliamurthy and Gurusamy as legal heirs from whom the plaintiff had purchased the other properties in S.Nos.117/2 and 118/3A under Ex.A.9/Sale Deed. The Trial Court has failed to consider the fact as to why the other sons of Uthandi was not a party in Ex.A.16/Sale Deed. Once the title of the property is disputed, he ought to have filed the suit for declaration of title and injunction. Without prayer for declaration, the suit for bare injunction is not maintainable. Furthermore, after the filing of the second appeal, he has filed the suit for declaration of title and for injunction which is pending. The learned counsel would further submit that injunction cannot be granted against the true owner and co-owners. To substantiate the same, the learned counsel for the appellant relied upon the following decisions:
1.2011-3-L.W.890, Veluran and others v. Perumal Gounder 2.1994-2-L.W.735, Premji Ratansey Shah and others v. Union of India and others 3.2014-3-L.W.397, Subramanian v. Kosalai Ammal and Others 4.2007-2-L.W.999, T.Tamilarasan v. Arokkiasamy and two others
10. Resisting the same, the learned counsel for the respondent would submit that the suit is for bare injunction. The respondent/plaintiff had purchased the property under Ex.A.16/Sale Deed, dated 18.12.1998. Before getting the Sale Deed under Ex.A.16, he has taken the said property under oral sale from Uthandi. During his life time, the property was cultivated by one Rabinshah bai. From the year 1983, the respondent/plaintiff has taken the property on lease and he was cultivating the same and thereafter, purchased the property under oral sale. The Trial Court taking into consideration of the additional document showing that the plaintiff is not in possession of the property had dismissed the suit. However, the First Appellate Court has rightly considered the fact that the respondent/plaintiff had purchased the property from one Gurusamy, S/o.Uthandi and decreed the suit in favour of the plaintiff. Thus, the learned counsel for the respondent prayed for dismissal of the appeal. To substantiate his argument, the learned counsel for the respondent relied upon the following decisions:
1.(2000) 5 Supreme Court Cases 141, Jai Mangal Oraon v. Mira Nayak and Others.
2.1977 AIR 1599, Kanta Goel v. B.P.Pathak and Others.
3.Unreported judgment of this Court made in S.A.No.1609 of 1999, Marakkal v. The Superintending Engineer.
4.(2008) 4 Supreme Court Cases 594, Ananthula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and Others.
11. Considered the rival submissions made by both side and perused the material records, oral and documentary evidences.
12. It is an admitted fact that the respondent herein as plaintiff has filed the suit for bare injunction in respect of the properties viz., Eastern 24= cents out of 49 cents in S.No.117/2 and Southern 8 cents out of 16 cents in S.No.117/4B2. It is also admitted that the aforesaid properties were originally owned by one Uthandi, who had purchased the same from one Dharmalingam under Ex.A.1/Sale Deed, dated 24.04.1967. A perusal of the said document would show that out of the total sale consideration of Rs.3400/-, a sum of Rs.2800/- has been paid by Uthandi in the presence of the Sub-Registrar. Exs.A.2 to A.5/Adangal and Exs.A.6 to A.8/Kists receipts were filed to show that the property was in the possession and enjoyment of Uthandi. Before purchasing the suit property under Ex.A.16, the plaintiff had purchased other properties viz., 25 cents out of 49 cents in S.No.117/2 and 33 cents out of 2 acre 64 cents in S.No.118/3A, under Ex.A.9/Sale Deed, dated 30.03.1993. After purchasing the properties, he mortgaged the same to one Thirusangu who was examined as P.W.6. The deposition of P.W.6/Thirusangu would show that he had dealt with the property. He mainly contended that he is in possession of the property. Even though the appellant had put forth the case that Ex.A.16/Sale Deed, dated 18.12.1998 under which the plaintiff had purchased the property from one Gurusamy, S/o.Uthandi is not true and genuine document, it is a well settled principle of law that in a suit for bare injunction, the legal possession has to be considered. In the dictum of the Hon'ble Apex Court reported in (2008) 4 Supreme Court Cases 594, Ananthula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and Others, it was held where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
13. In the instant case, the title to the suit property has been disputed in the written statement. The defendants had averred that in the first schedule of the property, out of 49 cents in S.No.117/2, Eastern 24= cents was allotted to Subbarayan and Western 24= cents was allotted to Uthandi and in the second schedule of the property, out of 18 cents in S.No.117/4B2, Northern 9 cents was allotted to Subbarayan and Southern 9 cents was allotted to Uthandi. In such circumstances, whether the property purchased by the respondent/plaintiff from Uthandi under Ex.A.9/Sale Deedis a joint family property or the separate property of Uthandi can be decided only at the time of deciding the suit for declaration of title .So, applying the dictum laid down in the decision of the Hon'ble Apex Court reported in (2008) 4 Supreme Court Cases 594, Ananthula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and Others, I am of the view that the suit for bare injunction is not maintainable without prayer for declaration.
14. At this juncture, it is appropriate to consider the decisions relied on by the learned counsel for the appellants.
14.1. In the decision reported in 2011-3-L.W.890, Veluran and others v. Perumal Gounder, it was held that an order of declaration and injunction cannot be granted as against the true owner. It is appropriate to incorporate the relevant portion in paragraph 37 and paragraphs 38 and 39 of the said decision:
37. ..... When I hold that the right of the respondent/defendant to the suit properties was not extinguished, he become a perfect title holder to the suit properties, being a purchaser in a Court auction and as per the judgment of the Division Bench of this Court reported in 1954 (1) M.L.J. 585 as referred to above, on the issuance of sale certificate to the purchaser, the purchaser's title becomes perfect and complete and his right to possession is unimpeachable as against the parties to the suit. Therefore, the respondent/defendant becomes the absolute owner of the property and the first plaintiff having lost his right in the suit property, as the suit property was sold in a Court auction, pursuant to the decree obtained against the first plaintiff, the appellants/plaintiffs are not entitled to maintain the suit for declaration and injunction against the respondent/defendant, who is the true owner.
38. In this connection, the Hon'ble Supreme Court in the judgment reported in JT (1994) V S.C. 585 ( supra) has held as follows:-
" It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a tresspasser and an injunction cannot be issued in favour of a tresspasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse of claim injunction against true owner."
39. Further, our High Court has also in the judgment reported in Vol. 93 Law Weekly 637 (supra) held that eventhough the plaintiff is found to be in possession of the property, as the plaintiff has no title to the suit property, he cannot maintain any action against the defendant, who is having title, as a purchaser in Court auction sale and therefore, the plaintiff is not entitled to the relief of injunction. Therefore, the substantial question of law No.(viii) is also answered against the appellants and I hold that the respondent/defendant being the true owner of the property and the appellants/plaintiffs have no title to the suit property, they cannot maintain any action against the true owner. There is no quarrel over the said proposition.
14.2. In the decision reported in 1994-2-L.W.735, Premji Ratansey Shah and others v. Union of India and others, it was held that no injunction can be granted as against the true owner and a trespassed is not entitled for an order of injunction. It is appropriate to incorporate the relevant portion in paragraph 4 of the said decision:
4. .....The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction. 14.3. In the decision reported in 2014-3-L.W.397, Subramanian v. Kosalai Ammal and Others, it was held that the suit for injunction is not maintainable as against the true owner of the property, without the prayer for declaration of title.
But the above citation is not applicable to the facts of the present case on hand. In the above case, the settlement deed is disputed and so, the title claimed under the settlement deed is disputed by the settlor. In such circumstances, without the declaration of title the suit is not maintainable. However, in the instant case, the respondent has purchased the property from one of the legal heirs of the deceased Uthandi and the appellant had purchased the property from the brother of the deceased Uthandi. So, the above citation will not come to the rescue of the appellant.
14.4. In the decision reported in 2007-2-L.W.999, T.Tamilarasan v. Arokkiasamy and two others, it was held that the first appellate Court has allowed the reception and marking of additional documents without providing an opportunity to the other side.
But the above citation is not applicable to the facts of the present case.
15. Now, it is appropriate to consider the decisions relied on by the learned counsel for the respondent.
15.1. In the decision reported in (2000) 5 Supreme Court Cases 141, Jai Mangal Oraon v. Mira Nayak and Others, it was held that even subsequent developments or facts and turn of events coming into existence but found really relevant, genuine and vitally important in effectively deciding the issues raised and necessary to do real, effective and substantial justice or prevent miscarriage of justice.
In the instant case, taking into account the subsequent events under Ex.A.41, the Trial Court has decided the matter.
15.2. In the decision reported in 1977 AIR 1599, Kanta Goel v. B.P.Pathak and Others, it was held that a co-owner can file a suit to evict the tenant. But the above citation is not applicable to the facts of the present case.
15.3. In the unreported judgment of this Court made in S.A.No.1609 of 1999, Marakkal v. The Superintending Engineer, it was decided as to whether a co-owner is entitled to prevent the other co-owner from utilising the electricity connection for some other purpose. But the above citation is not applicable to the facts of the present case.
15.4. In the decision reported in (2008) 4 Supreme Court Cases 594, Ananthula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and Others, it was discussed about the appropriate remedy in various classes of cases. It is appropriate to incorporate paragraph 21 of the said decision:
21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(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 (supra)]. 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) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
16. Considering the facts of the present case in the light of the decision reported in (2008) 4 Supreme Court Cases 594, Ananthula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and Others, it has been well settled that once a dispute has arose in respect of the title to the suit property, it is the duty of the plaintiff to amend the plaint for declaration of title. In the instant case it is true that both sides have filed a number of documents to establish their case. Furthermore, Criminal proceedings had been initiated in Crl.R.C.No.41 of 1998 to set aside the order passed by the District Revenue Officer. A criminal proceeding was also initiated against the respondent herein under Section 294, 323 and 506(2) IPC and as against the same, the respondent preferred an appeal in C.A.No.68 of 2002 and the said appeal was allowed.
17. Now the only point to be decided is whether the property purchased by Uthandi under Ex.A.1/Sale Deed, dated 24.04.1967 is his separate property or a joint family property?
It is pertinent to note that not only Subbarayan is the brother of the said Uthandi, but he has also got another brother by name Narayanan. So, whether the oral partition alleged by the appellant is true and genuine has to decided only while deciding the title to the suit property. The point as to whether the sale deed in favour of the respondent under Ex.A.16 is true and genuine has to be decided only in the comprehensive suit for declaration and injunction. Admittedly, after the filing of the second appeal, a suit for declaration and injunction has been filed and the same is pending. The patta document filed would show that the property stands in the joint name, but the Adangal document would show that the property stands in the name of Uthandi. In such circumstances I am of the view that the first appellate Court has failed to consider the fact that once there is a dispute in the title, the suit for bare injunction is not maintainable.
18. Furthermore, when the Ex.A.16/Sale Deed, dated 18.12.1998 is alleged to be concocted, it is the duty of the plaintiff to file the suit for declaration of title and for injunction. I am also unable to understand as to why the respondent/plaintiff had purchased a part of the property viz., 25 cents out of 49 cents in S.No.117/2 and 33 cents out of 2 acre 64 cents in S.No.118/3A, under Ex.A.9/Sale Deed, dated 30.03.1993 from all the legal heirs of Uthandi and another part of the property viz., 24= cents in S.No.117/2 and 8 cents in S.No.117/4B2 under Ex.A.16/Sale Deed, dated 18.12.1998 from Gurusamy, one of the sons of Uthandi. Since the said Uthandi died intestate, all the legal heirs are entitled to share in the property. Thus, I am of the view that the Frist Appellate Court without considering the same has decreed the suit in favour of the respondent/plaintiff. As stated already, when once there is a dispute with regard to the title, the plaintiff ought to have filed a suit for declaration and injunction. A suit for bare injunction is not maintainable since the title to the property has been questioned in the written statement. The substantial question of law 1 and 2 is answered accordingly.
19. In view of the answer given to the substantial question of law 1 and 2, I am of the view that the judgment and decree passed by the first appellate Court is unsustainable and liable to be set aside and the same is hereby set aside. Consequently, the second appeal stands allowed.
20. In fine,
(a) The Second Appeal is allowed. No costs.
(b) The judgment and decree passed by the first appellate Court is hereby set aside.
(c) The judgment and decree passed by the trial Court is hereby restored.
(d) The suit in O.S.No.254 of 1999 is hereby dismissed.
06.07.2015 Index : Yes / No Internet : Yes / No To
1.The Second Additional District Munsif, Virudhachalam.
2.The Principal Subordinate Judge, Virudhachalam.
3.The Record Keeper, V.R.Section, High Court, Chennai.
R. MALA, J.
pgp Pre-delivery Judgment made in S.A.No.1570 of 2005 Dated : 06.07.2015