Madras High Court
Palanisamy ( vs Muthusamy Gounder (D1) on 2 September, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.203 of 1999 Palanisamy (Plaintiff) .. Appellant -vs- 1.Muthusamy Gounder (D1) 2.Viswanathan (D2) 3.Rathinasamy (D3) 4.Thulasimani (D4) Died 5.Thangamuthu (D5) 6.Palanisamy (D6) 7.Sivanathan @ Jaganathan (D7) 8.Elaiyammal (LR of D4-Thulaimani) 9.Karuppayee (LR of D4-Thulaimani) .. Respondents Prayer:- This Secon Appeal has been filed under Section 10 of CPC against the decree and judgment dated 19.08.1998 made in A.S.No.108 of 1997 on the file of the Principal District Judge, Erode, modifying the judgment and decree dad 18.2.1997 made in O.S.No.190 of 1996 on the file of the Principal District Munsif, Erode. For appellant : Mr.N.Manokaran, Advocate For respondents : Mr.T.Murugamanickam, Advocate JUDGMENT
This second appeal has been preferred against the decree and judgment in A.S.No.108 of 1997 on the file of the learned Principal District Judge, Erode, which had arisen out of the decree and judgment in O.S.No.190 of 1996 on the file of the Court of Principal District Munsif, Erode. The plaintiff in O.S.No.190 of 1996 in whose favour the learned trial Judge had passed a decree, but has lost his case in appeal before the first appellate Court in A.S.No.108 of 1997, is the appellant herein. The plaintiff had filed the suit for bare injunction against the defendants in respect of the plaint schedule property.
2.The averments in the plaint relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows:-
2(a)The plaint schedule properties are situated at Nanjanapuram village, Erode Taluk. The defendants 1 to 3 are brothers and sons of one Appachi Gounder. The 4th defendant and the said Appachi Gounder are brothers. The defendants 5 to 7 are the sons of 4th defendant. The grand-father of the plaintiff is one Pongianna Gounder. Likewise, the grand-father of the defendants 1 to 3 and 5 to 7 and father of the 4th defendant is one Marappa Gounder. The said Marappa Gounder and Pongianna Gounder are brothers. They had properties. They felt inconvenience in joint possession among them. Hence, the grand-father of the plaintiff, the father of the defendants 1 to 3 and 4th defendant were partitioned their properties under a registered partition deed dated 21.09.1955. Under the said partition deed dated 21.9.1955 'A' schedule to the partition deed was allotted to the father of the plaintiff viz., Pongianna Gounder (2), and 'B' schedule property was allotted to the father of the defendants 1 to 3 viz. Appachi Gounder. In the said partition there was a general provision made for pathway and cart-track to reach the respective portion of the sharers. The said pathway and cart-track were used by all the parties commonly. Eversince the deed of patition dated 21.9.1955 the grand-father of the plaintiff was in possession and enjoyment of the properties allotted in the said partition and was using the common pathway and cart-track to reach his lands till his death. The grand-father of the plaintiff had two sons viz., Pongianna Gounder(2), the father of the plaintiff and one Chinnathambi Gounder. After the death of their father, they were jointly enoying their properties allotted to their father in the above said partition deed dated 21.9.1955. Again they had partitioned their properties under a registered partition deed dated 16.09.1964. In the said partition, 'A' schedule was allotted to the father of the plaintiff and 'B' schedule was allotted to Chinnathambi Gounder and retained the common cart-track and pathway as stated in the above said earlier partition deed dated 21.9.1955. Eversince then the father of the plaintiff was enjoying the 'A' schedule properties and was using the common cart-track and pathways to reach his lands. The lands and the common cart-track and pathways are the suit properties. The father of the plaintiff had paid kists due to the Government. The plaintiff has produced the partition deeds and available kist receipt along with the plaint.
2(b)The father of the plaintiff became very old and hecne he did not lookafter the pannayam (Cultivation). Hence, he executed a release deed and handedover the entire family properties including the suit properties to the plaintiff under a release deed dated 27.1.1990. The release deed has been produced along with the plaint. Eversince then the plaintiff is in possession and enjoyment over the suit properties and other properties and using the common pathway and cart-track to reach his lands. The plaintiff has paid kists due to the Government. A plan was also produced by the plaintiff to show the suit properties. There was a misunderstanding arose between the plaintiff and the defendants in the temple festival. Due to the said enmity, the defendants wanted to give trouble to the plaintiff. In fact on 21.1.1996 while the plaintiff was walking through the suit pathway to reach his land, the defendants with a band of rowdies and attempted to prevent the plaintiff to use the suit pathway and cart-track. The plaintiff foiled out their unlawful attempt with the help of neighbours. The defendants went away proclaiming that they would gather more men and material and would prevent the plaintiff in future at any costs. If they succeed in their unlawful attempt then the plaintiff will not reach his lands and the plaintiff will be put to irreparable loss and hardships and the same cannot be compensated by any means. Under the law the defendants have no right to prevent the plaintiff to make use of the suit pathway-cum-cart-track, since it is common to both the plaintiff and the defendants. Hence, the plaintiff has comeforward with this suit for permanent injunction and for costs.
3.The defendants 2 to 7 have adopted the written statement filed by the first defendant as follows:-
The suit is vexatious in nature. The defendant admits that there is partition deed dated 21.9.1955. In the said partition deed there is no reference to any common path way or common cart-track. A provision has been made in the said partition deed to form a passage with a breath of 3 yards. The suit property does not exclusively belong to the plaintiff. The plaintiff along with his minor daughter aged 12 years and minor son aged 9 years had executed the sale deed on 8.6.1995 in favour of Kongu Vellalor Institute of Technology Trust in respect of 90 cents in S.No.42/2 and 99 cents in S.No.43/2 in Nanjanapuram village, the properties allotted to him under the partition deed. The first defendant and other defendants have filed a suit against the vendors under the sale deed dated 8.6.1995 ie., Kongu Vellalor Institute of Technology Trust under O.S.No.651 of 1995 for permanent injunction restraining the defendant therein and their man from in any manner interfering with the usage of the suit channel-cum-pathway by the plaintiff to irrigate the suit land and to reach the said land through the suit property to conduct their agricultural operation. In the said suit a Commissioner was appointed and he had visited the property and filed his report and plan. While temporary injunction was in force the defendants in O.S.No.651 of 1995 are attempting to close the chennal and also trying to put up wire fencing around the property they have purchased under the said sale deed dated 8.6.1995. Infact the plaintiff with the help of their vendors are trying to cause disturbance to these defendants from enjoying their property allotted to them under the partition deed and they have comeforward with this suit with false allegation that the defendants are obstructing their enjoyment of the common pathway and cart-track. The plaintiffs have not produced any material to show that as alleged in the plaint there is a pathway and cart-track in existence in the plaint schedule property on land. The plaint filed by the plaintiff claiming that he is the owner of the plaint schedule property is not maintainable. The plaintiff having admitted that his sons and daughters are also entitled to a share in the plaint schedule property, failed to implead them in the array of parties. On this ground alone, the suit is liable to be dismissed. The plaintiff has scheduled the entire land in R.S.No.43/2 and R.S.38, which are situated in Old.S.Nos.68 & 67 also in the plaint. Admittedly the plaintiff has executed a sale deed in favour of the Kongu Vellalor Institute of Technology Trust in respect of these properties. The vendors under the sale deed have also put up wire fencing around the property they have purchased. Under such circumstance, the claim of the plaintiff that he is in possession of the entire plain schedule property, which includes the portion of the property sold to Kongu Vellalor Institute of Technology Trust. The suit is bad for non-joinder of necessary parties. Only with a bad motive to form a cart-track in the suit property, to which the plaintiff is not the owner in entirety, the plaintiff has filed the suit with an ulterior motive. No incident had taken place in the plaint schedule as alleged by the plaintiff in the plaint. The defendants have not made any attempt to interfere with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. The plaintiff along with their vendors have collusively filed the suit only with an intention to cause disturbance to the defendants peaceful enjoyment of the property got under the earlier partition. The cause of action stated in the plaint is not correct. The plaintiff has filed the suit in respect of the property to which he is not entitled to in entirety. The 7th defendant is no way connected with the suit. Only Jegannathan is entitled to the suit property and not Sivananathan. Hence, the suit is liable to be dismissed with costs in favour of the defendant.
4.On the above pleadings the learned trial Judge has framed two issues for trial. On the side of the plaintiff, the plaintiff has examined himself as P.W.1 besides examining one Murugesan as P.W.2 and Ex.A1 to Ex.A.9 were marked. On the side of the defendants, D1 has examined himself as D.W.1 and Ex.B.1 to Ex.B.5 were marked. After meticulously going through the evidence both oral and documentary, the learned trial Judge came to the conclusion that there is a prima facie case made in favour of the plaintiff to grant injunction, had decreed the suit thereby granted permanent injunction as prayed for in favour of the plaintiff. Aggrieved by the findings of the learned Trial Judge, the defendants had preferred an appeal before the first appellate Court in A.S.No.108 of 1997 on the file of the Principal District Judge, Erode. The learned first appellate Judge after giving due deliberations to the submissions made by the learned counsel on both sides and after going through the evidence both oral and documentary has come to the conclusion that the findings of the learned trial Judge is not based on any material, thought fit that the findings of the trial Judge requires interference had allowed the appeal thereby setting aside the decree and judgment of the learned trial Judge in O.S.No.190 of 1996 on the file of the Court of Principal District Munsif, Erode, which necessitated the plaintiff to approach this Court with this second appeal.
5.The following substantial questions of law arose for determination:-
1)Whether the decree and judgment of the Lower Appellate Court is an error in law for declining to give importance to the intention of the parties and recitals in Ex.A.1?
2)Whether on the facts and circumstances of the case and in the light of Exs.A.1, A2, A8, A9 and Ex.B.5 and the admission of D.W.1, the findings of the Lower Appellate Court is correct in law for holding that the respondents are also having lawful interest over the suit property?
3)Whether the findings of the Lower Appellate Court is correct in law, when the parties to the document, Ex.A.1 agreed to abide by the recitals and stopped from varying the terms?
6.Substantial Question of Law No.1:- Ex.A.1 dated 21.9.1955 is a partition deed entered into between Pongiyanna Gounder (1) S/o.Chinnathambi Gounder and his brother Marappa Gounder's sons Appachi Gounder and Thulasimany Gounder (D4). The admitted genealogy tree is as follows:-
Chinnathambi Gounder ___________________________________ Pongiyannagounder(1) Marappagounder ___________________ Pongiyannagounder(2) Chinnathambi Palanisamy(plaintiff) ______________________________ Appachigounder Thulasimani(D4) Muthusamy(D1) Viswanathan(D2) Rathinasamy(D3) _____________________________ Thangamuthu(D5) Planisamy(D6) Sivanathan @ Jaganathan (D7) Under Ex.A.1, 'A' schedule to Ex.A.1 was allotted to Pongianna Gounder (1) and 'B' schedule to Ex.A.1 was allotted to Appachi Gounder and Thulasimani Gounder (D4). The plaintiff is the grand-son of Pongianna Gounder (1), who was allotted 'A' schedule to Ex.A.1. After 'A' & 'B' schedule properties, a provision has been made under Ex.A.1 for the convenient enjoyment of their respective shares of the properties allotted to Pongianna Gounder(1) and Appachi Gounder and Thulasimani Gounder (D4), which runs as follows:-
"fr 67 be fhiyf;F bry;y fr 58/63 be fhiyfspd; fpHf;F ntyp Xukhf 3 KH mfyj;jpy; bry;Yk; khKy ,l;nkhpapy; brd;W kWkoa[k; fhiy fUg;gz ft[z;ld; gphpt[f;F tlg[ukhf A B bcoa[ypy; fz;lth;fs; gphpt[fspy; nkw;fpy; brd;W gpd; bjw;fpy; fUg;gz ft[z;l;d gphpt[ ntyp Xukhf A B. bcoa[ypy; fz;lth;fs; gphpt[fs; tHpahf brd;Wk; kWgo[a[k; fhiy fUg;gz ft[z;ld; gphpt[f;F (bjw;F nty[ Xukhf fpHf;fpy; brd;Wk; kWgoa[k; bjw;fpy; brd;Wk; B bco[a[ypy; fz;lth; gphptpy; brd;Wk; gpd;Dk; 68B fhiyapy; A bcoa[ypy; fz;lth; gphptpy; bjw;fhf brd;Wk; kWgo fpHf;fhf brd;Wk; 64 B. fhiy nkw;F ntyp Xukhf 67 be fhiy B. bcoa[y; jhuh; gphptpd; nkw;F ntyp Xukhf 67 be .. bcoa[y;jhuh; gphptpw;Fk; A. bcoa[y; jhuh; gphptpw;Fk; MLkhL kdpjh;fs; bry;tjw;fhft[k; ,l;nlhp Muhk;gpf;Fk; ,lk; Kjw;bfhz;L Koa[k; ,lk;tiu 3 KH mfyj;jpy; ehk; ,l;nlhp nghl;Lf;bfhs;s ntz;oaJ."
The plaintiff has scheduled to the plaint the above said common pathway accesses provision made under Ex.A.1 as plaint schedule property even in the cause of action column the plaintiff would state in the plaint that while the plaintiff was walking through the suit pathway on 21.1.1996 to reach the suit property, the defendants came with band of rowdies and made an attempt to prevent the plaintiff from using the suit pathway and cart-track. The above said recitals extracted above will not through any light to the fact whether there was any pathway or cart-track formed by the plaintiff with the width of 3 yards as agreed upon between the parties under Ex.A.1. To prove that such a pathway with 3 yards width is in existence the plaintiff has produced Ex.A.7 to A.9. Ex.A.7 is the plaint filed in O.S.No.651 of 1995, a suit between the D1 to D4 herein and one Kongu Vellalor Institute of Technology Trust, the vendees for a portion of the properties allotted to their father Pongianna Gounder (2) under Ex.A.2-partition deed dated 16.09.1964 entered into between Pongianna Gounder(2) and his brother Chinnathambi Gounder, under which 'A' schedule to Ex.A.2 was allotted to plaintiff;s father Pongianna Gounder(2) and 'B' schedule to Ex.A.2 was allotted to Chinnathambi Gounder. Besides scheduling 'A' schedule to Ex.A.2 as plaint schedule, the plaintiff has also inducted a provision under Ex.A.1 for easy access to their respective shares of the sharers in the properties allotted under 'A' & 'B' schedule under Ex.A.1 ie., a pathway with 3 yards width. Even under Ex.A.1 it has been clearly stated that such a pathway with 3 yards width is to be provided in future to enable the sharers under Ex.A.1 to get access to their respective shares allotted under Ex.A.1. It is the definite case of the plaintiff that only while he was walking in the said pathway on 21.1.1996, the defendants have obstructed him. There is absolutely no evidence on record to show, where the said pathway with 3 yards width was formed in the plaint schedule property. It is the admitted case of the plaintiff that after Ex.A.2 partition between Pongianna Gounder(2) ie., the father of the plaintiff and his uncle Chinnathambi Gounder, the plaintiff had executed a sale deed in respect of a portion of the property allotted to the plaintiff's father under Ex.A.2, to Kongu Vellalor Institute of Technology Trust. As P.W.1, in the cross-examination, the plaintiff would admit that the vendees under him have put up fencing in the alleged pathway ie., within the property purchased in the plaint schedule property from the plaintiff. But the plaintiff has not scheduled the property admittedly sold by him to the said Kongu Vellalor Institute of Technology Trust, in the plaint schedule property. There is absolutely no material placed before the trial Court to identify the property in possession and enjoyment of the plaintiff after the execution of the sale deed in favour of the said Kongu Vellalor Institute of Technology Trust after Ex.A.2 partition.
6(a)The learned counsel appearing for the appellant relying on 2008 (4) SCC 594 [Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by Lrs. And others], would contend that prohibitory injunction relating to immovable property can be granted on the basis of possession only and that the question of title need not be gone into in a suit for bare injunction. The ratio decidendi in the said ratio runs as follows:-
"(a)Where a cloud is raised over the 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 had to sue for possession with a consequential injunction. 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.
A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown.
(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). 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 straightforward, 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 the plaintiff to a more comprehensive declamatory suit, depending upon the facts of the case. "
There cannot be two opinion with regard to the said proposition of law laid down in the above said ratio. The question herein is whether the plaintiff has scheduled to the plaint the property in his possession. Admittedly the plaint schedule to the plaint the property including the property which he had already sold to Kongu Vellalor Institute of Technology Trust. So if an injunction is granted in favour of the plaintiff on the basis of his oral evidence then it will amount to recongnising his possession in respect of the property in which he has no right, title or possession, in the absence of the real owner of a portion of the property schedule to the plaint ie., Kongu Vellalor Institute of Technology Trust. Only on the said ground the learned first appellate Juge has allowed the first appeal thereby dismissed the suit filed by the plaintiff. Hence, I hold on Substantial Question of Law No.1 that the lower appellate Court has not committed error in law for declining to give importance to the intention of the parties and recitals in Ex.A.1.
7.Substantial Question of Law No.2:- Ex.A.1, A2, A8, A9 and Ex.B.5 and the admission of D.W.1, to the effect that already the plaintiff had executed the sale deed (which was not produced before the trial Court) in respect of a portion of the property schedule to the plaint in favour of Kongu Vellalor Institute of Technology Trust, as correctly obsered by the first appellate Jugdge, the plaintiff is not in a position to saw in which place exactly scheduled to the plaint the occurrence ie., interference by the defendants in using the pathway had taken place on 21.1.1996. So in view of the my discussion in the earlier paragraphs I hold on Substantial Question of law No.2 that the facts and circumstances of the case and in the light of Exs.A.1, A2, A8, A9 and Ex.B.5 and the admission of D.W.1, the findings of the lower appellate Court is correct in law for holding that the respondents are also having lawful interest over the suit property, if not over the entire property, because even as per Ex.A.1 three yards pathway is to be used in common for the sharers under Ex.A.2 have access to their respective properties.
8.Substantial Question of Law No.3 :- In view of my findings and discussion in the Substantial Question of Law No.1, I hold on Substantial Question of Law No.3 that the findings of the lower appellate Court is correct in law when the parties to the document Ex.A.1 agreed to bind by the recitals and that the plaintiff after scheduling the property to the plaint in consonant with Ex.A.2 has failed to schedule only the property in his possession after executing the portion of the property already sold to the Kongu Vellalor Institute of Technology Trust. So the suit for injunction only specifying or identifying the property in possession of the plaintiff after excluding the portion of the property admittedly sold to the said Kongu Vellalor Institute of Technology Trust, is bad in law as correctly held by the learned First Appellate Judge.
9.In fine, the appeal fails and the same is dismissed confirming the decree and judgment in A.S.No.108 of 1997 on the file of the Court of Principal District Judge, Erode. No costs.
02.09.2008 Index:yes/No Internet:yes/No ssv To
1.The Principal District Judge, Erode.
2.The Principal District Munsif, Erode.
3.The Record Keepar, V.R. Section, High Court, Madras.
A.C.ARUMUGAPERUMAL ADITYAN, J.
ssv S.A.No.203 of 1999 02.09.2008