Madras High Court
S.Ramakrishnan vs M.Ramadas (Died) on 25 July, 2025
2025:MHC:1767
W.P.(MD)No.21648 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 11.06.2025
PRONOUNCED ON : 25.07.2025
CORAM
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
S.A.(MD)No.201 of 2018
and
C.M.P.(MD)No.5302 of 2018
S.Ramakrishnan ... Appellant
vs
M.Ramadas (Died)
2.R.Balachandan ...Respondents
(R2 was impleaded as legal representative of the deceased sole respondent
vide order of this Court, dated 26.02.2025 made in C.M.P.(MD)Nos.2327,
2329 and 2330 of 2025)
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree, dated 27.11.2017 passed
in A.S.No.35 of 2013 on the file of the I Additional Subordinate Court,
Nagercoil, confirming the judgment and decree, dated 28.02.2013 passed
in O.S.No.441 of 2005 on the file of the Principal District Munsif Court,
Nagercoil.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm )
W.P.(MD)No.21648 of 2022
For Appellant : Mr.V.Meenakshi Sundaram
For Respondents : Mr.G.Prabhu Rajadurai
*****
JUDGMENT
The un-successful plaintiff has preferred the above appeal. The Second Appeal has been filed challenging the judgment and decree, dated 27.11.2017 passed in A.S.No.35 of 2013 on the file of the I Additional Subordinate Court, Nagercoil, confirming the judgment and decree, dated 28.02.2013 passed in O.S.No.441 of 2005 on the file of the Principal District Munsif Court, Nagercoil.
2.For the sake of convenience, the parties are referred to as per the litigative status before the trial Court.
Case of the plaintiff:
3.According to the plaintiff, he had purchased the suit schedule property through a registered sale deed, dated 30.08.2001 in Ex-A1 from one Thangaraja son of Kandhasamy represented by his power holder, Antony. Pursuant to his purchase, revenue records were mutated in his name and he 2/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 is in possession and enjoyment of the suit property. It is the further case of the plaintiff that the defendant, who is having no right over the suit property and who is having property adjacent to the suit schedule property of the plaintiff, had attempted several times to encroach into the suit property. The suit property is surrounded by well bounded boundaries in which, the plaintiff is in enjoyment. While so, on 15.07.2005, the defendant attempted to destroy the boundary line to encroach upon the plaintiff's property, which was thwarted by the plaintiff by his timely intervention. On the complaint given by the plaintiff, the Police had also enquired into and warned the defendant. However, in spite of the same, again on 16.07.2005, the defendant along with his men attempted to enter into the suit property. Hence, the plaintiff had come up with the suit for permanent prohibitory injunction.
Case of the defendant:
4.The defendant resisted the suit categorically denying the title of the plaintiff over the suit property. It is the specific contention of the defendant that the plaintiff has fabricated and created documents to create a title. It is the categorical contention of the defendant that he is the 3/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 absolute owner and is in possession and enjoyment of the suit property based on the sale deed dated 13.04.2005 in Ex.B5, executed in his favour and the subsequent patta issued.
5.According to the defendant, a larger extent of the property situated in old S.No.1860 corresponding to Re.Survey.No. M4-12/8 of Vadiveeswaram Village, originally belonged to one Saravana Panicker. He became the absolute owner through purchase and patta has been issued in his name. As early as in the year 1938, during his life time, Saravana Panicker had executed a gift deed in Ex-B24 in Doc.No.2298/1113M.E., on the file of the Sub Registrar, Nagercoil in favour of his daughter, Challemmai. In the gift deed, Saravana Panicker had retained a life time interest in his favour and in favour of his wife, Tmt.Valliammai. As such, pursuant to their death, Chellammai became the absolute owner of the property in old S.No.1860 measuring to an extent of 1.67 acres on the northern side. Chellammai divided the property into various plots by providing 25 links pathway in the centre portion and 8 links pathway on the southern side. From out of which, Chellammai sold Plot No.4 from west to eastern side in the year 1966 in favour of one Ayyappan Pillai; Plot 4/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 No.1 was sold to one Dr.A.D.Ramamoorthy and Plot Nos.2 and 3 had been sold to one Dharmaraj Nadar in the year 1966; and Plot No.5 was sold to one Srikandan Nair in the year 1968, who in turn, sold the same to one Chellakkan in the year 1976.
6.Ayyappan Pillai, who purchased the Plot No.4, which is the suit property, died in the year 2000 leaving behind his wife and his minor daughter Salu, who inherited the property. The legal heirs of Ayyappan Pillai executed a power of attorney on 05.11.2004 in Ex-B3 in favour of one Kasi Vishvanathan. The power was executed for the suit property having old S.No.1860 in Re.S.No.M4-12/8A. Based on which, a sale deed was executed on 12.11.2004 in Ex-B4 in favour of one Thamayanthi. Patta was mutated in her favour and she was in enjoyment of the suit property by paying taxes.
7.Being the absolute owner, the said Thamayanthi, vendor of the defendant, had executed a sale deed, dated 13.04.2005 in Doc.No.1014/05 on the file of the Sub Registrar, Nagercoil, in Ex-B5 in favour of the defendant. The sale deed in favour of the defendant and all the title 5/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 documents is in respect of the suit property having old S.No.1860, Re.S.No.M4-12/8A. The revenue records were mutated in favour of the defendant and patta and chitta stand in the name of the defendant based on which, the defendant is paying property tax for the suit property and is in possession and enjoyment of the suit property.
8.It is the further case of the defendant that the sale deed relied on by the plaintiff shows that it is in respect of old S.No.1860/105 and Re.S.No.M4-12/8 and the fact remains that there is no such property having old S.No.1860/105 in Vadiveeswaram Village. Further, only 1.67 acre is available in old S.No.1860 and the sale deed, it is mentioned as 1.57 acres and when Chellammai has left 25 links as pathway, in the sale deed relied on by the plaintiff, it is mentioned as 20 feet pathway and when the sale deed refers to Plot No.2, which is vested with one Dr.A.D.Ramamoorthy, the present suit is filed in respect of Plot No.4.
9.Since the plaintiff along with his men had fabricated and created documents to swindle the property of the defendant, the defendant had reserved the right to take appropriate criminal action. Further, as per the 6/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 document, the plaintiff has purchased the property from one Antony son of Sivalingam Nadar, being the power holder of K.Thangaraja. But it is not stated as to how K.Thangaraja got the property. No parent document for the suit property has been produced. The document relied upon by the plaintiff is fabricated and the said K.Thangaraja is a fictitious person and further, the plaintiff is not in possession of the suit property on the date of filing of the suit and therefore, the plaintiff is not entitled for the relief of injunction sought for and hence, prayed for dismissal of the suit. Issues and Trial:
10.The trial court framed the following issues:
“1.jhth nrhj;J thjpfs; rl;lg;G+h;t RthjPdj;jpy; cs;sjh?
2.thjp Nfhhpagb epue;ju cWj;Jf; fl;lis ghpfhuk;
fpilf;fj;jf;fjh?
3.NtW vd;d ghpfhuq;fs; thjpf;F fpilf;fj;jf;fJ?”
11.Based on the above issues framed, the parties entered into trial. During trial, the plaintiff examined himself as PW-1 and one Revathy, wife of the power holder, Antony, as PW-2. Michael, Tipper Lorry owner was examined as PW-3 and one Nagalingam, Village Administrative Officer, as 7/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 PW-4 and Ex-A1 to Ex-A22 were marked. On the side of the defendant, the defendant examined himself as DW-1 and marked Ex-B1 to Ex-B34. An Advocate Commissioner was appointed and the Advocate Commissioner's report and plan were marked as Ex-C1 and Ex-C2.
12.The trial Court, after analyzing the documents and evidences and also by placing reliance on the decision of the Hon'ble Supreme Court in Anathula Sudhakar vs P.Buchi Reddy (Ded) by LRs and others, reported in (2008) 4 SCC 594, since the suit property being a vacant land, incidentally, went into to find out who has a better title, came to the conclusion that the defendant is having title to the suit property and further, the documents relied upon by the plaintiff are fabricated and the plaintiff was not having any right over the suit property. The trial Court on finding that the defendant is in possession of the suit property, dismissed the suit.
13.Assailing the same, the plaintiff had preferred an appeal. In the appeal, the plaintiff had filed interlocutory applications in I.A.Nos.26 and 61 of 2016 and the defendant filed an interlocutory application in I.A.No. 8/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 63 of 2016 under Order 41 Rule 27 to receive documents annexed with the petition, as additional documents. Further, the plaintiff had filed I.A.No. 134 of 2017 under Order VI Rule 17 CPC praying for amending the plaint and to include the relief of declaration.
14.The lower appellate Court framed the following points for consideration in the appeal:
“1.tof;Fiur; nrhj;jpy; thjpf;F rl;lg;G+h;t chpk%yk; kw;Wk; mDgtk; ,y;iy vd tprhuiz ePjpkd;wk; KbT nra;Js;sJ rl;lg;gb rhpahdjh?
2.thjp jug;gpy; jhf;fy; nra;ag;gl;Ls;s ,ilf;fhy kD I.v.vz;.61/2016> 26/2013> 134/17 mDkjpf;fjf;fjh?
3.gpujpthjp jhf;fy; nraJs;s ,ilf;fhy kD I.A. 63/2016 mDkjpf;fjf;fjh?
4.,k;Nky;KiwaPL mDkjpf;fjf;fjh?”
15.The lower appellate Court had taken the interlocutory applications along with the appeal and by judgment and decree, dated 27.11.2017, dismissed the appeal and also the interlocutory applications confirming the judgment and decree of the trial Court. The lower appellate Court also found that from the documents filed, it has not been established that 9/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 Thangaraja is the son of Chellammai and the details found in the document are not based on the available factual and admitted source of title to the suit property. Assailing the concurrent finding on facts, the plaintiff has preferred the above Second Appeal.
Second Appeal:
16.By order, dated 09.04.2025, this Court admitted the appeal on the following substantial questions of law:
“1.When the plaintiff filed amendment application to include the relief of Declaration at the First Appellate Stage in I.A.No.134 of 2014, whether the First Appellate Court is correct in taking up the amendment application along with the disposal of first appeal and also decides the same on the merits of the main Appeal?
2.When the defendant raises cloud upon the plaintiff's title, in the present case doubt regarding identify of plaintiff's vendor Thangaraja, whether the courts below are correct in deciding the suit for injunction on the basis of adjudication of title of the parties without relegating the parties to comprehensive title suit?.
3. Whether the approach of the First Appellate Court is correct in rejecting I.A.No.26 of 2013, I.A.No.61 of 2016 and I.A.No.63 of 2016 under Order 41 Rule 27 of C.P.C., after deciding the issues involved in the Appeal Suit?
Arguments:
17.Mr.V.Meenakshi Sundaram, learned Counsel for the appellant argued that the plaintiff had purchased Plot No.2 measuring 5 cents from west to 10/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 east, which is evidenced by document in Ex-A1, based on which, the relief is also sought for in the suit. Whereas, the document relied upon by the defendant in Ex-B5 is in respect of Plot No.4 measuring 5 cents from west to east. It is his specific contention that when the plaintiff had purchased and had come up with a suit for Plot No.2, the defendant cannot deny the title of the plaintiff, when admittedly, he had purchased only Plot No.4, which is not the suit property. The learned Counsel further contended that when the plaintiff had only come up with the suit for injunction, the Courts below were wrong in deciding the title and when there are contentious issues covered and involving complicated question of facts relating to title, the Courts below ought to have relegated the parties to file a comprehensive suit for declaration, instead of deciding the title in the injunction suit. He further submitted that in the absence of framing an issue in respect of title and let in evidence, the issue of title decided by the Courts below is erroneous and not in line with the settled proposition based on the decisions of the Hon'ble Supreme Court and therefore, perverse.
18.It is the further vehement contention of the learned Counsel for the 11/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 appellant that the lower appellate Court was not right in listing the point for determination in correct sequence and further the interlocutory application filed by the plaintiff seeking for amendment of plaint ought to have been decided and the lower appellate Court was wrong in taking the interlocutory application along with the appeal. It is his vehement contention that the lower appellate Court ought to have either allowed or dismissed the interlocutory application to amend the plaint on its own merits before deciding the appeal, but however, without doing so, the lower appellate Court decided the appeal first and had incidentally, held that the interlocutory application for amendment is not necessary.
19.The learned Counsel for the appellant relied on the decision of the Hon'ble Supreme Court in Anathula Sudhakar case referred above, and contended that the complicated question of facts can be decided only in a declaration suit and cannot be incidentally decided in a suit for bare injunction. The learned Counsel also further contended that even though the written statement was filed in the year 2006 denying the title of the plaintiff, still, the interlocutory application filed in the appeal in the year 2014 seeking for amendment could be allowed, as the amendment if 12/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 allowed, will relate back to the date of the suit and therefore, it is to be construed that the original suit itself was filed for declaration and therefore, the relief is well within the period of limitation.
20.It is his further contention that the present suit is filed for bare injunction on payment of Court fee under Section 27(c) of the Tamil Nadu Court Fees and Suit Valuation Act, 1965, merely based on the possession and in such a suit, the only issue of possession can be gone into. Whereas, only when a suit is filed for injunction claiming possession based on title, Court fee is to be paid under Section 27(a) of the Court Fee Act, wherein the plaintiff pays the Court fees on the market value of the property, the Court could go into the incidental question of title. The learned Counsel made an appeal that the plaintiff should be allowed to amend the plaint seeking the relief of declaration and the parties must be allowed to let in evidence and the question of title can be decided and sought for allowing the appeal.
21.Per contra, Mr.G.Prabhu Rajadurai, learned Counsel for the respondent contended that since the suit property is a vacant site, for which 13/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 a suit for injunction is filed, as per the settled proposition even in Anathula Sudhakar case, the trial Court was right in incidentally going into to see the title of the parties to the suit by which alone, the relief sought in the suit could be decided. The learned Counsel further contended that the parties have pleaded in respect of title and have understood the issues framed and have let in evidence to establish the rival title and based on the evidence let in, the Courts below have considered the title of the parties and when the title has been considered and the suit came to be rejected, the amendment sought for by the plaintiff at such a belated stage in the appeal, is both un-sustainable and unnecessary, which the lower appellate Court had rightly rejected.
22.It is his further contention that there was nothing wrong on the part of the lower appellate Court in taking the interlocutory applications along with the appeal. On hearing the appeal, only if the Court comes to a conclusion that the relief sought for in the interlocutory applications is necessary, then it will be allowed and based on which, the subsequent proceedings would be carried out and the appeal would be eventually decided. The learned Counsel by placing reliance on the documents 14/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 vehemently contended that in the sale deed in Ex-A1, it is referred that Thangaraja is the only son of Chellammai and the property was the ancestral property of Chellammai. When the power of attorney was executed on 27.08.2001 in Ex-A10, the power was released from registration only on 29.08.2001. But, however, the stamp paper in Ex-A1 was purchased on 27.08.2001 itself and if Thangaraja was able to present for executing the power on 27.08.2004, he could have himself executed the sale deed on 30.08.2001. The learned Counsel further contended that from the evidence of PW-1, it reveals that he does not know Thangaraja at all and it is evidenced that Thangaraja is a fictitious person and the documents are created and the purchase by the plaintiff is not bona fide.
23.It is his further contention that out of the five plots, Plot Nos.1 to 3 belonged to the same group of persons, which has been compounded together and Plot No.4, which belongs to the defendant in the field looks like it is Plot No.2, since it is located adjacent to the bigger compound enclosing Plot Nos.1 to 3. The report and plan of the Advocate Commissioner in Ex-C1 and Ex-C2 clearly establish about the same and the plaintiff, who created the documents with the connivance of the power 15/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 agent, Antony, has mistakenly thought that the suit property is Plot No.2. It is his further contention that the fact that the plaintiff made no attempt to trace the said Thangaraja, who is the vendor, to bring to the Court to give evidence and also he has not chosen to examine the power of attorney, Antony itself and PW-2, who was wife of the power holder, has no personal knowledge about the power executed by Thangaraja, to Antony, all show that the plaintiff has not brought in the best evidence available, on whom the onus was to discharge the burden, as per Section 101 of the Indian Evidence Act, 1872.
24.The learned Counsel also submitted that the sale deeds for all the five plots are available before the Court in Ex-B26, Ex-B15, Ex-B2 and Ex- B14 (Ex-A8). All these sale deeds are of the year 1966 and the total lands in Plot Nos.1 to 3 covered in Ex-B26 and Ex-B15 is compounded together and it tallies with the land area. Further, the balance land in Ex-B2 and Ex-B14 (Ex-A8) tallies with the concerned document and the plots available in the field.
25.The learned Counsel further by placing reliance on the findings of 16/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 the lower appellate Court submitted that Chellammai, original owner, wife of Arumugam, who had two sons, Mahalingam and Saravana Perumal, who have all signed as witnesses along with their father in the sale deed and in this document, there is no son by name, Thangaraja and the document relied upon by the plaintiff shows that Thangaraja is the only son of Chellammai and further, it is the ancestral property of Chellammai, which are all factually incorrect. When the plaintiff had, in fact, filed the document in Ex-A8, which is completely contrary to the recitals in Ex-A1 and who was aware of this consciously, in spite of the written statement filed, has not chosen to seek for declaration, but on the contrary had filed documents and let in evidence on understanding the issues to establish his title and having participated in the trial, the trial Court, as the suit property being a vacant land, had incidentally gone into title and had found that the defendant has valid title to the suit property and have rightly dismissed the suit. The plaintiff, who has not come to the Court with clean hands and has failed to give best evidence available, as consistently held by the Courts, is not entitled for the relief of injunction and further submitted that the defendant cannot be harassed and for the lacunae on the part of the plaintiff, cannot be allowed to take advantage by litigating the same issue 17/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 by picking the loopholes and sought for dismissal of the appeal. Analysis:
26.Heard the rival submissions and perused the materials available on record.
In Re -2:
27. The plaintiff had come up with the suit for permanent injunction based on title through a sale deed in Ex-A1. The defendant had denied the title of the plaintiff and claims title over the suit property and also to be in possession and enjoyment, based on the sale deed in his favour in Ex-B5, tax receipts in Ex-B6 to Ex-B9 and the patta in Ex-B10.
28.Before adverting to the further facts of the case, the law laid down in this regard is to be seen for better understanding.
29.The Hon'ble Supreme Court in the case of Anathula Sudhakar vs P.Buchi Reddy (Dead) by LRs and others, reported in (2008) 4 SCC 594, had considered in detail, as to when a mere suit for permanent injunction 18/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 could be laid and when it is necessary to file a suit for declaration. In paragraph Nos.15 and 16 of the said decision, the Hon'ble Supreme Court observed that in a suit for permanent injunction to restrain the defendant from interfering, the plaintiff will have to first establish that as on the date of the suit, he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. In case of building and agricultural lands, the possession could be established. But in case, if the property is a vacant site, in such cases, the principle is that possession follows title. In such a case, even though a suit relating to a vacant site is for mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession, even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where Court feels that parties had not proceeded on the basis that title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and 19/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 consequential reliefs. Paragraph Nos.15 and 16 of the decision is extracted hereunder for easy reference:
“15. In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.”
30. After analyzing the above, the Hon'ble Supreme Court held the position in regard to suit for prohibitory injunction relating to movable 20/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 property as follows:
“21.To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(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 has 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.
(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 [Annaimuthu Thevar v. 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. 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 21/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 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 declaratory suit, depending upon the facts of the case.”
31. In the case of Jharkand State Housing Board vs Didar Singh and another, reported in (2019) 17 SCC 692, the Hon'ble Supreme Court held that in each and every case, where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases, the plaintiff has to seek the relief of declaration. However, if the defendant raises a genuine dispute with regard to title and a cloud is raised over the title of the plaintiff, then necessarily in those circumstances, the plaintiff cannot maintain a suit of bare injunction. In paragraph Nos.10 to 12, the Hon'ble Supreme Court held as follows:
“10.The issue that fall for our consideration is: “Whether the suit for permanent injunction is maintainable when the defendant disputes the title of the plaintiff?”
11.It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.
12.In the facts of the case the defendant Board by relying upon the land acquisition proceedings and the possession certificate 22/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The courts below erred in entertaining the suit for injunction.”
32. Further in the case of T.V.Ramakrishna Reddy vs M.Mallappa and another, reported in (2021) 13 SCC 135, the Hon'ble Supreme Court relied on Anathula Sudhakar's case and held that the suit for mere injunction is not maintainable, where the plaintiff has no clear title or it is under cloud and the issue with regard to the title can be decided only after a full- fledged trial on the basis of the evidence, that would be led by the parties in support of their rival claims.
33.Further, in the case of Kayalulla Parambath Moidu Hah vs Namboodiyil Vinodan, reported in (2022) 20 SCC 310, the Hon'ble Supreme Court referring to Anathula Sudhakar’s case reiterated that if the plaintiff's title to the property involves complicated question of facts and law, then the trial Court would relegate the parties to the remedy by way of comprehensive suit for declaration of title in a full-fledged trial. However 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 23/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 are exceptions to the normal rule that question of title will not be decided in a suit for injunction.
34.Keeping the above principles in mind, this Court would proceed to analyze the facts of the present case.
35.The fact that the title to the suit property originally vested with one Chellammai is not in dispute. The plaintiff had come up with the suit for mere injunction claiming right to the property based on the sale deed executed in his favour in Ex-A1, dated 30.08.2001. The plaintiff had filed the suit on 19.07.2005. The defendant had filed the written statement on 17.04.2006, denying the title of the plaintiff to the suit property. The defendant had contended that the vendor of the plaintiff is a fictitious person and the document is created. The defendant claimed title to the suit property through a sale deed, dated 13.04.2005 in Ex-B5, executed in his favour by one Thamayanathi. The defendant also relied on patta issued in his favour in Ex-B10 and the property tax paid by him, evidencing his possession in Ex-B6 and Ex-B9.
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36.In the suit filed for mere injunction, there is a categorical denial by the defendant regarding title of the plaintiff to the suit property. The defendant had clearly raised a cloud over the title of the plaintiff by claiming exclusive title through a registered sale deed in his favour in Ex-B5, patta in Ex-B10 and the property tax receipts in Ex-B6 to Ex-B9, along with all the parent title deeds relating to the suit property.
37.As per the law laid down in Anathula Sudhakar’s case, when the title of the plaintiff is disputed and the defendant had raised a cloud over plaintiffs title, the suit filed for mere injunction is not maintainable. When admittedly the documents relied on by the defendant is traced to the admitted owner Chellammai and the parent title deeds are filed in sequence, the denial is true and germane and a genuine cloud has been raised on the plaintiffs title to the suit property.
38.Now, when a cloud has been raised over the plaintiffs title, should the trial court ought to have relegated the plaintiff to file a comprehensive suit, without going into the issue of title in the suit for mere injunction. 25/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022
39.Admittedly, the suit property is a vacant site. As per the decision in Anathula Suthakar's case, when the suit is filed for mere injunction and the suit property is a vacant land, the Court can incidentally go into the question of title, as in the case of vacant site, the issue of title directly and substantially would arise for consideration, as without rendering a finding therein, it will not be possible to decide the issue of possession.
40.Since the suit property is a vacant land, the Courts below have incidentally gone into the issue of title for the purpose of deciding the issue of possession. Even for incidentally going into the issue of title, it has been held that a finding on title cannot be rendered in a suit for injunction, unless there are necessary pleadings and appropriate issues regarding title, either specifically or impliedly, as noticed by the Hon'ble Supreme Court in Ananimuthu Thevar vs Alagammal reported in 2005 (6) SCC 202.
41.It is held that in the absence of necessary pleadings and issues and if the matter involved complicated questions of fact and law, the Court will 26/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 relegate the parties to the remedy by way of comprehensive suit for declaration. But however, when there are necessary pleadings regarding title and appropriate issue regarding title on which parties lead evidence and the issue involved is simple and straight forward, the Court may decide upon the issue of title. It is an exception to the normal rule and the Courts should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to a comprehensive suit.
42.The plaintiff had specifically pleaded in the plaint that he had purchased the suit schedule property on 30.08.2001 (Ex-A1) from one Thangaraja son of Kandhasamy and based on the sale deed, revenue records have been mutated in his favour. The defendant, who is having no right over the suit property and who is having property adjacent to the plaintiff's property, ie., the suit property, is attempting to encroach upon the suit property. As such even per the pleadings, the plaintiff claims and asserts his right and title to the suit property particularly based on the sale deed executed in his favour in Ex-A1 and also the mutation of revenue records in his favour. It is specifically averred that since the defendant is attempting to encroach on the plaintiff's property, the suit for injunction is 27/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 filed. Now, the defendant had filed a written statement denying the title of the plaintiff over the suit property and specifically averred that the sale deed in Ex-A1 relied upon by the plaintiff is fabricated and the defendant claims exclusive title through Ex-B5 and the consequential patta and property tax receipts. Therefore, there are sufficient and necessary pleadings by either side claiming their exclusive title and asserting their title over the suit property.
43.As extracted above, the trial Court has framed issue No.1 to the effect that whether the plaintiff is in lawful possession of the suit property and the issue No.2 refers as to whether the plaintiff is entitled to grant of permanent injunction, as prayed for.
44.The first issue as to whether the plaintiff is in lawful possession of the suit property would only impliedly mean, as to whether the plaintiff has a title or right over the suit property based on which he claims possession. When it is found that the pleadings in respect of title are available and also there is a specific implied issue framed by the trial Court regarding title of 28/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 the plaintiff over the suit property for being in lawful possession, the Courts are not barred from adjudicating or rendering a finding on the question of title in a suit for injunction, of-course, subject to the other restrictions. To be more precise, even when there are necessary pleadings and issues available but if the issue involves complicated questions of fact and law, the Court has to relegate the parties to the remedy by way of comprehensive suit.
45.Now, it has to be seen that whether the issue involved complicated questions of fact and law or the issue involved is simple and straight forward for the Court to decide upon the issue regarding title in the suit for injunction, as an exception to the normal rule.
46.The following documents are crucial for arriving at a decision in this regard, “(1)Sale deed, dated 30.08.2004 executed in favour of the plaintiff in Ex-A1;
(2)Sale deed, dated 23.05.1966 executed in favour of Iyyappan Pillai in Ex-A7=Ex-B2 (Plot No.4);
(3)Sale deed, dated 26.07.1968 executed in favour of Srikandan Nair in Ex-A8;
29/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 (4)Sale deed, dated 06.11.1976 executed in favour of Chellakkan in Ex-A9-Ex-B14 (Plot No.5);
(5)Power of attorney, dated 27.08.2011 in favour of Antony in Ex-A10;
(6)Sale deed, dated 07.03.1966 executed in favour of Dharmaraja Nadar in Ex-B15 (Plot Nos.2 and 3);
(7)Sale deed, dated 07.03.1950 executed in favour of Dr.A.D.Ramamoorthy) Ex-B26 (Plot No.1); and (8)Settlement deed, in the year 1938 executed by Saravana Panicker in favour of Chellammai in Ex-B24.”
47.From the above documents marked, it clearly emerges that originally one Saravana Panicker, through purchase was the owner of an extent of 1.67 acres of land in Old S.No.1860 in Re. S.No.M4-12/8 in Vadiveeswaram Village. Saravana Panicker executed a gift deed in Ex-B24 in the year 1938 in favour of his daughter, Chellammai. As per the gift deed, Saravana Panicker had retained life interest in his favour and in favour of his wife, Tmt.Valliammai. After the life time of Saravana Panicker and Valliammai, Chellammai admittedly became the absolute owner of the property. Chellammai had divided the land into plots, provided 25 links pathway in the centre and 8 links pathway on the southern side. Admittedly, there are five plots situated from west to east. 30/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 Chellammai had executed four sale deeds conveying all these five plots to the purchasers in the year 1966 and 1968 respectively.
48. As per the sale deed in Ex-B26, Plot No.1 had been sold by Chellammai in favour of Dr.A.D.Ramamoorthy. Plot Nos.2 and 3 has been sold to one Dharmaraja Nadar in Ex-B15; Plot No.4 has been sold in favour of Ayyappan Pillai in Ex-B2 and Plot No.5 has been sold in favour of Srikandan Nair in 1966, which has been subsequently conveyed to Chellakkan in Ex-B14 in the year 1976.
49. Ayyappan Pillai, who had purchased the property from one Chellammai in Ex-B2, died and his legal heirs have executed a power of attorney on 05.11.2004 for the property in Re.S.No.M4-12/8A in favour of one Kasi Vishvanathan. Subsequently, by a sale deed, dated 12.11.2004, in Ex-B4, the property had been conveyed in favour of one Thamayanthi in whose favour, patta has been issued in Ex-B11. The property was subsequently sold in favour of the defendant through a sale deed, dated 13.04.2005 in Ex-B5. The property conveyed is in old S.No.1860 with Re.S.No.M4-12/8A and patta has been issued in favour of the defendant in 31/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 Ex-B10.
50.Now, when admittedly, the title to the property is traced from Chellammai by both parties, the sale deed relied on by the plaintiff in Ex- A1, which was executed based on the power of attorney in Ex-A10, shows that the suit property belong to one Thangaraja, who is the only son of Chellammai and it is the ancestral property of Chellammai. The documents relied on by the plaintiff in Ex-A1 and Ex-A10 are completely contrary to the recitals in the documents filed by the plaintiff himself in Ex-A7 to Ex-A9. When the documents in Ex-A7 to Ex-A9 are of the year 1966, 1968 and 1976 respectively, the plaintiff has no explanation to offer as to how Thangaraja became the owner of the suit property and how he became the only son of Chellammai.
51. Even when the plaintiff was completely aware that the very documents relied on by him in Ex-A1 and Ex-A10 are contrary to other documents filed by him, he consciously choose to file the suit for mere injunction asserting his right and title through Ex-A1. Even when the defendant had come and resisted the title, the plaintiff did not choose to 32/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 amend the relief seeking for declaration. The plaintiff believed that he can succeed in the suit and there is no cloud raised on his title. In view of the sale deed in his favour in Ex-A1, based on the pleadings and issues framed, he let in evidence and had marked documents in Ex-A1 to Ex-A22. It is the consistent stand of the plaintiff that he has title to the suit property and the defendant, who is an adjacent land owner, is only trying to encroach upon the suit property and the plaintiff asserted title mainly on the ground that when his sale deed is for Plot No.2, the defendant, who was conveyed the Plot No.4, has no right over the suit property.
52. In fact, the plaintiff had let in oral evidence by examining himself as PW-1 and also the wife of the power holder, as PW-2, to assert his title. PW-2, who has no knowledge about the sale transaction or possession, was brought by the plaintiff to lead evidence to the effect that the suit property was conveyed in his favour by her husband. The plaintiff further had examined as PW-3, the Tipper lorry owner, who had allegedly carried soil for levelling the suit property and further examined the Village Administrative Officer as PW-4.
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53.From the above, it is evident that on the issue of title over the suit property, the plaintiff had let in oral as well as documentary evidences, which has also been controverted by letting in oral and documentary evidence by the defendant.
54.The fact remains that on the property being settled in favour of Chellammai, she sold five plots in the year 1966 and 1968 to four persons. Out of which, Plot No.4 was sold to Ayyappan Pillai in the year 1966 in Ex. B.2 After his death, the legal heirs of Ayyappan Pillai had sold Plot No.4 in Ex-B4 to Thamayanthi, who in turn sold the same to the defendant in Ex-B5. The title of the defendant over the suit property is simple and clear. From the documents filed by the plaintiff it could be seen that one Thangaraja executed a power in favour of Antony in Ex-A10 in the year 2001, based on which, a sale deed was executed immediately within three days in favour of the plaintiff and based on which, the present suit came to be filed. Neither Thangaraja nor Antony was before court and except referring him as only son of Chellamai and it is ancestral property, nothing is enclosed or found in the document.
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55. It is to be noted that as rightly referred to by the lower appellate Court, when as per the sale deeds in Ex-A7, Ex-A8, Ex-A9, Ex-B2, Ex-B3, Ex-B4, Ex-B5, Ex-B14, Ex-B15, Ex-B24, Ex-B26, Chellammai was the wife of Arumugam and she had two sons, Mahalingam and Saravana Perumal, who had all signed as witnesses in the documents by which the 5 plots were sold. When these facts are all available even from the documents filed by the plaintiff, the documents relied upon by the plaintiff in Ex-A10 and Ex-A1 shows that the suit property belonged to one Thangaraja, only son of Chellammai and it is the ancestral property is without any basis.
56. It has also been made explicitly clear from the Advocate Commissioner's report and plan in Ex-C1 and Ex-C2, that the Plots from 1 to 3 have now been vested with the same group and as such all the three plots have been compounded together. In view of the same, the plot purchased by the defendant bearing Plot No.4, looks as though it is second plot in the field. The plaintiff, who had come up with the power and the sale deed in Ex-A10 and Ex-A1, respectively, within a span of three days, had misunderstood from the field that the suit property is Plot No.2. 35/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 Further, the Advocate Commissioner's report and plan makes it clear that the total extent, which is compounded enclosing Plot Nos.1 to 3 corresponds to the extent of lands available in three deeds and the land available in Plot Nos.4 and 5 also correlate with the other two sale deeds.
57.As rightly defended and contended by the defendant, the plaintiff had created documents in Ex-A10 and Ex-A1, which also relate to only Plot No.2, which was admittedly sold by Chellammai in the year 1966 itself. The fact that the plaintiff, who had all these documents on hand and also after having been confronted with the denial, did not choose to even examine Antony, the power holder, who had executed the sale deed in his favour. To make things worse, PW-1 had admitted that he does not know Thangaraja at all and he had not even made any attempt to examine Thangaraja, his vendor, the alleged only son of Chellammai. As per Section 101 of the Indian Evidence Act, the burden was on the plaintiff to discharge his onus, which can be done through the best evidence available and on failure of which an adverse inference can be drawn under Sec.114 of the Evidence Act. But still, the plaintiff did not choose to examine his vendor and also the power holder, but rather choose to examine the wife of 36/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 the power holder.
58. In view of the above facts and the documents available, there is no complicated question of fact and law involved relating to the title for the Court to relegate the party to file a comprehensive suit for declaration, but the facts and circumstances of the present case, as indicated above, would come within the exception to the normal rule. In view of the fact that necessary pleadings regarding title and also implied issue relating to title are available and the parties have let in evidence in respect of the issue of title, the issue involved is simple and straight forward, which makes it evident and amply clear that the properties from Chellammai had passed on to five purchasers and the defendant had purchased the Plot No.4 from one of the purchaser through a registered sale deed and patta has been issued both in favour of his vendor and also in favour of the defendant and he is in possession of the property by paying necessary property taxes through documents filed in Ex-B6 to Ex-B9. Whereas, the right and title asserted by the plaintiff through Ex-A1 and Ex-A10, do not refer to the source of title and simply states that one Thangaraja is only son and it is the ancestral property of Chellammai and the plaintiff did not choose to 37/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 even examine Thangaraja to contend that he is the only son and owner of the suit property.
59. In view of the above finding, I am of the considered opinion that the facts and circumstances of the case come within the exception to normal rule and there is no error or infirmity on the part of the Courts below to have incidentally gone into the question of title, when admittedly, the suit property is a vacant site and necessary ingredients to go into the issue of title were available and the issue involved is simple and straight forward.
60. Further, the plaintiff for seeking the relief of injunction has to prove that he was in possession and enjoyment of the suit property on the date of filing of the suit. The plaintiff had only filed three documents in Ex-A2, Ex-A11 and Ex-A12. As rightly observed by the lower appellate Court, the tax receipts, Ex-A2 has been paid 20 days prior to the filing of the suit, ie., after nearly four years after the purchase in Ex-A1. Further, the other two tax receipts in Ex-A11 and Ex-A12, have been paid after the filing of the suit. The defendant, apart from the sale deeds and the revenue documents issued in his favour in Ex-B10, had filed the property tax receipts in Ex-B6 38/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 to Ex-B9 from 1998 onwards. It is also to be seen that the land originally, which stood in R.S.No.M4-12/8, has been sub-divided as 8A and 8B and the sub divided land in 8A corresponding to Patta No.1542 stands in the name of Chellammai and others, whereas, the sub divided land in 8B corresponding to Patta No.6455 stands in the name of Antony son of Selvaraj Nadar. The claim of the plaintiff placing reliance on the documents in Ex-A1 and Ex-A10 would only relate to Patta No.6455 and subdivision in 8B, whereas, the suit property relates to Patta No.1542 stood in the name of Chellammai. While such being the position, the plaintiff has not established his possession over the suit property on the date of filing of the suit and hence, he is not entitled for the relief of injunction.
61. In the suit filed seeking for injunction, the party shall approach the Court with clean hands and will not be entitled for equitable discretionary relief, when there are suppression of material facts. In the suit, the voter list in Ex-B18 had been filed, which evidences that no such person, Thangaraja, resides in the address mentioned in the power of deed in Ex- 39/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 A10. The document in Ex-B18 coupled with the fact that the said Thangaraja has not been examined before Court, where, he alone could speak about his relationship with admitted owner Chellamani and also the fact that these documents were created within a period of three days by executing a power in favour of Antony and he has also not been examined, shows that the entire transactions are not proper and bonafide.
62. Yet another fact to be noticed is that, when the document in Ex- A10 refers to old S.No.1860/105 of Vadiveeswaram Village, there is no property with old S.No.1860/105 in the said village and there is no material to show that this Thangaraja had any connection or anyway relate to Chellammai, who is the admitted original owner of the suit property. The Courts below have also considered these aspects and concluded that the documents in Ex-A1 and Ex-A10 are fabricated and dismissed the suit, which are proper and justified.
63. In view of the above, this substantial question of law is answered against the appellant and in favour of the respondent. 40/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 In Re – 1:
64.The appellant had filed interlocutory application, seeking to amend the plaint in the appeal. Admittedly, the suit has been filed on 19.07.2005 and the written statement, disputing the title of the plaintiff raising a cloud, was filed on 17.04.2006. The time to seek for declaration, as per Article 58 of the Limitation Act, is three years from the date, when the right to sue accrued. When the written statement was filed on 17.04.2006, denying the title of the plaintiff, the right to sue seeking for declaration commenced and three years period to seek for the relief, as per the Limitation Act, expired on 16.04.2009. Admittedly, the plaintiff, consciously, did not choose to amend the plaint seeking for declaration and had filed the petition seeking amendment only in the appeal in the year 2014.
65. In respect to dealing with the petition seeking to amend the pleadings, it is useful to refer to the decision of the Hon’ble Supreme Court in Life Insurance of Corporation of India vs Sanjeev Builders Private Limited, reported in 2013 (1) MLW (Civil) 87. In paragraph No.71 of the decision, it is held as follows:
71. Our final conclusions may be summed up thus:41/55
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived. 71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order 6 Rule 17CPC.
71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and
(c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
71.4. A prayer for amendment is generally required to be allowed unless:
71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time- barred becomes a relevant factor for consideration. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence. 71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
71.6. Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
42/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.”
66. The Hon'ble Supreme Court had held that all amendments are to be allowed, which are necessary for determining the real question in controversy, which does not cause injustice or prejudice to the other side. Also, by the amendment, the time barred claim cannot be sought to be introduced and if the amendment changes the nature of the suit or is filed with mala fide, the same will not be permitted. The Courts should also bear 43/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 in mind that the opposite party would have a chance to meet the case set up in amendment and where the amendment does not result in irreparable prejudice to the opposite party, the amendment is required to be allowed.
67. In the instant case, in respect to the petition filed in the year 2014, which is, admittedly, after a period of nearly eight years from the denial of title and after the expiry of five years of time provided under the Limitation Act, the learned Counsel for the appellant submitted that the amendment, as and when if allowed, it would relate back to the date of filing of the suit. It was contended that the plaintiff will be at liberty to file an application at any stage of the proceedings and the appeal is always a continuation of the proceedings and whenever, an amendment is ordered, the amendment would relate back to the date when the suit was originally filed.
68. As held by the Hon'ble Supreme Court in the case of Siddalingamma vs Mamtha Shenoy, reported in 2001 (8) SCC 561, an amendment once is incorporated relate back to the date of the suit. However, the doctrine of relation back in the context of amendment of 44/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 pleadings is not one of universal application and in appropriate cases, the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate to the date of suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking amendment was filed.
69. Further after referring to Siddalingamma’s case and other decisions, the Hon’ble Supreme Court in the case of L.C. Hanumanthappa vs H.B. Shivkumar, reported in 2016 (1) SCC 332, held that Article 58 of the Limitation Act would apply to the amended plaint in as much as it sought to add the relief of declaration of title to the already existing relief for grant of permanent injunction and held that the doctrine of relation back will not apply unless the amendment is allowed without any restriction even though a right has accrued to the defendant considering the special circumstances. It is also held that the courts shall decline amendments if a fresh suit is barred on the amended claim on the date of application, but in exceptional circumstances could be allowed, despite a legal right accrued to the defendant by lapse of time considering the special circumstances like no new material fact need to be added at all and only an alternative 45/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 prayer in law need to be added.
70. The Hon’ble Supreme Court also in the recent decision in the case of Rajeev Gupta and other vs Prashant Garg and others, reported in 2025 (3) CTC 730 [2025 INSC 552], after referring to L.C.Hanumanthappa’s case held that the plaintiff though dominus litus cannot pick and choose a time for approaching the Court. Paragraph 29 and 30 are extracted hereunder:
“30.Insertion by the Parliament of the word “first” under the column ‘Time from which period begins to run’ in Article 58 is not without a purpose. Such word, which was not there in the Limitation Act, 1908, has been designedly used in Article 58 to signify that a suit to obtain declaration (other than those referred to in Articles 56 and 57) has to be instituted within three years of ‘when the right to sue first accrues’. In simpler terms, if cause of action to sue means accrual of the right for an actionable claim, it is the moment from which such right first accrues that the clock of limitation would start ticking. Thus, even though cause of action for instituting a suit might arise on varied occasions and/or at different times, what is material and assumes relevance for computing the period of limitation under Article 58 is the date when the right to sue first accrues to the aggrieved suitor. Though dominus litus, a suitor cannot pick and choose a time for approaching court. The period of limitation in terms of Article 58 being 3 (three) years, the prescribed period has to be counted from that date of the right to sue first accruing and the suit, if not instituted within 3 (three) years therefrom, would become barred by time.”
71. In this context, it has to be seen in the facts and circumstances of the 46/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 instant case, as to whether the amendment sought for in appellate stage admittedly after the period of limitation and time barred on the date of application could be allowed or it causes injustice or prejudice to the other side. The appellant has approached the Court, asserting his rights through documents who clearly had knowledge even from the documents filed by him that there is a cloud on his title. Further a written statement is filed tracing out the title and establish his rights by documents and also satisfy the Court that the document relied on by the plaintiff is fabricated and created a cloud on title of the plaintiff. Even then the plaintiff consciously did not seek to alter the relief for declaration but had lead evidence and contested the suit. The plaintiff had come up with the petition to amend the relief in the appeal, admittedly, after a period of eight years from the denial and whether he could be shown indulgence and allowed to amendment the relief.
72. The plaintiff had filed the suit mainly with two documents in Ex- A10, power deed and Ex-A1, sale deed. Mere perusal of these documents reveal that the title has not been traced, except by stating that Thangaraja is the son of Chellammai and it is her ancestral property. Admittedly, Ex-A10 47/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 and Ex-A1 has been executed within a span of three days and a property tax has been paid 20 days prior to the filing of the suit for mere injunction. As indicated earlier, even the documents in Ex-A6 to Ex-A9, which were available with the plaintiff, indicate that Chellammai was the wife of Arumugam, who had two sons, namely, Mahalingam and Saravana Perumal, whereas, the documents in Ex-A10 and Ex-A1 show that Thangaraja is the son of Kandhasamy and Chellammai and he is the only son. When the defendant had resisted the suit and denied the title of the plaintiff by filing documents, as indicated earlier, where in the year 1938, the property was settled in favour of Chellammai, which was sold by her in favour of four persons, conveying Plot Nos.1 to 5 in the year 1966 and 1968 respectively and the defendant having purchased one of the plots through Thamayanthi in 2005 and pattas in the name of Chellammai, Thamayanthi and in the name of the defendant having been filed, even thereafter, the plaintiff did not choose to amend the relief for declaration. The plaintiff consciously stood trial and let in evidence to establish his title.
73. The Court comes to the rescue of the litigants, who should not suffer 48/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 on the ground of some technicalities and whenever, there is a delay, there should not be any hyper technical approach and the parties must be allowed to contest on its own merits and there should be a full-fledged trial. However, this approach and benefit cannot be extended to aid persons with ulterior motive attempting to usurp the properties of genuine property owners. A party cannot be allowed to agitate the suit to his convenience and choice by picking up a time to alter the relief in the appeal, after nearly nine years from the date of filing of the suit (now nearly two decades after the suit). The Court cannot adopt a liberal approach and allow the plaintif to amend the relief and start the litigation from square one, thereby, frustrating the defendant, which would definitely cause great injustice and prejudice to the defendant.
74. It is also to be noted that in the recent days, litigations are instituted as against the genuine property holders, by persons who indulge in manipulation and fabricating records and make the real owners of the property to agitate in Courts for decades, whereby, ultimately, they are pressurized and forced to settle with these sharks, who always fish upon to swallow the small property owners.
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75. Further, the amendment of pleadings are allowed, where it is necessary for determining the real question and for effective and proper adjudication of the controversy. As it has been elaborately indicated above, the question of title has been incidentally gone into by the Courts below and after the parties having let in enormous oral and documentary evidence, already the Courts below have given a definite finding in respect of the title of the defendant over the suit property. When the Courts have already rendered a finding in respect of the title, as rightly observed by the lower appellate Court, there is no purpose and nothing remains to be agitated further by allowing the plaintiff to amend the relief seeking for declaration.
76. In the considered opinion of this Court, by allowing those applications, nothing new would emerge, but it will only allow the plaintiff to have undue advantage and create further documents and witnesses and thereby, prolong the litigation, thereby, denying the rightful owner, from lawfully dealing with the suit property. By filing a suit for mere injunction simpliciter, the plaintiff had successfully restrained the defendant from 50/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 making better use of the suit property for two decades and any further delay by allowing amendment will lead to square one, which cannot be permitted. When admittedly, the period to seek for declaration had expired in the year 2009 itself from the categorical denial of the title by the defendant over the suit property, the plaintiff cannot be allowed to take undue advantage at this stage after nearly 19 years from the date of filing of the written statement, particularly, when the issue regarding title had already been gone into and a finding has been rendered by the Courts below.
77. In fact, it is also to be noted that even before the trial Court, the specific argument of the learned Counsel for the plaintiff was that even if the defendant is found to hold a valid title, but still the plaintiff is entitled to maintain a suit and argue for injunction based on his possession. When the main argument itself was that the plaintiff is entitled to maintain the suit based on his possession, even if the defendant is the rightful owner of property and the defendant can only vacate the plaintiff by due process of law, the shift in approach and the course adopted by the plaintiff only in the appeal seeking to amend the relief seeking declaration would only 51/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 reveal the pattern of the plaintiff in availing all the course open to him by protracting the proceedings by finding loopholes and seeking a relief, to ultimately achieve his ulterior objectives.
78. In view of the above deliberations, the first substantial question of law is also answered against the appellant and in favour of the respondent. In Re-3 :
79.The plaintiff had filed applications for receipt of additional documents under Order 41 Rule 27 CPC. The filing of additional documents is permissible even in appeal, if the appellant satisfy that the petition falls under the four corners of Order 41 Rule 27 CPC. It is the vehement contention of the learned Counsel for the appellant that the lower appellate Court ought to have decided the petitions on merits either by allowing or dismissing, but was in error in taking up the interlocutory applications along with the appeal. This Court is not able to accept the contention of the learned Counsel for the appellant and is not able to find any error in the approach the lower appellate Court in taking the interlocutory applications along with the appeal, as held by the Hon’ble 52/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 Supreme Court in the case of Union of India vs Ibrahim Udolin, reported in 2012 (8) SCC 148.
80. The lower appellate Court had rightly considered this application along with the appeal and had rendered a finding that this document does not come within the purview of the provision and the document is not required to render a decision in the appeal, had rightly dismissed the application and this Court does not find any error in the approach or finding arrived at by the lower appellate Court.
81.In view of the above, the third substantial question of law is also answered against the appellant and in favour of the respondent. Conclusion:
82.In view of the above deliberations and all the three substantial questions of law having been answered against the appellant and in favour of the respondent, there is no illegality or perversity in the concurrent finding of facts arrived at by the Courts below.
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83.Accordingly this Second Appeal is dismissed with costs. Consequently, connected miscellaneous petition is closed.
25.07.2025
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
cmr
To
1.The I Additional Subordinate Judge, Nagercoil.
2.The Principal District Munsif Court, Nagercoil.
3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
54/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm ) W.P.(MD)No.21648 of 2022 G.ARUL MURUGAN, J.
cmr Judgment made in S.A.(MD)No.201 of 2018 25.07.2025 55/55 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/07/2025 05:44:06 pm )