Allowed

M/S Sivapriya Constructions v. P.T.Mtilda Prema Devaraj

Madras HC18 Sept 2013CRP/2477/2013

Case brief

AI extract

What is this about?

Allowed the revision petition, setting aside orders directing the maintenance of status quo. Held that filing a separate suit for an injunction to restrain an earlier suit is contrary to law and warrants interference under Section 115 CPC to prevent delay and meet ends of justice.

What did the court decide?

Set aside impugned judgment and decree; dismissed interlocutory application; directed trial court to dispose suits within six months.

M/S Sivapriya Constructions Vs P.T.Mtilda Prema Devaraj — Property and Title | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 21.11.2014

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CORAM :

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THE HON’BLE MR. JUSTICE S.TAMILVANAN

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C.R.P (PD).No.2477 of 2013 and

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M.P.No.1 of 2013

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M/s.Sivapriya Constructions Rep. by its Partner, B.D.Narasa Reddy, S/o. Benjala Reddy, No.37, Saradha Enclave, Plot No.J, Saradha Nagar, Virugambakkam, Chennai - 92.

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.... Petitioner

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vs.

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P.T.Metilda Prema Devaraj

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P.T.Carolin Suganavathi

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P.T.Flori Hemavathi

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Paul Sujarnath

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Rubina Sindhuja

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Dennison Vimalnath

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Wilson Sathyanathan

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Solomon Vijaya Amarrnath

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Silviya Nithya

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Noshiba Esthar Yuvarani

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K.G.Vijayaraghavan

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..... Respondents

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Civil Revision Petition filed under Section 115 of the Code of Civil Procedure against the Judgment and Decree, dated 26.06.2013 made in C.M.A.No.13 of 2013 on the file of the Subordinate Judge, Poonamallee, confirming the fair and decretal order, dated 02.03.2013 made in I.A.No.66 of 2013 in O.S.No.26 of 2013 on the file of the Additional District Munsif, Poonamallee.

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For Petitioner : Mr.AR.L.Sundaresan, Senior counsel for Mr.R.Bharath Kumar

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For Respondents : Mr.R.Gandhi, Senior counsel for M/s. Giridhar & Sai for R1 to R3 Mr.V.Ayyappa Raja for R4 to R11

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ORDER

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As per order passed in the Review Application in Rev.Apln.No.190 of 2013, dated 21.11.2014, the order, dated 18.09.2013 passed in C.R.P (PD).No.2477 of 2013 is set aside and the Revision Petition is restored to file and having considered the arguments advanced by the learned Senior counsel for either side, fresh order is being passed in this Civil Revision Petition on merits.

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It is seen that the Civil Revision has been preferred by M/s. Sivapriya Constructions, the revision petitioner herein under Section 115 of the Code of Civil Procedure against the Judgment and Decree, dated 26.06.2013 made in C.M.A.No.13 of 2013 on the file of the Court of Subordinate Judge, Poonamallee, confirming the fair and decretal order, dated 02.03.2013 made in I.A.No.66 of 2013 in O.S.No.26 of 2013 on the file of the Additional District Munsif, Poonamallee.

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The suit in O.S.No.26 of 2013 was filed by the respondents 1 to 3 against the revision petitioner and 8 others, seeking permanent injunction restraining the defendants, their men, agents or servants from putting up any further construction in the suit property, pending disposal of another suit in O.S.No.270 of 2012 and other consequential reliefs.

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Mr.AR.L.Sundaresan, learned Senior counsel appearing for the revision petitioner submitted that the suit filed in O.S.No.26 of 2013 itself is not legally maintainable, since the main relief sought for in the suit is only an interim relief, pertaining to another suit in O.S.No.270 of 2012 filed by the same party. The suit in O.S.No.270 of 2012 was filed by the respondents 1 to 3 herein, seeking permanent injunction against the defendants in the suit. However, the revision petitioner herein was not arrayed as one of the defendants in the suit. The relief of declaration sought for in the other suit is to declare that a registered Will, dated 11.03.1991 executed by late Paul Thangadurai, father of the respondents 1 to 3 in favour of the defendants 2, 3 and 5 to 7, as per Document No.16/1991 on the file of the Sub-Registrar, Poonamallee, as null and void and also consequential permanent injunction against the defendants 1 to 4 therein, their men, agents etc., from in any manner interfering and disturbing with the alleged possession and enjoyment of the property by the respondents 1 to 3 herein, though it was contended on behalf of the Revision petitioner, that the respondents 1 to 3 were not in possession and enjoyment of the property, on the date of filing of the suit.

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The suit in O.S.No.26 of 2013 is admittedly a subsequent suit filed by the respondents 1 to 3 herein against 9 defendants, including the revision petitioner herein, seeking permanent injunction restraining the revision petition and other defendants from putting up

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any further construction in the suit schedule property till the disposal of the other suit filed in O.S.No.270 of 2012. The Sub-Registrar, Poonamallee, 8th defendants in the suit in O.S.No.270 of 2012 was not arrayed as one of the defendants in the subsequent suit in O.S.No.26 of 2013, however, two other defendants have been added as parties to the suit.

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As contended by Mr.AR.L.Sundaresan, learned Senior counsel appearing for the revision petitioner herein, the respondents 1 to 3, being plaintiffs in the earlier suit in O.S.No.270 of 2012, should have impleaded the revision petitioner herein and sought interim injunction in respect of possession and enjoyment of the property, till the disposal of the said suit in O.S.No.270 of 2012. However, as they could not get interim injunction in the said earlier suit, they filed the subsequent suit in O.S.No.26 of 2013, by impleading the petitioner and others and sought interim injunction till the disposal of the earlier suit in O.S.No.270 of 2012, which is contrary to law. Only for the purpose of getting an interim relief, no one can file an independent suit, seeking interim injunction till the disposal of the other suit, stating it as permanent injunction, however, the suit was numbered. Though interim injunction was not granted by the trial court in I.A.No.66 of 2013 in O.S.No.26 of 2013, the Courts below directed the parties to maintain status quo till the disposal of the suit, that was confirmed by the appellate court in C.M.A.No.13 of 2013, aggrieved by which, the Revision has been preferred. It is brought to the notice of

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this Court that pursuant to the Will executed by late Paul Thangadurai in favour of his sons, who are vendors to the revision petitioner, they executed sale deed in respect of a portion of the suit property in favour of the Revision Petitioner herein for valuable consideration.

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Mr.AR.L.Sundaresan, learned Senior counsel for the revision petitioner argued that M/s.Sivapriya Constructions, the Revision Petitioner herein is a bonafide purchaser for valuable consideration and subsequent to the purchase, patta was also transferred in favour of the Revision petitioner and after getting permission from the authorities, the Revision petitioner started construction of multi-storied building, when the same was nearing completion of the construction, the respondents 1 to 3 came forward to file the earlier suit in O.S.No.270 of 2012, challenging only the Will, executed by late Paul Thangadurai in favour of his sons and others and also sought injunction, in respect of possession and enjoyment of the property. As per the case of the respondents 1 to 3, even in the absence of the Will, the vendors of the revision petitioner, being the sons and the respondents 1 to 3 as daughters of late Paul Thangadurai would be entitled to 1/6th share each and admittedly, the Revision petitioner, who had purchased the land, started construction of the building, after getting permission from the authorities, hence, the possession and enjoyment of the property purchased by the revisino petitioner was with him.

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It was further argued on behalf of the Revision petitioner that there is no declaratory relief sought for in respect of the alleged shares claimed by the respondents 1 to 3 in the suit property, though they cannot claim absolute right to the property. The suit was not filed by the respondents 1 to 3 herein, seeking partition and separate possession of their share in the suit property. It is crystal clear that the possession and enjoyment of the property purchased by the Revision petitioner is with the revision petitioner. The possession of the property was taken over by the Revision Petitioner, pursuant to the sale deed executed by the sons of late Paul Thangadurai, who are brothers of the respondents 1 to 3 and after getting approval of the plan and permission for construction of multi-storied building, the Revision Petitioner started construction in the suit property, which is nearing completion, for which the learned Senior counsel produced photo copies, as supporting documents to show that the construction of the super structure of the multi-storied building was over, except plastering and interior decorations of the building.

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Mr.AR.L.Sundaresan further argued that it is a well settled proposition of law that a person, who is not in possession and enjoyment of a property is not entitled to seek injunction not to interfere with the possession and enjoyment of an immovable property, when the possession and enjoyment is with the other side, namely the revision petitioner herein. Learned counsel for the revision

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petitioner argued that the possession of the property is within the territorial jurisdiction of this Court. Revision Petitioner submits that he is a bonafide purchaser for valuable consideration and only after getting plan approval and also permission from the Authorities, he started construction of multi-storied building, hence, at this stage, the Courts below should not have granted an order, directing the revision petitioner, to maintain status quo till the disposal of another suit, without considering that there is no prima facie case and balance of convenience is not in favour of the respondents 1 to 3 herein, till the disposal of the another suit in O.S.No.270 of 2012, though it may take number of years for the disposal of the said suit. According to the learned Senior counsel for the revision petitioner, the suit in O.S.No.26 of 2013 itself is not legally maintainable, as the same could only be an interim prayer in respect of the earlier suit and the impugned order confirmed by the appellate court in C.M.A.No.13 of 2013 is contrary to law and not sustainable, hence, requested this Court to allow this Revision and set aside the impugned Judgment rendered order, to meet the ends of justice.

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Per contra, Mr.R.Gandhi, learned Senior counsel appearing for the respondents 1 to 3 / plaintiffs submitted that the sons of Paul Thangadurai had no right to sell the property in favour of the revision petitioner, since the respondents 1 to 3 are also entitled to 50% share in the property, being the daughters of the deceased.

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According to the learned Senior counsel for the respondents 1 to 3, the suit property was originally owned by late Esther Ammal, mother of the vendors of the revision petitioner and respondents 1 to 3 and being the husband of late Esther Ammal, late Paul Thangadurai had right to claim only his share and he had no subsisting right to execute any Will or settlement in respect of the entire property in favour of his sons, leaving his daughters. The earlier suit in O.S.No.270 of 2012 was filed by the respondents 1 to 3 herein, challenging the Will and also for injunction in respect of possession and enjoyment of the property. In the second appeal, the disputed question of fact pertaining to the validity of the Will executed by late Paul Thangadurai has to be decided by the trial court, based on evidence, according to law, which cannot be decided in this revision. In this revision, this Court has to consider whether the impugned order of status quo passed by the Courts below is legally sustainable or the revision has to be allowed, setting aside the order passed by the trial court and the judgment rendered by the appellate court respectively.

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It is an admitted fact that the vendors of the revision petitioner and the respondents 1 to 3 are the legal heirs of late Paul Thangadurai and his wife late Esther Ammal, being their sons and daughters. Mr.AR.L.Sundaresan, learned Senior counsel contended that the revision petitioner is a bonafide purchaser for valuable consideration and according to him, the impugned judgment of the

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appellate court, dated 26.06.2013 made in C.M.A.No.13 of 2013, confirming the order and decretal order, dated 02.03.2013 made in I.A.No.66 of 2013 on the file of the Additional District Munsif, Poonamallee, is contrary to law, hence, liable to be set aside, to meet the ends of justice. However, Mr.R.Gandhi, learned Senior counsel placed his arguments that respondents 1 to 3 have not prima facie established title and legal possession and enjoyment of the suit property. It cannot be disputed that when the construction of the building is almost over, the Courts below cannot direct the parties to maintain status quo till the disposal of another suit, as it would take number of years for the disposal of the case. The court below could have granted injunction, if there is prima facie case and balance of convenience is in favour of the respondents 1 to 3, who were applicants before the trial court and if there is possibility of irreparable injury, if injunction is not granted. However, without filing a suit seeking partition, the respondents 1 to 3 had filed the earlier suit only by challenging the Will and when the possession is not with them, the prayer for permanent injunction restraining the defendant therein from interfering with possession and enjoyment of the property is not maintainable. The prayer in the subsequent suit, seeking interim prayer pertaining to the earlier suit in O.S.No.270 of 2012 is also not legally sustainable. However, in that suit, status quo has been ordered by the trial court, till the disposal of the suit, contrary to law and hence, directing a promoter, who has almost completed the

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construction, to maintain status quo till the disposal of the suit, would not meet the ends of justice. It was argued on behalf of the revision petitioner that the impugned order passed by the Courts below is contrary to law, which warrants interference by this Court.

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It has been made clear that the earlier suit filed in O.S.No.270 of 2012 by the respondents 1 to 3 herein, seeking Judgment and Decree to declare that the Will executed by their father, late Paul Thangadurai in favour of defendants 2, 3 and 5 to 7 as null and void and for consequential injunction restraining the defendants 1 to 4, their men, agents etc., from interfering with the peaceful possession and enjoyment of the property.

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In this regard to enlighten the legal aspects, the following decisions were cited by both the learned Senior counsel :

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Hindustan Aeronautics Ltd., v. Ajit Prasad Tarway, (1972)

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3 SCC 195

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Ratilal v. Ranchhodbhai, AIR 1966 SC 439

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Pandurang v. Maruti, AIR 1966 SC 153

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Jhau Lal and another v. Mohan Lal and others, (2013) 9

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SCC 446

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Kamalammal (dead) v. Girija, 2010 (2) CTC 379

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Union of India v. Sandur Manganese & Iron Ores Ltd.,

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(2012) 9 SCC 683

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In Hindustan Aeronautics Ltd., v. Ajit Prasad

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Tarway , reported in (1972) 3 SCC 195 , a Three Judge Bench of the Andhra Pradesh High Court has held as follows :

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"5. In our opinion, the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code."

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Similarly, in Ratilal v. Ranchhodbhai , reported in AIR

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1966 SCC 439 , the Hon'ble Supreme Court has held that erroneous construction placed upon a statute by the trial Court does not amount to exercising jurisdiction legally or without any material irregularity and in such circumstances, it would be a ground for interference under Section 115 of the Code of Civil Procedure.

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As per the decision in Pandurang v. Maruti , reported in

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AIR 1966 SC 153 , a Constitutional Bench of the Hon'ble Apex Court

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has held as follows :

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"The High Court cannot, while exercising its jurisdiction under Section 115, correct errors of fact, however, gross they may be, or even errors of law. It can only do so when the said errors have relation go the jurisdiction of the Court to try the dispute itself. It is only in cases, where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked.

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17. In Shiv Kumar Chadha v. Municipal Corpn., of Delhi

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reported in (1993) 3 SCC 161 , a three Judge Bench of the Hon'ble Supreme Court has ruled in respect of granting interim injunction thus:

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"30...Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles--ex debito justitiae. Before any such order is passed the Court must be

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satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.

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Under the changed circumstance with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injunction without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applications. The court should be always willing to extent its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot-be. used to protect or to perpetuate a wrong committed by a person

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who approaches the Court."

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In Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai , reported in (2006) 5 SCC 282 , the Hon'ble Apex Court has held thus :

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"30. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands."

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This Court in Archana Bansal v. NEPC India Ltd .,

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reported in (2007) 6 MLJ 648 , has held that grant or refusal of temporary injunction is subject to the following principles (a) prima facie case of plaintiffs legal right; (b) balance of convenience in his

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favour; (c) whether he would suffer irreparable injury, if injunction is not granted. These conditions have to be satisfied and proof of any of them is not by itself sufficient to obtain a temporary injunction. Prima facie case means that there exists a strong probability that the petitioner has an ultimate chance of success in the suit. Balance of convenience is the principle by which the Court weighs and balance the mischief or inconvenience to either side. Irreparable injury means a substantial injury which cannot be adequately be compensated for awarding damages.

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It has been categorically held by the Hon'ble Apex Court in the decisions referred to above and various other decisions that under Section 115 of the Code of Civil Procedure, the High Court may call for the records and in case, which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -

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(a) to have exercised a jurisdiction not vested in it by law, or

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(b) to have failed to exercise a jurisdiction so vested, or

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(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

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In this regard, the proviso to the Section reads as follows :

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"Provided that the High Court shall not, under this section, vary or reverse any order made,

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or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings."

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It is well settled that when appeal provision is available, no one can invoke the revisional jurisdiction under Section 115 of the Code of Civil Procedure. Even for exercising the revisional jurisdiction, it could have been brought to the notice of this Court that any Court subordinate to the High Court has exercised a jurisdiction not vested with it by law or failure to exercise a jurisdiction, so vested in it or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

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In the instant case, even as per the admitted claim of the respondents 1 to 3 / plaintiffs in the suit in O.S.No.270 of 2012 is late Esthar Ammal owned property, after her death, her husband, Paul Thangadurai, sons and daughters of Esther Ammal, inherited the property as her legal heirs. Hence, Paul Thangadurai, had no independent right to execute a Will in favour of his daughters, respondents 1 to 3 / plaintiffs. After the death of Esther Ammal, her husband, her three sons, who are vendors of the revision petitioner and the respondents 1 to 3 / plaintiffs were the legal heirs of the deceased, Esther Ammal.

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As per the said pleadings of the plaintiffs, as contended by the learned Senior counsel appearing for the revision petitioner, the respondents 1 to 3 / plaintiffs have filed only a suit, seeking declaration, declaring that the Will executed by Paul Thangadurai as null and void and as the suit was not filed for partition and separate possession of respondents 1 to 3 / plaintiff's share. Hence, merely if the Will is declared null and void, they cannot claim right for the entire property, even as per their pleadings of the plaint. It has been established that the possession and enjoyment of the property, that was sold in favour of the revision petitioner was with the revision petitioner, on the date of filing of the suit. However, without impleading the revision petitioner herein, suit was filed, seeking consequential relief of permanent injunction in respect of possession and enjoyment, as if the plaintiffs are in the possession and enjoyment of the property. The Court below has not granted any interim injunction in the suit in O.S.No.270 of 2012, strangely, the respondents 1 to 3 / plaintiffs filed another suit in O.S.No.26 of 2013, seeking permanent injunction restraining the revision petitioner, his men or agents from putting up any construction in the property, that was purchased by them till the disposal of the earlier suit in O.S.No.270 of 2012.

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The main prayer sought for in the subsequent suit in O.S.No.26 of 2013, could have been raised only by way of

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Interlocutory Application in the suit, however, filing another suit, seeking injunction till the disposal of the earlier suit is contrary to law, which would not meet the ends of justice and that would lead to delay the disposal of the earlier suit. However, the Courts below have not considered the legal aspect but granted an order to maintain status quo till the disposal of the suit in O.S.No.26 of 2013, wherein the prayer sought for is till the disposal of the earlier suit in O.S.No.270 of 2012. In the aforesaid circumstances, this Court is of the view that the trial court has exercised the jurisdiction not vested with it by law and that was not properly considered by the appellate court. It could also be construed that the Courts below have failed to exercise the jurisdiction so vested in them, to meet the ends of justice. At this juncture, this Court need not go into the disputed question of fact. Even as per the averments of the respondents / plaintiffs, it is clear that the Courts below have exercised jurisdiction not vested and have failed to exercised the jurisdiction so vested in them, since the respondents 1 to 3 / plaintiffs have not filed the said suit, seeking appropriate relief, based on their own pleadings.

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As per the case of the respondents 1 to 3, who are the plaintiffs in both the suits in O.S.No.270 of 2012 and O.S.No.26 of 2013, the suit property was owned by late Esther Ammal, their mother. She died leaving her husband, late Paul Thangadurai, 3 daughters and 3 sons. Even in the absence of the Will executed by

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Paul Thangadurai in favour of his sons, plaintiffs in the suit could have claimed only their share, by way of filing a suit for partition. Merely filing the suit to declare that the Will executed by late Paul Thangadurai is null and void and not binding on them, they cannot claim permanent injunction for the entire property, restraining the defendants 1 to 4, their men, agents from interfering with their peaceful possession and enjoyment of the property, in respect of possession and enjoyment of the property. After the sale deed executed by the sons of Paul Thangadurai, pursuant to the Will, the revision petitioner got transfer of patta, sanctioned plan, permission to construct a multi-storied building and subsequently, started construction, which is at the stage of completion. In the subsequent suit in O.S.No.26 of 2013, the respondents 1 to 3 / plaintiffs have sought only relief of permanent injunction not to do any construction work till the disposal of the earlier suit filed in O.S.No.270 of 2012.

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Mr.R.Gandhi, learned Senior counsel appearing for the respondents 1 to 3 / plaintiffs would submit that a major portion of the property was sold by the sons of late Paul Thangadurai in favour of the revision petitioner, though the respondents 1 to 3 / plaintiffs are also entitled to their share, being the daughter of the deceased. However, it is strange that what prevented the plaintiffs in filing a suit seeking declaration in respect of their share in the property, as well as partition and separate possession for the said share as per their pleadings.

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Merely by filing a suit, seeking decree to declare the Will executed by Paul Thangadurai is null and void, the plaintiffs cannot seek permanent injunction against other defendants in respect of possession and enjoyment, who are co-sharers, as per their pleadings. In the suit in O.S.No.270 of 2012, without seeking interim injunction in respect of further construction in the said property, the respondents 1 to 3 / plaintiffs filed separate suit for the Interlocutory prayer by filing suit in O.S.No.26 of 2013. Though the same was brought to the notice of the Court below, mechanically an order was passed to maintain status quo till the disposal of the subsequent suit and the prayer in the subsequent suit is seeking permanent injunction till the disposal of the earlier suit filed in O.S.No.270 of 2012. Hence, it is clear that the order of status quo ordered by the Courts would cause only delay and could not be the remedy for both the parties.

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In the light of various decisions rendered by the Hon'ble Apex Court, referred to above, it is crystal clear that in view of Section 115 of the Code of Civil Procedure, this Court is of the view that the Courts below have exercised the jurisdiction not vested in them by law and failed to exercise the jurisdiction so vested in passing appropriate orders, to meet the ends of justice. It is a fact that the revision petitioner, who purchased the property from some of the legal heirs, is about to complete the construction of the building, hence, the Courts below cannot grant an order of status quo to be maintained till the

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disposal of the earlier suit filed, since the disposal of the suits will normally take number of years, though the suit itself is not legally maintainable, in view of the fact that the main prayer in the suit in O.S.No.26 of 2013, has to be construed as an interim prayer relating to the earlier suit in O.S.No.270 of 2012.

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It cannot be disputed that the respondents 1 to 3 / plaintiffs are entitled to raise their plea of seeking share by challenging the Will executed by their father late Paul Thangadurai in favour of his sons, on the ground that the property was owned by their mother, Esther Ammal and he had only share in the property, however, the same has to be decided only by the trial Court. It is made clear that if need be, to establish their claim, the respondents 1 to 3 / plaintiffs, can amend the prayer, as per procedure known to law. However, filing suit, simply seeking declaration that the Will executed by their father as null and void, they cannot claim injunction in respect of possession and enjoyment against the defendants in the suit, who are also sharers, as per the pleadings of the plaintiffs. Admittedly the possession of a portion of the property purchased by the revision petitioner under the sale deed, is with the revision petitioner, in view of the construction being made, after getting due permission from the authorities, though the same would not confer any title more than the right, that was available to the vendors.

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Had the respondents 1 to 3 / plaintiffs been in possession, they could have obtained interim injunction only in that suit in O.S.No.270 of 2012, by way of filing Interlocutory Application and they are not entitled to file another suit in O.S.No.26 of 2013 before the same Court, seeking interim prayer, in the name of permanent injunction, till the disposal of the earlier suit in O.S.No.270 of 2012. It is an undisputed fact that the revision petitioner, having purchased the property from the sons of late Paul Thangadurai and others, pursuant to the Will executed by late Paul Thangadurai in favour of the said vendors. The revision petitioner, got transfer of patta, plan approval for the construction of multi-storied building and started construction, which was nearing completion, even on the date of filing of the suit, as per the photocopies produced. Though patta is not a document of title, the construction of the building in a major portion of the property shows that the respondents 1 to 3 were not in the possession and enjoyment of the property, even on the date of filing of the suit. On the said facts and circumstances, Mr.AR.L.Sundaresan, learned Senior counsel appearing for the revision petitioner submitted that the revision petitioner has no objection in respect of the other portion, being allotted by mutual understanding between the respondents 1 to 3 and their brothers and other legal heirs, who are the vendors of the Revision petitioner herein, if any prayer is incorporated in the suits, by the respondents 1 to 3 for partition and separate possession, in the manner known to law.

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It is also open to both the parties to amicably settle the matter, if the respondents 1 to 3 / plaintiffs are entitled to any share on equity or by getting compensation from their brother, according to law. However, the same has to be decided only by the Courts below. Here, it is crystal clear that the impugned order, directing to maintain status quo till the disposal of the suit, where the prayer is permanent injunction, till the disposal of the earlier suit in O.S.No.270 of 2012, would show that the Courts below had exercised a jurisdiction not vested in them and also failed to exercise the jurisdiction so vested, even based on the undisputed facts of the case, hence, on the said facts and circumstances, this Court is of the view that interference is warranted under Section 115 of the Code of Civil Procedure, to meet the ends of justice.

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In the result, the Civil Revision Petition is allowed and the impugned Judgment and Decree, dated 26.06.2013 made in C.M.A.No.13 of 2013 on the file of the Subordinate Judge, Poonamallee, confirming the fair and decretal order, dated 02.03.2013 made in I.A.No.66 of 2013 in the suit in O.S.No.26 of 2013 on the file of the Additional District Munsif Court, Poonamalee is set aside and the Interlocutory Application filed by the respondents 1 to 3 / plaintiffs in I.A.No.66 of 2013 in the suit is also dismissed. Consequently, connected miscellaneous petition is closed. However, to meet the ends of justice, the Trial Court is directed to dispose both the suits, referred

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to in this order, as early as possible, solely on merits, uninfluenced by the findings, if any in this order, according to law, within a period of six months from the date of receipt of a copy of this order. However, no order as to costs.

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21-11-2014

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Index : Yes Internet : Yes

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