Second Appeal against dismissal of suit for permanent injunction. Court upheld lower courts' finding that plaintiff had no title to the suit property because the exclusionary donation deed was validly executed and subsequent possession claims were unsupported by evidence.
Second Appeal dismissed. No Costs. Connected miscellaneous petition closed.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 17.11.2016
Judgment pronounced on : 23.11.2016
CORAM
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
S.A.No. 149 of 2008 and MP No.1 of 2008
Kesavarman
...Appellant
Vs.
Vasudevan
...Respondent
Prayer:- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 30.10.2002 made in As No.29 of 2002 on the file of Principal District Court, Pondicherry, as confirmed by the judgment and decree dated 30.11.2001 made in O.S.No.412 of 2000 on the file of Principal District Munsif, Pondicherry.
For Appellant : Mr.A.Jenasenan For Respondent : Mr.R.Saseetharan
JUDGMENT
The plaintiff in the suit is the appellant before this Court. In the suit
for permanent injunction filed by the plaintiff alleging that his predecessor
in title Ramabai Ammal purchased the suit property in the year 1950
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through Notary Sale Deed dated 26.08.1950 and later died intestate on 05.10.1990. After her death, her son Vengadachalapathy Reddiar, who was in continuous possession and enjoyment of the suit property sold it in favour of the plaintiff on 10.09.1998 through a registered Sale Deed. The said Sale Deed has been acted upon. The plaintiff was put to possession and enjoyment of it. Since there was some discrepancies in the Sale Deed, the said discrepancies were rectified through the rectified Deed dated 13.01.1999. The defendant who is the half blood brother of Vengadachalapathy Reddiar, is now disturbing the peaceful possession of the plaintiff. Hence, the suit for injunction.
Varadarajalu Reddiar in the year 1965 to the issues born to him. The suit property was donated to the defendant and his brother Lakshminarayanan.
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While, Venkatachalapathy who is the vendor of the plaintiff not satisfied with the donations more particularly regarding the suit property which was donated to the defendant and his brother, filed a suit before the learned Additional Sub Judge, Pondicherry. He questioned the donation but failed. After the dismissal of the suit, the issue regarding title got settled and any claim over the suit property is barred by resjudicata. Hence, the present suit is barred Under Section 11 of CPC. The plaintiff, who is claiming the right through his vendor Vengadachalapathy Reddiar is not entitled to seek injunction against true owner. Hence suit is liable to be dismissed. The Trial Court framed the following four issues:-
plaintiff has failed to prove his possession and enjoyment of the suit property as on the date of plaint. Therefore, the suit for injunction
dismissed. Further the suit is also barred by Res judicata.
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Courts have not properly appreciated Exhibit A5 and Exhibit A6 which are the chitta issued to the respective parties for the same suit property. While admitting the Second Appeal this Court has formulated the following substantial question of law:
Whether the Courts below are right in holding that the suit property was allotted to the respondent under the donation deed, when the original owner Ramabai Ammal was not a party to the said donation deed.
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to be incorrect by the Courts below.
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[2010 (6) CTC 279] after considering catena of judgments touching upon this point Court has sumarized as under:-
27. It is well settled that in a Suit for injunction simplicitor, the Plaintiff has to prove prima facie title and possession on the date of filing of the Suit. It is also well settled that whether the Plaintiff has a right for lawful possession is a question of title and it is open to the Court to go into the title incidentally in a Suit for Injunction simplicitor.
28. In the case of the decision of Nainar Sundaram, J. (as he then was), which was reported in Krishnan v. Lakshmi Ammal, 1989 (2) LW 76 (marked portion), which is as under:
“In an identical circumstances, the learned Judge has concluded:
“To have her possession protected the plaintiff has to demonstrate that her possession could not be unlawful. Hence, for the purpose of finding out whether the Plaintiff has got right to lawful possession, so as to maintain that possession the question of title can certainly be gone into”
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G. JAYACHANDRAN, J.
jv 11. In the case in hand, the plaintiff vendor has no title when he
executed ExA4. The description of the property also not correct in the sale deed so it was rectified only by ExB5. The chitta relied by the plaintiff ExB6 is for the year 1999, whereas the chitta for the previous year is not in the name of the plaitiff's vendor but in the name of the defendants. Therefore this Court finds no error in the judgment and
finding of the Courts below. Since the issue of validity of donation deed already been settled in the previous proceedings. No substantial question of law is involved in this case. Second Appeal dismissed. No Costs. Consequently, the connected miscellaneous petition M.P.No.1 of 2008 is also closed.
23.11.2016
jv Index :Yes/No Internet:Yes/No To
1 The Principal District Court, Pondicherry
2 The Principal District Munsif, Pondicherry.
S.A.No. 149 of 2008
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1 issue framed by the court
Whether the Courts below were right in holding that the suit property was allotted to the respondent under the donation deed when the original owner Ramabai Ammal was not a party to the said donation
Colour shows how this judgement treated each authority
S.KBalaguru Pandian v. S.K.Murugesa NadarRelied on¶48
S.KBalaguru Pandian v. S.K.Murugesa Nadar, [2010 (6) CTC 279]
Krishnan v. Lakshmi AmmalReferred¶51
Krishnan v. Lakshmi Ammal, 1989 (2) LW 76
2 provisions across 1 enactments
Kesavarman
Vasudevan
G. JAYACHANDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
G. JAYACHANDRAN
Parties & counsel
