In this second appeal challenging a decree for permanent injunction in a suit for property dispute, the Court held that the Court can adjudicate on title incidentally to determine legal possession. The Court found the plaintiff had valid title via a Will and established possession, thus dismissing the appeal.
The second appeal was dismissed with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PRONOUNCED ON:26.04.2019
CORAM:
THE HON'BLE MR.JUSTICE T.RAVINDRAN
S.A.No.581 of 2007
and
M.P.No.1 of 2007
1.Allimuthu
2.Velumani
3.Senthil ... Appellants/Appellants/Defendants
Vs.
Rajamani ... Respondent/Respondent/Plaintiff
Prayer:
Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 30.08.2006 made in A.S.No.9 of 2006 on the file of the Subordinate Court, Mettur confirming the judgment and decree dated 28.02.2005 made in O.S.No.460 of 1998 on the file of the District Munsif Court, Mettur.
For Appellants : Ms.Zeenath Begam
for Mr.V.Rajesh
For Respondent : Mr.A.John Britto
J U D G M E N T
Challenge in this second appeal is made to the judgment and decree dated 30.08.2006 passed in A.S.No.9 of 2006 on the file of the Subordinate Court, Mettur, confirming the judgment and decree dated 28.02.2005 passed in O.S.No.460 of 1998 on the file of the District Munsif Court, Mettur.
3.Considering the scope of the issues involved between the parties as regards the subject matter is lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4.For the sake of convenience, the parties are referred to as per the rankings in the trial court.
5.Suffice to state that the suit has been laid by the plaintiff for the relief of permanent injunction.
7.The defendants challenged the Will marked as Ex.A1 under which the plaintiff claims title to the suit property. According to the defendants, the suit property is the ancestral property and therefore Muthusamy is not competent to execute the Will in respect of the same in favour of the plaintiff under Ex.A1 Will and thereby also contended that the suit property is not in the possession and enjoyment of the plaintiff pursuant to the alleged Will as claimed in the plaint and on the other hand, claimed that the suit property is in the possession and enjoyment of the defendants and accordingly prayed for the dismissal of the plaintiff's suit.
property of Muthusamy and he would be competent to execute the Will as he desires with reference to the same.
10.As regards the proof of Will, the plaintiff has examined the attestor of the Will as P.W.2 and P.W.2 had tendered evidence detailing as regards the execution of Ex.A1 Will by Muthusamy and the attestation of the attestors and had also deposed about the revocation deed executed by Muthusamy on the same date cancelling the earlier Will executed by him in favour of the third defendant and his brother Kaliappan and the Courts below had rightly appreciated his evidence and naturally accepted his testimony for upholding the truth and validity of the Ex.A1 Will. Buttressing the evidence of P.W.2, P.W.3 Ramasamy, the Assistant working in the Sub Registrar's office, Mettur had also deposed about the revocation deed executed by Muthusamy on 12.09.1995 marked as Ex.X1 and also testified the execution of Ex.A1 Will by him on the same date and also deposed about the attestation of the said documents by the attestors concerned in the Registrar's office and accordingly the Courts below had also relied upon the evidence of P.W.3 for accepting the case of the plaintiff that Ex.A1 Will had come to be executed by Muthusamy in her favour after revoking the earlier Will executed by him in favour of the third defendant and his brother and in such view of the matter, the defence putforth by the defendants that Muthusamy is not competent to execute the Will Ex.A1 and that the Will had not been executed by him, as such, cannot be countenanced in any manner and accordingly the abovesaid defence version of the defendants had been rightly disbelieved and rejected by the Courts below.
and in such view of the matter, the case of the defendants that the plaintiff has no title, possession and enjoyment of the suit property cannot at all be accepted and rightly disbelieved by the Courts below.
by the rival parties concerned and accordingly the suit property is found to be only in the legal possession and enjoyment of the plaintiff as projected by her in all, it is seen that on the facts and circumstances of the case, there is no need on the part of the plaintiff to seek for the declaration of title to the suit property for claiming the reliefs prayed for. Therefore the contention putforth by the defendants' counsel that the suit laid by the plaintiff without seeking the declaration of title is not maintainable, as such, cannot be accepted. Considering the fact that the plaintiff has established her legal possession and enjoyment of the suit property as abovepointed out and rightly determined by the Courts below, the Courts below are found to be fully justified in granting the relief of permanent injunction as prayed for by the plaintiff. The substantial questions of law formulated in the second appeal are accordingly answered in favour of the plaintiff and against the defendants.
15.The counsel for the defendants in support of her contentions placed reliance upon the decision reported in 2016 (5) LW 211 [Sekar Vs. Ganesan rep. By his power agent, Thiruvengadam] The principles of law outlined in the abvoesaid decision are taken into consideration and followed as applicable to the case at hand.
16.In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed. Sd/Assistant Registrar(CCC) //True Copy//
Sub Assistant Registrar To
Copy to
The Section Officer, VR Section, High Court, Chennai.
+1cc to Mr.A.John Britto, Advocate Sr.40280
+1cc to M/s.V.Rajesh, Advocate Sr.40702
S.A.No.581 of 2007
and
M.P.No.1 of 2007
rr[co]
srg 14/02/2020
3 issues framed by the court
Whether it is proper for the Court to find on title when the plaintiff has not sought a declaration of title but only prayed for permanent injunction.
Whether the Court is right in granting a decree for permanent injunction in the absence of a prima facie affidavit of proof of possession of the suit property on the date of suit.
Whether the plaintiff sought for declaration of her title to the suit property though the same is in dispute and confined the prayer only for permanent injunction.
Colour shows how this judgement treated each authority
Sekar Vs. GanesanFollowed¶15
2016 (5) LW 211 [Sekar Vs. Ganesan rep. By his power agent, Thiruvengadam]
1 provisions across 1 enactments
1. Allimuthu et al.
Rajamani
T. Ravindran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
T. Ravindran
Parties & counsel
