Second Appeal dismissed. The High Court held that title was not decided collaterally, findings were not based solely on deeds as witness evidence existed, and permanent injunction follows mandatory injunction.
Appeal dismissed; no orders as to costs; connected miscellaneous petition closed.
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
DATED: 21.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.No. 90 of 2014
and M.P.No. 1 of 2014
1.Chinnasamy Gounder(Died)
2.Sambamoorthy
3.Elumalai
4.Poongavanam ..Appellants/Defendants (4th Appellant brought on record as LR of deceased 1st appellant vide order dated 03.10.2019 in C.M.P. Nos. 21506/2019 in S.A. 90/2014)
Vs. Vanitha @ Poongavanammal ..Respondent/Plaintiff
Prayer: This Second Appeal filed under Section. 100 of C.P.C. against the judgment and decree dated 21.08.2012 in A.S.No.46 of 2010 on the file of the Subordinate Judge, Arni confirming the judgment and decree dated 30.09.2010 made in O.S.No.199 of 2010 on the file of the District Munsif, Arni.
The defendants in O.S.No. 199 of 2013 on the file of the District Munsif Court, Arani having suffered a decree for declaration, mandatory injunction and permanent injunction at the hands of the Courts below have come up with this second appeal.
respectively. The plaintiff would further claim that she had purchased the properties allotted to the other three brothers namely, Chinna Gounder, Kariya Gounder and Duraisamy Gounder under a sale deed dated 07.08.2002 along with right over a pathway starting from the Arani Road on the North running up to a Well in Survey No. 114/1A, which is situate on the South West.
Muzp L: mf;fughisak; nuhl;oypUe;J ed;ir r/vz; ;/ 116-6. 116-2. 116-2. 114-2 epy';fs; kPJ 10 yp';! ; mfyk; bfhz;l ghij ghj;jpak; ahtUf;Fk ; bghJthdJ/ “ Muzp L: rpWK:h ; nuhl;oypUe;J r/vz;/ 114-2 epyk; tiugapy; ahtUf;Fk ; brYk; bghJthd tHp ghj;jpak; cz;L/ ,ij jLf;f jdp egUf;F chpikapy;iy/
and that the Vendors of the plaintiff had conveyed a right over the said pathway allotted under partition deed to the plaintiff. The Trial Court concluded that the plaintiff is entitled to mandatory injunction for restoration of the pathway. Upon the said conclusions, the learned Trial Judge decreed the suit as prayed for. Aggrieved, the defendants preferred an appeal in A.S.No.46 of 2012. The lower Appellate Court, on a reconsideration of the evidence concurred with the findings of the Trial Court. The lower Appellate Court also referred to the recitals in the sale deed in favour of the plaintiff dated 07.08.2002 marked as Ex.A1 to the effect that the pathway was in existence to conclude that the defendants have obliterated the same after the purchase by the plaintiff. On the said findings, the lower Appellate Court dismissed the appeal confirming the judgment and decree off the Trial Court. Aggrieved, the defendants have come up with this second appeal. The following questions of law were framed at the time of admission:
“i) Whether the title to the suit schedule property can be collaterally schedule property can be collaterally decided in a suit for mandatory injunction without framing of issue?
ii) Whether the relief of mandatory injunction can be granted merely on the basis of the sale deed Ex.A1 and partition deed Ex.A2 without satisfying the other ingredients like possession before granting the relief?
iii) Whether the relief of permanent injunction can be granted automatically following the grant of mandatory injunction when the plaintiff is not in possession and enjoyment of the property?”
Muzp Kjy; rpWK:h ; nuhl;oypUe;J ed;ir rh;nt vz;/ 114-1Ys;s fpzWf;F bry;Yk ; tHp mf;uhghisak; rh;nt vz;/ 116-5. 116-2. 114-1 epy';fspd; kPJ 10 yp';! ; mfyk; bfhz;l ghij ghj;ak ; ahtUf;Fk ; bghJthdJ 114-1Ys;s bghJ fpzw;wpypUe;J tlf;F gf;fkhf Vhpf;fhy;tha ; tiuapy; ,iwg;g [f ; fhy;tha; ahtUf;Fk ; bghJthdJ ,ij jdp egh; brhe;jk ; bfhz;lhlnth mHpf;fnth TlhJ/ Muzp Kjy; rpWKh; nuhl;oypUw;J rh;nt vz;/114-2 epyk; tiuapy; ahtUf;fk ; bry;Yk ; bghJthd tHp ghj;ak ; cz;L ,ij jLf;f jdp egUf;F chpik ,y;iy/
that the plaintiff was in fact cultivating the property of her vendors, using the pathway. Therefore, the second question of law is answered against the appellants to the effect that the conclusions of the Courts below regarding the existence of the pathway and the right of the plaintiff to use the same is not based only on the recitals under Exs.A1 and A2. When once the right of the plaintiff to use the pathway is recognised, he would automatically entitled to decree for permanent injunction restraining the defendants from interfering with such user. There is nothing wrong in the relief mandatory injunction being followed by a relief of permanent injunction to prevent future obstruction. Hence, the third question of law is also answered against the appellants. In view of the answers the questions of law, this appeal fails and it is accordingly dismissed. However, since the parties are neighbouring land owners, there will be no orders as to costs in this appeal. Consequently, connected miscellaneous petition is closed. s/dAssistant Registrar(CS VIII) True Copy Sub-Assistant Registrar kkn To:1. The Sub-Judge Court, Arni. 2.The District Munsif Court, Arni. +1 CC to Mr.J.Saravanavel, Advocate sr 97115. +1 CC to Mr.P.Sathishkumar, Advocate sr 97302. S.A.No. 90 of 2014 and M.P.No. 1 of 2014 TM(CO) SP(17/03/2020)
3 issues framed by the court
Whether title to suit schedule property can be collaterally decided in a suit for mandatory injunction without framing of issue?
Whether relief of mandatory injunction can be granted merely on the basis of sale deed and partition deed without satisfying possession requirements?
Whether relief of permanent injunction can be granted automatically following mandatory injunction when plaintiff is not in possession?
Chinnasamy Gounder (Died) & others
Vanitha @ Poongavanammal
R. Subramanian
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
