In a second appeal concerning a suit for permanent injunction, the High Court dismissed the appeal. The court held that the plaintiff failed to establish her title or possession of the suit property. Consequently, the suit for permanent injunction was not maintainable without a declaration of title.
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 RESERVED ON :02.03.2021 PRONOUNCED ON :15.03.2021
CORAM THE HONOURABLE MR. JUSTIC E T.RAVINDRAN
S.A.No. 1203 of 2008
and M.P.No.1 of 2008
Khathoon Bi
W/o. S.K. Lalan @ Mader Sahib
...Appellant/Plaintiff
Vs.
Prayer: Second Appeal is filed under Section 100 of CPC, 1908 against the judgment and decree dated 30.11.2007 made in A.S.No.51/2007 on the file of the court of the Subordinate Judge, Tirupattur, reversing the judgment and decree dated 11.04.2007 made in O.S.No.394/2000 on the file of the court of the District Munsif, Tirupattur.
For Appellant : Mr. A.Sundaravadhanam for M/s. D. Balachandran For Respondents For R1 & R2 : Mr. C. Prakasam R3 and R4 : No appearance. Set exparte vide order dated 02.03.2021.
JUDGMENT
Challenge in this second appeal is made to the judgment and decree dated 30.11.2007 passed in A.S.No.51/2007 on the file of the Subordinate Court, Tirupattur, reversing the judgment and decree dated 11.04.2007 passed in O.S.No.394/2000 on the file of the District Munsif Court, Tirupattur.
belonged to Yusuf khan and he was in the possession and enjoyment of the same and he died in 1960 leaving behind his wife and six sons including the defendants and three daughters including the plaintiff as his legal heirs and all his legal heirs were in the possession and enjoyment of the same. The mother Rokkoya Bi gifted the suit property to the second defendant on 23.05.1974 and thereafter, the second defendant has spent huge amount and constructed a shop and the tax has been assessed in the name of the third defendant and it is only the defendants 2 and 3 who are enjoying the suit property, as above stated, and the plaintiff was given in marriage at Harur in 1960 and she did not live with her husband and returned to her parent's house and so the second defendant, who is the brother of the plaintiff had given some property to her for her maintenance and it is false to state that the plaintiff and her husband had gifted the property to Dowlath Basha. The plaintiff's husband S.K.Lalan @ Madar Sahib has no right, title or interest over the suit property and the plaintiff and her husband have no right to gift the suit property to Dowlath Basha. The allegations put forth in the plaint that the defendants requested the plaintiff to settle the suit property in their favour is false and further allegation that the defendants endeavoured to disturb her possession and enjoyment of the suit property is also false. The defendants 1 and 4 are unnecessary parties to the suit and they are in collusion with the plaintiff. The plaintiff is not in the possession of the suit property. Only with a view to grab the suit property from the defendants, the plaintiff has filed the present suit without any cause of action. The suit laid by the plaintiff simplicitor for the relief of permanent injunction without seeking declaration of her title to the suit property is not legally maintainable and on that score also, the suit is liable to be dismissed.
suit. Challenging the same, the present second appeal has been laid by the plaintiff.
suit property, therefore, merely on the basis of Ex.A1 sale deed, it cannot be construed or held safely that the suit property had been lawfully acquired by the plaintiff from her vendors, particularly, when the vendors' title to the suit property had not been established by the plaintiff in the manner known to law. The claim of the plaintiff that she had acquired a valid title to the suit property under Ex.A1 sale deed is found to be highly untenable and on that score alone, the plaintiff's suit is liable to be dismissed.
of law. It does not stand to reason as to how come Ex.A2 adangal extract is found to have been secured in the name of the plaintiff. The plaintiff has not explained as to under what facts and circumstances Ex.A2 had been recorded in her name, particularly, when she, as above stated, has failed to establish her claim of title to the suit property.
second defendant having admitted the title of the plaintiff to the suit property, the first appellate court had erred in not relying upon the same and granting the relief in favour of the plaintiff. No doubt, D.W.1 had tendered evidence on the abovesaid lines. However, considering the evidence of D.W.1 in toto, when he has been vehemently disputing the plaintiff's claim of title to the suit property as well as her possession and enjoyment and when, as above pointed out, the plaintiff has miserably failed to establish her claim of title to the suit property as well as her possession and enjoyment and having admitted that the defendants 2 and 3 are in the possession and enjoyment of the suit property, as pointed supra, merely because D.W.1 has admitted that the plaintiff is having two houses in the suit property and paying the tax for door No.154, however, no tax receipt pertaining to Door No.154 having been projected by the plaintiff and when the plaintiff has also not endeavoured to produce the patta said to have been issued in her favour qua the suit property, in my considered opinion, the abovesaid admission of D.W1, by itself, would not be sufficient and adequate to hold that the plaintiff is in the lawful possession and enjoyment of the suit property. The plaintiff having miserably failed to establish her claim of title to the suit property and considering the relationship between the parties, even if it is to be taken that the defendants 2 and 3 have also failed to establish their claim of title to the suit property by placing acceptable and reliable materials as such, however, as the plaintiff being the suitor and when she claims that the entire extent of the suit property measuring east-west 50 feet and north-south 30 feet inclusive of the hut etc., in survey No.421/9 old No.163 is in her possession based on the title and when the same has not been established by the plaintiff and despite the denial of the plaintiff's title to the suit property by the defendants vehemently, the plaintiff having failed to seek for the relief of declaration of title as outlined by the Apex Court in the decision reported in CDJ 2008 SC 603 (Anathula Sudhakar V. P.Buchi Reddy (dead) by Lrs and others), in all, the first appellate court is justified in non suiting the plaintiff by setting aside the judgment and decree of the trial court.
s/d-
Assistant Registrar
True Copy
Sub-Assistant Registrar
bga
To
S.A.No.1203 of 2008
NMI(CO)
SP(29/10/2021)
2 issues framed by the court
Whether a suit for permanent injunction is maintainable without seeking a declaration of title and establishing possession?
Whether an admission by one defendant is sufficient to establish the plaintiff's title and possession independently of title evidence?
Colour shows how this judgement treated each authority
Anathula Sudhakar V. P.Buchi ReddyExplained¶42
CDJ 2008 SC 603 (Anathula Sudhakar V. P.Buchi Reddy (dead) by Lrs and others)
Khathoon Bi
Y. Hussain S/o. Yusuf Khan
Jaibun bi W/o. Y. Hussain
Ahemad Basha S/o. Lalan Sahib
Ameerun W/o. Ahemed Basha
E T. Ravindran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
