In this second appeal, the High Court upheld the dismissal of a suit for permanent injunction. The court held that the respondent acquired title as a co-owner from an auction purchaser, and established law precludes granting injunctions against co-owners.
The Second Appeal is dismissed. The judgment and decree of the Courts below are confirmed.
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: 23.06.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
Madhavasudharasanam ...Appellant
versus
Kaliaperumal...Respondent
Second Appeal filed to set aside the judgment and decree
dated 28.03.2002 in A.S.No.163/2000 & Cross Appeal in the Court
of Additional District Judge-cum-Chief Judicial Magistrate,
Cuddalore confirming the judgment and the decree in O.S.No.22/97
on the file of the Sub Court, Panruti and dated 22.11.2000.
For Appellant : Ms. R. Meenal
For Respondent: No appearance
JUDGMENT
The unsuccessful plaintiff is the appellant before this
Court challenging the judgment and decree of the Courts below in
and by which his relief claimed for permanent injunction has been
negatived.
2. The facts upon which the appellant is before this
Court are as follows:
Plaintiff's Case:
3. It is his case that the suit properties were his
ancestral properties. Under a registered partition deed dated
16.03.1969 the plaintiff's father, his mother and brother had
partitioned the property and the 'B' Schedule property therein
was alloted to his father. The appellant, his father and his only
brother constituted a hindu undivided family and were enjoying
the suit property jointly.
4. Meanwhile, a suit was filed by St. Joseph School,
Thirupapuliyur on the file of the Subordinate Judge, Cuddlore to
recover the amount that was due to the School by plaintiff's
father. The suit was decreed and the appellant's father's 1/3rd
share was brought to sale in execution. Even at that time, it is
the case of the plaintiff that the property remained undivided.
Thereafter, one Annamalai had purchased the properties in Court
auction. However, the said Annamalai had not got the property
purchased by him divided by metes and bounds and the appellant
would also state that the delivery of 1/3 rd share pleaded by the
said Annamalai is false. It is the case of the appellant that
Annamalai had never taken physical possession of the property
purchased by him. The said Annamalai had sold a portion of the
property purchased by him to the defendant and the defendant
after the purchase started to interfere with the peaceful
possession and enjoyment of the suit property by the plaintiff,
thereby constraining the appellant to file the suit in question
namely O.S.No.22 of 1997 on the file of the Sub Court, Panruti.
Defendant's Case:
5. The defense to the above suit was that the
respondent's vendor Annamalai had purchased not only the 1/3rd
share in the suit property but also other items in the auction
held on 16.03.1989 which was confirmed in E.P.No.59 of 1988 on
the file of the Sub Court, Cuddalore.
6. The said Annamalai had taken possession of his 1/3rd
share through process of court on 8.07.1990. The 1/3rd share
purchased by Annamalai was carved out from the larger extent with
the help of a Taluk Surveyor in the presence of plaintiff, his
brother and father. The portion which was alloted to Annamalai
is an 1/3rd share on the western side in the 1st and 3rd item and
middle portion in the 2nd item and the eastern portion in the 4th
item. From the date of the said allotment, Annamalai was in
exclusive and absolute possession and enjoyment of that portion.
7. The respondent's case is that by reason of this
allotment Annamalai was in exclusive possession and enjoyment of
1 acre 47 cents out of the total extent of 4.48 acres in the 1st
item, 17 cents out of 53 cents in the Second item; 12 cents out
of 38 cents in the 3rd item; 74 cents out of 2.22 acres in the
4th item. Thus, the defendant had purchased an extent of 2.50
acres in all the four survey numbers with specific boundaries on
17.07.1995 under two registered sale deeds.
8. The respondent would submit that after his purchase,
he had been in possession of the said property and also got the
revenue records mutated in his name. He had also been paying
kist in respect of the properties from the fasli year 1405. The
respondent had also taken out a plea that the suit was not
maintainable since the defendant is a co- owner and there cannot
be an injunction against the co-owner.
Trial Court:
9. The Trial Court had framed an issue as to whether the
plaintiff was entitled to the relief of permanent injunction.
10. The plaintiff had examined himself as P.W.1. One
Malayyan as P.W.2, Samikkannu as P.W.3 and marked Ex. A.1 alone.
On the side of the defendant, the defendant had examined himself
as D.W.1 and the original auction purchaser as D.W.2. Exs. B.1
to B.13 were marked on the side of the respondent.
11. The learned Subordinate Judge, Panruti by judgment
and decree dated 22.11.2000 dismissed the suit.
Appellate Court:
12. Challenging the said judgment and decree, A.S.No.163
of 2000 was filed on the file of the Additional District Judge
cum Chief Judicial Magistrate, Cuddalore. The learned judge also
confirmed the judgment and decree of the Trial Court and
challenging the same, the appellant is before this Court.
Submission:
13. Ms. Meenal, learned counsel for the appellant would
submit that the defendant has not proved that the property had
been partitioned by metes and bounds and that he is in possession
of the same. On the contrary, it is the plaintiff who is in
possession and enjoyment of the said suit property and the
possession of the appellant has been confirmed by P.W.2 and
P.W.3. She would submit that the Courts below having found that
respondent has not proved his case of division of the property
ought to have granted the decree for injunction.
14. Heard the counsel and perused the papers.
Discussion:
15. The Courts below have clearly held that the auction
purchaser Annamalai has been alloted property in each of the
items of the property and possession has been handed over through
court in execution proceedings.
16. This factum has been admitted by the plaintiff.
Therefore, Annamalai, auction purchaser become the co-owner in
respect of the suit property and he had sold the portion of the
same to the defendant, the respondent herein. Therefore, the
respondent has also become the co-owner.
17. It is the a well-settled principle of law that there
cannot be injunction against the co-owner. The respondent and
his predecessor in title are co-owners in the suit schedule
property. Therefore, the Courts below have rightly dismissed the
suit for bare injunction.
18. I do not find any substantial question of law for
consideration in the above Second Appeal. Therefore, the Second
Appeal stands dismissed. Consequently, the Miscellaneous petition
is closed. No costs.
Sd/-
//True Copy//
Sub Assistant Registrar
mrn
To
1.The Additional District Judge-cum-Chief Judicial Magistrate, Cuddalore2.The Sub Court, Panruti+1cc to M/s.R.Meenal, Advocate, S.R.No.29131S.A.No.1624 of 2008
and
C.M.P.No.2077 of 2008
GSM(CO)
SB(28/10/2021)
2 issues framed by the court
Whether a permanent injunction can be granted against a co-owner who has obtained title through a registered sale deed.
Whether the courts below were correct in dismissing the suit for permanent injunction on the ground of co-ownership.
Madhavasudharasanam
Kaliaperumal
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court