Allowed

Sakthivel v. Krishnamurthy Padayachi(Died)

Madras HC12 Dec 2022SA/274/2003

Case brief

AI extract

What is this about?

This Second Appeal concerns a suit for bare injunction regarding property in Survey Numbers 58/9 and 58/7. The High Court held that the lower courts erred because the suit lacked a prayer for declaration due to a title dispute, and the plaintiff sought property he had no title to based on non-correlated survey reports.

What did the court decide?

Second Appeal allowed; Judgment and Decree of Lower Appellate Court set aside; Connected Miscellaneous Petitions closed.

Sakthivel Vs Krishnamurthy Padayachi(Died) — Partition | Madras HC (2022)

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S.A.No.274 of 2003

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 12.12.2022

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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S.A.No.274 of 2003 and C.M.P.No.2536 of 2003

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1.Sakthivel

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2.Palanivelu rep. by his Power Agent Mr.Thirugnanam

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... Appellants//Respondents /Defendants 2 and 3

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Vs.

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1.Krishnamurthy Padayachi (died)

2.Santhalakshmi

3.K.Raja

4.K.Jayakodi

5.R.Devaki

6.Vasuki

7.S.Revathi ...Respondents 2 to 7/Appellant/Plaintiff

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https://www.mhc.tn.gov.in/judis

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S.A.No.274 of 2003

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(R2/proposed respondent dismissed vide order of this Court dated 05.04.2008 in C.M.P.No.1628 of 2009)

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(Respondents 2 to 7 were brought on record as legal representatives of the deceased sole respondent vide order of this Court dated 29.07.2019 in C.M.P.no.1628 to 1630 of 2009 in S.A.No.274 of 2003 by TKRJ)

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PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 14.11.2002 in

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A.S.No.95 of 2001 on the file of the learned Principal Subordinate Judge, Mayiladuthurai, reversing the Judgment and Decree dated 19.09.2001 in O.S.No.295 of 1986 on the file of the learned District Munsif, Sirkazhi.

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For Appellants : Mr.A.Muthukumar For Respondents : Mr.K.V.Sundarrajan for Mr.N.Sankara Vadivel for R2 to R7

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R1 -died

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S.A.No.274 of 2003

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JUDGMENT

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The unsuccessful defendants in a suit for bare injunction before

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the Lower Appellate Court are the appellants before this Court. The parties are referred to in the same rank as arrayed before the trial Court.

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2.The facts in brief which are necessary for disposing of the above Second Appeal are hereinbelow narrated:

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The plaintiff had filed a suit O.S.No.295 of 1986 on the file of the learned District Munsif, Sirkazhi, for a bare injunction restraining the defendants, their men and agents from in any manner interfering with his peaceful possession and enjoyment of the property marked as

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ABCDE in the Plan. The suit property is hereinbelow described:

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“Mayiladuthurai Registration District, Sirkali, Sub

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Registry, Sirkali Taluk, Sembandiniruppuvattam,

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Allivilagam Village,

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S.A.No.274 of 2003

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R.S.No.58/9 (Old Survey No.61) 38 cents

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R.S.No.58/7 (Old Survey No.58/F) 1 cent

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39 cents form one block; boundary for the same is;

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North of pathway or street, South of irrigation channel East of defendant's property; West of plaintiff's own property purchased from Narayanasamy.

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The suit property is marked as ABCD in the Plaint plan. Boundary for ABCD portion, East of defendant's property; West of Plaintiff's Western main wall of his house; South of irrigation channel; North of Street; R.S.No.58/7 Old Survey No.58/F one cent with sixteen portia trees.”

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3.It is the case of the plaintiff that the suit property is comprised

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in two survey numbers i.e., R.S.No.58/9 and 58/7 measuring 38 cents and 1 cent, respectively. The suit property has been delineated as

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S.A.No.274 of 2003

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ABCDE in the rough plan. It is the case of the plaintiff that these two extents are being enjoyed by him as one unit. The property was originally purchased by his father Singaravelu Padayachi from one Govindasamy Naidu and his wife Vedhavalli under a registered Sale Deed dated 11.09.1922. The old Survey Numbers were 61 for R.S.No.58/9 and 58/F for R.S.No.58/7. The plaintiff would submit that his father was in enjoyment of the property till his lifetime and thereafter, the plaintiff is enjoying the same. The disputed property is only a portion which has been described as ABCDE. It is the plaintiff's case that he had planted portia trees in the disputed area as early as in the year 1948 and that he owns an extent of 6 feet on the western side beyond the portia trees. The defendants who have no manner of right or enjoyment or possession of this portion, attempted to disturb the plaintiff's possession. Originally, there was a fence separating the plaintiff's property and the defendants' property. The fence is no longer there and taking advantage of this, the defendants are staking a claim to the property up to the western wall of the plaintiff's house and also

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contended that the portia trees belonged to them. Since the defendants were attempting to disturb their possession, the plaintiff has come forward with the suit.

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4.The 1^st defendant had filed a Written statement inter alia

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denying the allegations contained in the Plaint. The defendants have denied the right of the plaintiff to any portion in R.S.No.58/7. It is their case that the portion marked as ABCDE falls within R.S.No.58/7 which is in the possession and enjoyment of the defendants. The plaintiff's vendor did not own any portion in R.S.No.58/7 (Old Survey No.58/F) and therefore, they had no right to execute the sale with reference to the lands in R.S.No.58/7. The defendants would contend that in a partition dated 25.01.1912 between Govindasamy Naidu and his brother Narayanasamy Naidu, R.S.No.58/7 (Old Survey No.58/F) was given to their sister Nagammal and Govindasamy Naidu was not allotted any portion in R.S.No.58/7. The property comprised in

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R.S.No.58/7 was purchased by the defendant's father Veerappa Padayachi from one Chinnathambi Padayachi under a registered Sale Deed dated 18.05.1947 in the name of the defendant's mother Veerammal. The trees in survey number had been planted only by the defendant's father and it was also maintained by them. The plaintiff has never enjoyed the trees at any point of time. The defendants further submitted that when he had started construction of a house in R.S.No.58/7, he had made arrangements to cut the trees and incensed by the same, the plaintiff had come forward with this suit.

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5.An additional Written Statement was filed by the 3^rd defendant who had been impleaded as the legal representative of the 1^st defendant inter alia contending that after the death of the 1^st defendant the suit for bare injunction had abated and therefore should be dismissed. They had also raised a plea that the suit without seeking the relief of declaration has to necessarily be rejected.

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S.A.No.274 of 2003

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6.The learned District Munsif, Sirkazhi, had framed the following

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issues:

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chpika[s;sjh?

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(2)jhthr; brhj;J tHf;Fj; jhf;fy; bra;a[k; fhyj;jpy; thjpapd; trj;jpYk;. mDgtj;jpYk; ,Ue;jjh? thjpf;F mth; nfl;Ls;sthW ghpfhuk; fpilf;ff; Toajh?

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(3)thjpf;F ntW vd;d ghpfhuk; fpilf;ff; ToaJ?

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: TLjy; vGtpdhf;fs

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''(1)tHf ; fpy; chpik Fwpj;J tpsk;g[ifg; ghpfhuk; nfl;fhky; btWk; cWj;Jf; fl;lisg; ghpfhuk; kl;Lk; nfl;Lj; jhf;fy; bra;Js;s ,t;tHf;F epiyepw;fj;jf;fjh?

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(2)Kjy; gp;	ujpthjpapd;	thhpRfisr;
nrh;f;fhjjhy;	,t;tHf;F	mtrpakhd
jug;gpdh;fisr;	nrh;f;fj;	jtwpa
Fiwf;Fs;shfpwjh? (3)tHf;F	ePjpkd;wf;	fl;lzk;
brYj;Jtjw;fhfg;	bghUkhdk;	rhpahf
kjpg;gplg;gl;Ls;sjh?
(4),t;tHf;F ;; ;;	;; chpa fhyj;jp; ;;	;; ;y; jhf;fy;
bra;ag;gl;Ls;sjh
(5)thjpf;F v; ; ;;	; d;d ghpfhuk; ;;	; ; ; fpilf;ff;
ToaJ?

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7.The plaintiff had examined himself as PW1 and one

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Shanmugam and Vairakannu as PW2 and PW3 and marked Ex.A.1 to

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Ex.A.4. The defendants had examined the Power Agent of the 3^rd defendant as DW1 and one Ahoram, Kaliyaperumal and Ramachandran as DW2 to DW4, respectively. They have marked Ex.B.1 and Ex.B.4.

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S.A.No.274 of 2003

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Besides these exhibits, the Commissioner's report and surveyors report have also been marked as Ex.C.1 to Ex.C.7.

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8.The learned District Munsif, Sirkazhi, on considering the

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evidence on record dismissed the suit for bare injunction. The learned Judge had held that though there has been a serious dispute with reference to the plaintiff's title to the suit property, the plaintiff has not taken any steps whatsoever to amend the Plaint to include the relief of declaration. The trial Court had further observed that the plaintiff has not come forward with a clear measurement of the property, possession of which, according to them was being disturbed by the defendants with linear measurements. The suit property has not been properly delineated. The learned Judge has also observed that the plaintiff has not proved the possession of the suit property as on the date of the filing of the suit. Therefore, the suit was dismissed. Challenging the said Judgment and Decree, the plaintiff has filed A.S.No.95 of 2001 on the file of the Principal Subordinate Judge, Mayiladuthurai. The learned Judge considering the evidence, arguments and the Judgment 10/16

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S.A.No.274 of 2003

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of the Court below allowed the appeal thereby setting aside the Judgment and Decree of the trial Court. Challenging the same, the defendants 2 and 3 have filed the above Second Appeal.

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9.The Second Appeal has been admitted on the following Substantial Question of law:

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“(1)When the plaintiff's predecessors in interest had

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no title to any vacant site on the West of Western wall of

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the plaintiff's house, whether the Lower Appellate Court not erred in Law in holding that the plaintiff is entitled to one cent in S.No.58/7 on the West of the Western wall of

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his house?

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(2)When admittedly the plaintiff is owning only one

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cent in S.No.58/7 and the report and plan of the Surveyor commission clearly indicate that a portion of plaintiff's house has been constructed in S.No.58/7, whether the Lower Appellate Courtnot erred in Law in holding that the plaintiff is entitled to one more cent on the West of the

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Western wall of his house?

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(3)Whether the Lower Appellate Court not erred in

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Law in placing the burden of proof on the defendants?

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misconstrued and misappropriated Ex.C.3 and C.4,

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particularly when the plaintiff had not filed any objection to the said report and plan?”

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10.Heard the learned counsels appearing on either side and perused the papers.

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11.The disputed portion is described as ABCDE in the Plan. Neither the rough Plan nor the schedule of property describes the total extent of the said area. The rough plan would indicate that the encroachment is attempted in the area extending from the Street on the South to the channel on the North in a straight line. However, a perusal of the Commissioner's report and Plan and the Surveyor's report and

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plan would show that this alleged extent is the portion into which the

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eaves of the tiled house extends. Ex.A.2 – Partition Deed includes this extent. Further, Ex.C.1 - Commissioner's Report would confirm this and he has further observed that the disputed area falls within this extent. Therefore, the plaintiff's case that the one cent purchased by them in R.S.No.58/7 is the portion in which the defendants are trying to make in roads, runs contrary to the Advocate Commissioner's report and Plan. Further, the defendants have clearly and categorically denied the plaintiff's right to any portion in R.S.No.58/7 which according to them exclusively belongs to the defendants. The Hon'ble Supreme Court in the Judgment in Anathula Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594 has clearly held that where the dispute is with reference to title and such dispute is substantial, a bare injunction suit would not suffice and there must be a prayer for declaration.

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12.Though there is a challenge to the plaintiff's title to R.S.No.58/7, the plaintiff has not chosen to amend the Plaint to include

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the relief of declaration. Further, there is no clarity with reference to identity of the portions that is now the subject matter of the suit, 13/16

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S.A.No.274 of 2003

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particularly, when the Plaint plan and the Plan that is drawn by the Advocate Commissioner and the Surveyor do not correlate. The Lower Court has picked holes in the evidence of the defendants totally overlooking the fact that it is for the plaintiff to prove the case. The case projected by the plaintiff in the description of the property and the Plaint plan is not reflected in the Commissioner's Report and the Surveyors report which is marked as Ex.C.1 to Ex.C.7. The case of the plaintiff is that the one cent is comprised in R.S.No.58/7, however, the Commissioner's report as also the order of the trial Court would show that this property is comprised in R.S.No.58/9. Further, the plaintiff has described the disputed site as being West of the Western wall of his property, whereas the Commissioner's report would indicate that beyond the Western wall, the eaves of the defendants' house projects. The plaintiff by filing this suit is asking for further extent of one cent to which he is not entitled to. Therefore, the Substantial Question of Laws are answered in favour of the defendants.

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The Second Appeal is allowed. There shall be no order as to costs. Consequently, connected Miscellaneous Petitions is closed.

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12.12.2022

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Index : Yes/No Internet : Yes/No Speaking order / Non speaking order mps

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1.The Principal Subordinate Judge, Mayiladuthurai. 2.The District Munsif, Sirkazhi.

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S.A.No.274 of 2003

P.T. ASHA, J,

mps

S.A.No.274 of 2003 and C.M.P.No.2536 of 2003

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12.12.2022

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Sakthivel v. Krishnamurthy Padayachi(Died)

Case brief

What is this about?

What did the court decide?

Sakthivel v. Krishnamurthy Padayachi(Died)

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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