This second appeal challenging a permanent injunction order over a vacant land was dismissed. The court held no substantial question of law arose as the defendant admitted the plaintiff's title, and issues regarding impleaded purchasers were not viable grounds for relief.
Second Appeal dismissed; Judgment and Decree of Courts below 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.
S.A.No.341 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.12.2022
CORAM
THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN
Second Appeal No.341 of 2017 and
Civil Miscellaneous Petition No.8111 of 2017
Krishnamoorthy @ Kunju (since deceased) rep. by his L.Rs
Versus
1.Smt.Sundari Ammal
4.Senthil
... Respondents
Prayer: The Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree made in A.S.No.91 of 2011 dated 17.10.2012, on the file of the Principal Subordinate Court, Mayiladuthurai confirming the Judgment and decree in O.S.No.306 of 2003 dated 21.04.2011, on the file of the District Munsif @ Sirkali.
For Appellants : Mr.K.M.Subramaniam
For Respondents : Mrs.S.Radha Gopalan
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S.A.No.341 of 2017
JUDGMENT
The Second Appeal had been filed by the defendant in O.S.No.306
of 2003, on the file of the District Munsif Court at Sirkali.
1st appellant herein, or anybody acting under him from interfering with peaceful possession of the suit schedule property.
had been described as her Kariayasthar. The 3rd and 4th plaintiffs had been impleaded in the suit consequent to their purchase of the suit schedule property by a Sale Deed, dated 01.09.2004. Pending the suit, they had been impleaded as 3rd and 4th plaintiffs by an order dated 12.09.2006 in 2/8
S.A.No.341 of 2017
I.A.No.275 of 2006. The deceased 1st appellant herein was the only defendant in the suit. He had filed a written statement and in paragraph No.3 of the written statement had stated as follows:
“ It is true to say, that the 1st plaintiff was the owner of the property”.
but claimed that he was in possession or rather that the 1st plaintiff was not
in possession. Once that fact is stated by the 1st defendant then, there is a burden cast on the said defendant to establish that he is in possession by producing relevant documents.
receipts had not been produced by him to establish possession.
were not sought to be produced before the First Appellate Court, under
Order 41 Rule 27 of the Code of Civil Procedure.
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S.A.No.341 of 2017
respondents/plaintiffs are in possession of the suit schedule property. It is a concurrent finding of the fact.
2nd , 3rd , 4th and 5th appellants have been brought on record.
counsel that the 2nd and 3rd appellants had passed away. Time was sought to implead the legal representatives.
months. Still steps have not been taken. The 2nd , 3rd and 4th appellants only
step into the shoes of the deceased 1st appellant herein. They cannot claim any independent right over the property or can they advance any different
stand than taken by the deceased 1st appellant who was the only defendant in the suit.
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S.A.No.341 of 2017
had been adjourned without being admitted for the past five years. Even
though the 2nd and 3rd appellants are dead, I hold that there is no merit in the Second Appeal. The only two substantial questions of law as drafted at the time when the appeal was filed, is whether the 3rd and 4th plaintiffs were necessary parties. They are purchasers and they had been impleaded consequent to an order in an Interlocutory Application. That order has attained finality. Therefore the said issue cannot be taken as a point of law in the Second Appeal.
the memorandum of grounds also revolves around the sale to the 3rd and
4th plaintiffs. As stated, they had been impleaded consequent to an order of 5/8
S.A.No.341 of 2017
law.
the Court which has not been challenged or set aside in manner known to law.
though the 2nd and 3rd appellants are dead, it would not preclude me from passing final orders in the Second Appeal.
06.12.2022
Index:Yes/No Speaking Order : Yes/No ssi
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S.A.No.341 of 2017
To
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S.A.No.341 of 2017
C.V.KARTHIKEYAN,J.,
ssi
S.A.No.341 of 2017 and C.M.P.No.8111 of 2017
06.12.2022
8/8
2 issues framed by the court
Whether a second appeal lies when the defendants admit the plaintiffs' title but contest possession.
Whether impleaded purchasers under a final interlocutory order can form a substantial question of law in a second appeal.
Krishnamoorthy @ Kunju Rep. by his L.Rs
Ramadoss
Rajendiran
Ravi
Panneerselvam
Sundari Ammal
C.V. Karthikeyan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
