K.A.K.Poovanathan & Ors vs Indirani & Ors

This civil revision petition has been filed by the plaintiffs challenging the judgment passed in C.M.A.No.5 of 2016 by the learned Subordinate

Judge, Sivagangai, dated 17.06.2016, in and by which the order passed by the learned Additional District Munsif cum Judicial Magistrate,

Manamadurai, in I.A.No.110 of 2014 was confirmed.

The plaintiffs / revision petitioners filed the suit for declaration and permanent injunction against the defendants / respondents, seeking a

declaration that the sale deeds standing in the name of the defendants are sham and nominal and that it is not binding on the plaintiffs.

2.1. The relief of injunction is on three fold ie., (i) seeking direction to the defendants not to interfere with the possession and enjoyment of the

plaintiffs; (ii) not to create any encumbrance over the suit property; and (iii) not to alter the physical features of the suit property.

Brief facts leading to the filing of this petition are as follows:

(a) According to the plaintiffs / revision petitioners, the suit property originally belonged to the plaintiffs'' paternal greatgrandmother viz.,

Vairamuthammal and she had been in exclusive possession and enjoyment of the property, which is covered in S.No.34/1, in an extent of 6 acres

52 cents, located at Thiruppuavanam Puthur Village.

(b) It is the claim of the plaintiffs that they are in exclusive possession and enjoyment of the said Vairamuthammal''s entire properties, which

includes the suit property also.

(c) The suit village, inclinding the suit property, was taken over by the Government under Tamil Nadu Estate Abolition Act, 26 of 1948 and later

on, patta had been issued in the name of the Kartha of the family in Patta No.94. The property tax had been paid by the first and third plaintiffs''

grandfather - Kalimuthu Pillai.

(d) Exercising the rights over the property, the father of the plaintiffs 1 and 3 and husband of the 2nd plaintiff, viz., Kaliappa Pillai executed a

registered urufructuary mortgage in favour of one Arumugam Pillai in respect of the suit property. In 1964, there was a suit between the father of

the first and third plaintiffs and one Gurunathan Servai, who is the relative of the 4th defendant. During 2002, the father of the first and second

plaintiffs filed a suit for redemption in O.S.No.39 of 2002 and the said suit had been decreed in the year 2004 and the plaintiffs have filed

execution petition in E.P.No. 23 of 2005 in respect of the suit property ie. in respect of S.No.34 /1 and S.No.34/3A. UDR patta was issued in

favour of Thiru.Kalimuthu Pillai and Meenakshiammal (daughter of Kalimuthu pillai).

(e) In 2012, the 4th defendant had executed a registered sale deed in favour of defendants 10 to 35, of which it is claimed that the 4th defendant

had no right. That was driving factor for the plaintiffs to file this suit for declaration and injunction.

(f) The contention of the 4th defendant is that the plaintiffs father had obtained a fraudlent decree in O.S.No.39 of 2002, and therefore, that decree

would not confer any title in favour of the plaintiffs. Excepting the 4th defendant, other defendants remained ex parte in the suit in O.S.No.60 of

2014.

(g) The trial Court, after consideration of all the materials placed before it, has chosen to dismiss the application for injunction, which was also

confirmed by the first appelalte Court.

It is the claim of the revision petitioners / palintiffs that they are in exclusive possession and enjoyment of the property and possession being sine

qua non for the claim for injunction, the trial Court as well as the first appellate Court should have granted an order of injunction in favour of the

plaintiffs and that both the Courts committed mistake in dismissing the claim of injunction. The further contention is that the plaintiffs having

established prima facie case and balance of conveince (in favour of them), they are entitled to an order of injunction and the non grant of injunction

has caused irreparable damage to the plaintiffs.

The 4th defendant / 4th respondent relied upon the registered partition deed, dated 13.11.1986, and based on that, they claim possession also.

The possession, as on the date of the suit, is matieral. The 4th defendant has also relied upon the partition deed, dated 22.03.2012 and based on

that, the 4th defendant, as power agent, has dividied the poperty as plot and sold it in favour of the defendants 10 to 35 and they claim that they

are in possesion and enjoyment of the property.

The trial Court has held that the issue regarding possesion can be decided only after examination of witnesses and after giving a finding that the

plaintiffs have not established prima facie case and did not establish possession, has chosen to dismiss the application for injunction.

The grievance of the revision petitioners / plaintiffs is that the first appellate Court did not consider the tax receipts which stand in the name of the

father of the first and second plaintiffs. The main purpose of filing this civil revision petitoin seems to be that the first applelate Court has allegedly

given an observation regarding the title of the defendants, of which the plaintiffs feel that is likely to affect the trial of the suit. This has driven this

Court to consider the observation of the first appelalte Court.

The first appellate Court has considered the document relied upon by the 4th defendant ie., Ex.R3, which is a document pertaining to settlement

under which the entire property has been gifted in favour of the temple. The first appellate Court has raised a pertinent issue as to when the

property covered under Ex.A1 has been donated / gifted / settled in favour of temple under Ex.R3, where lies the title of the plaintiffs. However,

causiously the first appellate Court has put the burden of proof upon the plaintiffs. This observation cannot be construed as a finding regarding title

and it would not amount to conclusive proof regarding title. It is only a prima facie observation. It is open to the parties to adduce evidencce and to

prove the same.

The first appellate Court has commented upon the tax receipts ie. Exs.A2 to A9 that rleates to the period before 40 years. The receipts did not

indicate that those receipts pertain to the suit property (as it lacks the details of Survey number). There is also an observation that the doucment of

title has been produced by the defendants and not by the plaintiffs.

Even though several details are discussed by the trial Court as well as by the first applleate court, this Court is considered it better not to

discuss those particulars in detail as it is likely to carry weight at the time of trial. Therefore, this Court is of the opinion that less said is better as the

trial is expected to commence.

Considering the long period involved and the nature of the documents relied upon by both sides, the trial Court has rightly come to the

conclusion that the finding regarding possession can be arrived at only after trial. Rightly, it has been confirmed by the first appelalte Court also. In

all fairness, both the parties should have gone for trial, once the trial Court has given a finding that it is possible to ascertain possession only at the

time of trial. Under such circumstances, on an interlocutory application, the plaintiffs ought not to have spent much time.

The findings of the Courts below did not require any interference as it is found to be legal and correct. Considering the period of pendency of

the case and the nature of the dispute, this Court directs the trial Court to take up the case immediatley for trial and to dispose it of within a period

of three months from the date of receipt of copy of this order.

This civil revision petition is disposed of accordingly. No costs.