M. Subbaiah vs S. Alagammai

S. Rajeswaran, J.—The plaintiff in O.S. No. 73 of 2003 is the appellant before this Court. The suit in O.S. No. 73 of 2003 was filed by the

plaintiff before the District Munsif''s Court, Thiruppathur for permanent injunction restraining the defendant/respondent herein from interfering with

the plaintiff''s peaceful possession and enjoyment of the suit property.

The case of the plaintiff is that the suit property originally belonged to one Michael Nadar from whom one Palaniappan purchased the property

on 11.12.1930. The said Palaniappan released the property to the plaintiff''s father Muthukaruppa Thevar on 11.11.1947 and since then the

plaintiff''s father has been in independent possession and enjoyment of the same. The plaintiff''s father was an adopted son of one Nallathambi

Thevar. The Plaintiff''s father along with other family members executed a sale deed in favour of the defendant''s husband Pala Subbiah Thevar for

the suit schedule property on 6.6.1962 for the loan of Rs. 1000/- obtained from Pala Subbiah Thevar. Thereafter, after repaying the loan amount

to Pala Subbiah Thevar, the plaintiff''s father and other family members repurchased the same property from him on 24.4.1964. Since then

plaintiff''s father, being the only male member of the joint family property, enjoyed the property absolutely and after the death of the plaintiff''s

father, the plaintiff being the legal heir has been enjoying the property by succession. However, since the defendant tried to interfere with the

possession of the plaintiff, the above suit was laid by the plaintiff for the afore said relief.

A written statement was filed by the defendant and the suit was contested. The defendant denied that the plaintiff''s father Muthukaruppa Thevar

was an adopted son of one Nallathambi. According to the defendant, Nallathambi Kangani and Velayutha Kangani are brothers. Nallathambi had

two wives. The name of both the wives are Nachiammai only and the daughter of the second wife Nachiammai is the defendant. The wife of

Velayutha Kangani and the first wife of Nallathambi Kangani, both of them joint together and adopted the plaintiff''s father as the son on

5.11.1947. Accordingly, Muthukaruppa Thevar, namely, the plaintiff''s father was in enjoyment and possession of the suit property. The defendant

purchased the property from his mother Nachiammai and the wife of Velayutha Kangani on 20.2.1968. In respect of the said sale of the property

on 20.2.1968, there was a civil litigation initiated by the plaintiff in O.S. No. 467 of 1985 for the relief of declaration and permanent injunction. The

trial Court by a decree dated 28.4.1989 dismissed the suit with regard to the declaratory relief but decreed the suit with regard to the prayer of

permanent injunction. As against that, this defendant filed A.S. No. 77 of 1989 and the same was allowed. In respect of the denial of the relief of

declaration, the plaintiff filed in A.S. No. 114 of 1989 and the said appeal was also dismissed. As against that, the plaintiff filed two Second

Appeals in S.A. No. 521 of 1992 and S.A. No. 522 of 1992. However, both the second appeals were dismissed by this Court on 6.8.2002.

According to the defendant, from the date of purchase, she has been in possession of the property and she has perfected the title by adverse

possession also. In order to defeat her interest, the suit has been filed by the plaintiff and hence she prayed for dismissal of the suit.

On the basis of the above said pleadings, the trial court framed the following issues:

(1) Whether the plaintiff is entitled to the relief of permanent injunction?

(2) Whether the statement of the defendant that the plaintiff''s father Muthukaruppa Thevar is not an adopted son of Nallathambi Kangani is

correct?

(3) Whether the defendant is right in saying that she has perfected the title by adverse possession?

(4) Whether the suit is in hit by res judicata?

(5) To what other reliefs?

On the basis of the above issues, the trial court examined the plaintiff as PW1 and one Palanisamy was examined as PW2 and documents Exs.

A1 to A6 were marked. On the side of the defendant, the defendant was examined as DW1 and documents Exs. B1 to B12 were marked. The

trial court while considering oral and documentary evidence let in by both the sides held that there was no documents produced on the side of the

plaintiff in respect of his claim and sufficient documents were produced on the side of the defendant i.e., Exs. B9 to B12 in support of her claim.

The trial court, on that basis found that the right of the property and the possession and enjoyment of the same is with the defendant. Therefore, the

trial Court dismissed the suit. Aggrieved by the same, the plaintiff filed in A.S. No. 94 of 2006 before the Subordinate Court, Sivagangai.

On the basis of the pleadings, the lower appellate court re-framed the following issues:

(1) Whether the appeal is to be allowed and whether the judgement of the trial court is liable to be rejected?

(2) To what other reliefs?

The lower appellate court also while considering the evidence adduced by both the sides namely, oral and documentary, held that there was no

documents produced on the side of the plaintiff to prove his possession. The lower appellate court has also found that the documents filed on the

side of the defendant would prove that the plaintiff has made out a case for the decree of injunction and accordingly agreed with the findings of the

trial court and dismissed the appeal. Aggrieved by the same, the appellant/ plaintiff has filed this Second Appeal before this Court.

The Second Appeal has been filed raising the following substantial questions of law:

(1) Whether the Courts below are right in dismissing the suit, ignoring Ex.A2, which created right in respect of the suit property and in favour of the

plaintiff''s father?

(2) Whether the Courts below are right in accepting Ex. B9 patta in favour of the defendant, when the same is a nullity since the plaintiff was not

put on notice prior to its issue ?

(3) Whether the Courts below are right in applying the doctrine of estoppal as against the plaintiff in view of the earlier judgement in O.S. No.

467/1985, when the appellant/ plaintiff seeks relief on the basis of exclusive title of his father Muthukaruppa Thevar who has derived title to the suit

property vide Ex.A2?

(4) Whether the Courts below applied the correct principles of law relating to grant of injunction while considering the evidentiary materials on

record?

(5) Is not the judgements of the courts below are perverse in applying the theory of estoppal, when the plaintiff is not claiming any right on the basis

of adoption which was negatived in the earlier litigation in O.S. No. 467 of 1985?

This Court without admitting the Second Appeal on any of the substantial questions of law, ordered notice on 21.7.2008. The respondent has

entered appearance through counsel. I have heard the learned Counsel for the appellant and the learned Counsel for the respondent and I have

gone through the documents, particularly, the judgements of the both the courts below.

The learned Counsel for the appellant submits that though admittedly no documents were produced on the side of the plaintiff to prove his

possession, the defendant being a close relative of the plaintiff, produced a document, namely, patta which was given in her favour only in 2002.

Immediately on 25.8.2003, the suit was filed by the plaintiff. Therefore, the trial court ought to have seen that prior to 23.12.2002 the possession

was with the plaintiff and failure to note this aspect vitiates the judgement warranting interference by this Court.

According to the learned Counsel for the appellant, the trial court ought not to have decided the case against the plaintiff on the basis of the

patta granted in favour of the defendant, which was only given on 23.12.2002. The learned Counsel for the appellant further submits that both the

courts have committed grave error in not appreciating the possession of the plaintiff''s father. The learned Counsel for the respondent submits that

as the plaintiff, has to prove his possession and when both the Courts below, on the basis of the evidence let in, concurrently held that, the

plaintiff''s claim for possession is without any basis, this Court cannot interfere with those findings u/s 100 CPC.

In the given circumstances, I am unable to accept the submissions made by the learned Counsel for the appellant.

Admittedly, the suit is one for bare injunction and the plaintiff is to establish his case of possession on the basis of his own documents.

Admittedly, as set out in the findings of both the Courts below, no documents were produced on the side of the plaintiff to establish his possession.

In such circumstances, both the Courts below have correctly held that the plaintiff has failed to establish his possession. This being a pure question

of fact, I do not find any questions of law much less substantial questions of law arising before this Court for consideration.

In the result, the second appeal is dismissed as devoid of merits. No costs. Consequently, the connected M.P. No. 1 of 2008 is dismissed.