Maruthamuthu vs Kaliaperumal (died) and Others

G. Rajasuria, J.—This second appeal is focussed by the original Plaintiff, animadverting upon the judgment and decree dated 11.11.2005

passed in A.S. No. 15 of 2004 by the learned Subordinate Judge, Kallakurichi, in reversing the judgment and decree of the learned II (I/c) III

Additional District Munsif, Kallakurich in O.S. No. 595 of 2000. For convenience sake, the parties are referred to hereunder according to their

litigative status and ranking before the trial Court.

The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run

thus:

(i) The Plaintiff who happened to be the Appellant herein filed the suit seeking injunction, so as to restrain the Defendants from interfering with the

suit property which happens to be an agricultural land.

(ii) The Defendants filed the written statement and resisted the suit.

(iii) Whereupon issues were framed. During trial, the Plaintiff examined himself as P.W.1 on his side and Exs.A1 to A6 were marked. The second

Defendant examined himself as D.W.1 on Defendants'' side and Exs.B1 and B2 were marked.

Ultimately, the trial Court decreed the suit. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the appeal was

filed, whereupon, the appellate Court reversed the findings of the trial Court and set aside the judgment and decree of the trial Court on the main

ground that the suit for bare injunction would not lie.

Challenging and impugning the judgment of the first appellate Court, the Plaintiff filed this Second Appeal on various grounds inter alia thus:

The first appellate Court failed to take into consideration the reasoned judgment of the trial court. The appellate Court while reversing the judgment

of the trial Court, should necessarily go into all aspects of the matter, but the appellate Court in its cryptic judgment, simply set aside the findings of

the trial Court warranting interference of this Court in the Second Appeal.. The appellate Court wrongly held that a bare suit for injunction would

lie even though it is crystal clear that Jambulingam had exclusive right over the suit property and he validly sold the same in favour of the Plaintiff.

Accordingly, the learned Counsel for the Plaintiff prays for setting aside the judgment of the appellate Court and for restoring the judgment and

decree of the trial Court.

My learned Predecessor formulated the following substantial questions of law:

Whether the judgment of the lower appellate Court is vitiated in dismissing the suit for bare injunction when the Appellant herein proved his

exclusive possession over the suit property by producing patta Ex.A2?

Whether the judgment of the lower appellate court is liable to be set aside in its failure to consider entire evidence on record especially while

reversing the findings of the trial court?

Whether the alleged sale deed in favour of the Respondents will have any sanctity in law in the absence proof to show that it was supported by

consideration?

(extracted as such)

Heard both sides.

The learned Counsel for the Plaintiff reiterating the grounds of appeal as found set out supra would advance his arguments and also cited the

decision of the Andhra Pradesh High Court reported in Nelli Narasimha Reddy Vs. Vadla Krishnaiah and Others, . He would also further submit

that the Plaintiff adduced ample evidence before the trial court that following the enjoyment of Jambulingam, who is the vendor of the Plaintiff, the

Plaintiff continued in possession of the suit property and as such, his exclusive possession and enjoyment was recognised by the trial Court and

granted injunction warranting no interference by this Court in the Second Appeal.

By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the Plaintiff, the learned Counsel for the Defendants

would advance his arguments which could tersely and briefly be set out thus:

(a) The Hon''ble Apex Court in the decision reported in Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. And Ors. 2008 (6) CTC 237

categorically pointed out that if there is any cloud relating to the title of the Plaintiff, then he would not be justified in filing a simple suit for bare

injunction without praying for declaration of title.

(b) Maruthamuthu, the Plaintiff is none but the husband of the said Jambulingam''s sister and in such a case, the Plaintiff cannot plead ignorance

about the pros and cons involved in this matter and also about the share of Alamelu in the suit property.

(c) The said Alamelu, indubitably and unarguably, undeniably and incontrovertibly was the unmarried daughter of Jambulingam as on the date of

commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (I of 1990) and in such a case, she was also one of the co-sharers.

In fact, Jambulingam was entitled to half share and Alamelu was entitled to the remaining half share in the admitted ancestral property which

happens to be the suit property. Maruthamuthu was fully aware of all these facts and he is alleged to have purchased the suit property on

06.05.1999, on 04.05.1999 Alamelu executed the sale deed in favour of the Defendants. The fact also remains that subsequently, Alamelu joining

hands with her father allegedly and falsely cancelled the sale deed dated 04.05.1999 executed by her in favour of the Defendants and such

unilateral cancellation is having no probative force in the eye of law.

(d) It is not the Defendants who approached the Court seeking for any relief and in such a case, the trial Court was not justified in driving the

Defendants to file a suit for partition. Had the Defendants sought any relief from the Court, then the onus probandi would be on them to justify their

stand while seeking relief, but they had not approached the Courts for any relief and hence in such a case, the observation made by the trial Court

and the findings given by the trial Court are not at all warranted.

(e) The appellate Court considered the germane facts that Alamelu being the unmarried daughter as on the date of commencement of the Act, was

entitled to half share in the suit property and in such a case, Jambulingam was not justified in simply putting the Defendants in trouble and alienate

the entire suit property in favour of his brother-in-law Maruthamuthu.

Accordingly, the learned Counsel for the Defendants prays for the dismissal of the Second Appeal.

I would like to fumigate my mind with the relevant decision of the Hon''ble Apex Court reported in 2008(6) CTC 237 [Anathula Sudhakar v .P.

Buchi Reddy (Dead) by Lrs. and Ors.], an excerpt from it would run thus:

We may however clarify that a prayer for declaration will be necessary only if the denial of title by the Defendant or challenge to Plaintiff''s title

raises a cloud on the title of Plaintiff to the property. A cloud is said to raise over a person''s title, when some apparent defect in his title to a

property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the

cloud on the title to the property. On the other hand, where the Plaintiff has clear title supported by documents, if a trespasser without any claim to

title or an interloper without any apparent title, merely denies the Plaintiff''s title, it does not amount to raising a cloud over the title of the Plaintiff

and it will not be necessary for the Plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the Plaintiff, believing that

Defendant is only a trespasser or a wrongful claimant without title, files a mere Suit for injunction, and in such a Suit, the Defendant discloses in his

defence the details of the right or title claimed by him, which raises a serious dispute or cloud over Plaintiff''s title, then there is a need for the

Plaintiff, to amend the Plaint and convert the Suit into one for declaration. Alternatively, he may withdraw the Suit for bare injunction, with

permission of the Court to file a comprehensive Suit for declaration and injunction. He may file the Suit for declaration with consequential relief,

even after the Suit for injunction is dismissed, where the Suit raised only the issue of possession and not any issue of title.

At this juncture, I hark back to the following maxim:

Judicia Posterioriora Sunt in lege fortiora - The later decisions are stronger in law.

Accordingly if viewed, the Hon''ble Apex court clearly highlighted and spotlighted various categories of cases wherein, the prayer for

declaration of title is a must on the part of the Plaintiff. No doubt, the plaint is brief as brevity could be. Only the Defendants raised the title dispute

by pointing out that Alamelu, the vendor of the Defendants was entitled to half share in the ancestral property, but suppressing those facts, the

Plaintiff projected the case before the Court as though Jambulingam was the exclusive owner of the property and sold the same in favour of the

Plaintiff.

My mind is redolent and reminiscent of one other decision of this Court reported in Chinna Nachiappan and Anr. v. PL. Lakshmanan 2007 (4)

CTC 70. As such, I had on earlier occasion, the chance of deciding a case, wherein, I held that even a trespasser in established possession could

seek for injunction leaving the Defendant to file a regular suit, if so advised.

The gist and kernel, the pith and marrow of the contention of the learned Counsel for the Plaintiff, is that the alleged exclusive possession and

enjoyment of Jambulingam, was there in favour of the Plaintiff on the date of executing the sale deed dated 06.05.1999.

Tersely and briefly, his contention tries to attract the following maxim:

Jus superveniens auctori accrescit successori - An additional or enhanced right for the possessor accrues to the successor.

No doubt, if there is evidence to show that Jambulingam was in exclusive possession and enjoyment of the entire suit property and consequent

upon the sale deed dated 06.05.1999 executed by Jambulingam in favour of the Plaintiff, the latter stepped into the shoes of former and continued

the possession and enjoyment of Jambulingam relating to suit property for a considerable time and remained in established possession, then he

would be entitled to injunction as canvassed by the learned Counsel for the Plaintiff.

However, the learned Counsel for the Defendants would point out that as on the date of the alleged sale deed dated 06.05.1999 executed by

Jambulingam, the said suit property remained as the joint property of Jambulingam and Alamelu and they were in joint possession.

At this juncture, I recollect the trite proposition of law that even for argument sake it is taken that Alamelu could not prove as per revenue

records that she was exclusively in possession of the said property, yet possession by one co-owner would tanatamount to possession by another

co-owner. There is nothing to show that Alamelu was ousted from possession. As such, in the absence of any plea of ouster and in the absence of

any clinching evidence to indicate and exemplify ouster, it cannot be held that a suit for bare injunction would be maintainable. The Hon''ble

Supreme Court also without mincing words pointedly pointed out that if a busy body or a way farer simply questions the title of the real owner and

tries to interfere into his possession, the real owner is not bound to pray for declaration of his title and a simple suit for injunction would be

sufficient, but here that is not the case. The Defendants as per the sale deed dated 04.05.1999 claimed to have stepped into the shoes of Alamelu,

who in the facts and circumstances of the case turned out to be one of the co-sharers of the suit property in view of the Hindu Succession (Tamil

Nadu Amendment) Act, 1989 (I of 1990) and in such a case, it cannot be stated that the Defendants vainly and vaguely in a cavalier manner

simply challenged the title of Jambulingam, the vendor of the Plaintiff and the Plaintiff.

The principle of res ipsa loquitor is also applicable in this case, for the reason that the sale deed dated 04.05.1999 emerged at the instance of

Alamelu in favour of the Defendants. Whereas, the sale deed in favour of the Plaintiff emerged on 06.05.1999. As such, almost during one and the

same period of time both the sale deeds emerged and those facts would speak by themselves that even before the filing of the suit there arose a

title dispute between Jambulingam and Alamelu and in such a case, the Plaintiff cannot be heard to say that he being the brother-in-law of

Jambulingam and uncle of Alamelu, was not aware of the title dispute and that he was allegedly not bound to pray for any declaration of the title.

The learned Counsel for the Defendants also would point out that unilaterally for the reasons best known to Alamelu she cancelled the sale

deed dated 04.05.1999 on 27.06.2000 and the Plaintiff Maruthamuthu filed the suit shortly thereafter on 12.07.2000. As such I could see that the

Plaintiff filed the suit suppressing the serious title dispute involved in this case and the appellate Court in its short judgment dealt with those aspects.

No doubt, the appellate Court was not elaborate in its judgment, but even then it caught the essence of the matter and set aside the judgment and

decree of the trial Court which had not taken into account all these salient features.

The learned Counsel for the Defendants in order to buttress and fortify his contention cited the following decisions:

(i) The Division Bench judgment of this Court reported in [L.RMK.L. Kannan alias Ramakrishnan and Ors. v. L.RMK. Valliappa Chettiar and

Ors. (2003) 1 MLJ 179

(ii) The decision of the Orissa High Court reported in Lingaraj Misra and Others Vs. Bhubaneswar Mohapatra and Others,

(iii) The decision of the Kerala High Court reported in I. Gouri and Others Vs. C.H. Ibrahim and Another, .

In view of the decision of the Hon''ble Apex Court cited supra, I am of the view that necessarily the Second Appeal has to be dismissed as I

could see no perversity or illegality in the judgment passed by the appellate court in setting aside the judgment and decree of the trial Court and in

dismissing the original suit.

Accordingly, the substantial question of law No. 1 is decided to the effect that the judgment of the appellate Court is not vitiated in dismissing

the suit for bare injunction.

The substantial question of law No. 2 is decided to the effect that the judgment of the appellate Court is not liable to be set aside on the alleged

ground that it failed to take into consideration the entire evidence on record.

The substantial question of law No. 3 is decided to the effect that in a suit for bare injunction the question of deciding about the passing of

consideration under the sale deed executed by Alamelu in favour of the Defendants does not arise at all.

Accordingly, this Second Appeal is dismissed. No costs.