R. Pandurangan vs R. Munusamy

Honourable Mr. Justice G. Rajasuria

This second appeal is focussed by the defendant in the suit as against the judgment and decree dated 5.11.2004 passed by the Sub Judge,

Thiruppathur, in A.S. No. 28 of 2004 allowing the appeal against the judgment and decree dated 30.4.2004 passed by the Additional District

Munsif-cum-Judicial Magistrate, Ambur, in O.S. No. 40 of 2003, which was one for permanent injunction. The parties, for the sake of

convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of these appeals, in a few

broad strokes can be encapsulated thus:

(i) The respondent herein/plaintiff filed the suit O.S. No. 40 of 2003 seeking the following reliefs:

to pass a judgment and decree in favour of the plaintiff against the defendant;

a. restraining the defendant and his agents from interfering with my peaceful possession and enjoyment in the suit property by way of permanent

injunction;

b. directing the defendant to pay the cost of the suit to the plaintiff.

(Extracted as such)

on the main ground that he had been in possession and enjoyment of the property described in the schedule of the plaint on the strength of the

registered Will-Ex.A2, executed by his father-Ramasamy in his favour on 27.4.1998. The said Ramasamy died on 17.4.2000.

(ii) Even though the defendant is also having a share in a portion of the entire house, the suit is only for the remaining portion as found described in

the schedule of the plaint. In view of the defendant trying to disturb the possession of the plaintiff, the suit was filed.

(iii) Per contra, denying and refuting the allegations/averments in the plaint, the defendant filed the written statement resisting the suit, by contending

that the father-Ramasamy executed a registered Will-Ex.B1 dated 13.7.1998 in his favour in respect of the same suit property.

(iv) Issues were framed. During enquiry, the plaintiff examined himself as P.W.1 and Exs.A1 to A15 were marked. The defendant examined

himself as D.W.1 along with D.W.2 to D.W.5 and marked Exs.B1 to B7.

(v) Ultimately, the trial Court dismissed the suit, as against which, the plaintiff preferred the appeal; whereupon, the first appellate Court reversed

the judgment and decree of the trial Court and decreed the suit granting injunction, however with the observation that the defendant was at liberty

to file a suit to assert his title, if any.

Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the defendant preferred this second appeal on

various grounds.

My learned predecessor framed the following substantial question of law:

Whether the Court below right in holding that the plaintiff was in possession of the suit property in his individual capacity without any title when

plaintiff himself claimed possession on the basis of will which is found against him.

(Extracted as such)

On hearing both sides, to their knowledge, I have formulated the following additional substantial questions of law also.

(i) Whether the suit was bad for want of a prayer for declaration of title or for partition, based on documents of title or Ex.A2-the Will?

(ii) In the wake of the answer given by P.W.1 that there was no oral partition and also however in view of the averment in the written statement by

the defendant that for ''the purpose of convenient enjoyment of the respective shares, the rival parties started enjoying certain portions in the house

separately'', whether the appellate Court was justified in granting injunction?

(iii) Whether there is any perversity or illegality in the judgment passed by the lower Court?.

Heard both sides.

All these substantial questions of law are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with

one another.

At the outset itself, I would like to fumigate my mind with the following principles as found enunciated and enshrined in the decisions of the

Hon''ble Apex Court:

(i) (2006) 5 Supreme Court Cases 545 Hero Vinoth (Minor) Vs. Seshammal.

...

(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the

well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn

wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to

decision based on no evidence"", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the

evidence, taken as a whole, is not reasonably capable of supporting the finding.

(ii) Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, , certain excerpts from it would run thus:

It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial

question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is

mandatory that such question(s) must be formulated. The expression ""substantial question of law"" is not defined in the act. Nevertheless, it has

acquired a definite connotation through various judicial pronouncements.

A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving

at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or

legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

(iii) 2008 (4) Scale 300 Kashmir Singh Vs. Harnam Singh and Another.

(iv) 2009-1-L.W. 1 State Bank of India & Others vs. S.N. Goyal

A mere running of the eye over those decisions before getting down to the facts, would unambiguously and unequivocally exemplify and

demonstrate that the court, which is seized of the second appeal would be reluctant to re-appreciate the facts. However, it has been pellucidly and

palpably highlighted by the Hon''ble Apex Court that when there is perversity or illegality in the findings of both the courts below, the High Court

would be justified in re-appreciating the evidence and arrive at a just conclusion.

Indubitable and indisputable facts germane for the disposal of this second appeal, would run thus:.

The plaintiff, the defendant and one Subramani are the sons of the couple, namely, Ramasamy and Narayani Ammal. The said parents

purchased the house bearing door No. 4, 4th Street, Sriramapuram, Ambur Town.

Narayani Ammal pre-deceased Ramasamy. Thereafter, Ramasamy also died leaving behind the plaintiff, the defendant and the one other son,

Subramani.

Precisely it is the case of the plaintiff that the said Ramasamy, during his life time executed a registered Will-Ex.A2 dated 27.4.1998

bequeathing his half share in the entire house and also his 1/4th share in the half share of his deceased wife in the same house. The plaintiff got

released in his favour the 1/8th share of his brother Subramani and altogether including his share, he is totally entitled to 7/8th share in the entire

house.

Accordingly, the learned counsel for the respondent herein/plaintiff would develop his argument that the plaintiff was entitled to 7/8th share in

the entire house and that there was arrangement and adjustment between the parties and accordingly, excluding the 1/8th share in favour of the

defendant, the plaintiff is under the enjoyment of his 7/8th share in the house and that the defendant was disturbing the former''s possession in the

said property.

The defendant having admitted categorically the case of the plaintiff in the written statement relating to oral partition could not veer round and

contend during trial in his deposition that there had been no oral partition at all and that he got right under the alleged second registered Will-Ex.B1.

A stray answer given by P.W.1 cannot be placed reliance on, by the defendant and try to non-suit the plaintiff. Ultimately, the learned counsel

for the plaintiff would pray for dismissal of the second appeal, by contending that there is no question of law much less substantial question of law

arise in this case.

In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the defendant

would pyramid his arguments, which could pithily and precisely be set out thus:

(i) There was no oral partition much less any partition as alleged by the plaintiff. During cross-examination P.W.1 candidly and categorically pulling

no punches admitted that there was no oral partition. In such a case, the question of seeking injunction as against the co-owner is a well-neigh

impossibility. However, the first appellate Court failed to take note of this fundamental legal principle but simply granted injunction, warranting

interference in second appeal.

(ii) The first appellate Court was not justified in observing as though the plaintiff had got the right to obtain injunction and that it was for the

defendant to go for declaration, so as to, assert his right, if any. The suit itself was bad for want of a proper prayer relating to title. In such a case,

any finding rendered by the first appellate Court in favour of the plaintiff cannot be countenanced and upheld in second appeal.

(iii) Precisely the suit should have been dismissed without any finding in favour of the plaintiff.

(iv) In the written statement, the defendant did not admit that there was oral partition. All that the defendant set out in the written statement, was

only to the effect that for convenient enjoyment, the rival parties started enjoying certain portions in the house and that itself would not constitute

oral partition and that it cannot be the basis for granting injunction by the first appellate Court.

Accordingly, the learned counsel for the defendant would pray for setting aside the judgment and decree of the first appellate Court and for the

dismissal of the original suit.

The relationship between the plaintiff and the defendant is an admitted one. In this factual matrix, a bare suit for injunction as found set out in

the plaint, in my opinion, is far from satisfactory. On the one hand, the plaintiff would heavily place reliance on the alleged registered Will-Ex.A2

dated 27.4.1998, executed by Ramasamy and similarly the defendant would place heavy reliance on one other registered Will-Ex.B1 dated

13.7.1998 allegedly executed by the same Ramasamy in his favour.

So far as the said father''s total share in the suit property to the extent of 5/8th share, is not in dispute. However, there is nothing to exemplify

and demonstrate that the said 5/8th share or at least the father''s half share was ever partitioned by metes and bound at any point of time.

On the one hand the plaintiff would vaguely in his plaint narrate as though the mother''s half share was orally partitioned and in that, the

plaintiff''s 1/4th share coupled with the 1/4th share of the father and his one other brother, namely, Subramani, in the half share of the mother, were

allotted to him. There should be clear evidence in that regard, so as to constitute oral partition. Mere placing reliance on the alleged admission in

the written statement as under:

... It is admitted that this defendant''s father Ramasamy has 615 sq.ft. that is east to west 41 feet, and north to south 15 feet in the said property.

It is also admitted that the plaintiff has got 105 sq.foot and this defendant and another brother Subramani each has got 105 sq.foot in the said

property. The remaining 42 sq.foot was earmarked for common passage in the said site for the purpose of convenient enjoyment of the respective

shares. It is true that on 27.4.1998 the plaintiff''s father Ramasamy executed registered will in favour of the plaintiff in respect of the said 615

sq.foot with electric service connection and building portion. It is also true that the defendant''s father Ramasamy died on 17.4.2000. But, it is

absolutely false to allege that the said will dated 27.4.1998 came into force on 17.4.2000.

(Emphasis supplied)

would not be sufficient to fasten defendant with liability to honour the alleged oral partition.

The learned counsel for the defendant, by inviting the attention of this Court to the following excerpts from the deposition of P.W.1 during

cross-examination

VERNACULAR (TAMIL) PORTION DELETED

(Emphasis supplied)

would contend that the plaintiff himself as P.W.1, during cross-examination candidly and categorically admitted that there had been no oral

partition and in such a case, the first appellate Court was not justified in rendering a finding in favour of the plaintiff and also in granting injunction.

My mind is reminiscent and redolent of the following maxims:

(i) Affirmations est probare He who affirms must prove.

(ii) Affirmation ,non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.

It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.

The onus of proof is on the plaintiff, who is dominus litis to establish what he averred in the plaint and his case precisely. During trial, the

plaintiff examined himself as P.W.1 to prove such oral partition. He got marked the documents Exs.A1 to A15. His deposition remained only as

his ipse dixit. However, such portion of the documentary evidence by itself in no way would convey and connote that there was oral partition by

metes and bounds as alleged by him. On the other hand, the defendant examined himself along with the attesting witnesses and the Registrar to

prove the Will-Ex.B1 dated 13.7.1998 in his favour.

There is no gainsaying of the fact that on the plaintiff''s side Ex.A2-the registered Will dated 27.4.1998 was not proved as per Section 68 of

the Indian Evidence Act; however in this factual matrix such exercise was unwarranted.

I would like to shed light that proving of the Wills, namely, Ex.A2 and Ex.B1 which the plaintiff and the defendant respectively rely upon, in a

bare suit for injunction, may not arise at all.

No doubt, in all injunction suits incidentally the title could be gone into. Per contra, if there is inherent defect in the suit itself; so to say if the suit

is bad for want of a prayer for declaration of title or for partition, the Court is not expected to go in detail into the validity of the Will. Both the

Courts below failed to take notice of this fundamental principle. In fact, the trial Court wasted much of its judicial time in conducting an elaborate

trial without adverting to the aforesaid point as to whether the suit was maintainable in the absence of a prayer for declaration of title or for

partition.

The appellate Court also failed to concentrate on that point. In fact, the trail Court in an unsatisfactory manner formulated three issues, which

are vague as vagueness could be.

A trial Court is expected to read the pleadings of both sides, as envisaged under Order 14, Rule 1 of CPC and formulate necessary issues. But

that was not done in this case. The first appellate Court went tangent in simply granting injunction throwing to winds the fact that there was no

substantive relief prayed in the suit even though the parties are fighting at arms length relating to title.

Here, it is not as though the title of the plaintiff was admitted by the defendant, in such cases where the title is admitted, the question of praying

for title would not arise and a bare suit for injunction would be sufficient. But admittedly, the plaintiff and the defendant are the sons of same

couple, namely, Ramasamy and Narayani Ammal and that each one is relying upon a registered Will executed by the father. In such a case, the

Court should have, at the first instance itself driven the parties to seek appropriate legal remedy seeking suitable remedies as per law. Had that

been done, then much of the time of the parties as well as the Court could have been saved.

To put it pithily, the entire proceedings termed out to be an ill-wind that blew no one any good. A perusal of the evidence as well as the

judgments of both the Courts below would not in any way display and demonstrate that there was at the first instance any partition by metes and

bounds separating the father''s share from that of the mother''s share. However, the plaintiff would vaguely lay claim by pointing out that the

mother''s half share was partitioned, as narrated supra.

However, the defendant did not admit categorically and plainly any of those facts. In such a case, in this bare suit for injunction, the first

appellate Court was not justified in rendering any finding in favour of the plaintiff also.

At this juncture, the learned counsel for the plaintiff would raise a pertinent question that if no injunction is granted in order to protect the

admitted possession of the plaintiff, then his right of possession would be jeopardised, for which, the learned counsel for the defendant would

submit that the defendant as well as the plaintiff are in possession and enjoyment of the said house.

It is one thing to say that one co-owner cannot get injunction as against the other; and in the meantime, a co-owner in admitted possession

should not also be thrown away by another co-owner. So far this case is concerned, it is the admitted case of both that they are in possession of

the house, there is dispute regard to the extent of their possession. In such a case, neither of them should try to eject or evict or dispossess the

other and only to that much effect there could be an order by this Court and that too, in view of the fact that the parties should not be allowed to

fight in the street.

Accordingly, the first appellate Court was not justified in granting blanket injunction. Hence the order of the lower Court shall stand modified

that the status-quo should prevail which is to the effect that both the parties are in possession of the said house and that neither of the parties should

try to eject or evict or dispossess the other. The observation made by the first appellate Court in paragraph No. 10 of the judgment is not

sustainable and in fact, the observation of the Court should be to the effect that it is for either of the parties to file a suit for partition seeking

appropriate reliefs based on their respective documents and the direction made by this Court relating to maintenance of status-quo shall continue.

Accordingly, the substantial questions of law are answered as under:

Additional Substantial Question of law (i) is answered to the effect that the suit was bad for want of a prayer for declaration of title or for partition.

Additional Substantial Question of law (ii) is answered to the effect that in the wake of the evidence given by P.W.1 there was no oral partition and

that there was also no clinching evidence to show the oral partition, the bare suit for injunction was not maintainable, however, only status-quo

could be ordered as above.

In view of the ratiocination adhered to above in deciding the aforesaid additional substantial questions of law, the parties have to get their right

adjudged and divided only by filing a partition suit.

With the above, the second appeal is disposed of. The parties are directed to bear their respective costs. Consequently, connected miscellaneous

petition is closed.