Smt. Viji @ Vijayalakshmi vs Smt. Jayanthi

P.R. Shivakumar, J.—The plaintiff in the original suit is the appellant in the second appeal. Having lost the legal battle before the trial Court

as well as the first appellate Court, the plaintiff has approached this Court with the present Second Appeal. The suit was filed by the appellant

herein for the relief of perpetual injunction against the respondent herein/defendant not to cause any disturbance to the peaceful possession and

enjoyment of the appellant herein/plaintiff in respect of the suit property, namely 3.56 acres (equivalent to 1.44.0H) comprised in S. No. 6,

Mutharasapuram Village, Thirukkuvalai Taluk, Nagapattinam District.

The appellant/plaintiff made the following allegations in support of her claim for the above said relief:

i) The suit property belonged to one Tmt. Kamalathatchi, who settled the same in favour of Aadhiammai W/o. Kuppusamy Thevar, by a registered

settlement deed dated 16.5.1938. As such, patta for the suit property had been issued in the name of Aadhiammai. One Akilandam was the

younger sister of Aadhiammai. While making a gift of the suit property under the above said settlement deed in favour of Aadhimmai, a burden was

cast on Aadhiammai in the very same deed to conduct the marriage of Akilandam. Some how or other Adhiammai thought it fit to get her younger

sister married to her own husband Kuppusamy Thevar as his second wife. The said Adhiammai died 30 years prior to the filing of the suit. After

the death of Adhiammai, her sister Akilandam was enjoying the suit property and she died 20 years prior to the filing of the suit. After the death of

Akilandam, her son Panneerselvam, as the absolute owner of the suit property, was enjoying the same till he died in the year 2003. After the death

of Panneerselvam, his wife Smt. Viji @ Vijayalakshmi, the appellant herein/plaintiff started cultivating the property in her own right. Thus, the family

of appellant/plaintiff was enjoying the property for more than 30 years and the same is evidenced by the Kist receipts showing the payment of Kist

by the members of the family of the appellant/plaintiff for the suit property.

ii) No doubt the respondent''s husband is the relative of the appellant/plaintiff. But, without having any right or interest in the property, the husband

of the respondent/defendant tried to prevent the cultivation of the suit land by the appellant/plaintiff, pursuant to which the appellant/plaintiff lodged

a complaint on the file of Valivalam Police Station, which was registered as Petition No. 73 of 2006. After enquiry, the respondent''s husband

assured that he would not cause any disturbance to the enjoyment of the appellant/plaintiff in respect of the suit property and based on such

assurance, the enquiry in the petition was closed. Since the respondent''s husband thereafter started to act with some ulterior motive and claimed

solatium from the Government, which culminated in the prevention of the appellant/plaintiff on 30.12.2008 from reclaiming the land, the necessity to

approach the Court for the relief of permanent injunction arose.

With the above said avements the appellant/plaintiff had prayed for a decree of permanent injunction restraining the respondent herein/defendant

from in any manner interfering with the peaceful possession and enjoyment of the plaintiff in respect of the suit property.

The suit was resisted by the respondent herein by filing a written statement containing the general denial and in brief, the following averments:

It is true that the suit property belonged to Adhiammai, W/o. Kuppusamy Thevar by virtue of a registered settlement deed dated 16.5.1938. But it

is false to state that Adhiammai got her younger sister Akilandam married to her own husband Kuppusamy Thevar as his second wife. No such

marriage was conducted lawfully. There was no lawful marriage between Kuppusamy Thevar and Akilandam. The appellant/plaintiff has

suppressed a material fact that Adhiammai and Kuppusamy Thevar had got a daughter by name Shenbagavalli. Besides the suit property,

Adhiammai got another 28 cents comprised in S. No. 65/4 in Kolappadu Village and both the suit properties and the above said 28 cents of land

were enjoyed by Adhiammai. On the death of Adhiammai, both the properties came to her daughter Shenbagavalli by way of succession. Since

Shenbagalli was not residing in the village, she used to come down to the suit village during cultivation season. She was also getting the Kist paid

through Panneerselvam, one of her relatives. Patta had also been transferred in the name of Shenbagavalli and she held patta for the suit property in

Patta No. 273. From the said Shenbagavalli, Rajendran, the husband of the respondent/defendant purchased the suit property for consideration

under a registered sale deed dated 12.11.2007 and after such purchase, the patta had been changed in the name of Rajendran and Rajendran was

in possession and enjoyment of the same. As the said Rajendran, due to his employment has gone to a foreign country, the cultivation is looked

after by the respondent/defendant personally. She had also obtained agricultural loan from a Nationalised Bank. Even the Solatium given for loss of

crop, which was erroneously given to the appellant/plaintiff, had been subsequently recovered from her and was paid to the respondent/defendant.

All the documents relied on by the appellant/plaintiff would have been obtained clandestinely with ulterior motive to claim right to the property. The

appellant/plaintiff, having no title and not even a better right than Shenbagavalli or better right than that of Rajendran, the husband of the

respondent/defendant, cannot sustain the prayer for injunction against them. As the respondent/defendant is in possession and enjoyment of the suit

property on behalf of her husband, the true owner of the suit property, no injunction can be granted against her at the instance of the

appellant/plaintiff. Even the enquiry conducted in Valivalam Police Station, the police officers, after seeing the documents, chose to warn only the

appellant/plaintiff, but the plaintiff has made averments contrary to truth. It is not correct to state that the suit property is in the possession and

enjoyment of the appellant/plaintiff and the respondent/defendant made an attempt to interfere with the same. On the other hand, with the intention

of even taking the left out yield after having been washed away by flood, the appellant/plaintiff has approached the Court with false and untenable

allegations. The appellant/plaintiff has not approached the Court with clean hands. For all the reasons stated above, the suit filed by the

appellant/plaintiff for permanent injunction against the respondent/defendant should be dismissed as not maintainable.

With the above said prayer, the respondent/defendant prayed for the dismissal of the suit with costs.

After framing necessary issues, the learned trial Judge, namely the District Munsif, Nagapattinam conducted trial in which 4 witnesses were

examined as P.Ws. 1 to 4 and 18 documents were marked as Exhibits A-1 to A-18 on the side of the appellant herein/plaintiff and three witnesses

were examined as D.Ws. 1 to 3 and 17 documents were marked as Exhibits B-1 to B-17 on the side of the respondent herein/defendant. 12

documents produced by the witnesses were marked as Exhibits X-1 to X-12. At the end of the trial, the learned District Munsif, who heard the

arguments advanced on both sides, considered the pleadings and evidence and came to the conclusion that the appellant herein/plaintiff was not

entitled to either the relief of permanent injunction or any other relief and consequently dismissed the suit with costs.

Aggrieved by and challenging the same, the appellant/plaintiff preferred an appeal on the file of the lower appellate Court, namely Sub-Court,

Nagapattinam in A.S. No. 62 of 2011. The learned Subordinate Judge (lower appellate Judge) also, after hearing, reappraised the evidence and

concurred with the findings of the trial Court in all respects, which resulted in the dismissal of the appeal confirming the decree passed by the trial

Court. Now the appellant/plaintiff is before this Court challenging the concurrent judgments of both the Courts below holding her not entitled to the

relief of permanent injunction sought for.

The arguments advanced by Mr. V. Raghupathi, learned counsel for the appellant are heard. The grounds of second appeal and other copies

produced in the typed-set of papers which includes copies of the plaint, written statement and judgments and decrees of the Courts below are also

perused.

Though at the outset the case may look like a case involving complicated issue of title, possession and right of the parties to seek injunction, the

present appeal is very simple, which can be disposed of on a short point. The appellant/plaintiff who approached the Court for the relief of

perpetual injunction has not made clear averment as to whether she is the absolute owner of the suit property. On the other hand, she has made a

simple plea that for more than 30 years she and before her, her family members were in possession and enjoyment of the suit property. In short,

she seems to have claimed only possessery right. It is trite law that possession for any length of time, without the same being coupled with animus

to make the possession an adverse possession against the true owner, such possession will not confer any title on such person in possession or a

better title as against the real owner. In this case, there has been a clever drafting of the plaint by which the tracing of title has not been clearly spelt

out. Of course, an attempt was made to show that the property originally belonged to Tmt. Kamalathatchi and by virtue of a settlement deed

executed by her on 16.5.1938, Adhiammai became the owner of the property. The certified copies of the said settlement deed have been

produced by both the parties and are marked as Exhibits A-1 and B-2 respectively. By producing the said document, the plaintiff has made a clear

admission that the property was that of Adhiammai. But, a novel plea came to be taken by the appellant/plaintiff that Adhiammai, who was saddled

with a responsibility under the settlement deed itself to perform the marriage of her younger sister Akilandam, chose to get Akilandam married to

her own husband Kuppusamy Thevar as his second wife.

Though the respondent/defendant has chosen to deny and dispute the said fact, the defendant has also made a clever drafting by contending that

no lawful marriage could have been conducted while the first wife, namely Adhiammai, was alive and during the subsistence of her marriage with

her husband Kuppusamy Thevar. In effect, the defence plea in this regard happens to be that though Adhiammai might have made her husband

marry Akilandam as second wife, the same is not a lawful marriage. Going by the age of the respective parties, we can safely came to a conclusion

that the second marriage of Kuppusamy Thevar is said to have taken place during a period when bigamy was not prohibited. Therefore, we can

accept the contention of the appellant/plaintiff that Akilandam was the second wife of Kuppusamy Thevar. But, the same will not be enough for the

appellant/plaintiff to claim derivative title from Adhiammai. Suppose Adhiammai survived her husband and died issueless, leaving Akilandam as her

sole legal heir, then Akilandam would have got the property by way of succession. On the other hand, admittedly Kuppusamy and Adhiammai had

a daughter by name Shenbagavalli. In the presence of a daughter, sister will not be a heir. Daughter being a Class I heir will totally exclude the

sister. Therefore, Akilandam could not have inherited the properties of Adhiammai. The fact that Adhiammai had a daughter by name

Shenbagavalli and Shenbagavalli sold the property to Rajendran, the husband of the respondent/defendant has been suppressed by the

appellant/plaintiff. But during the trial, the said fact was elicited from the plaintiff''s side witnesses including the plaintiff herself. Therefore, the

derivative title of the husband of the defendant claimed by the respondent/defendant remains an admitted and established one.

When the title to the suit property is proved to be vested with the husband of the respondent/defendant and the respondent/defendant claims

that she is in possession and enjoyment of the same as her husband''s representative, the appellant/plaintiff cannot succeed in her suit for permanent

injunction, unless she pleads and proves perfection of title by adverse possession or is able to show a better right falling short of title which will

have cast a restriction on the right of the title holder, she will not be entitled to the relief of permanent injunction. The cardinal principle of law that

no injunction can be granted against a true owner, of course subject to the above said exception, will squarely apply to the case on hand. Even the

claim of the appellant/plaintiff to be in possession and enjoyment of the suit property has been negatived by the trial Court and it was confirmed by

the appellate Court based on appreciation and reappreciation of evidence. Normally, the second appellate Court will not interfere with the

concurrent finding of the fact unless such finding is shown to be perverse. The appellant/plaintiff has chosen to produce some kist receipts showing

payment of Kist from April 1989 and a certificate issued by the Village Administrative Officer to the effect that the property is cultivated by the

appellant/plaintiff. She has also produced a legal heir certificate issued by the Tahsildar for being produced before the Primary Agricultural

Cooperative Bank. The said legal heir certificate simply shows that the appellant/plaintiff is a legal heir of her husband Panneerselvam. But, there is

no other document to show how Panneerselvam would have been a legal heir of Adhiammai. As pointed out earlier, since Adhiammai was

survived by a daughter by name Shenbagavalli, Panneerselvam who was the sister''s son of Adhiammai, could not have been a legal heir of

Adhiammai in respect of the suit property. All the Kist receipts produced by the appellant/plaintiff are Kist receipts showing payment of Kist in the

name of Adhiammai. The same will not be enough to show that the appellant/plaintiff or earlier her husband was in possession and enjoyment of the

suit property.

Per contra, learned counsel for the respondent/defendant has produced documents showing the issuance of patta in the name of the husband of

the respondent and also payment of Kist in his name. The respondent has also produced documents which would go to show that the relief fund

received by the appellant/plaintiff from the Government for the loss of crops was recovered from the appellant/plaintiff and paid to the

respondent/defendant. Documents have also been produced to show that periodically agricultural loan was obtained from the Primary Agricultural

Cooperative Bank in the name of Rajendran, the husband of the respondent/defendant. Adangal entries have also been made in the name of

Rajendran. All these materials were considered by the Courts below in proper perspective to arrive at a conclusion that it was the Rajendran

through the respondent and not appellant/plaintiff who was in possession and enjoyment of the suit property. The said finding cannot be termed

perverse. On that score alone the appellant/plaintiff is bound to be non-suited.

Even assuming for argument sake that the appellant is in possession of the suit property, since the title of Rajendran the husband of the

respondent/defendant stands established and the respondent/defendant claims to exercise the right of her husband as his representative, the

appellant/defendant who does not claim to have derived any title from Rajendran cannot sustain the prayer for injunction against the

respondent/defendant. Once again at the cost of repetition, this Court points out the clever drafting in this case by suing the wife of Rajendran alone

and not Rajendran, even though allegations have been made only against Rajendran that he tried to interfere with the possession and enjoyment of

the plaintiff in respect of the suit property. This will show that the plaintiff was well advised that she could not get a decree of injunction against

Rajendran, the real owner and that is the reason why she has chosen to sue the respondent, the wife of Rajendran, that too, by suppressing the fact

that Adhiammai had got a daughter Shenbagavalli through whom the husband of the respondent derived title. There is also suppression of fact and

the appellant/plaintiff has not approached the Court with clean hands. This will also add to the reasons for the rejection of the prayer made by the

appellant/plaintiff against the respondent/plaintiff for perpetual injunction. This Court finds no defect or infirmity in the judgment of the lower

appellate Court confirming the decree passed by the trial Court by which the suit of the appellant had been dismissed. No grounds for interference

is made out. Moreover, no substantial question of law is proved to have involved in the second appeal. Hence, the second appeal fails and

deserves to be dismissed at the threshold.

Accordingly, the second appeal is dismissed. No costs. Consequently, the connected miscellaneous petitions are closed.