IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/03/2004
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
SECOND APPEAL No.1072 of 1993
Mariappan alias Muthan .. Appellant
-Vs-
1. V.Selvan
2. Kannammal alias Lolakkal .. Respondents
This second appeal is preferred under Sec.100 of the Code of Civil
Procedure against the judgment and decree of the II Additional Subordinate
Judge, Coimbatore, dated 29.10.1992 in A.S.No.45 of 1992 reversing the
judgment and decree of the II Additional District Munsif, Coimbatore, dated
22.1.1992 in O.S.No.1181 of 1985.
!For Appellant : Mr.R.Subramanian
for Mr.S.Narayanan
^For Respondents : Mr.P.Mathivanan for R1
Mrs.N.Krishnaveni
:JUDGMENT
Aggrieved over the judgment of the II Additional Subordinate Judge,
Coimbatore, made in A.S.No.45/92, wherein the judgment of dismissal by the
trial Court was reversed and a decree was granted by the first appellate
forum, the first defendant has brought forth this appeal.
2. The plaintiff proceeded to obtain the relief of permanent
injunction with the following pleadings:
The plaintiff was entitled to 1.67 acres in Survey No.361/2, as per
the settlement deed dated 31.10.1984, executed by his grandmother Muthakkal.
She purchased the property by a sale deed dated 10.11.1941 and was in
possession and enjoyment of the same. After the settlement deed was executed
by her, the plaintiff was in possession and enjoyment of the property. The
patta was transferred in the name of the plaintiff. The defendants have no
connection to the suit property. Claiming title over the suit property, the
defendants were attempting to interfere with the plaintiff’s possession and
enjoyment of the property, and hence, there arose a necessity for the
plaintiff to file the suit.
3. The suit was resisted by the defendants stating that originally
the lands in Survey No.215/2 belonged to one Vaidhyam Chinnayya Chetty; that
he had five sons; that one of the sons namely Ayyasamy died leaving his three
sons; that there was a partition among the members on 13.2.1921; that under
the partition, the lands measuring 1.67 acres in Survey No.361/2 were allotted
to one Mallaiah Chetty, while 1.70 acres of land in Survey No.215/2 were
allotted to Chandaiah Chetty; that Mallaiah Chetty was given possession in
respect of Survey No.215/2, and Chandaiah Chetty was given possession as
regards Survey No.361 /2l; that the said partition deed was not rectified in
that regard; that Survey No.361/2 was situated on the east of Survey No.361/1,
which belonged to Nanjappa Chetty; that on the death of Chandaiah Chetty, his
sons were enjoying the property; that they sold sth share to the first
defendant’s mother on 11.6.1963 by a registered sale deed; that thereafter,
the grandson of Chandaiah Chetty namely Chinnaian sold his ,th share in favour
of the mother of the first defendant; that after her, the first defendant was
entitled to the property; that only the property in Survey No.215/2 was sold
to Muthakkal; that pursuant to the partition on 16.2.67, Survey No.215/2 was
allotted to the plaintiff’s father; that in that partition deed, Survey
No.361/2 was not shown; that the plaintiff’s father sold the property in
Survey No.215 /2 to one Marakkal; that on coming to know about this, the
mistake that has crept in while mentioning the survey number in the sale
document in favour of the first defendant’s mother, was rectified; that
thereafter only, the plaintiff managed to get a settlement deed from his
grandmother; that the survey number was wrongly mentioned in the adangal and
chitta; that the plaintiff’s family was allotted only Survey No.215/2 and not
Survey No.361/2; that the plaintiff is not entitled to the relief of permanent
injunction, and hence, his claim was to be rejected.
4. The trial Court framed the issues, tried the suit and dismissed
the same. Aggrieved, the plaintiff took it on appeal. The learned II
Additional Subordinate Judge reversed the judgment of the trial Court and
granted the decree in favour of the plaintiff, which is being challenged in
this second appeal by the aggrieved first defendant.
5. At the time of admission, the following substantial questions of
law were formulated by this Court:
(1) Whether the lower appellate Court is right in deciding the question of
title to S.No.361/1 and 2 in occupation of appellant, in the fact of the
pleading that the plaintiff is seeking a bare injunction for S.No.361/1?
(2) Whether the lower appellate Court is right in arriving at a conclusion
that the plaintiff is in possession of S.No.361/2 merely on presumption, while
the documents filed by appellant, have been proved?
6. This Court heard the learned Counsel for the appellant and also
the learned Counsel for the respondents on those contentions.
7. As could be seen above, the plaintiff sought for the relief of
permanent injunction stating that the land measuring 1.67 acres in Survey
No.361/2 belonged to him; and that he has been in possession and enjoyment of
the same. The suit was resisted inter alia by the defendants stating that the
property actually belonged to the defendants, and even as per the averments in
the plaint, the plaintiff cannot have any relief. A perusal of the judgment
of the trial Court, wherein the suit was dismissed, would clearly indicate
that though it was a suit for permanent injunction, the trial Court in extenso
has discussed the entire evidence and has recorded a finding in respect of the
title of the parties, which it was not expected to do. Equally, the same
mistake was committed by the first appellate Court, when the judgment of the
trial Court was challenged by the plaintiff. Needless to say that in a case,
where the permanent injunction is the only relief asked for, the Court fee has
not been paid and no issues have been framed in respect of the reliefs as to
the title of the parties, the Courts are not called upon to investigate into
the evidence, make discussion of the same and record a finding thereon. It is
pertinent to point out that when there was a denial of the title of the
plaintiff by the defendants, the plaintiff, though he had the opportunity, had
not utilised the same by amending the plaint to include the relief of
declaration, but has adduced evidence. The contra evidence was also adduced
by the defendants. Both the Courts below have considered in detail the rival
claims as to the title, in th e absence of either the necessary relief or the
issues or the Court fee in that regard. Without going into the merits or
otherwise of the rival contentions put forth before this Court, what are all
required to be stated is that the judgment of the lower appellate Court has
got to be set aside, and the matter has to be remitted back to the trial Court
with a liberty to the plaintiff to seek an amendment of the plaint in respect
of the prayer for declaration, and the interest of justice would also require
the same.
8. Hence, this second appeal is allowed, setting aside the judgment
and decree of the first appellate Court and remitting the matter back to the
trial Court with a direction to afford an opportunity to the plaintiff to make
necessary amendments in his pleadings, to include the prayer for declaration
in respect of the property and to pay the necessary court fee in accordance
with law. The defendants should also be given an opportunity to file
additional written statement. The trial Court is directed to frame necessary
issues thereon, give sufficient opportunity to the parties to adduce
additional evidence, if any and adjudicate upon the matter in accordance with
law within a period of three months herefrom. No costs.
Index: yes
Internet: yes
To:
1. The II Additional Subordinate Judge
Coimbatore
2. The II Additional District Munsif
Coimbatore
3. The Record Keeper
V.R. Section
High Court, Madras.
nsv/