BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 16/12/2008 Coram THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.449 of 2000 R.Shanmugampillai ... Appellant / Plaintiff vs. K.Chidambara Devar ... Respondent / Defendant Prayer This second appeal has been filed under Section 100 of CPC against the decree and Judgment dated 24.03.1997 in A.S.No.50 of 1996 passed by the learned Subordinate Judge, Pattukkottai, setting aside the decree and Judgment dated 03.07.1996 in O.S.No.588 of 1994 on the file of the Court of District Munsif, Pattukkottai. !For Appellant ... Mr.B.Karunanithi, Advocate ^For Respondent ... Mr.S.Prabhu, Advocate ----- :JUDGMENT
This appeal has been directed against the decree and Judgment in A.S.No.50
of 1996 on the file of the Court of Subordinate Judge, Pattukkottai. The
unsuccessful plaintiff before the first appellate Court is the appellant herein.
The plaintiff filed the suit for bare injunction in respect of the plaint
schedule properties, which are 0.15.5 ares in S.No.68/3 and 0.43.0 ares in
S.No.69/3 of Solaikadu village in Peraoorani Taluk.
2.The short facts in the plaint relevant for the purpose of deciding this
appeal sans irrelevant particulars are as follows:-
The old Survey number for the New.S.No.68/3 is 68/2, which is the
plaint schedule item No.1 property. The suit properties are situated in
Solaikadu, an Inam village, which was taken by the Government under the Act
26/48. The plaint schedule properties originally belonged to the ancestors of
the plaintiff viz.,Sivasubramania Chettiar and others. Since the plaintiff was
assisting the said Sivasubramania Chettiar in managing the plaint schedule
properties and other family properties, Sivasubramania Chettiar thought it fit
to execute a gift deed in favour of the plaintiff in respect of the plaint
schedule properties. On 23.2.1957 the said Sivasubramania Chettiar had executed
a gift deed in respect of the plaint schedule properties in favour of the
plaintiff. He has also orally gifted some of the family properties. The
plaintiff has lost the original of the gift deed executed by Sivasubramania
Chettiar. The plaintiff is in possession and enjoyment of the plaint schedule
properties more than the statutory period. Hence, the plaintiff has also
prescribed title to the plaint schedule properties by way of adverse possession.
The plaintiff was issued UDR patta No.260 in respect of the plaint schedule
property and the plaintiff is also paying the tax to the suit properties. The
plaintiff has executed a sale deed in respect of the properties situate on south
and west of the plaint schedule Item No.1 in favour of defendant’s wife Pumathi.
The defendant’s family is having properties around the plaint schedule
properties. Only to grab at the plaint schedule properties the defendant has
tried to trespass into the suit properties on 01.10.1994, the defendant has also
obstructed the farm-servant of the plaintiff when he tried to manure the
plaint schedule properties on 1.10.1994. Hence, the suit for bare injunction.
3.The defendant in his written statement would contend that the
defendant’s parents have purchased the plaint schedule properties from
Sivasubramania Chettiar on 7.11.1943 and patta No.122 was assigned in favour of
the defendant’s parents. In the oral partition which took place in the year
1980 the plaint schedule properties were allotted to the share of this
defendant. The plaint schedule properties are not included in the alleged gift
deed dated 23.2.1957. On the basis of the said gift deed dated 23.2.1957 the
plaintiff is not in possession of the plaint schedule properties. The defendant
and his ancestors are in continuous possession and enjoyment of the plaint
schedule properties for more than 12 years. The plaintiff is the Ex-Karnam of
the village. The UDR Patta issued in favour of the plaintiff will not bind this
defendant. This defendant had not obstructed the plaintiff as alleged in the
plaint on 01.10.1994. There is no cause of action for the plaintiff to file the
suit. Hence, the suit is liable to be dismissed.
4.On the above pleadings the learned trial Judge has framed four issues
for trial. On the side of the plaintiff P.W.1 to P.W.3 were examined and
Ex.A.1 to Ex.A.22 were marked. The defendant has examined himself as D.W.1 and
exhibited Ex.B.1 to Ex.B.3. On the basis of the oral and documentary evidence,
the learned trial Judge has decreed the suit. Aggrieved by the findings of the
learned trial Judge, the defendant has preferred A.S.No.50 of 1996 before the
first appellate Judge. The learned first appellate Judge after giving due
deliberations to the submissions made by the learned counsel on both sides and
after going through the evidence both oral and documentary let in before the
trial Court and also after going through the judgment of the learned trial Judge
has allowed the appeal, thereby dismissed the suit filed by the plaintiff, which
necessitated the plaintiff to approach this Court by way of this second appeal.
5.The following substantial questions of law are involved in this second
appeal:-
1)Whether the Lower Appellate Court has erred in holding that the
plaintiff ought to have filed a suit for declaration and not for bare injunction
ignoring that the suit for bare injunction can be filed under Section 38 of the
Specific Relief Act?
2)Is not the suit for injunction is maintainable by one co-owner
whose title is disputed and there has been an injury of a permanent character by
the other co-owner?
6.Substantial Questions of Law Nos.1 & 2:- The plaint schedule properties
are S.No.68/3 measuring 0.15.5 Ares and S.No.69/3 with an extent of 0.43.0 Ares
in Solaikadu Village, Peraoorani Taluk, Tanjure District. According to the
plaintiff, he got the plaint schedule properties under Ex.A.1- gift deed from
one Sivasubramania Chettiar. Ex.A.1 is dated 23.02.1957. The schedule to
Ex.A.1 reads as follows:-
“jq;;rht{h; o Bguht{uzp rg; o gl;Lf;Bfhl;il jhYfh jq;ir *$[py;yh
Bghh;ilr; Brh;e;j uaj;Jthhp mad; Bfhypf;fhL fpuhkj;jpy; rKjhak; rh;Bt 68y; 2
br 38, 69y; 3V br 5 Mf bkhj;jk; V1 br 43y; bghJtpy; gphpahj vd; tPjk; 10y;
1f;F brz;L 14 3/10 Bkw;go brhj;ij vGjpf;bfhLj;J nd;W Kjy; jA;fs; mDBghfj;jpYk;
tpl;Ltpl;Bld;..””
So, Ex.A.1 is not in respect of both the plaint schedule properties, but only in
respect of S.No.69/3 that too in respect of undivided 1/10th share. According
to the plaintiff, S.No.68/2 was orally gifted to him by the said Sivasubramania
Chettiar. But absolutely there is no evidence let in before the trial Court to
show that S.No.68/2 was orally gifted to the plaintiff by the said
Sivasubramania Chettiar. Per contra, the defendant relies on Ex.B.1-sale deed
dated 7.11.1943 executed by one Somasundara Chettiar in favour of the
defendant’s parents in respect of 1 1/4th share in those properties.
To substantiate his contention that the new survey number for the Old.S.No.68/2
is S.No.68/3 there is no correlation deed produced by the plaintiff. On the
basis of UDR patta Ex.A.2 the plaintiff cannot claim that he is in possession of
the entire extent in S.No.68/3 and S.No.69/3 because even as per his document
Ex.A.1 the donor has gifted only his undivided 1/10th share in S.No.68/2 and
S.No.69/3. As I have already mentioned that since there is no correlation deed
produced by the plaintiff to show that new survey number for Old.S.No.68/2 is
S.No.68/3, on the basis of UDR patta the plaintiff cannot claim that he is in
possession of the entire extent in S.No.68/3 and also in respect of the entire
extent in S.No.69/3. That is why the learned first appellate Judge has observed
in his judgment that without a suit for declaration of title in respect of the
plaint schedule properties, the suit for bare injunction in respect of the
plaint schedule property cannot be granted in favour of the plaintiff. Even in
respect of S.No.69/3 the plaintiff is not entitled to any order of injunction
because he has scheduled the entire extent of 0.43.0 Ares in the plaint
schedule. Under such circumstances, I do not find any reasons to interfere with
the findings of the learned first appellate Judge in A.S.No.50 of 1996 on the
file of the Court of Subordinate Judge, Pattukkottai, which is neither illegal
nor infirm to warrant any interference from this Court. Substantial Questions
of law Nos.1 & 2 are answered accordingly.
7.In fine, the second appeal is dismissed confirming the decree and
Judgment of the learned first appellate Judge in A.S.No.50 of 1996 on the file
of the Court of Subordinate Judge, Pattukkottai. No costs.
ssv
To,
1.The Subordinate Judge, Pattukkottai.
2.The District Munsif, Pattukkottai.