Back
2013 Supreme(Mad) 1207
HIGH COURT OF JUDICATURE AT MADRAS
G. RAJASURIA, J.
S. Kalaiarasi
Versus
Sivanmalai & Another
S.A. No. 121 of 2009 & M.P. No. 1 of 2009
Decided on : 05-03-2013
For the Appellant :N. Manokaran, Advocate.
For the Respondents:V. Raghavachari, Advocate.
The main legal point established in the judgment is the necessity of proper framing of the suit and the inclusion of a prayer for declaration of title and averments concerning the right of the plaintiff over the alleged common wall and the consequential injunction.
Headnote:
Injunction - Property Dispute - Code of Civil Procedure - 2008(6) CTC 237, 2007(4) CTC 70 - The court discussed the necessity of a prayer for declaration of title and averments concerning the right of the plaintiff over the alleged common wall and the consequential injunction. The court also highlighted the principle of res judicata and the importance of proper framing of the suit. The judgment and decree of the first appellate court were upheld, and the plaintiff was given liberty to file a fresh suit for declaration of title over the disputed wall and for consequential injunction.
Fact of the Case:
The plaintiff filed a suit seeking a decree restraining the defendants from trespassing into the suit properties and disturbing the peaceful possession and enjoyment of the plaintiff. The trial court decreed the suit, but the first appellate court reversed the judgment and dismissed the original suit.
Finding of the Court:
The court found that the suit was bad for want of a prayer for declaration of title and averments concerning the right of the plaintiff over the alleged common wall and the consequential injunction. The first appellate court was not justified in invoking Section 11 of the Code of Civil Procedure as against the plaintiff.
Issues: The issues included the necessity of a prayer for declaration of title, the application of the principle of res judicata, and the perversity or illegality in the judgment and decree of the first appellate court.
Ratio Decidendi: The court held that the suit was not properly instituted and upheld the dismissal of the original suit. It emphasized the importance of proper framing of the suit and the necessity of a prayer for declaration of title and averments concerning the right of the plaintiff over the alleged common wall and the consequential injunction.
Final Decision: The second appeal was disposed of with a finding that no interference with the ultimate dismissal of the suit by the first appellate court was warranted. The plaintiff was given liberty to file a fresh suit for declaration of title over the disputed wall and for consequential injunction.
1. This second appeal is focussed by the plaintiff inveighing the judgment and decree dated 20.10.2008 passed by the learned Principal District Judge, Erode in A.S.No.108 of 2008 in reversing the judgment and decree dated 12.03.2008 passed by the learned Principal District Munsif, Erode in O.S.No.19 of 2007.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Heard both sides.
4. A summation and summarisation of the germane facts absolutely necessary for the disposal of this second appeal would run thus:
[i] The appellant/plaintiff filed the suit seeking the following reliefs :
- to pass a decree in favour of the plaintiff and as against the defendants:-
a] restraining the defendants, their men, agents etc. from in any way and in any manner either trespassing into the suit properties or disturbing the peaceful possession and enjoyment of the plaintiff over the same by means of permanent injunction.
b] directing the defendants to pay the costs of the suit to the plaintiff.
(extracted as such)
On the main ground that the two suit items of properties were purchased vide Exs.A1-Settlement deed dated 25.04.2001 and Ex.A2 sale deed dated 07.09.2006, which are adjacent to each other and to the West of those two items, the defendants' property is situated. The defendants' attempted to trespass into the suit property; whereupon, the suit was filed. Earlier the defendants' filed the suit in O.S.No.485 of 2002 and that suit was dismissed for default on 05.11.2003.
[ii] Whereas the defendants' filed the written statement resisting the suit on various grounds, the gist and kernel of it would run thus:
Suppressing the compromise, which emerged pending the earlier suit O.S.No.485 of 2002 and also the factum of the dismissal of such suit for default, the present suit was filed as though the defendants' were trying to trespass into the plaintiff's property.
[iii] Whereupon issues were framed.
[iv] Up went the trial, during which, the plaintiff examined herself as PW1 along with PW2 and marked Exs.A1 to A6. On the defendants' side D2 examined herself as DW1 along with DW2 and marked Exs.B1to B11 and the court document Ex.C1 was also marked.
[v] Ultimately, the trial court, decreed the suit. As against which, appeal was filed by the defendants. Whereupon, the first appellate court reversed the judgment and decree of the trial court and dismissed the original suit itself.
[vi] Challenging and impugning the judgment and decree of the first appellate court, the plaintiff has preferred this second appeal on various grounds and also suggesting the following substantial questions of law:
(a) Whether the first appellate court is correct in law in dismissing the suit on the basis of Ex.B4 to Ex.B6 especially when they were prepared in the police station by threat and coercion as admitted by DW1, more so they have not been proved in the manner known to law?
(b) Whether the first appellate court has properly appreciated and applied the principle of res judicata particularly when the respondents herein who are the plaintiffs in O.S.No.485 of 2002 are debarred from defending the present suit in O.S.No.19 of 2007 filed by the appellant, in view of the dismissal of their suit in O.S.No.485 of 2002 for default?
(c) Whether the first appellate court is right in law in dismissing the suit for permanent injunction even without assigning any reasons to differ from the view taken by the trial court especially when the first appellate court is expected to meet the findings of the trial court as held in 2001(2) MLJ 69 (SC)? (extracted as such)
5. The learned counsel for the appellant/plaintiff would pyramid his argument, the warp and woof of it would run thus:
(i) The trial court correctly decided the lis understanding the real dispute between the parties and also disbelieving the said police station compromise as found embodied in Exs.B4 to B6.
(ii) The
