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2013 Supreme(Mad) 1589
High Court of Judicature at Madras
G. RAJASURIA, J.
Krishnamoorthy
Versus
Nageshwari & Others
S.A.Nos. 2112 & 2113 of 2002
Decided on: 10-04-2013
For the Appellant:N. Manokaran, Advocate.
For the Respondents:D. Krishnakumar, Advocate.
The court emphasized the importance of established possession in injunction suits and the need to protect possession without necessarily seeking a declaration of title.
Headnote:
Injunction - Property Dispute - Hindu Adoption and Maintenance Act, 1956 - Section 12, Specific Relief Act - Section 38 - [O.S.No.504 of 1996 and O.S.No.270 of 1998] - Summary: Two suits were filed seeking injunction to restrain interference with possession of the suit property. The plaintiff claimed possession based on adoption deed and partition deed. The defendants claimed ownership based on adoption deed and patta. The trial court decreed in favor of the plaintiff, but the first appellate court reversed the decision. The second appeals were filed challenging the first appellate court's judgment. The substantial questions of law were related to possession, rejection of prayer for injunction, and legality of the first appellate court's judgment. The court found that the first appellate court erred in relying on documents and rejecting the plaintiff's prayer for injunction. The original suits were decreed in favor of the plaintiff.
Fact of the Case:
The plaintiff filed two suits seeking injunction to restrain interference with possession of the suit property. The plaintiff claimed possession based on adoption deed and partition deed. The defendants claimed ownership based on adoption deed and patta.
Finding of the Court:
The trial court decreed in favor of the plaintiff, but the first appellate court reversed the decision. The second appeals were filed challenging the first appellate court's judgment. The court found that the first appellate court erred in relying on documents and rejecting the plaintiff's prayer for injunction. The original suits were decreed in favor of the plaintiff.
Issues: The substantial questions of law were related to possession, rejection of prayer for injunction, and legality of the first appellate court's judgment.
Ratio Decidendi: The court found that the first appellate court erred in relying on documents and rejecting the plaintiff's prayer for injunction. The court also emphasized the plaintiff's established possession and the defendants' failure to produce evidence of possession.
Final Decision: The original suits were decreed in favor of the plaintiff. The second appeals were disposed of accordingly.
1. These Second appeals are focused by the plaintiff, namely, Krishnamurthy, animadverting upon the common judgment and decrees dated 22.2.2002 passed by the Sub Court, Bhavani, in A.S.Nos.49 and 50 of 2001, reversing the common judgment and decrees dated 24.1.2001 passed by the First Additional District Munsif Court, Bhavani, in O.S.No.504 of 1996 and O.S.No.270 of 1998, which were for permanent injunctions.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of these second appeals would run thus:
(i) Two suits, namely, O.S.No.504 of 1996 and O.S.No.270 of 1998 were filed by one and the same appellant herein, as plaintiff.
(ii) In O.S.No.504 of 1996, the plaintiff sought for bare injunction so as to restrain the defendants from interfering with his peaceful possession and enjoyment of the suit property described in the schedule of the plaint.
(iii) O.S.No.270 of 1998 was filed by the same plaintiff in respect of the same property, seeking the following relief:
"to grant permanent injunction restraining the defendants 1 to 4, their men, agents, subordinates etc. from in any way and in any manner effecting service connection in favour of the defendants 5 and 6 or their agents over the suit property."
(iv) The gist and kernel of the averments in both the plaints would run thus:
While the plaintiff was in possession and enjoyment of the suit property, the defendants holus-bolus, without having any right, started interfering with his peaceful possession and enjoyment of the suit property, which necessitated the plaintiff to file the suits.
(v) Per contra, the defendants in both the suits filed the written statement almost with identical averments, the warp and woof of the same would run thus:
(a) The suit properties described in the schedules of the plaints are misleading; in fact, the houses bearing Door Nos.12/44 and 12/44A situated in S.No.755/11 belong to the defendants by virtue of Ex.A16-the adoption deed dated 1.9.1946 in favour of Semba Gounder, the biological son of one Samba Gounder and adopted son of Sembu Rakkiagounder.
(b) The patta also stands in the names of the defendants in respect of the suit property.
Accordingly the defendants would pray for the dismissal of the suits.
(vi) Whereupon issues were framed and in both the suits, joint trial was conducted. Up went the joint trial, during which, the plaintiff examined himself as P.W.1 along with P.W.2 and marked Exs.A1 to A20. The first defendant in O.S.No.504 of 1996, namely, Nageshwari examined herself as D.W.1 along with D.W.2 and Exs.B1 to B10 were marked on the defendants' side.
(vii) Ultimately the trial Court decreed both the suits in favour of the plaintiff and as against which, the defendants, namely, Nageshwari and Manimegalai, preferred two appeals; whereupon the first appellate Court, by a common judgment, reversed the common judgment and decrees of the trial Court.
4. Challenging and impugning the common judgment and decrees of the first appellate Court, the plaintiff filed these two second appeals on various grounds and also suggesting the following substantial questions of law:
"a) Whether the decision of the first appellate Court is vitiated for non consideration of the entire oral and documentary evidence in reversing the judgment of the trial Court especially when there is no document in favour of the defendants to disprove the possession of the plaintiff over the suit property?”
b) Whether the first appellate Court was correct in refusing to accept Ex.A21 which has been marked for collateral purpose to prove possession of the plaintiff over the suit property on the date of the suit?
c) Whether the non compliance of Order 41 Rule 31 CPC will affect the validity of the judgment of the first appellate Court, in view of the law laid down by the Division Bench of this
