High Court of Judicature at Madras
G. RAJASURIA, J.
Rajamanickam
Versus
P. Dhandapani & Others
S.A. No. 235 of 2011, M.P. No.1 of 2011 & M.P. No. 1 of 2013
Decided On : 30-07-2013
Adoption - Injunction - Order 23 Rule 1(3) of C.P.C. - 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37
Fact of the Case:
The plaintiff filed a suit seeking permanent injunction against defendants 1 to 5 for interfering with the plaintiff's possession of 'A' and 'B' schedule properties. The defendants raised issues regarding the plaintiff's adoption and ownership of the properties. The trial Court decreed the suit in respect of 'A' schedule property and dismissed the suit in respect of 'B' schedule property. The plaintiff appealed, which was dismissed, leading to the second appeal.
Finding of the Court:
The Court found that the suit was filed only against defendants 1 to 5 for injunction, and no relief was sought against defendants 6 to 8. The Court criticized the lower courts for entertaining evidence and making findings beyond the scope of the suit. It held that the plaintiff could withdraw the suit and file a comprehensive suit seeking adequate reliefs.
Issues: The issues included the burden of proof of adoption, application of mandatory principles of law, findings without drawing up any issue, acceptance of the case of the defendants in the absence of proper pleadings and proof, and shifting of burden of proof by the Courts.
Ratio Decidendi: The Court emphasized that the suit was filed only against specific defendants for injunction, and no relief was sought against other defendants. It held that the lower courts erred in entertaining evidence and making findings beyond the scope of the suit. The Court allowed the plaintiff to withdraw the suit and file a comprehensive suit seeking adequate reliefs.
Final Decision: The judgment and decree of both the Courts below were set aside, and the original suit was dismissed as withdrawn. The plaintiff was permitted to withdraw the suit and file a comprehensive suit on the same cause of action relating to the same subject-matter.
1. This Second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated 21.6.2010 passed by the Subordinate Court, Madurantakam, in A.S.No.40 of 2009 in confirming the judgment and decree dated 19.6.2009 passed by the District Munsif, Madurantakam, in O.S.No.175 of 2005, which was one for permanent injunction.
2. The parties 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 this second appeal would run thus:
(a) The appellant herein, as plaintiff, filed the suit seeking the following reliefs:
"(i) Grant permanent injunction restraining the defendants 1 to 5, their men, agents, and representatives from any way interfering with the plaintiff's peaceful possession and enjoyment of the suit 'A' schedule property and
(ii)Grant permanent injunction restraining the defendants 1 to 5, their men, agents, and representatives from any way interfering with the plaintiff's peaceful possession and enjoyment of the suit 'B' schedule property and
(iii)To direct the defendants to pay the cost of the suit to the plaint."
(extracted as such) as against the defendants in respect of the 'A' and 'B' schedule of properties as under: Schedule of Property 'A' Schedule Property Property situate at Kancheepuram Dt.Cheyyur Taluk, Chithamoor Village,
1. Dry S.No.106/4B, O.35 cents. Out of 1.27 cents, bounded on the south by street, east by 'B' schedule, West by Venu Pillai, North by Ranganayagi's land.
2. Dry S.No.106/4B, 0.03 cents bounded on the south by street, east by Thendarai Kistha Pillai, North and West by Natesa Mudaliar.
'B' Schedule Property
3. Dry S.No.106/4B, 0.70 cents bounded on the north by Rangurama Reddiar, West by 'A' Schedule Item No.2 and road, east by Thandrai Krishna Pillai. (extracted as such) (b)The gist and kernel of the averments in the plaint would run thus: 'A' scheduled property described in the schedule of the plaint belongs to the plaintiff absolutely, as he purchased the same, vide sale deed dated 5.5.1963. 'B' scheduled property belongs to the plaintiff and D6 to D8 jointly as they are co-owners. while so, the defendant Nos.1 to 5, in collusion with defendant Nos.6 to 8, objected to the transfer of patta and that D1 and D5 were attempting to trespass into the suit properties. Hence the suit.
(c) Per contra, D1 to D5, as against whom the reliefs were sought, remained ex-parte and no written statement also was filed by them. D7 also remained ex-parte.
(d) However, written statement was filed by D6 and D8, the warp and woof of the same would run thus:
(i) The plaintiff is not the brother of D6 to D8. The plaintiff was given in adoption to one Ekambara Mudaliar of Purasaiwakkam, Chennai, even while he was a child. W herefore, the plaintiff lost his right in the biological father's properties, so to say, Natesa Mudaliar's properties.
(ii) Plaint 'B' Scheduled property is the absolute property belonged to D6 to D8 and the plaintiff cannot claim any right over it, as he is not entitled to any share in Natesa Mudaliar's properties.
(iii) Under two sale deeds, the 'A' schedule of property was purchased by the plaintiff from out of the funds provided by D6 to D8. As such, D6 to D8 are also entitled to their shares in the 'A' schedule of property as co-owners.
(iv) D1 to D5 are the legal heirs of one Mangaiyarkarasi, who sold an extent of 1.15 cents of land referred to in the 'A' schedule of property. As such, this is a vexatious suit.
(v) Rejoinder was filed by the plaintiff refuting the contention raised by the defendants that the plaintiff was not the legal heir of Natesa Mudaliar, as according to the plaintiff, there was no adoption as alleged by the defendants.
(vi) Whereupon issues were set down for trial, during which, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A12. On the defendants' side, D8 was examined as D.W.1 and no document was mark
R. Rathinavel Chettiar v. V. Sivaraman, (1999) 4 SCC 89
Thakur Singh v. A Achuta Rao (1977)2 APLJ 111);
Kedar Nath v. Chandra Kiran (AIR 1962 All 263);
Vidhydhar Dube v. Har Charan (AIR 1971 All 41);
Lala Chatram v. Krishnammal (1984) 1 MLJ 28;
Ram Dhan v. Jagat Prasad Sethi (AIR 1982 Raj 235).
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