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IN THE HIGH COURT OF JUDICATURE AT MADRAS
B. RAJENDRAN, J.
Velu - Appellant
Versus
Rajathi and others - Respondents
Second Appeal No. 369 of 2009 and M.P. No. 1 of 2009, M.P. No. 1 of 2011
Decided On : 22-12-2014
Registration Act - Section 32 - Injunction to restrain - Suit claiming share in the suit property – Circumstances evidence - Peaceful possession and enjoyment of suit property - Plaintiff also let out a portion of suit property to tenant and is in receipt of rental income - While so third defendant has filed a suit file of Subordinate Judge contending that first defendant has no exclusive saleable right over suit property and that sons and daughters of first defendant are entitled for a share in suit property - Therefore third defendant has filed suit claiming share in suit property - On basis of pendency of suit in was claimed by third defendant that sale made in favor of plaintiff was cancelled by means of a cancellation deed and that plaintiff has no right over suit property - Third defendant also attempted to interfere with suit property enjoyed by plaintiff and it was resisted by him successfully with help of his neighbors - In those circumstances plaintiff has filed present suit in relief of bare injunction – Held, senior counsel for defendants also relied on decision of Honorable Supreme Court in case of by Legal heirs and others Law Weekly to contend that when there is cloud in title plaintiff has to necessarily file a suit for declaration and suit for bare injunction is not maintainable - As mentioned above there is no cloud with respect to title to suit property - Suit property was purchased by plaintiff by a registered sale deed - In such circumstances decision relied on by senior counsel for defendants is not applicable to facts of this case - Learned senior counsel for respondents also relied on decision of this Court rendered in for proposition that fraud vitiates everything - Relying on this decision it is stated that sale in favor of plaintiff is vitiated by fraud - In this case though first defendant pleaded that her thumb impression were obtained in blank papers and she was confined in a house at Madras for some time she has not chosen to give any police complaint or she has taken any steps to get sale deed cancelled in a manner known to law - Only after four months thereafter she has executed unilateral cancellation deed without knowledge of plaintiff - In such circumstance this decision also do not lend support to claim of respondents - Both courts below have failed to appreciate correct proposition of law with regard to unilateral cancellation - Question of title pleaded by plaintiff ought to have been gone into by Courts below when there is a denial on part of defendants - Defendants admitted possession of plaintiff - Plaintiff also filed writ petition before this Court and by virtue of an order sale deed itself was cancelled by this Court - Therefore court of view that decree and judgment passed by Courts below cannot be sustained - In present case even as per admission of first defendant plaintiff is in possession of suit property - In such circumstance suit filed by plaintiff for bare injunction is maintainable - This part of evidence of first defendant has not been properly appreciated by courts below - Therefore court of view that first substantial question of law also has to be answered in favor of plaintiff appellant - appeal is allowed
The unsuccessful plaintiff before the courts below is the appellant in this second appeal. The Plaintiff has filed the suit in O.S. No. 81 of 2004 for bare injunction to restrain the defendants/respondents herein from interfering with his peaceful possession and enjoyment of the suit property.
2. According to the plaintiff, in the plaint, the first defendant was the owner of the suit property having purchased the same out of her own funds on 01.05.1972. From the said date, the first defendant became owner of the suit property exclusively. The second defendant is the husband of the first defendant. The third defendant is the son of the first defendant. The plaintiff is the son-in-law of the defendants 1 and 2. While so, in order to settle the loan availed by the first defendant with Tindivanam Urban Bank to meet the marriage expenditure of her daughter, the first defendant intended to sell the suit property. The Plaintiff, after deliberations, has purchased the suit property by means of a registered sale deed dated 06.03.2003 executed by the first defendant for a valuable sale consideration of Rs.8,00,000/-. In the said sale deed, the daughter of the first defendant, who was examined as PW2, also attested as witness. According to the plaintiff, PW2 is a lawyer besides she is the sister-in-law of the plaintiff and it is not as though she has attested the sale deed without any knowledge. From the date of such sale, the plaintiff is in peaceful possession and enjoyment of the suit property as an exclusive owner. The plaintiff also let out a portion of the suit property to the tenant and is in receipt of rental income. While so, the third defendant has filed a suit in O.S. No. 41 of 2003 on the file of Subordinate Judge, Tindivanam contending that the first defendant has no exclusive saleable right over the suit property and that the sons and daughters of the first defendant are entitled for a share in the suit property. Therefore, the third defendant has filed the suit claiming 1/4 share in the suit property. On the basis of pendency of the suit in O.S. No. 41 of 2003, it was claimed by the third defendant that the sale made in favour of the plaintiff was cancelled by means of a cancellation deed dated 18.07.2003 and that the plaintiff has no right over the suit property. The third defendant also attempted to interfere with the suit property enjoyed by the plaintiff and it was resisted by him successfully with the help of his neighbours. In those circumstances, the plaintiff has filed the present suit in O.S. No. 81 of 2004 for the relief of bare injunction.
3. The suit was resisted by the first defendant by filing a written statement. In the written statement, it was claimed by the first defendant that the sale deed dated 06.03.2003 was executed by her in favour of the plaintiff out of threat, coercion and intimidation. The sale deed was not executed voluntarily but she was forced to execute the sale deed in favour of the plaintiff. There was no sale consideration received by the first defendant pursuant to execution of the sale deed dated 06.03.2003. For the purpose of execution of the sale deed dated 06.03.2003, the plaintiff forcifully obtained the thumb impression of the first defendant in blank papers. Thereafter, the first defendant was taken to Madras and she was confined in the house of the plaintiff for some time. However, the first defendant escaped from the clutches of the plaintiff and came back to Tindivanam. After reaching Tindivanam, she has given a complaint to the Sub-Registrar seeking to cancel the sale deed dated 06.03.2003 executed in favour of the plaintiff. In those circumstances, the sale deed dated 06.03.2003 executed in favour of the plaintiff was duly cancelled by the first defendant by executing a deed of cancellation dated 18.07.2003. Therefore, by virtue of the deed of cancellation dated 18.07.2003, the plaintiff has no right, title or interest to deal with the suit property. It was also conten
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