2018 Supreme(Mad) 4288
IN THE HIGH COURT OF MADRAS, MADURAI BENCH
S.S. SUNDAR, J.
S. Velsamy - Appellant
Versus
Esakkiammal - Respondent
S.A.(MD)Nos. 738 and 772 of 2013 and M.P.(MD)Nos. 1 and 1 of 2014 and M.P.(MD)Nos. 2 and 2 of 2013
Decided On : 13-06-2018
For the Appellants :Mr. Prabhu Rajadurai, Advocate
For the Respondents:Mr. H. Arumugam, Advocate.
Headnote:
Indian Penal Code, 1860 - Sections 147, 294(b), 323 and 324 - Property case - Permanent injunction - Plaintiff filed the suit in O.S. on the file of the Subordinate Court, for permanent injunction restraining the appellants herein from interfering with his peaceful possession and enjoyment of the suit properties - Held, Though it is true that the Civil Courts jurisdiction is barred in view of Section 16-A of the Act, the Court is not precluded from deciding the question of possession in a case, where the suit is for bare injunction - High Court will not interfere with the question regarding the factum of possession in second appeal - Second appeals dismissed
S.S. SUNDAR, J.
1. The defendants in the suit O.S.No.69 of 2011 on the file of the Subordinate Court, Thoothukudi, are the appellants in S.A.(MD)No.738 of 2013. The defendants in O.S.No.68 of 2011 on the file of the Subordinate Court, Thoothukudi, are the appellants in S.A.(MD)No.772 of 2013. Since both the cases are identical and the defendants in the both the suits are same parties, these two appeals are disposed of by this common judgment.
2. The facts of the case in S.A.(MD)No.772 of 2013 are as follows:
2.1. The respondent in S.A.(MD)No.772 of 2013 as plaintiff filed the suit in O.S.No.68 of 2011 on the file of the Subordinate Court, Thoothukudi, for permanent injunction restraining the appellants herein from interfering with his peaceful possession and enjoyment of the suit properties. The suit properties are nanja lands, which are comprised in three survey numbers, namely, Survey Nos.80/1, 83/2 and 81 and described in four items. All the properties are contiguous and situated in Uzhakudi Village, Srivaikundam Taluk, Tuticorin District.
2.2. The case of the plaintiff is that Item Nos.1 and 2 of the suit schedule properties belonged to one Sheik Mohaideen by virtue of a registered gift deed dated 30.07.1976 and a sale deed dated 18.11.2004. It is the further case that Item Nos.3 and 4 of the suit schedule properties were ancestral properties of one Idhurus Goya and the said properties were purchased by the plaintiff subsequently through the Power Agent of the said Idhurus Goya on 13.10.2010. Similarly, the plaintiff states that the properties described as Item Nos.1 and 2 were also purchased by him on 13.10.2010 from Sheik Mohaideen.
2.3. It is the further case of the plaintiff that patta for the suit properties stood in the name of the plaintiff's predecessors in interest before his purchase and that patta was transferred in the name of plaintiff after the purchase. It is also stated that the defendants have no right or enjoyment over the suit properties and that they are inimical towards the plaintiff, because the plaintiff refused to sell the property to them for an unreasonably low price. The plaintiff further states that the defendants are rowdy elements and they are making strenuous attempts to grab the plaintiff's land. It is alleged that a complaint was lodged against the defendants on 14.10.2010 in Crime No.226 of 2010 for offences under Sections 147, 294(b), 323 and 324 IPC against the defendants and that a further complaint was lodged in Crime No.55 of 2011 against the defendants for making an attempt to the life of the plaintiff. It is in these circumstances, the plaintiff states that he was constrained to file the suit.
2.4. The second defendant in the suit in O.S.No.68 of 2011 filed a written statement denying the averments made in the plaint by para-wise. It is the case of the second defendant that the suit properties are in enjoyment of the defendants from their father's time and that they are cultivating tenants. Except stating that the defendants are in physical enjoyment as cultivating tenants, the details of tenancy are not stated. Even the person under whom the defendants claim tenancy is not stated in the written statement.
2.5. Before the trial Court, the plaintiff examined himself as P.W.1. Apart from examining P.W.2 to P.W.4 in O.S.No.68 of 2011, the plaintiff filed Ex.A1 to Ex.A10 and the defendants produced Ex.B1 and Ex.B2, apart from, examining the second defendant as D.W.1. Though the trial Court found title in favour of the plaintiff and held that the defendants have not produced any document to prove that they are cultivating tenants under predecessors in interest of the plaintiff, dismissed the suit on the ground that the plaintiff has not proved his enjoyment over the suit properties. Aggrieved by the judgment and decree of the trial Court in O.S.No.68 of 2011, plaintiff preferred an appeal in A.S.No.20 of 2012 on the file of the Principal District Court, Thoothukudi.
2.6. The lower appe