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2019 Supreme(Mad) 1480
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. Rajamanickam, J.
Dhanruparam Choudhary - Appellant
Versus
Ravichandran - Respondent
S.A. No. 16 of 2013 & M.P. No. 1 of 2013
Decided On : 26-02-2019
For the Appellant :N. Manokaran, Advocate.
For the Respondent:M. Guruprasad, Advocate.
Headnote:
Civil Procedure Code - Section 100 - Against the judgment and decree - Sake of convenience - Permanent injure n - Attempted to trespass into suit property - Trial court - Learned First Additional District Munsee Erode by judgment had decreed said suit without costs - Aggrieved by defendant had filed an appeal in file of Principal Sub-Judge Erode - Learned Principal Sub-Judge Erode by judgment had allowed said appeal and set aside judgment and decree passed by trial Court and dismissed said suit - Feeling aggrieved plaintiff has filed present second appeal - For sake of convenience parties are referred to as described before trial Court – Held, It is to be pointed out that plaintiff had issued a pre-suit notice vide stating that defendant is attempting to trespass into suit property postal acknowledgement shows that defendant had received said notice but he did not send any reply denying allegations made in notice - Further term cause of action does not mean any single act and it is a bundle of facts - very fact that defendant is contesting suit by saying that plaintiff has not mentioned the correct Sub-division number and is trying to grab property of defendants mother by giving wrong description itself would show that there is a cause of action for filing suit against defendant - Further not sending a reply to pre-suit notice also would lead to an inference that defendant made attempts to trespass into suit property - trial Court has properly appreciated the aforesaid facts and granted a decree as prayed for in favor of plaintiff but first Appellate Court without appreciating aforesaid facts in proper perspective had reversed judgment and decree of trial Court and dismissed suit – Therefore second appeal has to be allowed - Accordingly substantial questions of law are answered in favor of appellant plaintiff - Trial court has granted permanent injunction restraining defendant from interfering with plaintiffs peaceful possession and enjoyment of suit property - first Appellate Court also concurred with findings of trial Court with regard to title and possession of suit property - However it allowed appeal on ground that plaintiff failed to prove alleged cause of action - Appeal allowed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 28.09.2012 made in A.S.No.35 of 2012 on the file of the Principal Sub Court, Erode, reversal of the judgment and decree dated 29.11.2011 made in O.S.No.18 of 2010 on the file of the First Additional District Munsif, Erode.)
1. This Second Appeal has been filed by the plaintiff against the judgment and decree passed by the Principal Sub-Judge, Erode, in A.S.No.35 of 2012 dated 28.09.2012 reversing the judgment and decree passed by the First Additional District Munsif Court, Erode, in O.S.No.18 of 2010 dated 29.11.2011.
2. The appellant herein had filed a suit in O.S.No.18 of 2010 on the file of the First Additional District Munsif, Court, Erode, to restrain the defendant, his men, etc., from trespassing into the suit property or disturbing his peaceful possession and enjoyment of the same by means of permanent injunction. The learned First Additional District Munsif, Erode, by the judgment dated 29.11.2011 had decreed the said suit without costs. Aggrieved by the same, the defendant had filed an appeal in A.S.No.35 of 2012 on the file of the Principal Sub-Judge, Erode. The learned Principal Sub-Judge, Erode by the judgment dated 28.09.2012, had allowed the said appeal and set aside the judgment and decree passed by the trial Court and dismissed the said suit. Feeling aggrieved, the plaintiff has filed the present second appeal. For the sake of convenience, the parties are referred to as described before the trial Court.
3. The averments made in the plaint are in brief as follows:-
The plaintiff had purchased the suit property for proper and valuable consideration of Rs.4,95,000/- under a registered sale deed dated 11.04.2008. His wife also purchased the adjacent land. From the date of purchase, the plaintiff is in possession and enjoyment of the suit property. The defendant is a total stranger insofar as the suit property is concerned. The plaintiff came to know that there were some disputes between the vendor of the plaintiff and the defendant. On account of misunderstanding, the defendant made an attempt to trespass and disturb the plaintiff's peaceful possession. Hence, the plaintiff had sent a notice dated 19.11.2009 to the defendant. The defendant had received the said notice. But he did not send any reply. After receipt of the said notice on 02.01.2010, the defendant again attempted to trespass into the suit property and hence, the plaintiff was constrained to file the above suit for the relief of permanent injunction.
4. The averments made in the written statement filed by the defendant are in brief as follows:-
The sale deed dated 11.04.2008 said to have been executed by one Visweswaran, in favour of the plaintiff is a self-serving document which will not bind on the defendant. The plaintiff is not at all the owner of the property and he is not in possession as alleged. The allegation that the defendant attempted to trespass into the suit property is false. The description of the property itself is wrong and irrelevant. According to the plaintiff, he had purchased the property in R.S.No.1369/1 of Erode Village. The defendant is in no way connected with the said Survey number. In fact, the said Survey number has already been sub-divided into 1369/1-A and 1-B even on 01.10.1992. The plaintiff has purchased the property only on 11.04.2008, quoting the old Survey number. The mother of the defendant had already filed a suit in O.S.No.295 of 2004 on the file of the District Munsif, Erode for partition and separate possession against 15 persons in which a compromise decree was passed on 08.10.2009 and the property situated in R.S.No.1369/2 had been allotted to the defendant's mother and in that suit no property was allotted to the defendant and therefore, the suit is bad for misjoinder of party. The defendant's mother had made some arrangements in her property in R.S.No.1369/2. Taking advantage of the same, the plaintiff has cre
