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2020 Supreme(Mad) 1405
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Ananda Siva Samba Sakhti - Appellant
Versus
Kasturi - Respondent
S.A. No. 838 of 2008
Decided On : 01-12-2020
For the Appellant :Chitra Sampath, Senior Counsel, T.S. Baskaran, Advocate.
For the Respondent:Prakash Adiapadam, Advocate.
The main legal point established in the judgment is that possession is a crucial factor in determining entitlement to injunction relief, and the interest claimed by a party over a property should be decided in a separate suit if the present suit is not properly framed.
Headnote:
possession - property dispute - C.P.C Section 100 - 44 additional documents - substantial question of law - mandatory injunction - life interest - partition suit - possession and enjoyment - lis pendens
Fact of the Case:
The plaintiff filed a suit for permanent and mandatory injunction against the defendant, alleging trespass and refusal to hand over the key of the locked property. The trial court dismissed the suit, and the appellate court confirmed the decision. The substantial question of law was whether the rejection of the mandatory injunction was justified due to lack of proof of possession.
Finding of the Court:
The trial court found in favor of the defendant on the issues of possession and entitlement to injunction relief. The appellate court upheld the trial court's decision, stating that the plaintiff failed to prove possession and therefore was not entitled to the relief sought.
Issues: The issues included whether the suit was hit by lis pendens, whether the plaintiff was in possession of the property, and whether the plaintiff was entitled to the injunction relief.
Ratio Decidendi: The court found that the plaintiff failed to prove possession of the property, which was a prerequisite for obtaining injunction relief. The court also held that the interest claimed by the defendant over the property should be decided in a separate suit.
Final Decision: The second appeal was dismissed, affirming the lower courts' decisions.
JUDGMENT :
(Prayer: Second Appeal is filed under Section 100 of C.P.C, praying against the judgment and decree dated 29.02.2008 made in A.S.No.94 of 2005 on the file of the Principal Subordinate Judge, Puducherry by confirming the judgment and decree dated 17.10.2005 passed in O.S.No.329 of 2002 on the file of the III Additional District Munsif, Puducherry.)
(The case has been heard through video conference)
1. The Appellant herein is the plaintiff in O.S.No.329 of 2002 on the file of District Munsif Court at Pondicherry. The suit is filed for a). Permanent injunction restraining the defendant from interfering the peaceful possession and enjoyment of the suit property and b). For mandatory injunction against the defendant directing her to hand over the key of the locked house of the suit property. After full Trial the suit was dismissed by the Trial Court. On further Appeal in A.S.No.94/2005 before the Principal Sub-Court at Pondicherry, the Trial Court judgment was confirmed. Hence, the present second appeal.
2. This Court, on considering the grounds raised in the Second Appeal formulated the following substantial question of law for consideration:-
Whether the judgment and decree is perverse on account of its rejection of the prayer for mandatory injunction on the ground that the appellant has not proved the factum of possession of the property overwhelming the plaint averments as well as the evidence adduced on the side of the appellant ?
3. The brief facts of the case is that, the suit subject property initially owned by one Jayalakshmi @ Nagammal. She purchased the property from one Rama Counder through a registered sale deed dated 06.05.1942. During her life time, she executed a gift deed on 28.08.1963. As per the gift deed, the suit property was settled in favour of her two sons for life and then, to their male heirs and in case of no male heirs, to their female heirs. The plaintiff is the grand daughter of Jayalakshmi born to her elder son Durai @ Ekkambaram. The defendant is the widow of Jayalakshmi second son Chinnathambi @ Sambasivam. The elder son of Jayalakshmi, Durai had only 2 daughters and no male child and her younger son Chinnathambi @ Sambasivam died issueless. On the death of Chinnathambi @ Sambasivam, the property got vested absolutely with the 2 daughters of Durai @ Ekkambaram. The plaintiff Ananda Siva Samba Sakthi and her sister Ananda Sundra Lakshmi, entered into a partition in respect of the suit property and got it registered on 18.08.1999. According to the partition, the ground portion of the suit property was allotted to the plaintiff and the first floor portion allotted to the sister Ananda Sundra Lakshmi.
4. The suit is filed for the relief mentioned above, alleging that, the defendant on 20.12.2000 with the help of hirelings trespassed into the suit property and removed the utensils and household articles, locked the ground portion described in ‘A’ schedule and went. A complaint to the police in this regard was lodged on the next day. The complaint was registered by the Police after direction of the High Court. The defendant, who agreed to hand over the key during the enquiry by the police, later refused to hand over the key of the locked portion in spite of several requests. Pre suit notice dated 14.02.2002 was sent to the defendant to hand over the key. The defendant received it on 16.02.2002, but refused to hand over the key of the ground floor portion, hence the suit.
5. Denying the plaint averments, the defendant contested the suit stating that, she is entitled for a share in the property of Jayalakshmi @ Nagammal along with her other legal heirs. The gift deed of Jayalakshmiammal even assumed to be true, the right of Jayalakshmiammal to gift is restricted only to 1/8th share according to the principle of “Quotes Disponet” prevailing during the relevant point of time. As a consequence, the partition between the sisters on 18.08.1999 for the entire property is non est in law and unenforceable. Agai
