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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
J. Vanaja & Another –Appellant
Versus
Dr. S.V. Raveendra Sreedharan & Another – Respondent
A.S. No. 809 of 2020 & C.M.P. Nos. 9764, 12042 of 2020
Decided On : 30-03-2021
Civil Procedure Code, 1908 – Section 96 – Permanent Injunction – Decree - First Appeal -– Plaintiffs are sons of Venkatachalam – Suit property is 25 cents of land and building thereon – Initially, suit was filed for permanent injunction, alleging that suit property is part of a larger extent of land comprising 1.50 acres, out of which 25 cents of land and building thereon was purchased by plaintiffs Nos.1 and 2 – Remaining 1.25 acres of land was purchased by their father in the name of his other son /first defendant. – Later, Venkatachalam filed suit against his son S.V.Jagadeesan for declaration of title in 1.25 acres of land purchased from of his retirement benefits in the name of his son. – Venkatachalam succeeded in his suit O.S. – Against this judgment the appeal A.S. filed by Jagadesan was dismissed and further, appeal in S.A. filed by Jagadesan is pending on file of the High Court, Madras. – While so, defendants after filing C.M.P. along with Second Appeal for interim order surreptitiously occupied a portion of small out-house bearing door Nos.31 and 32 forming part of 1.25 acres. – Venkatachalam died – Till his lifetime, he was taken care by the plaintiffs. He and his wife were accommodated in the suit property –
Finding of the Court: Senior Counsel for the appellants referring Ex.B-3 and Ex.B-4, the deposition Chandramohan in O.S.No.528 of 2006, argued that he had admitted the he has no exclusive title over the suit property. – Reading of Ex.B-3 and Ex.B-4, this Court finds that nowhere he has conceded right or title in favour of the appellants in respect of the 25 cents of land which was jointly purchased by him and his brother under Ex.A-1. – In fact, in the cross examination, he has explained his source of purchase money. – He as an Engineering graduate was employed in ACC cement Company since 1966 with a break during 1969 to 1972 due to his ill-health. – He had denied the suggestion that, all the three sons of Venkatachalam were living jointly. – Claim of the appellants that they are in occupation of the suit property bearing Door No.6/30, since 1981 is a bald assertion without any supporting documents. – Ex.B-2 is not the Election identification card. – It is draft enumeration slip – Whether, voter ID card issued in the said address thereafter not proved. – Rest of the exhibits relied are of the year 2004 and thereafter. – Particular, Ex.B-9, goes to show that there was dispute between the parties regarding possession of the suit property which has lead to the complaint by the first appellant against the respondents. Therefore, from the evidence it is clearly proved that, the suit property purchased by the respondents in the year 1975 under Ex.A-1 was in occupation of the respondents and their father. – During the year 1986, the 1st defendant attempted to trespass into the suit property but was restrained by a Court decree passed in O.S. – Again an attempt to trespass made in the year 2004 after the demise of Venkatachalam, hence suit for injunction filed, later amended for recovery of possession when the appellants occupied the suit property taking advantage of the landlords absence. – C.M.P. to receive certified copy of the depositions in the suit O.S. not relevant and admissible in the present suit hence dismissed –
Result: Appeal Dismissed
JUDGMENT :-
(Prayer: First Appeal is filed under Section 96 Civil Procedure Code, against the judgment and decree dated 12.03.2020 in O.S.No.301 of 2018, on the file of the IV Additional District & Sessions Judge’s Court, Coimbatore.)
1. The appeal arise from the judgment and decree passed in the suit for delivery of vacant possession and injunction. The aggrieved second and third defendants are the appellants.
2. The facts of the case a stated in the amended plaint:
The plaintiffs S.V.Chandra Mohan and S.V.Raveendra Sreedharan are the sons of Venkatachalam. The defendants are S.V.Jagadeesan S/o.Venkatachalam, Vanaja W/o. Jagadeesan and Thukila D/o.Jagadeesan. The suit property is 25 cents of land and building thereon. Initially, suit was filed for permanent injunction, alleging that the suit property is part of a larger extent of land comprising 1.50 acres, out of which 25 cents of land and the building thereon was purchased by the plaintiffs Nos.1 and 2 on 04.10.1975. The remaining 1.25 acres of land was purchased by their father Venkatachalam in the name of his other son S.V.Jagadeesan/first defendant. Later, Venkatachalam filed suit against his son S.V.Jagadeesan for declaration of title in the 1.25 acres of land purchased from of his retirement benefits in the name of his son. Venkatachalam succeeded in his suit O.S.No.1371 of 1986. Against this judgment the appeal A.S.No.220 of 1992 filed by Jagadesan was dismissed and further, appeal in S.A.No.3427 of 1995 filed by Jagadesan is pending on the file of the High Court, Madras. While so, the defendants after filing C.M.P.No.3734 of 1995 along with the Second Appeal for interim order surreptitiously occupied a portion of the small out-house bearing door Nos.31 and 32 forming part of 1.25 acres. Venkatachalam died on 27.07.2004. Till his lifetime, he was taken care by the plaintiffs. He and his wife were accommodated in the suit property.
3. The 1st defendant, who was always inimical towards the plaintiffs and their father, earlier in the year 1986 tried to trespass into the suit property. The plaintiffs filed O.S.No.1085 of 1986 against the 1st defendant for injunction and obtained decree of permanent injunction on 25.01.1993 against the 1st defendant his men and agents. The said decree became final and no appeal filed by the 1st defendant. In respect of the 1.25 acres of land which Venkatachalam had succeeded in the title suit, Venkatachalam had executed a registered will dated 15.06.1992 bequeathing it to the plaintiffs. After the demise of Venkatachalam, the defendants attempted to enter the suit property under the guise of paying their respect to the first defendant’s mother Maragathammal. Coming to know their intention, the plaintiffs warned the defendants not to attempt trespass. On 06.08.2004, the defendants again forced to gain entry into the suit property. When the plaintiffs approached the police for protection, the police had represented that unless the plaintiffs have suitable order from the Court, they will not be able to give protection. Therefore, though the plaintiffs are protected by the earlier decree of permanent injunction against the defendants, they are obliged to come forward with the present suit for permanent injunction restraining the defendants men and agent from interfering the plaintiffs peaceful possession and enjoyment of the suit property.
4. Later, the plaint was amended alleging that after the interim order of injunction in I.A.No.1798 of 2004, the defendants trespassed into the suit property and taken the possession in violation of the Court order. Hence, the relief of delivery of vacant possession of the suit property was sought as additional relief.
5. The 1st defendant, who is the brother of the plaintiffs remained absent and was set exparte. The 2nd defendant filed written statement and same was adopted by the 3rd defendant. Two additional written statements were filed by the defendants Nos.2 and 3. As per their written statements and addition
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