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IN THE HIGH COURT OF JUDICATURE AT MADRAS
ABDUL QUDDHOSE, J.
M.L.Veerabathiran (Died) - Appellant
Vs.
Kothandaraman, S/o Kandasamy - Respondent
S.A.No. 873 of 2007 and M.P.No. 1 of 2007
Decided On : 27-08-2021
Civil procedure Code,1908 – Section 100 - Suit For - Bare Injunction - Second Appeal has been filed challenging reversal findings given by lower appellate court namely Sub Court by judgment and decree passed in by which findings of trial Court by judgment and decree in O.S.No. was reversed and suit came to be decreed in favour of plaintiff - Whether suit filed by plaintiff's power agent as against true owner is maintainable in law when admittedly plaintiff's predecessor was held to have no interest over suit property - Whether court below ought not to have rejected claim of plaintiff as barred by resjudicata in view of judgment and decree – Held, Court at time of admission of Second Appeal are answered in favour of defendants by holding that suit filed by plaintiff for bare injunction restraining defendants from interfering with peaceful possession and enjoyment of suit schedule property is not maintainable in view of fact that pleadings and documentary evidence produced by defendants conclusively proves that there is a cloud over title of suit schedule property and therefore only remedy available to plaintiff is to file a suit for declaratory relief to declare himself as absolute owner of suit schedule property and having not chosen to file such a suit present suit seeking for bare injunction alone is not maintainable - Court By total non application of mind to materials and evidence available on record as well as to the settled law as laid down by the Hon'ble Supreme Court in Anathula Sudhakar's case, lower appellate court has erroneously reversed findings of trial court by decreeing suit in favour of plaintif - Second Appeal allowed
JUDGMENT :
Prayer:- Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 13.06.2007, made in A.S.No. 41 of 2006 on the file of the Sub-Court, Tirupattur in reversing the judgment and decree dated 06.02.2006, made in O.S.No.1328 of 1993 on the file of the District Munsif Court, Tirupattur.
This Second Appeal has been filed challenging the reversal findings given by the lower appellate court namely Sub Court, Tirupattur by judgment and decree dated 13.06.2007 passed in A.S.No. 41 of 2006 by which the findings of the trial Court namely District Munsif Court, Tiruppatur by judgment and decree dated 06.02.2006 in O.S.No. 1328 of 1993 was reversed and the suit came to be decreed in favour of the plaintiff.
2. The appellants 3 to 9 are the legal representatives of the deceased 1st appellant who is the 1st defendant in the suit in O.S. No. 1328 of 1993 on the file of the District Munsif Court, Tiruppattur. The 2nd appellant is the 2nd defendant in the said suit. The suit was filed by the respondent/plaintiff against the defendants for permanent injunction, restraining the defendants from interfering with the peaceful possession and enjoyment of the property situated in North Arcot District, Tiruppatur Taluk, Amman Kovil Village and comprised in survey no. 168/A1 measuring to an extent of 0.30 acres out of 2.22 acres, hereinafter referred to as the suit schedule property.
3. In the forth coming paragraphs the parties are described as per their litigative status in the suit.
4. The case of the plaintiff is that the suit schedule property along with other properties originally belonged to Poova Chettiar, S/o. Nallappa Chettiar, he having got the same under a sale deed dated 20.11.1933 registered as document No. 3587/1933. It is the case of the plaintiff that Poova Chettiar after his purchase was in possession of the suit schedule property by paying the Kist.
5. It is the case of the plaintiff that during the lifetime of Poova Chettiar, the properties belonging to him were divided orally between Poova Chettiar and his sons and Poova Chettiar was allotted the land measuring 1.46 acre in Survey No.1687/A1.
6. It is the case of the plaintiff that after the death of Poova Chettiar, his three sons namely 1. Arunachalam, 2. Kandasamy and 3. Kanniyappa Chettiar inherited his properties as his legal heirs. According to the plaintiff, the sons of Poova Chettiar namely Arunachalam, Kandasamy and Kanniappa Chettiar have partitioned the properties orally in the year 1976. According to the plaintiff, under the oral partition, Kandasamy Chettiar was allotted 0.60 Cents in Survey No. 168/A1. After the death of Kandasamy Chettiar, his two sons namely Kothandaraman and Panbanathan orally partitioned 60 cents (0.30 cents each) inherited by them from their late father Kandasamy Chettiar in the year 1980. According to the plaintiff, Kothandaraman is in possession and enjoyment of 30 cents in survey no. 168/A1, which is the suit schedule property and he has absolute right over the same.
7. It is the case of the plaintiff that K. Kothandaraman executed a General Power of Attorney on 22.09.1993 in his favour for disposing of the suit schedule property by executing a sale deed and receiving sale consideration. According to the plaintiff ever since the date of execution of the power of attorney dated 22.09.1993, he has been in possession and enjoyment of the suit schedule property. But according to him, on 29.09.1993, the defendants attempted to tresspass into the suit schedule property and take forcible possession of the same from the plaintiff. In the aforementioned circumstances, the plaintiff had filed the suit in O.S.No. 1328 of 1993 seeking for permanent injunction against the defendants not to interfere with his peaceful possession and enjoyment of the suit schedule property.
8. The defendants have filed written statement and denied the allegations of the plaintiff. According to the defendants, Arunachalam, Kandasamy and Kanniappa
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