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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R.SWAMINATHAN, J.
Narendra Kumar Johar - Appellant
Vs.
A.Shahjahan - Respondent
S.A. (MD) Nos. 550 and 551 of 2008 In S.A. (MD) No.550 of 2008
Decided On : 29-10-2021
Injunction - Suit Property - Transfer of Property Act, 1882, Section 48 - The court held that the suits for injunction are maintainable even without seeking any declaratory relief. The gift deed executed in favor of the plaintiff is prior in point of time and therefore, the sale deed executed in favor of the appellant would be subject to the settlement deed earlier executed in the name of the plaintiff.
Fact of the Case:
The plaintiff filed two suits for permanent injunction against interference with his possession and enjoyment of a property originally belonging to his father. The defendant, a subsequent purchaser, contested the suits, questioning the plaintiff's title and possession.
Finding of the Court:
The court found that the suits for injunction were maintainable without seeking declaratory relief, as the gift deed in favor of the plaintiff preceded the sale deed in favor of the appellant. The court also held that the plaintiff had established possession of the property and dismissed the appeals.
Issues: The issues included the maintainability of the suits for injunction without seeking a declaration, the sufficiency of evidence to prove possession, and the requirement of attestation for the gift deed.
Ratio Decidendi: The court held that the suits for injunction were maintainable without seeking any declaratory relief, as the gift deed in favor of the plaintiff preceded the sale deed in favor of the appellant, and the plaintiff had established possession of the property.
Final Decision: Both the second appeals were dismissed, and no costs were awarded.
JUDGMENT :
These second appeals arise out of two suits for permanent injunction. The plaintiff in both the suits is one and the same. The defendants alone are different. The suit property is also one and the same. There is no dispute that the suit property originally belonged to T.B.M.Ameerjan /father of the plaintiff Thiru.Shahjahan.
2. The case of the plaintiff was that his father executed the settlement deed dated 05.05.1989 in his favour and also handed over possession of the suit property. The plaintiff has been in possession and enjoyment of the suit property ever since. The plaintiff's father was in relationship with one woman by name Zuleka Bi and that through her, he had begotten sons and daughters. At their instance, the plaintiff was facing interference with his possession and enjoyment. Therefore, he filed O.S.No.1479 of 1994 on the file of the District Munsif Court, Trichirappalli for restraining his father and other defendants born to him through the said Zuleka Bi from doing so. In the said suit, the first defendant Ameerjan filed written statement denying the execution of the settlement deed. During the pendency of the suit, he passed away and an ex-parte judgment and decree dated 03.03.2003 came to be passed in O.S.No. 1479 of 1994.
3. After the institution of O.S.No.1479 of 1994, the plaintiff's father had executed a sale deed dated 15.02.1995 in favour of the appellant Thiru.Narendra Kumar Johar. Since the plaintiff apprehended interference with his possession and enjoyment at the hands of the subsequent purchaser, he filed another suit in O.S.No.1938 of 1996. The defendant filed written statement controverting the plaint averments. The plaintiff Shahjhan examined himself as P.W.1 in O.S.No.1938 of 1996 and marked Ex.A1 to Ex.A7. Narendra Kumar Johar examined himself as D.W.1 and marked Ex.B1 to Ex.B6. After a consideration of the evidence on record, the trial court by judgment and decree dated 10.09.2004 decreed the suit as prayed for. The appellant herein filed A.S.No.170 of 2004 against the judgment and decree made in O.S.No.1938 of 1996 and A.S.No.248 of 2005 against the judgment and decree made in O.S.No.1479 of 1994. The first appellate court dismissed both the appeals on 07.12.2007. The appeals were disposed of by separate judgments. Questioning the judgment and decree made in A.S.No.170 of 2004 arising out of O.S.No. 1938 of 1996, S.A.(MD)No.550 of 2008 has been filed. Questioning the judgment and decree made in A.S.No.248 of 2005 arising out of O.S.No. 1479 of 1994, S.A.(MD)No.551 of 2008 has been filed.
4. The second appeals were admitted on the following substantial questions of law:-
2. Whether the lower appellate court is right in holding that one kist receipt dated 1.1.1995 is enough to prove possession of the plaintiff when possession and enjoyment is claimed on the basis of the deed 05.05.1989 and the trial opened in the year 2004?
3. Whether the lower court is right in holding that the suit is maintainable when the title of the plaintiff is denied and the suits are for bare injunction?”
5. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the plaintiff.
6. The learned counsel appearing for the appellant submitted that the plaintiff's father himself had specifically denied having executed the deed of settlement dated 05.05.1989- Ex.A2. A gift deed requires to be attested by two witnesses. The plaintiff had failed to examine any of the witnesses. Therefore, the gift deed is to be eschewed out of consideration as it has not been proved in the manner known to law. The appellant Narendra Kumar Johar has set up his own title. He projected the sale deed executed in his favour by the plaintiff's father. Since a title dispute has been raised, the plaintiff could not have continued to maintain a suit for injunction s
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