JUDGEMENT

The plaintiff appeals against the judgement and decree of the Court of the Subordinate Judge, Panruti, in A.S.No.46 of 2010 in partly modifying the judgement and decree in O.S.No.257 of 2002 on the file of the District Munsif, Panruti, dated 19.10.2010.

2. There was one Govindasamy Samuttiyar, who was twice married.

Through his first wife - Kuppayee, he had a son by name Sarangapani Samuttiyar, who is the 1st defendant. The 2nd defendant - Rajasekaran is the son of Sarangapani Samuttiyar. The said Govindasamy Samuttiyar had an other wife Arambu Ammal through her, he had 3 daughters viz., (i) Vaijendimala, (ii) Rajeswari and (iii) Jothi. The entire dispute relates to a sale made by Arambu Ammal, Vaijendimala, Jothi @ Jothi Lakshmi on one hand in favour of one Dhanavel Samuttiyar (plaintiff) and Rajeswari, who sold her property to Rajasekaran Son of Sarangapani Samuttiyar.

3. The suit was not filed for partition but, for bare injunction based on possession. The trial court had decreed the suit on the ground that the 1st defendant had failed to prove that there was a partition between Arambu Ammal and her daughters and that the property fell to the share of 2nd defendant's vendor viz., Rajeswari. The first appellate court though gave a finding that the partition had not been proved but granted a curious decree of permanent injunction in favour of plaintiff in respect of ¾ share and 1/4th share in favour of defendants. For ready reference, the decree is extracted hereunder:-

“2. thjpf;F jhth brhjj; py; ¾ ghfk; bghUj;J epuej; u cWj;Jf;fll; is ghpfhuk; fpilf;fj;jf;fJ vd;W cj;jutplgg; LfpwJ. 3. jhth brhjj; py; ¼ ghfj;ij bghUjJ; thjpf;F fpilf;fjj; ff; J my;y vdW; cjj; utplg;gLfpwJ/”

4. I am afraid the judgements of both the courts below are absolutely perverse. The trial court forgot that it is for the plaintiff, who comes to the court with the suit for injunction to prove the possession and that the defendant can take all sorts of defences in order to dislodge the case. The plaintiff had entered the witness box and he had stated that apart from the sale deed, he does not have any proof to show that he is in possession of the property. The buck should have stopped there. If the plaintiff fails to prove the case, especially, in a suit for bare / permanent injunction, the suit should have been dismissed. Instead, the trial court took pains in order to find out the lacuna in the case of the defendants and since the defendants did not prove the partition in Arambu Ammal's family with her daughters and had further failed to prove that the suit property fell to the share of his vendor Rajeswari, it decreed the suit. This turns the concept of burden of proof on its head and therefore, it had been rightly reversed by the first appellate court.

5. Had the matter stopped there nothing further needs to be added. The first appellate court has confirmed the finding that partition has not been proved and that the plaintiff/respondent has not been able to substantiate his possession. Having done so, it has granted a curious decree as set forth above. If the partition is not proved, the appellants and the respondent became co- owners. It is too well settled to reiterate but nonetheless has to be reiterated here that there cannot be injunction amongst co-owners. The remedy ought to have been one to file a suit for partition.

6. The other curious argument that was taken by the respondent before the first appellate court that the sale dated 24.08.1995 was hit by lis pendens since the suit in O.S.No.80 of 1996 and O.S.No.38 of 1996 presented by Arambu Ammal against Sarangapani Samuttiyar and vice versa were pending. Section 52 of the Transfer of Property Act, does not prevent a sale by a party pending a lis. All it states is that the sale that has been made, will be subject to the result of the suit. In fact, in the suit filed by Arambu Ammal, the present suit property was not a subject matter of lis. It was only shown as a schedule in the suit for pa