S.A.No.531 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.10.2023

CORAM

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

S.A.No.531 of 2017

Tamilarasi

... Appellant

vs.

Kaliyamoorthy

... Respondent

PRAYER: Second Appeal is filed under Section 100 of Civil Procedure

Code, to set aside the judgment and decree passed in A.S.No.27 of 2012

dated 06.08.2014 on the file of learned Sub Court, Mannargudi, confirming

the judgment and decree passed in O.S.No.77 of 2011 dated 22.12.2011 on

the file of learned District Munsif cum Judicial Magistrate,

Needamangalam.

For Appellant

: Mr.P.Dineshkumar

for M/s.P.T.Rama Devi

For Respondent

: S.Chandrasekharan

J U D G E M E N T

The plaintiff in a suit for permanent injunction is the appellant. The

suit was dismissed by the Trial Court and the findings of the Trial Court was

affirmed by the First Appellate Court. Challenging the concurrent findings

of the Courts below, the appellant/plaintiff has come up by way of this

second appeal.

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2. According to the appellant/plaintiff, the suit property with an

extent of 0.09.0 ares of land in Old Survey No.63A/10 and New Survey

No.165/10 situated at Water Tank Street, Pullavarayankudikadu, originally

belonged to one Nallammal. After the death of Nallammal and her son

Rathinavel Pullavarayar, her grandson Appavu got the suit property. He

executed a Power of Attorney in respect of the suit property in favour of

Balakrishnan, brother of respondent. The said Balakrishnan representing

his principal executed a registered Sale Deed in favour of the appellant on

18.10.2010 in respect of the suit property. After purchase, the appellant also

got mutation of revenue records in her favour. Thus, she has been in

possession and enjoyment of the same. The respondent without having any

manner of right attempted to interfere with appellant's peaceful possession

and enjoyment of the suit property. Hence, the appellant was constrained to

file a suit for permanent injunction against the respondent.

3. The respondent/defendant filed a written statement and contended

that the suit property was purchased by him under the agreement dated

27.06.1992 and the possession was also delivered in his favour. It was

further contended that though the respondent paid the entire sale

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S.A.No.531 of 2017

consideration in favour of said Appavu, no regular registered sale deed was

executed in favour of the respondent. Therefore, the respondent got a

registered General Power of Attorney in favour of his younger brother

namely Balakrishnan. Subsequently, the Balakrishnan acted against the

interest of the respondent and claimed half share in the suit property. He

also filed a suit for partition in O.S.No.92 of 2010 on the file of the Sub

Court, Mannargudi claiming half share in the suit property therein including

the present suit property. The brother of the respondent namely

Balakrishnan with ulterior motive executed the Sale Deed in favour of the

appellant. Hence, the respondent sought for dismissal of the suit on the

ground that he has been in possession and enjoyment of the suit property

right from the date of agreement.

4. Before the Trial Court, the appellant's husband was examined as

PW.1. The vendor of the appellant was examined as PW.2. Two other

witnesses were examined on behalf of the appellant as PW.3 and PW.4. On

behalf of the appellant, 6 documents were marked as Exs.A1 to A6. The

respondent was examined as DW.1 and two other witnesses were examined

on his behalf as DW.2 and DW.3 and the respondent marked 5 documents

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S.A.No.531 of 2017

as Exs.B1 to B5 on his behalf.

5. The Trial Court based on the appreciation of oral evidence of PW.1

to PW.4, came to the conclusion that the appellant failed to prove her

possession and enjoyment of the suit prop