IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 27.09.2011

CORAM

THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN

S.A.No.1213 of 2011

and

M.P.Nos. 1 and 2 of 2011

Balasubramanian

.. Appellant/1st Respondent/

S/o. Late Nagarajan

Plaintiff

Vs.

1.K. Rajammal

W/o. Late Krishnasamy Chettiar

..1st Respondent/ appellant/

1st Defendant

2.K. Gopalakrishnan ..2nd Respondent/ 2nd Respondent

S/o. Kunjuraman 2nd Defendant

Prayer:- Second Appeal filed under Section 100 of Code of Civil

Procedure against the judgment and decree dated 30.9.2009 made in

A.S.No.23 of 2008 on the file of the Subordinate Judge's Court,

Pollachi, dismissing the judgement and decree in O.S.No.575 of 2005,

dated 22.1.2008 on the file of the District Munsif Court, Pollachi.

For Appellant .. Mr.S. Satish Kumar for

Mr. S. Satish Parasaran

J U D G E M E N T

The plaintiff in O.S.No.575 of 2005 on the file of the

District Munsif Court, Pollachi, is the appellant.

2. The appellant/ plaintiff filed the suit in O.S.No.575 of

2005 for injunction restraining the respondents herein from

interfering with his possession and enjoyment of the suit property

stating that he purchased the suit property from the original owner

Vijayalakshmi under a registered sale deed dated 27.11.1995 and he

is in possession and enjoyment of the same and the respondents have

no right over the suit property and they are attempting to interfere

with his possession and therefore he filed the suit for injunction.

3. The 1^st respondent filed the suit in O.S.No.543 of 2005

against the appellant herein and 2^nd respondent in respect of the

same property for injunction stating that she purchased the property

https://hcservices.ecourts.gov.in/hcservices/

from the Power Agent of original owner Vijayalakshmi under a sale

deed dated 23.8.1991 and her possession was disturbed by the

appellant herein and therefore the appellant must be restrained by

an order of injunction.

4. The trial Court heard both suits together and rendered a

common Judgement and decreed the suit filed by the appellant and

dismissed the suit filed by the 1^st respondent. Aggrieved by the

same the 1^st respondent filed two appeals and both appeals were heard

and a common Judgement was pronounced and the first appellant Court

after relying upon the Hon'ble Supreme Court Judgement reported in

2009 (2) Law Weekly, page 546 wherein the Hon'ble Supreme Court has

laid down the guide lines while granting injunction in the absence

of any prayer for declaration and held that the finding regarding

title cannot be recorded in a suit for injunction and when the

title is disputed the plaintiff ought to have filed the suit for

injunction and allowed the appeal filed by the 1st respondent herein

against the Judgement and Decree in O.S.No.575 of 2005 filed by the

appellant herein and set aside the Judgement and Decree made in

O.S.No.575 of 2005 granting liberty to the appellant herein to file

a fresh suit with prayer for declaration. The lower appellate

Court also confirmed the Judgement and Decree in O.S.No.543 of 2005

filed by the 1^st respondent herein and granting liberty to the 1^st

respondent herein to file a fresh suit for declaration. Hence, the

Second Appeal.

5. The learned counsel for the appellant submitted that the

lower appellate Court erred in allowing the appeal filed by the 1^st

respondent challenging the decree passed in O.S.No.575 of 2005 in

favour of the appellant and the lower appellate Court having regard

to the pleadings ought to have granted the decree confirming the

order of the trial Court and ought to have held that the appellant

is having valid title to the suit property and he is in possession

and enjoyment of the same. He further submitted that the 1^st

respondent cannot claim any right or title to the suit property as

admittedly the 1^st respondent