IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.03.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.746 of 2009 and M.P.No.1 of 2009 1. S.Navaneethammal 2. S.Ragunathan 3. S.Durai 4. S.Gnanamoorthy 5. K.Rajakumari 6. R.Amudha .. Appellants/ Plaintiffs vs. 1. Ranganatha Naicker 2. Loganathan 3. Sunderasen 4. Velayutham 5. Vasantha 6. Gnanasekaran .. Respondents/ Defendants This second appeal is focussed as against the judgment and decree dated 07.07.2008 passed in A.S.No.4 of 2005, on the file of the learned Additional Sub Judge, Chengalpet, confirming the judgment and decree dated 12.04.2004 passed in O.S.No.730 of 1990 on the file of the learned District Munsif, Chengalpet. For Appellants : Mr.V.Ramajegadeesan For Respondents : Mr.S.V.Jayaraman, Sr.Counsel for Ms.K.Venkatachalam J U D G M E N T This second appeal is focussed by the legal representatives of the original plaintiff animadverting upon the judgement and decree dated 07.07.2008 passed in A.S.No.4 of 2005 by the learned Additional Sub Judge, Chengalpet, confirming the judgment and decree of the learned District Munsif, Chengalpet in O.S.No.730 of 1990. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. A recapitulation and summation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit seeking the following reliefs: (i) To grant permanent injunction restraining the defendants, their men, agents and servants from in any way interfering with the plaintiff's peacefully possession and enjoyment of the suit property; and (iii) for costs. (extracted as such) (b) The written statement was filed by the first defendant resisting the suit and the same has been adopted by the other defendants. (c) Whereupon the trial Court framed the issues. (d) During trial, the plaintiff-Sadasiva Naicker examined himself as P.W.1 and Exs.A1 to A4 were marked. On the side of the defendants, D.W.1 and D.W.2 were examined and Exs.B1 to B5 were marked. (e) Ultimately the trial Court dismissed the suit, as against which the plaintiff preferred the appeal for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the lower Court. 3. Challenging and impugning the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds and also suggesting the following substantial questions of law: "(1) Whether the First Appellate Court is justified in dismissing the Appeal without deciding the I.A.No.275 of 2005 in A.S.No.4 of 2005, praying for leave to file additional documents under Order 41 Rule 27? (2) Whether the First Appellate Court is justified to continue the I.A.No.275 of 2005 in A.S.No.4 of 2005, praying for leave to file additional documents under Order 41, Rule 27 pending disposal till date? https://hcservices.ecourts.gov.in/hcservices/ (3) Whether the courts below are justified in dismissing the suit without appreciating the oral evidence of PW1 and Exhibit A1 in its entirety but appreciating the above oral and documentary evidence at fraction is sustainable in law." (extracted as such) 4. Whereupon my learned Predecessor framed the following substantial question of law: "(1) Whether the First Appellate Court is justified in dismissing the Appeal without deciding the I.A.No.275 of 2005 in A.S.No.4 of 2005, praying for leave to file additional documents under Order 41 Rule 27? " (extracted as such) 5. Heard both sides. 6. I am of the view that the following additional substantial questions of law also should be framed: "(1) Whether the suit was properly instituted setting out all the details? (2) Whether there is any perversity or illegality in the judgments and decrees passed by the Courts below?" 7. All the aforesaid substantial questions of law are taken together for discussion as they are inter linked and inter woven with one another. 8. The learned counsel for the plaintiff advanced his arguments, the pith and marrow of them would run thus: (a) The Courts below failed to take into consideration the fact that even in the year 1943, the plaintiff's father Muthukrishna Naicker purchased the suit property from out of his own income and even much earlier to it there was division of status among the brothers, namely, the said Muthukrishna Naicker, Raghava Naicker and Arjuna Naicker. Now the defendants who are the legal descendants of the said Raghava Naicker and Arjuna Naicker cannot lay claim against the right of the plaintiff, who is the only son of Muthukrishna Naicker who purchased the suit property as per the sale deed of the year 1943. https://hcservices.ecourts.gov.in/hcservices/ (b) The Courts below failed to take into consideration the fact that Ryotwari patta was ordered to be issued by the Sub Court vide order dated 12.10.1982 in CMA No.24 of 1970. During the pendency of the suit, in fact, as per the direction of this Court in the writ proceedings in W.P.No.17744 of 1994, ryotwari patta also issued in the name of the plaintiff, namely Sadasiva Naicker. (c) Furthermore, the appellate Court failed to deal with the application filed under Order 41 Rule 27 of CPC filed by the plaintiff, but and simply decided the case ignoring the salient features . 9. In a bid to torpedo and pulverise the arguments on the side of the plaintiff/appellant, the learned Senior Counsel for the defendants would set forth and put forth his arguments, which could pithily and precisely be set out thus: (a) Indubitably and indisputably, unassailably and unarguably, Muthukrishna Naicker happened to be the eldest among the brothers concerned and in such a case, any property purchased by the Kartha, would enure to the benefit of the entire members of the joint family or co-parceners concerned. It is an admitted fact P.W.1 in his deposition that only in the year 1947 the alleged "coor chit" emerged partitioning the property. Whereas in the year 1943, the Kartha, Muthukrishna Naicker purchased the property and as such the presumption was that the suit property happened to be the joint family property. There is nothing to indicate and convey that the suit property was partitioned among the co-parceners/the members of the joint family. In such a case, the question of the plaintiff being the son of Muthukrishna Naicker claiming exclusive right over the suit property does not arise and both the Courts below correctly dismissed the original suit and the appeal respectively. (b) The learned Senior Counsel for the defendants also without any contradiction from the plaintiff's side, would furnish a new set of information to this Court that there are two suits relating to the same suit property pending as under: (i) O.S.No.415 of 2008 before the Principal District Judge, Chengalput for partition instituted by the defendants herein as against the plaintiff and others. (ii) O.S.No.39 of 2002 before the District Munsif Court, Chengalput filed by the same defendants for declaring that the said ryotwari patta issued in the name of the plaintiff would enure to the benefit of the defendants also. 10. It appears there are also other lineal descendants of Raghava Naicker and Arjuna Naicker, who are also parties there. It https://hcservices.ecourts.gov.in/hcservices/ is therefore crystal clear from the available records that the parties are locked up in serious litigation and the present suit is only for bare injunction and there is no prayer for declaration of title over the suit property. 11. In my considered opinion, the said partition suit O.S.No.415 of 2008 pending in the Principal District Court is a comprehensive suit and in that, the Principal District Court would be in a position to decide all the relevant issues and arrive at a comprehensive conclusion which would avoid multiplicity of proceedings. The suit O.S.No.39 of 2002 filed in the District Munsif Court is also having nexus with the suit pending in the Principal District Court. 12. I am fully aware of the fact that in a bare suit for injunction there need not be any prayer for declaration, provided there is no serious title dispute over the suit property. But in this case, the plaint averments and also the relevant circumstances would speak by themselves that there is a serious title dispute among the parties and without probing thoroughly into the actual title of the respective parties to the suit property, the injunction suit cannot be decided finally. Both the Courts below dismissed the suit after going into the title aspect also. It appears from Ex.A1- the certified copy of the order passed in CMA No.24 of 1970, the said Sadasiva Naicker was clothed with the right to get ryotwari patta in respect of the suit property. On the defendants' side the contention is that relating to the land covered by the said ryotwari patta, the defendants are also having right because the suit property was purchased in the year 1943 by the Kartha of the said joint family comprised of Muthukrishna Naicker, Raghava Naicker and Arjuna Naicker. These facts should necessarily be gone into only in the partition suit and not in any injunction suit. 13. The learned counsel for the plaintiff also understanding the fact that the evidence already placed before the Court was not sufficient did choose to file the interlocutory application under Order 41 Rule 27 of CPC for getting marked the additional documents including the said sale deed, but that application itself was not considered by the first appellate Court also. Hence, the plaintiff herein also should be given opportunity to put forth his case that he is the exclusive owner of the suit property. Since already the Principal District Court is seized of the partition suit, I would like to set aside the judgments and decrees of both the Courts below and remand this matter to the Principal District Court, Chengalput where the Original Suit, namely O.S.No.415 of 2008 is pending, to deal with this matter also by giving due opportunity of adducing additional evidence. This Court by virtue of its power https://hcservices.ecourts.gov.in/hcservices/ hereby transfers the O.S.No.39 of 2002 pending in the Court of District Munsif, Chengalput to the same District Court, as otherwise certainly that would lead to divergent judgments further paving the way for multiplicity of proceedings. 14. Accordingly, the first substantial question of law is decided to the effect that the First Appellate Court was not justified in dismissing the Appeal without deciding the I.A.No.275 of 2005 in A.S.No.4 of 2005, praying for leave to file additional documents under Order 41 Rule 27. 15. The second substantial question of law is decided to the effect that the the suit was not properly instituted setting out all the details. 16. The third substantial question of law is decided to the effect that since both the Courts below failed to take into account the aforesaid points discussed supra, interference in the Second Appeal is warranted. 17. Accordingly this matter is remanded to the Principal District Court, Chengalput by setting aside the judgments and decrees of both the Courts below with the following direction: The three suits, namely (1) O.S.No.415 of 2008 (2) O.S.No.39 of 2002 (3) O.S.No.730 of 1990 shall be tried jointly by the Principal District Judge, Chengalput and a common judgment shall be passed. Both the parties are directed to appear before the Principal District Court, Chengalput on 05.04.2011. 18. Accordingly, the Second Appeal is disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Gms https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Sub Judge, Chengalpet. 2. The District Munsif, Chengalpet. 3. The Principal District Judge Chengalpet 4. The Section Officer VR Section, High Court, Madras 1 cc to Mr.K. Venkatachalam, Advocate, Sr. 18911 1 cc to Mr.V. Ramajagadeesan, Advocate, Sr. 18951 S.A.No.746 of 2009 NG (CO) kk 25/3 https://hcservices.ecourts.gov.in/hcservices/