IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.09.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A. No.1663 of 1999 AND C.M.P.No.17813 of 1999 Vijayalakshmi ...Appellant/Plaintiff V. Raja ...Respondent/Defendant Prayer: Appeal filed under Section of 100 of C.P.C. against the Judgment and Decree dated 28.01.1999 in A.S.No.141 of 1998 on the file of the Additional Subordinate Judge, Nagapattinam confirming the Judgment and Decree dated 24.12.1997 in O.S.No.216 of 1996 on the file of the District Munsif, Nannilam. For Appellant : Mr.S.Viswanathan for M/s. A.Muthukumar For Respondent : Mr.K.Sukumar J U D G M E N T The Appellant/Plaintiff has filed this Second Appeal as against the Judgment and Decree dated 28.01.1999 in A.S.No.141 of 1998 passed by the Learned Additional Subordinate Judge, Nagapattinam. 2.The First Appellate Court while passing the Judgment in A.S.No.141 of 1998 on 28.01.1999 has inter alia observed that '...the Defendant/Respondent is not now in joint possession of the suit properties. However, after he acquires right upon the said properties as stated supra, the presumption is that he is also a co- owner. But, the contention on behalf of the Appellant is that the Respondent/Defendant being an alienee from Seeniammal, another Co- owner is not entitled to joint possession with the Appellant upon the said properties and that the Appellant is entitled to seek injunction against him. But, it is not a case between a Coparcenar and a stranger alienee from coparcenar. Therefore, the said contention on behalf of the Appellant is not accepted. Therefore, it is held that the Plaintiff/Appellant is not entitled to injunction as against the Respondent/Defendant with regard to Door No.2/39 and the property in https://hcservices.ecourts.gov.in/hcservices/ Survey No.67/6. Also, the trial Court has further observed that the Defendant/Respondent derived right upon the Survey No.67/10. Therefore, with regard to the said property, the Appellant/Plaintiff is not entitled to seek injunction against the Respondent. Therefore, the Judgment and Decree of the trial Court with regard to the suit house, the property in Survey No.67/6 and the property in S.No.67/10 cannot be said as incorrect and accordingly held for point No.1 that the portion of the Judgment and Decree of the trial Court dismissing the Plaintiff/Appellant's claim with regard to the suit house in Door No.2/39, the property in S.No.67/6 and the property in S.No.67/10 is correct' and resultantly, confirmed the portion of the Judgment and Decree of the trial Court dismissing the Plaintiff/Appellant's claim in regard to the same and consequently, allowed the Appeal in part without costs. 3. Before the trial Court in the main suit, two issues have been framed for trial. On behalf of the Appellant/Plaintiff, Witnesses P.Ws.1 and 2 have been examined and Exs.A1 to A40 have been marked. On the side of the Respondent/Defendant, Witnesses D.Ws.1 to 3 have been examined and Exs.B1 to B9 have been marked. 4. The trial Court on an appreciation of oral and documentary evidence available on record has consequently dismissed the suit in respect of the first item in S.No.67/6, the suit house bearing Door No.2/39 and in respect of the second item viz., the S.No.67/10 with costs but in respect of the suit first item in S.No.67/7 cents and in respect of the third item of the suit property bearing S.No.67/5, 10 cents, it had decreed the suit as prayed for. 5. Being dissatisfied with the Judgment and Decree dated 21.08.1999 in respect of A.S.141/1998 passed by the Learned Additional Subordinate Judge, Nagapattinam, the Appellant/Plaintiff as an aggrieved person has preferred the Second Appeal before this Court. 6.At the time of admission of the Second Appeal, this Court has framed the following substantial questions of law: i)Whether the Judgment of the Learned Subordinate Judge is vitiated in holding that the Defendant has acquired title as co- owner under Ex.B4 Settlement Deed dated 15.11.1996 without giving a finding on the validity of Ex.B4 Settlement Deed? ii)When the Plaintiff is admittedly in possession of the suit house and living there with her family, is she not entitled to a decree for injunction against the Defendant? iii) Whether the Lower Appellate Court erred in law in holding that no injunction could be granted against the Defendant since is a co-owner overlooking the fact that the Defendant claiming to be a Settlee from one of the coowners cannot interfere with the admitted possession of the Plaintiff?" https://hcservices.ecourts.gov.in/hcservices/ CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTION Nos. 1 TO 3: 7. According to the Learned counsel for the Appellant/ Plaintiff, the First Appellate Court having held that S.Nos.67/10 and 67/5 have been purchased by Natarajan should have accepted the case of the Appellant/Plaintiff that the other 2 Survey Numbers.67/6 and 67/7 have also been purchased by Natarajan in the name of his wife Seeni Ammal and in fact, the First Appellate Court has failed to see that Natarajan has been enjoying all the four Survey Nos. In his capacity as owner. 8. Advancing his arguments, it is the contention of the Learned counsel for the Appellant/Plaintiff that the First Appellate Court ought to have seen that Seeniammal has not possessed the necessary funds to purchase the two Survey Nos. Claimed by her and that her husband purchased the same in the name of his wife for the benefit of the family and indeed, the First Appellate Court having held that S.No.67/6 and house constructed thereon belonged absolutely to Natarajan, ought to have held that S.No.67/7 has also been purchased by Natarajan. 9. It is the contention of the Learned counsel for the Appellant/Plaintiff that on the death of Natarajan, his widow Seeniammal and his 2 daughters, the Appellant/Plaintiff and her elder sister alone are entitled to the suit properties and that the Respondent/Defendant has no right whatsoever in the suit properties. 10. Proceeding further, the Learned counsel for the Appellant/Plaintiff submits that the Appellant/Plaintiff and her husband having been living with Natarajan ever since the construction of the house since he has no male issue and that neither the Respondent/Defendant nor his mother has ever been in occupation of the suit house. But, these aspects of the matter has not been looked into by the trial Court in a real perspective. 11. The Learned counsel for the Appellant/Plaintiff urges before this Court that the Gift deed said to have been executed by Seeniammal in favour of the Respondent/Defendant is a valid one inasmuch as the necessary ingredients for making valid Gift are absent in the case and added further, the Respondent/Defendant has never been put in possession of the suit properties and that only Seeniammal is continued to live in the suit house along with the Appellant/Plaintiff and therefore, the Gift Deed is not a valid document. 12. The specific plea taken on behalf of the Appellant/Plaintiff is that she is in possession of the suit properties and as the Respondent/Defendant is not in possession, the Appellant/Plaintiff is entitled to a Decree for injunction and also, a contention is put https://hcservices.ecourts.gov.in/hcservices/ forward on the side of the Appellant/Plaintiff is that the the First Appellate Court has gone wrong in observing that as the Respondent/Defendant is a coowner, no injunction can be granted overlooking the fact that the Respondent/Defendant claims to be a Settlee from one of the coowners and cannot claim to be a coowner with the Appellant/Plaintiff. 13. The Learned counsel for the Appellant/Plaintiff submits that since the Appellant/Plaintiff is not a party to Ex.B4 the Settlement Deed dated 15.11.1996 executed by Seeniammal in favour of the Respondent/Defendant, she has not questioned the same. 14.In short, the Learned counsel for the Appellant/Plaintiff submits that the First Appellate Court has not looked into all the relevant and material aspects of the case in an attendant fashion and this has resulted in miscarriage of justice and therefore, prays for allowing the Appeal to promote substantial cause of justice. 15. The Learned counsel for the Appellant/Plaintiff cites the decision of the Hon'ble Supreme Court GAJARA VISHNU GOSAVI V. PRAKASH NANASAHEB KAMBLE AND OTHERS, 2009(5) CTC 380, at page 381, wherein it is held that 'in a given case an undivided share of a co- parcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a Partition suit, or by settlement among the co-shares.' 16.In response, the Learned counsel for the Respondent/Defendant submits that the Appellant/Plaintiff has miserably failed to establish the cause of action mentioned in the plaint and in fact, the Respondent/Defendant on 01.12.1996 has not been there in the suit properties or in Town/village of the suit properties and the Appellant/Plaintiff has to prove her case. 17. That apart, it is the contention of the Learned counsel for the Respondent/Defendant that the Appellant/Plaintiff has filed the suit as if she is the owner of the entire properties and in paragraph 3 of the plaint, the Appellant/Plaintiff has stated that she has been in enjoyment and possession of the suit properties mentioned thereto and all the more, the Appellant/Plaintiff has not pleaded in the plaint as to the knowledge of settlment of Seeniammal's right is suppressed in paragraph 4 of the plaint. 18. The pith and substance of the contention of the Learned counsel for the Respondent/Defendant is that the Appellant/Plaintiff has not proved the cause of action and therefore, she is not entitled to claim the relief of injunction against the Respondent/Defendant. 19. According to the Learned counsel for the Respondent/Defendant, the 8 cents in S.Nos.67/10 and S.No.67/6 https://hcservices.ecourts.gov.in/hcservices/ measuring an extent of 17 ½ cents have been purchased by Seeniammal who has constructed a house and has been in enjoyment of the same and on 15.11.1996, she has executed a Settlement Deed in respect of those properties in favour of the Respondent/Defendant viz., her Grandson and as such, either the Appellant/Plaintiff or those related to her do not have any right or title in respect of the said properties. 20.The Learned counsel for the Respondent/Defendant cites the decision of the Hon'ble Supreme Court K.SEETHARAM V. B.U.PAPAMMA AND ANOTHER, (2001) 4 SUPREME COURT CASES 322, at page 322 and 323, wherein it is held as follows: "In a suit of this nature the question for determination is whether the Defendant, while constructing the building, had encroached upon a portion of the suit land. If the question is answered in the negative, the suit will fail for want of cause of action. In the case in hand, a Commissioner was appointed by the Court and according to the report submitted by him, the Defendant had not encroached on any portion of the land of the Plaintiff. The Commissioner's report was accepted by the trial Court. Considering the report along with the other evidence on record, the Court held that the Plaintiff failed to prove that the Defendant had encroached on the suit land. The averments in para 6 of the written statement do not give any indication that the Defendant admitted the case stated in the plaint. On the other hand, the averments clearly indicate that the Defendant denied that the Plaintiff had any cause of action for filing the suit. The High Court was clearly in error in setting aside the judgment of the trial court on the mistaken notion that the case of the Plaintiff was admitted by the Defendant in his pleading. The judgment of the High Court is clearly unsustainable." He also seeks in aid of the decision of the Hon'ble Supreme Court KONDIBA DAGADU KADAM V. SAVITRIBAI SOPAN GUJAR AND OTHERS, AIR 1999 SUPREME COURT 2213, wherein it is held as follows: "The right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a Second Appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to https://hcservices.ecourts.gov.in/hcservices/ be distinguished from a substantial question of fact." He invites the attention of this Court to the decision of the Hon'ble Supreme Court RAJASTHAN HIGH COURT ADVOCATES ASSOCIATION V. UNION OF INDIA, AIR 2001 SUPREME COURT 416, at page 417 , wherein it is held as follows: "The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in 'cause of action'. It has to be left to be determined in each individual case as to where the cause of action arises." 21.In Rejoinder filed by the Appellant/Plaintiff before the trial court, it is among other things observed that the Appellant/Plaintiff is in enjoyment of the suit properties and that the Respondent/Defendant is not a co-owner in respect of the suit properties and he has no right in respect of the suit properties and also, the Settlement Deed purportedly executed by Seeniammal in favour of the Respondent/Defendant is not a valid one and therefore, he has no right and enjoyment over the suit properties by virtue of Settlement Deed and hence, the suit has been filed for the relief of permanent injunction. 22. A close reading of paragraph 6 of the plaint shows that on 01.12.1996, the Respondent/Defendant has made an endeavour to trespass into the suit property which has been in enjoyment and possession of the Appellant/Plaintiff and that has been prevented by the Appellant/Plaintiff's men and further, that the Respondent/Defendant is proclaiming upon in the suit village that he is going to knock off the suit properties from the Appellant/Plaintiff by means of committing an act of trespass and therefore, the suit for permanent injunction has been filed by the Appellant/Plaintiff against the Respondent/Defendant. 23. Admittedly, the suit for injunction filed by the Appellant/Plaintiff is resisted by the Respondent/Defendant on the ground that the suit framed by the Appellant/Plaintiff is not maintainable and that the House Tax Receipts filed by the Appellant/Plaintiff are not to be in respect of the suit properties https://hcservices.ecourts.gov.in/hcservices/ and that in the suit properties, Seeniammal is residing and she has executed a Settlement Deed in favour of the Respondent/Defendant which fact is known to the Appellant/Plaintiff and her husband and suppressing these material facts, the Appellant/Plaintiff has filed the suit for permanent injunction. 24. Generally speaking, in a suit for permanent injunction, a Court of law can incidentally or ancillarily go into the issue of title concerning property in dispute but in the instant case on hand, the Appellant/Plaintiff in the plaint has averred that he is in enjoyment and possession of the suit properties. But, this fact has been disputed by the Respondent/Defendant and further, he claims that Seeniammal has executed a Settlement Deed dated 15.11.1996 in his favour in respect of S.No.67/6 measuring 17 ½ cents and S.No.67/10 measuring 0.8 cents wherein a house has been constructed and therefore, the Appellant/Plaintiff has no right over these properties. 25. Interestingly, the Appellant/Plaintiff has not whispered about the Settlement Deed dated 15.11.1996 executed by Seeniammal in the plaint filed by her before the trial court. Only in the Rejoinder, it appears that the Appellant/Plaintiff has pleaded that the Settlement Deed executed by Seeniammal in respect of the first item of the suit property is not a true and valid document. Because of the rival claim made by the Appellant/Plaintiff and the Respondent/Defendant in respect of the suit properties, either on the basis of possession and enjoyment and on the basis of the Settlement Deed dated 15.11.1996 executed by Seeniammal, this Court is of the considered view that the dispute between the parties in regard to the title of the properties cannot be gone into elaborately in a suit for bare injunction filed by the Appellant/Plaintiff and in this regard, this Court without going into the merits of the matter opines that both the trial court as well as the First Appellate Court have exceeded their jurisdiction by dealing with Ex.B4 Settlement Deed dated 15.11.1996 executed by Seeniammal in favour of the Respondent/Defendant and rendering its findings thereto and that apart, this Court is of the considered opinion that it is for the Appellant/Plaintiff to file a comprehensive suit claiming appropriate relief thereto in the manner known to law and as such, this Court is not answering the substantial questions of law and accordingly, with these observations, this Court dismisses the Second Appeal. 26. In the result, the Second Appeal is dismissed with the aforesaid observations leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court viz., the Additional Sub Judge, Nagapattinam in A.S.No.141 of 1998 dated 28.01.1999 in confirming the Judgment and Decree of the trial Court viz., District Munsif Court, Nannilam dated 24.12.1997 in O.S.No.216 of 1996 are affirmed. However, liberty is granted to the https://hcservices.ecourts.gov.in/hcservices/ Appellant/Plaintiff to file a comprehensive suit against the concern seeking appropriate relief in the manner known to law before the competent forum. The connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vri 1. The Additional Subordinate Judge, Nagapattinam. 2. The District Munsif Nannilam. 3. The Section Officer, V.R. Section, High Court, Madras. + 1 cc to Mr.K. Sukumaran, Advocate SR.70333 + 1 cc to Mr.a. Muthukumar, Advocate SR.69724 S.A.NO.1663 OF 1999 NM(CO) EU 14.10.10 https://hcservices.ecourts.gov.in/hcservices/