IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.04.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1 of 2006 Periammal .. Appellant/Respondent/Defendant vs. 1. Palanisamy Gounder 2. Swaminathan .. Respondents/Appelalnt/Plaintiff This second appeal is filed under Section 100 of C.P.C. focussed as against the judgment and decree in A.S.No.9 of 2005 on the file of the Principal Sub Judge, Erode, dated 23.08.2005 in reversing the judgment and decree in O.S.No.127 of 2003 on the file of the II Additional District Munsif, Erode, dated 30.04.2004. For Appellant : Mr.V.Raghavachari For Respondents : Mr.N.Manokaran J U D G M E N T This second appeal is focussed by the original defendant, animadverting upon the judgement and decree dated 23.08.2005 passed in A.S.No.9 of 2005 by the Principal Sub Judge, Erode, reversing the judgment and decree of the II Additional District Munsif, Erode in O.S.No.127 of 2003. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A recapitulation and re'sume' of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiffs filed the suit seeking the following reliefs: (i) To restrain the defendant, her men, agents, etc., from in any way and in any manner either trespassing into the suit properties or disturbing the peaceful possession and enjoyment of the suit properties by the plaintiffs by means of permanent injunction; and (ii) for costs. (Extracted as such) (b) The defendant filed the written statement resisting the suit. (c) Whereupon the trial Court framed the issues. https://hcservices.ecourts.gov.in/hcservices/ (d) During trial, the first plaintiff-Palanisamy Gounder examined himself as P.W.1 along with P.W.2-Ramasamy and Exs.A1 to A6 were marked. The defendant-Periammal examined herself as D.W.1. (e) Ultimately the trial Court dismissed the suit, as against which appeal was filed. Whereupon, the appellate Court reversed the judgment and decree of the trial Court and decreed the original suit. 3. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, this Second Appeal has been filed by the defendant on various grounds and also suggesting the following substantial questions of law: "(1) Whether the lower appellate court is right in applying the taxing statute to interpret the substantive law, viz., the Specific Relief Act? (2) Whether the lower appellate Court is right in relying on Ex.A3 to A5, when the documents do to pertain to the suit property? (3) Whether the lower appellate court is ignoring the admission of PW2, who had admitted the possession of the appellant? (4) Whether the lower appellate court is right in not adjudicating the fundamental issue viz., as to who was in possession as on the date of institution of the suit? (5) In a suit for permanent injunction, whether the lower appellate court is right in failing to decide the controversy as to the party in possession? (6) Whether the evidence of PW's not establish the possession of the appellant and consequently, whether the lower appellate is justified in granting a decree for permanent injunction against the appellant, who is found to be in actual possession? (7) Whether the lower appellate Court is right in its interpretation of the judgment of the High Court in the appeal and should it not have seen that the said judgment has not attained finality?. " (extracted as such) https://hcservices.ecourts.gov.in/hcservices/ 4. My learned Predecessor framed the following substantial questions of law: "(1) Whether the lower appellate Court is right in relying on Ex.A3 to A5, when the documents do to (sic not) pertain to the suit property? (2) Whether the lower appellate court is right in not adjudicating the fundamental issue viz., as to who was in possession as on the date of institution of the suit?" (extracted as such) 5. The learned counsel for the appellant/defendant would put forth and set forth his arguments, the gist and kernel of them would run thus: (a) The first appellate Court failed to take into account the basic fact that the plaintiffs ought to have established that they were in exclusive possession and enjoyment of the suit property, before they could seek for injunction. (b) The first appellate Court simply ignored the admission made by P.W.1, the first plaintiff to the effect that only after disposal of the earlier S.A.No.223 of 2002, they ventured to take up the possession of the suit property and that was indicative of the fact that they were not in possession earlier. (c) There is nothing to indicate that after the death of Chinnammal, the life estate holder in respect of the half share in the suit property, the ultimate beneficiary/donee, Swaminathan took possession of the suit property. (d) Simply based on the earlier judgment and decree, the appellate Court was not justified in decreeing the original suit, reversing the judgment and decree of the trial Court in dismissing the original suit. 6. In a bid to torpedo and pulverise and to take the edge off the arguments as put forth and set forth on the side of the defendant, the learned counsel for the plaintiffs would put forth and set forth his arguments, the warp and woof of them would run thus: In the earlier S.A.No.223 of 2002, this Court rendered its judgment which is reported in 2003-2-LW-605 [Palanisamy Gounder and another vs. Periammal], wherein, it is clearly and categorically held that the appellant/defendant herein failed to establish her alleged https://hcservices.ecourts.gov.in/hcservices/ joint possession of the suit property and her claim for title over it based on the two settlement deeds also was negatived and in such a case, the present plaintiffs, who were the defendants in the earlier suit, are seeking injunction. As a sequele, the present suit was eligible to be allowed and accordingly the first appellate Court correctly appreciated the facts and rendered the judgment granting injunction. 7. Both the aforesaid substantial questions of law are taken together for discussion, as they are inter linked and inter woven with each other. 8. The admitted facts or atleast the undeniable facts would run thus: Appachi Gounder is the father of the first plaintiff and grand father of the second plaintiff and brother of the defendant. The items 3 and 4 are the ancestral properties and the said Appachi Gounder purchased the first and second items. While so, it appears the said Appachi Gounder executed the settlement deed in respect of the first and second items of suit properties in favour of his grand son Swaminathan/P2 herein after giving life estate in favour of his wife Chinnammal. It so happened that during the life time of Appachi Gounder, he felt that he was not looked after properly by Chinnammal, whereupon he revoked the settlement deed dated 21.08.1959 and executed the fresh settlement deeds in favour of Periammal in respect of the same items, which happened to be the subject matter of the earlier settlement deed. The said Periammal filed the suit for partition on the strength of the settlement deeds. The said suit was resisted and ultimately up to High Court the matter was litigated and that alone resulted in the emergence of the judgment in Second Appeal which was reported in 2003-2-LW-605 [cited supra]. I would like to extract hereunder the relevant portions of it. "31. The plaintiff admitted having issued notice Ex.B1 to the defendant and received the reply Ex.B2. Having received Ex.B2, the reply notice sent by the defendants denying her right of half share in the year 1979, she must have approached the Court to establish her claim within the period of limitation. Admittedly, the suit has been filed in 1995, i.e., after 17 years. As such, it has not been filed within 12 years, the period of limitation. Furthermore, there is no material produced by the plaintiff to show that the properties were in joint possession of the plaintiff as well as the defendants subsequent to Exs.A5 and A6. On the other hand, the defendants sent reply Ex.B2 on 20.06.1979 itself stating that the suit properties were in their possession denying the claim of the plaintiff, i.e., the joint possession. The evidence of D.Ws.1 and 2 also https://hcservices.ecourts.gov.in/hcservices/ would support Ex.B2. 32. In the absence of the materials to prove the continuous joint possession and in the light of the suppression of Exs.B1 and B2 in the plaint and in the reply statement filed in the Court, it is not open to the plaintiff, a this stage, to claim joint possession. In fact, the trial Court has considered the evidence and discussed threadbare and given a factual finding that Ex.A11 has been acted upon and subsequent cancellation deed is not valid and it was not established that the family status has been severed through the proper evidence and as such, Exs.A5 and A6 also had become invalid. The lower appellate Court did not at all consider the reasons given by the trial Court for factual findings and instead, gave a finding in favour of the plaintiff against the evidence available on record ignoring the settled principles of law." 9. A plain poring over and perusal of those paragraphs extracted supra and the entire judgment, would exemplify and demonstrate that the High Court in the previous S.A.No.223 of 2002 held that the revocation of the earlier settlement deed dated 21.08.1959 by Appachi Gounder was void and wherefore the second settlement deeds dated 29.06.1978 and 05.07.1978 executed by him in favour of Periammal were having no legs to stand. Accordingly, the original suit filed by Periammal earlier stood dismissed and the finding also was given against her that she was not in joint possession of the suit property also. In such a case, as a sequele what follows is that the present suit for injunction as against her should be granted. Accordingly, the first appellate Court granted the relief. 10. I would like to hark back to the legal principle that any judgment that is being passed in matters of this nature should be treated only a judgment in personam. We have to see the preponderance of probabilities and the Court has to weigh the right of the rival parties. If the plaintiff is having a better claim than the defendant, that has to be decreed. Accordingly if viewed, it is crystal clear that the defendant - Periammal in the previous litigation totally lost her claim. Her claim was rejected in toto to the effect that she could not claim any right over the suit property on the strength of the settlement deeds dated 29.06.1978 and 05.07.1978 and she was held to be not in joint possession also of the suit property and the parties are one and the same in both the litigations. Wherefore, the findings rendered in the previous litigation would certainly operate as against the defendant Periammal in this case and now she cannot be heard to contend that despite the findings given by the High Court in the previous Second Appeal, she remains in joint possession or exclusive possession of the suit property. When such is the factual as well as the legal position https://hcservices.ecourts.gov.in/hcservices/ operating as against Periammal, the question of trying to non suit the plaintiffs in this case is a far fetched one and a well weigh responsibility and even by phantasmagorical thoughts such pleas on the part of the defendant cannot be countenanced. 11. No doubt it is a rudimentary principle of law that the person who seeks injunction, as on the date of filing of the suit should be in possession of the suit property. The main question arises as to who is now resisting the suit. Periammal is resisting the present suit for injunction, however as against her already there is a finding that she is not in possession of the suit property. In such a case, she cannot resist the suit on the ground that she is in joint possession or exclusive possession of the suit property and once that is the resultant position, the plaintiffs who happened to be the defendants in the previous suit are entitled to injunction. I would like to put it in a different way also. Had the plaintiffs herein as the defendants therein prayed for a counter claim praying for injunction consequent upon the dismissal of Periammal's claim in the previous case, as a sequele the injunction would have been granted in the previous litigation itself and this litigation would not have arisen. In view of the procedural laws, it necessitated the defendants therein who are the plaintiffs herein, to file the present suit, ultimately to get such a relief of injunction which cannot be denied. The trial court without au fait with law and au courant with facts simply dismissed the genuine suit of the plaintiffs for injunction. However, the appellate Court rectified it warranting no interference in the Second Appeal. 12. Wherefore, the first substantial question of law is answered to the effect that the first appellate Court was right in relying on Ex.A3 – Receipt given in the name of the first plaintiff for purchase of pesticides, Ex.A4 – Pass Book in the name of the first plaintiff and Ex.A5 – House tax receipt in the name of the first plaintiff. 13. The second substantial question of law is answered to the effect that the first appellate court was right in holding that the plaintiffs are in possession of the suit property and that they are entitled to injunction. 14. In the result, this Second Appeal is dismissed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Gms https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Sub Judge, Erode. 2. The II Additional District Munsif, Erode. 1 cc To Mr.N.Manokaran, Advocate, SR.25731 S.A.No.1 of 2006 rs(co) pmk.6.6.2011 https://hcservices.ecourts.gov.in/hcservices/