IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.4.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.58 of 2007 and M.P.No.1 of 2007 Smt.Govindammal ... Appellant/1st Defendant vs. 1.Murugesan 2.Chinthamani .. Respondents/Plaintiff and 2nd Defendant This second appeal is filed U/s.100 of CPC against the judgement and decree dated 16.3.2006 passed by the Subordinate Judge, Ariyalur,Perambalur in A.S.No.22 of 2003 confirming the judgement and decree dated 20.12.2002 passed by the District Munsif, Jayankondam,Perambalur in O.S.No.53 of 2000. For Appellant : Mr.M.V.Krishnan For Respondents : Mr.P.Kamadevan for R1 Mr.P.Kameshkumar for R2 JUDGMENT This second appeal is filed by the defendant, inveighing the judgement and decree dated 16.3.2006 passed by the Subordinate Judge, Ariyalur, in A.S.No.22 of 2003, confirming the judgement and decree dated 20.12.2002 passed by the District Munsif, Jayankondam, in O.S.No.53 of 2000, which was filed for permanent injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A recapitulation and 'resume' of facts absolutely necessary and germane for the disposal of this second appeal would run thus: (i) The first respondent herein, as plaintiff, filed the suit seeking permanent injunction. (ii) The defendants filed the written statement resisting the https://hcservices.ecourts.gov.in/hcservices/ suit. (iii) Whereupon the trial Court framed the relevant issues. The plaintiff examined himself as P.W.1 along with P.W.2 to P.W.4 and and Exs.A1 to A12 were marked. The first defendant examined herself as D.W.1 along with the second defendant as D.W.2, D.W.3 and D.W.4 and marked Exs.B1 to B3. (iv) Ultimately, the trial Court decreed the suit, as against which, the appeal was filed by D1 for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court. 4. Challenging and impugning the judgements and decrees of the Courts below, this second appeal is focussed by D1 on various grounds and also suggesting the following substantial questions of law: "a) Whether under the provisions of the Benami Prohibition Act it is open to the plaintiff to plead that Ex.B1 to B3 the sale Deeds in favour of the defendants were Benami Transactions and the defendants 1 and 2 were not the real owners. b) Whether even if the suit properties belonged to the father-swaminatha Udayar the plaintiff, the son cannot get a decree for injunction against his sister and mother defendants 1 and 2 who are co-owners along with him. c) Whether a suit for bare injunction is not maintainable when the exclusive title of the plaintiff is in question. d) Whether the learned Subordinate Judge has erred in placing the burden of proof on the defendants under Section 105 of the Evidence Act" (Extracted as such) 5. My learned predecessor adopted as such the above substantial questions of law. 6. Heard both sides. 7. The nitty-gritty and the gist and kernal of the arguments as put forth and set forth on the side of the appellant/D1 would run thus: (i) The Courts below miserably failed to take into account the fact that indubitably and indisputably the property stands in the name of D1, as per Ex.B2-the Sale Deed dated 6.6.1955. https://hcservices.ecourts.gov.in/hcservices/ (ii) In the plaint itself it is found spelt out that the property stands only in the name of D1-the mother of the plaintiff and in such a case, without a prayer for declaration of title the suit framed was untenable, but the Courts below ignoring the settled proposition of law, simply granted injunction, which amounts to granting injunction as against the true owner. (iii) The provisions of the Benami Transactions (Prohibition) Act, 1988, also was not taken into account by the Courts below. Accordingly, the learned counsel for the appellant would pray for setting aside the judgements and decrees of the Courts below and for dismissing the original suit filed by the plaintiff. 8. Per contra, in a bid to take the edge off and torpedo and pulverise the arguments as put forth and set forth on the side of the appellant, the learned counsel for the plaintiff would advance his arguments, which could tersely and briefly be set out thus: (i) D1 already sold, her alleged right over the suit property in favour of her daughter-D2, and D2 has not preferred any appeal or second appeal and in such a case, D1, who is having no ownership over the suit property, is having no right to file the second appeal and prosecute this matter. (ii) The Courts below taking into consideration the fact that the plaintiff has been in possession and enjoyment of the suit property that D1 was not justified in executing such sale deed in favour of D2, granted injunction. Accordingly, the learned counsel for the plaintiff would pray for dismissing the second appeal. 9. At the outset itself I fumigate my mind with the relevant provisions of the Benami Transactions(prohibition) Act, 1988. "3. Prohibition of Benami Transactions – (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a - (i) depository as registered owner under sub-section (1) of section 10 of the Depositories Act, 1996 (ii) participant as an agent of a depository. Explanation – The expressions 'depository' and https://hcservices.ecourts.gov.in/hcservices/ 'participants' shall have the meanings respectively assigned to them in clauses (3) and (g) of sub-section (1) of Section 2 of the Depositories Act, 1996. 3. Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable. (emphasis supplied) 10. A mere poring over and perusal of the above provision would clearly demonstrate and display that the presumption is in favour of D1 that the property belongs to her, as even for argument sake it is taken that the property was purchased by her husband in her name. Furthermore, it is not the accepted case by D1 that her husband alone purchased the property in her name. 11. Be that as it may. In this proceeding I need not decide as to whether the husband purchased the suit property in the name of his wife-D1 from out of his income or D1 purchased it from his own source, because that is beyond the scope of this suit. The crucial and paramount point which I would like to highlight and indicate is that the very framing of the suit itself is defective. 12. At this juncture, I would like to refer to the judgment of the Madurai Bench of this Court reported in 2007(4) CTC 70 [Chinna Nachiappan and another v. PL.Lakshmanan],an excerpt from it would run thus: "14. Not to put too fine a point on it, right at the outset, I may proceed to refer to the averments in the plaint at paragraph Nos.4,5,6,7 and 8 which unambiguously and unequivocally referred to a serious title disputes between the plaintiff and the defendants. Paragraph No.8 is extracted hereunder for ready reference: "Though joint patta had been issued to the plaintiff and his pangalis have been and are in possession as per the partition among themselves. Thus the suit property continues to be in the possession and enjoyment of the plaintiff." 15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trait proposition of law that if the plaint itself contains the averments relating to title disputes https://hcservices.ecourts.gov.in/hcservices/ between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a Suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2, Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted hereunder for ready reference: "2. Suit to include the whole claim – Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the Suit within the jurisdiction of any Court." 16. Hence, in this view of the matter, the substantial question of law could rightly be decided to the effect that the original Suit is bad for absence of a prayer for declaration of title." 13. A mere perusal of the above extract, including the whole judgment, would disclose and expatiate that this suit was bad for want of prayer for declaration of title. The plaint averments itself would exemplify the same. 14. The Courts below without au fait with law and au courante with facts simply proceeded on the ground as though the plaintiff, who is allegedly in possession and having patta in his favour, is entitled to permanent injunction. 15. The learned counsel for the plaintiff would submit that the presumption as contemplated under Sub-Section (2) of Section 3 of the Benami Transactions(prohibition) Act, 1988, is a rebuttable one and if opportunity is given, the plaintiff would be able to incorporate necessary prayer for declaration and also would adduce further evidence. 16. I am of the considered view that such an argument would not hold water and cannot be countenanced at this stage of second appeal. An injunction suit per se cannot be converted into a suit for declaration or in the alternative for partition etc. If law enables the plaintiff to initiate any fresh proceedings, it is open for him to do so and it is for the defendants to resist the same as per law. 17. This bare suit for injunction, in view of my discussion supra, is ex facie and prima facie untenable and the Courts below should have concentrated on this and dismissed the original suit itself. https://hcservices.ecourts.gov.in/hcservices/ 18. Accordingly, the substantial questions of law are answered as under: Substantial question of law (i) is answered to the effect that the presumption contemplated under Sub-Section (2) of Section 3 of the Benami Transactions(prohibition) Act, 1988, is a a rebuttable presumption, but deciding the point raised by the plaintiff about the real ownership over the suit property is beyond the scope of the suit. Substantial questions of law (2) and (3) are answered to the effect that in view of the ratiocination adhered to in deciding the substantial question of law (i), the plaintiff is not entitled to seek for injunction as against D1, in whose name the property stands as per Ex.B2-the sale deed dated 6.6.1955, and I also make it clear that in this proceeding it is also not decided that the parties are co-owners. Substantial question of law (4) is answered to the effect that the Courts below did not apply the concept 'burden of proof' as per law in deciding the lis. 19. In the result, the second appeal is allowed, setting aside the judgements and decrees of the Courts below. Consequently, connected miscellaneous petition is closed. However, there is not order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Msk To 1. The Subordinate Judge, Ariyalur, Perambalur 2. The District Munsif, Jayankondam,Perambalur +1cc to Mr.S.Kamadevan, Advocate Sr 26989 +1cc to Mr.M.V.Krishnan, Advocate Sr 26944 CK(CO) km/16.5. S.A.No.58 of 2007 https://hcservices.ecourts.gov.in/hcservices/