IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 09.02.2010 CORAM THE HON'BLE Ms.JUSTICE R.MALA S.A.No. 355 of 2003 1.Chinnakannu 2.K.Rajendran ... Appellants/Defendants vs. Dr.K.Rajendran ... Respondent /Plaintiff Second Appeal filed under Section 100 of CPC against the judgment and decree dated 06.11.2002 made in A.S.No.23/2002 on the file of the Principal District Judge, Nagapattinam, confirming the judgment and decree dated 17.01.2002 made in O.S.No. 209/2000 on the file of Principal Subordinate Judge, Mayiladuthurai. For Appellants ... Mr.S.Ramamurthi For Respondent ... Mr. S.Sounthar J U D G M E N T The Second Appeal is filed against the judgment and decree dated 06.11.2002 made in A.S.No.23/2002 on the file of the Principal District Judge, Nagapattinam, confirming the judgment and decree dated 17.01.2002 made in O.S.No. 209/2000 on the file of Principal Subordinate Judge, Mayiladuthurai. 2. The averments in the plaint are as follows:- The plaintiff is the owner of the suit property as per the settlement deed executed by his father Duraiappa Padayachi on 20.11.1972. From the date onwards, he is in possession and enjoyment of the same. Since, he was employed outside the suit village, his brother Sivagnanam was managing the property. Now, the plaintiff has retired from service and now, he has settled at Sirkali Town and cultivating the land. The plaintiff's brother Sivagnanam has filed a vexatious suit in O.S.No. 387 of 1995 on the file of District Munsif, Sirkali, against the plaintiff and others, for bare injunction and obtained a decree of injunction. The plaintiff herein along with https://hcservices.ecourts.gov.in/hcservices/ Thirugnanaprakasam filed an appeal in A.S.No. 149 of 1998, which was allowed. No second appeal has been filed so far. The plaintiff is in possession and enjoyment of the same. Now, his brother Sivagnanam has instigated the defendants to interfere with the possession of the plaintiff. Hence, the plaintiff is constrained to file the suit for bare injunction against the defendants and prayed for a decree. 3. The gist and essence of written statement filed by the defendants, are as follows:- The suit property and other properties are owned by plaintiff's brothers – Sivagnanam, Thirugnanaprakasham and his Junior Paternal Uncle's son Thirukulandai and in the partition, the suit property has been allotted to the share of Sivagnanam and he is in possession and enjoyment of the same. The property has been leased out to defendants 1 and 2 and also to one Palanivelu. The plaintiff is a sub-tenant under one Gajendran, who is a tenant under Sivagnanam. The first defendant has raised 9408 paddy in one portion and ADD 72 paddy in another portion. The defendants filed I.A.No.280/2000 for appointment of a Commissioner. The defendants are not a party to the proceedings in O.S.No. 387 of 1995. A second appeal is pending before the High Court in S.A.No. 2090 of 2000. The plaintiff is not in possession. Since, the defendants are the tenants under Sivagnanam, they prayed for the dismissal of the suit. 4. The trial court after considering the averments both in the plaint and written statement had framed two issues and considering the oral evidence of PW 1, DWs 1 to 3 and Exs.A1 to A10 and Exs.B1 to B10, decreed the suit as prayed for in the plaint. Against that, the defendants have preferred an appeal. The first appellate court after considering the arguments of both counsels framed two points for consideration and concurred with the findings of the trial court and dismissed the appeal. Against that, the present second appeal has been preferred by the defendants. 5. At the time of admission of the second appeal, the following substantial questions of law were framed for consideration:- 1.Whether the Court below are right in decreeing the suit for bare injunction based on the earlier proceedings that is judgment in A.S.No. 149 of 1998 on the file of the Sub- Court, Mayiladuthurai, to which the appellants herein are not parties and as the judgment in A.S.No. 149 of 1998 is being challenged in S.A.No.2090 of 2000 before this Hon'ble High Court and the same is pending ? 2.Whether the Courts below have not erred in law in holding that the respondent herein is presumed to be in possession of the suit properties till the judgment in A.S.No. 149 of 1998 is set aside, over looking the fact that the respondent herein was arrayed as a defendant in the earlier suit for permanent injunction filed by the plaintiff therein ? https://hcservices.ecourts.gov.in/hcservices/ 3.Whether the Courts below erred in law in failing to consider independently and come to the conclusion that the plaintiff is in possession of the suit properties on the date of the suit based on the documents filed in the present suit, dehors the judgment in earlier proceedings ? 6. Substantial Question of Law No. 1 to 3 :- The respondent as plaintiff filed a suit for bare injunction stating that in pursuance of the settlement deed executed by his father Duraiappa Padayachi on 20.11.1972, he is in possession and enjoyment of the suit property. Already his brother Sivagnanam has filed a suit for bare injunction in O.S.No. 387 of 1995 on the file of District Munsif, Sirkali, which was allowed. Against that, he along with Thirugnanaprakasam preferred an appeal in A.S.No. 149 of 1998, which was allowed. Now, since, the third parties attempted to interfere with his possession, he come forward with the suit for bare injunction. The defendants/appellants herein resisted the suit contending that they are the tenants under Sivagnanam and they are in possession of the suit property and hence, they prayed for the dismissal of the suit. The trial court after framing necessary issues and considering the oral and documentary evidence decreed the suit as prayed for in the plaint. Against that, the defendants preferred an appeal, which was dismissed. Against that, the defendants have come forward with the present second appeal. 7. The learned counsel appearing for the appellants would contend that the appellants/defendants are the tenants under Sivagnanam. He was examined as DW3. The suit property has been allotted to him in the partition. So, the respondent/plaintiff is not the owner of the suit property and he is not in possession of the suit property. Against the allowing of the appeal in A.S.No. 149 of 1998, S.A.No.2090 of 2000 has been filed before this Court and the same is pending. Hence, he prayed for the allowing of the second appeal. 8. The learned counsel for the respondent would contend that the connected S.A.No.2090 of 2000 has also been tried today along with this second appeal. The appellants/defendants relied upon the partition lists, which were not admissible in evidence. Even though, they have stated that they are the tenants under Sivagnanam, but they have not recorded themselves as cultivating tenants before the Revenue Court. The previous suit in O.S.No. 387 of 1995 has been filed by Sivagnanam-DW3 and that since, he lost in the legal battle, on the instigation of Sivagnanam-DW3, the appellants/defendants attempted to interfere with the possession. They have not filed a single document to show that they are in possession and enjoyment of the suit property as tenants. They have not filed the lease deed before the Court and hence, both the courts below have considered this aspect in a proper perspective and come to the correct conclusion. Hence, he prayed for the dismissal of the second appeal. https://hcservices.ecourts.gov.in/hcservices/ 9. The suit property originally belonged to one Duraiappa Padayachi. He had three sons, viz., Sivagnanam/DW3, Thirugnanaprakasam and Rajendran/plaintiff/respondent herein. Sivagnanam has filed a suit for bare injunction in O.S.No. 387 of 1995 and that has been allowed. The judgment copy has been marked as Ex.A5. Against that, the plaintiff herein-Rajendran, as second defendant therein along with Thirugnanaprakasam filed an appeal in A.S.No. 149 of 1998, which was allowed and it is evidenced by Ex.A2. Against that, the S.A.No.2090 of 2000 has been preferred and in that, they filed C.M.P.No.20443 of 2000 and in that status quo has been ordered, which is evidenced by Ex.A3. Here, the subject matter of the suit property relates to only two items of property in R.S.No. 85/4B – 0.61 cents and R.S.No. 86/2 – 1.80 cents, totally 2.41 cents. He is basing his claim on the settlement deed dated 20.11.1972 executed by his father Duraiappa Padayachi, which was marked in the previous suit as Ex.B3. The defendants/appellants have filed the certified copy of the partition lists marked in the previous suit as Exs.A14 and 15 and as Exs.B4 and B5 respectively in the present suit. But, since, it is a suit for bare injunction, admittedly, the appellants/defendants are claiming that they are tenants under Sivagnanam. But, to prove the same they have not filed any document before the Court. But, the respondent/plaintiff has filed the documents Exs.A6 to A10 – kist receipts in respect of the suit property and he had also filed Adangal in S.A.No. 2090 of 2000 to prove his possession. So, admittedly, the respondent/plaintiff is in possession and enjoyment of the suit property. The appellants/defendants have failed to prove that they are the tenant under Sivagnanam and they are in possession of the suit property. To prove that they are in possession of the suit property as tenants they have not filed any scrap of paper before this Court. In such circumstances, I am of the opinion that the trial court and first appellate court have considered this aspect in a proper perspective and came to the correct conclusion that the respondent/plaintiff is entitled to injunction as prayed for in the plaint, since, the suit has been filed by the respondent/plaintiff against the third parties, who are not the parties in the previous suit in O.S.No. 387 of 1995. 10. The previous suit in O.S.No. 387 of 1995 has been filed by Sivagnanam stating that he is the owner of the suit properties and that he is in possession of the same, the present suit property is one of the item in the schedule of suit properties in O.S.No. 387 of 1995. But, the suit in O.S.No.387 of 1995 has been decreed. Subsequently, A.S.No. 149 of 1998 has been filed by the respondent herein/plaintiff along with Thirugnanaprakasam, which was allowed. So, the injunction has been negativated. Against that, Sivagnanam had preferred S.A.No.2090 of 2000. Now, the appellants herein/defendants have attempted to interfere with the possession of the plaintiff/respondent herein stating they are the tenants under Sivagnanam, but they have not filed any single document before the Court. In such circumstances, the pendency of S.A.No.2090 of 2000, https://hcservices.ecourts.gov.in/hcservices/ will not in any way affect the case. Hence, the trial court and first appellate court have considered this aspect in a proper perspective and come to the correct conclusion. Substantial Question of Law Nos. 1 to 3 are answered accordingly. 11. For the foregoing reasons, I do not find any infirmity or illegality in the decree and judgment passed by both courts below and it is liable to be confirmed. The second appeal is liable to be dismissed. 12. In fine, i.the second appeal is dismissed. ii.The decree and judgment passed by both courts below are confirmed. iii.No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar paa To 1.The Principal District Judge, Nagapattinam. 2.The Principal Subordinate Judge, Mayiladuthurai. 1 cc To Mr.P.Rajagopal, Advocate, SR.7928 1 cc To Mr.S.Sounthar, Advocate, SR.8500 Copy to: The Section Officer, VR Section, High Court, Madras. S.A.No.355/2003 TM(CO) sra 10/03/2010 https://hcservices.ecourts.gov.in/hcservices/