IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.10.2010 Coram The Honourable Mr.Justice S.RAJESWARAN C.R.P.(PD)Nos.2688 and 2689 of 2008 and M.P.No.1 of 2008 1.Kannikumar 2.Sabapathy 3.K.Bhuvaraghan 4.B.Ravimurugan 5.Mrs.Sakunthala 6.Latha @ Pushpalatha 7.Shanmugham 8.A.S.Arumugam 9.Mrs.Jayanthimala 10.Mrs.Sasirekha 11.U.Yamini 12.U.Balaji Murugan ... Petitioners in both C.R.Ps Vs. 1.S.Kasturibai Ammal 2.S.Rajakumari 3.P.Indirakumari 4.P.Arumugham 5.Smt.Nirmala 6.N.Balakrishnan 7.Rajendra Ammal 8.Umabai 9.Jaya 10.Smt.Manjula 11.Mrs.Uma Rani 12.S.Naveen Kumar 13.V.Radhika 14.P.Sathish Kumar ... Respondents in both C.R.Ps Civil Revision Petitions have been filed against the Fair order and Decretal order dated 04.06.2008 made in I.A.No.9593 of 2007 & IA.No.9592 of 2007 in O.S.No.5296 of 1997 on the file of the learned VII Additional Judge, City Civil Court, Chennai. For Petitioners in both C.R.Ps : Mr.R.Thiagarajan https://hcservices.ecourts.gov.in/hcservices/ For Respondents in both C.R.Ps : Mr.R.N.Amarnath COMMON ORDER The applicants in IA.No.9592 of 2007, I.A.No.9593 of 2007, in O.S.No.5296 of 1997 on the file of the VII Additional City Civil Court are the Revision Petitioners before this Court. They are aggrieved by the common order of the Court below dated 04.06.2008, by which, the applications filed by them in I.A.Nos.9592 and 9593 of 2007 were dismissed by the Trial Court. 2. The facts which are necessary for the purpose of disposing of the above two Revision Petitions are as follows: O.S.No.5296 of 1997 was filed by the plaintiffs for partition and separate possession of the B schedule property by dividing it into 12 equal parts and allotting one such part to the plaintiffs therein. 3. As per the plaint averments, the A Schedule property is measuring one cawnie and 18 grounds, which was purchased under the Sale Deed dated 16.07.1936 in the joint names of B.Kumaraswamy Mudaliar, his son Narayanaswamy Mudaliar and his brother’s son T.Muthurama Mudaliar. The said B.Kumaraswamy Mudaliar released his 1/3rd share in the A schedule property by a Release Deed dated 16.02.1935 in favour of his son K.Narayanaswamy Mudaliar and his brother’s son T.Muthurama Mudaliar. An extent of 14 grounds was sold to M/s.Binny & CO. out of the A schedule property. Thiru.Muthurama Mudaliar died in the year 1948 leaving behind him his wife Alamelu as his only legal heir. The said Alamelu Ammal ldied in the year 1963 intestate. On the death of Alamelu Ammal, her husband’s heirs i.e., the sisters of late T.Muthurama Mudaliar, Smt.Alamelu Ammal and Papathy Ammal became entitled to her share. The children of Ammakannu ammal and the children of Papathy Ammal became entitled to the ½ share of late T.Muthurama Mudaliar, i.e., each branch was entitled to ¼ share in the B schedule property. 4. One S.Palani, the eldest son of Papathy Ammal and the husband of the first plaintiff and the father of the Plaintiffs 2 to 5, died on 30.11.1973 at Kancheepuram intestate leaving behind the plaintiffs as his legal heirs. The owner of the other ½ share in the B schedule property died in the year 1962 leaving behind him the defendants 8 to 14 as his legal heirs. The children of Ammakannu Ammal filed a suit in O.S.No.7053 of 1981 on the file of the IV Assistant City Civil Court for partition and separate possession of their 1/4th share in the B schedule property. However, they did not implead the plaintiffs https://hcservices.ecourts.gov.in/hcservices/ as parties, eventhough they are entitled to 1/12th share. The plaintiffs came to know about the proceedings in O.S.No.7053 of 1981 only when they attended the funeral ceremony of S.Venugopal who was the son of Ammakannu Ammal and who passed away on 05.09.1994. Immediately, they filed I.A.No.4577 of 1995 in O.S.No.7053 of 1981 for impleading them as defendants, but, their application was dismissed by the IV Assistant City Civil Court on 28.11.1995. Against the order of dismissal, the plaintiffs filed C.R.P.No.3139 of 1996 and this Court on 27.06.1997 while dismissing the Civil Revision Petition granted liberties to the plaintiffs institute a separate partition suit and account their remedy. Consequently, the plaintiffs filed O.S.No.5296 of 1997 for the aforesaid reliefs. 5. On 11.08.2006, the VII Assistant City Civil Court passed a preliminary decree in favour of the plaintiffs and as per the preliminary decree dated 11.08.2006, the plaintiffs are entitled to 1/12th share in the B schedule property and they are liberty to appoint an Advocate Commissioner for such division, besides they are also entitled to a cost of Rs.22,829/-. 6. After the preliminary decree was passed, the defendants 5, 7, 19, 20, 23 to 28, 32 and 33 filed I.A.No.15750 of 2006 under Order 39 Rule 1 praying for an order of injunction restraining the plaintiffs 2 to 5, the defendants 8 to 14 and the defendants 22, 29 to 31 from alienating or encumbering or dealing with the suit mentioned property. It is pertinent to mention here that both the A and B schedule properties were shown in the Injunction Application filed in I.A.No.15750 of 2006. 7. In the affidavit filed in support of I.A.No.15750 of 2006, the petitioners in that IA stated that they applied for urgent certified copies of the judgment and decree passed in O.S.No.5296 of 1997, but, the respondents 5 to 13 thereon are trying to alienate 1200 sq.ft. out of 28 grounds of the suit schedule property to third parties without reference to the other rights of other co-owners. Unless the respondents 5 to 13 are restrained by an order of injunction restraining them from alienating a vacant land measuring 1200 sq.ft., out of 28 ground of suit schedule property, the same would not be available for partition and separate possession and the rights of the third parties would also intervene. Hence, they prayed for an order of injunction as stated above. The Trial court granted an order of interim injunction and the same was also extended later on. 8. Thereafter, the applicants in I.A.No.15750 of 2006 filed two applications in I.A.Nos.9592 and 9593 of 2007 praying to punish Tmt.Rajendra Ammal and Thiru P.Sathishkumar for dis- obedience of the order of injunction granted in I.A.No.15750 of 2006 and also to annul the Sale Deed dated 14.02.2007, executed by Tmt.Rajendra Ammal and registered as Doc. No.524 of 2007 as illegal, invalid and non-est in the eye of law since the Sale https://hcservices.ecourts.gov.in/hcservices/ Deed was executed in dis-obeyence of the order granted in I.A.No.15750 of 2006 in favour of Thiru P.Sathishkumar. 9. In the affidavit filed in support of the above two applications, the applicants stated that on 18.09.2006 an order of injunction was granted which extended time and again and it was in force till 12.06.2007. In the meanwhile, the 7th respondent by a deed of Sale dated 14.08.2007, sold 1200 sq.f.t being the part of Plot No.718, comprised in S.No.1560/21, being a part of Plot Nos.3 and 4, Poes Road, Chennai – 18 in favour of Thiru P.SathishKumar and the same was registered as Doc. No.524 of 2007 and Rectification Deed dated 29.05.2007 registered as Doc.No.576 of 2007 on the file of the Joint Registrar-I, Chennai Central. Therefore, they filed the above two applications for the aforesaid reliefs. 10. A common counter affidavit was filed by the 7th respondent in both the applications denying that they have disobeyed the order of injunction willfully. 11. The 14th respondent filed a counter affidavit wherein it was stated that an extent of 1200 sq.f.t of land sold to him did not form part of the property with respect to which the decree in O.S.No.5296 of 2007 came to be passed. It was pointed out that the decree came to be passed with respect of B schedule property which was a part of A schedule property and the property purchased by him was not at all the subject matter of the suit filed in O.S.No.5296 of 1997. Hence, he prayed for the dismissal of the applications. 12. The Court below by order dated 04.06.2008 dismissed both the applications on the ground that the property purchased by the 14th respondent from the 7th respondent was not only the subject matter of the property in O.S.No.7053 of 1981 but also in O.S.No.5296 of 1997. Aggrieved by the same, the above two Civil Revision Petitions have been filed by the petitioners in those applications. 13. Heard the learned counsel for the petitioners and the learned counsel for the respondents and I have also gone through the entire documents available on record. 14. It is the specific case of the revision petitioners that the respondents in I.A.Nos.9592 and 9593 of 2007 dis-obeyed the order of injunction granted by the trial court and therefore, Tmt.Rajendra Ammal who sold an extent of 1200 sq.f.t to one P.Sathishkumar has to be punished, for willfully disobeying the order of injunction and also to annul the Sale Deed dated 14.05.2007. 15. A perusal of the petition filed in I.A.No.15750 of 2006 will show that it contains two schedules, namely, A schedule and https://hcservices.ecourts.gov.in/hcservices/ B schedule properties. A schedule property is the property namely house, ground and garden bearing Door No.7, Poes Road, Vanniar Teynampet, Chennai – 18, Door No.OS 2030 and RS No.1560, comprised in Collectors Certificate No.1882 measuring one cawnie and 18 grounds and thereabouts. B Schedule property is the house, ground and premises bearing Door No.7, Poes Road, Vanniar Teynampet, Chennai – 18, bearing S.No.15660/2, Division No.113, Corporation of Chennai measuring 3 grounds and 75 sq.ft. i.e., 7275 sq.ft. The prayer in I.A.No.15750 of 2006 is to restrain the respondents from alienating or encumbering or dealing with the suit mentioned property pending and preferring an Appeal. 16. An order of injunction has been granted by the trial court as prayed for on 18.09.2006 and the same was also extended subsequently. 17. The case of the 7th respondent and the 14th respondent in I.A.Nos.9592 and 9593 of 2007 is that the property purchased by the 14th respondent from the 7th respondent is not the subject matter of O.S.No.5296 of 1997 and therefore there is no question of willfully disobeying the order of injunction granted by the trial court. This was accepted by the trial court and accordingly both the applications were dismissed. 18. It is not in dispute that no evidence was let in by both the parties excepting their affidavits and counter affidavits. Based on the pleadings alone the trial court has come to the conclusion that the subject matter property is different and therefore, it cannot be said that the respondents 7 and 14 have willfully disobeyed the order of injunction granted by the trial court. 19. Before this Court, the learned counsel for the petitioners vehemently contended that the property sold is definitely the same property which is covered by the order of injunction and therefore, the trial court is obviously wrong in rejecting the applications on the ground that the subject matter of the property is different from the property for which an order of injunction has been granted. 20. The learned counsel produced the sale deed dated 14.05.2007 and referred to the schedule of the property as mentioned therein. A perusal of the schedule of property as contained in the sale deed dated 14.05.2007 will show that it is piece and parcel of vacant land bearing plot No.71B of an extent of 1200 sq.ft. or thereabouts situated at Poes Road, Chennai-18, otherwise called Manivannan Thottam, being part of Varadharaja Puram comprised in S.No.1560/2 (Old No.1560/2) of Mylapore Village, Mylapore-Triplicane Taluk Office. The learned counsel then referred to the Recitification Deed entered into between the same parties on 31.05.2007 wherein the suit schedule property after rectification was shown as all that piece and parcel of vacant land bearing plot No.71B of an extent of 1200 https://hcservices.ecourts.gov.in/hcservices/ sq.ft. or thereabouts situated at Poes Road, Chennai – 18 otherwise called, Manivannan Thottam being part of Varadharajapuram comprised in S.No.1560/21 (old S.No.1560/2) of Mylapore Village of Mylapore-Triplicane Taluk Office. 21. It is seen from the plaint filed in O.S.No.5296 of 1997 that the B schedule property for which partition was asked for was shown as house, ground and premises bearing Door No.7, Poes Road, Vanniar Teynampet, Chennai – 18, covering 3 grounds and 75 sq.ft. bearing S.No.1560/2. 22. Therefore, if A schedule and B schedule properties shown in O.S.No.5296 of 1997 and the schedule property as shown in the sale deed dated 14.05.2007 and rectification deed dated 31.05.2007 are compared and perused, it is not very clear as to whether what was alienated by the 7th respondent to the 14th respondent is the subject matter of the property or not. It is also not in dispute that the trial court has come to the conclusion that the properties are different solely on the basis of the pleadings filed by both the parties and admittedly no evidence, oral and documentary was let in by the parties in the above said two applications. 23. It is very clear from the fair order dated 04.06.2008, wherein it was mentioned that both the sides have not filed any documents and no witnesses were also examined by both the sides. In such circumstances, I am of the considered view that the dispute raised by the petitioners in both the applications ought not to have been decided by the trial court solely on the basis of the pleadings alone. Even when the parties have failed to let in any evidence, a duty is cast upon the trial court by directing the parties to adduce evidence in support of their rival contentions. In a matter of this nature wherein one party asserts that the subject matter property was alienated when the order of injunction is very much in force and the other party refutes the same by contending that what was sold is a different property, it is imperative and necessary to let in both oral and documentary evidence to find out very clearly whether the property alienated was included in the schedule, for which, an order of injunction has been granted. Though proceedings of this nature are summary, still certain amount of evidence, both oral and documentary, is very much necessary to decide the issue involved in an application of this nature. Therefore, I have no hesitation to hold that the trial court has failed to exercise its jurisdiction properly and the trial court ought to have directed both the parties to let in evidence in support of their contentions. As it was not done, I interfere with the order passed by the trial court dated 04.06.2008 by setting aside the same and remand the matter to the trial court for considering both the applications afresh, after giving an opportunity to both the parties to let in evidence, both oral and documentary. https://hcservices.ecourts.gov.in/hcservices/ 24. In the result, both the Revision Petitions are allowed to the extent that I.A.Nos.9592 and 9593 of 2007 are remanded to the trial court for fresh consideration on merits as indicated above. 25. Considering the fact that these applications were filed in the year 2007, I direct the trial court, namely, the VII Additional City Civil Court to dispose off both the applications in I.A.Nos.9592 and 9593 of 2007 afresh and on merits and as per directions given by me within three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is also closed. No costs. cse Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The VII Additional Judge, City Civil Court, Chennai. + 2 ccs to Mr. R. Thiagarajan, Advocate SR No.78353 + 2 ccs to Mr. R.N. Amarnath, Advocate SR No.77798 MBS(CO) SR/27.1.2011 order made in C.R.P.(PD)Nos.2688 and 2689 of 2008 and M.P.No.1 of 2008 https://hcservices.ecourts.gov.in/hcservices/