IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14.7.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.482 of 2010 1. Seethayammal 2. Paneerselvam 3. Loganathan 4. Balamani 5. Senthamarai .. appellants/Defendants vs. K.Ramu .. Respondent/Plaintiff This second appeal has been filed against the Judgment and decree, dated 18.12.2009, made in A.S.No.24 of 2008, on the file of the Sub Court, Bhavani,Erode confirming the judgment and decree, dated 30.11.2007, made in O.S.No.25 of 2007, on the file of the Principal District Munsif Court, Bhavani,Erode. For Appellants : Mr.N.Manoharan For Respondent : Mr.T.Murugamanikkam J U D G E M E N T This second appeal has been filed against the Judgment and decree, dated 18.12.2009, made in A.S.No.24 of 2008, on the file of the Subordinate Court, Bhavani, confirming the judgment and decree, dated 30.11.2007, made in O.S.No.25 of 2007, on the file of the Principal District Munsif Court, Bhavani. 2. The appellants in the present second appeal were the defendants in the suit, in O.S.No.25 of 2007. The plaintiff in the said suit is the respondent herein. The plaintiff had filed the suit, in O.S.No.25 of 2007, on the file of the Principal District Munsif Court, Bhavani, praying for the relief of permanent injunction against the defendants, in respect of the suit property. https://hcservices.ecourts.gov.in/hcservices/ 3. In the plaint filed by the plaintiff in the suit, in O.S.No.25 of 2007, it had been stated that the old survey Number of the suit property, is 52/2. Its total extent is 4.38 acres. The new survey number of the suit property is 98/5. The southern half of the property, measuring an extent of 2.19 acres, had been in the enjoyment of Guruvayammal, wife of Kuppanna Mudaliar, from 16.6.1955, the date of its purchase. Guruvayammal, had died, on 13.8.1992, leaving behind her two daughters Seethayammal and Pavayammal, as her legal heirs. After the death of Guruvayammal, the property in question had been in joint occupation and enjoyment of her two daughters. In the year 1994, Seethayammal and Pavayammal had partitioned the property by way of an oral partition. After the said partition, Pavayammal has been in exclusive possession and enjoyment of the suit property. Pavayammal had died in the year, 1996, leaving behind her unmarried daughter Vijaya and son Nagarajan, as her legal heirs. Both of the legal heirs of Pavayammal had been in joint enjoyment of the said property. On 4.4.2005, Vijaya had died leaving behind Nagarajan as the sole legal heir for the suit property. Since then, Nagarajan has been in exclusive possession and enjoyment of the suit property. The plaintiff had purchased the suit property from Nagarajan, on 16.6.2005. From the date of its purchase, the plaintiff has been in exclusive possession and enjoyment of the suit property. 4. It has been further stated that the second and the third defendants in the suit are the sons of the first defendant. The defendants 4 and 5 are the daughters of the first defendant. The defendants have no right, whatsoever, in the suit property. When the plaintiff was intending to purchase the suit property, the first defendant had also intended to purchase the said property. However, the plaintiff had purchased the suit property by paying a higher amount as consideration. Therefore, the defendants were having a grudge against the plaintiff. In such circumstances, the defendants were compelling the plaintiff to sell the suit property to them. While so, on 7.1.2007, the defendants had attempted to encroach upon the suit property. However, the plaintiff had successfully resisted such an attempt. In such circumstances, the plaintiff had filed the suit, in O.S.No.25 of 2007, on the file of the Principal District Munsif Court, Bhavani, to restrain the defendants and their men from, in any way, interfering with the peaceful possession and enjoyment of the suit property, by the plaintiff, by way of a permanent injunction. 5. In the written statement filed on behalf of the respondents, the averments and the allegations made in the plaint filed in O.S.No.25 of 2007, had been denied. It has been stated that the first defendant has two sons, who are the defendants 2 and 3, and two daughters, who are the defendants 4 and 5, through her husband https://hcservices.ecourts.gov.in/hcservices/ Murugesan. It has been further stated that the mother of the first defendant Guruvayammal had purchased two acres and 19 cents of land, including the suit property, on 16.6.1955, for a valid consideration. The said property had been bequeathed by Guruvayammal in favour of her elder daughter, the first defendant herein, by way of a Will, dated 7.8.1992, voluntarily and in a sound state of mind. Even during the life time of Guruvayammal, the mother of the first defendant, had settled certain properties in Kesari mangalam village in favour of her younger sister pavayammal and all necessary provisions had been made in her favour, as per the customary practice of the community. The first defendant is to enjoy the properties bequeathed to her, as per the Will, dated 7.8.1992, during her life time, and thereafter, it would devolve on the second and the third defendants in the suit. 6. It has also been stated that, neither the plaintiff, nor his vendor had any right or interest in the suit property. The alleged sale deed, dated 16.6.2005, said to be in the name of the plaintiff is invalid in the eye of law. It had also been stated that Pavayammal, the sister of the first defendant, also had knowledge, with regard to the Will executed by the Guruvayammal, on 7.8.1992. Based on the Will, the first defendant is in possession and enjoyment of the suit property, along with the members of the family, till date. She had also taken a bank loan and had made substantial improvements in the said property. She has also been paying the necessary taxes, including the house tax and the electricity charges. The plaintiff with the mala fide intention of taking charge of the plaint schedule property had created a false sale deed, based on which he has filed the present suit. 7. It had also been stated that the description of the suit property in the schedule is vague and improper. Further, there is no cause of action to file the suit. In such circumstances, the suit is liable to be dismissed. 8. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration: “1. Whether the plaintiff is entitled to the relief of permanent injunction against the defendants, as prayed for in the suit? 2. Whether it is correct to state that the suit property belonged to the first defendant, as per the Will, dated 7.8.1992? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the suit is not maintainable for non joinder of necessary parties, as claimed by the defendants? 4. Whether the defendants are right in stating that the suit for permanent injunction is sustainable without the prayer for declaration of title? 5. What other reliefs, the plaintiff is entitled to?” 9. In view of the averments made on behalf of the parties concerned and in view of the evidence available on record, the trial Court had decreed the suit, as prayed for by the plaintiff. The trial Court had noted that the plaintiff had filed the suit for the relief of permanent injunction, based on a sale deed, dated 16.6.2005, marked as Exhibit A.4, by which he had obtained absolute rights in respect of the suit property. Therefore, the trial Court had held that the plaintiff is entitled to the relief of permanent injunction against the defendants in the suit, even though the plaintiff had not sought for the relief of declaration of title in respect of the suit property. 10. The trial Court had found that, even though the first defendant had claimed that she had certain rights in respect of the suit property, based on a Will, dated 7.8.1992, executed by her mother Guruvayammal, which had been marked as Exhibit B.1, the first defendant had not examined the scribe or the signatories of the Will. The trial Court had also found that the claim of the defendants that the suit is not maintainable in law, for non joinder of necessary parties cannot be sustained, in view of the fact that the prayer for permanent injunction sought for by the plaintiff is only against the defendants. 11. Based on the evidence available, the trial Court had also come to the conclusion that the suit property has been in the possession and enjoyment of the plaintiff, after it had been purchased by him, on 16.6.2005, marked as Exhibit A.4, by way of a sale deed, from Nagarajan, who was having a valid and transferable title. The trial Court had not accepted the contentions raised on behalf of the defendants with regard to the alleged Will, dated 7.8.1992, marked as Exhibit B.1. It has been stated that the entire property belonging to Guruvayammal had been bequeathed to the first defendant and therefore, the sale deed, dated 16.6.2005, marked as Exhibit A.4, cannot be valid. 12. The trial Court had also refused to accept the contentions https://hcservices.ecourts.gov.in/hcservices/ raised on behalf of the defendants that since, the plaintiff had not specifically denied the existence of the will, by way of a reply statement, it was not necessary on the part of the defendants to prove the said Will by examining the scribe or the witnesses to the Will. Even though the defendants had contended that, in a suit for bare injunction, the title of the property in question need not be gone into, such a contention had not been accepted by the trial Court. As such, the trial Court had decreed the suit in favour of the plaintiff, by its judgment and decree, dated 30.11.2007, made in O.S.No.25 of 2007. 13. Aggrieved by the judgment and decree of the trial Court, the defendant had filed an appeal before the Subordinate Court, Bhavani, in A.S.No.24 of 2008. The first appellate Court had also confirmed the judgment and decree of the trial Court, dated 30.11.2007, made in O.S.No.25 of 2007. 14. The first appellate Court had also held that the claim of the appellants that Pavayammal and other legal heirs have not been impleaded as parties in the suit filed by the plaintiff, in O.S.No.25 of 2007, cannot be accepted, as no proper evidence had been adduced by the appellants to substantiate such a claim. The first appellate Court had also found that the property shown in Exhibit A.1 had been partitioned by way of an oral partition between the first defendant and her sister Pavayammal. After the death of Pavayammal and her unmarried daughter Vijaya, the suit property belonged to Nagarajan, from whom the plaintiff had purchased the property, by way of a sale deed, dated 16.6.2005, marked as Exhibit A.4. 15. The first appellate Court had also found that the validity and the existence of the alleged Will, dated 7.8.1992, marked as Exhibit B.1, had not been proved by the defendants, by examining the scribe of the Will and the witnesses to the Will. In such circumstances, the first appellate Court had dismissed the appeal filed by the appellants, by its judgment and decree, dated 18.12.2009, made in A.S.No.24 of 2008. 16. Aggrieved by the judgment and decree, dated 18.12.2009, made in A.S.No.24 of 2008, on the file of the Subordinate Court, Bhavani, the defendants in the suit, who are the appellants in the first appeal, had preferred the present second appeal, raising the following questions, as substantial questions of law: “a. Whether the Courts below have committed an error in misdirecting themselves in going beyond the scope of the suit instead of confining to the issue as to the possession https://hcservices.ecourts.gov.in/hcservices/ and enjoyment of the suit properties by the parties on the date of filing of the suit? b. Whether the Courts below error in disbelieving the Will, dated 7.8.1992 (Exhibit B.1) particularly when the plaintiff has not denied the Will in his pleadings? c. Whether the suit is bad for non joinder of necessary and proper parties especially when the trial Court having framed the issue has not chosen to give findings in the judgment?” 17. The learned counsel for the appellants had submitted that the judgment and decree of the Courts below are against the law, weight of evidence and the probabilities of the case. The courts below had failed to consider the oral and documentary evidence adduced on behalf of the defendants. The courts below failed to note that the property purchased by the respondent, under Exhibit A.1, is not valid, as the suit property had been bequeathed in favour of the first appellant, by her mother, under a Will, dated 7.8.1992, marked as Exhibit B.1. 18. The learned counsel had also stated that the courts below had wrongly shifted the burden of proof on the appellants, even though as per Sections 101 and 103 of the Evidence Act, 1872, it is for the plaintiff, who is the respondent herein, to plead and establish his claim over the suit property. The courts below had also failed to note that, when the attesting witnesses are not alive, or when they have been biased in favour of opposite party, it is not possible to expect the legatee to examine the witnesses. The courts below had failed to note the fact that the respondents had not denied the existence of the will by way of a reply statement filed in the suit. In such circumstances, the courts below ought to have held that there was no necessity on the part of the appellants to prove the Will, by examining the scribe and the witnesses. 19. The learned counsel had also stated that the courts below had erred in accepting the claim of oral partition between the first appellant and her sister pavayammal, without sufficient evidence being available on record. As such, the findings of the courts below are erroneous and invalid. https://hcservices.ecourts.gov.in/hcservices/ 20. The learned counsel for the appellants had relied on the following decisions in support of his contentions: 20.1. In RAMJI RAI Vs. JAGDISH MALLAH (AIR 2007 S.C. 900), it has been held that an injunction restraining disturbance of possession will not be granted in favour of the plaintiff, who is not found to be in possession of the property concerned. In the case of a permanent injunction, based on protection of possessory title, in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction, without adding a prayer for declaration of his rights. Where, in the suit for permanent injunction restraining the defendants from interfering with the possession of land in dispute, or from raising a boundary wall, the plaintiffs fail to prove that they are in possession, the suit is liable to be dismissed only on that ground. The declaration that the plaintiffs are not owners in such case is unwarranted. 20.2. In R.VELLINGIRI Vs. R.KANNAIAN (2008) 1 MLJ 1123, this Court had held that the examination of an attesting witness to a Will is unnecessary, when the parties have not joined issue on the validity or the genuineness of the Will. 21. Per contra, the learned counsel for the respondent had submitted that both the courts below had rightly held, based on the evidence available on record, that the plaintiff was in possession and enjoyment of the suit property as its rightful owner and therefore, the defendants in the suit had been rightly restrained by way of a decree of permanent injunction from interfering with the plaintiff’s peaceful possession and enjoyment of the suit property by the defendants. 22. The learned counsel had also submitted that the courts below had rightly rejected the claims made by the defendants, based on the alleged Will, dated 7.8.1992, marked as Exhibit B.1. It had also been held that it is for the defendants to prove the existence of the Will, dated 7.8.1992, marked as Exhibit B.1, by examining the scribe and the witnesses. Since, the defendants had failed to do so, the courts below had come to the conclusion that the plaintiff is entitled to the relief of permanent injunction against the defendants in the suit. Further, the claim made on behalf of the appellants in the present second appeal that there was no discussion by the courts https://hcservices.ecourts.gov.in/hcservices/ below, with regard to the crucial aspect of possession of the property in question by the respondent and therefore, the relief of permanent injunction ought not to have been granted, based on the evidence relating to the title of the property in question, cannot be accepted. 23. The learned counsel for the respondent had relied on the decision of this Court, in MURUGAIYAN Vs. SUBBAIYAN (2001 (3) CTC 393) wherein, it had been held that the scope for interference in a second appeal, filed under section 100 of the Civil Procedure Code, 1908, is limited and that it would arise only when the courts below had committed a serious blunder regarding the points raised for consideration. 24. In view of the submissions made on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that the appellants had not shown sufficient cause or reason to interfere with the concurrent findings of the courts below. Both the trial Court, as well as the first appellate Court, had rightly come to their conclusions, based on the evidence available on record. The courts below had concurrently found that the defendants in the suit, who are the appellants in the present second appeal, had not proved the existence of the Will, dated 7.8.1992, marked as Exhibit B.1, by examining the scribe and the witnesses. 25. The courts below had also found that the vendor of the plaintiff had valid and transferable title and therefore, the sale deed, in favour of the plaintiff, dated 16.6.2005, marked as Exhibit A.4, in respect of the suit property, was valid in the eye of law. In view of the fact that the plaintiff in the suit, who is the respondent in the present second appeal, has a valid title in respect of the suit property and as he is in possession and enjoyment of the said property, the courts below had held that the plaintiff is entitled to the relief of permanent injunction, as prayed for in the suit, in O.S.No.25 of 2007. 26. The contentions raised on behalf of the respondent had not been accepted by the courts below, in view of the evidence adduced on behalf of the appellants, as well as the respondent, both oral, as well as documentary. As such, it cannot be said that the findings of https://hcservices.ecourts.gov.in/hcservices/ the courts below are erroneous or invalid. In such circumstances, as the second appeal is devoid of merits, it is liable to be dismissed. Hence, it stands dismissed. No costs. Consequently, connected M.P.No.1 of 2010 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. The Subordinate Judge, Bhavani, Erode 2. The Principal District Munsif, Bhavani, Erode +1cc to Mr.N.Manoharan, Advocate Sr 50718 +1cc to Mr.T.Murugamanikkam, Advocate Sr 50561 JRG(CO) km/25.8. S.A.No.482 of 2010 https://hcservices.ecourts.gov.in/hcservices/