IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MS. JUSTICE R.MALA O.S.A.Nos. 158 to 161 of 2011 D.Ravikumar ... Appellant in all the appeals/ applicant/ Plaintiff Vs. 1.D.Sarojini Devi 2.D.Senthil Kumar 3.D.Lakshmi 4.D.Nirmala Devi 5.M.Hemalatha 6.M.Kishnaveni ... Respondents in all the appeals Original Side Appeals are filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the common order dated 09.02.2011 made in O.A.No.1191 of 2010 and Application Nos.849, 850 and 853 of 2010 in C.S.No.933 of 2010 on the file of this Court. For Appellant : Mr.C.Uma Shankar in all appeals For Respondent : Mr.D.R.Janardhanan for R1 in all appeals Mr.A.R.Balaji for R2 to R4 Mr.S.R.Rajagopal for Mr.Duraikannan for R5 & R6 COMMON JUDGMENT R.BANUMATHI,J. These four appeals arise out of the common order [09.02.2011] in and by which, the learned single Judge dismissed the application (O.A.No.1191 of 2010) declining to grant interim injunction and declining to implead the Inspector of Police, Law and Order, https://hcservices.ecourts.gov.in/hcservices/ Kodungaiyur Police Station (A.Nos.849 and 853 of 2011) and also dismissing the application filed under Order 39 Rule 2 A C.P.C. (A.No.850 of 2011). Plaintiff is the Appellant in all the appeals. For convenient, the parties are referred as per their array in the suit. 2. Plaintiff and Defendants 2 to 4 are the sons and daughters of the 1st Defendant and late Dhandapani. The suit property is Plot No.180, New No.6/180, Phase I, Kaviarasu Kannadasan Nagar, Kodungaiyur, Chennai-118 measuring an extent of 1500 sq.ft. 1st Defendant is the physically handicapped person and was an employee in the Central Government as a Clerk. 1st Defendant took voluntary retirement in the year 2001. Tamil Nadu Housing Board [TNHB] has allotted the suit property [Plot No.6/180] in the year 1982 in favour of the 1st Defendant. On payment of entire dues, TNHB has executed the sale deed in Doc. No.4539 of 1992 in favour of the 1st Defendant. House was constructed in the ground floor in 1983-1984 by the 1st Defendant. The marriages of Plaintiff and Defendants 2 to 4 were solemnised during the years 1990, 1995, 2004 and 2001 respectively. 3. Appellant/Plaintiff was appointed as Stenographer in the Ministry of Industries at Central Secretariat, New Delhi and in 1992, the Plaintiff was transferred to Chennai and posted to Central Board of Secondary Education, Regional Office, Chennai as Assistant. Case of the Plaintiff is that on the request of his father, he availed loan from his Provident Fund and also personal loan and rendered financial assistance for the improvement of the dwelling house in the suit property by putting additional rooms to the existing ground floor and also for putting up first floor. After solemnisation of the Plaintiff's marriage in the year 1995, the Plaintiff was residing in the ground floor and the rest of the family was residing in the first floor. After the marriage of 2nd Defendant, he was living near his work place. Likewise, after the marriage, the 4th Defendant shifted her matrimonial home to Bangalore. Father of the Plaintiff and Defendants 2 to 4 died intestate on 15.02.2005. After the demise of his father, the 1st Defendant/mother was residing in the first floor and Plaintiff and his family continued to reside in the ground floor. Further case of Plaintiff is that on the ill advice, the 1st Defendant/mother executed a bond/undertaking in favour of the Plaintiff for a sum of Rs.5.5 lakhs assuring repayment of the same through adjustment of the rental income to be paid by her. Further case of the Plaintiff is that on 16.10.2010 when the Plaintiff and his family came after attending a family function, the Plaintiff was shocked to find that his portion of the said building/ground floor was locked with over lock. Plaintiff's complaint before the police was of no avail. Therefore, the Plaintiff issued a legal notice on 02.09.2010 and there was no reply from Defendants 1 to 4. https://hcservices.ecourts.gov.in/hcservices/ 4. Earlier, Plaintiff has filed C.S.No.826 of 2010 seeking for permanent injunction restraining Defendants 1 to 4 from alienating the suit property. Again on 23.10.2010, the Plaintiff sent a second legal notice to the Defendants. On 28.10.2010, the Plaintiff had withdrawn the suit C.S.No.826 of 2010 as not pressed. Since the Defendants were trying to disturb the Plaintiff's joint possession and enjoyment of the suit schedule property, Plaintiff had filed the suit [C.S.No.933 of 2010] on 26.10.2011 (taken on file on 19.11.2010) seeking for permanent injunction restraining the Defendants, their men, agents and servants from in any manner disturbing the Plaintiff's possession of the suit property in his capacity as co- owner of the suit property. 5. Along with the suit, Plaintiff had also filed O.A.No.1191 of 2010 seeking for temporary injunction restraining the Defendants from disturbing his possession. In the said application, interim injunction was granted on 23.11.2010. In the meanwhile, 1st Defendant sold the property to Defendants 5 and 6 on 14.10.2010. Thereafter, Defendants 5 and 6 have filed O.S.No.13702 of 2010 on 26.11.2010 on the file of I Assistant Judge, City Civil Court, Chennai and obtained interim injunction. In the present suit C.S.No.933 of 2010, Defendants 5 and 6 have filed A.No.419 of 2010 under Order 39 Rule 3 CPC for vacating the interim injunction granted on 23.11.2010 in O.A.No.1191 of 2010. 6. 1st Defendant has filed the counter contending that she was working in the Postal department and was earning decent salary. Plot No.6/180, 'E' Type, Kaviarasu Kannadasan Nagar, Chennai-118 was allotted by TNHB and from out of her income, 1st Defendant remitted the entire dues and that she had constructed the house in the ground floor in the year 1983 and subsequently, first floor in the year 1984. According to 1st Defendant, the suit property is her self acquired property and that her sons and daughters have no right in the suit property. 1st Defendant has shouldered the responsibility for the conduct of marriage of her sons and daughters. It is further averred that for the money contributed by the Plaintiff over the period of six years [2001-2006], Plaintiff had taken undertaking/bond on 08.02.2006 from the 1st Defendant and Plaintiff had been insisting that 1st Defendant must repay the liabilities. 1st Defendant averred that due to Plaintiff's constant, continuous trouble and harassment, she could not spend her life time peacefully and therefore, she sold the suit property to Defendants 5 and 6 by a sale deed dated 14.10.2010. 1st Defendant sent a notice to the Plaintiff to receive the amount of Rs.5.5 lakhs and Plaintiff did not respond the same. 1st Defendant had sent a photo copy of Demand Draft for Rs.5.5 lakhs along with covering letter to the Plaintiff which was received by the wife of the Plaintiff. 1st Defendant further averred that Plaintiff is not residing in the suit property; but is residing in the official https://hcservices.ecourts.gov.in/hcservices/ quarters at Anna Nagar and that Plaintiff was never in possession or permanent resident of the suit property and therefore, Plaintiff is not entitled to the relief of temporary injunction. 7. Upon consideration of the contentions of parties, learned Judge held that on the date of filing of the suit, Plaintiff was actually residing in the Government quarters at Anna Nagar, Chennai; but in Paragraph-8 of the Plaint, the Plaintiff has stated that he is residing in the suit property. Observing that Plaintiff has not disclosed the material fact that he is in occupation of the Government quarters, learned Judge held that Plaintiff is not entitled to interim injunction. Insofar as impleading of the Inspector of Police, Law and Order, Kodungaiyur Police Station, learned Judge held that "when two conflicting orders of the Courts are produced before the Police, it is natural that the Police ........ should act in one way or the other". While dismissing the applications, the learned Judge observed that the question relating to possession as distinguished from actual, physical occupation is left open to be decided at the time of suit and that Defendants 5 and 6 who purchased the suit property shall be bound by the outcome of the suit. Being aggrieved by refusal to grant of temporary injunction [O.A.No.1191 of 2010] and also dismissal of A.Nos.849, 850, 853 of 2011, Plaintiff has preferred these appeals. 8. Mr.C.Uma Shankar, learned counsel for Appellant-Plaintiff has contended that Plaintiff was in actual possession on the date of filing of the suit i.e. on 26.10.2010 but also on the date of the order of injunction till the date of dispossession by the Police on 19.11.2010. It was further submitted that the learned Judge erred in saying that non-mentioning of the fact with regard to occupation of Government quarters will disentitle the Plaintiff from getting the order of injunction. It was further submitted that the learned Judge ought to have taken note of the subsequent events, especially, the Police authorities sealing the premises on 19.11.2010 and thereafter, handing over the suit property to the purchasers - Defendants 5 and 6 on 30.11.2010 without any legal opinion or direction from the Executive Magistrate or Government Advocate. 9. Reiterating the findings in the impugned order, Mr.D.R.Janardhanan, learned counsel appearing for 1st Respondent-1st Defendant and Mr.A.R.Balaji, learned counsel appearing for Respondents-Defendants 2 to 4 would submit that the suit property being the self acquired property of the 1st Defendant, Plaintiff has no manner of right or possession in the suit property and the learned Judge has rightly declined the interim injunction. https://hcservices.ecourts.gov.in/hcservices/ 10. Mr.S.R.Rajagopal, learned counsel for Respondents-Defendants 5 and 6 would contend that Defendants 5 and 6 are the purchasers for valuable consideration and that they have obtained interim injunction in the suit filed by them in O.S.No.13702 of 2010 before the I Assistant Judge, City Civil Court, Chennai. It was further submitted that since the Plaintiff is not in possession of the suit property and is residing in "EPF" Quarters at Anna Nagar, Chennai, the Plaintiff is not entitled to the discretionary relief of temporary injunction. 11. Admittedly, the suit property – Plot No.180, New No.6/180, 'E' Type at Kaviarasu Kannadasan Nagar, Kodungaiyur, Chennai-118 was allotted to the 1st Defendant by TNHB. 1st Defendant had remitted the entire dues towards the cost of the Plot and vide a document No.4539 of 1992 [27.08.1992], sale deed was executed in her name by TNHB. 1st Defendant who was working in the Postal department had constructed the house in the suit property in 1983 by availing loans from her friends and relatives. First floor was constructed in 1984 for which the Plaintiff had given loan/financial assistance. Plaintiff is said to have maintained separate account for the money contributed by him over the period of six years [2001-2006]. 1st Defendant being employed in the Postal department had purchased the suit property from out of her own income. For the construction of house, the planning permit was issued in the name of 1st Defendant. 1st Defendant claims the suit property as her self acquired property. In the typed set of papers filed by the Defendants, 1st Defendant has also produced the E.B. card in her name, property tax receipts and electricity bills paid by her. Defendants 2 to 4 have also reiterated that the suit property is the self acquired property of 1st Defendant. 12. Case of Plaintiff is that their father late Dhandapani had put up the construction in the suit property in 1984 and that his father sought for financial assistance from the Plaintiff for construction of the house and Plaintiff has provided the funds by availing Provident Fund loan and also through personal loan and contributed huge amount for the completion of construction of first floor in the suit property. Further case of Plaintiff is that since he has contributed the amount for the construction of the house, he was given exclusive possession of the ground floor of the suit property and that he was in joint possession and enjoyment of the suit property along with 1st Defendant who was in possession of the first floor. 13. Even though Plaintiff claims that he shared the joint possession with the 1st Defendant, the fact remains that the suit property was allotted to the 1st Defendant by TNHB. Lease-cum-sale agreement [08.06.1982] was in the name of 1st Defendant and the sale https://hcservices.ecourts.gov.in/hcservices/ deed [27.08.1992] was also registered in the name of 1st Defendant. Admittedly, 1st Defendant was working as Clerk and subsequently as BCR Supervisor in the Postal department and she took voluntary retirement in the year 2001. When the allotment was made in the name of a female member, prima facie, it is the property of the female member. At the time of trial, it is for the Plaintiff to establish by adducing oral and documentary evidence that the suit property was in common enjoyment of the family members and that the property was thrown into the common stock. At this stage, while we are considering the prima facie case, going by the documents, it is to be prima facie held that the 1st Defendant is the owner of the suit property. 14. Case of Plaintiff is that he contributed the amount for the additional construction by availing Provident Fund loan, Society loan and personal loan. Insofar as the amount said to have been advanced by the Plaintiff, 1st Defendant had executed the undertaking/bond [08.02.2006] confirming the borrowal and undertaking to repay the loan amount. In the said undertaking/bond, 1st Defendant had also agreed that whatever the rental income so received by her from the property would be payable to the Plaintiff. 15. Learned counsel for Plaintiff has drawn our attention to the mortgage deed [08.11.1995] executed by 1st Defendant infavour of Muthialpet Benefit Fund for taking the loan. The said mortgage deed has been executed by the 1st Defendant/mother, her husband [Dhandapani], Plaintiff and Defendants 2 to 4. Laying emphasis upon the execution of mortgage deed by all the family members, learned counsel for Plaintiff would contend that the said mortgage deed would clearly show that family treated the suit property as joint family property. This is the point to be determined at the time of trial and we do not propose to express any opinion on this submission. 16. Case of Plaintiff is that he never insisted for return of the money and that on the ill advice of some persons, 1st Defendant had executed undertaking/bond [08.02.2006] and the recitals in the said undertaking/bond was never acted upon. By perusal of the typed set of papers, it is seen that the undertaking/bond [08.02.2006] executed by the 1st Defendant assuring repayment of the amount to the Plaintiff has been attested by Defendants 2 and 3. The said undertaking/bond executed by the 1st Defendant would falsify the case of Plaintiff that he is in joint possession of the suit property. In any event, it is the matter to be resolved in the trial. 17. Grant of temporary injunction is discretionary and cannot be granted as a matter of course. Court is required to exercise judicial discretion in granting the relief only when three essential https://hcservices.ecourts.gov.in/hcservices/ conditions are satisfied by the party seeking for injunction. They are – (i) persons seeking injunction should establish prima facie case; (ii) balance of convenience in his favour; and (iii) that he would suffer irreparable injury in the event of injunction prayed for is refused. 18. Temporary injunction could be granted restraining the Defendants from interfering with the Plaintiff's possession only if the Plaintiff is proved to be in actual possession of the suit property. In the plaint, Plaintiff has averred that he is in possession of the suit property and that on 16.10.2010, the suit property was locked with a new lock by somebody and thereafter, he preferred a Police complaint. To protect further disturbance to his peaceful possession and enjoyment, the Plaintiff has filed the suit C.S.No.933 of 2010. As pointed out earlier, the suit property is Plot No.6/180 at Kaviarasu Kannadasan Nagar, Kodungaiyur, Chennai- 118. The said property has been sold to Defendants 5 and 6 by a sale deed dated 14.10.2010 by the 1st Defendant. In the Plaint as well as the Applications, the Plaintiff has averred that he is residing in the suit property. By perusal of various documents filed in the typed set of papers, it is seen that Plaintiff has been residing in EPF Quarters at Anna Nagar, Chennai and his address at Anna Nagar is:- "D.Ravikumar EPF Quarters, Block "B" Type IV No.3, Ranganathan Garden, 15th Main Road, Anna Nagar, Chennai – 600 040." As observed by the learned Judge, Plaintiff has not come to the Court with correct facts. Plaintiff has not disclosed that he is residing in EPF Quarters at Anna Nagar, Chennai. When the Plaintiff has not come to the Court with correct facts, Plaintiff is not entitled to the discretionary relief of temporary injunction. 19. Insofar as the application for impleading Mr.Ponraj, Inspector of Police, Law and Order, Kodungaiyur Police Station, the learned counsel for Plaintiff has contended that on 30.11.2010, Defendants along with the Inspector of Police, P6-Kodungaiyur Police Station came to the premises and inspite of the interim injunction granted by the High Court in C.S.No.933 of 2010, the Inspector of Police, Kodungaiyur Police Station handed over the keys and vacant possession of the suit property to Defendants 5 and 6 in violation of the interim injunction granted [23.11.2010] in O.A.No.1191 of 2010 in C.S.No.933 of 2010 and therefore, seeks that the said Inspector of Police be impleaded as party to the suit as well as in O.A.No.1191 of 2010 in C.S.No.933 of 2010. 20. Filing of suits and relevant dates needs to be highlighted. As pointed out earlier, Plaintiff had filed the suit C.S.No.826 of https://hcservices.ecourts.gov.in/hcservices/ 2010 for permanent injunction restraining the Defendants from alienating the suit property on 13.09.2010. The said suit C.S.No.826 of 2010 was withdrawn by the Plaintiff on 28.10.2010. Thereafter, the present suit C.S.No.933 of 2010 came to be filed on 26.10.2010 and the same was taken on file on 19.11.2010. In C.S.No.933 of 2010, interim injunction was granted on 23.11.2010 [O.A.No.1191 of 2010]. In the mean while, Defendants 5 and 6 have filed O.S.No.13702 of 2010 before the I Assistant Judge, City Civil Court, Chennai on 26.11.2010 and obtained interim injunction. Along with the order of interim injunction granted by the I Assistant Judge, City Civil Court, Chennai, Defendants 5 and 6 are said to have approached P6- Kodungaiyur Police Station seeking protection. As pointed out by the learned Judge when two conflicting orders of injunction were produced by the parties, the Police Officer is to necessarily act upon the order and also going by the documents. Under the impression that he has to render necessary protection to Defendants 5 and 6 who purchased the property from the 1st Defendant/mother, the Police Officer might have rendered necessary protection. Having regard to the facts and circumstances of the case, the Police Officer cannot be said to have acted malafidely or in violation of the order passed by this Court in O.A.No.1191 of 2010 in C.S.No.933 of 2010. Learned Judge has rightly dismissed the application declining to implead Mr.Ponraj, Inspector of Police, P6-Kodungaiyur Police Station as one of the Defendant. 21. Upon consideration of the averments and the submissions and also the various documents, learned Judge has rightly declined to grant temporary injunction and also dismissed the applications to implead Mr.Ponraj, Inspector of Police, P6-Kodungaiyur Police Station in O.A.No.1191 of 2010 as well as in the suit C.S.No.933 of 2010. Grant of an interim injunction is in exercise of discretionary power and Appellate Court will not lightly interfere with the discretion exercised by the trial Court. Appellant-Plaintiff has not made out any substantial ground warranting interference with the order of the learned Judge and all the Appeals are liable to be dismissed. 22. In the result, all the appeals are dismissed. Consequently, connected M.Ps. are closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. bbr https://hcservices.ecourts.gov.in/hcservices/ To The Sub Assistant Registrar, Original Side, High Court, Madras. 4 ccs to Mr.K.J.Shivaarudhara, Advocate, sr. 75432, 75438, 75436, 75435 1 cc to M/s. V.S. Ilango, Advocate, Sr. 74968 4 ccs to Mr.C. Umashankar, Advocate, Sr. 74853 1 cc to M/s. A.R. Balaji, Advocate, Sr. 74912 2 ccs to M/s. Duraikannan, Advocate, sr. 74808 O.S.A.Nos.158 to 161 of 2011 RSI (CO) kk 2/1 https://hcservices.ecourts.gov.in/hcservices/