IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.12.2010 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.569 of 2006 1. Maruthamuthu .. Appellant/Plaintiff vs. 1. Kaliaperumal (died) 2. Ramu 3. Chinna Pillai 4. Narayanasamy 5. Janaki 6. Kamaraj 7. Subramanian 8. Ammani 9. Ramachandran 10.Devaki .. Respondents/Defendent (R3 to R10 brought on record as LRs of the deceased R1 vide order of Court dated 15.10.2009) This second appeal is filed against the judgment and decree dated 11.11.2005 made in A.S.No.15 of 2004 on the file of the Sub Court, Kallakurichi, reversing the judgment and decree dated 29.01.2003 made in O.S.No.595 of 2000 on the file of the II (I/c) III Additional District Munsif Court, Kallakurichi. For Appellant : Mr.S.Sounthar For R2 to R10 : Mr.P.Valliappan J U D G M E N T This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 11.11.2005 passed in A.S.No.15 of 2004 by the learned Subordinate Judge, Kallakurichi, in reversing the judgment and decree of the learned II (I/c) III Additional District Munsif, Kallakurich in O.S.No.595 of 2000. For convenience sake, the parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Second https://hcservices.ecourts.gov.in/hcservices/ Appeal would run thus: (i) The plaintiff who happened to be the appellant herein filed the suit seeking injunction, so as to restrain the defendants from interfering with the suit property which happens to be an agricultural land. (ii) The defendants filed the written statement and resisted the suit. (iii) Whereupon issues were framed. During trial, the plaintiff examined himself as P.W.1 on his side and Exs.A1 to A6 were marked. The second defendant examined himself as D.W.1 on defendants' side and Exs.B1 and B2 were marked. 3. Ultimately, the trial Court decreed the suit. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the appeal was filed, whereupon, the appellate Court reversed the findings of the trial Court and set aside the judgment and decree of the trial Court on the main ground that the suit for bare injunction would not lie. 4. Challenging and impugning the judgment of the first appellate Court, the plaintiff filed this Second Appeal on various grounds inter alia thus: The first appellate Court failed to take into consideration the reasoned judgement of the trial court. The appellate Court while reversing the judgment of the trial Court, should necessarily go into all aspects of the matter, but the appellate Court in its cryptic judgment, simply set aside the findings of the trial Court warranting interference of this Court in the Second Appeal.. The appellate Court wrongly held that a bare suit for injunction would lie even though it is crystal clear that Jambulingam had exclusive right over the suit property and he validly sold the same in favour of the plaintiff. Accordingly, the learned counsel for the plaintiff prays for setting aside the judgment of the appellate Court and for restoring the judgment and decree of the trial Court. 5. My learned Predecessor formulated the following substantial questions of law: "1. Whether the judgement of the lower appellate Court is vitiated in dismissing the suit for bare injunction when the appellant herein proved his exclusive possession over the suit property by producing patta Ex.A2? 2. Whether the judgement of the lower appellate court is liable to be set aside in its failure to consider entire evidence on record https://hcservices.ecourts.gov.in/hcservices/ especially while reversing the findings of the trial court? 3. Whether the alleged sale deed in favour of the respondents will have any sanctity in law in the absence proof to show that it was supported by consideration?" (extracted as such) 6. Heard both sides. 7. The learned counsel for the plaintiff reiterating the grounds of appeal as found set out supra would advance his arguments and also cited the decision of the Andhra Pradesh High Court reported in AIR 1975 AP 250 [Nelli Narasimha Reddy v. Vadla Krishnaiah and others].He would also further submit that the plaintiff adduced ample evidence before the trial court that following the enjoyment of Jambulingam, who is the vendor of the plaintiff, the plaintiff continued in possession of the suit property and as such, his exclusive possession and enjoyment was recognised by the trial Court and granted injunction warranting no interference by this Court in the Second Appeal. 8. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the defendants would advance his arguments which could tersely and briefly be set out thus: (a) The Hon'ble Apex Court in the decision reported in 2008(6) CTC 237 [Anathula Sudhakar v. P.Buchi Reddy (Dead) by Lrs. And others] categorically pointed out that if there is any cloud relating to the title of the plaintiff, then he would not be justified in filing a simple suit for bare injunction without praying for declaration of title. (b) Maruthamuthu, the plaintiff is none but the husband of the said Jambulingam's sister and in such a case, the plaintiff cannot plead ignorance about the pros and cons involved in this matter and also about the share of Alamelu in the suit property. (c) The said Alamelu, indubitably and unarguably, undeniably and incontrovertibly was the unmarried daughter of Jambulingam as on the date of commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (I of 1990) and in such a case, she was also one of the co- sharers. In fact, Jambulingam was entitled to half share and Alamelu was entitled to the remaining half share in the admitted ancestral property which happens to be the suit property. Maruthamuthu was fully aware of all these facts and he is alleged to have purchased the suit property on 06.05.1999, on 04.05.1999 Alamelu executed the sale deed in favour of the defendants. The fact also remains that subsequently, Alamelu joining hands with her father allegedly and falsely cancelled the sale deed dated 04.05.1999 executed by her in https://hcservices.ecourts.gov.in/hcservices/ favour of the defendants and such unilateral cancellation is having no probative force in the eye of law. (d) It is not the defendants who approached the Court seeking for any relief and in such a case, the trial Court was not justified in driving the defendants to file a suit for partition. Had the defendants sought any relief from the Court, then the onus probandi would be on them to justify their stand while seeking relief, but they had not approached the Courts for any relief and hence in such a case, the observation made by the trial Court and the findings given by the trial Court are not at all warranted. (e) The appellate Court considered the germane facts that Alamelu being the unmarried daughter as on the date of commencement of the Act, was entitled to half share in the suit property and in such a case, Jambulingam was not justified in simply putting the defendants in trouble and alienate the entire suit property in favour of his brother-in-law Maruthamuthu. Accordingly, the learned counsel for the defendants prays for the dismissal of the Second Appeal. 9. I would like to fumigate my mind with the relevant decision of the Hon'ble Apex Court reported in 2008(6) CTC 237 [Anathula Sudhakar v. P.Buchi Reddy (Dead) by Lrs. and others], an excerpt from it would run thus: "12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere Suit for injunction, and in such a Suit, the defendant https://hcservices.ecourts.gov.in/hcservices/ discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the Plaint and convert the Suit into one for declaration. Alternatively, he may withdraw the Suit for bare injunction, with permission of the Court to file a comprehensive Suit for declaration and injunction. He may file the Suit for declaration with consequential relief, even after the Suit for injunction is dismissed, where the Suit raised only the issue of possession and not any issue of title." 10. At this juncture, I hark back to the following maxim: "Judicia Posterioriora Sunt in lege fortiora – The later decisions are stronger in law. 11. Accordingly if viewed, the Hon'ble Apex court clearly highlighted and spotlighted various categories of cases wherein, the prayer for declaration of title is a must on the part of the plaintiff. No doubt, the plaint is brief as brevity could be. Only the defendants raised the title dispute by pointing out that Alamelu, the vendor of the defendants was entitled to half share in the ancestral property, but suppressing those facts, the plaintiff projected the case before the Court as though Jambulingam was the exclusive owner of the property and sold the same in favour of the plaintiff. 12. My mind is redolent and reminiscent of one other decision of this Court reported in 2007 (4) CTC 70 [Chinna Nachiappan and another v. PL.Lakshmanan]. As such, I had on earlier occasion, the chance of deciding a case, wherein, I held that even a trespasser in established possession could seek for injunction leaving the defendant to file a regular suit, if so advised. 13. The gist and kernel, the pith and marrow of the contention of the learned counsel for the plaintiff, is that the alleged exclusive possession and enjoyment of Jambulingam, was there in favour of the plaintiff on the date of executing the sale deed dated 06.05.1999. 14. Tersely and briefly, his contention tries to attract the following maxim: "Jus superveniens auctori accrescit successori – An additional or enhanced right for the possessor accrues to the successor. 15. No doubt, if there is evidence to show that Jambulingam was https://hcservices.ecourts.gov.in/hcservices/ in exclusive possession and enjoyment of the entire suit property and consequent upon the sale deed dated 06.05.1999 executed by Jambulingam in favour of the plaintiff, the latter stepped into the shoes of former and continued the possession and enjoyment of Jambulingam relating to suit property for a considerable time and remained in established possession, then he would be entitled to injunction as canvassed by the learned counsel for the plaintiff. 16. However, the learned counsel for the defendants would point out that as on the date of the alleged sale deed dated 06.05.1999 executed by Jambulingam, the said suit property remained as the joint property of Jambulingam and Alamelu and they were in joint possession. 17. At this juncture, I recollect the trite proposition of law that even for argument sake it is taken that Alamelu could not prove as per revenue records that she was exclusively in possession of the said property, yet possession by one co-owner would tanatamount to possession by another co-owner. There is nothing to show that Alamelu was ousted from possession. As such, in the absence of any plea of ouster and in the absence of any clinching evidence to indicate and exemplify ouster, it cannot be held that a suit for bare injunction would be maintainable. The Hon'ble Supreme Court also without mincing words pointedly pointed out that if a busy body or a way farer simply questions the title of the real owner and tries to interfere into his possession, the real owner is not bound to pray for declaration of his title and a simple suit for injunction would be sufficient, but here that is not the case. The defendants as per the sale deed dated 04.05.1999 claimed to have stepped into the shoes of Alamelu, who in the facts and circumstances of the case turned out to be one of the co-sharers of the suit property in view of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 (I of 1990) and in such a case, it cannot be stated that the defendants vainly and vaguely in a cavalier manner simply challenged the title of Jambulingam, the vendor of the plaintiff and the plaintiff. 18. The principle of res ipsa loquitor is also applicable in this case, for the reason that the sale deed dated 04.05.1999 emerged at the instance of Alamelu in favour of the defendants. Whereas, the sale deed in favour of the plaintiff emerged on 06.05.1999. As such, almost during one and the same period of time both the sale deeds emerged and those facts would speak by themselves that even before the filing of the suit there arose a title dispute between Jambulingam and Alamelu and in such a case, the plaintiff cannot be heard to say that he being the brother-in-law of Jambulingam and uncle of Alamelu, was not aware of the title dispute and that he was allegedly not bound to pray for any declaration of the title. 19. The learned counsel for the defendants also would point out that unilaterally for the reasons best known to Alamelu she cancelled https://hcservices.ecourts.gov.in/hcservices/ the sale deed dated 04.05.1999 on 27.06.2000 and the plaintiff Maruthamuthu filed the suit shortly thereafter on 12.07.2000. As such I could see that the plaintiff filed the suit suppressing the serious title dispute involved in this case and the appellate Court in its short judgment dealt with those aspects. No doubt, the appellate Court was not elaborate in its judgment, but even then it caught the essence of the matter and set aside the judgment and decree of the trial Court which had not taken into account all these salient features. 20. The learned counsel for the defendants in order to buttress and fortify his contention cited the following decisions: (i) The Division Bench judgment of this Court reported in (2003) 1 MLJ 179 [L.RMK.L.Kannan alias Ramakrishnan and others v. L.RMK.Valliappa Chettiar and others] (ii) The decision of the Orissa High Court reported in AIR 1962 Orissa 31 [Lingaraj Misra and others v. Bhuvaneswar Mohapatra and others] (iii) The decision of the Kerala High Court reported in AIR 1980 Kerala 94 [I.Gouri and others v. Dr.C.H.Ibrahim and another]. 21. In view of the decision of the Hon'ble Apex Court cited supra, I am of the view that necessarily the Second Appeal has to be dismissed as I could see no perversity or illegality in the judgment passed by the appellate court in setting aside the judgment and decree of the trial Court and in dismissing the original suit. 22. Accordingly, the substantial question of law No.1 is decided to the effect that the judgment of the appellate Court is not vitiated in dismissing the suit for bare injunction. 23. The substantial question of law No.2 is decided to the effect that the judgment of the appellate Court is not liable to be set aside on the alleged ground that it failed to take into consideration the entire evidence on record. 24. The substantial question of law No.3 is decided to the effect that in a suit for bare injunction the question of deciding about the passing of consideration under the sale deed executed by Alamelu in favour of the defendants does not arise at all. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, this Second Appeal is dismissed. No costs. gms Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To 1. The Subordinate Judge, Kallakurichi. 2. The II (I/c) III Additional District Munsif Court, Kallakurichi. 3 The Section Officer, V.R.Section, High Court, Madras. +1cc to Mr.S.sounthar Advocate (Sr.91777) +1cc to Mr.P.Valliappan Advocate (Sr.91522) S.A.No.569 of 2006 TEJ(CO) rvr 04/05/2011 https://hcservices.ecourts.gov.in/hcservices/