Anadappan S/O.Chellappa Udayr v. Ramadooss Udayr S/O.Dharmaling

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 19.06.2018 PRONOUNCED ON : 26.06.2018

CORAM

THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.No.1993 of 2004 Andappan ...Appellant/Respondent/Defendant Vs.

Dharmalinga Udayar (deceased) 1.Ramadoss Udayar

...Respondents/Appellants/Plaintiff

Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 11.10.2002 passed in A.S.No.15 of 1998 on the file of the Subordinate Court, Kallakurichi, reversing the Judgment and Decree dated 24.12.1997 passed in O.S.No.293 of 1991 on the file of the I Additional District Munsif, Kallakurichi.

For Appellant : Mrs.T.Sreelekha for Mr.D.Rajagopal For Respondent : Mrs.Mythili Suresh for M/s.Sarvabhauman Associates

JUDGMENT

In this second appeal, challenge is made to the Judgement and Decree dated 11.10.2002 passed in A.S.No.15 of 1998 on the file of the Subordinate Court, Kallakurichi, setting aside the Judgment and Decree dated 24.12.1997 passed in O.S.No.293 of 1991 on the file of the I Additional District Munsif, Kallakurichi and thereby, granting the relief of permanent injunction in favour of the plaintiff in respect of 1/6th share in the Suit Well.

2. The second appeal has been admitted on the following substantial questions of law:

" (i) Whether the injunction can be granted as against the co-owner? The trial Court dismissed the suit on the ground that injunction cannot be granted as against the co-owner.

(ii) It is submitted that without disprove, the defendant is in continuous possession for two decades. Whether the injunction can be granted as against the defendant in favour of plaintiff?"

3. The suit property is a Well in S.No.70/8 located in Koonthalur Village, Kallakurichi Taluk. The plaintiff claiming exclusive right in the suit Well and accordingly, alleging that the defendant is attempting to interfere with his possession and enjoyment of the suit Well, has laid the suit seeking the relief of permanent injunction. The plaintiff claims that he has purchased 1/6th share in the suit Well from one Natarajan S/o.Mariappa Kounder by way of a sale deed dated 23.08.1990 and also claims that he has purchased the remaining 5/6th share in the suit Well from the same Natarajan for a sum of Rs.75/- in September, 1990 by way of an oral sale and thus, he seeks exclusive title to the suit Well.

4. The abovesaid case of the plaintiff is seriously contested by the defendant and according to the defendant, the plaintiff has no right whatsoever in the suit Well and the defendant has put forth the case that he has acquired right in the suit Well by way of an exchange deed from Muthusamy Udaiyar and by way of purchase of the same from Annamalai Udaiyar S/o. Govindasamy Udaiyar under a sale deed dated 24.10.1973 and thus, it is contended by the defendant that the plaintiff has no title, possession and enjoyment of the suit Well and the suit is, therefore, liable to be dismissed.

5. On the basis of the pleadings set out by the respective parties, as above seen, it is found that the defendant has totally denied the claim of title to the suit Well by the plaintiff. Despite the same, it is found that the plaintiff has not sought the relief of declaration in respect of the suit Well. Accordingly, it is found that when the title of the suit Well as put forth by the plaintiff is in question and contested by the defendant tooth and nail, as laid down by the apex Court decision reported in AIR 2008 SCC 2033 ( Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. And Ors.), the plaintiff should have sought for the relief of declaration as regards his title in respect of the suit Well. The plaintiff having not sought the relief of declaration as determined by the apex Court in the abovesaid decision, it is seen that on the above score alone, the plaintiff's suit should fail.

6. Further, from the materials placed on record, it is found that as determined by the Courts below, the suit Well and the land in connection with the same are found to be owned by Pachaiyappa Udaiyar and it is further seen that Pachaiyappa Udaiyar had two sons viz., Govindasamy Udaiyar and Maniappa

Udaiyar and the plaintiff's vendor Natarajan is the son of Maniyappa Udaiyar. Materials placed on record go to show that the sons of Pachaiyappa Udaiyar had divided the properties in equal moieties and thus, it is found that at the most, the two sons would only be entitled to 1⁄2 share in the suit Well and the other properties. In such view of the matter, the claim of the plaintiff that he has acquired the exclusive title in the suit Well from Natarajan as such cannot be readily accepted.

7. Further, when according to the plaintiff, he has purchased 1/6th share in the suit Well by way of a registered sale deed from Natarajan on 23.08.1990 for a sum of Rs.1,000/- his further case is that he has purchased 5/6th share in the suit Well from the same Natarajan for a sum of Rs.75/- by way of an oral sale in September,1990 as such cannot be accepted and believed and it is found that the oral sale projected by the plaintiff is found to be untenable in law and cannot be accepted and rightly discarded by the Courts below. Thus, it is found that at the most, the plaintiff would be entitled to claim only 1/6th share in suit Well.

8. Equally, from the materials placed on record by the defendant, it is found that by way of Ex.B8, the defendant has also acquired some share in the suit Well and accordingly, it is found that the defendant also owns a share in the suit Well.

9. Thus, it is found that both the plaintiff and the defendant have shares in the suit Well and accordingly, they being the co-owners in respect of the suit Well, the trial Court holding that the plaintiff is not entitled to seek the relief of permanent injunction against the other co-owner, accordingly, dismissed the plaintiff's suit. However, the first appellate Court, on the footing that, inasmuch as the plaintiff is entitled to 1/6th share in the suit Well, on that basis, granted the relief of permanent injunction in favour of the plaintiff restraining the defendant from interfering with the plaintiff's right to enjoy his 1/6th share in the suit Well and accordingly, disposed of the first appeal. Impugning the same, the present second appeal has been laid.

10. As above discussed, when the question of title is involved in this matter in a serious manner, the suit laid by the plaintiff without seeking the relief of declaration, as such, has to fail. In addition to that, as above pointed out, the plaintiff has failed to establish his claim of exclusive title to the suit Well. On the other hand, the materials placed on record go to show that the plaintiff owns only a fraction of share in the suit Well and equally, it is also noted that the defendant also owns a share in the suit Well. Thus, the plaintiff and the defendant being the co-owners of the suit Well, it is found that both would be entitled to their

respective shares.

11. Further, insofar as this case is concerned, it is found that there is no material placed on record to hold that the defendant had interfered with the plaintiff's right to enjoy his 1/6th share in the suit Well. As regards the same, there is no material placed by the plaintiff other than marking Ex.A1. Even during the course of chief examination, the plaintiff has not testified that on account of enmity and on such and such date, the defendant had interfered with his possession and enjoyment of the suit Well, as claimed in the plaint. If really, the defendant had interfered with the plaintiff's share in the suit Well, the plaintiff would have initiated appropriate and necessary legal action against the defendant as per law, other than filing the civil suit.

However, the plaintiff has not initiated any action as such against the defendant with reference to his alleged interference. Accordingly, it is found that as determined by the trial Court, when the parties own shares in the suit Well and they being the co-owners and that apart, when there is no material to hold that the defendant had interfered with the plaintiff's right of enjoyment of his share in the suit Well, it is found that the first appellate Court had erred in granting the relief of permanent injunction in favour of the plaintiff as regards his claim of 1/6th share in the suit Well.

12. In this connection, the plaintiff's counsel placed reliance upon the decision reported in 1998-3-L.W.197 (Basha Reddiar (died) and 4 others Vs. Janarthanam and 5 others), for the proposition that a co-owner is entitled to use his share/property to the maximum benefit, however, on facts, it is found that it is only the plaintiff, who had interfered with the defendant's right of enjoyment of the suit Well by claiming exclusive right in the suit Well and on the materials placed , it is found that he is entitled to only 1/6th share in the suit Well.

As above seen, when the plaintiff has not endeavoured to seek the relief of declaration in respect of his alleged share in the suit Well, the plaintiff cannot be allowed to contend that the Court should have formulated a scheme in respect of the respective shares right of enjoyment in the suit Well.

All those points could be determined and declared only if a comprehensive suit by setting forth the correct facts as regards the ownership of the Well and also impleading all the parties, who have right in the suit Well had been preferred and in such view of the matter, when it is found that the plaintiff and the defendant have only right in respect of a fraction of share in the suit Well, accordingly, on facts, it is seen that the trial Court is justified in negativing the relief of permanent injunction prayed for by the plaintiff on the footing that both are the coowners.

enjoyment of the suit Well in proportionate to his claim of share.

13. In the light of the above discussions, it is found that the decision relied upon by the plaintiff's counsel has no application to the case at hand and accordingly, the judgement and decree of the first appellate Court granting the relief of permanent injunction in favour of the plaintiff is liable to be set aside. The substantial questions of law formulated in this second appeal are accordingly answered in favour of the defendant and against the plaintiff.

For the reasons aforestated, the Judgement and Decree dated 11.10.2002 passed in A.S.No.15 of 1998 on the file of the Subordinate Court, Kallakurichi are set aside and the Judgment and Decree dated 24.12.1997 passed in O.S.No.293 of 1991 on the file of the I Additional District Munsif, Kallakurichi are confirmed. Accordingly, the second appeal is allowed with costs. Consequently, connected miscellaneous petition, if any, is closed.

s/d- Assistant Registrar(CS-V) True Copy Sub-Assistant Registrar sms To

1. The Subordinate Court, Kallakurichi.

2. The I Additional District Munsif, Kallakurichi. Copy to

1. The Section Officer, V.R.Section, High Court, Madras. +1 CC to Mr.D. Rajagopal, Advocate sr 40869.

+1 CC to M/s. Sarvabhuman Associates sr 40532. S.A.No.1993 of 2004 SP(27/07/2018)