Ayyappan alias Soman2. Kanna Sevanan3. Subramanian4. Kanna Joghi5. Munsi Nanjan6. Munsi Sevanan v. K.P.Bhojan2. K.P.Halan alias K.P.Haldurai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.7.2007 CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENS.A.No.1624 of 19961. Ayyappan alias Soman2. Kanna Sevanan3. Subramanian4. Kanna Joghi5. Munsi Nanjan6. Munsi Sevanan .. Appellants/ Defendants vs. 1. K.P.Bhojan2. K.P.Halan alias K.P.Haldurai .. Respondents/ PlaintiffsPRAYER : This Second Appeal has been filed against thejudgment and decree, dated 31.3.1995, made in A.S.No.7 of 1994, onthe file of the District Court, The Nilgiris District atUthagamandalam, confirming the judgment and decree, dated31.1.1994, made in O.S.No.5 of 1993, on the file of the DistrictMunsif Court, Coonoor. For Appellants : M/s.Hema Sampath, Senior counsel For respondents : Mr.P.Jagadeesan for Mr.R. Subramanian J U D G E M E N TThe second appeal has been filed against the judgment anddecree, dated 31.3.1995, made in A.S.No.7 of 1994, on the file ofthe District Court, The Nilgiris District at Udhagamandalam,confirming the judgment and decree, dated 31.1.1994, made inO.S.No.5 of 1993, on the file of the District Munsif Court,Coonoor. 2. The defendants in the suit O.S.No.5 of 1993, on the file ofthe District Munsif Court, Coonoor, are the appellants in thepresent second appeal. The plaintiffs had filed the suit inO.S.No.5 of 1993, praying for the relief of permanent injunctionagainst the defendants and for costs. https://hcservices.ecourts.gov.in/hcservices/

3. The brief facts of the case, as stated by the plaintiffs,are as follows:The plaintiffs and their late brother K.B.Raju Belli hadjointly purchased the landed property measuring 2.00 acres bearingSurvey No.478/2 and 2.53 acres bearing Survey No.479/2, bothsituated at Kattabettu in Jagathala Village, under a sale deed,dated 18.8.1971. By virtue of an oral partition and settlementamongst the said three brothers, the plaintiffs became entitled tothe entire area, namely, 2.00 acres in survey No.478/2, with thepossession of the property. 4. The first plaintiff had sold 0.71 acre and the secondplaintiff had sold 0.70 acre making in all 1.41 acres, under thesale deeds, dated 9.12.1986 and 12.1.1988, respectively, out of thesaid two acres, in favour of one Janaki ammal of Kotagiri and thebalance extent measuring 0.59 acre is being held and possessed andenjoyed by the plaintiffs till today. While so, the defendants, whoare utter strangers to the suit property, had started to interferewith the peaceful possession and enjoyment of the suit property,without any right, title or interest, whatsoever, in the suitproperty. 5. On 30.11.1992 and 10.12.1992, the defendants had trespassedinto the suit property and uprooted tea plants numbering about 500and caused considerable damage to the tune of Rs.1,250/-, takinglaw into their own hands. The plaintiffs had lodged a policecomplaint against them, on 1.12.1992, and the defendants 1 to 3were summoned to the police station and warned not to repeat theirnefarious activities. Thus, the plaintiffs are put to greathardship and irreparable loss. Therefore, the plaintiffs had filedthe suit for the relief of permanent injunction restraining thedefendants from interfering with the peaceful possession andenjoyment of the suit properties by the plaintiffs. 6. The averments made in the written statement filed by thefirst defendant, which had been adopted by the defendants 2 to 6,are as follows:The entire field in Survey No.478/2 of Jagathala RevenueVillage, having a total extent of 2.70 acres is a joint pattaholding with several co-pattadars. As there has been no partitionof their respective shares by metes and bounds between the co-pattadars and their descendants, all these co-pattadars are deemedto be in joint possession of the entire field. No definiteboundaries can be attributed to the holding of any particular co-pattadar. In such circumstances, the plaintiffs could file a suitfor partition and for separate possession of their shares in the https://hcservices.ecourts.gov.in/hcservices/ properties in question and that a suit for permanent injunctioncannot be filed by them. The entire extent of 2.70 acres in thesuit survey field originally belonged to two brothers, namely, Kariand Bellan, sons of Kothala Hiriya Gowder of Kattabettu Village,each of whom became entitled to an extent of 1.35 acres. After thedeath of Kari, his five sons, namely, Kascoola Sevenan, Nanjan,Joghee, Bella Maistri and Bellie, had become entitled to an extentof 0.27 acres each. Mathan and Bellan, sons of Nanjan were entitledto half share each in the property of Nanjan i.e., 0.13½ acres. Thedescendants of the third son Joghee are entitled to 0.27 acre andthey are in joint possession of the said lands, along with theother co-pattadars. 7. The four sons of Bellan had 1/4th share in the propertybelonging to an extent of 1.35 acres. By a document No.323 of 1926,registered in the office of the Sub-Registrar, Coonoor, BellaMaistry and Bellie, the two sons of Kari, along with Bellan, son ofNanjan, Mathan and Lingan had sold 2.00 acres of land toC.S.Balasundaram Iyer. All the five together had only an extent of1.35 acres. Therefore, the Vendee C.S.Balasundaram Iyer could havevalid title only to an extent of 1.35 acres and he could not havepurchased the remaining extent of 0.65 acre from his vendor. 8. By a document No.189 of 1967, registered in the office ofthe Sub-Registrar, Coonoor, the descendants of lateC.S.Balasundaram Iyer had sold 2.00 acres of lands to oneV.K.Gopalan, son of Karuman of Kotagiri. The said V.K.Gopalan hadsold the 2.00 acres to the plaintiffs and their brother by adocument No.751 of 1971. Even though the three title deeds ofC.S.Balasundaram Iyer, V.K.Gopalan and the plaintiffs and theirbrother Raju Bellie, mentioned an extent of 2.00 acres, they wereentitled to sell only an extent of 1.35 acres. By a documentNo.1334 of 1986, the first plaintiff K.B.Bhojan had sold an extentof 0.71 acre to one Mrs.Janaki. Likewise, the second plaintiff hadsold an extent of 0.70 acre to the said Mrs.Janaki by a documentNo.32 of 1988. Thus, both the plaintiffs purported to sell a totalextent of 1.41 acres, although they were entitled to only twothirds of 1.35 acres of the properties. 9. The oral partition and settlement alleged by the plaintiffsare not true and that the plaintiffs had made a deliberate attemptto acquire an imaginary title of some extent of the suit field tothemselves for the purpose of the filing of the suit. The claimsmade by the plaintiffs with regard to the damage done to the teaplantation in the suit properties by the defendants are totallyfalse. The plaintiffs were never in possession of the suitproperties and it is false to state that the defendants arestrangers to the suit properties. The boundaries furnished in theplaint are incorrect and false. The sale deeds relied on by the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs do not mention the boundaries of properties in question.There is no cause of action for the suit. Therefore, the suit is tobe dismissed with costs. 10. Based on the rival contentions raised on behalf of theplaintiffs as well as the defendants, the trial Court had framedthe following issues for consideration:"(1) Whether the suit properties are joint propertiesbelonging to the purchasers, who purchased the propertiesfrom Kothala Hiriya Gowder and his legal heirs and also toall the legal heirs of Kothala Hiriya Gowder? (2) Whether the plaintiffs are entitled to the reliefof permanent injunction as prayed for? (3) To what other relief the plaintiffs are entitledto?"11. With regard to the first issue, the trial Court had foundthat by a sale deed, dated 26.3.1926, marked as Exhibit A.11, thelegal heirs of Kothala Hiriya Gowder had sold 2.00 acres of land toC.S.Balasundaram Iyer describing the properties by properboundaries and on such sale being made, the properties in questionwere put in possession of C.S.Balasundaram Iyer. It had also beenfound that all the legal heirs of Kothala Hiriya Gowder, availableat that time, had together executed the said sale deed and Bellanson of Nanjan had attested the said document. Further, Sevenan oneof the legal heirs of Kothala Hiriya Gowder had accepted during hiscross-examination that in the year 1926, his family had only 2.00acres and 15 cents. Since 2.00 acres were sold in the year 1926, bythe document marked as Exhibit A.11, the remaining 2.15 acres wereheld jointly by the members of his family. He had also stated thathe and his family members had no rights over the properties sold toC.S.Balasundaram Iyer in the year 1926. It is only with regard tothe remaining 2.15 acres, he and his family members claim certainrights. 12. The trial Court had also found that the heirs of KothalaHiriya Gowder had been ousted from the properties sold toC.S.Balasundaram Iyer. The 2.00 acres of lands purchased byC.S.Balasundaram Iyer had been alienated from the joint familyproperties in the year 1926. Thereafter, the said lands had beensold to V.K.Gopalan in the year 1967 under Exhibit A.10. Further,the said properties were sold to the plaintiffs and their brotherin the year 1971. Some portions of the said 2.00 acres of land weresold to Janaki ammal at the time of the filing of the suit. Thesuit property of 0.59 acre alone had remained in the plaintiffs'possession and enjoyment. https://hcservices.ecourts.gov.in/hcservices/

13. With regard to the second issue arising for consideration,the trial Court had found that the legal heirs of Kothala HiriyaGowder had sold the properties in the year 1926, by way of adocument attested by the father of the sixth defendant. Since then,the legal heirs of Kothala Hiriya Gowder had no right whatsoever inthe said properties, as accepted by Sevenan who is one of the legalheirs of Kothala Hiriya Gowder. The trial Court had also foundthat the boundaries of 2.00 acres of land, sold to C.S.BalasundaramIyer in the year 1926, were described by proper boundaries.Further, by subsequent deeds of sale, the said property has beenconveyed to his purchasers with proper boundaries. Since the suitproperties in question were not joint family properties as allegedby the defendants, the contention that the relief of injunctioncannot be granted against a co-owner does not arise. Thus, thetrial Court had decreed the suit in favour of the plaintiffs. 14. Aggrieved by the judgment and decree of the trial Court,dated 31.1.1994, made in O.S.No.5 of 1993, the defendants in thesuit had filed an appeal, in A.S.No.7 of 1994, before the DistrictMunsif Court, Coonoor. 15. Based on the contentions raised on behalf of theappellants as well as the respondents and relying on the evidenceon record, the lower appellate Court had framed the following pointfor consideration:"Whether the appellants/plaintiffs were entitled tothe relief of permanent injunction as prayed for?"16. The lower appellate Court had confirmed the findings ofthe trial Court stating that Exhibit A.11 was an old document ofthe year 1926 and therefore, its contents could be taken to betrue. Out of the total extent of 4.15 acres in Survey No.478/2,2.00 acres had been sold to C.S.Balasundaram Iyer describing theproperty with proper boundaries. In the said sale deed conveyingthe properties to C.S.Balasundaram Iyer, Joghee Gowder had signedas a witness. The defendants in the suit and the appellants in thefirst appeal are the legal heirs of Joghee Gowder. The sale deedconveying the property to C.S.Balasundaram Iyer is valid.Therefore, the subsequent sale deeds, with regard to the saidproperty, would also stand valid in the eye of law, unless the saidsale deeds have been disputed in the manner known to law and provedto be invalid. Thus, the lower appellate Court had confirmed thejudgment and decree of the trial Court, dated 31.1.1994, made inO.S.No.5 of 1993.17. Aggrieved by the judgment and decree of the lowerappellate Court, dated 31.3.1995, made in A.S.No.7 of 1994, the https://hcservices.ecourts.gov.in/hcservices/ defendants in the suit have preferred the present second appealbefore this Court in S.A.No.1624 of 1996. This Court had admittedthe second appeal to consider the following substantial questionsof law:"(A) Whether in law have not the Courts below erredin deciding the title of the plaintiffs in an injunctionsuit in the absence of any declaratory relief?(B) Whether in law are not the decrees and judgmentsof the Courts below vitiated in that they have notindependently dealt with the aspect of possessionoverlooking the settled proposition that in an injunctionsuit the Courts have to find whether the plaintiff was inpossession on the date of suit?(C) Whether in law the Courts below ought not to haveseen that for deciding the question of title, the suitshould have been valued on the market value of theproperty and if so done, the jurisdiction of DistrictMunsif's Court, would be ousted as the market value wouldexceed Rs.15,000/-?(D) Whether in law the lower appellate Court oughtnot to have held that the trial Court had no pecuniaryjurisdiction to try the suit and that the decree passed bya Court without jurisdiction is a nullity?(E) Whether in law have not the Courts below erred inoverlooking Section 44 of Transfer of Property Act?"18. The learned counsel appearing on behalf of the appellantshad contended that the vendor of the plaintiffs could not haveconveyed an extent of lands more than what they had. In fact, theycould have conveyed only undivided interests in such lands, withoutspecifying the actual portion of the properties, ssince the landswere in the joint possession and enjoyment of all the membersconstituting their family. 19. It was further contended by the learned counsel appearingon behalf of the appellants that the Courts below could not havegranted a decree of permanent injunction in favour of theplaintiffs against co-owners. It was also contended that the Courtsbelow had decided the question of title without framing it as anissue for consideration.20. The learned counsel appearing on behalf of the appellantshad also submitted that since the chitta marked as Exhibit A.5 https://hcservices.ecourts.gov.in/hcservices/ contains the names of the plaintiffs as well as the defendants, itshould be taken that the suit properties were in their jointpossession and enjoyment. Since a decree of injunction cannot begranted against co-owners, the judgment and decree of the Courtsbelow are erroneous and unsustainable in law. 21. It was also contended that the Courts below had consideredthe aspect of ouster without the same having been pleaded by theplaintiffs. Thus, the Courts below had declared the title of theplaintiffs, even though the plaintiffs had filed only a suit forthe relief of permanent injunction. On the other hand, even thoughthe plaintiffs had not proved their possession in a manner known tolaw, the Courts below had wrongly concluded that the defendants hadnot proved their title. Further, the suit itself could not havebeen decided by the trial Court for lack of jurisdiction and theplaintiffs had not paid the correct court fee as their title hasbeen declared by the decree of the trial Court.22. Per contra, the learned counsel appearing on behalf of therespondents had contended that the Courts below had come to theright conclusion in decreeing the suit as prayed for by theplaintiffs, who are the respondents in the present second appeal.The properties in question have been sold by a sale deed, dated26.3.1926, marked as Exhibit A.11 by the legal heirs of Kari andBellan in favour of C.S.Balasundaram Iyer. The boundaries of thesold properties were also clearly given in the said document. 23. It was also contended by the learned counsel appearing onbehalf of the respondents that by a document, dated 5.1.1993,marked as Exhibit A.1, the plaintiffs and their brother had boughtthe properties from V.K.Gopalan with the same description of theboundaries as found in the document, dated 26.3.1926, marked asExhibit A.11. The defendants have not chosen to declare theExhibits A.1, A.10 and A.11 as invalid in a manner known to law. 24. It was also contended that the Sixth defendant wasexamined as D.W.1 during the trial in O.S.No.5 of 1993. Duringthe cross-examination, he has stated that out of 4.15 acres, 2.00acres were sold by way of the sale deed, dated 26.3.1926, marked asExhibit A.11 and the remaining 2.15 acres alone remained as thejoint family properties belonging to the other members of thefamily. It was also admitted by D.W.1 that he and the otherdefendants did not have any right in the 2.00 acres of land sold toC.S.Balasundaram Iyer in the year 1926. In such circumstances, theCourts below have rightly come to the conclusion that theplaintiffs/respondents were entitled to the reliefs sought for bythem in the suit O.S.No.5 of 1993, on the file of the DistrictMunsif Court, Coonoor. https://hcservices.ecourts.gov.in/hcservices/

25. On analysing the records available before this Court andbased on the rival contentions raised on behalf of the appellantsas well as the respondents, this Court is of the considered viewthat the Courts below have come to the right conclusion indecreeing the suit as prayed for by the plaintiffs. The documentaryevidence relied on by the plaintiffs clearly go to show that theplaintiffs have been in possession and enjoyment of the suitproperties and that the suit properties have been conveyed to them,with proper boundaries, by way of the sale deeds marked as ExhibitsA.1, A.10 and A.11. 26. On the contrary, the defendants, who are the appellants inthe present second appeal, have not proved their claims either byway of documentary or by oral evidence. The sixth defendant,examined as D.W.1, had categorically stated, during his cross-examination, that the defendants have no right whatsoever in the2.00 acres of land sold to C.S.Balasundaram Iyer by a sale deed,dated 26.3.1926, marked as Exhibit A.11. 27. Further, it is seen that the defendants have not chosen tochallenge the sale deeds marked as Exhibits A.1, A.10 and A.11,conveying the suit properties to the plaintiffs, in a manner knowto law. The Courts below, while granting the decree of permanentinjunction in favour of the plaintiffs, have also examined theaspect of title and that by itself cannot be a good or sufficientreason to set aside the judgment and decree of the Courts below. 28. In such view of the matter, the substantial questions oflaw arising for consideration in the present second appeal areanswered in favour of the plaintiffs, who are the respondents inthe present second appeal. Hence, the second appeal is dismissedconfirming the judgment and decree of the Courts below. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To:1. The District Court, The Nilgiris District at Uthagamandalam https://hcservices.ecourts.gov.in/hcservices/

2. The District Munsif Court, Coonoor3. The Record Keeper,VR Section,High Court, Madras1 cc to Mr.R. Subramanian, Advocate, SR. 41894S.A.No.1624 of 1996NG (CO)kk 24/8