Bothumani v. K. Rameena

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 18.08.2009CORAMTHE HONOURABLE MR.JUSTICE S.TAMILVANANS.A.Nos.565 & 682 of 2007Bothumani... Appellant in both the appeals-versus-1. K. Rameena... 1st Respondent in S.A. No.565 & 682 of 20072. Kesavan... 2nd Respondent in S.A. No.565 of 2007S.A.No.565 of 2007: Second Appeal filed under Section 100 of C.P.C.against the Judgment and Decree dated 13.03.2007 made in A.S. No.59of 2006 on the file of the Subordinate Judge, Ranipet reversing thejudgment and decree made in O.S. No.147 of 2003 dated 31.01.2006, onthe file of the District Munsif, Sholingur. S.A.No.682 of 2007: Second Appeal filed under Section 100 of C.P.Cagainst the judgment and decree dated 13.03.2007 made in A.S. No.58of 2006, on the file of the Subordinate Judge, Ranipet reversing thejudgment and decree made in O.S. No.135 of 2003 dated 31.01.2006 onthe file of the District Munsif, Sholingur. For Appellant in both the appeals: Mr. R. MargabandhuFor Respondents in : Mrs. Aarthi for both the appeals M. Rajendran COMMON JUDGMENTSecond Appeal in S.A. No.565 of 2007 has been preferred againstthe judgment and decree made in A.S. No.59 of 2006 dated 13.03.2007on the file of the Subordinate Judge, Ranipet reversing the judgmentand decree made in O.S. No.147 of 2003 dated 31.01.2006 on the fileof the District Munsif, Sholinghur. The suit in O.S.No.147 of 2003was filed by the appellant herein seeking permanent injunctionrestraining the respondents/defendants from interfering with theplaintiff's peaceful possession and enjoyment of the suit property.The suit property is a dry land in S.F.No.212, an extent of 0.05.5 https://hcservices.ecourts.gov.in/hcservices/ hectares i.e. 0.14 acres, in Bannavaram Village, Arakonam Taluk. Itis seen that the suit was dismissed by the Trial Court, however, thesame was reversed by the First Appellate Court, aggrieved by whichthe second appeal has been preferred.Second Appeal in S.A.No.682 of 2007 has been preferred againstthe judgment and decree dated 13.03.2007 made in A.S. No.58 of 2006by the said Appellate Court, whereby reversed the judgment and decreepassed in O.S. No.135 of 2003 dated 31.01.2006 on the file of theDistrict Munsif, Sholinghur. 2.The suit in O.S. No.135 of 2003 was filed by therespondent/plaintiff seeking permanent injunction restraining theappellant/defendant herein from interfering with the possession andenjoyment of the suit property. The Schedule of property is an extentof 0.05.5 acres of land in S.No.212/3 Bannavaram village, ArakonamTaluk with specified 4 boundaries. The suit was dismissed by thetrial Court, against which an appeal was preferred in A.S.No.58 of2006, the said appeal was allowed and the suit was decreed as prayedfor by the First Appellate Court. Aggrieved by which, the secondappeal has been preferred. In both the suits and appeals theproperty relating to the dispute is one and the same.3.In the second appeal in S.A.No.565 of 2007, the followingsubstantial questions of law have been framed: (a) After conveying title in respect of 3/7thshare by Manoharan, Sarathi and Sarojammal,whether they still have got any substantial rightin the suit property to convey title in respectof 3½ cents in the suit property under Ex.B1dated 04.06.2003 to the defendant, after the dateof conveyance of the 4 daughters of their 4/7thshares in favour of the plaintiff?(b) Whether the plaintiff is not in actualpossession and enjoyment of the suit property? 4.In the second appeal in S.A.No.682 of 2007, the followingsubstantial questions of law have been framed: (a) After conveying title in respect of3/7th share by Manoharan, Sarathi and Sarojammal,whether they still have got any subsisting rightin the suit property to convey title in respectof 3½ cents in the suit property under Ex.A.1dated 04.06.2003 to the plaintiff, after the dateof conveyance of the 4 daughters of their 4/7thshares in favour of the defendant? https://hcservices.ecourts.gov.in/hcservices/ (b) Whether the defendant is not in actualpossession and enjoyment of the suit property? 5. For the sake of convenience, in both second appeals, theparties are referred to in general as appellant, first respondent andsecond respondent as per the cause title in the Second Appeal inS.A.No.565 of 2007 and the documents and witnesses as stated in thesuit in O.S.No.147 of 2003 relating to the said second appeal.According to the appellant, one Murugesa Naicker acquired 14 cents ofland in the suit Survey number by way of a sale deed, dated05.04.1968. He died intestate leaving his wife Saroja, two sonsnamely Manoharan and Sarathy and four daughters namely Malathy,Vijayanthimala, Jeeva and Chandra. It is not in dispute that thewife of late Murugesa Naicker and his two sons jointly executed asale deed, Original of Ex.B1, dated 04.06.2003, in favour of thefirst respondent, Rameena. As per this document, an extent of 7cents of land out of the 14 cents of land was sold. The said saledeed executed by wife and two sons of Murugesa Naicker is not indispute which is admittedly on the western side of the suit property.6. Learned counsel appearing for the appellant submitted thatthough the Western portion of land was sold by the said Saroja,Manoharan and Sarathy respectively wife and sons of late MurugesaNaicker. Manoharan the first son of Murugesa Naicker had right tosell the remaining 7 cents on the East, as ostensible owner, infavour of the appellant herein and the registered documents executedby the daughters of late Murugesa Naicker establish the fact as thesale has been recognised by them. After purchasing the saidproperty under the sale deed in respect of the 7 cents on the East,the appellant constructed a pucca superstructure in 3 ½ cents on theSouthern side and on the northern portion of 3½ cents also theappellant has put up foundation for further construction. At thatstage, the first respondent herein raised objection and also filed asuit seeking injunction in O.S. No.135 of 2003, on the file of thetrial court. Similarly, the appellant herein filed the suit in O.S.No.147 of 2003 seeking permanent injunction against the firstrespondent and her husband, the second respondent herein. Learnedcounsel appearing for the appellant submitted that by virtue ofexhibit A1 the appellant had claimed title to the suit property andhe is in possession and enjoyment of the property and therefore thesuit filed seeking permanent injunction is legally sustainablewithout a prayer for declaration of title.7.Per contra, the learned counsel appearing for the respondentssubmitted that the suit itself is not maintainable, since the reliefsought for is only for permanent injunction without seeking anyrelief for declaration of title. However, the respondent herein hasalso filed the other suit seeking permanent injunction withdeclaration of title. It is a settled proposition of law thatinjunction can be granted in favour of the person who is in https://hcservices.ecourts.gov.in/hcservices/ possession and enjoyment of the property, not to interfere with thepossession and enjoyment against all the persons, except the trueowner of the property. A person who is in legal possession andenjoyment of the property is entitled to get interim injunction evenagainst the true owner, not to evict him except under due process oflaw. In the instant case, as per the original of exhibit B1 dated04.06.2003, Manoharan, Sarathy and the wife of Murugesa Naicker hadexecuted a sale deed in favour of the first respondent Tmt. Rameenaand she is in possession and enjoyment of the western property whichis not the suit property.8. According to Mr.Margabandhu learned counsel appearing for theappellant, the sale deed dated 31.03.2003, executed by Manoharan, theelder son of Murugesa Naicker in favour of the appellant under Ex.A1(Copy marked as B1 in O.S.No.135 of 2003) is a valid document sincethe vendor had right to execute the sale deed, as ostensible owner,but the original of exhibit B1 dated 04.06.2003 executed by Tmt.Saroja and Sarathy in favour of the first respondent is not a validdocument as they had no transferable right to execute the sale deedand therefore the first respondent has no right to claim the suitproperty, 3 ½ cents of land, on the eastern side, based on the saledeed dated 04.06.2003 marked as Ex.A2 in O.S.No.135 of 2003 (Copymarked as Ex.B1 in O.S.No.147 of 2003). Admittedly, the 3 ½ cents onthe north of the eastern 7 cents in the property is in dispute.Learned counsel appearing for the appellant drew the attention ofthis Court to exhibit A2, document executed by Tmt. Vijayanthimalaand Tmt. Jeeva daughters of Murugesa Naicker in favour of theappellant herein, on 14.05.2003 which is also a registered documentwhereby they confirmed the sale deed executed by their brotherManoharan in favour of the appellant Pothumani. Exhibit A3 is asimilar registered confirmation deed datd 16.05.2003, executed byTmt. Malathy, daughter of Murugesa Naicker, confirming the sale deedexecuted by Manoharan, son of Murugesa Naicker in favour of theappellant. The document dated 31.05.2003, marked as Ex.A4 is theoriginal registered document, whereby Tmt. Chandra another daughterof Murugesa Naicker has confirmed the sale deed executed in favour ofthe appellant herein, by Manoharan her elder brother and also theelder son of late Murugesa Naicker. 9. The Substantial question of law (a) in the second appeal 565of 2007 and S.A.No.682 of 2007, is similar. According to theappellant, after executing the sale deed dated 28.08.2002, Saroja,Manoharan and Sarathy as wife and sons of late Murugesa Naicker whohad only 3/7 share in the property would not have transferable rightto sell 3 ½ cents again in the suit property and therefore the saledeed, dated 04.06.2003, executed under the original of Ex.B1,(original marked as Ex.B2 in O.S.No.135 of 2003) in favour of thefirst respondent is not legally sustainable. 10. The learned counsel appearing for the respondents submitted https://hcservices.ecourts.gov.in/hcservices/ that daughters of Murugesa Naicker had no right in the property,since it is an ancestral property and their marriages were performedfrom the joint family funds for which the learned counsel also drewthe attention of this Court to the sale deed dated 04.06.2003(Original of Ex.A2 in O.S.No.135 of 2003), wherein the reason for thesale is stated as for discharging the family debts. Similarly as persale deed, dated 28.08.2002 the vendors therein have stated that theproperty was sold for the purpose of discharging the family debts andfor performing Seervarizhai (gift) for the daughters of Tmt. Sarojaammal, the said averments are available in Ex.A1 marked in O.S.No.135 of 2003 however the averments are not binding on the daughtersof Murugesa Naicker as they are not parties to the document. Onthe other hand, Ex.A6, marked in O.S.No.147 of 2003, copy of the saledeed, dated 05.04.1968, clearly shows that Murugesa Naicker hadpurchased the entire 14 cents of land from one Sreenivasulu Naidu ashis self acquired property. As per this document, sale deed of lateMurugesa Naicker it was only a self acquired property of MurugesaNaicker as there is no contra evidence available against theaverments of the document and the oral evidence adduced on the sideof the respondents would not impeach the averments of Ex.A6 marked inO.S.No.147 of 2003 and further Saroja ammal, vendor of the firstrespondent, who was examined as D.W.5 in O.S.No.147 of 2003 hasadmitted the fact that the entire property including the suitproperty was the self acquired property of late Murugesa Naicker.Therefore, the plea raised by the first respondent a subsequentpurchaser cannot be accepted, since the admission made by her vendoris binding on her.11. Therefore as contended by the learned counsel appearing forthe appellant, the suit property is only a self acquired property oflate Murugesa Naicker and not his ancestral property. It is anadmitted fact that his wife Tmt. Saroja, sons namely Manoharan andSarathy and four daughters were the legal heirs of late MurugesaNaicker. As per Hindu Succession Act each one was entitled to 1/7thshare in the property left by late Murugesa Naicker. As per Ex.A1marked in the suit, in O.S. No.135 of 2003, it is seen that 7 centsof land on the west was already sold by the wife and sons of MurugesaNaicker to the first respondent. Under the sale deed, dated31.03.2003 marked as Ex.A1 in O.S.No.147 of 2003, Manoharan eldestson of late Murugesa Naicker, as ostensible owner sold remaining 7cents in the east in favour of the Appellant and the same wasconfirmed by Malathi, Vaijanthimala, Jeeva and Chandra, the fourdaughters of late Murugesa Naicker, who had 4/7th share in theproperty that had been left by him, being his class I legal heirsunder Hindu Succession Act.12. Learned counsel appearing for the appellants submitted thatthe appellant's vendor Manoharan as ostensible owner sold 7 cents ofthe land in the east including the disputed property of 3 ½ cents andthe documents of confirmation of sale executed by the daughters of https://hcservices.ecourts.gov.in/hcservices/ Murugesa Naicker shows that Manoharan, the vendor of the appellantsproperty, was recognised by the true owners as ostensible owner.Learned counsel appearing for the appellant drew the attention ofthis Court to Section 41 of the Transfer of Property Act. Section 41of the Transfer of Property Act reads as follows:"Transfer by ostensible owner – Where, withthe consent, express or implied, of the personsinterested in immovable property, a person is theostensible owner of such property and transfersthe same for consideration, the transfer shallnot be voidable on the ground that the transferorwas not authorised to make it: provided that thetransferee, after taking reasonable care toascertain that the transferor had power to makethe transfer, has acted in good faith." 13. As per Section 41 of the Transfer of Property Act, wherethere is any expressed or implied consent of the persons interestedin immovable property, it can be established that the person who hasdealt with the property has acted as an ostensible owner of theproperty and the transfers made by such ostensible owner is valid inlaw. A sale made by an ostensible owner cannot be held invalid, onthe ground that the transferor had not been authorised to convey theproperty, since the sale was recognised by the owners of the propertysubsequently. Section 41 of the Transfer of Property Act is squarelyapplicable to the facts and circumstances of this case. Thedocuments executed by the four daughters of Murugesa Naicker,recognising the sale deed dated 31.03.2003 executed by their brotherManoharan, in favour of the appellant clearly establishes the factthat the vendor of the appellant had transferable right in favour ofthe transferee as an ostensible owner as contemplated under Section41 of the Transfer of Property Act.14.It is not in dispute that Murugesa Naicker died leaving hiswife, two sons and four daughters as his legal heirs and it has beenestablished that an extend of 14 cents of land was left by lateMurugesa Naicker which was his self acquired property and as such,each one of his legal heir was entitled to 1/7 share in theproperty. As per sale deed dated 28.08.2002, 7 cents on the West,out of 14 cents was sold by the wife and two sons of Murugesa Naickerin favour of the first respondent herein, under Ex.A1 marked inO.S.No.135 of 2003 though they had right to an extend of 2 cents ofland, each for their share. As contended by the learned counselappearing for the appellants the four daughters of Murugesa Naickerhad 4/7 share and as such they were entitled to 8 cents, but only 7cents of land was left for them, since the wife and two sons, who hadentitled to 6 cents already sold 7 cents on the West to the firstrespondent herein and the said fact is not disputed by the parties.On the date of sale dated 31.03.2003, Ex.A1 marked in O.S.No.147 of https://hcservices.ecourts.gov.in/hcservices/ 2003, the daughters of Murugesa Naicker had right to sell their sharein the property. Whereas Sarojammal, wife and Sarathi younger son ofMurugesa Naicker had no transferable right, on 04.06.2003, when theyexecuted the said sale deed in favour of the first respondent, sincethey had already sold their share in favour of her. 15.It is seen that Exs.A2 to A4 marked in O.S.No.147 of 2003clearly show that Manoharan the vendor of the Appellant had executedthe sale deed dated 31.03.2003 only as ostensible owner. Hence, thesale deed, Ex.A1 marked in O.S.No.147 of 2003 is valid in law.Further, as per Commissioner's Report, Ex.C1, Sketch, C2, it has beenestablished that the appellant had already constructed a puccasuperstructure in an area of 3½ cents and in the remaining 3½ centson the Northernside foundation for the construction was also made.The appellant has clearly stated that the foundation was made by her.It is also made clear that the first respondent has not disputed thefact that the foundation was made in the suit property only by theappellant herein and therefore the available evidence clearly showsthat the appellant is in possession and enjoyment of the 7 cents ofland on the east, indulging the 3 ½ cents of the property in dispute.Hence, I am of the view that the appellant has established that sheis in possession and enjoyment of the property, 7 cents of theproperty on the east by virtue of the sale deed dated 05.04.1968executed by Manoharan, as ostensible owner, as contemplated underSection 41 of the Transfer of Property Act.16.As per Law Lexicon by P.Ramanatha Iyer, Ostensible Owner isone who holds himself out as a owner of the property, but not reallyso. The term ostensible owner denotes a person, who acts as owner ofa property, though he is not factually so, but his act beingrecognised by the true owner of the property. In the instant case,Sarojammal, Manoharan and Sarathy namely wife and sons of lateMurugesa Naicker had already executed the sale deed in favour of thefirst respondent, whereby conveyed 7 cents on the western side inS.F.No.212, though they were entitled to 6 cents out of 14 cents fortheir 3/7th share in the property belonged to Murugesa Naicker.After the said sale deed they had no right in executing another saledeed in favour of any other person. Hence, it is clear thatSarojammal and Sarathy subsequently, under Ex.A2 marked in O.S.No.135of 2003, had executed the sale deed in respect of 3 ½ cents in favourof the first respondent, without having a transferable right.Whereas, Manoharan the eldest son of the Murugesa Nicker sold theeastern 7 cents of land in favour of the appellant herein, only asostensible owner, though he had no personal right to convey theremaining 7 cents on the east. According to the learned counselappearing for the appellant, the sale deed dated 31.03.2003 marked asEx.A1 in O.S.No.147 of 2003 was executed in favour of the appellantherein by Manokaran as ostensible owner of the property and thesale has been recognised by various registered document by the fourdaughters of the Murugesa Naicker who had 4/7th share in the entire https://hcservices.ecourts.gov.in/hcservices/ property which was for more than the 7 cents. In view of Section 41of the Transfer of Property Act, since the sale deed, Ex.A1 inO.S.No.147 of 2003 was executed by Manoharan as ostensible owner thesame is valid. Pursuant to the sale deed, out of 7 cents, theappellant had already constructed a pucca building on the 3 ½ centsand in the balance of 3 ½ cents, put up foundation and as such she isin possession and enjoyment of the suit property.17.In both the Second Appeals, it has been established that lateMurugesa Naicker had purchased the entire property of 14 cents underthe original of Ex.A.6 marked in O.S.No.147 of 2003 on 05.05.1968. Asper the document, it was the self-acquired property of MurugesaNaicker. Sarojammal, who was examined on the side of the firstrespondent as her vendor has also admitted the fact that the propertybelonged to Murugesa Naicker, who left behind him, his wife Saroja,sons Manoharan, Sarathy and four daughters as his heirs. Hence, eachone was entitled to 1/7th share in the property left by him, which isnot in dispute, in the second appeals.18.According to the learned counsel appearing for theappellants, the sale deed, dated 31.03.2003 marked as Ex.A.1 inO.S.No.147 of 2003 was executed by Manoharan, vender of theappellants, only as Ostensible Owner of the property and the sale hasbeen recognised by four daughters of late Murugesa Naicker by variousregistered documents, for which they had received consideration,hence, the sale deed executed in favour of the appellants by the saidManoharan on 31.03.2003 in favour of the appellant is valid in law.It has been established in this case by producing Exs.A.2 to A.4registered documents executed by four daughters of Murugesa Naickerrecognising the sale made by Manoharan as Ostensible owner of theproperty. 19.On the evidence available on record, I am of the view thatthe appellant has established the fact that the property was sold asper the sale deed, dated 31.03.2003 under Ex.A.1 marked in O.S.No.147of 2003 by their vendor Manoharan as Ostensible owner, ascontemplated under Section 41 of the Transfer of Property Act.20.On the facts and circumstances of the case, I answer thesubstantial questions of law raised in S.A. No.565 of 2007 and inS.A. No.682 of 2007 as follows:-Substantial question of law (a) in Second AppealsS.A.No.565 of 2007 and S.A.No.682 of 2007:"After conveying title in respect of 3/7thshare by Manoharan, Sarathi and Sarojammal,whether they still have got any subsisting rightin the suit property to convey title in respectof 3 ½ cents in the suit property under Ex.A1, https://hcservices.ecourts.gov.in/hcservices/ dated 04.06.2003 to the plaintiff, after the dateof conveyance of the four daughters of their4/7th shares in favour of the defendant?" After conveying title in respect of 3/7th share in theproperty under sale deed dated 28.02.2002 in favour of the firstrespondent, Manokaran, Sarathy and Sarojammal had no subsisting rightin the property. Hence, Sarojammal and Sarathy had no transferableright to covey the title of 3 ½ cents of the property in dispute infavour of the first respondent herein, by sale deed, dated04.06.2003, marked as Ex.B1 (Ex.A1 in O.S.No.135 of 2003). On theother hand, the sale deed dated 31.03.2003, executed by Manokaran, asostensible owner under Ex.A1 (copy of the same marked as Ex.B1 inO.S.No.135 of 2003) in respect of 7 cents is valid, as the same hasbeen recognised by the four daughters of Murugesa Naicker, who had4/7th share by way of executing separate deeds recognising the saledeed, executed by Manokaran, as ostensible owner in favour of theappellant herein. Accordingly, substantial questions (a) in boththe second appeals are answered in favour of the appellant andagainst the respondents herein.Substantial question of law (b) in Second AppealsS.A.No.565 of 2007 and S.A.No.682 of 2007:"Whether the defendant is not in actual possessionand enjoyment of the suit property?" As per the encumbrance certificate, Ex.A5 marked in O.S.No.147of 2003, it is made clear that in view of the sale deed dated31.03.2003, 7 cents of land on the Eastern side, including the 3 ½cents of the property in dispute has been transferred in the name ofthe appellant Bothumani from the name of her vendor Manoharan. Asper the Commissioner's Report and sketch marked as Exs.C1 & C2 andthe other evidence available on record it has been established by theappellant, who is the plaintiff in O.S.No.147 of 2003 and defendantin O.S.No.135 of 2003 that she has put up construction in 3 ½ centsin the south of the 7 cents of land purchased by her and in theremaining 3 ½ cents she has made foundation for further construction.It is not the case of the first respondent that she had put up anyfoundation in the suit property. Therefore, as submitted by thelearned counsel for the appellant, pursuant to the sale deed dated31.03.2003, executed by the ostensible owner, the appellant herein isin possession and enjoyment of the 7 cents of the property on theeastern side including the 3 ½ cents which is the property in dispute.21.On a perusal of the impugned judgments, exhibits marked andalso considering the arguments advanced by both sides, it is madeclear that the First Appellate Court has not properly appreciated theevidence while deciding the appeals. Hence, to meet the interest ofjustice, I am of the view that both the Second Appeals have to be https://hcservices.ecourts.gov.in/hcservices/ allowed and the the Appellate Court Judgments are to be reversed. 22.It is seen that both the suits were filed, seekingpermanent injunction against the defendant in the other suit. Thesuit in O.S.No.147 of 2003 was filed by the appellant herein for thetotal extent of 7 cents purchased as per sale deed, dated 31.03.2003from the Ostensible Owner Manoharan. The other suit in O.S.No.135 of2003 was filed by the first respondent in the second appeal againstthe appellant only in respect of 3 ½ cents as per the sale deed,dated 04.06.2003 executed by Saroja and Sarathy under Ex.A.2 markedin O.S.No.135 of 2003. The defendants in both the suits have raised aplea that the suit filed by the other seeking permanent injunctionwas not maintainable, as there was no relief sought for, fordeclaration of title.23. As per Section 38 of the Specific Relief Act, suit forpermanent injunction without a prayer for declaration of title islegally maintainable, when the title to the property is admitted bythe other side or established by the person, seeking the relief ofpermanent injunction, if he is in actual possession and enjoyment ofthe property.24. Similarly, a person, who is in possession and enjoyment ofan immovable property is entitled to permanent injunction tosafeguard his possession of the property against all the persons,except the true owner of the property. 25. Injunction can be granted even against the true owner of theproperty, when the person seeking the relief is in lawful possessionand enjoyment of the property and also legally entitled to be inpossession, not to dispossess him, except under due process of law.26.In the instant case, the appellant has established that shehas got title to the property by way of the sale deed executed by theOstensible Owner and the appellant is in possession and enjoyment ofthe suit property and therefore, the suit in O.S.No.147 of 2003 filedagainst the respondents for bare injunction against the respondentsherein is legally maintainable.27. It is made clear that the vendors under sale deed, dated04.06.2003, had no right to convey 3 ½ cents of the disputed propertyin favour of the first respondent, hence, the first respondent who isthe plaintiff in the suit in O.S.No.135 of 2003 cannot claim title tothe said property and further, as discussed earlier, it has beenestablished that the appellant is in possession and enjoyment of 7cents on the east including the 3 ½ cents of the suit property underdispute. The first respondent has got neither title to the suitproperty nor he is in possession and enjoyment of the property,hence, the suit filed by the first respondent herein in O.S.No.135 of2003 for bare injunction is not legally maintainable. https://hcservices.ecourts.gov.in/hcservices/

28.As per section 37(2) of the Specific Relief Act, 1963 anyperpetual injunction can only be granted by the decree made at thehearing and upon the merits of the suit; the defendant is therebyperpetually enjoined from the assertion of the right, or from thecommission of an act, which would be contrary to the rights of theplaintiff. As contemplated under Sub Section 1 of Section 38 of theSpecific Relief Act, Subject to the other provisions of the act,perpetual injunction can be granted to the plaintiff to prevent thebreach of an obligation existing in his favour, where expressly or byimplication.29.Here in this case, the vendors of the first respondentproperty, namely Sarojammal and Sarathy had sold their 1/7th shareeach along with Manoharan by executing the sale deed dated28.02.2002. As contended by the learned counsel appearing for theappellant 7 cents out of 14 cents of land was sold which is more than3/7th share. In such circumstances, executing another sale deeddated 04.06.2003 by Sarojammal and Sarathy under Ex.A2 marked inO.S.No.135 of 2003 is contrary to the rights of the 4 daughters oflate Murugesa Naicker who was entitled to 4/7th share in theproperty. Based on the sale deed, dated 04.06.2003, the firstrespondent herein cannot claim any right against the right of theappellant in the suit property, as the appellant has established thetitle and also the possession and enjoyment of the 7 cents, includingthe 3 ½ cents which is in dispute, is entitled to permanentinjunction as the act of the first respondent, the respondent hereinis contrary to the rights of the appellant, who was the plaintiff inthe suit in O.S.No.147 of 2003. 30.Similarly, as per Sub section f of Section 41 of the SpecificRelief Act, the first respondent/plaintiff in the suit in O.S.No.135of 2003 who has no title or right in the suit property cannot seekpermanent injunction against the appellant who has established histitle as well as possession.31.It should be borne in mind that injunction is an equitablerelief. For seeking the relief, one must come to court with cleanhands. Suppressing the material facts no one can seek the equitablerelief. It has been made clear from the evidence that the firstrespondent in both the second appeals has no title to the propertyand she is also not in possession and enjoyment of the suit property.In such circumstances, she is not entitled to seek the equitablerelief. Even a person having title is not in possession andenjoyment of the property he should file a suit only for adeclaration of title and recovery of possession and a person who isnot in possession cannot maintain a suit seeking injunction inrespect of possession and enjoyment with the false averments that heis in possession and enjoyment of the property, even if the saidperson is the absolute owner of the property. https://hcservices.ecourts.gov.in/hcservices/

32.On the aforesaid circumstances, without considering thefactual and legal aspect the First Appellate Court has reversed thejudgment of the trial court.33. In view of the findings given on the substantial questionsof law, I am of the view that the first appellate court is not rightin reversing the Judgment of the trial court and that the impugnedJudgment of the appellate court in A.S.No.59 of 2006 and A.S.No.58 of2006 are not legally sustainable, as the same are against law and theevidence available on record and hence, are liable to be set aside.34.In the result, both the second appeals are allowed and thejudgment and decree passed in the first appeals in A.S. Nos.58 & 59of 2006 are set aside, confirming the judgment and decree passed inO.S.No.147 of 2003 and O.S.No.135 of 2007 by the Trial Court, withthe cost throughout.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSmiTo,1.The Subordinate Judge, Ranipet 2.The District Munsif, Sholingur. Copy to: The Section Officer,V.R.Section, High Court, Madras-1041 cc To Mr. M. Rajendran, Advocate, SR.402011 cc To Mr.R. Margabandhu, Advocate, SR.39502S.A. Nos.565 & 682 of 2007ck(co)pmk.10.2.2010