Madras High Court · 2025

ORDER The plaintiff in O.S.No.263 of 2007 has preferred this Second Appeal against the dismissal of the suit in A.S.No.91 of 2018, on the file of the Sub-Court, Lalgui, by reversing the judgment and decree passed in O.S.No.263 of 2007 on the file of the learned Principal District Munsif cum Judicial Magistrate, Lalgudi.2. The suit scheduled property is a pial (Thinnai) purchased by the plaintiffs from one Rengaraj on 17.03.1981, through a registered sale deed and in the said document there is an omission on the part of the vendor about the pial, and hence, he subsequently got the rectified document on 17.08.2007. He is in possession and enjoyment of the portion of the pial, and the same was obstructed by the defendant; hence, he filed the suit for bare injunction restraining the defendant from interfering with the peaceful possession of the said pial by demolishing the building and other suit-scheduled property. 2/13 https://www.mhc.tn.gov.in/judis

21.The respondent filed the written statement stating that the plaintiff has no right to claim an injunction and he purchased the properties from the brother of the Rengaraj, namely, the vendor of the plaintiff, including the pial. On the date of filing the suit; there was no pial and the same was shown as a vacant site, and he was in enjoyment of the pial portion and the defendant is the owner of the pial portion. He obtained the sale deed from the brother of Rengaraj, including the right of the usage of the pial, and he pleaded that the plaintiff was not entitled to an injunction in view of the specific circumstances of the case, without prayer of declaration and recovery of possession.3. The learned trial Judge framed the necessary issues and decreed the suit on the basis of the mortgage deed executed by the Rengaraj in favour of one Amsammal with a description of half share in the pial. Aggrieved over the said judgment and decree, the defendant, namely, the respondent, preferred the appeal suit in A.S.No.147 of 2015 on the file of the Sub Court, Thiruchirappalli. The said appeal was allowed, and the suit was dismissed. Therefore, the plaintiff, namely, the appellant, has filed the second appeal challenging the dismissal of the suit in O.S.No.263 of 2007. 3/13 https://www.mhc.tn.gov.in/judis

4.The learned counsel for the appellant would submit that the right of the pial is admitted by the defendant vendor in Ex.A4, and hence, he is entitled to claim the injunction, and the same was not properly considered by the learned appellate Judge, who erroneously dismissed the suit by allowing the appeal filed by the respondent. D.W.1 also admitted the right of pial and the same was not properly considered by the learned appellate Judge. The learned appellate Judge erroneously gave the finding that the plaintiff has not established the right over the pial. Once, Rengaraj, who is the brother of the vendor of the respondent, executed a deed relating to the right of the usage of the pial; the Court has the power to grant a decree for injunction as prayed in the plaint. The same was not properly considered, and the finding of the learned appellate Judge is that the right is exclusive usage in view of lapse of 25 years from the date of the original document dated 17.03.1981 and the document Ex.A1 dated 17.08.2007.5.The learned counsel for the respondent would submit that the plaintiff proved his case through his documents. He purchased the property in the year 1981. In the said documents, there is no reference to the pial and 4/13 https://www.mhc.tn.gov.in/judis the right of the vendor. After his purchase, he obtained the registered deed relating to the usage of the pial in the said suit-scheduled property. According to them, the property originally belonged to one Ponnusamy. The said Ponnusamy has two sons, Chinna Durai and Rengaraj, and both are entered into oral partition. Rengaraj was allotted the northern side of the property, and the Chinnadurai was allotted the southern side of the property. The pial was used for common usage. But, no material was adduced to prove the same. Even assuming that the right existed, the same was not conveyed in Ex.A3, dated 17.03.1981 ,and hence, he had not claimed the right on the basis of Ex.A.1 rectification deed. Ex.A1 dated 17.08.2007 was obtained after 25 years from the date of receipt of the sale deed after the registered sale deed in favour of the first respondent. Therefore, the learned appellate judge rightly held that the right is extinguished.6.This Court considered the rival submissions made by the learned counsel appearing on either side and perused the materials available on record and the precedents relied upon by them.7.This Court ordered notice to the respondent without admitting the 5/13 https://www.mhc.tn.gov.in/judis second appeal, and the case was posted for final disposal, and hence, this Court went into records and framed the following question of law to dispose of the Second Appeal:(i)Whether the 1st appellate Court is right in dismissing the suit without considering the application of theory of estoppels against Aamsu namely vendor of the defendant in Exhibit A-4 Mortgage deed?(ii)Whether the 1st appellate Court is right in finding that vendor of Exhibit-A3 namely Rengaraj has extinguished due to lapse of time of 25 years while executing Exhibit-A1 conveying titile over the suit pial conveying in favour of plaintiff Kamaraj?(iii)Whether the 1st appellate Court is right in ignoring the admission made in para 6 in his written statement that the plaintiff has right of easement over the pial for using the same during auspicious and unsuspicious occasions and fail to grant the prayer of permanent injunction?8.Both the learned counsel on record made submissions on the 6/13 https://www.mhc.tn.gov.in/judis substantial question of law framed by this Court, and the learned counsel for the appellant submitted that he got the right over the pial under Ex.A1 and Ex.A3 and the right of his vendor also recognized in Ex.A4 and Ex.A6 and therefore, he seeks an injunction.9.The suit scheduled property is a pial and the same belonged to the said Ponnusamy and he had two sons, namely, Chinnadurai and Rengarajan. After demise of Ponnusamy, both are entered into an oral partition and the north-eastern portion of the pial was allotted to Rengaraj and south-eastern side of pial was allotted to Chinnadurai. Rengaraj sold the property to the plaintiff's father on 17.03.1981. There was no reference about the said pial in the said deed. Subsequently, after 26 years, the plaintiff purchased the right of enjoyment of pial on 14.08.2007 and filed the present suit for bare injunction restraining the defendant from interfering with his usage of the said pial. 10.The defendant denied the title of the plaintiff's vendor and the alleged right of usage of the pial and the existence of pial. The measurement mentioned in the suit scheduled property does not even tallied with the own 7/13 https://www.mhc.tn.gov.in/judis documents of the plaintiff. 11.The plaintiff has not produced any evidence to prove the allotment of the north-eastern pial portion to his vendor Rengaraj in the oral partition. There was no reference about the pial in the sale deed dated 17.03.1981. Subsequent rectification sale deed obtained in the year 2007 from Rengaraj after 25 years including the right of enjoyment of use of pial. But, no documents were produced to rove the enjoyment of the pial. After the death of Chinnadurai, his daughter Amusu had been in continuous possession of the entire eastern moiety. The pial was in the enjoyment of Amusu and hence, natham patta was granted in her name. The said Amusu's daughters sold the pial and other properties to the defendant. The plaintiff has never been in enjoyment of the pial. The plaintiff admitted in his cross examination that he did not know about the portion of the properties allotted under the partition. ahh; ahUf;F vd;d ghfk; gphpe;jJ vd;w tpguk; vdf;F bjhpahJ. 12. P.W.2, Chinnadurai, also admitted that fpHf;F gFjp rpd;dj;jJiu kfs; mk;Rf;F fpilj;jJ nth; gpujthjpf;F vGjpf;bfhLj;Jtpl;lhh;. V1 gj;jpuj;jpy; ey;y fhhpak; kw;Wk; bfl;l 8/13 https://www.mhc.tn.gov.in/judis fhhpaj;jpw;F kl;Lk; cgnahfg;gLj;jg;gl;L te;jJ vd;W brhd;dhy; mth;fs; mt;thW vGjpa[s;shh;fs;. Vd;Dila Kd; gjjpuj;jpy; mst[fs; fpHnky; 6 bjd;tly; 7.5 vd;w Fwpg;g[ cs;sjh vd;why; ,y;iy. Further, the defendant specifically disputed the extent of the pial. P.W.2 also deposed that there was no reference about the measurement of the pial as stated in the plaint. D.W.1 specifically deposed that jpz;izapy; Msf;F ghjp gphpf;ftpy;iy vd;why; rhpjhd;. Jpz;iz vd; gf;fk; xJf;fg;gl;Ls;sJ. Therefore, the plaintiff has failed to prove the measurement of the pial and his case of right over the pial through the oral partition. When no specific plea was raised by the defendant over the right of the entitlement of usage of suit scheduled property, the suit prayer for bare injunction without seeking prayer of declaration is not maintainable. From the evidence of the defendant and on perusal of the plaintiff's documents, it is seen that the defendant had purchased the vacant land and there was no reference about the pial. To claim the injunction, it is the duty of the plaintiff to prove his right over the enjoyment of the property and show that he was continuously enjoying the property. Nothing was produced either to prove the entitlement of possession. The learned trial Judge, placed reliance on Ex.A4 and Ex.A6 where the vendor executed a mortgage deed relating to the portion of the 9/13 https://www.mhc.tn.gov.in/judis property in favour of Amusu with description of right of usage of pial with the words that 'vd; rpwpa jfg;gdhh; bfl;o tPl;oy; fPH;g[wKs;s btsp jpz;izapy; ghjp ghfKk; nrh;j;J'. existence The boundaries mentioned in the said document is not relevant and inadmissible under Section 13 of the Indian Evidence Act as held by the Hon'ble Supreme Court in the cae of Harithar Prasad v. Deonarain Prasad reported in AIR 1956 SC 305 to accept the case of the plaintiff's title over the pial. Further, there was no clear mentioning about the extent of the pial and the same was already dealt above. Therefore, the learned Appellate Judge has correctly reapriciated the evidence and has held that the plaintiff has not proved his possession and enjoyment of the suit scheduled property and he has no right to claim over the suit scheduled property and his suit without seeking prayer of declaration is not maintainable. This Court finds no reason to interfere with the said finding and there was no perversity in the said finding. Tehrefore, the plaintiff is not entitled to the relief of permanent injunction as prayed in the suit. The learned trial Judge has committed error in granting the decree only on the basis of the mentioning of the boundaries in Ex.A4, Ex.A6 which is not admissible under Section 13 of the Indian Evidence Act, and the same was correctly appreciated by the learned appellate Judge and 10/13 https://www.mhc.tn.gov.in/judis this Court finds no perversity in setting aside the said finding of the learned trial Judge. 13. In view of the above discussion, the substantial questions of law framed are answered against the appellant and this Court is inclined to dismiss the appeal.14.In the result, this Second Appeal stands dismissed and the judgment and decree passed by the Sub-Court, Lalgudi, in A.S.No.91 of 2018 dated 31.08.2018 reversing the judgment and decree in O.S.No.263 of 2007 on the file of the learned Principal District Munsif cum Judicial Magistrate, Lalgudi, is hereby confirmed. There shall be no order as to costs. Consequently, connected miscellaneous petition stands closed. 09.07.20252/2NCC : Yes / No Index : Yes / NoInternet : Yes / Nosbn 11/13 https://www.mhc.tn.gov.in/judis To1. The Sub Court, Lalgudi.2. The Principal District Munsif cum Judicial Magistrate, Lalgudi.3. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. 12/13 https://www.mhc.tn.gov.in/judis K.K.RAMAKRISHNAN, J.sbn S.A.(MD).No.380 of 2018andC.M.P(MD).No.10708 of 201809.07.20252/2 13/13