& 682 of 2007
2. Kesavan ... 2nd Respondent in S.A. No.565 of 2007 S.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.59 of 2006 on the file of the Subordinate Judge, Ranipet reversing the judgment and decree made in O.S. No.147 of 2003 dated 31.01.2006, on the file of the District Munsif, Sholingur.
S.A.No.682 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.58 of 2006, on the file of the Subordinate Judge, Ranipet reversing the judgment and decree made in O.S. No.135 of 2003 dated 31.01.2006 on the file of the District Munsif, Sholingur.
Second Appeal in S.A. No.565 of 2007 has been preferred against the judgment and decree made in A.S. No.59 of 2006 dated 13.03.2007 on the file of the Subordinate Judge, Ranipet reversing the judgment and decree made in O.S. No.147 of 2003 dated 31.01.2006 on the file of the District Munsif, Sholinghur. The suit in O.S.No.147 of 2003 was filed by the appellant herein seeking permanent injunction restraining the respondents/defendants from interfering with the plaintiff'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 hectares i.e. 0.14 acres, in Bannavaram Village, Arakonam Taluk. It is seen that the suit was dismissed by the Trial Court, however, the same was reversed by the First Appellate Court, aggrieved by which the second appeal has been preferred.
Second Appeal in S.A.No.682 of 2007 has been preferred against the judgment and decree dated 13.03.2007 made in A.S. No.58 of 2006 by the said Appellate Court, whereby reversed the judgment and decree passed in O.S. No.135 of 2003 dated 31.01.2006 on the file of the District Munsif, Sholinghur.
2.The suit in O.S. No.135 of 2003 was filed by the respondent/plaintiff seeking permanent injunction restraining the appellant/defendant herein from interfering with the possession and enjoyment of the suit property. The Schedule of property is an extent of 0.05.5 acres of land in S.No.212/3 Bannavaram village, Arakonam Taluk with specified 4 boundaries. The suit was dismissed by the trial Court, against which an appeal was preferred in A.S.No.58 of 2006, the said appeal was allowed and the suit was decreed as prayed for by the First Appellate Court. Aggrieved by which, the second appeal has been preferred. In both the suits and appeals the property relating to the dispute is one and the same.
3.In the second appeal in S.A.No.565 of 2007, the following substantial questions of law have been framed:
(a) After conveying title in respect of 3/7th share by Manoharan, Sarathi and Sarojammal, whether they still have got any substantial right in the suit property to convey title in respect of 3= cents in the suit property under Ex.B1 dated 04.06.2003 to the defendant, after the date of conveyance of the 4 daughters of their 4/7th shares in favour of the plaintiff?
(b) Whether the plaintiff is not in actual possession and enjoyment of the suit property?
4.In the second appeal in S.A.No.682 of 2007, the following substantial questions of law have been framed:
(a) After conveying title in respect of 3/7th share by Manoharan, Sarathi and Sarojammal, whether they still have got any subsisting right in the suit property to convey title in respect of 3= cents in the suit property under Ex.A.1 dated 04.06.2003 to the plaintiff, after the date of conveyance of the 4 daughters of their 4/7th shares in favour of the defendant?
(b) Whether the defendant is not in actual possession and enjoyment of the suit property?
5. For the sake of convenience, in both second appeals, the parties are referred to in general as appellant, first respondent and second respondent as per the cause title in the Second Appeal in S.A.No.565 of 2007 and the documents and witnesses as stated in the suit in O.S.No.147 of 2003 relating to the said second appeal. According to the appellant, one Murugesa Naicker acquired 14 cents of land in the suit Survey number by way of a sale deed, dated 05.04.1968. He died intestate leaving his wife Saroja, two sons namely Manoharan and Sarathy and four daughters namely Malathy, Vijayanthimala, Jeeva and Chandra. It is not in dispute that the wife of late Murugesa Naicker and his two sons jointly executed a sale deed, Original of Ex.B1, dated 04.06.2003, in favour of the first respondent, Rameena. As per this document, an extent of 7 cents of land out of the 14 cents of land was sold. The said sale deed executed by wife and two sons of Murugesa Naicker is not in dispute which is admittedly on the western side of the suit property.
6. Learned counsel appearing for the appellant submitted that though the Western portion of land was sold by the said Saroja, Manoharan and Sarathy respectively wife and sons of late Murugesa Naicker. Manoharan the first son of Murugesa Naicker had right to sell the remaining 7 cents on the East, as ostensible owner, in favour of the appellant herein and the registered documents executed by the daughters of late Murugesa Naicker establish the fact as the sale has been recognised by them. After purchasing the said property under the sale deed in respect of the 7 cents on the East, the appellant constructed a pucca superstructure in 3 = cents on the Southern side and on the northern portion of 3= cents also the appellant has put up foundation for further construction. At that stage, the first respondent herein raised objection and also filed a suit seeking injunction in O.S. No.135 of 2003, on the file of the trial court. Similarly, the appellant herein filed the suit in O.S. No.147 of 2003 seeking permanent injunction against the first respondent and her husband, the second respondent herein. Learned counsel appearing for the appellant submitted that by virtue of exhibit A1 the appellant had claimed title to the suit property and he is in possession and enjoyment of the property and therefore the suit filed seeking permanent injunction is legally sustainable without a prayer for declaration of title.
7.Per contra, the learned counsel appearing for the respondents submitted that the suit itself is not maintainable, since the relief sought for is only for permanent injunction without seeking any relief for declaration of title. However, the respondent herein has also filed the other suit seeking permanent injunction with declaration of title. It is a settled proposition of law that injunction can be granted in favour of the person who is in possession and enjoyment of the property, not to interfere with the possession and enjoyment against all the persons, except the true owner of the property. A person who is in legal possession and enjoyment of the property is entitled to get interim injunction even against the true owner, not to evict him except under due process of law. In the instant case, as per the original of exhibit B1 dated 04.06.2003, Manoharan, Sarathy and the wife of Murugesa Naicker had executed a sale deed in favour of the first respondent Tmt. Rameena and she is in possession and enjoyment of the western property which is not the suit property.
8. According to Mr.Margabandhu learned counsel appearing for the appellant, the sale deed dated 31.03.2003, executed by Manoharan, the elder 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 since the 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 valid document as they had no transferable right to execute the sale deed and therefore the first respondent has no right to claim the suit property, 3 = cents of land, on the eastern side, based on the sale deed dated 04.06.2003 marked as Ex.A2 in O.S.No.135 of 2003 (Copy marked as Ex.B1 in O.S.No.147 of 2003). Admittedly, the 3 = cents on the north of the eastern 7 cents in the property is in dispute. Learned counsel appearing for the appellant drew the attention of this Court to exhibit A2, document executed by Tmt. Vijayanthimala and Tmt. Jeeva daughters of Murugesa Naicker in favour of the appellant herein, on 14.05.2003 which is also a registered document whereby they confirmed the sale deed executed by their brother Manoharan in favour of the appellant Pothumani. Exhibit A3 is a similar registered confirmation deed datd 16.05.2003, executed by Tmt. Malathy, daughter of Murugesa Naicker, confirming the sale deed executed by Manoharan, son of Murugesa Naicker in favour of the appellant. The document dated 31.05.2003, marked as Ex.A4 is the original registered document, whereby Tmt. Chandra another daughter of Murugesa Naicker has confirmed the sale deed executed in favour of the appellant herein, by Manoharan her elder brother and also the elder son of late Murugesa Naicker.
9. The Substantial question of law (a) in the second appeal 565 of 2007 and S.A.No.682 of 2007, is similar. According to the appellant, after executing the sale deed dated 28.08.2002, Saroja, Manoharan and Sarathy as wife and sons of late Murugesa Naicker who had only 3/7 share in the property would not have transferable right to sell 3 = cents again in the suit property and therefore the sale deed, 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 the first respondent is not legally sustainable.
10. The learned counsel appearing for the respondents submitted that daughters of Murugesa Naicker had no right in the property, since it is an ancestral property and their marriages were performed from the joint family funds for which the learned counsel also drew the 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 the sale is stated as for discharging the family debts. Similarly as per sale deed, dated 28.08.2002 the vendors therein have stated that the property was sold for the purpose of discharging the family debts and for performing Seervarizhai (gift) for the daughters of Tmt. Saroja ammal, the said averments are available in Ex.A1 marked in O.S. No.135 of 2003 however the averments are not binding on the daughters of Murugesa Naicker as they are not parties to the document. On the other hand, Ex.A6, marked in O.S.No.147 of 2003, copy of the sale deed, dated 05.04.1968, clearly shows that Murugesa Naicker had purchased the entire 14 cents of land from one Sreenivasulu Naidu as his self acquired property. As per this document, sale deed of late Murugesa Naicker it was only a self acquired property of Murugesa Naicker as there is no contra evidence available against the averments of the document and the oral evidence adduced on the side of the respondents would not impeach the averments of Ex.A6 marked in O.S.No.147 of 2003 and further Saroja ammal, vendor of the first respondent, who was examined as D.W.5 in O.S.No.147 of 2003 has admitted the fact that the entire property including the suit property was the self acquired property of late Murugesa Naicker. Therefore, the plea raised by the first respondent a subsequent purchaser cannot be accepted, since the admission made by her vendor is binding on her.
11. Therefore as contended by the learned counsel appearing for the appellant, the suit property is only a self acquired property of late Murugesa Naicker and not his ancestral property. It is an admitted fact that his wife Tmt. Saroja, sons namely Manoharan and Sarathy and four daughters were the legal heirs of late Murugesa Naicker. As per Hindu Succession Act each one was entitled to 1/7th share in the property left by late Murugesa Naicker. As per Ex.A1 marked in the suit, in O.S. No.135 of 2003, it is seen that 7 cents of land on the west was already sold by the wife and sons of Murugesa Naicker to the first respondent. Under the sale deed, dated 31.03.2003 marked as Ex.A1 in O.S.No.147 of 2003, Manoharan eldest son of late Murugesa Naicker, as ostensible owner sold remaining 7 cents in the east in favour of the Appellant and the same was confirmed by Malathi, Vaijanthimala, Jeeva and Chandra, the four daughters of late Murugesa Naicker, who had 4/7th share in the property that had been left by him, being his class I legal heirs under Hindu Succession Act.
12. Learned counsel appearing for the appellants submitted that the appellant's vendor Manoharan as ostensible owner sold 7 cents of the land in the east including the disputed property of 3 = cents and the documents of confirmation of sale executed by the daughters of Murugesa Naicker shows that Manoharan, the vendor of the appellants property, was recognised by the true owners as ostensible owner. Learned counsel appearing for the appellant drew the attention of this Court to
Section 41 of the Transfer of Property Act.
Section 41 of the Transfer of Property Act reads as follows:
"Transfer by ostensible owner Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
13. As per
Section 41 of the Transfer of Property Act, where there is any expressed or implied consent of the persons interested in immovable property, it can be established that the person who has dealt with the property has acted as an ostensible owner of the property and the transfers made by such ostensible owner is valid in law. A sale made by an ostensible owner cannot be held invalid, on the ground that the transferor had not been authorised to convey the property, since the sale was recognised by the owners of the property subsequently.
Section 41 of the Transfer of Property Act is squarely applicable to the facts and circumstances of this case. The documents executed by the four daughters of Murugesa Naicker, recognising the sale deed dated 31.03.2003 executed by their brother Manoharan, in favour of the appellant clearly establishes the fact that the vendor of the appellant had transferable right in favour of the transferee as an ostensible owner as contemplated under
Section 41 of the Transfer of Property Act.
14.It is not in dispute that Murugesa Naicker died leaving his wife, two sons and four daughters as his legal heirs and it has been established that an extend of 14 cents of land was left by late Murugesa Naicker which was his self acquired property and as such, each one of his legal heir was entitled to 1/7 share in the property. 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 Naicker in favour of the first respondent herein, under Ex.A1 marked in O.S.No.135 of 2003 though they had right to an extend of 2 cents of land, each for their share. As contended by the learned counsel appearing for the appellants the four daughters of Murugesa Naicker had 4/7 share and as such they were entitled to 8 cents, but only 7 cents of land was left for them, since the wife and two sons, who had entitled to 6 cents already sold 7 cents on the West to the first respondent 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 2003, the daughters of Murugesa Naicker had right to sell their share in the property. Whereas Sarojammal, wife and Sarathi younger son of Murugesa Naicker had no transferable right, on 04.06.2003, when they executed the said sale deed in favour of the first respondent, since they 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 2003 clearly show that Manoharan the vendor of the Appellant had executed the sale deed dated 31.03.2003 only as ostensible owner. Hence, the sale 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 been established that the appellant had already constructed a pucca superstructure in an area of 3= cents and in the remaining 3= cents on 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 the fact that the foundation was made in the suit property only by the appellant herein and therefore the available evidence clearly shows that the appellant is in possession and enjoyment of the 7 cents of land on the east, indulging the 3 = cents of the property in dispute. Hence, I am of the view that the appellant has established that she is in possession and enjoyment of the property, 7 cents of the property on the east by virtue of the sale deed dated 05.04.1968 executed by Manoharan, as ostensible owner, as contemplated under
Section 41 of the Transfer of Property Act.
16.As per Law Lexicon by P.Ramanatha Iyer, Ostensible Owner is one who holds himself out as a owner of the property, but not really so. The term ostensible owner denotes a person, who acts as owner of a property, though he is not factually so, but his act being recognised by the true owner of the property. In the instant case, Sarojammal, Manoharan and Sarathy namely wife and sons of late Murugesa Naicker had already executed the sale deed in favour of the first respondent, whereby conveyed 7 cents on the western side in S.F.No.212, though they were entitled to 6 cents out of 14 cents for their 3/7th share in the property belonged to Murugesa Naicker. After the said sale deed they had no right in executing another sale deed in favour of any other person. Hence, it is clear that Sarojammal and Sarathy subsequently, under Ex.A2 marked in O.S.No.135 of 2003, had executed the sale deed in respect of 3 = cents in favour of the first respondent, without having a transferable right. Whereas, Manoharan the eldest son of the Murugesa Nicker sold the eastern 7 cents of land in favour of the appellant herein, only as ostensible owner, though he had no personal right to convey the remaining 7 cents on the east. According to the learned counsel appearing for the appellant, the sale deed dated 31.03.2003 marked as Ex.A1 in O.S.No.147 of 2003 was executed in favour of the appellant herein by Manokaran as ostensible owner of the property and the sale has been recognised by various registered document by the four daughters of the Murugesa Naicker who had 4/7th share in the entire property which was for more than the 7 cents. In view of
Section 41 of the Transfer of Property Act, since the sale deed, Ex.A1 in O.S.No.147 of 2003 was executed by Manoharan as ostensible owner the same is valid. Pursuant to the sale deed, out of 7 cents, the appellant had already constructed a pucca building on the 3 = cents and in the balance of 3 = cents, put up foundation and as such she is in possession and enjoyment of the suit property.
17.In both the Second Appeals, it has been established that late Murugesa Naicker had purchased the entire property of 14 cents under the original of Ex.A.6 marked in O.S.No.147 of 2003 on 05.05.1968. As per the document, it was the self-acquired property of Murugesa Naicker. Sarojammal, who was examined on the side of the first respondent as her vendor has also admitted the fact that the property belonged to Murugesa Naicker, who left behind him, his wife Saroja, sons Manoharan, Sarathy and four daughters as his heirs. Hence, each one was entitled to 1/7th share in the property left by him, which is not in dispute, in the second appeals.
18.According to the learned counsel appearing for the appellants, the sale deed, dated 31.03.2003 marked as Ex.A.1 in O.S.No.147 of 2003 was executed by Manoharan, vender of the appellants, only as Ostensible Owner of the property and the sale has been recognised by four daughters of late Murugesa Naicker by various registered documents, for which they had received consideration, hence, the sale deed executed in favour of the appellants by the said Manoharan 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.4 registered documents executed by four daughters of Murugesa Naicker recognising the sale made by Manoharan as Ostensible owner of the property.
19.On the evidence available on record, I am of the view that the appellant has established the fact that the property was sold as per the sale deed, dated 31.03.2003 under Ex.A.1 marked in O.S.No.147 of 2003 by their vendor Manoharan as Ostensible owner, as contemplated under
Section 41 of the Transfer of Property Act.
20.On the facts and circumstances of the case, I answer the substantial questions of law raised in S.A. No.565 of 2007 and in S.A. No.682 of 2007 as follows:-
Substantial question of law (a) in Second Appeals S.A.No.565 of 2007 and S.A.No.682 of 2007:
"After conveying title in respect of 3/7th share by Manoharan, Sarathi and Sarojammal, whether they still have got any subsisting right in the suit property to convey title in respect of 3 = cents in the suit property under Ex.A1, dated 04.06.2003 to the plaintiff, after the date of conveyance of the four daughters of their 4/7th shares in favour of the defendant?"
After conveying title in respect of 3/7th share in the property under sale deed dated 28.02.2002 in favour of the first respondent, Manokaran, Sarathy and Sarojammal had no subsisting right in the property. Hence, Sarojammal and Sarathy had no transferable right to covey the title of 3 = cents of the property in dispute in favour of the first respondent herein, by sale deed, dated 04.06.2003, marked as Ex.B1 (Ex.A1 in O.S.No.135 of 2003). On the other hand, the sale deed dated 31.03.2003, executed by Manokaran, as ostensible owner under Ex.A1 (copy of the same marked as Ex.B1 in O.S.No.135 of 2003) in respect of 7 cents is valid, as the same has been recognised by the four daughters of Murugesa Naicker, who had 4/7th share by way of executing separate deeds recognising the sale deed, executed by Manokaran, as ostensible owner in favour of the appellant herein. Accordingly, substantial questions (a) in both the second appeals are answered in favour of the appellant and against the respondents herein.
Substantial question of law (b) in Second Appeals S.A.No.565 of 2007 and S.A.No.682 of 2007:
"Whether the defendant is not in actual possession and enjoyment of the suit property?"
As per the encumbrance certificate, Ex.A5 marked in O.S.No.147 of 2003, it is made clear that in view of the sale deed dated 31.03.2003, 7 cents of land on the Eastern side, including the 3 = cents of the property in dispute has been transferred in the name of the appellant Bothumani from the name of her vendor Manoharan. As per the Commissioner's Report and sketch marked as Exs.C1 & C2 and the other evidence available on record it has been established by the appellant, who is the plaintiff in O.S.No.147 of 2003 and defendant in O.S.No.135 of 2003 that she has put up construction in 3 = cents in the south of the 7 cents of land purchased by her and in the remaining 3 = cents she has made foundation for further construction. It is not the case of the first respondent that she had put up any foundation in the suit property. Therefore, as submitted by the learned counsel for the appellant, pursuant to the sale deed dated 31.03.2003, executed by the ostensible owner, the appellant herein is in possession and enjoyment of the 7 cents of the property on the eastern side including the 3 = cents which is the property in dispute.
21. On a perusal of the impugned judgments, exhibits marked and also considering the arguments advanced by both sides, it is made clear that the First Appellate Court has not properly appreciated the evidence while deciding the appeals. Hence, to meet the interest of justice, I am of the view that both the Second Appeals have to be allowed and the the Appellate Court Judgments are to be reversed.
22. It is seen that both the suits were filed, seeking permanent injunction against the defendant in the other suit. The suit in O.S.No.147 of 2003 was filed by the appellant herein for the total extent of 7 cents purchased as per sale deed, dated 31.03.2003 from the Ostensible Owner Manoharan. The other suit in O.S.No.135 of 2003 was filed by the first respondent in the second appeal against the appellant only in respect of 3 = cents as per the sale deed, dated 04.06.2003 executed by Saroja and Sarathy under Ex.A.2 marked in O.S.No.135 of 2003. The defendants in both the suits have raised a plea that the suit filed by the other seeking permanent injunction was not maintainable, as there was no relief sought for, for declaration of title.
23. As per
Section 38 of the Specific Relief Act, suit for permanent injunction without a prayer for declaration of title is legally maintainable, when the title to the property is admitted by the other side or established by the person, seeking the relief of permanent injunction, if he is in actual possession and enjoyment of the property.
24. Similarly, a person, who is in possession and enjoyment of an immovable property is entitled to permanent injunction to safeguard 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 the property, when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to dispossess him, except under due process of law.
26.In the instant case, the appellant has established that she has got title to the property by way of the sale deed executed by the Ostensible Owner and the appellant is in possession and enjoyment of the suit property and therefore, the suit in O.S.No.147 of 2003 filed against the respondents for bare injunction against the respondents herein is legally maintainable.
27. It is made clear that the vendors under sale deed, dated 04.06.2003, had no right to convey 3 = cents of the disputed property in favour of the first respondent, hence, the first respondent who is the plaintiff in the suit in O.S.No.135 of 2003 cannot claim title to the said property and further, as discussed earlier, it has been established that the appellant is in possession and enjoyment of 7 cents on the east including the 3 = cents of the suit property under dispute. The first respondent has got neither title to the suit property nor he is in possession and enjoyment of the property, hence, the suit filed by the first respondent herein in O.S.No.135 of 2003 for bare injunction is not legally maintainable.
28.As per
section 37(2) of the Specific Relief Act, 1963 any perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of the right, or from the commission of an act, which would be contrary to the rights of the plaintiff. As contemplated under Sub Section 1 of Section 38 of the Specific Relief Act, Subject to the other provisions of the act, perpetual injunction can be granted to the plaintiff to prevent the breach of an obligation existing in his favour, where expressly or by implication.
29.Here in this case, the vendors of the first respondent property, namely Sarojammal and Sarathy had sold their 1/7th share each along with Manoharan by executing the sale deed dated 28.02.2002 . As contended by the learned counsel appearing for the appellant 7 cents out of 14 cents of land was sold which is more than 3/7th share. In such circumstances, executing another sale deed dated 04.06.2003 by Sarojammal and Sarathy under Ex.A2 marked in O.S.No.135 of 2003 is contrary to the rights of the 4 daughters of late Murugesa Naicker who was entitled to 4/7th share in the property. Based on the sale deed, dated 04.06.2003, the first respondent herein cannot claim any right against the right of the appellant in the suit property, as the appellant has established the title and also the possession and enjoyment of the 7 cents, including the 3 = cents which is in dispute, is entitled to permanent injunction as the act of the first respondent, the respondent herein is contrary to the rights of the appellant, who was the plaintiff in the suit in O.S.No.147 of 2003.
30.Similarly, as per Sub section f of
Section 41 of the Specific Relief Act, the first respondent/plaintiff in the suit in O.S.No.135 of 2003 who has no title or right in the suit property cannot seek permanent injunction against the appellant who has established his title as well as possession.
31.It should be borne in mind that injunction is an equitable relief. For seeking the relief, one must come to court with clean hands. Suppressing the material facts no one can seek the equitable relief. It has been made clear from the evidence that the first respondent in both the second appeals has no title to the property and she is also not in possession and enjoyment of the suit property. In such circumstances, she is not entitled to seek the equitable relief. Even a person having title is not in possession and enjoyment of the property he should file a suit only for a declaration of title and recovery of possession and a person who is not in possession cannot maintain a suit seeking injunction in respect of possession and enjoyment with the false averments that he is in possession and enjoyment of the property, even if the said person is the absolute owner of the property.
32.On the aforesaid circumstances, without considering the factual and legal aspect the First Appellate Court has reversed the judgment of the trial court.
33. In view of the findings given on the substantial questions of law, I am of the view that the first appellate court is not right in reversing the Judgment of the trial court and that the impugned Judgment of the appellate court in A.S.No.59 of 2006 and A.S.No.58 of 2006 are not legally sustainable, as the same are against law and the evidence available on record and hence, are liable to be set aside.
34.In the result, both the second appeals are allowed and the judgment and decree passed in the first appeals in A.S. Nos.58 & 59 of 2006 are set aside, confirming the judgment and decree passed in O.S.No.147 of 2003 and O.S.No.135 of 2007 by the Trial Court, with the cost throughout.
18.08.2009 Smi Index : Yes/No Internet : Yes/No To, 1.The Subordinate Judge, Ranipet 2.The District Munsif, Sholingur. 3.The Public Prosecutor, High Court, Chennai. S.TAMILVANAN,J. Smi S.A. Nos.565 & 682 of 2007 18.08.2009