The petitioners have filed this Civil Revision Petition assailing the judgment dated 30.8.2013 made in C.M.A.No.1 of 2012 on the file of the Sub-Court, Thirupattur, reversing the fair and decreetal order dated 31.10.2011 made in I.A.No.1033 of 2010 in O.S.No.341 of 2010 on the file of the District Munsif Court, Tirupattur.
2. The petitioners are defendants and the respondents are the plaintiffs in the suit.
3. For the sake of convenience, the parties are referred to as per their rank in the suit.
4. The plaintiffs have filed the suit for permanent injunction restraining the defendants, their men and agents from in any manner interfering with the peaceful possession and enjoyment of the suit properties by the plaintiffs and for costs. Along with the suit, the plaintiffs have filed I.A.No.1033 of 2010 under Order 39, Rule 1 and 2 C.P.C. seeking interim injunction.
5. The case of the plaintiffs is that the suit properties were originally belonged to their grand father Chotta Sahib. The plaintiffs father Amruddin and the first defendant are brothers. On 17.7.2002, Chotta Sahib executed a settlement deed in favour of the plaintiffs in respect of A schedule (suit properties) and B schedule was given to Sabjan Hussain. On 14.12.2004, Chotta Sahib died and the suit properties were in possession and enjoyment of the plaintiffs. In suit schedule item No.1-house, the plaintiffs and their parents were living by paying property tax in their name. As far as the suit schedule item No.2 is concerned, after the demise of Chotta Sahib, the same were also in possession and enjoyment of the plaintiffs and were paying kist to the Government. While so, by creating false documents, the first defendant and other defendants were trying to interfere with the possession and enjoyment of the properties. In fact, on 17.10.2010, the defendants have made an attempt to interfere with the possession and enjoyment of the plaintiffs. Hence, the plaintiffs have filed the suit as well as the petition for temporary injunction.
6. Resisting the suit, the first defendant had filed the written statement. On behalf of the defendants, a Memo has been filed stating that the written statement may be treated as counter in I.A.No.1033 of 2010.
7. In the written statement, the first defendant stated that while Chotta Sahib was alive, he had cancelled the settlement deed dated 17.7.2002 and till his death, the properties were stand in his name and was in possession of the properties and also the alleged settlement deed never came into force. After the demise of Chotta Sahib, the plaintiffs father and the defendants were jointly enjoying the suit properties. The defendants have got full right over the suit properties and they were in joint possession. The defendants 2 to 7 have executed a deed giving their share in favour of the first defendant. The alleged interference dated 17.10.2010 stated by the plaintiffs was false and only for the purpose of filing suit, the plaintiffs have stated so. There was no cause action for the suit and prayed for dismissal of the suit.
8. Upon consideration of the rival submissions, the trial Court granted interim injunction in respect of suit schedule item No.1. As far as the suit schedule item No.2 is concerned, the trial Court dismissed the petition. Aggrieved by the dismissal of I.A.No.1033 of 2010 in respect of suit schedule item No.2, the plaintiffs have filed C.M.A.No.1 of 2012 before the Sub Court, Thirupattur.
9. By the judgment dated 30.8.2013, the first appellate Court, allowed the appeal and set aside the order of the trial Court in respect of suit schedule item No.2 and granted injunction restraining the defendants from interfering with the suit schedule item No.2 till the disposal of the suit. Challenging the judgment of the first appellate Court, the defendants have preferred this Civil Revision Petition.
10. I heard Mr.G.Jeremiah, learned counsel for the petitioners. Despite service, no one had entered appearance on behalf of the respondents. I have perused the materials available on record.
11. The learned counsel for the petitioners/defendants submitted that the settlement deed dated 17.7.2002 executed by Chotta Sahib, through which the plaintiffs had laid the suit has been cancelled by the executant through a registered deed of cancellation dated 3.8.2004 and without challenging the cancellation deed, the plaintiffs cannot seek the relief of permanent injunction in the suit. The learned counsel would submit that the first defendant's son Syed Sabjon Hussaini has got half share in the suit schedule item No.2 and the plaintiffs could not have been laid the suit for bare injunction against the co-owners. The reasoning given by the first appellate Court in granting injunction in favour of the plaintiffs in respect of suit schedule item No.2 was not correct and the first appellate Court erred in granting injunction in respect of suit schedule item No.2 and the same is liable to be set aside.
12. It is an admitted fact that the suit properties originally belonged to Chotta Sahib. The plaintiffs father and the defendants 1 to 7 are sons and daughters of Chotta Sahib.
13. It is the say of the plaintiffs that while Chotta Sahib was alive, he had executed a settlement deed dated 17.7.2002 in favour of the plaintiffs in respect of the suit properties and based upon the settlement deed, the plaintiffs are claiming right over the suit properties.
14. On the other hand, it is the case of the defendants that while Chotta Sahib was alive, he himself cancelled the settlement deed by way of cancellation deed dated 3.8.2004 and therefore, the plaintiffs cannot claim any right over the suit properties.
15. As far as suit schedule item No.1 is concerned, the trial Court held that the plaintiffs have produced a house tax receipt to show that they are in possession of the suit schedule item No.1-house. The trial Court further held that in respect of suit schedule item No.2 though the plaintiffs have produced one tax receipt, no correlation has been made to show that the said tax receipt relates to suit schedule item No.2. Therefore, prima facie case has been made out by the plaintiffs qua suit schedule item No.1 and as far as suit schedule item No.2 is concerned, the plaintiffs have not established their prima facie case.
16. On the contrary, the first appellate Court observed that when the trial Court accepted the settlement deed executed in favour of the plaintiffs in entirety, it ought to have held that the suit schedule item No.2 also belongs to the plaintiffs. The first appellate Court further held that no proof has been produced to show that the suit schedule item No.2 was in possession of the defendants. The first appellate Court went one step further and held that Chotta Sahib has no right to cancel the settlement deed and since the plaintiffs were minors, Chotta Sahib retained possession of the properties in his possession and nothing on record to show that Chotta Sahib was having power to cancel the settlement deed, it was evident that the plaintiffs were in possession and enjoyment of the suit schedule item No.2 also. Therefore, the plaintiffs are entitled for injunction in respect of suit schedule item No.2 till the disposal of the suit.
17. As stated supra, the defendants contended that while Chotta Sahib was alive, he had cancelled the settlement deed executed in favour of the plaintiffs by way of cancellation deed dated 3.8.2014. When both parties stated that settlement deed was cancelled and not cancelled, how the first appellate Court could prima facie arrive at a conclusion that Chotta Sahib had no right to cancel the settlement deed. All these things are matter of evidence and the same would be decided only at the time of trial.
18. It is to be noted that the suit schedule item No.1 is a house property and the plaintiffs were living there. The suit schedule item No.2 is landed properties. As far as suit schedule item No.1 is concerned, the trial Court held that the plaintiffs have established their prima facie case that they are in possession of the same by producing house tax receipt. No contra documents have been produced by the defendants to show that they are in possession of the suit schedule item No.1. In the absence of any contra evidence, the trial Court was right in granting interim injunction in respect of suit schedule item No.1.
19. The finding of the first appellate Court that Chotta Sahib has no right to cancel the settlement deed is without any evidence and at the interlocutory stage, it cannot be said that Chotta Sahib has no right to cancel the settlement deed. Since the plaintiffs have not filed documents to show that they are in exclusive possession of the suit schedule item No.2, the trial Court was right in declining to grant injunction. But the first appellate Court without any documentary evidence erred in granting injunction in respect of suit schedule item No.2 and the same is liable to be set aside.
20. In the result,
(a) the Civil Revision Petition is allowed, by setting aside the order passed in C.M.A.No.1 of 2012, dated 30.8.2013, on the file of the learned Subordinate Judge, Thirupattur, Vellore District and confirmed the order passed in I.A.No.1033 of 2010 in O.S.No.341 of 2010, dated 31.10.2011, on the file of the learned District Munsif, Thirupattur, Vellore District.
(b) the trial Court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
23.02.2017 vs Note:Issue order copy on 03.10.2018 Index : Yes To
1.The Subordinate Judge, Thirupattur, Vellore District.
2.The District Munsif, Thirupattur, Vellore District.
M.V.MURALIDARAN, J.
vs Pre-delivery order made in C.R.P.(PD) No.4565 of 2013 and M.P.Nos.1 and 2 of 2013 23.02.2017