Natarajan Vs. Lakshmi

COMMON JUDGMENT

1. One Natarajan as plaintiff instituted the Suit in O.S. No. 207 of 1997 before -the District Munsif Court, Tiruppur- [-Trial Court- for short] against the defendant - Lakshmi, seeking permanent injunction restraining her from interfering with his peaceful possession and enjoyment of the suit properties. He filed another Suit in O.S. No. 347 of 1997 before the same Court against the same defendant seeking to set aside the Judgment and Decree dated April 23, 1996 passed in O.S. No.111 of 1996 by the Trial Court as vitiated by fraud. In both Suits, the suit properties are one and the same. A joint trial was conducted in both Suits and a Common Judgment and Decree was passed on June 25, 2003, whereby both Suits were decreed. Feeling aggrieved by the said Common Judgment and Decree, the defendant - Lakshmi, preferred the Appeal Suits in A.S. Nos. 67 and 68 of 2003 before -the Sub Court, Tiruppur- [-First Appellate Court- for short], which by its Common Judgment and Decree dated June 30, 2004, allowed both the Appeal Suits and reversed the Trial Court-s verdict. Feeling aggrieved by the same, the present Second Appeals have been filed by the plaintiff - Natarajan.

2. As these Second Appeals arise out of Common Judgment and Decree, as the suit properties are one and the same and as the issues involved are inter-twined, they shall be governed by this Common Judgment.

3. The parties in the Second Appeals and their respective ranks in both the Original Suits are the same. They shall hereinafter be referred to as per their array in the Original Suits for convenience sake. To be clear, the appellant in both Second Appeals - Natrajan will be referred to as the plaintiff and the respondent - Lakshmi in both Second Appeals will be referred to as the defendant.

PLAINTIFF-S CASE:

4. Plaintiff-s case in both Suits is that one Kondathu Gounder and Avanashiyappa Gounder are brothers. The plaintiff is the son of Avanashiyappa Gounder, whereas the defendant is the wife of Kondathu Gounder. Out of their wedlock, a son named Karuppusamy was born, who passed away in the year 1990 in a road traffic accident. The defendant deserted Kondathu Gounder long ago and has been living separately from him.

4.1. Further case of the plaintiff is that the suit properties were purchased by Kondathu Gounder vide Sale Deed dated February 01, 1979 as his self-acquired properties. Since the defendant had deserted Kondathu Gounder, Kondathu Gounder remained under the care and custody of the plaintiff and the plaintiff-s father. Therefore, out of love and affection towards the plaintiff, Kondathu Gounder executed his last Will dated January 04, 1995 and thereby bequeathed the suit properties in favour of the plaintiff. Thereafter, Kondathu Gounder passed away on December 25, 1995, whereupon the Will came into effect and pursuantly the plaintiff came into possession and enjoyment of the suit properties. Revenue records were also mutated to the name of the plaintiff.

4.2. While so, on June 18, 1997, the defendant, along with her men, attempted to dispossess the plaintiff from the suit properties. Hence, the plaintiff filed the Suit for permanent injunction against the defendant in O.S. No.207 of 1997.

4.3. In the said Suit, the plaintiff filed an Order XXXIX Rule 1 Petition [Temporary Injunction Petition]. From the counter filed therein by the defendant - Lakshmi, who is the respondent therein, it came to light that she had fraudulently obtained a Decree granting declaration and recovery of possession in her favour in O.S. No.111 of 1996 in respect of the very same suit properties in O.S. No.207 of 1997 by way of impersonation as if the plaintiff - Natrajan himself appeared before the Trial Court on April 23, 1996, filed a memo and thereby submitted to the Decree, and it also came to light that based on the fraudulent Decree she had filed E.P. No. 10 of 1997. The plaintiff received no summon in the said Suit despite the fact that he had filed a caveat before the Trial Court as well as the First Appellate Court, on January 27, 1996 itself. The plaintiff further averred that his address stated in the caveat is different from the one found in the plaint in O.S. No.111 of 1996. Further, in the caveat notice itself, the existence of the Suit Will dated January 04, 1995 has been clearly stated. Hence, the plaintiff filed the other Suit in O.S. No. 347 of 1997 praying to set aside the Judgment and Decree of the Trial Court in O.S. No.111 of 1996 as obtained by fraud.

DEFENDANT-S CASE:

5. Defendant-s case in both Suits is that she is the legally wedded wife of Kondathu Gounder. Out of the said wedlock, a son by name Karuppusamy was born, who met with a road traffic accident and passed away in the year 1990. According to the defendant, Kondathu Gounder owned ancestral properties measuring 1 Acre 49 Cents situate in Merkupathi and Thoravalur Village with a common well equipped with a 5 H.P. motor. On September 04, 1978, Kondathu Gounder and his then minor son - Karuppusamy, sold the said ancestral properties to plaintiff-s father - Avanashiyappa Gounder, for a consideration of Rs.12,000/-and put him in possession thereof. Thereafter, on February 1, 1979, Kondathu Gounder purchased the suit properties from one N. Ramachandran and his then minor son - Ramshankar for the very same consideration of Rs.12,000/-. It is therefore the specific case of the defendant that the suit properties were purchased out of the sale proceeds of the ancestral properties and consequently, the suit properties are also ancestral properties. Upon the death of her son - Karuppusamy, the defendant became entitled to half share in the suit properties as his Class-I legal heir under the provisions of the Hindu Succession Act, 1956.

5.1. Further case of the defendant is that Kondathu Gounder became seriously ill and lost his mental stability from the month of November 1994. He was also suffering from paralysis and was unable to speak coherently. At those times no one could understand his speech and was incapable of even affixing his signature. It is the defendant alone who had been looking after the needs of Kondathu Gounder as his wife. However, during January 1995, defendant-s father fell seriously ill and she was constrained to stay with him for about ten days. Taking advantage of the pitiable condition of Kondathu Gounder and the temporary absence of the defendant, the plaintiff, who is the son of Kondathu Gounder-s brother, fabricated the Suit Will. The defendant denied the execution, genuineness and validity of the alleged Will. Based on the said alleged Will, the plaintiff attempted to secure mutation of the revenue records in his favour.

5.2. Further case of the defendant is that on February 15, 1996, the plaintiff forcibly entered into the suit properties. Thereafter, a village panchayat was convened in an attempt to resolve the dispute, however it failed due to the plaintiff-s non-cooperation. Therefore, the defendant instituted the Suit in O.S. No.111 of 1996, whereafter the plaintiff himself approached the defendant and stated that he would not contest the said Suit. In pursuance, the plaintiff received notice and appeared before the Court on April 08, 1996 and again on April 19, 1996 and filed a memo submitting to the Decree. Recording the said memo, the Trial Court decreed the Suit in O.S. No.111 of 1996 on April 23, 1996. Pursuant to the said Decree, the defendant filed E.P. No. 10 of 1997 for delivery of possession. When the defendant along with Court Ameen went to take delivery of possession of the suit properties, the plaintiff refused. Hence, the defendant filed an application for rendering police aid in the said execution proceedings. In view of these, the plaintiff is well aware of the Suit proceedings and passing of Decree therein. He cannot now turn around and contend otherwise. On the above pleadings, the defendant prayed to dismiss both Suits as not maintainable and devoid of any cause of action.

Trial COURT:

6. Based on the above pleadings the following issues were framed in O.S. No. 207 of 1997:

“1. Whether the plaintiff is entitled to the relief of Permanent Injunction?

2. To what other reliefs the plaintiff is entitled to?“

7. In O.S. No. 347 of 1997, the following three issues were framed:

“1. Whether the decree and judgment in O.S.NO. 111/1996 dated April 23, 1996 was obtained by fraud?

2. Whether the defendant is entitled to a share as per Hindu Succession Act, 1956

3. To what other reliefs the plaintiff is entitled to ?“

8. Evidence were recorded in common in O.S. No. 207 of 1997. At the trial, on the side of the plaintiff, the plaintiff examined himself as P.W.1. Further, one Subramaniam and one Senniappan were examined as P.W.2 and P.W.3 respectively and Exs-A.1 to A.77 were marked on the side of the plaintiff. On the side of the defendant, the defendant examined herself as D.W.1 and one Chinnasamy was examined as D.W.2 and Exs-B.1 to B.4 were marked on the side of the defendant.

9.The Trial Court, after analyzing the oral and documentary evidence, came to the conclusion that the defendant failed to establish that the suit properties are ancestral properties. The Decree in O.S. No.111 of 1996 was obtained by playing fraud. The plaintiff has proved that he is in possession and enjoyment of the suit properties. Moreover, the defendant herself has admitted the plaintiffs- possession of the suit properties. Accordingly, the Trial Court decreed both the Original Suits.

FIRST APPELLATE COURT:

10. As stated supra, the aggrieved defendant approached the First Appellate Court, which framed points for consideration which can be roughly translated as follows:

(i)Whether the appellant, by instituting the Original Suit in O.S. No. 111 of 1996 against the respondent before the Tiruppur District Munsif Court and by preventing the respondent from appearing as a defendant in the said Suit, prepared a false document, committed fraud and obtained the Decree by impersonation ?

(ii)Whether the Judgment and Decree obtained by the appellant against the respondent in O.S. No. 111 of 1996 dated April 23, 1996 are liable to be set aside ?

(iii)Whether the suit property is a property of Hindu joint family consisting of Kondathu Gounder and his late son - Karuppasamy ? And whether the suit property was purchased in and out of the sale proceeds of the ancestral properties ?

(iv)Is it correct to assert that the suit property was the self-acquired property of the Kondathu Gounder ?

(v)Whether the respondent is entitled to the relief of permanent injunction, as prayed for ?“

11. The First Appellate Court held that the plaintiff failed to prove that the Judgment and Decree in O.S. No.111 of 1996 was obtained by fraud and answered the above Point Nos.(i) and (ii) accordingly. Further held that the ancestral properties were sold by Kondathu Gounder and his minor under Ex-B.1 - Sale Deed dated September 4, 1978 for Rs.12,000/-. Thereafter, vide Ex-A.1 - Sale Deed dated February 01, 1979, Kondathu Gounder purchased the suit properties for the very same sale consideration of Rs.12,000/-. Hence, the suit properties are also ancestral properties. Accordingly, the First Appellate Court answered the above Point Nos.(iii) and (iv). The defendant-s son - Karuppasamy passed away unmarried in 1990 and hence, as per the then Section 6 of the Hindu Succession Act, 1956, Karuppasamy-s ½ share shall devolve upon the defendant - Lakshmi. Hence, Kondathu Gounder has no right to execute Will in respect of the entire suit properties. Despite denial of title by the defendant, the plaintiff did not amend the plaint in O.S. No.207 of 1997 to seek the relief of declaration. Further observed that permanent injunction cannot be granted in respect of a portion of the suit properties alone. Accordingly, the First Appellate Court answered Point No.(v) in favour of defendant and went on to dismiss the Original Suits by allowing the Appeals stated above.

SECOND APPEALs:

12.The aggrieved plaintiff has preferred the present Second Appeals. These Second Appeals were admitted on September 11, 2004 on the following Substantial Questions of Law:

“(a) Whether the appellant had established the truth and validity of Ex.A.76 Will dated 04.01.1995 by examining the attesting witness PW.2 in accordance with provisions of Section 63(C) of the Indian Succession Act read with Section 68 of the Evidence Act, whether the lower appellate court is correct in law in not upholding Ex.A-76 Will?

(b) When the appellant had established the fraudulent nature of the decree obtained by the respondent in O.S.NO.111/1996 as contemplated under Section 44 of the Evidence Act, whether the lower appellate Court is correct in law in refusing to set aside the fraudulent decree on mere surmises and conjectures?

(c) When the appellant who had lodged caveat petition even before the respondent had filed the suit in O.S.No.111/1996, whether the lower appellate court is correct in law in holding that the appellant had submitted to the fraudulent decree for declaration and recovery of possession in respect of large extent of properties ? And

(d) When Exs.A-3 to A-75 decisively prove the appellants possession of suit properties, whether the lower appellate court is justified in law in denying the relief of permanent injunction?“

Civil Miscellaneous Petitions and decision thereon:

13. Civil Miscellaneous Petition Nos.3114 and 3115 of 2016 came to be filed in S.A. Nos.1843 and 1844 of 2004 respectively on February 4, 2016. The first petitioner in both the Civil Miscellaneous Petitions, namely Parameshwaran filed separate affidavits therein, substance of which are however the same. In the affidavits, he has stated that Kondathu Gounder-s first wife is Pongiyathal and through her, he had one daughter by name Karuppathal. Kondathu Gounder-s second wife is the defendant - Lakshmi. Kondathu Gounder purchased the suit properties vide Sale Deed dated February 26, 1979 [sic]. The petitioners are bona-fide purchasers of the suit properties pending the Second Appeals with value without notice from said Karuppathal and the defendant - Lakshmi vide Sale Deed dated July 2, 2008. Subsequently, the plaintiff caused trouble to the petitioners- peaceful possession and enjoyment of the suit properties and hence the petitioners filed a Suit in O.S. No.231 of 2009 on the file of the Trial Court. In turn, the plaintiff - Natrajan filed a petition under Article 227 of the Constitution of India in C.R.P. No.3439 of 2011 praying to strike off the plaint in O.S. No.231 of 2009. The same is pending. In these circumstances, the petitioners are proper and necessary parties to the Second Appeals and may be given an opportunity to safeguard their interest in the suit properties. Accordingly, the petitioners prayed to allow the Civil Miscellaneous Petitions.

14. The plaintiff - Natrajan, who is the first respondent in both the Civil Miscellaneous Petitions, filed counter denying the averments made in the affidavit and contending that the petitioners being pendente lite purchasers are neither necessary parties nor proper parties; that the plaintiff is in possession and enjoyment of the suit properties; that the execution petition in E.P. No.169 of 2004 in O.S. No.111 of 1996 is still pending; that the petitioners are not bona fide purchasers with value without notice and hence, they are bound by the Decree to be passed by this Court. Accordingly, the plaintiff prayed to dismiss the Civil Miscellaneous Petitions.

15. Heard the learned Counsels on either side qua the Civil Miscellaneous Petitions. They would reiterate their affidavit / counter averments. In addition, learned Senior Counsel appearing for the first respondent in the Civil Miscellaneous Petition, would point out that, in C.M.P. No.14541 of 2004 in S.A. No.1843 of 2004, an interim injunction was granted and the same was later made absolute vide Order dated July 27, 2005.

16. This Court has also perused the materials placed on record. The plaintiff is in possession and enjoyment of the suit properties as on the date of the Original Suit in O.S. No.207 of 1997 and as on the date of Trial Court Judgment passed therein. It could be seen from the typed set of papers that E.P. No.169 of 2004 in O.S. No.111 of 1996 was pending as on September 30, 2011. Upon this Court verifying its current status through the e-Court-s portal, it was seen that it has been transferred to the District Munsif Court, Avinashi on the point of territorial jurisdiction on March 12, 2019. Admittedly the petitioners are pendente lite purchasers that too during the currency of the said interim injunction order passed by this Court. The revenue records, electricity receipts, etc., filed by the plaintiff herein - Natrajan in the present Suits before the Trial Court all stand in the name of the plaintiff during the relevant time period. Considering the nature of the present Original Suits, this Court is of the view that the petitioners are neither necessary parties nor proper parties to decide the lis. Therefore, the Civil Miscellaneous Petitions are hereby dismissed.

Arguments for Second Appeals:

17. Coming back to the Second Appeals, Mr.P.Valliappan, learned Senior Counsel assisted by Mr.M.Guruprasad, learned Counsel on record for the appellant in both Second Appeals would submit that the suit properties are the self-acquired properties of Kondathu Gounder, having been purchased by him under Ex-A.1 - Sale Deed dated February 1, 1979 out of his own earnings. After the defendant deserted Kondathu Gounder, he was looked after by the plaintiff and the plaintiff-s father till his last breath. Hence, out of love and affection, Kondathu Gounder executed Ex-A.76 - Registered Suit Will dated January 04, 1995 bequeathing the suit properties in favour of the plaintiff.

17.1. He would further submit that, upon the demise of Kondathu Gounder on December 25, 1995, the Will came into effect and the plaintiff succeeded the suit properties and has since been in possession and enjoyment thereof. Though the Suit Will being a registered Will required only a formal proof, the plaintiff examined one of the attesting witnesses thereto as P.W.2 and clearly proved its execution. The Will itself clearly stipulates that the suit properties are self-acquired properties of Kondathu Gounder. It also mentions the fact that the defendant deserted the testator.

17.2. He would further submit that, as the defendant attempted to interfere with the plaintiff-s possession and enjoyment of the suit properties, the plaintiff had filed a caveat before the Trial Court on January 27, 1996. In the said caveat, the plaintiff-s address is mentioned as Vannankadu, Abhisekhapuram, Merkkupathy Village, Tiruppur Taluk. However, after receiving the caveat-s copy/caveat notice, the defendant with a view to defeat and defraud the plaintiff-s rights, filed O.S. No.111 of 1996 against the plaintiff wilfully stating a wrong address with ulterior motive, as if the plaintiff was residing at Andipalayam, Thoravalur Village, Tiruppur Taluk. Further, the defendant managed to create records as if the plaintiff refused to receive the summons. Further, the defendant managed to impersonate the plaintiff before the Trial Court twice, made the impostor file a memo submitting to Decree and consequently, obtained a Decree for recovery of possession against the plaintiff in her favour. The fraud played by the defendant came to light only during the proceedings in O.S. No.207 of 1997. No summons were served upon the plaintiff for the Suit in O.S. No. 111 of 1996 and the plaintiff never appeared before the Court nor submitted to any Decree as alleged by the defendant. The Decree in O.S. No.111 of 1996 being one obtained by fraud, is liable to be set aside. Hence, the plaintiff filed the other Suit in O.S. No. 347 of 1997 seeking to set aside the Decree in O.S. No.111 of 1996.

17.3. He would further submit that the Trial Court, upon a proper appreciation of the oral and documentary evidence available on record, rightly decreed both the Suits in favour of the plaintiff. However, the First Appellate Court, without properly appreciating the evidence on record, erroneously allowed the Appeals and dismissed the plaintiff-s Suits. Accordingly, the learned Senior Counsel would pray to allow the Second Appeals, set aside the Judgment and Decree passed by the First Appellate Court and restore the Judgment and Decree passed by the Trial Court.

18. Per contra, Mr.S.Kingston Jerold, learned Counsel appearing for the respondent in both Second Appeals would submit that, though the suit properties were purchased by Kondathu Gounder under Sale Deed dated February 1, 1979, prior thereto, Kondathu Gounder and his minor son - Karuppusamy, had sold a portion of their ancestral properties in favour of Avinashiyappa Gounder, the father of the plaintiff vide Ex-B.1 - Sale Deed dated September 04, 1978 for a consideration of Rs.12,000/-. And for the same consideration value of Rs.12,000/-, the suit properties were purchased about four months later under Ex-A.1 - Sale Deed dated February 1, 1979. He would further argue that the suit properties were purchased using the sale proceeds from sale of ancestral properties under Ex-B.1 and hence, the suit properties are ancestral properties. The defendant, being the legally wedded wife of Kondathu Gounder, upon the death of her son - Karuppusamy, became entitled to half share in the suit properties.

18.1. He would further submit that, it is true that the defendant, during the lifetime of Kondathu Gounder, filed a Suit for partition against him. However, as Kondathu Gounder passed away during the pendency of that Suit whereupon the defendant became entitled to the entire extent of suit properties, the defendant did not pursue the same.

18.2. As regards the Suit Will, he would submit that Kondathu Gounder was not in a free, sound and disposing state of mind to execute the Suit Will. It was the defendant who was looking after Kondathu Gounder during his old age. The defendant had to leave Kondathu Gounder to look after her sick father for about ten days. During that time, taking advantage of Kondathu Gounder-s poor mental and physical state, the Suit Will had been fabricated. The Suit Will is not valid. He would also submit that, in any case, Will in respect of ancestral properties is not valid in its entirety. The plaintiff miserably failed to remove the suspicious circumstances surrounding the Will and prove it as per law.

18.3. As regards the Memo filed by the plaintiff in O.S. No.111 of 1996 submitting to the Decree, it being a voluntary judicial act, it cannot be questioned in subsequent proceedings. If at all the plaintiff is aggrieved, he ought to work out his remedy in the said proceedings alone. Separate Suit cannot be entertained as the same is barred under Order XXIII Rule 3A of the Code of Civil Procedure, 1908.

18.4. He would further submit that as the defendant denies the title of the plaintiff, the Suit in O.S. No.207 of 1997 as framed would not be maintainable. The Trial Court did not consider the above aspects and erroneously decreed the Suits. The First Appellate Court, upon a thorough consideration of the pleadings, evidence and materials available on record, rightly allowed the appeals and dismissed the Suits filed by the plaintiff. Therefore, no interference is warranted. Accordingly, he would pray to dismiss the Second Appeals and sustain the Judgment and Decree of the First Appellate Court.

18.5. He would rely on the following authorities in support of his submissions:

S. No.	Citation	Cause Title
1	(2020) 14 SCC 110	Vurimi Pullarao -vs- Vemari Vyankata Radharani
2	2012 (1) ALT 699	Aquadev India Ltd., Rep. By its Director, Gummadi Venkateswarlu -vs- Kode Basava Venkateswara Rao
3	2006(3) ALT 505	K.Rajam Raju -vs- Smt.P.Rangamma
4	2025 SCC Online SC 835	Manjunath Tirakappa Malagi -vs- Gurusiddappa Tirakappa Malagi (Dead through Lrs)
5	(2006) 5 SCC 566	Pushpa Devi Bhagat (dead) through LR. Sadhana Rai -vs- Rajinder Singh
6	(2022) 5 SCC 736	Sree Surya Developers and Promotors -vs- N.Sailesh Prasad
7	2019 (5) CTC 686	Celestine -vs- Ebisal

19. In rebuttal, Mr.P.Valliappan, learned Senior Counsel, would rely on the Judgment in Syed Dhasthakeer -vs- Navab John, reported in 2012 (6) CTC 892 to contend that the Suit for injunction simpliciter in O.S. No.207 of 1997 is maintainable even in the absence of relief for declaration of title.

Discussion:

20. This Court has heard the submissions made on either side and perused the materials available on record.

21. The demise of Kondathu Gounder-s son - Karuppusamy in a road traffic accident in 1990 is admitted. The fact that the defendant filed a Partition Suit against Kondathu Gounder is also admitted.

22. Starting with the character of suit properties, plaintiff / P.W.1 in his evidence has accepted that Kondathu Gounder along for himself and for his then minor son - Karuppusamy, sold his ancestral properties situate in Merkupathi Village in favour of the plaintiff-s father - Avanashiyappa Gounder vide Ex-B.1 - Sale Deed dated September 04, 1978. The recitals contained in Ex-B.1 - Sale Deed also reads that the sale thereunder was made by Kondathu Gounder for purchasing some other properties ["ntW g{kp th-;Fk; epkpj;jk;...."]. In less than a year thereafter, Kondathu Gounder purchased the suit properties vide Ex-A.1 - Sale Deed dated February 1, 1979. The recitals contained in Ex-B.1, the temporal proximity between the sale of ancestral properties under Ex-B.1 and the purchase of suit properties under Ex-A.1 and the fact that Kondathu Gounder-s son was made a party to Ex-B.1, taken together would show that the suit properties were purchased using the sale proceeds from sale of ancestral properties. Hence, the suit properties also take up the character of ancestral properties. The First Appellate Court rightly found so.

23. The next question is whether Ex-A.76 - Suit Will dated January 04, 1995 is true and valid. Evidence available on record viz., depositions of P.W.1 to P.W.3 show that the plaintiff-s family was alone looking after Kondathu Gounder during his old age. Admittedly, the defendant filed O.S. No.439 of 1992 against Kondathu Gounder seeking partition of her ½ share in the suit properties. In the plaint in O.S. No.439 of 1992, the defendant-s address is stated as Patampalayam, Nambiyur Village, Tiruppur. And Kondathu Gounder-s address has been stated as Merkkupathy Village, Tiruppur Taluk, where the suit properties are located. It could be learnt from the depositions of P.W.1 to P.W.3 that Kondathu Gounder resided in the house in suit properties after the defendant deserted him. Further, in the plaint in O.S. No.439 of 1992 itself, the defendant as plaintiff therein has pleaded that she was kicked out of her matrimonial residence after the demise of her son - Karuppusamy. Moreover, naturally, one would wonder as to what is the need to file a Suit for partition against her husband if she is the one looking after him. All these facts put together makes it probable that Ex-A.76 - Suit Will in favour of plaintiff, is a natural one.

24. Though the parties raised contentious issues qua the Suit Will in pleadings as well as in evidence, the Trial Court failed to frame issues with regard to the Suit Will nor did it take up any discussion thereon, probably because it was of the view that the Suit being one for injunction simpliciter, validity of the Will cannot be decided in it. The First Appellate Court as well did not frame any points for consideration in this regard but it went on to render contradictory findings; at one point, the First Appellate Court has found that the Suit Will has been proved and at another spot, it has held otherwise. There is no clear cut finding in this regard by the First Appellate Court, but while refusing the relief of injunction First Appellate Court has held that injunction cannot be granted in respect of a portion of suit properties. Given that the plaintiff claims title on the basis of the Suit Will, it could be inferred that, according to the First Appellate Court, the Suit Will is proved but not valid in respect of the entire extent of suit properties.

25. The question of whether the Suit being one for bare injunction is maintainable in the absence of the relief of declaration despite the defendant-s denial of title, gains significance at this juncture. The learned Senior Counsel appearing for the appellant rightly placed reliance on Syed Dhasthakeer-s Case [cited supra], wherein a learned Single Judge of this Court has held thus:

“11. A comparative study of the relevent provisions of the Specific Relief Act, 1963 and the Tamil Nadu Court Fees and Suits Valuation Act, 1955 will show that there cannot be a blanket principle that when the title is denied a suit for bare injunction without a prayer for declaration shall be dismissed as not maintainable. Even the judgment relied on behalf of the Appellant does not say that a Suit for bare injunction, in case of denial of title of the Plaintiff by the Defendant, is not maintainable. On the other hand, the Hon-ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs., 2008 (6) CTC 237 (SC), has held in clear terms that when the title of the Plaintiff in a Suit for bare injunction is disputed, the Court can go into the matter. After categorising the cases, the Apex Court held that if the issue regarding the title is simple and not complicated, the same can be decided in the Suit for injunction itself and on the other hand, if the Court is of the view that the issue is so complicated and it cannot be conveniently dealt with in the Suit for injunction and a detailed and elaborate enquiry is needed, then the Court could relegate the parties to a regular Suit for declaration to establish title and consequential relief of injunction. It must be noted that even in the said case dealt with by the Apex Court, the Apex Court, after holding that the question of title involved in the said case was not simple one and it was complicated requiring detailed and elaborate enquiry, the Apex Court allowed the Appeal and gave leave to the Plaintiff therein to file a Suit for declaration and consequential reliefs. Only as a rule of convenience for the Court, the prayer for bare injunction in respect of immovable property are to be denied relegating the parties making the claim to seek declaration of title and injunction as a consequential relief.“

26. As it flows from the afore-cited Judgment, given that the decision in the Injunction Suit in O.S. No.207 of 1997 primarily depends on the genuineness and validity of the Suit Will by deciding which the Court can easily arrive at a decision as to whether the plaintiff is entitled to the relief of injunction as sought for, both the Trial Court as well as the First Appellate Court ought to have framed necessary issues / points for consideration regarding the genuineness and validity of Suit Will and rendered clear findings thereon. But they failed to do so.

27. Moreover, a new fact has transpired before this Court from the Civil Miscellaneous Petitions and the connected Civil Revision Petition in C.R.P. No.3439 of 2011 [which is disposed of through a separate Judgment today]. The fact is that Kondathu Gounder had a first wife named Pongiyathal, through whom he had a daughter named Karuppathal. The petitioners in the Civil Miscellaneous Petitions allege that they purchased the suit properties from said Karuppathal and the defendant. Interestingly, the plaintiff herein, who is the defendant in the Original Suit in O.S. No.231 of 2009 praying to strike off which the aforesaid Civil Revision Petition has been filed, filed written statement in the said Original Suit wherein he has not specifically denied the plaint averment that Kondathu Gounder had a first wife - Pongiyathal and a daughter through her namely Karuppathal.

28. Given these circumstances, this Court is of the view that it is just and proper to remit the matter to the Trial Court. The plaintiff shall be at liberty to amend the prayer and seek the relief of declaration or partition or any other suitable prayer(s) he thinks fit. The plaintiff shall also be at liberty to implead any necessary parties to the Suit as he thinks fit. The Trial Court shall frame necessary issues including those regarding the Suit Will, receive evidence in addition to the evidence already recorded and decide the same after hearing either side following regular trial procedure. Further, the plaintiff has let in revenue records, electricity receipts, kist receipts proving his possession until filing of lis. Further, a wholistic consideration of the evidence of the defendant / D.W.1 would show that the plaintiff is in possession and enjoyment of the suit properties. Further, the plaintiff has been granted interim injunction by the Trial Court as well as by this Court and the latter has been made absolute vide Order dated July 27, 2005 passed in C.M.P. No.14541 of 2004 in S.A. No.1843 of 2004. Considering these facts, this Court is inclined to extent the interim injunction granted by this Court against the defendant restraining her interfering with plaintiff-s possession and enjoyment of the suit properties until disposal of the Suit by the Trial Court. In view of the relegation, the Substantial Questions of Law (a) and (d) becomes otiose and pales into insignificance.

29. As regards the Suit in O.S. No. 347 of 1997 to set aside Decree passed in O.S. No.111 of 1996, the defendant would contend that a separate Suit in this regard is barred and the plaintiff if aggrieved by the Decree, he ought to work it out in the same proceedings. The defendant in her written statement had pleaded that a Panchayat was convened to resolve the property dispute between the plaintiff and the defendant in respect of the suit properties, which failed due to the plaintiff-s non-cooperation; that thereafter, she filed O.S. No.111 of 1996; that then the plaintiff approached her and stated that he would give up on the suit properties; that upon receiving summons, the plaintiff appeared before Court in O.S. No.111 of 1996 twice, filed a memo submitting to Decree and accordingly the Decree came to be passed in favour of the defendant.

30. That being her pleadings, the defendant in her evidence as D.W.1 has stated that the plaintiff agreed to handover possession of the suit properties before Panchayat two months before her deposition. While her deposition was on which is April 23, 2002, the Suit in O.S. No.111 of 1996 was filed in the year 1996. Her deposition is contradictory to her pleadings. Relevant extract from her deposition is as follows:

“...வாதியிடம் இருந்து சுவாதீனம் எனக்கு தர வேண்டும் என்று நான் இந்த வழக்கை தொடர்ந்து நடத்தி வருகிறேன். இன்றிலிருந்து 2 மாதங்களுக்கு முன்பு பஞ்சாயத்து பேசி வாதி நீதிமன்றத்தில் வந்து வழக்கறிஞர் வைத்து வழக்கறிஞரிடம் நான் சுவாதீனம் கொடுக்கிறேன் என்று எழுதிக் கொடுத்தார். இன்றிலிருந்து 2 மாதங்களுக்கு முன்பு அவ்வாறு எழுதிக் கொடுத்தார். அதற்கு முன்பு அவ்வாறு எதுவும் வாதி எழுதித் தரவில்லை. 2 மாதங்களுக்கு முன்பு நீதிமன்றத்திலும் வந்து எழுதிக் கொடுத்தார். அந்த சமயத்தில் நான் நீதிமன்றத்தில் இருந்தேன். அந்த சமயத்தில் வாதியினுடைய வழக்கறிஞரான என்.வி.கிரி இருந்தாரா என்று நான் பார்க்கவில்லை. தற்போது உள்ள நீதிபதி முன்னிலையில் தான் வாதி எழுதிக் கொடுத்தார். 19.04.1996ல் வாதி நீதிமன்றத்தில் முன்னிலையாகி எதுவும் எழுதித் தரவில்லை என்றும் நாங்கள் ஆள் மாறாட்டம் செய்து பி.சா.ஆ.4 அசலை தயாரித்து முன்னிலைப்படுத்தினோம் என்றால் தவறு. வாதியின் மீது நான் தொடர்ந்த வழக்கில் 7 ஆண்டுகளுக்கு முன் நீதிமன்றத்தில் வந்து வாதி ஒன்றும் எழுதிக் கொடுக்கவில்லை. கடந்த 4 மாதம் முன்பு தான் நீதிமன்றத்தில் வைத்து பைசல் செய்து எழுதிக் கொடுத்தார்...”

31. This Court is unable believe that the plaintiff gave up on the suit properties either in Panchayat or later in the Court. More so, in view of the fact that he has Ex-A.76 - Suit Will registered in his favour in respect of the suit properties.

32. Further, in the caveats filed by the plaintiff before the Trial Court as well as the First Appellate Court [Ex-A.72 and Ex-A.73], he has stated his address to be Vannankadu, Abhisekhapuram, Merkkupathy Village, Tiruppur Taluk. Whereas, his address as stated by the defendant herein in the plaint in O.S. No.111 of 1996 is Andipalayam, Thoravalur Village, Tiruppur Taluk. Ex-A.11 - Residential Certificate, Ex-A.12 - Voter List, Ex-A.13 to Ex-A.19 - Inland letters addressed to the plaintiff, all would support his address stated in the caveats. This shows that the defendant, despite receiving the caveat, has wilfully sent summons for the plaintiff herein to false address. The defendant-s contention in this regard that Merkkupathy Village and Thoravalur Village are adjacent villages and any reference to one would also mean reference to the other, deserves to be recorded only to be rejected. It is untenable by any stretch of imagination.

33. Furthermore, learned Counsel for the respondent would submit before this Court the set of rulings tabulated above to vehemently contend that a Compromise Memo or Consent Decree can be challenged in the same proceedings alone and separate Suit would not lie in view of Order XXIII Rule 3A of the Code of Civil Procedure, 1908. There is no quarrel with the said legal position but the same is not applicable to the present case, for the following reason. After the 1976 amendment to the Code of Civil Procedure, 1908 vide Code of Civil Procedure (Amendment) Act, 1976, a compromise shall be in writing and singed by the parties. But in Ex-B.4 - Memo said to be filed by the plaintiff herein in O.S. No.111 of 1996 submitting to the Decree, only alleged signature is found. There is no defendant-s signature or her Counsel-s signature. There is nothing available on record to show that both the plaintiff and the defendant appeared before the Court on that day and explained the compromise. Nor is there anything available on record to show that the identity of the parties were verified that day. In these circumstances, Ex-B.4 is not a compromise memo in technical sense and hence, the aforesaid legal position does not apply to the instant case. Further, the plaintiff herein had filed Ex-A.8 - Complaint dated July 15, 1997 before the Trial Court on the administrative side soon after filing of Ex-B.4 - Memo stating that he never appeared before the Court nor signed the memo as alleged. Accordingly, he prayed to stop the execution proceedings. It appears that the plaintiff could not get any relief from there and hence, he has filed O.S. No. 347 of 1997 seeking to set aside the Decree.

34. A cumulative consideration of these facts would show that the defendant played fraud to obtain the Decree in O.S. No.111 of 1996 passed based on Ex-B.4 - Memo. If a Decree is obtained by playing fraud on the Court, it is invalid and may be challenged at any point of point of time even in collateral proceedings, as fraud vitiates all solemn acts, as held by Hon-ble Supreme Court in S.P. Chengalvaraya Naidu -vs- Jagannath, reported in (1994) 1 SCC 1. There is no bar to question the same in a separate Suit in view of Section 44 of the Indian Evidence Act, 1872. Hence, the First Appellate Court ought to have set aside the fraudulent Decree passed in O.S. No.111 of 1996, but it failed to do so. Therefore, this Court is inclined to set aside the Decree in O.S. No.111 of 1996 as invalid as obtained by fraud. Substantial Questions of Law (b) and (c) are answered accordingly.

Conclusion:

1. In fine, S.A. No.1843 of 2004 filed over A.S. No.67 of 2003 which in turn was filed over the Suit for permanent injunction in O.S. No.207 of 1997 is allowed in part. The Judgment and Decree passed by the Trial Court as well as the First Appellate Court are set aside. The case is remanded to the Trial Court. The Trial Court shall re-admit the Suit under its original number in the Register of Civil Suits and schedule a hearing on November 02, 2026. The parties shall appear before the Trial Court on that date either in person or through their Counsels. The plaintiff is at liberty to amend the plaint prayer to seek the relief of declaration or partition or any other suitable prayer(s) as he thinks fit. The plaintiff shall also be at liberty to implead any necessary parties to the Suit as he thinks fit. The Trial Court shall frame necessary issues including those regarding the Suit Will, receive further evidence in addition to the evidence already recorded and decide the matter after hearing either side following regular trial procedure. The parties are at liberty to recall and further examine the witnesses already examined, if need be. It is made clear that the evidence already on record is to be preserved and the new evidence recorded pursuant to the liberty now granted by this, shall be in addition thereto. The interim injunction granted by this Court against the defendant restraining her interfering with plaintiff-s possession and enjoyment of the suit properties is extended until disposal of the Suit by the Trial Court. The parties including the newly impleaded parties if any shall co-operate with the Trial Court for the expeditious disposal of the Suit keeping in mind the age of lis. And a request is made to the Trial Court to endeavour to dispose of the Suit as early as possible.

1.1. S.A. No.1844 of 2004 filed over A.S. No.68 of 2003 which in turn was filed over the Suit in O.S. No. 347 of 1997 filed praying to set aside the Decree in O.S.No.111 of 1996 is allowed, the Judgment and Decree passed by the First Appellate Court is set aside and the Judgment and Decree of the Trial Court is restored.

1.2. Civil Miscellaneous Petitions in C.M.P. No.3114 of 2016 and C.M.P. No.3115 of 2016 are dismissed as devoid of merits as per the discussion supra.

1.3. In view of the facts and circumstances of this case, there shall be no Order as to costs.

1.4. The Registry shall consign the records received from the Trial Court back to the Trial Court as early as possible, not later than 15 days from today.

Madras High Court

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R. SAKTHIVEL, J.

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