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Judgment
Mr. Justice G. Rajasuria
This Second Appeal is focussed by the original defendants 1 to 3 animadverting upon the judgment and decree dated 27.07.2009, passed in A.S.No.9 of 2009 by the learned Principal Subordinate Judge, Thanjavur in reversing the judgment and decree dated 29.12.2008, passed in O.S.No.134 of 2008 by the learned District Munsif, Thanjavur.
The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
The summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
The plaintiffs filed the suit, seeking permanent injunction as against the defendants 1 to 3 so as to restrain them from interfering with the plaintiffs'' right to use as a common one the suit pial as described in the schedule.
The defendants resisted the suit by filing the written statements.
Whereupon, relevant issues were framed by the trial Court.
During trial, the second plaintiff examined himself as P.W.1 along with on Swaminathan as P.W.2 and marked Exs.A.1 to A.8 on their side. The third defendant examined himself as D.W.1 along with one Shivasankar as D.W.2 and marked Exs.B.1 to B.6 on their side. The Advocate Commissioner''s Report and Plans were marked as Exs.C.1 to C.3.
Ultimately, the suit was dismissed by the trial Court, against which appeal was filed by the plaintiffs.
Whereupon, the first appellate Court reversed the judgment and decree of the trial Court and granted permanent injunction as prayed for.
Impugning and challenging the judgment and decree of the first appellate Court, the defendants preferred this Second Appeal on various grounds, suggesting the following substantial questions of law:
(i) Whether the suit for injunction is maintainable against the true owner?
(ii) Whether the 1st appellate court is correct is passing a decree without any cause of action?
(iii) Whether the 1st appellate court is correct is passing a decree under surmises?
(iv) Whether the plaintiffs are entitled to enjoy the right even after the compromise are entered into between Swaminatha Chettiar & Dhakshinamoorthy?
(v) Whether a permission granted for enjoyment of property during particular time can be treated as common property?" (Extracted as such)
Despite printing the names of the respondents 1 to 6/plaintiffs, no one represented. However, the learned counsel for the 7th respondent Municipality made representations.
I would like to fumigate my mind with the following principles as found enunciated and enshrined in the following decisions of the Honourable Apex Court:
(i) Hero Vinoth (minor) Vs. Seshammal, .
(ii) Kashmir Singh Vs. Harnam Singh and Another, .
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.
As found enunciated and spot lighted in the aforesaid precedents at the first instance, this Court has to find out as to whether any substantial question of law is involved in this matter at all.
After hearing the learned counsel for the appellants and the learned counsel for the 7th respondent, I am of the view that the following question of law has to be framed:
Whether the first appellate court was justified in passing a decree to the effect that the original suit was decreed as prayed for without any clarity, even though the findings of the trial Court was not disagreed or reversed by the first appellate Court?
The nitty-gritty, the gist and kernel of the germane facts would run thus:
(a) The admitted or at least the undeniable facts as found exemplified and demonstrated in the judgments of both the Courts below are to the effect that originally the suit property, which is a pial along with other lands belonged to one P.S.Kodiyappa Chettiar, who alienated some portions of his property, but not the suit property, namely the pial.
(b) P.S.Kodiyappa Chettiar died leaving behind his son Swaminatha Chettiar, who enjoyed the suit property in such a manner that he permitted the purchasers of some other portions of the properties belonged to P.S.Kodiyappa Chettiar, to use the suit property during the festival period and ceremonial periods, out of sheer humanitarian grounds.
(c) Subsequently, Swaminatha Chettiar died leaving behind his widow - the first defendant, his son - the third defendant and the third defendant''s wife -the second defendant. The fourth defendant is the Municipal Authority which is a formal party in this case.
(d) There was one other previous litigation instituted at the instance of some persons as against the said Swaminatha Chettiar as though Swaminatha Chettiar had no right over the suit property, but the said suit went in favour of Swaminatha Chettiar, recognising his right over it.
(e) Now, the present suit is filed by the plaintiffs, who are some of the purchasers of the land from P.S.Kodiyappa Chettiar, on the ground that their right to use the pial in common with the defendants 1 to 3 was obstructed by the later.
The trial Court, after considering the pro et contra the evidences, including oral evidence, gave a finding to the effect that P.S.Kodiyappa Chettiar did not sell away the suit property to any one; however, based on the admissions of the defendants 1 to 3 themselves, gave a finding to the effect that the said pial was allowed to be used by the plaintiffs on certain occasions and the defendants herein did not obstruct their use. With the aforesaid findings, the trial Court dismissed the suit as though there was no cause of action.
But, the first appellate Court without reversing the findings of the trial Court held that the plaintiffs also had right to use the pial, and that the suit should not have dismissed; whereupon decree of injunction was passed. The first appellate Court has simply decreed the suit granting permanent injunction as prayed for without any clarity or condition or stipulation.
The learned counsel for the defendants 1 to 3 would fairly submit that the appellants cannot demand a found of flesh, and they are not preventing the plaintiffs from using the suit pial and what the defendants actually require is that they do not want the miscreants and criminals to use the said pial for nefarious and criminal activities. He would explain and expound that at the time of filing the suit, the defendants 1 to 3 have put up construction in the adjoining property to the suit property and at that time no doubt certain building materials were dumped on the suit property and subsequently, those materials were removed. He once again stressed upon the fact that the defendants 1 to 3 are having no intention to prevent the plaintiffs from reasonably using the pial during the festival as well as ceremony times. However, he would hasten to add that the first appellate Court''s judgment granting injunction unconditionally is allowed to stand, it would connote and denote as though the defendants 1 to 3 are having no right over the suit property and that the plaintiffs could use it as though it belonged to them.
I could see considerable force in the submissions made by the learned counsel for the defendants 1 to 3. A bare perusal and pouring over of the judgments of both the Courts below would indicate and exemplify that they in unison held that the plaintiffs are having certain rights of enjoyment during certain periods and in such a case, this Court feels no hesitation in upholding the finding of the Courts below; however, granting a blanket injunction without recognising the paramount right of the defendants 1 to 3 in my opinion warrants interference. Accordingly, the substantial question of law is answered in favour of the appellants.
On balance, the Second Appeal is partly allowed by way of modifying the permanent injunction granted by the first appellate Court as under:
Plaintiffs are entitled to use the suit property during the festival and ceremonial periods reasonably and that the right of the defendants 1 to 3 over the suit property cannot be curtailed or disturbed by the plaintiffs.
No costs. Consequently, connected M.P.(MD) No.1 of 2011 is dismissed.