J GOWTHAM CHAND Vs. J M S PRABHU

JUDGEMENT

(1.) This appeal is filed against the order dated 05.02.2010 passed in I.A. No. 25313 of 2009 in O.S. No. 13284 of 2009 by the learned III Additional Judge, City Civil Court, Chennai, whereby the application filed under Order 39 Rule 1 and 2 of C.P.C. for interim injunction by the appellants was dismissed.

(2.) The facts which are necessary to decide the issue involved in the appeal are as follows:

(3.) Learned Senior Counsel for the appellants contended that originally the appellants have purchased 47 cents of land and subsequently with other adjacent owners, plotted out the entire extent after developing the area and the appellants were given six plots in plot Nos. 9, 10, 11, 24, 27 and 28, out of which, the 1st appellant sold plot Nos. 9, 10 and 24 and the remaining plots were in his possession and thereafter, he executed the settlement deed in favour of his wife, the 2nd appellant for the remaining plots on 13.04.2005 and thereafter, the 2nd appellant started construction in plot No. 11 after obtaining permission from the Corporation authorities. At this juncture only, the respondents/defendants had interfered in the construction claiming that there are owners of the property and the property was sold by the 1st appellant in favour of the parents of the respondents by a sale deed dated 21.04.1982. In this regard, the learned Counsel for the appellants further contended that had the property been sold to the parents in the year 1982 itself, they would have utilised the same at this length of time. But, on the contrary, the evidence on record would show that all along the property was in the possession of the appellants. Under such circumstances, the court below ought to have granted the injunction in favour of the appellants by considering the possession and enjoyment of the property with the appellants. Moreover, it is the specific case of the appellants that the sale deed dated 21st April, 1982 said to have been executed by the 1st appellant in favour of the parents of the respondents is a created document. Hence, they filed the suit for a declaration that the sale deed dated 21.04.1982 is sham and nominal. Though the defendants have denied the case of the appellants, the entire issue can be decided only on completion of the trial. But the trial court in the interlocutory application stage, traversed beyond the limit and rendered a finding on the issue involved in the main suit stating that the signature of the 1st appellant found in the sale deed dated 21.04.1982 and the signature found in the document produced by the respondents from the Registrar's Office appear to be the same and on coming to such a conclusion, the trial court has dismissed the application on a finding that the appellants have not approached the court with clean hands.