E. CHANDRASEKAR Vs. V. NADAMUNI

JUDGEMENT

(1.) The plaintiffs in the original suit are the appellants in the Second Appeal. The suit was filed for bare injunction based on the plea that all the suit properties were the properties allotted to one Krishnamurthy, the brother of the first respondent, under a registered partition deed dated 20.04.1978 and that part of the suit properties had been conveyed to the first appellant/first plaintiff under the sale deed dated 30.05.2008 and the second appellant/second plaintiff had got a general power of attorney from the legal heirs of the said Krishnamurthy, as the said Krishnamurthy is no more. Based on the sale deed dated 30.05.2008 and general power of attorney dated 29.05.2008, the appellants/plaintiffs claimed to be in possession of the suit properties and pleaded for the relief of permanent injunction against the first defendant who is none other than the brother of Krishnamurthy and the defendants 2 to 4 who are the sons of the first defendant, on the premise that they were making attempts to trespass into the suit properties. The suit was resisted by the defendants contending that no deed of partition between the first defendant and his brother Krishnamurthy, as pleaded by the appellants/plaintiffs ever came into existence. The further plea of the respondents/defendants was that the document referred to by the appellants/plaintiffs as partition deed was only a sham and nominal deed created by the first respondent/first defendant for the purpose of securing a job to his brother Krishnamurthy in the Sugar Mills. It was also contended that all the suit properties were in possession and enjoyment of the respondents/defendants and they continued to enjoy the same. Based on the said averments, they had pleaded for the dismissal of the suit. The respondents/defendants had also taken a plea that the sale deed and the general power of attorney relied on by the appellants/plaintiffs could not be true and valid, since according to them, Kannan son of the deceased Krishnamurthy was not possessing sound disposing state of mind for several years. The further plea of defence taken by the respondents/defendants was that the suit in respect of portions of the suit property, which had not been purchased by the appellants and portions regarding which the second appellant was claiming to be in possession by virtue of the deed of power of attorney executed by the legal heirs of Krishnamurthy and the very framing of the suit without showing him as representing his principals, was not proper and on that ground also, the maintainability of the suit could be negatived.

(2.) The learned trial Judge after trial dismissed the suit. Besides other findings, the learned trial Judge, in order to non suit the plaintiffs, accepted the plea of the respondents/defendants that no partition took place under the registered partition deed dated 20.04.1978 and that only if the appellants/plaintiffs were able to establish their title in respect of the property, the court could decide whether the plaintiffs had right over the entire property or not. Based on the said reasoning alone the learned trial Judge chose to hold that the appellants/plaintiffs had not proved their possession, for negativing the relief of injunction sought for.

(3.) On appeal the learned first Appellate Judge, concurred with the said findings and dismissed the appeal. Now the appellants/plaintiffs have brought this second appeal before this court. It transpires items a, b & c of the plaint schedule properties were claimed to be purchased under the sale deed dated 30.05,2008 and during the pendency of the suit the remaining items namely, "d" and "e" were also purchased by the appellants/plaintiffs. Though the appellants/plaintiffs could pursue the remedy for permanent injunction based on their alleged possession pursuant to the sale deed dated 30.05.2008 and the deed of power of Attorney dated 29.05.2008, they can also plead the subsequent conveyance of items "d" and "e" also in their favour. The technical flaw regarding the maintainability of the suit since the second appellant had not been described to be representing his principals under the above said deed of power of Attorney and since the courts below have also accepted the plea of the respondents/defendants that no partition took place under the partition deed dated 20.04.1978 and that unless the title of the appellant/plaintiff is established it would be difficult for them to prove their possession as the reasons for non-suiting the appellants herein/plaintiffs, they have now filed M.P. No. 2 of 2012 under Order 23 Rule 1 of CPC seeking the leave of the Court to withdraw the suit with liberty to institute a comprehensive suit for the establishment of their title to the suit properties and for necessary consequential reliefs. The respondents have filed their counter raising objection for the grant of such leave contending that the appellants/plaintiffs have not made out a case that there is any technical defect on account of which alone the appellants/plaintiffs are bound to fail.