VELU Vs. RAJATHI AND ORS.

JUDGEMENT

(1.) The unsuccessful plaintiff before the courts below is the appellant in this second appeal. The Plaintiff has filed the suit in O.S. No. 81 of 2004 for bare injunction to restrain the defendants/respondents herein from interfering with his peaceful possession and enjoyment of the suit property. According to the plaintiff, in the plaint, the first defendant was the owner of the suit property having purchased the same out of her own funds on 01.05.1972. From the said date, the first defendant became owner of the suit property exclusively. The second defendant is the husband of the first defendant. The third defendant is the son of the first defendant. The plaintiff is the son-in-law of the defendants 1 and 2. While so, in order to settle the loan availed by the first defendant with Tindivanam Urban Bank to meet the marriage expenditure of her daughter, the first defendant intended to sell the suit property. The Plaintiff, after deliberations, has purchased the suit property by means of a registered sale deed dated 06.03.2003 executed by the first defendant for a valuable sale consideration of Rs. 8,00,000/-. In the said sale deed, the daughter of the first defendant, who was examined as PW2, also attested as witness. According to the plaintiff, PW2 is a lawyer besides she is the sister-in-law of the plaintiff and it is not as though she has attested the sale deed without any knowledge. From the date of such sale, the plaintiff is in peaceful possession and enjoyment of the suit property as an exclusive owner. The plaintiff also let out a portion of the suit property to the tenant and is in receipt of rental income. While so, the third defendant has filed a suit in O.S. No. 41 of 2003 on the file of Subordinate Judge, Tindivanam contending that the first defendant has no exclusive saleable right over the suit property and that the sons and daughters of the first defendant are entitled for a share in the suit property. Therefore, the third defendant has filed the suit claiming 1/4 share in the suit property. On the basis of pendency of the suit in O.S. No. 41 of 2003, it was claimed by the third defendant that the sale made in favour of the plaintiff was cancelled by means of a cancellation deed dated 18.07.2003 and that the plaintiff has no right over the suit property. The third defendant also attempted to interfere with the suit property enjoyed by the plaintiff and it was resisted by him successfully with the help of his neighbours. In those circumstances, the plaintiff has filed the present suit in O.S. No. 81 of 2004 for the relief of bare injunction.

(2.) The suit was resisted by the first defendant by filing a written statement. In the written statement, it was claimed by the first defendant that the sale deed dated 06.03.2003 was executed by her in favour of the plaintiff out of threat, coercion and intimidation. The sale deed was not executed voluntarily but she was forced to execute the sale deed in favour of the plaintiff. There was no sale consideration received by the first defendant pursuant to execution of the sale deed dated 06.03.2003. For the purpose of execution of the sale deed dated 06.03.2003, the plaintiff forcefully obtained the thumb impression of the first defendant in blank papers. Thereafter, the first defendant was taken to Madras and she was confined in the house of the plaintiff for some time. However, the first defendant escaped from the clutches of the plaintiff and came back to Tindivanam. After reaching Tindivanam, she has given a complaint to the Sub-Registrar seeking to cancel the sale deed dated 06.03.2003 executed in favour of the plaintiff. In those circumstances, the sale deed dated 06.03.2003 executed in favour of the plaintiff was duly cancelled by the first defendant by executing a deed of cancellation dated 18.07.2003. Therefore, by virtue of the deed of cancellation dated 18.07.2003, the plaintiff has no right, title or interest to deal with the suit property. It was also contended that the suit property does not belong to her exclusively and that her children also has got a right over the same. Further, possession of the suit property was never delivered to the plaintiff and therefore, the suit for bare injunction is not maintainable under law. The defendants are residing in the suit property jointly as a joint Hindu undivided family. The joint family is headed by the second defendant as Kartha. The second defendant alone has purchased the suit property from and out of the income derived by him by running a hotel business. Even though the suit property was purchased by the second defendant, out of his own funds, it was purchased in the name of the first defendant. The first defendant has no wherewithal to purchase the suit property. The first defendant has no independent source of income to purchase the suit property. Even the plaintiff has no wherewithal to purchase the suit property by paying Rs. 8,00,000/- as sale consideration. The Plaintiff has unauthorisedly occupied the suit property by threat and coercion. The Plaintiff, without filing a suit for declaration to get his right, if any, declared, has filed the present suit for bare injunction which is not maintainable under law. The first defendant therefore prayed for dismissal of the suit property.

(3.) Before the trial court, on behalf of the plaintiff, the plaintiff examined himself as PW1 and another witness as PW2, besides marking Exs. A1 to A9. On behalf of the defendants, the first defendants examined herself as DW1, besides two other witnesses as DWs 2 to 4 and Exs. B1 to B26 were marked. On appreciation of the oral and documentary evidence let in by both sides, the trial court pointed out that the sale deed dated 06.03.2003, Ex. A2 was not executed by the first defendant voluntarily and it was made to be executed by her by threat and coercion by the plaintiff. It was further held that the plaintiff had made use of the thumb impression of the first defendant obtained in blank papers for the purpose of creating the sale deed, Ex. A2. The plaintiff has not proved the passing of sale consideration in a manner known to law. The Plaintiff also did not produce the bank pass book evidencing the payment towards the sale consideration. Therefore, the trial court dismissed the suit filed by the plaintiff. The conclusion arrived at by the trial court to dismiss the suit was also affirmed by the first appellate Court in the appeal preferred by the plaintiff.