CRP/2428/2011 of D.MUTHUKRISHNAN Vs MRS P.KANNAMMAL on 8 September 2026

COMMON ORDER

The Second Appeal has been specifically ordered to be taken up by me along with the above revision petitions.

2. I have heard Mr.V.Prakash, learned Senior Counsel for Mr.K.Sudalikannu, learned counsel for the revision petitioners and appellant in the Second Appeal and Mr.P.G.Thiyagu, leaned counsel for the respondents 1 to 3, 5 and 6 in the revisions as well the Second Appeal.

3. The contention of the learned Senior Counsel Mr.V.Prakash, is that though the Trial Court dismissed the suit, the First Appellate Court relying on additional documents that were produced pending the First Appeal has proceeded to overturn the well considered findings of the Trial Court, by allowing the Appeal and thereby decreeing the suit. Mr.Prakash, learned Senior Counsel would first state that the suit is one admittedly for permanent injunction and in fact, the Trial Court has rendered a clear finding that in the absence of declaration, the plaintiff/respondent was not entitled to merely seek for relief of permanent injunction.

4. It is also his contention that the First Appellate Court ought to have followed the mandate of Order 41 Rule 28 CPC, in the event of deciding to entertain the additional documents that were sought to be produced, by providing an opportunity to the appellants to cross examine the plaintiffs, with regard to the said additional documents. The learned Senior Counsel would therefore state that the Second Appeal would have to be necessarily allowed and the matter be remitted to the Court below, for giving fair opportunity to the appellants/revision petitioners.

5. Insofar as the revision petitions, Mr.V.Prakash, learned Senior Counsel for the petitioners would state that the said revision petitions are filed challenging the order passed in the Application filed under Order 41 Rule 27

CPC, pending First Appeal and these revisions will have to be allowed since the First Appellate Court has decided to receive the additional documents while disposing of the First Appeal denying an opportunity to the petitioners to cross examine or contest the said additional documents in a manner known to law.

6. Per contra, Mr.P.G.Thiyagu, learned counsel for the respondents would state that the revision petitions have become infructuous as the orders in the Interlocutory Applications have stood merged with the final judgment passed by the First Appellate Court. He would further state that the suit for injunction was not based on any right for partition but claiming right under one Chinnammal, wife of Madurai Naicker, who was admittedly father of both branches, under whom the appellants and the respondents are presently claiming. He would therefore state that no substantial question of law arises for consideration in the Second Appeal and prays for dismissal of the Second Appeal as well as the revision petitions.

7. I have carefully considered the submissions advanced by the learned counsel for the appellants/petitioners and the learned counsel for the respondents in the Second Appeal as well as the revision petitions.

8. The Second Appeal was admitted by this Court on 19.01.2011, the following substantial questions of law:

(i) Whether the Appellate Court was right in granting injunction in favour of the co-sharer against another co-sharer in the absence of any material evidence in a family arrangement?

(ii) Whether the lower appellate Court was right in granting the relief of injunction when the respondents/plaintiffs are not able to prove their possession?

9. At the outset, as discussed herein above, the suit filed by the respondents was for a bare relief of permanent injunction, to restrain the defendants/appellants from in any manner interfering with the peaceful possession and enjoyment of the suit property, by the plaintiffs. Even in the plaint, the plaintiffs claimed that Chinnammal, their paternal grandmother had settled the property under a registered settlement deed dated 05.10.1963 in favour of the father of the plaintiffs. However, the said document has not been exhibited before the Trial Court. In fact, as pointed out by Mr.V.Prakash, learned Senior Counsel, during the course of examination of P.W.1, he himself has stated that Chinnammal, died in or about 1955/1956, which would straight away render the execution of registration of the settlement deed by her in 1963 impossible. Be that as it may, the said settlement deed has not been admitted by the petitioners/appellants and according to them, the property is joint property, in which, the defendant's father was also entitled to a legitimate share.

10. The Trial Court after assessing the oral and documentary evidence found that the suit for permanent injunction, without seeking any declaration, when the defendants had set up a cloud on the title of the plaintiffs, was not maintainable. The Trial Court proceeded to dismiss the suit. Pending the First Appeal, the plaintiffs sought for filing of the death certificate of Chinnammal, as well as settlement deed executed by her in favour of the father of the plaintiffs dated 05.10.1963. The said documents have been factored by the First Appellate Court and have been the prime reason for overturning the findings of the Trial Court. Admittedly, the Application filed in CMP. No.17 of 2010, under Order 41 Rule 27 CPC has been disposed of only along with the appeal. Though the First Appellate Court may not have fell in error in holding that the documents that are sought to be produced by way of additional evidence would aid the Court in deciding the suit, however, the First Appellate Court failed to notice the mandatory requirements of Rule 28 of Order 41 CPC. If the Court is intending to allow the additional evidence to come on record, then the First Appellate Court can only permit the additional evidence to be produced by taking evidence before the Appellate Court itself or by directing the Trial Court to record evidence and send it back to the Appellate Court. This procedure has admittedly not been complied with. As rightly pointed out by Mr.V.Prakash, learned Senior Counsel, the petitioners/appellants have been denied an opportunity to contest the additional documents that were permitted to be received.

11. I do not find any merit in the submissions of the learned counsel for the respondents that the order passed in the Order 41 Rule 27 Application, has merged with the judgment in the First Appeal and therefore, the revisions are not maintainable. The order passed under Order 41 Rule 27 CPC, is certainly revisable by filing a proper revision petition before this Court and rightly, the revisions were directed to be heard along with Second Appeal as well.

12. Since the First Appellate Court has committed an error in not following the mandate of Rule 28 Order 41 CPC, I am inclined to allow the Second Appeal as well as the revision petitions and remit the matter to the First Appellate Court. In fact, the documents being a Death Certificate and Registered settlement deed, I do not see why they should not be received as additional evidence, though the plaintiffs have not produced the document at the time of trial.

13. The Appellate Court can therefore permit additional documents to be received, if it requires the said documents to pronounce judgment or for any other substantial cause. Therefore, even assuming the plaintiffs were attempting to fill up the lacunae, the only bone of contention that would remain is as to whether the settlement deed was in fact executed by Chinnammal, during her lifetime, especially since the plaintiffs' witness claimed that Chinnammal died about 6 or 7 years prior to the date of the settlement deed. In such circumstances, a fair opportunity should be given to the appellants to contest the said additional documents.

14. In the light of the above, the Second Appeal and Revision Petitions are allowed and the matter is remitted to to the First Appellate Court, with the following direction:- The additional documents viz., the death certificate and the settlement deed shall be marked through any of the plaintiffs' witnesses and appellants shall be afforded a fair opportunity to cross examine the said witness with specific reference to the additional documents and thereafter, it shall also be open to the appellants/defendants to lead any independent evidence on their side to establish their case that Chinnammal was not alive on the date of settlement

P.B.BALAJI.J deed or that the settlement deed is forged or fabricated documents as they may be advised, the First Appellate Court shall ensure that the additional evidence, the Clauses of recording evidence is concluded within a period of three (3) months from the date of receipt of the copy of the order and thereafter, shall hear fresh arguments on both sides and dispose of the First Appeal on merits and in accordance with law, taking into account the additional evidence adduced by the parties within a period of six weeks thereafter. No costs. Consequently, connected Miscellaneous Petitions are closed.

08-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No RKP To

1. The Additional District Judge (Fast Track IV), Chennai.

2. XI Assistant City Civil Court, Chennai.

AND CRP NO. 2429 OF 2011, SA NO. 850 OF 2011