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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.S.No. 356 of 2021
1. Mrs. G.Rajalakshmi
2. Mr.G.Karthick ...Plaintiffs
Vs.
1. Mrs.Sucharitha Madanagopal
2. Mr.H.Ramakrishnan
3. Mr.L.Kaviyarasan ...Defendants
Prayer : Petition filed under Order VII Rule 1 CPC read with Order IV Rule 1
of OS Rules, to pass a Judgment and Decree in favour of the plaintiffs:-
a) declaring that the plaintiffs are the absolute owners of the schedule
mentioned properties and grant recovery of possession in respect of 'A' 'B', 'C'
and 'D' schedule mentioned property at Plot No.26, Rathnapuri, Koyembedu,
Chennai – 600 107;
b) granting permanent injunction restraining the defendants their men,
agents, assignees servants or sub-ordinates from alienating, altering,
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demolishing and encumbering the suit properties in Schedule 'A' 'B' 'C' & 'D' at
Plot No. 26, Rathnapuri, Koyembedu, Chennai – 60 107 in any way;
c) directing the defendants to pay costs to the plaintiffs.
d) awarding costs of the suit;
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For plaintiffs: Mr. A.M.Packianathan Easter
For1st and 3rd
defendants : Mr. G.Naveeen
for Ms. E.Ezhil Caroline
For 2nd Defendant: Mr. K.Velu
ORDER
The suit had been filed by a mother and her son as plaintiffs seeking a declaration that they are the absolute owners of the suit schedule property and seeking recovery of possession. The suit schedule property is situated at Plot No.26, Rathnapuri, Koyembedu, Chennai 600 107. Recovery of possession is sought from the defendants herein.
2. The suit schedule property consisting of four separate portions. The https://www.mhc.tn.gov.in/judis 3 'A' schedule in the plaint is a residential flat in the first floor, the 'B' schedule is a residential flat in the second floor, the 'C' schedule is a residential flat in the first floor and the 'D' schedule is also a residential flat in the ground floor.
3. It was stated that the second defendant was the power of attorney agent of the first defendant by a registered power of attorney datd 23.09.2020 with respect to the 'A' schedule property. This power of attorney had been registered as Document No. 2633 of 2020 in the Office of the Sub Registrar, Anna Nagar. Separate powers of attorney had been granted with respect to 'B', 'C' and 'D' schedule properties which had been registered as Document No. 3378 of 2020, 3379 of 2020 and 3377 of 2020, all dated 05.11.2020. It was stated that the plaintiffs purchased the said four portions since they were all vacant by sale deeds which were registered on 22.04.2021 by Document No. 1844 of 2021 with respect to 'A' schedule property, by Document No. 1845/2021 with respect to 'B' schedule property, by Document No. 1846/2021 with respect to 'C' schedule property and by Document No. 1847/2021 for 'D' schedule property. The consideration determined and accepted for each one of the schedule mentioned properties were Rs.26/- lakhs, Rs.24/- lakhs, Rs.26/- lakhs and Rs.49.50 lakhs respectively. Out of the four flats, the first plaintiff https://www.mhc.tn.gov.in/judis 4 had purchased the 'C' and 'D' schedule properties and the second plaintiff / her son had purchased the 'A' and 'B' schedule properties. The plaintiffs thereafter also took possession of the said properties. The revenue records were mutated in their respective names. Electricity cards were also obtained, taxes were also paid. They became the owners of the property with right to enjoy the property.
4. It was stated that on 05.05.2021 the third defendant came to the suit property with several persons wearing white and black dress claiming themselves to be Advocates and tresspassed into the compound of the suit schedule property. When they were questioned, they threanted the persons in occupation and took possession of the suit schedule property. It was stated that thereafter, several complaints were lodged by the plaintiffs against the first and third defendants and by the third defendant against the plaintiffs and vice versa. Finally, it appears that on the basis of these complaints, FIR in Crime No. 160 of 2021 had been registered by the City Crime Branch at Chennai and in that, the second defendant had been shown as an accused and the plaintiffs were shown as witnesses for the prosecution. The basis of the complaint was that the second defendant, as power of attorney had not paid back the sale consideration received by him. In view of the fact that the plaintiffs had https://www.mhc.tn.gov.in/judis 5 purchased the properties for valuable consideration and had also in their possession the original title deeds of the properties and had also consolidated possession and title by mutating their names in all the revenue records and further claiming that they had been wrongly and illegally dispossessed, the suit had been laid for declaration of title and for recovery of possession.
5. The suit summons had been served on the first, second and third defendants. They had taken a concious decision not to appear before this Court. They were never denied the opportunity of appearing before the Court. However, for reasons best known to them, they had a decision that they would not appear before the Court and therefore, naturally they faced the only consequence of such decision being taken, namely, they were set exparte. They also did not file their written statements. It is seen from the records that counsels had entered appearance on behalf of the third defendant. But even then, the written statements were not filed.
6. A perusal of the records show that the defendants were set exparte on 23.03.2022. The plaintiffs were relegated before the learned Additional https://www.mhc.tn.gov.in/judis 6 Master No.II, to adduce oral and documentary evidence. After the, matter had been posted before this Court, after recording of evidence, it was listed on 03.08.2022. The noting of my predecessor on 03.08.2022 is extracted below:-
“Mr.G.Naveen, one of the counsel on record for the defendants 1 & 3, claims that he is a junior of Ms.E.Ezhil Caroline and Mr.J.Suresh, learned counsel for the defendants 1 & 3 and submits that he has no instructions from his senior with regard to the filing of the application and details of SR number, to set aside the exparte order etc., and he just got instructions that the said application had been filed.
2. Therefore, both Ms.E.Ezhil Caroline and Mr.J.Suresh, learned counsels for the defendants 1 & 3, are directed to appear before this Court and furnish the details of the application and SR number along with the copy of the same.
3. Post the matter on 05.08.2022.”
7. The matter was then listed on 05.08.2022. The noting of my predecessor on 05.08.2022 is extracted below:- https://www.mhc.tn.gov.in/judis 7 “As per the order of this Court dated 03.08.2022, Mr.J.Suresh, learned counsel appeared and tendered apologize on behalf of his junior since his junior made a statement that the application for setting aside the ex-parte order has already been filed and he submitted that he is going to file the application to set aside the ex-parte order and seeks some time.
2. This Court is not inclined to grant time to file application to set aside the ex-parte order and it is upto the defendants to file the application or not.
3. Post the matter on 18.08.2022.”
8. It is thus seen that atleast on two occasion representations had been made that applications have been filed to set aside the ex-parte order but as a matter of fact such application had not been filed. That representation is a direct attempt to interfere with due administration of justice. The said representations were false to the knowledge of the counsels, who made the said representations.
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9. Again today, it is represented that applications had been filed and there is a noting by the Registry that the applications had been returned on 17.08.2022. It was still informed by the learned counsel that applications had been filed to set aside ex-parte order. The noting of my predecessor on 18.08.2022 is as follows:-
“Learned counsel appearing for the defendants 1 and 3 would submit that the defendants are set ex-parte on 23.03.2022 and he has filed application to set aside the ex-parte order and seeks some time.
Post the matter on 15.09.2022.”
10. Even today, there is representation by the learned counsel claiming that applications have been filed. The learned counsels must realise that they should bring up the applications for consideration before this Court. Attempts to prevent due administeration of justice by stating that applications have been filed when applications were not actually filed and again repeating the same submissions, when the applications had actually been returned by the Registry and again making further submissions that the applications had not been https://www.mhc.tn.gov.in/judis 9 numbered by the Registry are prima facie, an attempt to, as stated earlier, to interfere with due administration of justice. I am not prepared to give any credence to such representations. The defendants will have to suffer the consequence of such false representations made before this Court.
11. Heard Mr. A.M.Packianathan Easter, learned counsel for the plaintiffs.
12. After taking the Court through the facts of the case, the learned counsel also pointed out the evidence adduced. It is seen from the records that the second plaintiff was examined as PW-1. He had also filed his proof affidavit. To substantiate that the plaintiffs were bona fide purchasers, the prior title deeds of the documents of the property had been marked as Exs. P-1 to P-4. They are all original documents now available in the Court records. The original powers of attorney in favour of the second defendant had been marked as Exs. P-5 and P-6. The plaintiffs also produced the sale deeds by which they had purchased the property and they were marked as Exs. P-10 to P-13. Again the plaintiffs have produced the original sale deeds under which they had purchased the four portions of the property. The production of the https://www.mhc.tn.gov.in/judis 10 original title deeds and the production of their own property documents establish the bona fide of the property and reflect their trust in the Court. After purchase, complaints had been given by the parties against each other. The complaints had also been filed as documents. With respect to the mutation of revenue records, Ex.P-17 is the transfer of property tax in the name of the plaintiffs and Ex.P-18 are series of original electricity cards in the name of the plaintiffs. In view of these evidence produced, I hold that the plaintiffs have made out a case for the decree of declaration of title.
13. In view of the specific case that they had been dispossessed and owing to the police complaints in this regard having been marked as Exs. P-20 to P-23, P-25, P-29, P-30, I hold tht the plaintiffs after purchase have been diligent in securing the possession of the property and after being dispossessed have been further more diligent in trying to get back possession of the property. The evidence produced is more than convincing and I therefore, without any hesitation decree the suit with costs.
14. Accordingly, the suit is decreed as prayed for with costs. Necessary steps may be taken in accordance with law to take delivery of possession of the properties mentioned in the schedule to the plaint. https://www.mhc.tn.gov.in/judis 11 15.09.2022 Index:Yes/No Web:Yes/No vsg Speaking/Non Speaking Order
1. List of Witnesses Examined on the side of the Plaintiffs:-
1. P.W.1 – Mr. G.Karthick
2. List of Exhibits Marked on the side of the Plaintiff:-
1. Ex.P1 is the original of the Doc.2670/1997 dated 07.11.1997;
2. Ex.P2 is the original of the Doc.1030/2001 dated 29.03.2001;
3. Ex.P3 is the original of the Doc.1605/2001 dated 22.05.2001;
4. Ex.P4 is the original of the Doc.982 dated 27.03.2002;
5. Ex.P5 is the original of the power of attorney in Doc.No. 2633/2020 dated 23.09.2020 in respect of “A” Schedule;
6. Ex.P6 are the series of original power of attorney in Doc.No. 3377/2020, Doc.No.3378/2020, Doc.No. 3379 dated 05.11.2020 in respect of 'B' 'C' and 'D' schedule;
7. Ex.P7 are the original photos along with CD of the suit schedule property taken on 22.02.2021;
8. Ex.P8 is the original agreement dated 10.03.202;
9. Ex.P9 is the original photographs of the entire suit schedule https://www.mhc.tn.gov.in/judis 12 property with the C.D.;
10. Ex.P10 is the original sale deed registered as Doc.No. 1844 of 2021 (schedule A) for Rs.26,00,000/- dated 22.04.2021;
11. Ex.P11 is the original sale deed registered as Doc.No. 1845/2021 (schedule B) for Rs.24,00,000/- dated 22.04.2021;
12.Ex.P12 is the original sale deed registered as Doc.No. 1846/2021 (schedule C) for Rs.26,00,000/- dated 22.04.2021;
13. Ex.P13 is the original sale deed registered as Doc.No. 1847/2021 (schedule D) for Rs.49,50,000/- dated 22.04.2021;
14.Ex.P14 is the original of the complaint given by the third defendant against the plaintiff before CCB dated 28.04.2021;
15.Ex.P15 is the original photographs dated 05.05.2021;
16.Ex.P16 is the copy of the complaint given to K11 Police Station dated 07.05.2021;
17.Ex.P17 are the series of the original transfer of the property tax in our name (3 nos);
18.Ex.P18 are the series of the original Electricity card (2 nos);
19.Ex.P19 is the true copy of the caveat notice issued by the first defendant dated 23.07.2021;
20.Ex.P20 is the certified copy of the FIR in CR.No. 160/21 filed by the third defendant dated 16.08.2021 and 02.11.2021;
21.Ex.P21 is the copy of the complaint given by the plaintiffs before C.O.P. Dated 04.09.2021;
22.Ex.P22 is the original photographs and C.D. Dated 15.09.2021;
23.Ex.P23 is the copy of the complaint dated 13.10.2021;
24.Ex.P24 is the original photographs of the notice displayed in suit property photos /CD dated 19.10.2021;
25.Ex.P25 is the copy of the complaint given by 1st plaintiff before K-11 police station dated 19.10.2021;
26.Ex.P26 is the original receipt issued by EDF-1 Ins dated 20.10.2021;
27.Ex.P27 are the series of the original notice dated 21.10.2021 https://www.mhc.tn.gov.in/judis 13 in O.S.No. 3935 /2021 (2 nos);
28. Ex.P28 is the original letter and copies of the Injunction petition (3nos) dated 25.10.2021;
29.Ex.P29 is the certified copy of the objection filed by Sub Inspector dated 25.10.2021;
30.Ex.P30 is the original receipt for the complaint given by the plaintiffs dated 26.10.2021;
31.Ex.P31 is the certified copy of the plaint copy in O.S.No. 3935/2021 dated 12.05.2021;
32.Ex.P32 is the certified copy of the order in Crl.M.P.No. 22705 of 2021 dated 01.11.2021.
15.09.2022 vsg C.V.KARTHIKEYAN, J.
Vsg https://www.mhc.tn.gov.in/judis 14 C.S.No. 356 of 2021 15.09.2022 https://www.mhc.tn.gov.in/judis