Rayar vs Shanmuga Sundaram …
2021 Latest Caselaw 11171 Mad

                                                                                               S.A.No.370 of 1998


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  Dated : 30.04.2021

                                                         CORAM:

                                    THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                                                   S.A.No.370 of 1998

                1.Rayar
                Natarajan (died)
                2.Thavamani
                3.Bhoopathy
                4.Thanga Pappu                                                              ...Appellants

                                                               vs.

                Shanmuga Sundaram                                                        … Respondents

                Prayer: Second Appeal filed under Section 100 of Code of Civil Procedure

                against the Judgment and Decree dated 01.10.1996 and made in A.S.No.29 of

                1994 on the file of the learned Subordinate Judge, Chidambaram confirming the

                Judgement and Decree dated 30.06.1994 made in O.S.No.490 of 1992 on the file

                of the District Munsif Court, Chidambaram.

                                        For Appellants     :         Mr.J.Antony Jesus

                                        For Respondent :             No appearance

                                                     JUDGMENT

This Second Appeal has been filed challenging the concurrent findings of

the Courts below.

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S.A.No.370 of 1998

2. The first Appellant is the second defendant, the second Appellant is the

mother of the first defendant and the third and fourth Appellants are the legal

representatives of the deceased Natarajan who was the third defendant in the suit

O.S.No.490 of 1992. The respondent/plaintiff filed a suit for declaration and

injunction before the District Munsiff Court, Chidambaram in O.S.No.490 of

1992 seeking for declaration that he is the owner of the property bearing old

S.No.100/2, New S.No.100/2B measuring 33 cents morefully described in the

plaint schedule and he also sought for a consequential injunction against the

defendants. The suit O.S.No.490 of 1992 was decreed in favour of the

respondent/plaintiff by the District Munsiff Court, Chidambaram by its

Judgement and Decree dated 30.06.1994. Aggrieved by the same, the defendants

in the suit as well as the mother of the first defendant preferred an appeal before

the Lower Appellate Court namely Subordinate Court, Chidambaram in

A.S.No.29 of 1994. The Lower Appellate Court by its Judgment and Decree

dated 01.10.1996 in A.S.No.29 of 1994 confirmed the findings of the Trial Court

and dismissed the appeal. Aggrieved by the same, this second appeal has been

filed by the second defendant and the the mother of the first defendant in the suit

as well as by the legal representatives of the deceased third defendant in the suit.

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S.A.No.370 of 1998

3. This Second appeal was admitted by this Court on 18.03.1998 on the

following substantial questions of law:

“1.Whether the findings of the Courts below are vitiated in erroneously considering the evidence relating to adverse possession in the absence of any specific allegation in the plaint and in the absence of any pleading with reference to Ex.A2 to A37?

2. Whether the findings of the Courts below are vitiated by its failure to consider the suit as framed is not maintainable with reference to the larger extent of land claimed especially when the title deeds produced referred to only a smaller extent?

3. Whether the Courts below is right in not considering the sale deed Ex.B2 having regard to the indisputable facts that the 3rd defendant died during the pendency of the proceedings and by virtue of Section 43 of the Transfer of Property Act?”

4. It is the case of the respondent/plaintiff as seen from the plaint that he

purchased the suit property measuring 33 cents in old S.No.100/2 and new

S.No.100/2B from his mother Logambal ammal under a registered sale deed

dated 28.11.1991 which has been marked as Ex.A1 before the Trial Court.

According to him, originally the suit property belongs to his mother Logambal

Ammal and father Chandrakasa Vandaiyar who were in possession of the same

for atleast 45 years. It is also his contention that patta for the property also stood

in the name of his mother Logambal Ammal as patta No.55. It is his case that https://www.mhc.tn.gov.in/judis/

S.A.No.370 of 1998

though patta stood in the name of Logambal Ammal, Kist was paid in the name

of Logambal Ammal and sometimes in the name of Chandrakasa Vandaiyar. It is

also pleaded in the plaint that the plaintiff and his predecessors-in-title are in

possession openly, continuously and without interruption for more than the

statutory period, as prescribed title by adverse possession. It is also pleaded that

his father is dead while his mother is living with him.

5. The respondent/plaintiff has also pleaded in the plaint that the third

defendant Natarajan is the plaintiff's maternal uncle and the second defendant

Rayan is the third defendant's son. According to the plaintiff, the first defendant

is a total stranger to the plaintiff who does not have any title over the suit

property and were never in possession of the same at any point of time. It is also

pleaded in the plaint that the defendants are colluding together and claiming

rights through invalid documents and trying to trespass into the suit schedule

property and hence, the respondent/plaintiff was constrained to file the suit for

declaration and for permanent injunction.

6. The case of the defendants in the suit is that the respondent/plaintiff is

not the owner of the suit schedule property. According to them, the suit property

originally belongs to one Kalyaniammal, wife of Thambusamy Valandaiyar who https://www.mhc.tn.gov.in/judis/

S.A.No.370 of 1998

sold the same to the third defendant Natarajan under a registered sale deed dated

02.04.1939. According to them, the third defendant also took possession of the

property and began to enjoy the same. According to the defendants, because of

the close relationship, the third defendant allowed the sons of Logambal Ammal

to assist him in the agricultural cultivation in his absence or his son. It is the case

of the defendants that the third defendant permitted his son, the second

defendant to execute a sale deed dated 25.09.1991 which was marked as Ex.B2

in favour of the first defendant. According to the defendants, right from the date

of sale deed, the first defendant is in possession and enjoyment of the suit

property as the absolute owner. It is the case of the defendants that the sale deed

dated 28.11.1991 in favour of the respondent/plaintiff by his mother and other

documents filed by them are fabricated documents.

7. Before the Trial Court, Gunasekaran who is representing his minor son

Subash, the first defendant examined himself as DW1 and he has stated that

Ex.B1 is the sale deed executed in favour of the third respondent Natrajan in the

year 1939 and that, he had purchased the suit property in the name of his son

Subash from the second respondent under a registered sale deed in the year 1992,

Ex.B2. Ex.B3 & Ex.B4 are the kist receipts and Ex.B5 is the Voters' list. One

Thiru Jayaraman has been examined as DW2 and Madhiyalagan has been https://www.mhc.tn.gov.in/judis/

S.A.No.370 of 1998

examined as DW3 by the defendants.

8. The Trial Court has also observed in its Judgment and Decree dated

30.06.1994 that the respondent/plaintiff has purchased nine cents of land out of

the suit property under Ex.A1 and the remaining 24 cents were in possession and

enjoyment of his parents continuously, as seen from the kist receipts which were

marked as Ex.A4 to Ex.A40 before the Tribunal. It has also been observed by the

Trial Court that Ex.B2, sale deed dated 29.05.1991 executed by the second

defendant in favour of the first defendant does not reveal that the said sale deed

was executed only with the permission of the third defendant. It is also observed

in the Trial Court judgment that no opportunity was given to the plaintiff by the

defendants in their cross-examination for getting any explanation from them with

regard to Ex.B2 sale deed. The Trial Court has also observed that the second

defendant has not attended the Court inspite of issuance of summons by the

Court calling upon him to adduce oral evidence. The Trial Court has held that the

respondent/plaintiff has proved through Ex.A43, Ex.A44 and Ex.A45 that he has

been residing in Poonthottam village and Ex.A2 and Ex.A3 confirms that the

respondent/plaintiff 's mother and father have been enjoying the suit property

continuously from the year 1946.

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S.A.No.370 of 1998

9. The Lower Appellate Court has also observed while dismissing the

appeal filed by the defendants that the second defendant under Ex.B2 had neither

any right nor any title to convey the property in favour of the first respondent.

More particularly, when the property so conveyed, even according to the second

defendant stands only in the name of the third defendant as can be seen from

Ex.B1 dated 22.04.1939 and that too, when the original owner was admittedly

alive. It is also observed in the Lower Appellate Court judgment that neither the

vendor under Ex.B2 that is the second defendant nor the original owner of the

property so conveyed in favour of the first defendant namely the third defendant

were examined on the side of the defendants to show that, the conveyance under

Ex.B2 dated 29.05.1991 was valid and genuine. The Lower Appellate Court has

also observed that no prudent purchaser will purchase a property by parting with

a considerable amount of sale consideration without ascertaining about the fact

in whose name the property stands. The Lower Appellate Court has also

observed that it is also not the case of the defendants that the original owner

namely the third defendant has empowered the second defendant to execute the

sale deed in favour of the first defendant. Therefore, the Lower Appellate Court

has also held that Ex.B2 sale deed executed in favour of the first defendant is not

a genuine document. The Lower Appellate Court has also observed that the

respondent/plaintiff has pleaded that he and his predecessors-in-title are in

possession of the suit property openly, continuously and without interruption for https://www.mhc.tn.gov.in/judis/

S.A.No.370 of 1998

more than the statutory period which required for adverse possession. The Lower

Appellate Court once again reiterated the Trial Court's observation by finding

out that despite the respondent/plaintiff attempted to examine the second and

third defendants as witnesses under Order XVI Rule 14 of CPC, the second and

third defendants failed to participate in the proceedings by adducing oral

evidence. The Lower Appellate Court has accepted the findings of the Trial

Court that the sale deed executed by the second defendant in favour of the first

defendant (Ex.B2) is invalid in the eye of law and Ex.B5 filed on the side of the

defendants will not in anyway strengthen their case as respondent/plaintiff has

proved his open and continuous possession of the suit property through a series

of kist receipts along with Adangal extract together with corroborative evidence

of independent witnesses.

10. Both the courts below have rightly appreciated the evidence available

on record and only thereafter has granted the relief sought for by the

respondent/plaintiff in the suit. No evidence has been adduced by the defendants

in the suit to disprove that the respondent/plaintiff and his predecessors-in-title

were not in possession of the entire suit schedule property eversince Ex.A2, sale

deed dated 11.11.1946 in favour of Logambal Ammal, the mother of the

respondent/plaintiff. Neither the second defendant nor the third defendant was https://www.mhc.tn.gov.in/judis/

S.A.No.370 of 1998

examined as witness before the Trial Court and they failed to depose, despite the

respondent's/plaintiff's best efforts to make them to depose as the notice sent by

the Trial Court under Order XVI Rule 14 of CPC to the second and third

defendants calling upon them to let in oral evidence remained unanswered,

despite the receipt of the same by the second and third defendants. The kist

receipts Ex.A4 to Ex.A40 have also been marked as Exhibits on the side of the

respondent/plaintiff to prove that the respondent/plaintiff and his predecessors-

in-title were in possession of the entire suit property eversince the date of Ex.A2

sale deed dated 11.11.1946. No contra evidence has been produced by the

Appellants/defendants before the Trial Court to disprove the contention of the

respondent/plaintiff.

11. Section 43 of the Transfer of Property Act, 1882 does not apply to the

facts of the instant case. Section 43 of the Transfer of Property Act, 1882 reads

as follows:

“43. Transfer by unauthorised person who subsequently acquires interest in property transferred.— Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any

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S.A.No.370 of 1998

interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.”

It deals with transfer by unauthorised person who subsequently acquires the

interest in any property transferred. The Appellants/defendants claim that during

the pendency of the suit, the third defendant died and the second defendant

inherited the rights of the suit property. According to them, since the second

defendant has sold the property to the first defendant under the sale deed dated

29.05.1991, section 43 gets attracted. Further according to them, even assuming

the early transfer made to the first defendant under the sale deed dated

29.05.1991 Ex.B2 by the second defendant is a fraudulent transfer, the second

defendant having acquired ownership of the suit property subsequent to the

death of the third defendant, the first defendant is entitled to hold over the same

as absolute owner. The contention of the Appellants is rejected by this Court.

12. Section 43 of the Transfer of Property Act gets attracted only when the

respondent/plaintiff had executed any sale deed in favour of the first defendant

fraudulently and thereafter acquired rights in the very same property, but in the

case on hand, it is not so. The respondent/plaintiff has not sold the property to

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S.A.No.370 of 1998

the first defendant and therefore, section 43 of the Transfer of Property Act has

no relevance for the facts of the instant case. If at all the first defendant had

contractual relationship only with the second defendant and there is absolutely

no contractual relationship with the respondent/plaintiff.

13. It has been the consistent stand of the respondent/plaintiff as seen from

the pleadings as well as from the evidence available on record that he and his

predecessors-in-title are in continuous possession and enjoyment of the entire

suit property measuring 33 cents eversince the date of sale deed Ex.A2 dated

11.11.1946. The Trial Court as well as the Lower Appellate Court has rightly

appreciated the evidence available on record and only thereafter has decreed the

suit in favour of the respondent/plaintiff.

14. Even under section 110 of the Indian Evidence Act, when the question

is whether any person is owner of anything of which he is shown to be in

possession, the burden of proving that he is not the owner is on the person who

affirms that he is not the owner. In the case on hand, the respondent/plaintiff has

produced documents in the form of kist receipts which were marked as Ex.A4 to

Ex.A40 before the Trial court to show that he and his predecessors-in-title were

in possession of the property evensince Ex.A2 sale deed dated 11.11.1946, the

burden of proving that he is not the owner is on the defendants who claim that https://www.mhc.tn.gov.in/judis/

S.A.No.370 of 1998

the respondent/plaintiff is not the owner. Ex.B3, Ex.B4 & Ex.B5 are the

documents filed by the defendants subsequent to the sale deed dated 29.05.1991

(Ex.B2) by which the first defendant claims to be the purchaser of the property

from the second defendant. Those documents do not establish that the first

defendant and his predecessors-in-title were in continuous possession and

enjoyment of the suit schedule property eversince the date of sale deed dated

22.04.1939 (Ex.B1). Having miserably failed to discharge their burden by

producing relevant documents, the Trial Court as well as the Lower Appellate

Court has rightly rejected the contentions of the defendants/Appellants.

15. The substantial questions of law formulated by this Court at the time of

admission of this second appeal are answered against the Appellants/defendants

as there is no merit in this second appeal. Accordingly, the second appeal is

dismissed. No costs.

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Index: Yes/No Internet: Yes/No Speaking order / Non-speaking order

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S.A.No.370 of 1998

To

1.The Subordinate Judge, Chidambaram

2.The District Munsif Court, Chidambaram.

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S.A.No.370 of 1998

ABDUL QUDDHOSE, J.

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S.A.No.370 of 1998

30.04.2021

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