Madras High Court
S.Mohamed Vaipathan vs M.Samsu Rowther on 1 December, 2021
S.A(MD)No.283 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.283 of 2021
and
C.M.P(MD)No.3919 of 2021
S.Mohamed Vaipathan ... Appellant/Appellant/Plaintiff
Vs.
1.M.Samsu Rowther
2.S.Kadarkhan
3.S.Saleel ... Respondents/Respondents/Defendants
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 11.12.2020 passed in
A.S.No.25 of 2018, on the file of the Additional District Court, Paramakudi,
confirming the judgment and decree dated 19.02.2018 passed in O.S.No.165
of 2017 on the file of the Sub Court, Mudukulathur.
For Appellant : Mr.S.Siva Thilakar
1/16
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.165 of 2017
by the Sub Court, Mudukulathur and in A.S.No.25 of 2018 by the Additional
District Court, Paramakudi, are being challenged in the present Second
Appeal.
2. The appellant/plaintiff has instituted a suit in O.S.No.165 of 2017,
on the file of the trial Court for the relief of declaration and permanent
injunction, wherein, the present respondents have been shown as defendants.
3. In the plaint, it is averred that the defendants 2 and 3 are the
brothers and the first defendant is the father of the plaintiff. The suit
property measuring an extent of 4 cents is a vacant site. On the Western side
portion of the suit property, in two cents of land, the plaintiff's house is
situated. The said property including two cents of land, wherein his house
has been constructed as well as the vacant land belongs to him, as he
purchased the same through the money he earned from the employment he
was holding in abroad countries. The plaintiff further states that from one
Noor Mohammed, the said property was purchased on 17.12.1992 and only
for the benefit of the plaintiff, the same was purchased by his father, which
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
is in possession of the plaintiff. The plaintiff further submits that he only
went and purchased the stamp papers in his name and given it to the first
defendant and also paid the amount of consideration as well as the
registration fee to the father of the plaintiff and he left to Chennai. On the
date of the sale, the plaintiff's father clandestinely included the name of the
defendants 2 and 3 also and purchased the property. When the same was
questioned by the plaintiff, the first defendant stated that the name of the
defendants 2 and 3 have been wrongly included and he assured that the suit
property only belonged to the plaintiff and they will not have any objection
for his enjoyment of the property. On that assurance, the plaintiff did not
take further action. The plaintiff has also sub-divided the property into
Survey No.163/37 and the Revenue Authorities have issued patta No.896 in
favour of him. The plaintiff is in possession and enjoyment of the said two
cents of land and also constructed a house therein. The first defendant had
two other houses and the said vacant four cents of land are in possession and
enjoyment of the plaintiff and the defendants have no right or enjoyment of
the suit property. The said fact of plaintiff paying the amount is known to
Noor Mohammed and Samsudeen family also and in the document, dated
22.07.1993, the suit property has been shown as Northern boundary and the
said Noor Mohammed had executed the said sale deed, as the said land has
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
been purchased only the benefit of the plaintiff, on 17.12.1992 itself, the
said sale deed has been handed over to the plaintiff and when the first
defendant tried to construct a house in the vacant land, the plaintiff sent a
legal notice on 28.09.2012 against his father and two brothers viz., the
defendants. The said notice was also replied by the first defendant and the
first defendant has replied that if the suit property has been purchased by his
own earnings and he also sold a punja land and from the sale amount, he has
purchased this land are all false. The plaintiff need not purchase the property
in the name of his brothers also as the consideration has been paid by him.
The first defendant, namely, the father of the plaintiff, in order to cheat the
plaintiff has purchased the property in favour of three sons and he has tried
to construct a house and he has not stated anywhere in the defendants reply
notice and from 15.10.2012, the defendants are creating problems and trying
to construct a house in the vacant land and hence, the plaintiff has filed a
suit for declaration and permanent injunction.
4.The second defendant has filed the written statement on his behalf
and on behalf of the defendants 1 and 3 and denied all the averments and
stated that in the total 6 cents of land, in two cents of land the first defendant
had constructed a house in favour of the plaintiff and from the disputed land
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
in other four cents, the first defendant had constructed a house in favour of
the third defendant in two cents and in the remaining two cents of land
which was left as vacant, the second defendant is in possession and
enjoyment and the first defendant wanted to construct a house for the third
defendant and the same was also constructed half-way through and when the
same has yet to be completed, the plaintiff has filed a suit vexatiously and
preventing them from enjoying the suit property. The first defendant had
constructed a house in favour of the plaintiff, in which, the plaintiff is not
residing, but he is living in the in-laws house in the next street and the fact
of allegation made by the plaintiff that he has purchased the said lands
through the earning made by the plaintiff through his employment in the
foreign country are false and further submitted that only the first defendant
has purchased the property on 17.12.1992 from one Sindhu Kalangiam
Ravoothar's son Noor Mohammed and the said property was purchased only
to safe-guard the interest of three sons and the plaintiff was major at that
point of time and hence, he asked his son viz., the plaintiff to purchase the
stamp paper and in order to help the first defendant, the plaintiff has
purchased the stamp in his name and on the date of execution of the said
sale deed, the plaintiff was available in Town and he has also signed in the
said document on the date of execution.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
5. Later, it has been stated by the plaintiff that even though he was
available on that day, only after registration, he left for Chennai, was also
not substantiated by any evidence. On the day of signing the said document,
the plaintiff was available and the said statement made by the plaintiff that
the defendants have given assurance was also not substantiated by any
evidence. As the father of the plaintiff has constructed the house for the
plaintiff and the second defendant and the third defendant alone is not
having any house and the father was in the process for constructing a house
for the third defendant. The plaintiff in order to cheat them has filed this
plaint and further submitted that the plaintiff has got more properties and he
has not taken any steps to get her sister's marriage and only the parents and
the defendants 2 and 3 had spent money for the said marriage and other
expenses and the plaintiff took the said document ie., original sale deed, for
perusing and he did not return the same. After receiving the said document,
he had sent a legal notice dated 28.09.2012 ie., after 20 years and the father
has became sick and he could not move around and due to which, the
defendants 2 and 3 could not defend their case and there was an ex-parte
decree obtained by the plaintiff and later on, they have restore the same and
the said suit was considered by the Court below.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
6. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and Exs.A1 to A14 were marked. On the side of
the defendants, the second defendant was examined as D.W.1 and Exs.B.1 to
B.7 were marked.
7. On the basis of the rival pleadings on either side, the trial Court,
after framing necessary issues and after evaluating both the oral and
documentary evidence, has come to the conclusion that the plaintiff has
failed to prove that he has paid the sale consideration and the said document
through which the lands has been purchased belongs to him and the
plaintiff's claim was negatived by the Court and he was not also in
possession of the said vacant land and the relief of declaration and
permanent injunction was also rejected by the trial Court and dismissed the
suit.
8. Aggrieved by the Judgment and decree passed by the trial Court,
the plaintiff as appellant, had filed an Appeal Suit in A.S.No.25 of 2018. The
first appellate Court, after hearing both sides and upon reappraising the
evidence available on record, has dismissed the appeal, confirming the
Judgment and decree passed by the trial Court.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
9. Challenging the said concurrent Judgments and decrees passed by
the Courts below, the present second appeal has been preferred at the
instance of the plaintiff, as appellant.
10. Heard the learned counsel for the appellant and also perused the
records carefully.
11. The learned counsel appearing for the appellant / plaintiff would
submit that the Courts below ought to have seen that the appellant has paid
the sale consideration while purchasing the property under Ex.A.1-sale deed
for his benefit alone and the first respondent, who being the father has
purchased the property in the name of the respondents 2 and 3 in order to
cheat the appellant. The Courts below ought to have seen that the suit
property was purchased out of the appellant's money, patta was granted in
his name and if really the suit property was purchased in the name of the
respondents 2 and 3, the patta would also have been granted in their names,
but the patta exclusively stands in the name of the appellant and therefore
ought to have come to the conclusion that the suit property belongs to the
appellant absolutely. The Courts below ought to have seen that the appellant
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
has put up a house in the property situate on the Western side of the suit
property and he has also obtained EB service connection and house tax
receipts also stands in his name. The Courts below ought to have seen that
the respondents 2 and 3 have no manner of right, interest or title over the
suit property especially when the original sale deed of the suit property is in
the custody of the appellant.
12. The Courts below ought to have directed the appellant to file the
suit for partition instead of dismissing the suit in its entirety holding that all
the properties of the family have not been shown as suit properties. The
Courts below ought to have drawn adverse inference against the respondents
2 and 3, especially, when the first respondent has not been examined to
prove their case and further that the respondents 2 and 3 were minors at the
time of execution of sale deed under Ex.A.1 and they were not aware of the
incident took place during the relevant point of time. The Courts below have
miserably failed to appreciate the documents marked on the side of the
appellant as Ex.A.1 to Ex.A.14, which would clinchingly prove that the
appellant has proved his case. The Courts below have failed to see that the
custody of the original sale deed and the revenue records are in the custody
of the appellant and therefore, it should be presumed that the suit property
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
belongs to the appellant even though the names of the respondents 2 and 3
also found place in the sale deed and prayed for allowing the Second
Appeal.
13. On going through the averments made in the plaint, it could be
seen that the plaintiff's case is that he purchased the property through his
father by paying the consideration as well as the registration fees from his
own earnings. The documents filed by him are the evidence let in by the
plaintiff that he has paid the money was not substantiated by any
documentary evidence. The plaintiff had just deposed that he was working
as a paper boy and earned a sum of Rs.300/- per month was also not
substantiated through examining any witnesses and also the plaintiff's
statement that he has earned money by working in some foreign countries
and paying the amount to his father, through which the father had purchased
the property is also not proved by any document such as the Bank statement
or any account transfer or money transfer mode and nothing has been filed
to prove the same. The plaintiff claimed that he is the one who paid the
money and purchased the stamp paper was also not substantiated on the said
date of registration. The plaintiff's statement was contradictory in the plaint
as well in the evidence and the plaintiff has submitted that he left Chennai
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
on that date and he could not read the said document is also not acceptable.
As a prudent person, he should have been vigilant to see who are the persons
purchasing the property and after a period of 20 years, he cannot come and
say that the said property has been purchased in favour of three persons is
not acceptable and that his father has cheated him.
14. Further, the period of limitation is also to be taken into account as
the purchase is of the year 1992 and the appellant has filed the suit only in
the year 2012, which also would show that the plaintiff has not objected for
the same and only after 20 years, he tried to trouble the defendants 2 and 3,
who are the brothers, would show that if the plaintiff really had spend
money for purchasing of the suit property, he would have claimed his right
immediately as soon as he took the said document from his father and
keeping quiet for so many years and trying to trespass into the said property
wherein two, two cents have been divided among three persons and this
Court is not agreeable to the claim raised by the appellant.
15. On the side of the plaintiff, the document purchased in favour of
three sons has been marked as Ex.A1, Ex.A.2-patta, which stands in the
name of the plaintiff and Ex.A.4 to Ex.A.10 are the tax receipts issued by
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
Sayalkudi Town Panchayat also cannot be accepted to be a document to
prove his title and anybody, who has constructed a house in the two cents of
land alone would have been levied and the plaintiff could not produce any
documents to show that he is possession of all 6 cents and also that the
electricity bills and other things would prove that the plaintiff is in
possession of two cents of land, for which, alone he is entitled to and not for
the other four cents of land and the same is also rejected and the trial Court
has gone into all these aspects and has completely stated that when the
defendants have clearly stated that the plaintiff has claimed before the said
authority as if the defendants are no more and obtained patta behind their
back also would show that the said plaintiff has not shown any contra
evidence that he has not claimed patta by that manner or so would prove the
same. In the absence of any statement made by the plaintiff rebutting the
said statement of the defendants would go to show that the plaintiff has not
come to this Court with clean hands.
16. The defendants have stated that the first defendant had got plan
approval under Ex.B.4 and Ex.B.5-agreement made to the contractor namely
Mason and also other documents would prove that only for two cents of
land, the plaintiff is entitled to and regarding other four cents of land, the
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
plaintiff is not entitled to and for claiming any such prayer and it is clearly
proved by the trial Court as well as the Appellate Court that the plaintiff has
failed to prove his contribution to the purchase of the said property and this
Court is not inclined to interfere with the factual findings of the Courts
below and dismiss the claim made by the plaintiff.
17. Further, it is also seen that the Patta will not grant any title to the
property and the sale deed is of the year 1992, which has proved that the
property has been purchased by the father of the plaintiff in favour of three
sons which would negative the claim of the plaintiff and the same has not
been only based on oral evidence, but also the sale deed stands in the name
of the defendants and that claim also goes. When suit property itself consists
of six cents, wherein two cents of land has already been occupied by the
appellant and the remaining 4 cents of land which would be two, two cents
each. That being the case, in the four cents of land, the plaintiff is not even
eligible for one feet of land and the same is also negatived. No case has been
made out by the plaintiff to prove that the first Appellate Court has to frame
the issues under Order 41 Rule 31 C.P.C.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
18. For the reasons aforesaid, this Court is of the considered view that
no substantial questions of law has been made out by the appellant/plaintiff
to interfere with the well considered judgments and decrees rendered by the
Courts below and accordingly, the Second Appeal fails and the same stands
dismissed. No costs. Consequently, connected Miscellaneous Petition is
closed.
01.12.2021
Index : Yes/No
Internet : Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but, ensuring
that the copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate / litigant concerned.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
To
1.The Additional District Court,
Paramakudi.
2.The Sub Court,
Mudukulathur.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.283 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.283 of 2021
01.12.2021
https://www.mhc.tn.gov.in/judis
