Madras High Court
D.F.Selvaraja vs Rajammal on 3 December, 2021
S.A.No.187 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.02.2022
PRONOUNCED ON : 07.06.2022
CORAM
THE HON'BLE MRS.JUSTICE J.NISHA BANU
SECOND APPEAL No.187 of 2007
D.F.Selvaraja ..Appellant
/1st defendant
/1st respondent.
Vs
1.Rajammal
2.Ramamoorthy
3.Veeramuthu (died)
4.Kanagavalli (died)
5.Kanniammal (died) .. Respondents 1 to 5
/Plaintiffs/Appellants
6.The Special Tahsildar
(Land Acuisition)
Tamil Nadu Housing Board
Nandanam, Chennai-600 035 ..Respondent No.6
/2nd Respondent
7.Gomathi
8.Surya Prabha
9.Lalitha
10.Manimaran
11.Vijayalakshmi
12.Jayabharathi
13.Gowrishankar
14.Saritha
15.Vanaja
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S.A.No.187 of 2007
16.Senthilkumar .. Respondents 7 to 16
legal heirs of deceased R3, R4 and R5
[RR 7 to 10 brought on record as Lrs of the deceased R3]
[RR 11 to 14 brought on record as Lrs of the deceased R4]
(RR 15 and 16 brought on record as Lrs of the deceased R5]
– vide court order dated 03.12.2021
made in CMP.Nos.18065, 18064 and 18066 of 2021]
Prayer : Second Appeal filed under Section 100 of CPC., against the decree
and judgment dated 28.08.2006 made in A.S.No.50 of 2005 on the file of the
Subordinate Judge's Court of Poonamallee, reversing the decree and judgment
dated 05.02.2004 made in O.S.No. 177 of 1997 on the file of District Munsif
Cum Judicial Magistrate, Ambathur.
For Appellant : Mr.M.Chidambaram
For respondents : Mr.V.Raghavachari for R2
Mr.P.S.Jayakumar for R7 to R14
and R16
Mr.M.Bindran, Addl Govt.Pleader
for R6
Mr.K.Prabhakaran for R15
R1- No appearance
R3 to R5 – Died.
JUDGMENT
This Second Appeal is filed by the appellant/1st defendant in
O.S.No.177 of 1997 against the decree and judgment dated 28.08.2006 made in
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S.A.No.187 of 2007
A.S.No.50 of 2005 on the file of the Subordinate Judge's Court of
Poonamallee, whereby the First Appellate Court reversed the decree and
judgment dated 05.02.2004 made in O.S.No. 177 of 1997 on the file of District
Munsif Cum Judicial Magistrate, Ambathur.
2. At the time of admission of this Second Appeal, notice was ordered to
the respondents and order of stay of operation of decree was ordered.
3. The appellant herein is the 1st defendant in the suit in O.S.No.177 of
1997. The original plaintiff Loganathan Nayakkar @ Kollapuri Naicker died
and so amended plaint was filed bringing his legal heirs. Suit was filed for
declaration, declaring that the plaintiffs are entitled to receive the
compensation payable by the 2nd defendant-Special Tahsildar, TNHB) in
respect of the suit property acquired by the 2nd defendant and directing the 2nd
defendant to pay the compensation amount to the plaintiffs.
4. The brief facts of the Plaintiffs before the District Munsif cum Judicial
Magistrate, Ambattur, are as follows:-
(a) The suit property originally belonged to one Muthuranga Mudaliar.
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S.A.No.187 of 2007
The original plaintiff/Loganathan Naicker purchased the same from
Muthuranga Mudaliar under Sale deed dated 29.08.1951 under Document
No.2132/1951 before Sub Registrar Office, Sembiyam. According to the
plaintiff, the first defendant/D.F.Selvarajan on 31.10.1983 entered into sale
agreement and Power of Attorney with the plaintiff. On 24.10.1975 the
Government had issued G.O.R.No.266/Housing, for acquisition and it was
published on 10.11.1978 in the Government Gazette. On completion of three
years of execution of sale deed and Power of Attorney, the plaintiffs have
cancelled the sale deed and power of attorney given in favour of the first
defendant in respect of the suit property. The cancellation deed dated
03.12.1986 was registered in S.R.O.Ambattur. The plaintiffs sent notice dated
18.12.1986 to the first defendant. According to the plaintiffs, the first
defendant has not returned the original title deed relating to the suit property.
(b) The plaintiffs would submit that they are the absolute owners of the
suit property, therefore, they filed the suit for declaration of the plaintiff's title
and injunction and also to declare that since the lands have been acquired by
the 2nd defendant-Tahsildar, TNHB, the plaintiffs are entitled to receive the
compensation amount awarded by the 2nd defendant.
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S.A.No.187 of 2007
5. (a) The 1st defendant filed written statement submitting that suit filed
by the plaintiffs is not at all maintainable. Plaintiffs have no locus-standi to file
the suit since the plaintiffs have already fulfilled their rights and claims. There
is absolutely no cause of action for the suit. The acquisition proceedings were
pending from 1975 and the same is fully known to the plaintiffs and entered
into the sale agreement and subsequently, fraudulently got huge amount and
therefore, material facts were suppressed. The 1st defendant denied the
cancellation of the power deed and exchange of notice. The plaintiffs have no
right over the suit property.
(b) The 1st defendant submitted that the plaintiffs executed a Power of
Attorney in favour of the defendant and as per the agreement and power of
attorney deed, all original documents were handed over and suit possession
was handed over to this defendant and so the 1st defendant is entitled to the
property or the compensation if the Housing Board acquired the same. Since he
raised objections before the authority, the amount was deposited before the Sub
Court, Poonamallee.
(c) Further, it is submitted by the 1st defendant that the plaintiffs received
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a sum of Rs.50,000/- on the date of agreement and the balance sum of
Rs.46,000/- was also paid by the first defendant to the plaintiffs 4 and 5 after
the death of the first plaintiff and the plaintiffs 4 and 5 on receipt of the same,
agreed to withdraw the suit. But the plaintiffs failed to withdraw the suit. The
first defendant also submitted that the suit is an outcome of extracting money
and so it is a vexatious suit.
(d) In the additional written statement, the first defendant submitted that
the plaintiffs have to pay court fee for the amount awarded under the
acquisition proceedings and the court fee paid by the plaintiff is insufficient.
6. Based on the above pleadings, appropriate issues were framed by the
trial court. In order to prove the respective cases, both parties let in oral as well
as documentary evidence. On the side of the plaintiffs, P.W.1 was examined
and as many as 8 documents were exhibited. On the side of the defendants, 1
witness was examined and as many as 3 documents were exhibited. Having
considered all the above materials, the trial court dismissed the suit.
7. Aggrieved over the dismissal of the suit, the plaintiffs, viz., the legal
heirs of the original plaintiff filed A.S.No.50 of 2005 before the Subordinate
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S.A.No.187 of 2007
Judge, Poonamallee.
8. The Lower Appellate Court on going through the entire evidence and
facts, given a finding that once the Power of Attorney as well as Agreement
was cancelled by the plaintiff in favour of the 1st defendant, the first defendant
does not have any right over the property. The particular land in dispute was
already acquired by the Tamil Nadu Housing Board in the year 1975 itself,
therefore, the 1st defendant is not entitled to get agreement and execute the
power in favour of him. Further the cancellation of Power of Attorney by the
plaintiff was communicated to the 1st defendant but the first defendant has not
taken any appropriate action before the proper forum, thereby, the first
defendant is not entitled to get any share from the plaintiffs.
9. The learned Judge, has taken the view in A.S.No.50 of 2005 that based
on the Power of Attorney, the first defendant is not entitled to get any right
over the property. Since the Land acquisition proceedings were pending from
1965 onwards by the 2nd defendant-Tahsildar, TNHB, knowing fully well about
the same, the 1st defendant made agreement and Power of Attorney. While the
Land Acquisition proceedings, were pending, the first defendant is not entitled
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to get any share over the property based on the Agreement and Power of
Attorney and in such view, the the first defendant is not entitled to get any
compensation from the 2nd defendant.
10. The Lower Appellate court further held that since the plaintiff
cancelled the Power of Attorney and cancelled the agreement, the plaintiffs are
entitled to get compensation from the Special Tahsildar, TNHB. It is further
held that in respect of the agreement, 1st defendant had paid some amounts and
in that event, for return of the amounts already paid by the 1st defendant to the
plaintiffs and in such agreement, if the 1st defendant got aggrieved and wants to
seek compensation, it is open to the first defendant to take appropriate action
before the appropriate forum, but in any event the first defendant does not have
any capacity or any right over the property to claim compensation from the 2nd
defendant.
11. The lower appellate court on perusal of the records, evidences and
witnesses, held that the finding of the trial court that for all practical purposes,
based on the power of attorney and sale agreement, the first defendant is
entitled to the suit property and he is having the right to claim compensation
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and the plaintiffs handed over the possession and therefore, the plaintiffs have
no right over the property, cannot be accepted. The first appellate court,
thereby, reversed the judgment and decree of the trial court and held that the
plaintiffs are entitled to get compensation from the 2nd defendant-Tahsildar,
TNHB.
12. I have heard the learned Counsel on either side and also perused the
records carefully.
13. The following are the substantial questions of law raised by the
appellant/1st defendant in this Second Appeal:
“(a) Whether the First Appeal Decree and Judgment is valid without
framing issues?
(b) Whether the suit is maintainable without paying proper court fee for
the claim of Award amount ?
© Whether the suit is maintainable without filing the suit under Specific
Performance suit based upon Exhibit A1 (Sale agreement dated 31.10.1983) ?
(d) Whether the Principles of Promissory estopped is applicable in this
case, when the plaintiffs received the sale consideration under Exhibit B.3 ?
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(e) Whether the suit is maintainable without seeking proper relief and
without paying proper court fees? “
14. The learned counsel for the appellant/1st defendant submitted that the
first appellate court, without considering the issues and without considering the
practical procedure, reversed the judgment of the trial court and passed decree
in favour of plaintiffs which is liable to be set aside. The learned counsel raised
arguments that the entire title deeds of the property was handed over to the
appellant/1st defendant after receiving part of sale consideration amount of
Rs.50,000/- and thereafter, balance sum of Rs.46,000/- was also paid. The
receipt for the same is marked as Ex.B.3. The suit is not maintainable since the
plaintiffs have not paid proper court fee for the claim of Award amount. The
other argument is that if there is any violation of the terms and conditions of
the sale agreement, the plaintiffs ought to have filed a suit for specific
performance and the plaintiffs who filed the suit seeking to return the original
title deeds is not maintainable as the plaintiffs have not sent prior notice before
cancellation of Power Deed. Further there was no valid reason to cancel the
Power deed dated 31.10.1983/Ex.A.2. It is submitted that since entire sale
consideration is paid to the plaintiffs and the respondents 2 and 3 agreed to
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withdraw the suit, but failed to do the same, it is violation of principles of
Promissory Estoppel.
15. According to the appellant/1st defendant, even after knowing the
acquisition of the land by Tahsildar, TNHB, purposely with wanton intention,
the plaitniffs suppressed the facts and wrongly entered sale agreement with the
1st defendant. Since the plaintiffs have already given up their right, the claim
for compensation is unwarranted one. The learned counsel for the appellant,
prayed this court to restore the trial court judgment and allow this Second
Appeal.
16. The learned counsel for the respondents submitted that since the land
acquisition proceedings are pending from 1965 onwards by the 2nd defendant,
the appellant/1st defendant who made agreement and Power of Attorney in
favour of him and claiming that he is entitled to get share over the property is
not sustainable. The plaintiffs have cancelled the Power of Attorney and issued
notice to the 1st defendant. The plaintiffs/respondents are entitled to get
compensation and the First Appellate Court has correctly held that the plaintiffs
are only entitled to get compensation from the 2nd defendant-Tahsildar, TNHB
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S.A.No.187 of 2007
and the said judgment of the First Appellate Court is to be confirmed.
17. Admittedly, the plaintiffs executed the Power of Attorney in favour
of the 1st defendant/ appellant and subsequently the plaintiffs cancelled the
Power of Attorney on 03.12.1986 and the same was registered in SRO,
Ambatture, which was communicated to the 1st defendant. In respect of
cancellation of agreement and Power of Attorney dated 31.10.1983, by way of
legal notice, it was communicated by two dates viz., 18.12.1986 and
07.02.1987. Even after receipt of notice, the first defendant has not taken any
action against the plaintiffs. The suit was filed by the Plaintiffs in O.S.No.177
of 1997 and the relief sought is for declaration to declare the plaintiffs are
entitled for compensation from the 2nd defendant-Tahsildar, TNHB. The first
defendant has not disputed the cancellation of Power of Attorney and
cancellation of sale agreement. It is the case of first defendant also that the land
in dispute was already acquired by the Tamil Nadu Housing Board in the year
1975 itself and the proceedings are pending. In such circumstances, the right
over the property to claim compensation from the 2 nd defendant is only in
favour of the plaintiffs who cancelled the sale agreement and Power of
Attorney. Moreover, the 1st defendant who received notice on the cancellation
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of deeds, not given any reply and not filed any case against the plaintiffs.
18. During the course of argument, it is submitted by the counsel for
respondents that the Land Acquisition compensation was deposited in the
Court and the guideline value fixed was meagre. At present, the guideline
value is more and hence, Rs.4,024/- per square feet can be fixed as enhanced
compensation for the lands acquired by the plaintiffs.
19. The Lower Appellate court, on going through the plaint pleadings,
written statement of the defendants, evidence let in before the trial court and
the findings of the trial court, resolved the issue that the plaintiffs are entitled
to claim compensation. The said view is based on the legal scrutiny and on
appreciation of evidence. In this case, since the Sale deed and Power of
Attorney has been cancelled by the Plaintiffs on 03.12.1986 and the same has
been registered in SRO, Ambattur, which was also communicated by way of
notice to the 1st defendant and further the learned Counsel for the appellant is
not in a position to point out any material on record so as to hold the findings
of the Lower Appellate Court as perverse, the suit property which was
subjected to acquisition, then as per the Government Order, the plaintiffs alone
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are entitled to claim compensation.
20. In the light of the above discussion, at the risk of repetition, it is to be
pointed out that the second appeal has been filed by the first defendant in the
suit. Parties are described as per the nomenclature assigned to in the trial court
for the sake of clarity and convenience.
21. The suit has been filed by the plaintiffs seeking for declaration that
the plaintiffs are entitled to receive the amount of compensation which had
been deposited by the second defendant towards acquisition of the property and
that the defendants must be directed to return the original title deed to the
plaintiffs. The suit was originally filed by Loganathan Nayakkar @ Kollapuri
Naicker, after his death, his legal representatives have been added as plaintiffs
2 to 6.
22. After the death of the third defendant respondents 7 to 10 have been
brought on record as legal representative of the deceased third defendant. After
the death of fourth defendant, respondents 11 to 14 have been brought on
record as legal representatives of the deceased for the defendant. After the
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S.A.No.187 of 2007
death of the 5th defendant, respondents 15 and 16 have been brought on record
as legal representative of the deceased. It is the case of the plaintiff that they
being the title holder of the property and as the legal owner of the property,
they are entitled to receive the compensation which has been paid by the
second defendant towards acquisition of their property and it is the case of the
contesting defendants that the deceased first defendant having executed the sale
agreement as well as the power of attorney in respect of the suit property
cannot have a declaration that he is the owner of the property and that the
defendants are entitled to receive the compensation deposited by the second
defendant as they are the processory title holders of the property and therefore,
the claim of the plaintiffs must be dismissed.
23. It is an admitted fact that the title was in favour of the deceased
plaintiff and that after receiving a sum of Rs.50,000/- on the date of sale
agreement and power of attorney was also executed in favour of the defendants.
It is equally an admitted fact that the defendants failed again getting the sale
executed from the plaintiffs. Taking advantage of the failure/omission on the
part of the defendants, the plaintiffs have chosen to cancel the sale agreement
as well as power of attorney.
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24. But the fact remains that the plaintiffs have received the balance of
sale consideration of Rs.45,000/- on subsequent occasion as clearly proved by
Ex.B.3. The defendants claimed that by virtue of the part performance, they are
in possession of the property and as such though the document is not in their
name, they are entitled to receive the compensation as a lawful owner.
25. On perusal of facts of the case on the one hand and a reading of
judgment of the courts below on the other hand, in the considered opinion of
this court, in the absence of the sale deed in favour of the defendants, the issue
to be decided in the present appeal is that whether the plaintiffs are to be
considered as lawful owner or the defendant is sought to be considered as
lawful owner of the property.
26. Law is well settled that any immovable property worth more than
Rupees Hundred can be transferred only by executing a registered sale deed.
The Stamp Act and the Registration Act are in place to cover transaction of sale
in respect of the immovable property. When the defendant claims that they are
armed with sale agreement, it is the duty of the defendants to file a suit for
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specific performance based upon the sale agreement within the period of
limitation. There is no reason as to why such a step is not taken by the
defendants. In the absence of the failure on the part of the defendants to get
their valid title in favour of them by getting the sale deed executed, they cannot
claim title to the property.
27. However, it is the admitted fact that the defendants have parted with
a sum of Rs.96,000/- towards consideration for purchase of the suit property. It
is equally an admitted fact that the defendants also claim that the power of
attorney was also executed in favour of them to enable them to enjoy the
property. As it is clear that even though the title is not to the defendants,
possession had been with the defendants.
28. It is claimed by the plaintiffs that they have cancelled the sale
agreement as well as the power of attorney in favour of the defendants. But it is
no where stated by the plaintiffs that they have repaid part of sale consideration
received by them. It is not known under what circumstances, the sale agreement
was cancelled. The sale agreement itself has been executed only after the
Government initiating the process of acquisition of the suit property. Under
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such circumstances, the issue to be considered is whether equity requires that
some relief has to be granted to the defendants who have parted with money
about two decades back. So far as plaintiffs are concerned, the legal title is
vested with them and therefore, they are entitled to declaration that they are
entitled to receive the amount of compensation which had been deposited by
the Government towards acquisition of the suit property but the plaintiffs are
claiming direction to the defendants to return the original title deed which is in
the hands of the defendants. He who seeks equity must do equity.
29. The defendants were in possession of the title deeds only by virtue of
the sale agreement executed by the plaintiffs when they parted with the money
towards payment of sale consideration. Before that, the plaintiffs wanted back
the original documents on account of the delay on the part of the defendants in
getting the sale deed executed. Perhaps the defendants would have been misled
on account of the power of attorney having been executed by the plaintiffs in
favour of them. Justice, equity and good conscience requires that the plaintiffs
to pay back to the defendants before they ask for return of documents.
30. In the result, this court while confirming the finding of the Lower
Appellate Court that the plaintiffs are entitled to declaration and that they are
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entitled to receive the amount of compensation, in the interest of justice, the
plaintiffs are directed to repay the sale consideration amount of Rs.96,000/-
along with interest at 9% per annum for return of documents from the
defendants. Accordingly, the Second Appeal stands partly allowed on the
following directions:-
(i) The judgment and decree of the Lower Appellate court decreeing the
suit in O.S.No.177 of 1997 in favour of plaintiffs, is hereby confirmed.
However, the same is subject to the condition that the plaintiffs shall repay the
defendants a sum of Rs.96,000/- along with interest at 9% per annum within a
period of three months from the date of receipt of a copy of this judgment.
(ii) On such payment being made, the defendants shall hand over the title
deeds in favour of the plaintiffs.
(iii) In view of the arguments made by the learned counsel appearing for
both sides before me and not seriously pressed for the questions of law,
following the principles of law on a point and considering the facts and the
rights of parties, this Second appeal is answered. No costs. Order of stay
granted in M.P.No.1 of 2007 stands vacated.
. 06.2022
Index:Yes/No
nvsri
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S.A.No.187 of 2007
To
1.The Sub Judge, Poonamallee
2.The District Munsif Cum Judicial Magistrate, Ambathur.
3. The Section Officer, VR Section, High Court, Madras.
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S.A.No.187 of 2007
J.NISHA BANU, J.
nvsri
PRE-DELIVERY JUDGMENT IN
SECOND APPEAL No.187 of 2007
.06.2022
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