Madras High Court
S.Muthulakshmi vs S.Senthilselvi on 14 December, 2021
S.A(MD)No.752 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.752 of 2021
and
C.M.P(MD)No.10071 of 2021
1.S.Muthulakshmi
2.K.Kumaravel ... Appellants/Appellants/Defendants
Vs.
S.Senthilselvi ... Respondent/Respondent/plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 25.07.2019 passed
in A.S.No.21 of 2016, on the file of the Subordinate Court, Palani,
confirming the judgment and decree, dated 08.12.2015 passed in
O.S.No.35 of 2011, on the file of the District Munsif Court, Palani.
For Appellants : Mr.S.Siva Thilakar
For Respondent : Mr.A.D.Ganeshamoorthi
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S.A(MD)No.752 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.35 of
2011, by the District Munsif Court, Palani and in A.S.No.21 of 2016, by
the Subordinate Court, Palani, are being challenged in the present
Second Appeal.
2. The respondent, as plaintiff, has instituted a suit in
O.S.No.35 of 2011, on the file of the trial Court for the relief of
declaration and for permanent injunction restraining the defendants,
their men, agents, servants and persons claiming through and under
therefrom in any way interfering with the plaintiff's peaceful possession
and enjoyment of the suit properties, wherein, the present appellants
have been shown as the defendants.
3. The case of the plaintiff is that originally the suit properties
and other properties belonged to Kaliappa Gounder, Magudeeswaran,
Aruchamy, Nachimuthu and Karuppana Gounder and the plaintiff
purchased the property under sale deed, dated 18.11.1999 and also
mutated patta in her name and from the date of purchase, she was in
possession and enjoyment of the suit property. The above stated
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S.A(MD)No.752 of 2021
persons, namely, the vendors of the plaintiff, had executed a power of
attorney deed, dated 27.12.2000 in favour of one Vivekanandan, son
of Sankappa Gounder and based on the said power of attorney deed,
the said Vivekanandan sold plot numbers 78 and 79 measuring an
extent of 2655 square feet, which was sold to the plaintiff, in favour of
one Dhanalakshmi, wife of Arumugam, by way of sale deed dated
27.08.2003 and the said Dhanalakshmi had executed a power of
attorney deed in favour of one Subramani and the said Subramani had
sold the plots in favour of the first defendant 20.08.2008. The plaintiff
prayed that the power of attorney, dated 27.12.2000 executed by her
vendor in favour of Vivekanandan is not a valid one and the other
subsequent documents are also not valid. When she came to know
about the same, the plaintiff filed the suit. Pending the suit, the first
defendant sold the property to the second defendant on 23.02.2011,
which is barred by Section 52 of the Transfer of Property Act and
further, the execution of the sale deeds came to her knowledge in the
month of January, 2011 and she immediately, sent a legal notice to the
first defendant, which was refused by the first defendant. Hence, the
plaintiff, left with no other alternative remedy, has filed the suit.
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S.A(MD)No.752 of 2021
4. The second defendant filed a written statement which was
adopted by the first defendant. The defendants purchased the suit
properties only after verifying the encumbrance certificate and since no
encumbrance was found, they purchased the suit properties and in
fact, they are bonafide purchaser and that the purchasers should be
protected under law. The suit properties were sold by one
Vivekanandan by sale deed, dated 27.08.2003 in favour of one
Dhanalakshmi for valid consideration and from the date of purchase,
she had been in continuous possession and enjoyment of the suit
properties and the said Dhanalakshmi has not been arrayed as
defendant in the suit and therefore, the suit is bad for non-joinder of
necessary parties. The prayer for mere declaration of title, in the
absence of declaration to declare that the sale deeds, dated
27.08.2003, 2306.2008 and 23.02.2011 as null and void, is not
maintainable in law and prayed for dismissal of the suit.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
herself was examined as P.W.1 and Exs.A1 to A6 were marked. On the
side of the defendants, the second defendant was examined as D.W.1
and Ex.B.1 to Ex.B.3 were marked.
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S.A(MD)No.752 of 2021
6. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both the
oral and documentary evidence, has decreed the suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the defendants, as appellants, have filed an Appeal Suit in
A.S.No.21 of 2016. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, had dismissed
the appeal and confirmed the Judgment and decree passed by the trial
Court.
8. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the defendants, as appellants.
9. The learned counsel appearing for the appellants/defendants
would submit that the Judgment and Decree of the Courts below are
liable to be set aside especially when the respondent/plaintiff had failed
to seek the relief of declaration to declare that the sale deeds, dated
27.08.2003, 23.06.2008 and 23.02.2011 as null and void. The Courts
below ought to have seen that since the relief to be sought for is
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S.A(MD)No.752 of 2021
time-barred, such prayer was not sought for. The Courts below have
miserably failed to see that on the date of filing of the suit, three sale
deeds have been executed against the plaintiff and knowing fully well
about the earlier sale deed, no relief to set aside the sale deed was
sought for and on the sole ground, the suit is liable to be dismissed.
The Courts below ought to have seen that the defendants and their
vendor Dhanalakshmi are bonafide purchasers for value and therefore,
their possession should be protected under law. The Courts below
ought to have seen that the non-joinder of original vendor of the
defendants namely, Dhanalakshmi is fatal on the case on hand. The
Courts below have miserably failed to see that the patta was originally
granted in favour of Dhanalakshmi and subsequently it was cancelled
by the revenue authorities without issuing any notice to her and patta
was obtained by her belatedly behind the back of the said
Dhanalakshmi and the defendant. The Courts below have miserably
failed to appreciate the oral and documentary evidence marked on the
side of the respective parties and prayed for allowing the Second
Appeal.
10. The learned counsel appearing for the respondent / plaintiff
submitted that the Courts below, after analysing the documents
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S.A(MD)No.752 of 2021
available on record, has rightly decreed the suit in favour of the
respondent/plaintiff, in which, no interference is called for and thus
prayed for dismissing the Second Appeal.
11. Heard the learned counsel for the appellant and the learned
counsel for the respondents and also perused the records carefully.
12. On going through the materials available on record, it is seen
that the suit schedule property, which was marked as Ex.A.1, was
purchased by the plaintiff on 18.11.1999 from Kaliappa Gounder, son
of Perumal Gounder, Maheswaran, son of Kaliappa Gounder, Arichamy,
son of Karuppana Gounder, on his behalf and on behalf of his minor son
Manickam, Nachimuthu, son of Karuppana Gounder, on his behalf and
on behalf of their children viz., Jothimani, Manikandan and Mariammal
as guardian, Karuppanan, son of Karuppana Gounder, on his behalf and
on behalf of his minor son Suresh and minor daughter Kalpana. In
respect of the suit schedule property, on 21.11.2006, patta was issued
in favour of the plaintiff, which was marked as Ex.A.4. The defendants
contention was that after verifying the encumbrance certificate, they
purchased the suit properties and the suit is bad for non-joinder of
necessary parties.
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S.A(MD)No.752 of 2021
13. On a perusal of Ex.A.1-sale deed, dated 18.11.1999, it is
seen that the plaintiff has purchased the suit property for a valid
consideration and registered before the Sub-Registrar, Palani and after
selling the property, the said vendors have executed a power of
attorney, which is not a legally valid document. The defendants
submitted that when they purchased the property in the year 2011,
there was no such entry made or found in the Encumbrance Certificate
obtained by them and that is why they purchased the property based
on it and the suit also to be dismissed for non-joinder of necessary
parties. On going through the said averments that the documents
which were executed by the said vendor of the plaintiff are not valid, as
already they have sold the property originally to the plaintiff and then
possession was handed over to them. The power of attorney executed
on 27.12.2000 was not accepted as a valid one and based on the said
illegal documents, the subsequent sale deed executed by Vivekanandan
as power of attorney in favour of Dhanalakshmi, dated 27.08.2003 and
the subsequent power of attorney, dated 23.06.2008 and the sale
deeds, dated 20.08.2008 and 23.02.2011 are not valid documents.
A mere perusal of Encumbrance Certificate alone cannot be a basis for
purchase of a landed property. If the above sale was not found in the
said Encumbrance Certificate issued, the defendants ought to have
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S.A(MD)No.752 of 2021
proceeded against the said officials, who have issued such
Encumbrance Certificate and the plaintiff's right cannot be questioned
by the defendants, as the vendors of the plaintiff loses their right once
they execute a sale deed in favour of the plaintiff. With regard to
non-joinder of necessary parties, the plaintiff has filed only declaration
and permanent injunction as he has filed the suit only against the
present defendants, as they tried to interfere with the plaintiff's
peaceful possession and enjoyment. The prayer sought for is
declaration that he being the valid purchaser of the property through
the document executed by the plaintiff's vendor on 18.11.1999 itself
and the patta issued would prove that she is in possession and
enjoyment of the suit property would be sufficient, once she
establishes her title by valid documents. There need not be a question
regarding non-joinder of necessary parties, as they have already sold it
to the plaintiff. The alleged sale deed executed in favour of the
defendants predecessor is not valid, the subsequent documents also
becomes invalid and the present purchaser, who has purchased the
property during the pendency of the suit cannot now come and canvass
this point and the same has to be rejected. The plaintiff has proved the
possession by appropriate documents and the defendants have not
proved contra evidence that they are in possession and enjoyment of
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S.A(MD)No.752 of 2021
the suit property. As the suit was decreed by the trial Court and the
first Appellate Court also confirmed the same based on the facts and
documentary evidence, this Court also is in confirmity with the above
findings.
14. The question that the relief of declaration to declare the sale
deeds, dated 27.08.2003, 23.06.2008 and 23.02.2011 executed by the
vendor's of the second defendant as null and void has not been raised
or pleaded by the plaintiff is to be rejected, as it is left open to the
plaintiff to initiate appropriate proceedings before the authority
concerned once the title is declared. Dhanalakshmi, Subramani and
others are bonafide purchasers was not proved by producing any valid
evidence or document and it is found that once they purchased the
property, after sale to the plaintiff through a power of attorney, who
had no right to execute such power of attorney, the claim cannot be
accepted and to be rejected.
15.The patta was granted in favour of Dhanalakshmi and
subsequently cancelled by revenue authorities without issuing notice to
her and patta was obtained by the plaintiff behind the back of the said
Dhanalakshmi and the defendants cannot be canvassed here, as the
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S.A(MD)No.752 of 2021
revenue authorities, after holding an enquiry only, would have
cancelled the said patta issued in favour of Dhanalakshmi once they
came to know that the plaintiff is the original purchaser and there
cannot be any such claim now raised by the defendant as the said
Dhanalakshmi has not filed any suit or any other proceedings against
the plaintiff. Accordingly, this Court is not inclined to interfere with the
well considered Judgments and Decrees rendered by the trial Court as
well as the first Appellate Court.
16. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellants/defendants to interfere with the well considered judgment
and decree rendered by the Courts below and accordingly, the Second
Appeal fails and the same stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
14.12.2021
Index : Yes/No
Internet : Yes/No
ps
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S.A(MD)No.752 of 2021
V.BHAVANI SUBBAROYAN, J.
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.
To
1.The Subordinate Court,
Palani.
2.The District Munsif Court,
Palani.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.752 of 2021
14.12.2021
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