Madras High Court
C.Nagarajan (Died) vs Kalyanasundaram on 3 February, 2021
S.A.No.784 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.02.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
S.A.No.784 of 2008
1.C.Nagarajan (died)
2.Vasuki
3.N.Paramasivam
4.N.Balamurugan
5.N.Yuvaraj
6.Banurani
7.Hemalatha ... Appellants
(Appellants 2 to 7 brought on record
as LRs of the deceased sole appellant
viz., Nagaraja Iyer vide order of Court
dated 12.07.2019 made in CMP.
No.11290/2018 in S.A.No.784/2008)
Vs.
1.Kalyanasundaram
2.Muniappa
3.Gnanambal
4.Thirupurasundari
5.C.Balaiar ... Respondents
Prayer: The second appeal has been filed under Section 100 of Civil
Procedure Code against the Judgment and decree dated 24.12.2003 passed in
A.S.No.84 of 1998 on the file of the Additional District Judge, Fast Track
Court, Kancheepuram, confirming the judgment and decree dated 08.08.1995
passed in O.S.No.1217 of 1990 on the file of the Principal District Munsif
Court, Kancheepuram.
For Appellants : Mr.A.Muthukumaran
For Respondent Nos.1 & 2 : Mr.V.Balasubramanian
For Respondent Nos.3 to 5 : No appearance
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S.A.No.784 of 2008
JUDGMENT
Challenge in this second appeal is made to the Judgment and decree
dated 24.12.2003 passed in A.S.No.84 of 1998 on the file of the Additional
District Judge, Fast Track Court, Kancheepuram, confirming the judgment and
decree dated 08.08.1995 passed in O.S.No.1217 of 1990 on the file of the
Principal District Munsif Court, Kancheepuram.
2.The unsuccessful plaintiff in O.S.No.1217 of 1990 is the appellant in
this second appeal.
3.The suit has been laid by the plaintiff viz., Krishnaveni Ammal against
the defendants for the relief of declaration that the Court sale deed 30.07.1962
in favour of the first defendant is a nullity ab initio and for recovery of the
possession of the suit property from the third defendant after the demolition of
the superstructure, if any.
4.From the pleas put forth by the respective parties in the matter and
considering the judgement of the Courts below, it is seen that the suit property
originally belonged to the plaintiff and the second defendant in execution of
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S.A.No.784 of 2008
the decree obtained by him in O.S.No.148 of 1958 against the plaintiff, the suit
property was brought for auction and the first defendant was declared the Court
auction purchaser on 17.07.1962 and after the confirmation of the auction sale
by the Court, the first defendant had taken the delivery of the property through
the Court process on 06.10.1962 and subsequent thereto, the first defendant has
alienated the suit property to the third defendant.
5.The defendants resisted the plaintiff's suit, inter alia, mainly on the
point of limitation. The plaintiff by way of the suit has sought for the relief of
declaration that the Court auction sale deed dated 30.07.1962 is nullity ab
initio and the suit has come to be laid by the plaintiff on 15.06.1990.
6.From the materials available on record, both oral and documentary and
the defence version, it is found that as rightly concluded by the Courts below
that the claim of the plaintiff that she was not aware of the Court auction sale
earlier, as such, is untenable and the same has been correctly disbelieved by the
Courts below. Further more, the plaintiff has admitted in the Course of her
evidence that at the time of Court auction sale, the first defendant was a minor
and would also admit that she is not aware whether she has questioned the
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S.A.No.784 of 2008
auction sale on the footing that the first defendant was a minor. Therefore, it is
obvious that the plaintiff is aware of the Court auction, when the same took
place and despite the abovesaid position, the plaintiff has not evinced any
interest to challenge the Court auction sale within the time prescribed under
law. The contention of the plaintiff that only a paper delivery has been given
to the purchaser qua the suit property, has been rightly disbelieved by the
Courts below.
7.The materials placed on record on the part of the plaintiff would not
establish that the plaintiff has been in the lawful possession and enjoyment of
the suit property after the Court auction sale. Therefore, the Courts below are
found to be justified in holding that the plaintiff has not established the
possession of the suit property after the Court auction sale and considering the
fact that the plaintiff is aware of the Court auction sale on the date of the
auction itself and the plaintiff having laid the suit very belatedly, all put
together, it is obvious that as determined by the Courts below, the plaintiff's
suit is clearly barred by limitation. The Courts below have invoked Articles 59
and 27 of the Limitation Act and concluded that the plaintiff's suit is barred by
limitation and the abovesaid determination of the Courts below are not
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S.A.No.784 of 2008
projected to be unacceptable by the plaintiff in the second appeal.
8.In the light of the abovesaid factors, when the reliefs sought for by the
plaintiff are obviously and clearly barred by limitation as determined by the
Courts below and when no exception could be taken to the same, in such view
of the matter, in my considered opinion, no substantial question of law is
involved in this second appeal.
9.In conclusion, the Judgment and decree dated 24.12.2003 passed in
A.S.No.84 of 1998 on the file of the Additional District Judge, Fast Track
Court, Kancheepuram, confirming the judgment and decree dated 08.08.1995
passed in O.S.No.1217 of 1990 on the file of the Principal District Munsif
Court, Kancheepuram, are confirmed. Accordingly, the second appeal is
dismissed with costs. Consequently, connected miscellaneous petition, if any,
is closed.
Index : Yes/No
Internet: Yes/No 03.02.2021
sms
T.RAVINDRAN,J.
https://www.mhc.tn.gov.in/judis/
S.A.No.784 of 2008
sms
To
1.The Additional District Judge,Fast Track Court, Kancheepuram.
2.The Principal District Munsif Court, Kancheepuram,
3.The Section Officer, V.R.Section, High Court, Madras.
S.A.No.784 of 2008
03.02.2021
https://www.mhc.tn.gov.in/judis/
