Madras High Court
Vellayan vs S.Sekar on 18 February, 2021
CRP.NPD.No.4824 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2021
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP(NPD).No.4824 of 2015
and
MP.No.1 of 2015
1. Vellayan
2. Settu
3. Arjunan ... Petitioners
Vs.
S.Sekar ... Respondent
PRAYER: Civil Revision Petition filed under Section 115 of the Civil
Procedure Code, praying to allow this Civil Revision Petition and to set
aside the fair and decretal order dated 27.07.2015 made in I.A.No.1943 of
2012 in O.S.No.1045 of 2004 on the file of the Principal District Munsif,
Salem.
For Petitioners : Mr.JP.Karunakaran
For Respondent : Mr.K.Selvaraj
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CRP.NPD.No.4824 of 2015
ORDER
This Civil Revision Petition is directed as against the fair and decretal
order passed in I.A.No.1943 of 2012 in O.S.No.1045 of 2004 dated
27.07.2015 on the file of the learned Principal District Munsif, Salem,
thereby, dismissing the petition to condone the delay in filing the
application to set aside the ex-parte decree.
2. The petitioners are the defendants 2, 3 and 5 in the suit filed by the
respondent herein for declaration and permanent injunction in respect of the
suit property. The petitioners, after engaging their counsel to appear in the
suit filed by the respondent, filed a detailed written statement. Thereafter,
they came to Chennai for their avocation, to do Mason works and they are
illiterate. Thereafter, their counsel failed to appear before the trial Court and
as such, they were set ex-parte. Utilizing the set ex-parte decree, the
respondent trespassed into the suit property and forcibly took possession.
Thereafter, the petitioners also lodged a complaint before the Land
Grabbing Cell and came to understand the decree and filed a petition to set
aside the ex-parte decree, with a delay of 5 years, 11 months and 23 days.
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CRP.NPD.No.4824 of 2015
The said petition was dismissed and aggrieved by the same, the present
Civil Revision Petition is filed.
3. The learned counsel for the petitioners submitted that already the
entire suit property was decreed in favour of the petitioners vide the
partition suit filed in O.S.No.390 of 1980. Initially, the suit was dismissed
and aggrieved by the same, they filed an Appeal Suit in A.S.No.67 of 1984
and the same came to be allowed. After the decree, one of the petitioners
sold out the suit property in favour of the respondent herein suppressing the
decree passed in the said appeal suit. When the petitioners tried to sell out
the suit property utilizing the said circumstances, the respondent filed a suit
for declaration and injunction not to part with the property, which was
already decreed in favour of the petitioners herein. Therefore, the
petitioners have got very good case to succeed the suit. Though the
petitioners have filed a detailed written statement along with documents,
their counsel failed to appear before the trial Court and thereafter, they
came to Chennai for their avocation. Therefore, they are unable to pursue
the suit and set ex-parte.
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CRP.NPD.No.4824 of 2015
4. In fact, in the condone delay petition, the third petitioner was
examined as P.W.1 and Exs.P.1 - plaint and P.2 - judgment and decree in
A.S.No.67 of 1984 were marked. The Court below without considering the
said exhibits marked by the petitioners and by observing that the reasons
adduced by the petitioners in the condone delay petition are not sufficient to
condone the enormous delay of more than 5 years, dismissed the same.
Whereas the petitioners' case is that the decree itself was obtained on fraud,
by the respondent. Based on the fabricated sale deed and only to grab the
property, the respondent has filed a suit and obtained a decree in their
favour. Therefore, the petitioners have got very good case to succeed before
the trial Court.
5. Per contra, the learned counsel appearing for the respondent
submitted that the description of the property in O.S.No.390 of 1980 and the
suit filed by the respondent is completely different one in the total extent of
3 acres and 82 cents comprised in S.No.168/2 ad-measuring 3,375 sq.ft in
Door.No.10/92. Whereas the description of the property mentioned in the
suit filed by the petitioners was the land ad-measuring 3.82 acres comprised
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CRP.NPD.No.4824 of 2015
in S.No.168/2, for the house at Door.No.10/898 new Door No.142.
Therefore, the description of the property is also differs and the suit filed by
the respondent is maintainable. He further submitted that there is a delay of
5 years 11 months and 23 days. In the affidavit filed in support of the
condone the delay petition, the petitioners themselves have categorically
admitted that they are able to contact their counsel in the month of January
2007 and thereafter, they came to understand that the suit was decreed
against them. Even then, they did not prefer any petition to set aside the ex-
parte decree from the date of knowledge. Thereafter, that too after a period
of 5 years viz., on 24.09.2012, only they filed a petition to set aside the ex-
parte decree with a delay of 5 years 11 months and 23 days. They did not
state any sufficient reason to condone the enormous delay.
6. He further submitted that in the suit, the sale deed executed in his
favour was marked as Ex.A.1 and the settlement deed executed in his favour
was marked as Ex.A2. Thereafter, after the sale deed, the respondent was
issued with Patta and Chitta. Thereafter, the respondent was also paid
house-tax and other revenue dues, in respect of the suit property. After
considering those documents, the Court below decreed the suit in his
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CRP.NPD.No.4824 of 2015
favour. Therefore, the Court below rightly dismissed the petition and it does
not warrant any interference from this Court.
7. Heard the learned counsel for the petitioners as well as the learned
counsel appearing for the respondent.
8. The petitioners are the defendants 2, 3 and 5 in the suit filed by the
respondent for declaration and permanent injunction, in respect of the suit
property comprised in S.No.168/2 from the total extent of 3 acres 82 cents
ad-measuring 3,375 sq.ft, a house at Door No.10/92. After filing the written
statement, the petitioners failed to appear before the trial Court and
therefore, they were set ex-parte.
9. The learned counsel for the petitioners submitted that in respect of
the suit property there was already a decree in their favour in the appeal suit
in A.S.No.67/1984 on the file of the II Additional District Judge, Salem.
The Appellate Court categorically stated that the settlement deed dated
15.07.1976 executed in favour of one Raju was declared as void and the
entire suit property was decreed in favour of the petitioners herein. The
relevant portion of the judgment made in the Appeal Suit in A.S.No.67 of
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CRP.NPD.No.4824 of 2015
1984 as follows:-
“19. Now Raju who is the son of Tholan by his second
wife chinnakkal has laid that suit with reference to to the
property covered by Ex.67 namely to an area measuring
about 50 feet east west and 67 feet north south. I have
already held that the settler Tholan had no title to the
property in as much as the property belonged to
ponniyammal. At best he will be only a co-owner entitled to a
fragmental share in the property. Therefore he had no right
to dispose of the entire property by executing a settlement
deed. Hence it follows that on the basis of Ex.B5 the
settlement deed dated 157.07.1976. the plaintiff in
O.S.No.665/7 cannot claim any relief, namely, for declaration
or recovery possession.
20. As regards the plaintiff in O.S.No.579/83 in as
much as I have held that the property was purchased by
ponniammal for herself and that the case of benami is not
true, it follows that his vendor Tholan had no right to convey
any portion of property absolutely and at best the vendor had
only a fragmental share in the property. Therefore it follows
that the plaintiff in O.S.No.57/83 cannot claim title to the suit
property. Of-course he has has laid the suit only for
injunction, but he has claimed the injunction on the basis that
he is the owner. He has claimed the injunction against the
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CRP.NPD.No.4824 of 2015
owners of the property. Therefore the cause of action for the
plaintiff in O.S.No.57/83 is based upon title to the property
namely, the sale deed dated 04.03.1976 which has been
marked as Ex.B.27 in as such as the cause of action of the suit
is alleged to the purchase on the basis of which injunction is
sought for and inasmuch as it follows that the vendor had no
title it is but consequent that his suits for injunction should be
dismissed. More so when at her and he is only purchaser
from co-sharers. Now coming to the case of the plaintiffs in
O.S.No.390/80 they have filed the suit for declaration and
recovery of possession since I have held that the properties
belonging to the ponniammal as the children of Ponniyammal
they are entitled to the property as heirs to the extent of their
shares. It is also clear that they have been in possession
jointly of the suit properties, succession to the property
opened in 1958 when ponniyammal died. The husband
Tholan is entitled to a share in the property. In view of the
sale deed and settlement deed cannot say that he died
intestate its urged that chinnakkal is the legally wedded wife
of Tholan is not satisfactorily established. For according to
the plaintiffs in O.S.No.390/80 chinnakkal was only a kept
mistress or concubine of Tholan. But at the same time it has
to be stated that Tholan has treated Chinnakkal as his second
wife and legally wedded wife in the mortgage deed executed
by him along with Chinnakkal and in the settlement deed
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CRP.NPD.No.4824 of 2015
executed by him in the favour of the plaintiff in
O.S.No.665/79. Inasmuch as Tholan was entitled to a share in
the property and he died intestate in 1977 his share in the
properties will be devolve on his children by his first and
second wife Chinnakkal. Therefore, the remedy of the
plaintiff's in O.S.No.390/80 is to file a regular suit for
partition and separate possession. Ex.B5 and B.27 are valid
only to the extent of Tholan share in the property. Therefore
their claim for recovery of possession cannot be granted in
this case. More so when we find that all the necessary parties
are not before this Court. Therefore the plaintiffs can be
grants only declaration of their title to the extent of their
shares in the property. All the relief sought for can be urged
only in a suit for partition by impleading all the necessary
parties. In such circumstances I hold that the plaintiffs in
O.S.No.390/80 are entitled to 3/7th shares in the property to
the extent the plaintiffs are entitled to be declaration.
21. In the result, this appeal is allowed with costs. The
judgment and decree of the trial Court are set aside. There
will be a declaration in favour of the plaintiffs that they are
together entitled to their 3/7th shares in the properties. The
relief possession is negative. The plaintiffs are at liberty to
file a regular suit for partition and recovery of possession of
their shares in the properties with past and future profits.”
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CRP.NPD.No.4824 of 2015
10. While being so, the said Raju sold out the suit schedule property
by the sale deed dated 22.11.2000 in favour of the respondent herein. In
pursuant to the sale deed, the revenue records were mutated in the name of
the respondent herein. On the strength of the sale deed and also other
revenue documents, he filed a suit for declaration and permanent injunction
against the petitioners and others. The petitioners have filed their written
statements and stated all the facts in respect of the appeal suit in A.S.No.67
of 1984 decreed in their favour with regard to the suit property. Thereby,
questioning the very title of the suit property itself, since the vendor of the
respondent has no title over the suit property. The settlement deed dated
15.07.1976 itself was become void by the decree passed the appeal suit in
A.S.No.67 of 1984. Thereafter, the petitioners shited to Chennai for their
avocation and they could not able to instruct their counsel properly to
appear before the trial Court. Therefore, they were set ex-parte and the ex-
parte decree was passed in favour of the respondent herein.
11. On a perusal of the affidavit filed in support of the condone delay
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CRP.NPD.No.4824 of 2015
petition, the petitioners have stated that they belonged to Boyar community
and they are doing basement construction works, on daily wage basis. For
their livelihood they shifted to Chennai and stayed for years together and as
such, they could not be able to contact their counsel. In fact, they contacted
their counsel in the year 2007 and the counsel informed them that already
the suit property was decreed in their favour and as such, the respondents
had no valid title. Therefore, they failed to take any steps to set aside the
ex-parte decree. Thereafter, in the month of August 2012, the respondent
trespassed into the suit property and only thereafter, the petitioners came to
understand that the suit was decreed ex-parte. Thereafter, they have filed a
complaint and a petition to set aside the ex-parte decree with a delay of 5
years 11 months 23 days. Though the petitioners did not state sufficient
reasons for the delay caused in filing the petition to set aside the ex-parte
decree, they already obtained the decree in respect of the suit property in
A.S.No.67 of 1984. On a perusal of the description of property mentioned in
the appeal suit in A.S.No.67 of 1984 and in the present suit in O.S.No.1045
of 2004, the total extent conveys the same property in which the respondent
purchased only a portion of the total extent of 3,375 sq.ft. Therefore, both
are the same property. This Court is of the view that the petitioners have got
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CRP.NPD.No.4824 of 2015
very good case to defend the suit filed by the respondents.
12. In view of the above discussion, this Civil Revision Petition is
allowed and the order passed in I.A.No.1943 of 2012 in O.S.No.1045 of
2004 dated 27.07.2015 is set aside. The trial Court is directed to dispose the
suit within a period of three months from the date of receipt of a copy of
this order, subject to the cost of Rs.5,000/- payable by the petitioners to the
respondent within a period of two weeks from the date of receipt of a copy
of this order, failing which, the order will stand automatically dismissed. It
is made clear that any of the observations made by this Court in this order
should not affect the trial Court, in disposing of the suit. Consequently, the
connected Miscellaneous Petition is closed.
18.02.2021
Speaking/Non-speaking order
Index : Yes/No
kv
To
The Principal District Munsif Judge, Salem.
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CRP.NPD.No.4824 of 2015
G.K.ILANTHIRAIYAN,J.
kv
CRP(NPD).No.4824 of 2015
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CRP.NPD.No.4824 of 2015
18.02.2021
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