Madras High Court
Murali ...2Nd Defendant/ vs Razia John (Died) on 19 July, 2021
S.A.No.1491 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1491 2008
and
M.P.No.1 of 2008
Murali ...2nd defendant/Appellant/
Appellant
Vs.
1.Razia John (died)
2.Khaja Sheriff
3.Sirajudeen
4.John Basha
5.Noor Banu ...Plaintiffs/Respondents 1 to 5/
Respondents 1 to 5
6.Noor Jahan
7.Dowlat Bee
8.Alavudeen Basha ...Defendants 1, 3 and 4/
Respondents 6 to 8/
Respondents 6 to 8/
(Respondents 2 to 5 are legal representatives of the deceased R1 vide
Court order dated 20.04.2021 made in S.A.N.1491 of 2008 in Memo
SR.1992 dated 04.03.2014 by PTAJ)
1/10
https://www.mhc.tn.gov.in/judis/
S.A.No.1491 of 2008
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 24.10.2007 in
A.S.No.12 of 2007 on the file of the learned Additional Subordinate
Judge, Salem confirming the Judgment and Decree dated 15.09.2006 in
O.S.No1163 of 2004 on the file of the learned II Additional District
Munsif, Salem.
For Appellant : Mr.D. Shivakumaran
For Respondents : Mr.T.M.Hariharan
for Mr.K.Balaji
for R2 to R5
R6-Served – No appearance
R1-died
Not ready in notice
regarding R7 and R8
JUDGMENT
The 2nd defendant is the appellant before this Court. The Second
Appeal arises against the Judgment and Decree in A.S.No.12 of 2007
on the file of the learned Additional Subordinate Judge, Salem,
confirming the Judgment and Decree of the learned II Additional
District Munsif, Salem, in O.S.No.1163 of 2004 which was originally
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S.A.No.1491 of 2008
filed before the learned Subordinate Judge, Salem and registered as
O.S.No.333 of 2003. The parties are referred to in the same ranking as
in the Plaint.
The facts in brief which are necessary for disposing of the above
Second Appeal are as follows:
2.The plaintiffs/respondents 1 to 5 herein had filed the above suit
for a declaration of their title to the suit property, for recovery of
possession and for permanent injunction, restraining the defendants
from creating any encumbrance over the suit property. It was the case
of the respondents 1 to 5 that the suit property was purchased by one
N.D. Usman Baig under two Sale Deeds in 1935. The said Usman
Baig had four sons and three daughters. He died intestate leaving
behind him his widow, his four sons and four daughters. After the
death of Usman Baig, his two sons Karim Baig and Anwar Baig and his
three daughters have released their rights in all the properties of Usman
Baig under a registered Release Deed dated 15.02.1960 in favour of the
other two sons, namely, Ahamed Sheriff and Rahim Baig.
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S.A.No.1491 of 2008
3.It was the case of the plaintiffs that Ahamed Sheriff had
occupied the suit property and converted the thatched shed into a tiled
house. His brother Rahim Baig did not raise any objection. On
19.10.1972, Ahamed Sheriff and Rahim Baig had partitioned the
property. The suit property is situate on the Northern extremity to the
portion allotted to the 1st defendant who was the daughter of Anwar
Baig, the brother of Ahamed Sheriff. The plaintiffs are the legal
representatives of Ahamed Sheriff. After the death of the 1st
defendant's father Anwar Baig, since there was no one to look after her
she requested permission to live in the suit tiled house. The 1st
plaintiff's husband Ahamed Sheriff permitted her to live in the suit
property. After the death of Ahamed Sheriff on 08.03.1983 the
respondents 1 to 5 became the absolute owners of the property.
4.Since the plaintiffs were not very happy with the activities of
the 1st defendant they asked her to vacate the suit property and it was
only then that they came to know that the 1st defendant had created a
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S.A.No.1491 of 2008
sham and nominal Sale Deed in favour of the 2nd defendant under a
false power of attorney said to have been executed by Ahamed Sheriff
in the year 1989. On 19.08.1989, a Varthamana Letter is said to have
been executed by the Ahamed Sheriff. This appears to be a fabricated
document. In fact, the sale in favour of the 2nd defendant has been
created after the death of Ahamed Sheriff. Therefore, the Sale Deed is
not valid in law and not binding on the respondents 1 to 5/plaintiffs.
When the plaintiffs were out of station the 2nd defendant occupied the
house and the 1st defendant had left the house. Hence, the plaintiff has
filed the suit for the reliefs as stated above.
5.The 1st defendant had denied the averments contained in the
Plaint and would contend that it was her father who was in possession
of the suit property and it is only the other properties which were
divided between Ahamed Sheriff and Rahim Baig. She would state
that after her father's death, she is in possession and enjoyment of the
suit property. The said Ahamed Sheriff had executed a Power of
Attorney in her favour at the instance of some Mediators and given her
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S.A.No.1491 of 2008
all rights to the suit property and on the very same day, had executed a
Varthamanam Letter whereby he has given up his right in the suit
property.
6.By reasons of these two documents, the 1st defendant has
become the owner of the property and therefore, she had sold the same
to the 2nd defendant/appellant herein. The Varthamanam Letter had
been acted upon on the basis of which the revenue records have also
been mutated in favour of the 2nd defendant.
7.The 2nd defendant had filed a Written Statement more or less
adopting the stand taken by the 1st defendant.
8.The 1st plaintiff was examined as P.W.1 and she had marked
Ex.A.1 to Ex.A.10 in support of her case. On the side of the
defendants, the 2nd defendant was examined as D.W.1 and one Ayyanar
as DW2 and the General Power of Attorney and Varthamanam Letter
said to have been executed in favour of the 1st defendant was marked as
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S.A.No.1491 of 2008
Ex.B.1 and Ex.B.2. The learned II Additional District Munsif, Salem
on considering the evidence on record had decreed the suit. Aggrieved
by the said Judgment and Decree, the 2nd defendant alone had filed
A.S.No.12 of 2007 on the file of the learned Subordinate Judge, Salem.
The learned Subordinate Judge also dismissed the appeal confirming
the Judgment and Decree of the trial Court. Challenging the same, the
appellant is before this Court.
9.The Second Appeal has not been admitted.
10.Heard the learned counsel appearing on either side and
perused the records.
11.The 2nd defendant and his vendor, namely, 1st defendant
claims a right to the property on the basis of Varthamanam Letter and a
General Power of Attorney. The Original of the documents have not
been produced before the Court. That apart, the Varthamanam Letter
which appears to confer title on the 1st defendant is an unregistered
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S.A.No.1491 of 2008
document. Therefore, the same cannot be looked into for any purpose.
That apart, the suit properties and other properties had been given to
the share of Ahamed Sheriff and Rahim Baig by virtue of a registered
Release Deed dated 15.02.1960 executed by the wife and the other
children of Usman Baig, the original owner of the property. This
included the father of the 1st defendant. Therefore, the property in
question only belonged to the two of them, namely, Ahamed Sheriff
and Rahim Baig. Thereafter, in a partition between them, on
19.10.1972, the suit fell to the share of Ahamed Sheriff under whom
the plaintiffs claim a right.
12.That apart, the Sale Deed executed in favour of the 2nd
defendant is of the year 1995, nearly two years after the death of
Ahamed Sheriff and the sale has been created on the basis of the Power
of Attorney said to have been executed by Ahamed Sheriff in favour of
the 1st defendant. The Sale Deed in favour of the 2nd defendant has not
been produced. The sale has been executed by a Power Agent after the
death of the Principal. The Courts below have rightly considered the
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S.A.No.1491 of 2008
evidence on record and decreed the suit as prayed for. I do not find any
questions of Law much less the Substantial Questions of Law
warranting interference under Section 100 of the Code of Civil
Procedure.
Accordingly, this Second Appeal is dismissed. There shall be no
order as to costs. Consequently, connected Miscellaneous Petition is
closed.
19.07.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Additional Subordinate Judge,
Salem.
2.The II Additional District Munsif,
Salem.
https://www.mhc.tn.gov.in/judis/
S.A.No.1491 of 2008
P.T. ASHA, J,
mps
S.A.No.1491 2008
and
M.P.No.1 of 2008
19.07.2021
https://www.mhc.tn.gov.in/judis/
