Madras High Court
C.Srinivasan vs P.M.Shamsuddin on 11 March, 2021
S.A.Nos.171 & 172 of 2018, dt.11.03.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.Nos.171 & 172 of 2018
and
Cmp.Nos.4435 & 4436 of 2018
C.Srinivasan ... Appellant
(in both appeal)
Versus
P.M.Shamsuddin ... Respondent
(in S.A.No.171/2018)
P.M.Akbar Ali ... Respondent
(in S.A.No.172/2018)
Common Prayer: Second Appeals filed under Section 100 of Code
of Civil Procedure, to set aside the Judgment and Decree dated 03.01.2018
in A.S.Nos.3 & 4 of 2015 by the learned Principal Subordinate Judge,
Krishnagiri, reversing the Judgment and decree dated 24.11.2014 in
O.S.Nos.222 & 223 of 2012 on the file of the learned district Munsif,
Krishnagiri.
For Appellant : Mr.S.Parthasarathy, Senior Counsel,
(in both appeal) for Mr.P.Dinesh Kumar
For Respondent : No Appearance
(in both appeal)
https://www.mhc.tn.gov.in/judis/
S.A.Nos.171 & 172 of 2018, dt.11.03.2021
COMMON JUDGMENT
These Second Appeals have been filed challenging the
Judgment and decree dated 03.01.2018 made in A.S. Nos. 3 & 4 of 2015 by
the learned Principal Subordinate Judge, Krishnagiri, by reversing the
Judgment and decree dated 24.11.2014 passed in O.S. Nos. 222 & 223 of
2012 respectively, on the file of the learned District Munsif, Krishnagiri.
2.It is the case of the appellant/plaintiff that he purchased the
suit property, with possession, by virtue of the Sale Deeds dated
27.02.2012. The respondent (the word “respondent” would refer
respondent in S.A.Nos.171 & 172 of 2018 collectively) as well as the
appellant also entered into a Memorandum of agreement (herein after
called as agreement) dated 27.02.2012, whereby, the appellant has agreed
to re-convey the property to the respondent, if the respondent repaid a sum
of Rs.75,00,000/-, within a period of 5 months from the date of the
agreement. On such payment, the appellant/plaintiff had agreed to re-convey
the suit property to the respondent. If the respondent failed to repay the said
amount, as per the terms and conditions mentioned in the agreement, the
property will be devolved on the plaintiff, without any reference. Since the
respondent herein started to cause disturbances to the appellant/plaintiff
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
with his peaceful possession and enjoyment of the suit schedule property,
the appellant/plaintiff gave a complaint against the respondent/defendant
(the word “defendant” would refer the defendant in O.S.Nos.222 & 223 of
2012 collectively) to the Police on 27.08.2012, which was marked as Ex.A7.
As a result, without any other options, the appellant/plaintiff filed the suit
for perpetual injunction to restrain the defendant and his men from
interfering with his peaceful possession and enjoyment of the suit properties
except due process of law.
3.The respondent filed a written statement by stating that the
respondent in both the appeals are brothers. They borrowed a sum of Rs.50
Lakhs from the appellant/plaintiff for the purpose of completing some
unfinished constructions and to discharge other debts, under the compulsion
of the appellant/plaintiff, the said Sale Deeds were executed towards
security, for lending the money, which was clearly mentioned in the
agreement, dated 27.02.2012. There was no consideration passed on, as
stated in the Sale Deeds. When the agreement was in existence, the
appellant/plaintiff had fraudulently applied for transfer of Patta, and he is
well aware of the fact that he is not entitled for it.
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
4.Further, it is the contention of the respondent in the written
statement that they are in absolute possession and enjoyment of the suit
property and their cousin brother has been collecting the rent from the
tenant in respect of the B-schedule property in O.S. No. 222 of 2012.
Moreover, the electricity service connection also stands in the name of the
defendant alone. Therefore, the respondent have contended that though the
revenue records standing in the name of the appellant/plaintiff, they are not
valid and it will not bind the respondent/defendant. In this regard, the
respondent also gave a paper publication, to caution the public at large from
making any negotiation to purchase the property from the plaintiff.
Therefore, the respondent contended that the suit is liable to be dismissed.
5.Before the Trial Court, on behalf of the appellant/plaintiff, he
examined himself as Pw.1, and Exs.A1 to A9 were marked. On behalf of
the respondent/defendant, Dw.1 to Dw.6 were examined, and as many as 18
documents were marked as Exs.B1 to B18. The Court exhibits in Exs.C1 to
C5 were also marked.
6.The Trial Court, taking into consideration of the submissions
made by the counsel for both sides as well as on the basis of the oral and
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
documentary evidences, came to the conclusion that Exs. A1 to A4 were
validly executed by the defendant, which is supported by Ex.B5,
Agreement, whereby, the plaintiff had agreed to re-convey the property to
the defendant, if they repay Rs.75,00,000/- within five months, from the
date of agreement. If they fails to repay the amount, the plaintiff is entitled
to retain the properties. The Trial Court also found that the plaintiff is
entitled for a decree of permanent injunction, however, taking note of the
contents of Ex.B5, theTtrial Court extended the time for payment of
Rs.75,00,000/- by the defendant to the plaintiff with interest at 12% per
month from the date of plaint, till the date of payment. In the event of
failure on the part of the defendant to pay the amount, then the plaintiff is
entitled to get a decree as prayed for with costs.
7.Challenging the above said judgment of the Trial Court, the
defendant filed the appeals before the Principal Subordinate Court,
Krishnagiri in A.S.Nos.3 & 4 of 2015. After hearing both parties, the First
Appellate Court passed the judgment and decree on 3rd January 2018,
holding that even if the defendant failed to repay the amount within five
months as per Ex.B5, agreement, it will not confer any title to the plaintiff
automatically in the absence of filing a suit for declaration. In a suit for
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
bare injunction, based on Ex.B5, the plaintiff cannot get a decree for his
title. The Appellate Court also rendered a finding that PW1 himself
admitted that the four sale deeds were executed only for the security
purpose to repay the sum of Rs.75,00,000/-. Accordingly, the Appellate
Court held that the suit filed by the plaintiff for permanent injunction
without the relief for declaration is not proper. While so, the Trial Court
ought not to have directed the defendant to pay the amount of
Rs.75,00,000/- to the plaintiff in the absence of any prayer in the suit for
declaration. Further, the Appellate Court has come to the conclusion that
the present transaction is in the nature of financial transactions. At this
juncture, it would be appropriate to extract the relevant portion of the
judgment passed by the First Appellate Court, as under:-
“In the light of the above and from the clear and
categorical admission of Pw.1, this court observes that,
both the suits filed by the plaintiff for Permanent
injunction without seeking the relief of Declaration is
not proper and is not maintainable. The relief granted
by the District Munsif in directing the defendant to pay
Rs.75,00,000/- under Ex.B5, without seeking the relief of
declaration is also not proper. The District Munsif
ought not to have granted the relief of recovery of
money, without proper prayer by the plaintiff which is
beyond the scope of the Principal District Munsif. The
judgment and Decree of District Munsif needs
interference and the plaintiff is not entitled for the relief
of recovery of money. The plaintiff in both the cases are
not entitled for recovery of money and therefore, both
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the appeals filed in A.S.3/15 and A.S.4/15 by the
S.A.Nos.171 & 172 of 2018, dt.11.03.2021
defendant/Appellants is liable to be allowed and the
Judgment and Decree dated 24.11.2014 is liable to be
setaside. Both the appellants are entitled ot set aside the
Judgment and Decree dated 24.11.2014, passed by the
District Munsif, Krishnagiri.”
8.Challenging the common judgment and decree passed by the
First Appellate Court, the present Second Appeals have been filed. This
Court admitted these appeals on 02.03.2018, on the following substantial
questions of law:-
“a) Whether the Lower Appellate Court is correct
in law in dismissing the suit for bare injunction on the
ground that the appellant/plaintiff failed to seek the
relief of declaration, when the respondent/defendant
himself admitted the execution of Sale Deed in favour of
the appellant/plaintiff?
b) Whether the judgment and decree of the Lower
Appellate Court is sustainable in law by dismissing the
suit for bare injunction without a prayer for declaration
is not maintainable, when the appellant/plaintiff clearly
established his title through documentary evidence
Ex.A1 to A4?
c) When the issue of title is clear, simple and
straight forward the finding of Lower Appellate Court
driving the appellant/plaintiff to seek the costlier and
more cumbersome remedy of declaration is sustainable
in law?
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
d) Is not the judgment and decree of the Lower
Appellate Court perverse for directing the plaintiff to
file a comprehensive prayer for declaration, when the
suit is one for injunction simpliciter and the question of
title need not be gone into?
e) Is not the defendant estopped under Section 115
of the Evidence Act from disputing the factum of
appellant/plaintiff's possession of the suit properties
when the Sale Deeds Ex.A1 to A4 itself has recorded the
delivery of possession to the buyer?”
9.At the time of admission of these appeals, notice was ordered
to respondent in both the appeals. After completion of service, the name of
the respondent also printed in the cause list. Today, when the matter is
called, though the name was printed in the cause list, the respondent neither
appeared in person nor engaged any counsel. Therefore, this Court proceeds
to hear the appellant and pass the following judgment in the appeals.
10.Heard Mr.S.Parthasarathy, learned Senior Counsel
appearing for Mr.P.Dinesh Kumar, learned counsel for the appellant. He
submitted that the appellant herein is the plaintiff before the Trial Court and
he purchased the property by virtue of Ex.A1 to A4. He admitted the fact
that it was a loan transaction, due to which, a separate agreement, dated
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
27.02.2012 was also entered and the same was marked by the
respondent/defendant as Ex.B5, whereby the respondent/defendant had
agreed to repay a sum of Rs.75 Lakhs to the appellant/plaintiff, within a
period of 5 months from the date of agreement. As per the recitals of the
Sale Deeds, the possession was handed over to the appellant/plaintiff and
he is in possession and enjoyment of the property. When the appellant has
been enjoying the property, the respondent/defendant started giving
troubles. Therefore, the appellant/plaintiff filed the suit in O.S.Nos.222 &
223 of 2012, for permanent injunction to restrain the defendant from
interfering with the peaceful and enjoyment of the possession.
11.It is seen that though the time was fixed as 5 months under
Ex.B5/ agreement, the respondent/defendant have failed to repay the
amount to the plaintiff as per the recitals in the agreement. In Ex.B5, it is
clearly stated that if the agreed amount of Rs.75 Lakhs is repaid, it is the
duty of the appellant/plaintiff to re-convey the suit property to the
respondent/defendant. On the other hand, in case, if the
respondent/defendant failed to repay the sum of Rs.75 Lakhs, the property
shall automatically devolve on the appellant/plaintiff. Thus, after the expiry
of the period of 5 months as mentioned in Ex.B5, if the defendant fails to
repay the amount, then, the appellant/plaintiff will become absolute owner
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
of the suit property. Taking into consideration of all these aspects, the Trial
Court had passed a well considered and reasoned judgment. The Trial court
has come to the conclusion that there were Sale Deeds executed in favour of
the plaintiff, by virtue of the said Sale Deeds, the possession was handed
over to the plaintiff. Further, after a thorough scrutiny of all the documents,
the Trial Court found that in case, if the respondent/defendant repaid the
sum of Rs.75 Lakhs in terms of Ex.B5, the appellant/plaintiff is supposed to
re-convey the suit property. Thus, the Trial Court taken into consideration
that the time limit of 5 months fixed in the Ex.B5 and the transaction of
this, in the nature of financial, though the respondent failed to pay as per
Ex.B5, within 5 months, The Trial Court by applying the principles of
equity, granted 5 more months to the respondent, to pay a sum of
Rs.75,00,000/- to the plaintiff as agreed by both parties by virtue of Ex.B5,
from the date of Judgment. However, the respondent failed to pay the same
as per the Judgment of Trial Court. Therefore, the learned Senior counsel
contended that the property would devolve automatically in favour of the
plaintiff. The said well considered judgment has been interfered, by the first
Appellate Court in the appeals in A.S.No.3 & 4 of 2015. The First Appellate
Court wrongly came to the conclusion that the plaintiff had not filed the suit
for declaration and in the absence of such a relief, he is not entitled for relief
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
as sought in the suit.
12.According to the learned Senior Counsel, the finding of the
First Appellate Court is not proper as there was no dispute over title to the
suit property in the present case. Therefore, declaratory relief is not
necessary. As per Ex.B5, the property automatically devolved on the
plaintiff immediately upon the failure of the defendant to repay the amount
of Rs.75 Lakhs. The defendant also admitted the execution of Ex.B5,
agreement. While so, the Trial Court judgment and decree is required to be
restored and the First Appellate Court Judgment and decree is liable to be
set aside.
13.Heard, the learned Senior counsel appearing for the
appellant and perused the materials available on records.
14.On a perusal of records, Exs.A1 to A9, Exs.B1 to B18,
Exs.C1 to C5 and the oral evidences of Dw.1 to Dw.6, it is evident that the
plaintiff purchased the suit property under Exs.A1 to A4, Sale Deeds dated
27.02.2012 from the defendant. On the same day, a mutual agreement was
entered and the same was marked by the defendant as Ex.B5. On perusal of
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
the above said oral and documentary evidences and the agreement, the
respondent/defendant is liable to repay the sum of Rs.75 Lakhs, within 5
months from the date of agreement. In case, if there is any default in
payment by the defendant, the property will devolve on the plaintiff. At this
juncture, it would be appropriate to extract the relevant clause in
Memorandum of Agreement dated 27.02.2012 hereunder:-
“nkw;go bjhifia ,d;w Kjy; 5
(Ie;J) khjk; thapjhtpw;Fs; 1. 2
yf;fkpl;lth;fsplkpUe;J 3 tJ
yf;fkpl;ltuhfpa ehd; bgw;Wf;bfhz;l gpwF
nkw;go brhj;Jf;fis jpUg;gp 1. 2
yf;fkpl;ltUf;F fpua Mtzk; bra;J
bfhLf;f KGkdJld; rk;kjpf;fpnwd;/ nkYk;
mjw;fhf fhyp ifbaGj;jpl;l !;lhk;g;
ngg;gUk; 2 brf;Ffs; (fhnrhiyfs;) ,e;jpad;
t';fp fhnrhiyfis brf;F vz;/
bjhif/62.00.000-? ,e;jpad; t';fp
fhnrhiyfis jpUg;gp bfhLf;f
rk;kjpf;fpnwd;/ nkw;go thapjh jtWk;
gl;rj;jpy; nkw;go brhj;Jf;fis ehnd
mDgtpj;Jf;bfhs;sntz;oaJ vd;W ,jd;
K:yk; rk;kjpf;fnwhk;/”
15.This agreement was signed by the appellant as well as by the
respondent. By virtue of the sale deeds, the possession of the suit property
was handed over to the plaintiff on the date of execution of the Sale Deeds.
These facts are admitted. Under these circumstances, since the respondent
started giving disturbance by interfering with the peaceful possession and
enjoyment of the suit property, the plaintiff has filed the suit before the Trial
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
Court. After considering all the documents, oral and documentary
evidences, and upon hearing the arguments by both parties, the Trial Court
held that the execution of Ex.B5, agreement was admitted by both parties
and as per Ex.B5, the defendant has to repay a sum of Rs.75 Lakhs to the
plaintiff, within 5 months and in default, the property would devolve on the
plaintiff. Inspite of the said default clause, the Trial Court granted 5 more
months, on equity to the defendant, from the date of the judgment and
decree, for repayment of the said amount of Rs.75 Lakhs. Even within the
time granted by the Trial Court, the defendant failed to repay the amount of
Rs.75 Lakhs. At this juncture, it would be appropriate to extract the relevant
portion of the Trial Court Judgment, which reads as follows:-
“40.Though the plaintiff is lawfully entitled to get
the decree as prayed for, this court wants to consider
about the situations of both parties and their intentions
reflected under Ex.B5, in the interestof justice this court
has to give an opportunity to the defendant for marking
amicable settlement between the both parties and to avoid
the plurality of the proceedings, thus the defendant are
directed to repay the agreeable amount of Rs.75,00,000/-
mentioned under Ex.B5 to the plaintiff with interest at
12% per month for the said amount from the date of said
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Memorandum of understanding understanding under
S.A.Nos.171 & 172 of 2018, dt.11.03.2021
Ex.B5. In this Juncture, this court should necessarily rely
upon the legal maxim bonus judex secumdum aequum et
bonum judicat, et aequitatem stricto juri praefert i.e A
good judge decides according to justice and right and
prefers equity to strict law. (ey;ybjhU ePjpgjp
epahak; kw;Wk; neh;ikapd; go Kot[ bra;thh.
Flikahd rl;lj;jpid tpl jifik
bewpf;nf Kd;Dupika mspg;ghu;). This court also
considers the another legal maxim actus curiae
neminem gravabit i.e. An act of Court shall prejudice no
one.
In the long run, the defendant are directed to pay
the agreeable amount of Rs.75,00,000/- mentioned under
Ex.B5 to the plaintiff with interest at 12% per month from
27.02.2012 to till the realization of the entire amount
within 5 months from the date of judgment, failing which
the plaintiff is entitled to get the decree as prayed for with
cost.”
16.A perusal of the above judgment of the Trial Court, it
appears that it is a well reasoned judgment. Though there was no
necessity for giving a further time limit to repay the said amount of
Rs.75 Lakhs to the defendant, in terms of Ex.B5, by taking note of the
fact that it was a loan transaction, it has granted 5 more months time, on
equity, from the date of the judgment. Therefore, I do not find any
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
infirmity in the Judgment and Decree of the Trial Court. The
appellant/plaintiff agreed for the said Judgment, hence, he has not preferred
any appeal.
17.The First Appellate Court after having admitted the fact that
there were Sale Deeds duly executed by the defendant in favour of the
plaintiff and on the same day an agreement was also executed under Ex.B5
whereby the defendant agreed to pay Rs.75 Lakhs, within 5 months from the
date of agreement, and in the event of default, the property would devolve
in favour of the plaintiff, however, it has wrongly held that there was no
relief sought for declaration of title to the property and the suit was filed
only for a permanent injunction, hence, the suit is not maintainable.
18.In the present case, this Court is of the view that the
declaratory relief is not necessary. In case, if there was any dispute with
regard to the title to the suit property, in which case, seeking the relief of
declaration would arise. The Sale Deeds were executed in favour of the
plaintiff by the defendant in both suit through Exs.A1 to A4, which were
admitted by both parties. The repayment of a sum of Rs.75 Lakhs by the
defendant to the plaintiff by virtue of Ex.B5 is also admitted and there was a
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
rider in the said agreement, in case, if there any default in payment within
the period of 5 months, from the date of agreement, the property would
devolve automatically on the plaintiff. The said fact was also admitted by
both parties and accepted by the Courts below. Under these circumstances,
there is no necessity for filing the suit for declaration because the right of
the party by virtue of Ex.B5 and Exs.A1 to A4 already been determined.
Therefore, the finding of the First Appellate Court with regard to the
maintainability of the suit for permanent injunction in the absence of relief
of declaration is not sustainable and the same is liable to be set aside.
19.The Trial Court considering the nature of the transaction
between the plaintiff and defendant, it had granted further time of 5 more
months for repayment of the amount of Rs.75 Lakhs to the plaintiff by the
defendant and in the event of any default, the plaintiff is entitled for a
decree as prayed for. The defendant failed to pay the amount of Rs.75
Lakhs, within 5 months time as granted by the Trial Court. Thus, the
property would be automatically devolved on the plaintiff. The Court
cannot go beyond the terms and conditions of Ex.B5 and Exs.A1 to A4, as
long as the said documents are admitted by both the parties. The First
Appellate Court had failed to consider the material evidences in proper
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S.A.Nos.171 & 172 of 2018, dt.11.03.2021
perspective. Thus, it had come to the conclusion that the suit filed by the
plaintiff without a declaratory relief is bad. Therefore, the judgment and
decree of the First Appellate Court is suffered with infirmities and the same
is liable to set aside and the judgment and decree passed by the Trial Court
is to be restored. Accordingly, all the substantial questions of law framed by
this Court, dated 02.03.2018 are answered in favour of the appellant.
20.In the result, the Second Appeals are allowed. The Judgment
and Decree dated 03.01.2018 in A.S.Nos.3 & 4 of 2015 passed by the
learned Principal Subordinate Judge, Krishnagiri, is set aside and the
Judgment and Decree dated 24.11.2014 in O.S.Nos.222 & 223 of 2012
passed by the learned District Munsif, Krishnagiri is restored. No costs.
Consequently, the connected miscellaneous petitions are closed.
11.03.2021
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
klt
To
1.The learned Principal Subordinate Judge, Krishnagiri.
2.The District Munsif Court, Krishnagiri.
3.The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
S.A.Nos.171 & 172 of 2018, dt.11.03.2021
KRISHNAN RAMASAMY, J.
klt
S.A.Nos.171 & 172 of 2018
and
Cmp.Nos.4435 & 4436 of 2018
11.03.2021
https://www.mhc.tn.gov.in/judis/
