Madras High Court
M.Nagarathinam vs Nagalingam on 25 October, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 25.10.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
S.A.(MD) No.649 of 2021
and
C.M.P.(MD) No.8674 of 2021
M.Nagarathinam Appellant
vs.
1. Nagalingam
2. Logambal
3. Meenatchisundaramam
4. Thilagar
5. Meenal
6. Ramu
7. Devi
8. Rajaletchumi Respondents
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 19.4.2021 passed in A.S.No.58 of 2017
on the file of the Sub Court, Paramakudi, Ramanathapuram District
confirming the Judgment and decree dated 8.8.2017 passed in
O.S.No.90 of 2015 on the file of the District Munsif Court, Paramakudi.
For Appellant : Mr.R.Shankar Ganesh
JUDGMENT
Challenging the concurrent findings of the courts below in
granting the relief of permanent injunction, the defendant has
approached this court by way of the present Second Appeal.
https://www.mhc.tn.gov.in/judis/
2. The case of the plaintiffs is as under:-
The suit property originally belonged to one Letchumana Achari,
father of the plaintiffs and patta stood in his name. After the death of
the said Letchumana Achari, the first plaintiff being the elder son, the
patta was transferred in his name. Subsequently, the first plaintiff had
settled the share of the second plaintiff in his favour by way of a
registered gift deed dated 13.4.2010 and thereby the plaintiffs had
been in possession and enjoyment of the suit property. The defendant
has never got any right or title over the suit property. Claiming that
the first plaintiff had handed over the suit property to the mother of
the defendant Sigappi Ammal and since then, he had been in
possession of the suit property, the defendant had started threatening
the plaintiffs that he was going to plough the suit property and
spreading such a rumour in the village and thereby, the plaintiffs had
come up with the suit seeking for permanent injunction.
3. The case of the defendant is as under:-
(i) The plaintiffs had left the village about 40 years prior to filing
of the suit with regard to their avocation. The first plaintiff had settled
at Rameshwaram and the second plaintiff had settled at
Kanniyakumari. The suit land was being ploughed by one Ganesan on
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behalf of the plaintiffs from 25 years prior to the suit.
(ii) Whileso, an approach was made to the mother of the
defendant Sigappi Ammal by the first defendant that he met with a
loss in his fishing business and thereby he wants to sell the suit
property which belongs to him as his share and thereupon, he agreed
to sell the suit property for a sum of Rs.5700/- on 23.5.1988 and
received a sum of Rs.4000/- towards advance and further agreeing to
execute the sale deed by receiving the balance payment and since
then, the defendant and his mother had been ploughing the suit
property.
(iii) Subsequently, the first defendant had not turned up and his
whereabouts could not be found out. Even the notice sent to him had
returned unserved. After about five years, when he was accidentally
met at Rameshwaram, he assured to execute the sale deed later as his
position was not conducive by then.
(iv) In the year 2003, the mother of the defendant Sigappi
Ammal died. Even during her life time, the defendant had been in
enjoyment of the suit property. Since the defendant had been in
enjoyment of the suit property by ploughing the land, when the first
plaintiff had claimed drought relief in respect of the suit property, the
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defendant had objected the same by writing a letter to the Joint
Director, Agriculture Department, Ramanathapuram.
(v) Even though the first plaintiff knows about the enjoyment of
the suit property by the defendant, after the death of his mother
Sigappi Ammal, the first plaintiff had created the gift deed settling half
of the suit property in favour of the second plaintiff only to defeat the
rights of the defendant over the suit property which deed will not bind
the defendant.
(vi) From the date of agreement of sale viz., 23.5.1988, the
defendant had been in enjoyment of the suit property by ploughing
the land. The defendant has always been ready and willing to perform
his part of the contract in respect of the said agreement of sale.
However, with mala fide intention to defraud the defendant, the
plaintiffs had lodged a complaint with the Superintendent of Police,
Ramanathapuram on 13.4.2010. On appreciation of the factual
background with regard to the sale agreement and the payment made
thereon, the police had advised for recourse * before the civil court.
(vii) On 25.6.2012, the defendant had addressed the Tahsildar,
Ramanathapuram in this regard. With regard to the agreement of sale,
panchayats were held in the village five years prior to the suit, wherein
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the plaintiffs were advised to execute the sale deed. However,
suppressing all these things, the plaintiffs have filed the present suit
and hence, it may be dismissed.
4. On the above pleadings, the Trial Court had framed the
following issues for consideration:-
(i) Whether the plaintiffs are in possession and enjoyment of the
suit property?
(ii) Whether the plaintiffs are entitled to the relief of permanent
injunction sought for?
(iii) To what other reliefs the plaintiff is entitled?
5. During the trial, the second plaintiff was examined as PW1 and
five documents were marked as Exs.A1 to A5 on the side of the
plaintiffs. The defendant examined himself as DW1 while examining
two more witnesses as D.Ws.2 and 3 and marked ten documents as
Ex.B1 to B10.
6. On analysis of the oral and documentary evidence, the Trial
Court decreed the suit for permanent injunction.
7. Aggrieved against the judgment and decree of the Trial, the
defendant had preferred the first appeal contending that the Trial
Court, without considering the documents filed by the defendant with
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regard to his possession and payment of kist in respect of the suit
property and the oral evidence of DW2 Ganesan, who was doing
agriculture in the suit property on behalf of the plaintiffs, to the effect
that the defendant had been enjoying the suit property for about 30
years, had come to the conclusion that the plaintiffs are in enjoyment
of the suit property.
8. The appellate court, after considering the oral and
documentary evidence of the parties afresh, had concurred with the
finding of the Trial Court, which is under challenge in the present
Second Appeal.
9. Learned counsel for the appellant would submit that the courts
below have erred in granting the permanent injunction when the
defendant had proved the genuineness of the sale agreement dated
23.5.1988 and his possession for a long period.
10. The claim of the plaintiffs is that the suit property originally
belonged to their father Letchumana Achari as evidenced by patta
Ex.A1 and after his death, it devolved upon both the plaintiffs, but,
since the patta ex.A2 was granted only in the name of the first plaintiff,
being elder son, he had to execute the gift settlement deed Ex.A3
dated 13.4.2010 in favour of his brother, the second plaintiff and
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thereby they are in possession and enjoyment of the suit property.
They have also filed receipts for payment of tax in respect of the suit
property in the name of the first plaintiff as evidenced by Exs.A4 and
A5 whereas, the case of the defendant is that his mother had entered
into an agreement of sale with the first plaintiff on 23.5.1988 in
respect of the suit property for a sum of Rs.5700/- by paying a sum of
Rs.4000/- as advance and even during her lifetime, the defendant had
been in enjoyment of the suit property and based on the strength of
such agreement of sale and a few kist receipts paid a few years prior
to the filing of the suit, the defendant claims right over the suit
property.
11. Therefore, the claim of the plaintiffs are based on valid and
registered documents viz., Exs.A1 to A3 whereas the claim of the
defendant is based on a very old agreement of sale entered by his
mother with the first plaintiff to which, either his mother or himself had
given life by initiating any proceedings for the relief of specific
performance. They are left with the only option of proving their
possession for a long time. The appellate court had also observed
that the document on which the defendant claims right over the suit
property, viz., the agreement of sale dated 23.5.1988 itself had not
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been marked by the defendant and only the signature portion of the
first attestor had been marked as Ex.B10, however, on perusal of the
said document, the appellate court had found that there is no recital in
the said document with regard to handing over of possession of the
suit property and thereby the appellate court had rightly disbelieved
the claim of the defendant with regard to enjoyment of the suit
property.
12. The above aspect makes it clear that the mother of the
defendant herself was not given possession of the suit property and it
was merely an agreement of sale which is alleged to have been
executed on 23.5.1988. The admission of the defendant as DW1 when
he was cross examined that he had merely sent a notice seeking for
execution of sale deed, but, not initiated any proceedings for specific
performance in respect of the suit property clearly proves that the
defendant, having gone into a deep slumber for about more than two
decades, has suddenly woke up to make some issues with a blunt
weapon, and the same is sought to be thwarted by the plaintiffs by
filing the present suit which they had succeeded, but, the defendant is
still harping on the issue with a very old document which had lost its
validity after the period of limitation.
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13. The courts below have properly analysed the above aspects
in the light of oral and documentary evidence available on record and
had arrived at a conclusion that the plaintiffs have proved their
possession and enjoyment of the suit property and thereby granted
the relief of injunction sought for. This court does not find any error or
infirmity in the finding of the courts below.
14. In the opinion of this court, the Appellant has not made any
substantial question of law to admit this Second Appeal. The Hon'ble
Apex Court in Kirpa Ram (D) Tr.Lrs. vs Surender Deo Gaur
(2020 Scc OnLine SC 935) has categorically held as under:-
"23. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the High
Court if it is satisfied that the case involves a
substantial question of law. The substantial question
of law is required to be precisely stated in the
memorandum of appeal. If the High Court is
satisfied that such substantial question of law is
involved, it is required to formulate that question.
The appeal has to be heard on the question so
formulated. However, the Court has the power to
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hear appeal on any other substantial question of law
on satisfaction of the conditions laid down in the
proviso of Section 100 of the Code. Therefore, if the
substantial question of law framed by the appellants
are found to be arising in the case, only then the
High Court is required to formulate the same for
consideration. If no such question arises, it is not
necessary for the High Court to frame any
substantial question of law. The formulation of
substantial question of law or re- formulation of the
same in terms of the proviso arises only if there are
some questions of law and not in the absence of any
substantial question of law. The High Court is not
obliged to frame substantial question of law, in
case, it finds no error in the findings recorded by
the First Appellate Court."
15. In view of the above, the Second Appeal fails and is,
accordingly, dismissed without being admitted. No costs. The
connected Miscellaneous Petition is closed.
25.10.2021.
https://www.mhc.tn.gov.in/judis/
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised 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. Sub Judge,
Paramakudi,
Ramanathapuram District.
2. District Munsif Court,
Paramakudi.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
S.A.(MD) No.649 of 2021 and
C.M.P.(MD) No.8674 of 2021
25.10.2021.
https://www.mhc.tn.gov.in/judis/
