Madras High Court
Tholkappian vs Mangalam ... Plaintiff / 1St on 27 October, 2021
S.A.(MD)No.397 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.397 of 2007
1.Tholkappian
2.Pari Ramiah ... Defendants 2 and 3 / Appellants / Appellants
-Vs-
1.Mangalam ... Plaintiff / 1st Respondent / 1st Respondent
2.Subramanian Chettiar ... 1st Defendant / 2nd Respondent / 2ndRespondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
against the judgment and decree dated 18.10.2006 made in A.S.No.37 of 2006 on
the file of the Sub Court, Devakkottai confirming the judgment and decree dated
13.03.2006 and made in O.S.No.227 of 2004 on the file of the Additional District
Munsif, Karaikudi.
For Appellants : Mr.S.Srinivasa Raghavan
For Respondents : Mr.R.Sundar
JUDGMENT
The contesting defendants in O.S.No.227 of 2004 on the file of the
Additional Distirct Munsif, Karaikudi are the appellants in this second
appeal.
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S.A.(MD)No.397 of 2007
2. The said suit was filed by the first respondent herein namely
Mangalam. The case of the plaintiff was that the suit property belonged to
the second and third defendants. The suit property was sold in her favour
vide sale deed Ex.A1 dated 10.02.1998. It is her further case that
possession was handed over to her and that the revenue records were also
changed in her name. She also claims that she had been remitting kist.
While so, she received the legal notice dated 01.10.1999 from the
contesting defendants that the sale deed dated 10.02.1998 had been
cancelled by them vide cancellation deed Ex.A6 dated 17.09.1999. After
receiving the notice, the plaintiff is said to have met the first defendant who
was acting as intermediary. The plaintiff was assured that she can safely
ignore the notice intimating her about the cancellation. While so, she came
to know that the defendants are attempting to create encumbrance in May
2003. Therefore, left with no other option, the plaintiff filed the said suit
seeking the relief of declaration that the deed of cancellation dated
17.09.1999 is null and void and for permanent injunction restraining the
defendants from interfering with her possession and enjoyment of the suit
property. The contesting defendants filed the written statement
controverting the plaint averments. They would claim that the plaintiff did
not pay the sale consideration and that led to cancellation of the sale deed.
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S.A.(MD)No.397 of 2007
Based on the divergent pleadings, the trial court framed the necessary
issues. The plaintiff examined herself as P.W.1. Two other witnesses were
examined on her side. Ex.A1 to Ex.A6 were marked. The first and third
defendants examined themselves as D.W.1 and D.W.2. No document was
marked on the side of the defendants. After a consideration of the evidence
on either side, the trial Court by judgment and decree dated 13.03.2006
decreed the suit as prayed for. Aggrieved by the same, the contesting
defendants filed A.S.No.37 of 2006 before the Sub Court, Devakkottai.
The first appellate court by the impugned judgment and decree dated
18.10.2006 confirmed the decision of the trial court and dismissed the first
appeal. Challenging the same, this second appeal came to be filed. The
second appeal was admitted on 03.03.2008 on the following substantial
question of law:-
“Whether the judgment and decree of the courts below is
perverse on account of its failure to consider the fact that the suit as
framed is barred by limitation as the respondents had knowledge of
the cancellation of document as per Ex.A5 dated 01.10.1999 and the
suit was filed only on 02.02.2004?”
3. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
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S.A.(MD)No.397 of 2007
Court to answer the substantial question of law in favour of the appellants
and set aside the impugned judgment and decree passed by the courts below
and allow this appeal.
4. Per contra the learned counsel appearing for the first respondent /
plaintiff submitted that the impugned judgment and decree do not warrant
any interference.
5. I carefully considered the rival contentions and went through the
evidence on record. The core argument of the learned counsel appearing for
the appellants is anchored on Article 59 of the Limitation Act. To find out
if the suit is time-barred or not, the following dates are material:-
The sale deed Ex.A1 executed by D2 and D3 in
favour of the plaintiff - 10.02.1998
The deed of cancellation Ex.A6 - 17.09.1999
Notice Ex.A5 intimating the plaintiff about the
execution of Ex.A6 - 01.10.1999.
6. The receipt of Ex.A5 in the month of October 1999 by the
plaintiff is admitted. Article 59 is as follows:-
“When the facts entitling the plaintiff to have the instrument or decree
cancelled or set aside or the contract rescinded first become known to him”
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S.A.(MD)No.397 of 2007
7. The fact entitling the plaintiff herein to have Ex.A6 set aside first
became known to her in October 1999 itself. The exact date of receipt of
Ex.A5-intimation notice is not known. But I can safely assume that she
would have received the same in the first week of October 1999 itself.
Therefore, limitation as per Article 59 would start running therefrom. The
suit ought to have been filed in the first week of October 2002 itself. But
the suit came to be filed only on 02.02.2004. It is apparent that the suit
was hopelessly barred by limitation. The trial court has given a strange
interpretation to Article 59. According to the learned trial munsif, limitation
would start running from the date when the plaintiff felt that the document
has to be rescinded. According to the trial court, since the plaintiff was
convinced about the assurance given by the defendants, she did not act
immediately. Only in the year 2003, she became aware that the defendants
were trying to encumber the property. She thereupon felt the need to get
cancelled. According to the trial court, limitation would start running only
from the year 2003 onwards.
8. I sustain the argument of the learned counsel appearing for the
appellants that declaration in respect of Ex.A6 could not have been sought
after the first week of October 2002. The substantial question of law is
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S.A.(MD)No.397 of 2007
answered in favour of the appellants. However, the suit filed by the
plaintiff cannot be dismissed in toto. I set aside the declaratory relief
granted in favour of the plaintiff by the courts below. However, the relief of
permanent injunction granted in her favour is not interfered with. This is
for more than one reason. The plaintiff had categorically asserted that she
is in possession of the suit property. She has marked the patta in her favour.
She has also marked the kist receipts. On the other hand, the defendants
have not adduced any documentary evidence. Therefore, the judgment and
decree passed by the courts below are modified. The plaintiff will be
entitled to the decree of permanent injunction alone. The decree of
declaration granted in her favour is set aside.
9. The second appeal is partly allowed. No costs.
27.10.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Sub Court, Devakkottai.
2.The Additional District Munsif, Karaikudi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.397 of 2007
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.397 of 2007
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.397 of 2007
27.10.2021
https://www.mhc.tn.gov.in/judis
