Madras High Court
John Bosco vs Arockiaraj ... 1St on 24 January, 2022
S.A(MD)No.31 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.01.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.31 of 2022
and
C.M.P(MD) Nos.338 & 339 of 2022
John Bosco ... Appellant/Appellant/2nd Defendant
Vs.
1.Arockiaraj ... 1st Respondent/ 1st Respondent/Plaintiff
2.The District Collector,
Sivagangai District,
Sivagangai.
3.The Tahsildar,
Ilayangudi Taluk,
Sivagangai District.
4.The Sub Registrar,
Sub Registrar Office,
Ilayangudi,
Sivagangai District. ... Respondent 2 to 4/ Respondents 2 to 4/
Defendants 3 to 5
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 07.10.2021 passed in
1/18
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S.A(MD)No.31 of 2022
A.S.No.54 of 2019, on the file of the Subordinate Court, Manamadurai,
confirming the judgment and decree dated 13.11.2017 passed in O.S.
No.24 of 2016 on the file of the District Munsif cum Judicial Magistrate
Court, Ilayangudi.
For Appellant : Mr.M.Karuppasamy
for Mr.F.Deepak
For Respondents 2 to 4 : Mr.G.Suriyananth,
Additional Government Pleader
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated 07.10.2021 passed in A.S.No.54 of 2019, by the learned
Subordinate Judge, Manamadurai, in confirming the Judgment and
Decree dated 13.11.2017 in O.S.No.24 of 2016, passed by the learned
District Munsif cum Judicial Magistrate, Ilayangudi.
2. For the sake of convenience, the parties are referred to
herein, as per their own ranking as before the Trial Court.
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S.A(MD)No.31 of 2022
3. The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
The suit schedule property in survey No.282/4 to an extent
of 0.56.5 ares punja land originally belonged to one Kulanthai Therace
and the same was purchased by the father of the plaintiff and the first
defendant, namely, Sebasthiyan on 06.02.1998, by way of a registered
sale deed and the first defendant enjoyed the same and thereafter, the
first defendant executed a Gift Settlement Deed, dated 15.09.2000 in
favour of the plaintiff, by way of a registered Document No.1009/2000.
As per the Gift Settlement Deed, the plaintiff was in possession and
enjoyment of the same and he also obtained loan from the Canara Bank,
showing the said document to prove his income and also he is in long
possession and enjoyment of the property. The plaintiff applied for
issuance of patta, but no patta was issued and hence, the plaintiff applied
for Encumbrance Certificate, before the Sub Registrar Office, Ilayankudi
and thereafter, he came to know that the said Gift Settlement Deed has
been cancelled vide Document No.1149 of 2014 and also a document
came to be registered, as if the first defendant executed a sale deed in
favour of the second defendant and he prayed that the said documents are
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S.A(MD)No.31 of 2022
not valid as per law. The plaintiff is the owner of the property and the
first defendant has no right over the suit property to cancel the Gift
Settlement Deed, dated 15.09.2000 and therefore, he has no right to sell
it to the second defendant as well. Thereafter, the plaintiff immediately
gave a petition to the Sub Registrar, Ilayankudi, but he has not taken any
steps and thereafter, he came to know that the said petition was
dismissed on 28.09.2015, by way of a reply under the Right to
Information Act. The second defendant gave a petition to the Tahsildar
for issuance of patta. The Tahsildar has also assured him that there is no
chance for issuance of patta in favour of the second defendant, but later,
without enquiring the plaintiff, the Tahsildar proceeded further and
issued a patta in favour of the second defendant and hence, the patta is
not valid. They created forged documents. Thereafter, the plaintiff has
filed a suit for declaration and injunction with regard to the suit schedule
property and for declaration of registered Document No.1149 of 2014
dated 08.08.2014 on the file of the Ilayankudi Sub Registrar Office
executed by the first defendant as null and void and for declaration of
sale deed document No.1663 of 2014 dated 13.10.2014 of the Ilayangudi
Sub Registrar Office executed by the first defendant in favour of the
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S.A(MD)No.31 of 2022
second defendant as null and void and for mandatory injunction against
the fourth defendant to consider the plaintiff's application and to transfer
the name of the plaintiff instead of the second defendant's name in his
patta and for mandatory injunction against the fifth respondent to remove
the entry of the registered Document Nos.1149 and 1663 of 2014
executed by the defendants 1 and 2 in his Registration Registers.
4. In the written statement filed by the second defendant,
which was adopted by the first defendant, it is inter alia contended that
the averments made in the plaint are false. The suit schedule property
originally belonged to one Kulanthai Therace. The first defendant
purchased the same on 06.02.1998. The possession and enjoyment of the
first defendant over the property was accepted. Further, the first
defendant submitted that when the plaintiff being the son of the first
defendant had clandestinely approached his father stating that he wanted
to get loan from the Bank for his business purpose and he wanted to give
a security for the said loan, the plaintiff's father also approached the Sub
Registrar Office and only signed the document which has been made
ready by the plaintiff and he was not aware of the settlement deed and he
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S.A(MD)No.31 of 2022
has cheated the first defendant and only in the year 2014, he came to
know about the same and immediately after coming to know about that
fact, he had cancelled the settlement deed and also informed the same to
the plaintiff and only on 13.10.2014, he sold the property to the second
defendant and patta mutation was also made in the revenue records and
thereafter, the second defendant was in possession and enjoyment of the
property by paying tax. The first defendant and his children have also
signed as a witness in the sale deed. The second defendant is in
possession and enjoyment of the property and hence, the plaintiff is not
entitled for the relief of permanent injunction. The defendants 3 to 5 are
misjoinder or unnecessary parties and hence, prayed for the dismissal of
the suit. The property is worth about Rs.69,500/-, but the property was
valued at Rs.1,000/- and proper Court fee was also not paid and hence
the suit is liable to be dismissed with costs.
5. Before the trial Court, on the side of the plaintiff, the
plaintiff examined himself as P.W.1 and Exs.A1 to A21 were marked.
On the side of the defendants, defendants 1 and 2 examined themselves
as D.W.1 and D.W.2 and Exs.B.1 to B.8 were marked.
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6. On the basis of the rival pleadings, the trial Court, after
framing necessary issues and after evaluating both the oral and
documentary evidence, has decreed the suit in favour of the plaintiff.
7. Aggrieved by the judgment and decree passed by the trial
Court, the second defendant, as appellant, had filed an Appeal Suit in
A.S.No.54 of 2019, on the file of the learned Subordinate Court,
Manamadurai. The first appellate Court, after hearing both sides and
upon reappraising the evidence available on record, had partly allowed
the appeal and reversed the judgment and decree passed by the trial
Court only with regard to the relief granted for mandatory injunction
against the fourth defendant. Challenging the said judgments and
decrees passed by the Courts below, the second defendant preferred this
Second Appeal.
8. Heard the learned counsel for the appellant and the
learned counsel appearing for the respondents 2 to 4 and perused the
materials available on record.
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9. The learned counsel appearing for the appellant / second
defendant would submit that the judgments of the Courts below are
substantially erroneous in law and unsustainable. Further, the documents
which were marked as Ex.B.1 to Ex.B.8 were not at all considered by the
Courts below and only based on the plaintiff's documents, the Courts
below have granted the relief sought for by the plaintiff. Further, Ex.A.3
was not acted upon and the same has been cancelled, however, the trial
Court miserably failed to consider the same in proper perspective.
Though the plaintiff filed the documents to prove his possession and
enjoyment over the suit schedule property, they have not established the
case of the plaintiff, but the trial Court relied on the same and granted the
relief in favour of the plaintiff, which is against law. The Courts below
failed to consider that all the documents filed on the side of the
defendants clearly proved the fact that previously, the first defendant was
in peaceful possession and enjoyment and presently, the second
defendant is in peaceful possession and enjoyment over the suit schedule
property and that the documents Exs.A.4 to A.21 were created by the
plaintiff only for the purpose of filing of the suit, after the cancellation of
settlement deed by the first defendant in the year 2014. The Courts below
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failed to consider that the suit schedule property is the self-acquired
property of the first defendant and after cancelling the alleged Settlement
Deed stood in the name of the plaintiff and the same was brought to the
knowledge of the plaintiff only, the first defendant properly sold the suit
schedule property to the second defendant and presently the second
defendant is in possession and enjoyment of the same and in spite of the
same, the Courts below have come to the conclusion that the plaintiff is
in possession and enjoyment of the property and hence, prayed to allow
this Second Appeal.
10. Per contra, the learned counsel appearing for the
respondents 2 to 4 would vehemently oppose this Second Appeal by
contending that the well considered judgments of the Courts below need
not be interfered with, as there is no question of law involved in this
Second Appeal and prayed for the dismissal of this Second Appeal.
11. This Court paid it's anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
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12. According to the plaintiff, the suit schedule property in
survey No.282/4 to an extent of 0.56.5 ares punja land originally
belonged to one Kulanthai Therace and the same was purchased by the
the 1st defendant, who is the father of the plaintiff on 06.02.1998. On
15.09.2000, the first defendant executed a Gift Settlement Deed, in
favour of the plaintiff, by way of a registered Document No.1009/2000.
As per the Gift Settlement Deed, the plaintiff was in possession and
enjoyment of the same. The plaintiff applied for issuance of patta before
the Tahsildar, Ilaiyankudi, but no patta was issued and hence, the
plaintiff applied for Encumbrance Certificate, before the Sub Registrar
Office, Ilayankudi and thereafter, the plaintiff came to know that the said
Gift Settlement Deed has been cancelled vide Document No.1149 of
2014. Further, a document came to be registered, as if the first
defendant executed a sale deed in favour of the second defendant.
13. It is the further case of the plaintiff that the first
defendant has no right over the suit property to cancel the Gift
Settlement Deed, dated 15.09.2000 and therefore, he has no right to sell
it to the second defendant as well. Therefore, plaintiff immediately gave
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S.A(MD)No.31 of 2022
a petition to the Sub Registrar, Ilayankudi, and the said petition was
dismissed on 28.09.2015, which he came to know under the Right to
Information Act. The second defendant gave a petition to the Tahsildar
for issuance of patta. The Tahsildar, without enquiring the plaintiff,
proceeded further and issued patta in favour of the second defendant and
hence, the patta is not valid. Thereafter, the plaintiff has filed a suit for
declaration and injunction with regard to the suit schedule property and
for declaration of registered Document No.1149 of 2014 dated
08.08.2014 on the file of the Ilayankudi Sub Registrar Office executed
by the first defendant as null and void and for declaration of sale deed
document No.1663 of 2014 dated 13.10.2014 of the Ilayangudi Sub
Registrar Office executed by the first defendant in favour of the second
defendant as null and void and for mandatory injunction against the
fourth defendant to consider the plaintiff's application and to transfer the
name of the plaintiff instead of the second defendant's name in his patta
and for mandatory injunction against the fifth respondent to remove the
entry of the registered Document Nos.1149 and 1663 of 2014 executed
by the defendants 1 and 2 in his Registration Registers.
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14. According to the 2nd defendant, the suit schedule
property originally belonged to one Kulanthai Therace. The first
defendant purchased the same on 06.02.1998. The plaintiff, being the
son of the first defendant, had clandestinely approached his father stating
that he wanted to get loan from the Bank for his business purpose and he
wanted to give a security for the said loan, the plaintiff's father also
approached the Sub Registrar Office and only signed the document,
which has been made ready by the plaintiff and he was not aware of the
settlement deed and he had cheated the first defendant. In the year 2014,
immediately after coming to know about that fact, the 1st defendant had
cancelled the settlement deed. Further, on 13.10.2014, the 1st defendant
sold the property to the second defendant and patta mutation was also
made in the revenue records. The plaintiff is not entitled for the relief of
permanent injunction. The defendants 3 to 5 are misjoinder or
unnecessary parties.
15. The undisputed facts are that the property has been
purchased by the first defendant on 06.02.1998 and he was in possession
and enjoyment of the same. On 15.09.2000, the property has been settled
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in favour of the plaintiff by a registered Gift Settlement Deed and on
08.08.2014, the first defendant has cancelled the said document
unilaterally. Such an unilateral cancellation is not acceptable in law and
as per the settlement deed, the plaintiff is in possession and enjoyment of
the property.
16. E.A3 is the Gift (Dhana) Settlement Deed, dated
15.09.2000. On perusal of Ex.A3 would show that the it was executed
by the 1st defendant in favour of the plaintiff, and from that date
onwards, the plaintiff is the absolute owner of the property. Ex.A7 is the
Deed of Cancellation of Dhana Settlement, dated 08.08.2014. On
perusal of Ex.A7 would show that in the Dhana Settlement Deed no
condition or clause contained in respect of power to cancel the Dhana
Settlement Deed. Therefore, the 1st defendant did not have any title on
the said date either to cancel Ex.A3 or to execute sale deed, dated Ex.A8.
When that being the case, this Court comes to a categorical finding that
Ex.A7 is null and void. Further, the Registration Authorities does not
have any statutory power to cancel the documents unilaterally, without a
decree obtained from the competent court of law.
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17. At this juncture, it is worthwhile to refer the decision of
this Court in the case of D.V.Loganathan Vs. the Sub-Registrar, Office
of the Sub-Registrar, Pallavaram, Chennai and another reported in
2014(3) CTC 113 wherein it is observed that the Unilateral cancellation
of settlement deed is without jurisdiction and liable to be set aside.
Further, in the case of Samiappan and Others Vs. Rajamani reported
in CDJ 2014 MHC 5730, the Hon'ble Division Bench of this Court held
that the 'settlement deed cannot be set at naught unilaterally by one
party'.
18. Moreover, the Hon'ble Full Bench of this Court [Latif
Estate Line India Ltd., Vs. Hadeeja Ammal] reported in 2011 (2)
CTC 1 has held that unilateral cancellation of a registered sale deed
through a deed of cancellation is of no effect in law. The conclusion
drawn by the Full Bench as recorded in paragraph Nos.58 and 59 are
extracted hereunder:
“58. It can also not be overlooked or ignored that a
unilateral cancellation of a sale deed by registered
instrument at the instance of the vendor only encourages
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fraud and is against public policy. But there are
circumstances where a deed of cancellation presented by
both the vendor and the purchaser for registration has to be
accepted by the Registrar if other mandatory requirements
are complied with. Hence, the vendor by the unilateral
execution of the cancellation deed cannot annul a registered
document duly executed by him as such an act of the vendor
is opposed to public policy.
59. After giving our anxious consideration on the
questions raised in the instant case, we come to the following
conclusion:-
(i) A deed of cancellation of a sale unilaterally
executed by the transferor does not create, assign, limit or
extinguish any right, title or interest in the property and is of
no effect. Such a document does not create any encumbrance
in the property already transferred. Hence such a deed of
cancellation cannot be accepted for registration.
(ii) Once title to the property is vested in the transferee
by the sale of the property, it cannot be divested unto the
transferor by execution and registration of a deed of
cancellation even with the consent of the parties. The proper
course would be to re-convey the property by deed of
conveyance by the transferee in favour of the transferor.
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(iii) Where a transfer is effected by way of sale with
the condition that title will pass on payment of consideration,
and such intention is clear from the recital in the deed, then
such instrument or sale can be cancelled by a deed of
cancellation with the consent of both the parties on the
ground of non-payment of consideration. The reason is that
in such a sale deed, admittedly, the title remained with the
transferor.
(iv) In other cases, a complete and absolute sale can be
cancelled at the instance of the transferor only by taking
recourse to the Civil Court by obtaining a decree of
cancellation of sale deed on the ground inter alia of fraud or
any other valid reasons.”
19. Moreover, the contention of the learned counsel for the
second respondent that the suit is undervalued and the Court fee paid is
insufficient and hence, the suit is fit to be dismissed and the plaintiff is
not entitled to any relief, is concerned, the defendant has not adduced
any evidence how the suit is undervalued, or the Court fee paid on the
plaint is insufficient. A mere statement, without adducing any evidence,
the contention of the defendants cannot be accepted.
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20. For the reasons aforesaid, this Court is of the considered
view that no questions of law much less substantial questions of law has
been made out by the appellant/2nd defendant to interfere with the well
considered judgments and decrees rendered by the Courts below and
accordingly, the Second Appeal fails and the same stands dismissed. No
costs. Consequently, connected Miscellaneous Petitions are also
dismissed.
24.01.2022
Index : Yes/No
Internet : Yes/No
rm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized 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.The I Additional District Court,
Thoothukudi.
2.The Subordinate Court,
Thoothukudi.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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S.A(MD)No.31 of 2022
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.31 of 2022
24.01.2022
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