Madras High Court
Sivasankaran vs Anjanakshi @ Anjalakshmi on 22 December, 2023
1
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :22.12.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
Rev.Appl.No.28 of 2021
and C.M.P.No.2492 of 2021
and S.A.No.125 of 2020
1.Sivasankaran
2.Thavamani @ Mani
...Appellants
Vs.
1.Anjanakshi @ Anjalakshmi
2.The Tahsildar,
Taluk Office,
Arakkonam
...Respondents
Prayer: Second Appeal filed under Order 47 Rule 1 r/w Section 114 of
C.P.C., against the judgment and decree dated 25.02.2020 made in
S.A.No.125 of 2020 passed by Hon'ble Mr.Justice K.Kalyanasundaram.J on
the file of this Court.
For Appliants : Mr.Jeremiah Gregory John
For Respondents : Mr.V.Raghavachari
Senior Counsel
for Ms.V.Srimathi for R1
Mr.J.C.Durairaj
Additional Government Pleader
for R2
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2
JUDGMENT
This review application is filed seeking review of the
judgment and decree passed by this Court in S.A.No.125 of 2020.
2. The first respondent herein filed a suit for declaration
of the title and recovery of possession. She also prayed for a declaration
that settlement deed dated 19.07.2010 executed by the first applicant in
favour of his wife/second applicant was null and void. She also sought for a
decree to set aside the earlier ex-parte decree passed in O.S.No.221 of 1999
on the file of District Munsif Court, Arakkonam in a suit filed by first
applicant was null and void. The first respondent also sought for a
permanent injunction restraining the applicants from interfering with her
possession over the suit property.
3. The trial Court decreed the suit granting declaration of
title and recovery of possession in favour of first respondent. The trial
Court also granted a declaration that settlement deed executed by first
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applicant in favour of second applicant was null and void and not binding
upon the first respondent. The declaration sought for by the first respondent
in respect of the ex-parte decree passed against her was refused by the trial
Court. The prayer for injunction was also negatived. Aggrieved by the
said judgment, the applicants herein preferred an appeal in A.S.No.32 of
2016, on the file of the II Additional District Judge, Vellore @ Ranipet and
the same was also dismissed. Challenging the concurrent findings against
him, the applicants preferred second appeal before this Court and the same
was also dismissed. Now seeking review of the said judgment and decree
passed in the second appeal, the applicants are before this Court.
4. The first respondent claimed title over the suit property
by virtue of registered sale deed dated 07.10.1990. It was the case of the
first respondent that the first applicant herein illegally trespassed into the
property and illegally created a settlement deed in favour of second
applicant. The suit was mainly resisted by the applicants on the ground that
originally the first applicant entered the property as a cultivating tenant
under first respondent. Thereafter, he entered into a sale agreement for
purchase of the suit property for sale consideration of Rs.2,58,000/- and it
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was also claimed by the first applicant that he paid an advance amount of
Rs.50,000/- on the date of agreement namely 21.10.1999. Subsequently,
there was misunderstanding and exchange of notices between the parties
and new agreement was entered into on 19.05.2000.
5. The applicants also pleaded entire sale consideration
was subsequently paid to the first respondent and first applicant orally
purchased the property from first respondent. Thus they claimed that 1st
applicant had been in possession and enjoyment of the suit property as
absolute owner to the knowledge of the first respondent. Thereafter, on
19.07.2010, in his capacity as owner of the property, he executed the
settlement in favour of second applicant. On these pleadings, the applicants
sought for dismissal of the suit.
6. This Court on consideration of materials available on
record, came to the conclusion that oral sale pleaded by the first applicant
was not valid in the eye of law and the same would not convey any title to
first applicant. Therefore, being satisfied with the title of the first
respondent, this Court affirmed the concurrent findings of the Courts below
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as applicants failed to prove their title or adverse possession over the suit
property.
7. The learned counsel appearing for the review
applicants submitted that earlier first applicant obtained an ex-parte decree
of injunction against the first respondent in O.S.No.221 of 1999. In the
present suit, the first respondent sought for a declaration that ex-parte
decree obtained by first applicant was not valid and binding upon her. The
trial Court found that first respondent was not entitled to the said relief and
dismissed the suit in respect of the said prayer. The dismissal of the suit in
respect of the prayer to declare the settlement deed as null and void was
affirmed by the First Appellate Court as well as this Court in second appeal.
The learned counsel further submitted that when ex-parte decree obtained
by the first applicant is operating against the first respondent, the prayer for
recovery of possession made by first respondent is not at all maintainable.
The learned counsel further submitted that the apparent conflict between the
ex-parte decree in O.S.No.221 of 1999 and the decree for recovery of
possession granted in the present suit has not been considered by this
Court, while disposing of the second appeal and consequently, the same is
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deserved to be reviewed.
8. The earlier suit for injunction was filed by the first
applicant claiming himself as a cultivating tenant under first respondent.
However, the plea of cultivating tenancy was given up by the applicants in
the present suit. In the present suit, the applicants claimed title over the suit
property under the oral sale. It was their specific case that subsequent to the
ex-parte decree passed in the earlier suit, there was a sale agreement
between the first applicant and first respondent whereunder first applicant
agreed to purchase the suit property. Once applicants in their pleading
admitted that 1st applicant was in possession of the property under the
agreement and he orally purchased the suit property and had become
absolute owner of the same, it is not open to applicants to take shelter under
ex-parte decree for injunction granted in the earlier suit. As per their own
pleadings the alleged status of cultivating tenant has been superseded by
subsequent agreement of sale and oral sale. Therefore, unless the applicants
succeed in proving passing of title from first respondent to first applicant
under the sale transaction pleaded by them or by establishing adverse
possession against the first respondent, they have no defence to resist the
prayer for recovery of possession. Because the title of the first respondent
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is admitted and the prayer for recovery of possession was resisted only on
the ground of oral sale set up by the applicants. The first applicant by
asserting his title also settled the suit property in favour of his wife/second
applicant on 19.07.2010. The present suit was filed on 02.09.2010, even
assuming settlement executed by the first applicant was an act of hostile
possession the suit was filed within twelve years from the date of
settlement. In these circumstances, the applicants failed to prove their
defence plea against prayer for recovery of possession.
9. In view of the altered position and the specific plea
raised by the applicants asserting title by abandoning the earlier plea of
cultivating tenancy, the decree for injunction passed in the earlier suit will
not be a bar for first respondent to maintain a suit for recovery of possession
based on his title.
10. A decree for injunction will only protect the
possession of the first applicant from interference by first respondent
otherwise than due process of law. When the 1st respondent filed a suit for
recovery of possession based on her title, the decree for injunction obtained
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by the first applicant would not be a bar especially in the light of plea under
oral sale raised by the applicants in the present suit by abandoning the plea
of cultivating tenancy in the earlier suit. Therefore, this Court by taking
into consideration the failure of the applicant to establish oral sale pleaded
by them and absence of any evidence for adverse possession rightly
affirmed the decree for declaration and recovery of possession passed in
favour of first respondent. The submission made by the learned counsel for
the applicant, the earlier decree for injunction will operate as a bar for the
subsequent action for recovery of possession is not acceptable to this Court.
11. I do not find any error apparent on the face of record
enabling this Court to exercise review jurisdiction in this matter.
12. Accordingly, the review application is dismissed.
Consequently, connected miscellaneous petition is closed.
22.12.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
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ub
S.SOUNTHAR, J.
ub
Pre-delivery order made in
22.12.2023
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