Madras High Court
Sivagurunathan(Died) vs Muthuvelkumar on 28 December, 2023
S.A(MD)No.145 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.12.2023
CORAM
THE HONOURABLE MRS.JUSTICE R. KALAIMATHI
S.A(MD)No.145 of 2013
and
Cros.Obj(MD)No.23 of 2013
Sivagurunathan(Died)
2.Sundari
3.Balamurugan
4.Arunachalam
5.Muthukrishnan
6.Poolpandi
7.Angammal
8.Shanmugathai ...Appellants/Respondents/
Defendants
(A2 to A8 are brought on record as LRS of the
deceased sole appellant vide Court order
dated 21.09.2022)
-Vs-
Muthuvelkumar ...Respondent/Appellant/Plaintiff
PRAYER: Second Appeal has been filed under Section 100 of the
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S.A(MD)No.145 of 2013
Civil Procedure Code, against the judgment and decree, dated
27.07.2012 made in A.S.No.55 of 2011 on the file of the III Additional
District & Sessions Judge, Tirunelveli, reversing the judgment and
decree, dated 01.10.2010 made in O.S.No.139 of 2007 on the file of
the Principal Sub-Court, Tirunelveli.
For Appellants : Mr.S.Meenakshi Sundaram
for M/s.R.Manimaran
For Respondent : Mr.H.Arumugam
Cros.Obj(MD)No.23 of 2013
Muthuvelkumar ...Cross Appellant/Respondent
-Vs-
Sivarurunathan(Died)
2.Sundari
3.Balamurugan
4.Arunachalam
5.Muthukrishnan
6.Poolpandi
7.Angammal
8.Shanmugathai ...Respondents/Appellants
(R2 to R8 are brought on record as LRS of the
deceased sole appellant vide Court order
dated 21.09.2022)
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S.A(MD)No.145 of 2013
PRAYER: Cross objection filed under Order 41 Rule 22 of the Civil
Procedure Code, to set aside the judgment and decree, dated
27.07.2012 passed in A.S.No.55 of 2011 on the file of the III
Additional District, Tirunelveli, against the judgment and decree,
dated 01.10.2010 passed in O.S.No.139 of 2007 on the file of the
Principal Sub-Court, Tirunelveli.
For Appellants :Mr.H.Arumugam
For Respondent : Mr.S.Meenakshi Sundaram
for M/s.R.Manimaran
JUDGMENT
The legal heirs of the sole defendant Sivagurunathan have
preferred this second appeal against the findings of the trial Court as
well as the first appellate Court, (III Additional District and Sessions
Judge), Tirunelveli, in A.S.No.55 of 2011.
2. The plaintiff filed a suit in O.S.No.139 of 2007 before the
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Principal Sub-Court, Tirunelveli, for the relief of recovery of
possession and for mesne profits in respect of the house property
and for permanent injunction in respect of 83 cents of Nanja land
situated in S.No.82/1, at Keelragavapuram Village.
3. Challenging both Court's judgment, the defendant has
preferred this second appeal The cross objection is filed by the
plaintiff as he was denied the relief of mesne profits in respect of
house property.
4. Parties are indicated as per their litigative status and
ranking made before the trial Court.
5. According to the plaintiff Muthuvel Kumar, the first item of
the suit property(house) was purchased by his father Shanmugavel
through registered sale deed on 21.03.1984 and his father executed
a settlement deed, on 25.07.1995 in favour of the plaintiff. The
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second item of suit property was purchased in the name of the minor
plaintiff by his paternal grandfather Sudalaimuthu Konar, on
05.12.1990. The said properties are being enjoyed by the plaintiff,
since the date of purchase, [Exs.A1 and A5]. His paternal
grandfather Sudalaimuthu Konar, claiming that the properties
belonged to him and executed a sale agreement in respect of suit
properties (1st and 2nd item) on 22.02.2001, in favour of the
defendant. But, he does not have any right to execute the same.
When the plaintiff came to know about the said sale agreement, he
caused to issue a legal notice to the defendant. As the defendant
tried to interfere with the peaceful possession and enjoyment of the
suit property, he filed the suit.
6. Contending contra, the defendant Sivagurunathan rather
has stated that it is incorrect to state that the suit property belonged
to the plaintiff's father and he executed a settlement deed in favour of
the plaintiff. The defendant further claims that the said Sudalaimuthu
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Konar has agreed to sell the suit property for a sale consideration of
Rs.1,50,000/- and on receipt of Rs.51,000/- from him as an advance,
he executed a registered sale agreement on 22.02.2001 in his
favour. He would also contend that only the grandfather
Sudalaimuthu Konar paid the sale consideration. Hence, he prays for
dismissal of the suit.
7.Based on the rival submissions, the trial Court framed the
following issues.
(1)Whether the plaintiff is entitled to get a relief of
permanent injunction?
(2)Whether the plaintiff is entitled to get a relief of recovery
of possession?
(3)Whether the Court fee paid is correct or not?
(4)To what other relief the plaintiff is entitled to?
8.At trial, the plaintiff's mother Lakshmi was examined as
P.W.1 and one Subbiah was examined as P.W.2. Exs.A1 to A21 were
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marked. The sale deed in respect of the first item, executed in favour
of the plaintiff's father Shanmugavel dated 21.03.1984, is Ex.A1.The
settlement deed executed by father Shanmugavel in favour of his son
plaintiff(first item), dated 25.07.1995 is Ex.A2. On the side of the
defendant, the defendant has examined himself as D.W.1. Exs.B1 to
B4 were marked. The sale agreement, dated 22.02.2001, executed
between Sudalaimuthu Konar and Sivagurunathan is Ex.B1.
9.The trial Court concluded that the plaintiff has proved that
the first item of the property which was purchased by his father
through Ex.A1 and it was settled to the plaintiff through Ex.A2.
Further, it was held that as the plaintiff has not proved the possession
as regards the relief of recovery of possession, the suit was
dismissed. The second schedule of property was purchased in the
name of the plaintiff through Ex.A5 by his grandfather as a guardian,
permanent injunction was granted in respect of the second item of
suit schedule property.
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10 .Aggrieved, the plaintiff preferred first appeal before the
III Additional District Court, Tirunelveli, in A.S.No.55 of 2011. The first
appellate Court, after evaluating the evidence, has concluded that
the first item of suit property belongs to the plaintiff by way of
settlement deed, which was executed by his father Shanmugavel on
25.07.1995. Noting that the sale agreement is not binding upon the
plaintiff and as the defendant is in possession of the first item of the
suit property, treating him as trespasser and held that the plaintiff is
entitled for recovery of possession from the defendant.
11. The learned counsel appearing for the
appellant/defendant Mr.S.Meenakshi Sundaram for Mr.R.Manimaran,
would strenuously contend that the first and second items of the suit
schedule property though purchased in the name of the plaintiff's
father and in the name of the plaintiff, Sudalaimuthu Konar paid the
sale consideration. Therefore, Sudalaimuthu Konar executed a
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registered sale agreement in favour of the defendant, on 22.02.2001,
on receipt of Rs.51,000/- as an advance for sale consideration of Rs.
1,50,000/- and the possession was also handed over to the
defendant. It is his further argument that the grandfather has got
every right to execute the sale agreement.
12. Per contra, the learned counsel appearing for the
respondent/plaintiff Mr.H.Arumugam would vehemently argue that the
defendant is not entitled to plead benami. The grandfather alone has
to prove the plea of benami. At the best, the defendants can file a
suit for specific performance and prays for dismissal of appeal.
13. As regards the cross objection, Mr.H.Arumugam,
learned counsel appearing for the respondent would argue that in
respect of the first item, the relief of recovery of possession and
mesne profits were prayed for. The first appellate Court granted
recovery of possession, but not ordered for mesne profits, which he
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is entitled to.
14. The following substantial question of law arises for
consideration:
Whether the first appellate Court was correct in
granting the relief of recovery of possession and
injunction, without seeking the relief of declaration, when
the title is stoutly denied?
15. P.W.1, the mother of the plaintiff has spoken about the
settlement deed, dated 21.03.1984(Ex.A1). The property was
purchased by the father Shanmugavel in favour of his son plaintiff.
On 25.07.1995, through Ex.A5, he executed a settlement deed in
favour of his son, 1st plaintiff and it was acted upon. Thereby he
became the owner of the first schedule of property. The second item
was purchased on 05.12.1990, in the name of minor plaintiff by the
guardian Sudalaimuthu Konar. Both the properties are in the name of
the plaintiff.
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16. It is pertinent to note that the defendant contends that
he entered into a sale agreement with Sudalaimuthu Konar,
grandfather of the plaintiff, on 22.02.2001 with regard to both item.
During his cross examination, he has stated that he did not enquire
about the details of the owner of the properties. It is settled
proposition of law that he should be aware of these details. Benami is
pleaded by the defendant. As per Section 101 of Indian Evidence Act,
1872, one who pleads has to prove. But, he has not proved the
same. The said Sudalaimuthu Konar has no semblance of right to
execute the sale agreement. Therefore, the defendant can never
canvass his right through the invalid sale agreement. Therefore, the
plaintiff is entitled for recovery of possession, consequently, is also
entitled for mesne profits, which is to be decided in a separate
proceedings under Order 20 Rule 12 of C.P.C.
17. But the defendant has entered into a sale agreement
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with the grandfather of the plaintiff Sudalaimuthu Konar, in respect of
both the items of suit properties. Having entered into a sale
agreement with the person, who does not have any semblance of
right or title, it should not lie in the mouth of the defendant that the
plaintiff should have filed the suit for the relief of declaration also.
The substantial question of law is answered in favour of the plaintiff.
18. Based on the aforesaid discussions, this Second Appeal
stands dismissed. The suit in O.S.No.139 of 2007 is decreed as
prayed for. The Cross Objection stands allowed. The plaintiff is also
entitled for mense profits to be decided in a separate proceedings
under Order 20 Rule 12 of C.P.C. There is no order as to costs.
28.12.2023
NCC:Yes/No
Index:Yes/No
Internet::Yes/No
To
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1.The III Additional District &
Sessions Judge,
Tirunelveli,
2.The Principal Sub-Court,
Tirunelveli.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
R. KALAIMATHI,J.
Ns
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and
28.12.2023
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