Madras High Court
John Amarnath vs A.Thambiraj on 3 January, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
AS.No.614 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 18.12.2023
Pronounced on : 03.01.2024
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
AS.No.614 of 2014
John Amarnath ... Appellant
Vs.
A.Thambiraj ...Respondent
PRAYER: Appeal Suit is filed under Section 96 r/w Order 41 Rule 1 of CPC
to set aside the judgment and decree dated 26.03.2014 passed in OS.No.117 of
2011 on the file of the III Additional District Judge, Tiruvallur at Poonamallee.
For Appellant : Mr.M.Manivasagam
for M/s.M.Manivasagam Associates
For Respondent : Mr.K.Shanmugakhani
JUDGMENT
This appeal suit is filed against the judgment and decree dated
26.03.2014 passed in OS.No.117 of 2011 on the file of the III Additional
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District Judge, Tiruvallur at Poonamallee, thereby allowed the suit for
declaration and recovery of possession.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial Court.
3. The defendant is the appellant and the plaintiff is the
respondent. The case of the plaintiff is that the suit properties plot No.47, 48,
49 were purchased by the plaintiff by the registered sale deed dated
17.04.2009 vide document No.2232 of 2009 from the power holder
G.Selvakumar on behalf of his principal S.Senthil. Prior to the sale deed, one,
P.Dharmaraj, a real estate businessman acted as power agent on behalf of his
principals i.e. M/s.Alamelu and Gunasekaran who had executed power of
attorney to deal with the properties admeasuring 41 cents out of 57 cents of
land. The said 41 cents of land is part and parcel of the settlement deed in
favour of the principals vide document No.9701 of 1989 and patta No.565.
Thereafter, the power holder P.Dharmaraj along with other properties had
formed layout in the name and style of Annai Nagar for the total extent of the
property admeasuring 3.70 acres. The subject property plot Nos.47 to 49 are
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comprised in survey No.193/1A6. He had entered into an agreement for sale
with the defendant. However, the defendant had committed defaults in
payment of various instalments and no sale deed was executed in favour of the
defendant by the said P.Dharmaraj. In fact, he caused notice on 05.04.2007 to
get back the amount which was paid by the defendant. He had also given
public notice in the daily newspaper 'Makkal Kural' on 24.05.2007. Therefore,
the said agreement was unenforceable and the defendant cannot claim any
right or title over the suit properties. Therefore, the said P.Dharmaraj had
executed three different sale deeds in respect of plot No.47, 48 & 49 in favour
of three different persons by the registered sale deeds. All the three purchasers
had executed different power of attorney in favour of one, E.V.Saravanan to
deal with the subject properties. In turn, the power holder had executed three
different sale deeds in favour of the plaintiff's vendor. Thereafter, he had
executed power of attorney in favour of Mr.Selvakumar and in turn, he had
executed sale deed in favour of the plaintiff.
3.1 The further case of the plaintiff is that taking advantage of the
absence of the plaintiff from the month of July to Middle of October 2009, the
defendant trespassed into the property and had put up two huts and also
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obtained electricity connection. In fact, the plaintiff filed writ petition before
this Court in WP.No.8607 of 2010 for disconnection of electricity supply.
Therefore, the plaintiff caused notice and filed the suit.
4. Resisting the same, the defendant filed written statement stating
that the suit properties are in possession and enjoyment of the defendant.
Though the plaintiff had purchased the suit property by way of the sale deed
dated 17.04.2009, the plaintiff never had taken possession of the suit
properties. Insofar as the suit property is concerned, the defendant had entered
into an agreement for sale and agreed to pay the sale consideration by way of
instalments. After completion of entire payments by instalments, the said
Dharmaraj had handed over the possession of the suit properties and also
promised to executed sale deeds. The plaintiff was never in possession of the
suit properties. At the time of purchase of the suit properties, the possession
was not handed over to the plaintiff at any point of time. Therefore, the said
Dharmaraj had no title over the property and the sale deeds executed by him
are not valid. Even at the time of sale deed executed by the said Dharmaraj in
favour of third persons on 22.11.2007, no possession was handed over to
them. In turn, they had executed power of attorney in favour of one, Saravanan
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and in turn, he had executed sale deed in favour of Senthil on 24.11.2008.
Even at that point of time, no possession was handed over to the said Senthil.
In turn, the said Senthil had executed sale deed through his power holder
Selvakumar in favour of the plaintiff on 17.04.2009. Therefore, from the year
1995 onwards, the defendant is in possession and enjoyment of the suit
properties. He had put up construction and also obtained electricity service
connection. The writ petition filed by the plaintiff also got dismissed and
directed to approach the civil court.
4.1 The defendant further stated that the defendant originally booked
four plots No.39, 47, 48, 49 from the said P.Dharmaraj. Thereafter, the
defendant had paid all the instalments regularly and executed sale deed in
favour of the defendant's wife in respect of plot No.39 alone in the month of
March 2000. However, insofar as plot No.47 to 49, the sale consideration was
increased into many folds after entering into agreement for sale. Therefore, the
defendant refused to pay the illegal demand made by the said Dharmaraj.
Therefore, the other investors lodged complaint along with the defendant.
However, one FIR was registered in crime No.923 of 2007 for the offence
under Sections 420, 406 and 506(i) of IPC, in which the defendant also stood
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as one of the witness. Therefore, he prayed for dismissal of the suit for
declaration and recovery of possession.
5. On hearing the rival pleadings, the learned trial Judge framed the
following issues for determination of the suit :-
1) thjp tHf;Fj;brhj;jpd; chpikahsuh>
2) thjp nfhhpa[s;s tpsk;gi
[ f ghpfhuk; tHf;Fr;brhj;jpy;
fpilf;ff;Toajh>
3) thjpf;F tHf;Fr;brhj;jpd; RthjPdk;
fpilf;fj;jf;fjh>
4) thjpf;F epue;ju cWj;Jf;fl;lis ghpfhuk;
fpilf;fj;jf;fjh>
5) thjpf;F ntW vdd ghpfhuk; fpilf;fj;jf;fJ>
6. In support of the plaintiff's case, P.W.1 was examined and fifteen
documents were marked as Ex.P.1 to Ex.P.15. On the side of the defendant,
D.W.1 and D.W.2 were examined and Ex.D.1 to Ex.D.30 were marked. On
considering the oral and documentary evidences adduced by the respective
parties and the submission made by the learned counsel, the trial Court partly
decreed the suit. Aggrieved by the same, the defendant has filed this appeal
suit.
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7. The learned counsel for the defendant would submit that all the
sale deeds executed in favour of the plaintiff and his vendor are sham and
nominal, because no possession was handed over to any of his vendor after
execution of sale deed. In the year 1995 itself, the defendant entered into an
agreement in the instalment scheme. After payment of the entire amount, in the
year 1998, the said Dharmaraj had entered into an agreement for sale with the
defendant and he was put in possession even in the year 1998 itself.
Thereafter, he had put up a hut in the said properties and also obtained
electricity service connection. The said Dharmaraj was a real estate broker and
he cheated so many persons and after having been received the entire sale
consideration, he failed to execute any sale deed in favour of the investors.
Therefore, all the victims lodged complaint and FIR was registered for the
offence punishable under Sections 406, 420 & 506(i) of IPC on the file of the
Inspector of Police, T3 Korattur Police Station in crime No.923 of 2007,
which culminated into trial in CC.No.22 of 2009 on the file of the Judicial
Magistrate, Ambattur. Therefore, the plaintiff is none other than a name lender
and the said Dharmaraj encumbered the property after having been entered
into agreement for sale with the defendant. Though the defendant claimed
adverse possession and also permissive possession under Section 53A of the
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Transfer of Property Act, he cannot seek relief on both heads since it is not
maintainable. Therefore, he restricted the relief only under Section 53A of the
Transfer of Property Act.
8. Per contra, the learned counsel for the plaintiff would submit that
the plaintiff is a bonafide purchaser under the registered sale deed for valid
sale consideration. When the plaintiff was not in station, the defendant
illegally encroached and put up hut in the suit properties. Thereafter, he also
obtained electricity service connection. Therefore, the plaintiff also filed writ
petition before this Court in WP.No.8607 of 2010. Though the writ petition
was dismissed, the plaintiff was directed to submit fresh representation for
disconnection of electricity service obtained by the defendant and the same
was directed to be considered subject to the result of this appeal suit. The
criminal case initiated as against the plaintiff's vendor also ended in acquittal
by the judgment dated 10.02.2021. The defendant cannot blow hot and cool air
at the same time by claiming adverse possession and also permissive
possession as contemplated under Section 53A of the Transfer of Property Act.
Though the defendant contended that he paid the entire sale consideration and
thereafter the said Dharmaraj failed to execute sale deed, the defendant failed
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to produce any receipt for the entire payments of sale consideration. Even he
categorically admitted that part of the sale consideration was not paid and as
such, the said Dharmaraj had executed sale deed in favour of other third
parties. Hence, the trial court rightly decreed the suit. As such, he prayed for
dismissal of this appeal suit.
9. Heard, Mr.M.Manivasagam, the learned counsel appearing for the
defendant, and Mr.K.Shanmugakhani, the learned counsel appearing for the
plaintiff.
10. On hearing both sides, the following points arise for
consideration in this appeal suit.
(i) Whether the plaintiff is entitled for the relief of
declaration and recovery of possession?
(ii) Whether the possession of the defendant is protected
under Section 53A of the Transfer of Property Act?
11. The plaintiff purchased the suit properties by the registered sale
deed dated 17.04.2009 vide document No.2232 of 2009. The suit properties
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are plot Nos.47 to 49 comprised in survey No.193/1A6. Originally the suit
property along with other properties were owned by one, Dharmaraj. He laid
out the properties into house plots in the name of Annai Nagar. He floated
scheme to sell the house plots. In the said scheme, various persons joined and
they paid sale consideration by way of instalments. Accordingly, the defendant
booked four house plots i.e. plot Nos.39, 47 to 49. Though he had paid
substantial amount, insofar as the plot No.47 to 49, he failed to pay the entire
sale consideration. Therefore, no sale deed was executed in favour of the
defendant by the said Dharmaraj. Insofar as the plot No.39 is concerned, he
had paid full sale consideration and the same plot was registered in favour of
the defendant's wife in the year 2000 itself. Since the defendant failed to pay
the entire sale consideration, plots were sold out to the third parties by three
different sale deeds dated 22.11.2007. All the three sale deeds were registered
vide document No.12573 to 12575 of 2007. The purchasers had executed
three power of attorneys dated 11.11.2008 in favour of one, E.V.Saravanan
vide document No.1294, 1293 & 1295 of 2008. In turn, the power holder had
executed sale deeds in favour of one, Senthil who is none other than the
vendor of the plaintiff. In turn, the said Senthil had executed power of attorney
in favour of one, Selvakumar vide document No.269 of 2009 dated
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16.04.2009. On the strength of the power of attorney, the said power holder
had executed sale deed in favour of the plaintiff dated 17.04.2009. Whereas
the defendant claims title over the property by the unregistered agreement for
sale dated 01.06.1998, 18.06.1998. He also marked passbook to show that he
paid some instalments in order to purchase the house plots No.47 to 49.
Therefore, by the registered sale deeds, the plaintiff and his vendors had
derived title over the suit properties. Further, when the plaintiff was not in
station, the defendant had trespassed into the suit property and had put up hut
and also obtained electricity service connection.
12. Insofar as the title is concerned, the plaintiff categorically proved
his case and the trial court rightly decreed the suit. Insofar as the possession is
concerned, though the plaintiff stated that when the plaintiff was in
Kanyakumari, the suit properties were trespassed by the defendant and put up
a hut, the other documents which were marked by the defendant are clear that
the defendant was put in possession of the suit properties at the time of
agreement for sale. However, the defendant failed to pay the entire instalments
and as such, no sale deeds were executed in respect of plot Nos.47 to 49.
Insofar as the plot No.39 is concerned, he had paid the entire instalments and
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as such, the plaintiff's vendor Dharmarj had executed sale deed in favour of
the defendant's wife. It is also evident from the criminal complaint lodged by
the other persons who had entered into agreement for sale with the said
Dharmaraj for non registration of sale deeds in their favour, in which the
defendant is one of the witnesses. The criminal case ended in acquittal.
13. On perusal of the deposition of various persons who had entered
into an agreement for sale with the said Dharmaraj, they had deposed that after
payment of some instalments, the said Dharmaraj due to escalation of the
value of the property and other expenses, they were asked to pay some more
amount. After payment of the said amount, they were registered sale deeds by
the said Dharmaraj. Therefore, his vendor was acquitted by the criminal court.
However, the defendant failed to pay the balance sale consideration as
demanded by the said Dharmaraj and as such, no sale deeds were executed in
his favour in respect of plot Nos.47 to 49. Though the defendant claims
protection under Section 53A of the Transfer of Property Act, the agreement
for sale should be registered. Whereas the agreement entered between the
defendant and the said Dharmaraj are unregistered one dated 01.06.1998 and
18.06.1998. Though the defendant was put in possession, he failed to pay the
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balance sale consideration and as such, no sale deed was executed in his
favour. Therefore, the defendant is not entitled to have protection under
Section 53A of the Transfer of Property Act.
14. That apart, the defendant did not take any steps to register the
sale deed in his favour as against the said Dharmaraj. If at all the defendant
had paid entire sale consideration, definitely he would have stepped into filing
a suit for specific performance. No prudent man would keep quiet after having
been paid the entire sale consideration without insisting for registration of sale
deed. In fact, the said Dharmaraj had given public notice in the daily
newspaper on 24.05.2007 in respect of the suit properties. After period of four
months, he had executed sale deed to three different persons. Therefore, the
plaintiff is a bonafide purchaser and there is absolutely no collusion or
conspiracy between the plaintiff and the said Dharmaraj. As such, all the
points are answered in favour of the plaintiff and this Court finds no infirmity
or illegality in the judgment and decree passed by the trial court. Hence, this
appeal suit is liable to be dismissed.
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15. Accordingly, this appeal suit is dismissed and the judgment and
decree dated 26.03.2014 passed in OS.No.117 of 2011 on the file of the III
Additional District Judge, Tiruvallur at Poonamallee is confirmed. No order as
to costs.
03.01.2024
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lok
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To
1.The III Additional District Judge,
Tiruvallur at Poonamallee.
2.Section Officer,
V.R.Section,
High Court of Madras
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G.K.ILANTHIRAIYAN, J.
lok
03.01.2024
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