Madras High Court
K.Shafika Begum vs Syed Farooq on 2 January, 2024
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.908 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.01.2024
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No. 908 of 2023
&
C.M.P. No. 29231 of 2023
K.Shafika Begum ...Appellant
Vs.
1.Syed Farooq
2.T.M.Shakir Ahmed ...Respondents
Prayer: Second Appeal is filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 20.12.2022
passed in A.S.No.08 of 2020 on the file of the III Additional District
Judge, Vellore at Tirupattur confirming the Jugdement and Decree
dated 06.11.2019 passed in O.S.No.13 of 2012 on the file of the
Subordinate Judge, Vaniyambadi.
1/12
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S.A.No.908 of 2023
For Appellant : Mr. K.Thiruvengadam.
JUDGMENT
The plaintiff who has unsuccessfully contested the suit for
permanent injunction before the Courts below is the appellant before
this Court. The facts in brief preceding the filing of the above Second
Appeal is herein below set out and the parties are referred to in the
same ranking as before the Trial Court.
2. The plaintiff has filed the suit O.S.No.13 of 2012 on the file
of the Sub Court, Vaniyambadi seeking declaration of her title to the
suit schedule property along with the relief of injunction. It is her
case that the suit property belongs to her father Kathif Mohamed
Ismail Sahib, under a registered partition deed dated 14.06.1988.
Thereafter, her father had executed a settlement deed in favour of the
plaintiff on 08.09.2004 and the same was registered as a Doc.No.3070
of 2004 on the file of the Sub Registrar Office, Vaniyambadi. The
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plaintiff was on the very same day put in possession of the suit
property, in which she continues to be in possession to date.
3. It is the contention of the plaintiff that she used the premises
to dump waste construction material and other articles. She would
submit that the defendants, who are third parties to the property
having no semblance of right to it had damaged the fencing on
14.01.2012. The plaintiff had lodged a complaint before the Town
Police, Vaniyambadi against the defendants. However, since the
defendants had considerable political clout, no action was taken
against them. The plaintiff being a pardhasin lady, was unable to
lodge a complaint in person but had sent the complaint along with the
photos taken by her through Registered post. The defendants had
threatened that they would somehow vacate the plaintiff from the
property. Hence, the plaintiff has come forward with the suit.
4. The 1st defendant had filed a written statement inter alia
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denying the contents of the plaint and submitting that the plaintiff had
come to the Court with a false case. The plaintiff and her sister, one
K.Athika Firdoz jointly executed an agreement of sale of the
properties belonging to them which are detailed in Schedule A and B
in the suit in favour of the defendants. They had agreed to sell the
said property at Rs.1350/- per sq.ft., On the date of the agreement, a
sum of Rs.25,80,000/- was received by the plaintiff and her sister
from the defendants, towards sale transaction.
5. Thereafter, on 12.10.2011 a further sum of Rs.1,00,000/- was
received by them. A possession was delivered to the defendants who
accepted the same as part performance of the contract of sale.
Thereafter, the plaintiff and her sister had extended time of the
agreement till 31.01.2012. On 03.01.2012, the plaintiff's sister Athika
Firdoz sold her property which is described in Schedule A to the 2nd
defendant. In fact, the property of Athika Firdoz was mortgaged with
the Bank at Salem for the loan raised by Abrar's leathers. The said
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Athika Firdoz had discharged the loan and got back title deeds and
thereafter entered into an agreement with the 2nd defendant.
6. As regards B Schedule property belonging to the plaintiff, the
defendants had been ready and willing to execute their part of the
agreement. However, the plaintiff has not been coming forward to
comply the obligations under one pretext or the other. Therefore, the
defendants issued a legal notice dated 20.01.2012 to the plaintiff
informing their readiness and willingness to proceed with the
agreement of sale and calling upon the plaintiff to be present at the
Sub Registrar Office, Vaniambadi, on 01.02.2012. The plaintiff had
received the notice but failed to turn up for registration.
7. Thereafter, on 31.01.2012, a reply was received from the
plaintiff putting forward false allegations. The allegations of trespass
pleaded is absolutely false, since the defendant has already been put
in possession of the property pursuant to the agreement of sale entered
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on 04.10.2011. Therefore, the defendants sought to have the suit
dismissed. The defendants had also stated that they had filed a suit
for specific performance in O.S.No.14 of 2012 on the file of the
District and Principal Sessions Judge, Vellore and the same was
pending.
8. The Trial Court had framed the following issues:
“(i)Whether the plaintiff is entitled for the relief of
declaration as prayed for?
(ii)Whether the plaintiff is entitled to the relief of
permanent injunction?
(iii)Whether the suit is properly valid?
(iv)Whether this court has pecuniary jurisdiction?
(v)To what other relief the plaintiff is entitled for?
9. The plaintiff's husband examined himself as P.W.1 and third
party witness has been examined as P.W.2. Ex.A.1 to Ex.A.8 were
marked on their side. The defendants on their part examined the 2nd
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defendant as D.W.1 and Ex.B.1 to Ex.B.13 were marked.
10. The Trial Court decreed the suit with reference to
declaration and dismissed the suit with reference to permanent
injunction.
11. Aggrieved by the same, the plaintiff has filed an appeal in
A.S.No.8 of 2000 on the file of the III Additional Judge, Vellore. The
learned Judge by Judgement and Decree dated 20.12.2022 was
pleased to dismiss the appeal, against which the present Second
Appeal has been preferred by the plaintiff.
12. Heard the learned counsel and perused the records.
13. The plaintiff has totally suppressed the agreement of sale
between her and the 1st defendant as also the suit for specific
performance pending between her and the 1st defendant in O.S.No.14
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of 2012 on the file of the District and Principal Sessions Judge,
Vellore. Having put the defendants in possession of the property,
pursuant to the agreement of sale and receipt of the sum of
Rs.25,80,000/- on the date of the agreement i.e., on 04.10.2011 and
the further sum of Rs.1,00,000/- on 12.10.2011, the plaintiff has come
forward with a false case that the defendants have trespassed into the
property. Therefore, the allegation that the defendants had trespassed
into the property cannot be countenanced and the Courts below have
rightly rejected the decree for permanent injunction.
14. The Trial Court had taken into consideration the fact that the
defendants have themselves admitted the title of the plaintiff to the
suit property which is obvious from the fact that they have entered into
an agreement of sale with the plaintiff and they had filed a suit for
specific performance against the plaintiff. Therefore, the Judgement
and Decree of the Courts below cannot be found fault with reference
to the decree for the permanent injunction.
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15. Both the Courts below have considered the evidence on
record and taken into account the fact that the suit for specific
performance had been decreed in favour of the defendants. Though
the learend counsel for the plaintiff would submit that an appeal has
been filed against the Judgement and Decree in O.S.No.27 of 2012,
however the same would have no bearing on the instant case, since the
Courts below have declared the plaintiff's title to the property and has
non suited her with reference to the decree for permanent injunction,
only on the ground that under the sale agreement, she has put the
defendants in possession of the property which has also been proved
by the defendants.
16. Therefore, I see no reason to interfere with the well
considered Judgement and Decree of the Courts below and
accordingly, the Second Appeal is dismissed. Consequently, the
connected Civil Miscellaneous Petition is closed. No costs.
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02.01.2024
Index : Yes/No
Internet : Yes/No
kan
To
1.The III Additional District Judge,
Vellore.
2.The Subordinate Judge,
Vaniyambadi.
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P.T. ASHA, J,
kan
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02.01.2024
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