Madras High Court
V.Porkadi vs R.Lakshmi Devi (Deceased) on 1 July, 2024
Author: T.V.Thamilselvi
Bench: T.V. Thamilselvi
A.S.No.379 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.07.2024
CORAM
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
A.S.No.379 of 2017
and
CMP.Nos.10269, 14245, 15303, 15304 & 15305 of 2018
1.V.Porkadi
2.V.Senthil
3.V.Gangapriya alias V.Ganga ... Appellants
Versus
R.Lakshmi Devi (Deceased)
2.The Sub-Registrar,
Villivakkam
Sub-Registrar's Office,
MTH Road, Chennai-600 050.
3.The Collector,
Thiruvallur District.
4.R.Padmanabhan
5.R.Ramkumar ... Respondents
(R4 & R5 are brought on record as LRs of the deceased 1st respondent vide
order of this Court dated 17.07.2018 made in CMP.No.7217 of 2018 in
A.S.No.379/2017 by NSSJ. )
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A.S.No.379 of 2017
PRAYER: Appeal Suit filed Under Section 96 of the Code of Civil Procedure,
praying to set aside the Judgment and decree dated 20.04.2017 passed in
O.S.No.49 of 2015 on the file of III Additional District Judge, Thiruvallur,
Poonnamallee.
For Appellants : Mr.AR.L.Sundaresan, Senior Counsel
for M/s.TKS. Bharathy Anandraj
For R2 & R3 : Mr.T.Sampath Kumar
Government Advocate
For R4 & R5 : Mr.T.V.Ramanujam, Senior Counsel
for Mr.A.Arumugam
ORDER
The appellant has filed this appeal to set aside the Judgment and decree
dated 20.04.2017 passed in O.S.No.49 of 2015 on the file of III Additional
District Judge, Thiruvallur, Poonnamallee.
2. Heard Mr. AR.L.Sundaresan, learned Senior Counsel, appearing
for M/s.TKS. Bharathy Anandraj, learned counsel for the appellants and Mr.
T.Sampath Kumar, learned Government Advocate appearing for the
respondents 2 and 3 and Mr.T.V.Ramanujam, learned Senior Counsel for
Mr.A.Arumugam, learned counsel appearing for the respondents 4 & 5 and
perused the materials available on record.
3. For the purpose of convenience, the parties herein are referred to as
they are ranked in the suit.
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4. The appellants herein are the defendants 1 to 3 in suit O.S. No. 49 of
2015 on the file of the III Additional District Judge, Thiruvallur,
Poonnamallee. The defendants 1 to 3 have preferred this First Appeal
challenging the findings rendered by the learned trial Judge in favor of the 1st
respondent/plaintiff by granting relief of declaration as well as directing them
to hand over possession of the ground floor with damages. The 1st respondent
is the plaintiff who filed a suit against the defendants for declaration with
consequential reliefs. After the decree, the plaintiff was died her legal heirs
were added as respondents 4 and 5 in the appeal.
5. The brief facts of the case are as follows:
According to the plaintiff, she purchased the suit property in plot
No.1026 in Padi village, Survey No.290, in TDS Colony, Anna Nagar West,
from one Venugopal, who is the husband of the 1st defendant herein. The
plaintiff further submits that originally the said plot was allotted to her vendor
Venugopal through the Tamil Nadu Housing Board on 30.12.1985 by
registering the sale deed in his favor. With an intention to sell, he entered into
a sale agreement with the plaintiff on 31.07.1985. On that date, possession of
the property and other relevant documents were handed over to her, and a
General Power of Attorney was executed in favor of her son on the same day.
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Thereafter, on 09.01.1986, Venugopal executed a sale deed in her favor. On
01.12.1989, a release deed executed by the Housing Board was also handed
over to her. Since the sale agreement dated 30.07.1985, the plaintiff has been
in absolute possession and enjoyment of the property, having also constructed
a building in 1985 with proper approval from CMD, along with water and
electricity connections, and tax imposed on her. Due to her old age, she
resides in Nagapattinam. Therefore, the ground floor and the 1st floor were
rented to two individuals separately. Subsequently, the original vendor
Venugopal died, and his legal heirs/defendants 1 to 3 claimed ownership of
the property and also offered to sell it unlawfully. They also requested the
Revenue Authority to transfer the tax in their favor, but upon a perusal of the
records, their request was refused. The rectification deed was also mentioned
in favor of the plaintiff as it was falsely recorded as a sale deed instead of a
release deed. The plaintiff enjoyed the property without encumbrance, but the
defendants 1 to 3 trespassed into the property and occupied the ground floor,
leading to the suit. D1 to D3, the legal heirs of the plaintiff's vendor
Venugopal, contested the suit as defendants 1 to 3, stating that the property
was originally allotted to D1's husband Venugopal in 1974. Venugopal paid
the installments to the Housing Board, and subsequently, on 07.01.1996, a
sale deed was executed in his favor with a condition not to sell the property
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for 5 years. On 01.12.1989, the conditions were relaxed and a release deed
was executed by the Board, after which D1's husband became the absolute
owner and enjoyed the property. The defendants claimed that the plaintiff
created fabricated documents and executed a fabricated sale deed in respect of
the suit property, denying that Venugopal had executed any sale deed in favor
of the plaintiff. The defendants argued that they had enjoyed the property for
40 years and denied the plaintiff's claim and before the trial court four issues
were framed.
6. Both parties adduced oral and documentary evidence. On the side of
the plaintiff, P.W.1 to P.W.3 were examined and Ex.A1 to A39 were marked.
On the side of the defendants, D.W.1 to D.W.3 were examined and Ex.B1 to
Ex.B19 were produced.
7. By relying on the oral and documentary evidence, the learned trial
Judge concluded that the execution of the sale deed was in favor of the
plaintiff. The learned trial Judge held that the sale deed stands in the name of
the plaintiff, which was accepted by DW.1 during the evidence, and that the
sale deed is a 30-year-old document, thereby invoking the presumption under
Section 90 that 30-year-old documents are deemed to be proved. The
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defendants did not provide material evidence to disprove Ex.A5, the sale deed
executed by Venugopal in favor of the plaintiff, and the defendants did not
file any suit despite being aware of the sale deed in the plaintiff's name.
Accordingly, the sale deed in the plaintiff's name was deemed valid.
Furthermore, the court noted that as per the condition imposed by the
Housing Board, "if the purchaser intends to sell the property within a period
of 5 years, the property would be offered for sale in the first instance to the
vendor herein" with a pre-emption clause. However, since the Housing Board
subsequently executed a release deed after Venugopal fulfilled the conditions
embodied in the documents on 07.01.1996, any deviation by Venugopal
would only entitle the Housing Board to raise objections, not third parties.
Therefore, the objection raised by the defendants was not accepted, and the
suit was decreed in favor of the plaintiff, declaring her as the absolute owner
and ordering the defendants to vacate the ground floor and pay damages, with
further directions to hand over the property within a period of two months.
8. Challenging the said findings, the defendants have preferred this
First Appeal on the following grounds:
i. The trial Court failed to note that this first appellant, M.G.Venugopal
got a conditional sale deed executed in his favour on 07.01.1986 by Tamil
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Nadu Housing Board with a condition that not to sale within five years to
outsider and whereas this Court had appreciated a sale made in favour of this
respondent / plaintiff on 09.01.1986, where it is unlawful as per the allotment
order and also as per conditions in conditional sale deed and the Court also
failed to note that on 09.01.1986 this M.G.Venugopal is not the absolute
owner of the suit property who has no alienable right.
ii. The lower Court failed to observe that the last transaction pertaining
to suit property viz., 01.12.1989 stands in the name of M.G.Venugopal, the
husband of 1st appellant and the P.W.2 (Respondent / Plaintiff) son is a
witness to the document having full knowledge of title in 1989 failed to file a
suit for declaration of title within 3 years and had opted to file a suit in 2015
after 27 years is absolutely against Article 58 of the Limitation Act, whereas
judgment is totally kept silent regarding this issue.
iii. The Lower Court failed to observe the real purpose for what the
house site was allotted to allottees by Tamil Nadu Housing Board and now
had supported the transaction which is void in law.
iv. The trial Court failed to observe as on 09.01.1986 this 1 st appellant
husband has no power to alienate whereas this Court had entertained a illegal
transaction which is taken within two days from the conditional sale deed
(i.e.) dated 07.01.1986.
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v. The trial Court had wrongly landed and raising a question as such
why this appellant / defendant had not filed a suit to cancel the sale deed in
favour of the plaintiff, whereas it is pertainant to note when this defendant's
release cum sale deed falls as a last document to suit property and when this
appellant / defendant are in peaceful possession of the property there arises
no question to file a suit by this appellant / defendant as noted in Judgment
and decree, whereas in contra when the plaintiff had full knowledge of
release cum sale deed on 01.12.1989 why they have not opted for declaration
of title in 1989 itself or within 3 years whereas the original owner
M.G.Venugopal was alive in those period.
vi. The lower Court wrongly landed in declaration relying on revenue
records as such revenue records such as temporary E.B. Receipts in 1989
valid only for 30 days will not render a valid title to declare ownership to the
property.
Vii. The trial Court failed to observe that the conditional sale deed
executed by Tamil Nadu Housing Board tot he allottee only for the purpose
raising loan for construction which is evident is Ex.B4 and through
deposition of D.W.3.
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9. By submitting all these grounds, the learned counsel for the appellant
argued that the decree passed by the trial court against the Judgment Debtor
was unjust and liable to be set aside.
10. The learned counsel for the 1st appellant/legal heirs of R4 and R5
submitted that in 1985, the original allottee, Venugopal, had stated that the
suit property was allotted as a vacant plot to the plaintiff's vendor, Venugopal,
in 1974. Thereafter, a conditional sale deed was allotted. Subsequently,
Venugopal entered into a sale agreement with the plaintiff on 31.07.1985 to
sell the property to her, and possession of the property along with documents
was handed over to her on the same day. An irrevocable Power of Attorney
was also registered in the name of the plaintiff's son, Ramkumar.
Thereafter, on 09.01.1986, Venugopal executed a valid sale deed in her
favor, two days after the sale deed was executed by the board. Subsequently,
a release deed was also executed by the Tamil Nadu Housing Board on
01.12.1989 in favor of the plaintiff's vendors. The original documents were
handed over to the plaintiffs. Therefore, from 1985 onwards, the plaintiff was
in possession of the property. She subsequently obtained the necessary
building approvals and constructed a superstructure. The property tax in her
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name was issued by CMDA alone, and water and electricity bill connections
were secured. Further it is argued that, the defendant illegally occupied the
ground floor and admitted to an encumbrance certificate. Hence, the suit was
filed before the trial court. They adduced all the oral and documentary
evidence, which was rightly appreciated by the trial judge. Although there
was a condition imposed not to sell the property for five years, the Tamil
Nadu Housing Board did not raise any objections even after the execution of
the sale deed in favor of the plaintiff. The original vendor, Venugopal, was
alive at the time and died nearly two years after the sale deed. He did not raise
any objections during his lifetime.
11. Indeed, the Board also released all the conditions imposed on the
original allottee in 1989 by executing the release deed. Therefore, there was
no objection on the part of the Housing Board, and the trial judge rightly
appreciated this. Hence, the appeal is to be dismissed as it has no merits.
12. Now, the point for consideration is as follows:
“ i. Whether the sale deed executed by Venugopal in favor of
Lakshmi Devi (Plaintiff), marked as Ex.A5, is valid or not?”
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13. According to the defendants, the sale deed executed by Venugopal,
the husband of D1 and father of D2 and D3, in favor of the plaintiff is invalid
since the sale deed registered in his name had a condition not to sell the
property for five years to anyone except infavour of the Housing Board. This
period started on 07.01.1986, but the sale deed in favor of the plaintiff was
executed by Venugopal immediately on 09.01.1986, within five years.
Therefore, the sale deed is not valid in the eyes of the law.
14. Admittedly, there was a condition imposed in the sale deed dated
07.01.1986 not to sell the property for five years, but within two days, a sale
deed was executed in favor of the plaintiff (Ex.A5). According to the plaintiff,
there was a sale agreement and an irrevocable Power of Attorney dated
31.07.1985, marked as Ex.A1 and Ex.A2. Therefore, before selling the
property, a sale agreement with Venugopal and the execution of the sale deed
was admitted by the defendants, but they contended that on the date of
execution of the document, Venugopal had no authority due to the condition
imposed by the Housing Board. However, the Housing Board did not raise
any objections during Venugopal's lifetime, and he died approximately seven
years after executing the sale deed.
15. Furthermore, in 1989, the Housing Board also released all the
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conditions, and the release deed marked on 01.11.1989 as Ex.A6 proves that
the Housing Board did not raise any objections until 1989. Admittedly,
Venugopal died in 1993, nearly seven years after the execution of the sale
deed in favor of the plaintiff. During Venugopal's lifetime, neither the
defendants nor the Housing Board raised any objections against the plaintiff,
who was in possession of the property from 1986 onwards.
16. It is an undisputed fact that the defendants and Venugopal were
jointly living elsewhere and were not residing in the suit property during
Venugopal's lifetime. Furthermore, as per the plan submitted in 1989 by the
plaintiff, construction was put up, and no objections were raised by the
defendants or Venugopal at that time. Therefore, even though conditions were
imposed by the Housing Board, no objections were faced. On the contrary,
the conditions were completely relaxed, and documents were handed over to
Venugopal. Even after five years, when Venugopal was alive, neither he nor
his legal heirs raised any objections. Therefore, as the absolute owner, the
plaintiff enjoyed the property as rightly concluded by the learned trial judge,
which needs no interference.
17. Another objection raised by the defendant is that they put up
construction and possessed the property, but there is no valid document to
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prove that they only constructed the ground floor and subsequently trespassed
on the plaintiff's property. As discussed, the plaintiff is the lawful owner.
Therefore, the ground floor occupied by the defendants should be vacated,
and they are entitled to pay damages as rightly fixed by the trial judge, which
needs no interference..
18. Furthermore, there is another objection raised by the defendants
that the plaintiff did not approach the court within three years from the date of
denial of the title. However, from 1989, when the rectification deed was
executed, no entry was made in the encumbrance register regarding the sale
deed in Venugopal's name. It was subsequently rectified, so the title was not
disputed when the defendant trespassed and caused interference by
demanding tax payment from 2015 onwards. Hence, the plaintiff approached
the court within the stipulated time and is not barred by limitation. Therefore,
the findings given by the learned trial judge that the plaintiff is the absolute
owner of the property and granted declaration and other consequential reliefs
are valid under law, which needs no interference.
19. Hence, this appeal is dismissed as devoid of merit. Findings of the
learned trial Judge is confirmed. Suit decreed as prayed for. The defendants
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are ordered to vacate the ground floor premises within a period of three
months from the date of receipt of a copy of this order. Consequently, the
connected miscellaneous petitions are closed. There shall be no order as to
costs.
01.07.2024
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation:Yes/No
rri
Note: Issue order copy on or before 03.07.2024.
To
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1. The III Additional District Judge,
Thiruvallur, Poonnamallee.
2.The Sub-Registrar,
Villivakkam Sub-Registrar's Office,
MTH Road, Chennai-600 050.
3.The Collector,
Thiruvallur District.
4.The Section Officer,
VR-Section, High Court of Madras.
T.V.THAMILSELVI, J.
rri
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and
CMP.Nos.10269, 14245, 15303, 15304 & 15305 of 2018
01.07.2024
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