Madras High Court
Dhavamani (Died) ... 1St vs M.Somasundaram on 30 September, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A(MD)No.2146 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.09.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.2146 of 2003
1.Dhavamani (died) ... 1st Appellant/Appellant/defendant
2.K.Ravichandran ... 2nd Appellant/
Lr of the deceased 1st appellant
(A – 2 is brought on record as Lr of the deceased
first appellant vide order dated 15.02.2019 made
in C.M.P(MD)Nos.878 to 880 of 2018)
Vs.
1.M.Somasundaram
2.Suseela (died) ... Respondents 1 & 2/
Respondents 3 & 4/Plaintiffs 3 & 4
3.Manivel
4.Kannadhasan
5.Kayalvizhi ... Respondents 3 to 5/
Lrs of the deceased 2nd respondent
(R – 3 to R – 5 are brought on record as Lrs of the
deceased second respondent vide order dated
12.09.2019 made in C.M.P(MD)No.6734 of 2018)
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 04.12.2002 made
in A.S.No.93 of 2002 on the file of the Additional District Court cum
Fast Track Court No.1, Thanjavur, confirming the judgment and decree
dated 24.03.2000 made in O.S.No.157 of 1993 on the file of the
District Munsif Court, Thiruvayyaru.
1/18
https://www.mhc.tn.gov.in/judis
S.A(MD)No.2146 of 2003
For A – 2 : Mr.V.K.Vijayaragavan
For RR 1 & 3 to 5 : Mr.PT.S.Narendra Vasan
JUDGMENT
The Judgment and decree passed in O.S.No.157 of 1993 on
the file of the District Munsif Court, Thiruvayyaru and in A.S.Nos.93 of
2002 on the file of the Additional District Court cum Fast Track Court
No.1, Thanjavur, are being challenged in the present Second Appeal.
2.One M.Samuthirarajan, Mariammal, along with the
respondents 1 and 2 as plaintiffs instituted a suit in O.S.No.157 of
1993 on the file of the trial Court for the relief of permanent injunction
as against the defendant.
3.For the sake of convenience, the parties are referred to
as, as described before the trial Court.
4.According to the plaintiffs, the suit property measuring
0-66 cents out of 1 acre 26 cents absolutely belongs to the plaintiffs.
https://www.mhc.tn.gov.in/judis
The first plaintiff has purchased the suit property under a registered
sale deed dated 09.07.1992 for a valuable consideration of
Rs.18,500/-. After purchase, the first plaintiff had constructed his
residential house in the suit property and he had also got an electricity
connection. The house tax has been assessed in the name of the first
plaintiff and he has paid the house tax. In the remaining extent of the
suit property, the first plaintiff had raised plantain crops and there were
about 200 plantains in the suit property aged two months. Apart from
the plantains, the first plaintiff had also raised and reared coconut
saplings in the suit property. Thus, the first plaintiff was in absolute
possession and enjoyment of the suit property and the first plaintiff
had been paying the kist for the suit property. The defendant has no
manner of right over the suit property after he has sold the same to
the first plaintiff and he was duly put in possession of the suit property.
The defendant wanted a loan of Rs.20,000/- from the first plaintiff, for
which, he expressed his inability to advance any loan to the first
defendant. On the application of the first plaintiff, the Firka surveyor
Papanasam Taluk came to the suit property to measure and subdivide
the suit survey number. But the defendant did not permit him to carry
out his work stating that she had to verify the extent sold to the first
plaintiff. On 12.03.1993, the defendant and her men made an attempt
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to trespass into the suit property and her attempt was thwarted by the
plaintiffs with the help of the neighbours. Hence, it is just and
necessary for the first plaintiff to file the suit for permanent injunction
restraining the defendant from in any manner interfering with the
plaintiffs' peaceful possession and enjoyment over the suit property.
While the suit was pending, the first plaintiff died leaving behind the
second plaintiff as his only legal heir and the second plaintiff was
impleaded in the suit. While so, the second plaintiff also died leaving
behind the plaintiff's 3 and 4 as her legal heirs and they were
impleaded as the plaintiffs 3 and 4 in the suit. Hence, the plaintiffs
have filed the said suit for the abovestated relief.
5.The defendant had filed a written statement denying the
allegation that the suit property belongs to the plaintiffs and the first
plaintiff has purchased the same for valuable consideration of Rs.
18,500/- under the registered sale deed, dated 09.07.1992 and stated
that the defendant has filed a suit for adjudging the document dated
09.07.1992 and registered as Document No.627 of 1992 of the Sub-
Registrar's office, Thiruvaiyaru as null and void, unenforceable, invalid
under law and cancelling the same and for recovery of vacant
possession. The first plaintiff has filed the suit for a permanent
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injunction against the defendant suppressing the fact that already suit
has been filed by the defendant before the Sub Court, Thanjavur. The
defendant never sold the suit property in favour of the first plaintiff.
The alleged sale deed is invalid and it has no legal force. In the entire 1
acre 26 cents, there are several kinds of trees standing, but the first
plaintiff who claims to have purchased 66 cents out of which, the
alleged sale deed did not say anything with regard to the standing
trees. No consideration was passed as alleged in the plaint. The
defendant never intended to execute a sale deed in favour of the
plaintiff. It was represented that the document was only an Othi deed.
But fraudulently, the first plaintiff without disclosing the recitals of the
alleged sale deed obtained the signature of the defendant. The
defendant without knowing the contents and character of the
document, she had put her signature. The alleged sale deed has never
come into force. The first plaintiff was not in possession and enjoyment
of the suit property as alleged in the plaint. There was no valid sale
deed executed by the defendant. All along, the defendant was under
the impression that she had executed an Othi deed for 1 acre
measuring 21 X 41. The allegation that the first plaintiff had raised the
plantain crops was false. The plantain crops were raised only by the
defendant. For the coconut trees and other trees including the plantain
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crops, the plaintiff cannot claim any ownership over it. Even if any
patta is granted, it would not bind the defendant. The allegation that
the defendant wanted a loan of Rs.20,000/- from the first plaintiff was
false. There was no demand for the loan by the defendant. The
defendant herself was in possession and enjoyment of the suit
property, except the hut. No such occurrence has taken place on
12.03.1993 as alleged in the plaint. The plaintiff was not entitled to any
relief as claimed in the plaint and prayed for dismissal of the suit.
6.Before the trial Court, on the side of the plaintiffs, the
deceased second plaintiff was examined as P.W.1 and one Kathiresan
was examined as P.W.2 and Exs.A1 to A8 were marked. On the side of
the defendant, she herself was examined as D.W.1 and one
Krishnamoorthy was examined as D.W.2 and Exs.B.1 to B.6 were
marked.
7.On the basis of the rival pleadings made on either side,
the trial Court, after framing necessary issues and after evaluating both
the oral and documentary evidence, has decreed the suit.
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8.Aggrieved by the Judgment and decree passed by the
trial Court, the defendant herein as appellant, had filed an Appeal Suit
in A.S.No.93 of 2002 on the file of the first Appellate Court.
9.The first Appellate Court, after hearing both sides and
upon reappraising the evidence available on record, has dismissed the
appeal and confirmed the Judgment and decree passed by the trial
Court.
10.Challenging the said Judgments and decrees passed by
the Courts below, the present Second Appeal has been preferred at the
instance of the defendant as appellant.
11.At the time of admitting the present second appeal, this
Court had framed the following substantial questions of law for
consideration:
'i.When the respondents had filed a suit for
permanent injunction and when the title of the
respondents to the suit property was questioned by the
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appellant, was it correct for the Courts below to declare
the title of plaintiffs on the basis of Exhibit A-1 when the
plaintiff did not seek amendment of plaint for declaration
of title? and
ii.When the plaintiffs suit is only for permanent
injunction in respect of suit property against the
appellant, was it tenable for the Courts below to hold that
the plaintiff's possession was lawful when suit for
declaration of title was not filed by the plaintiffs?'
12.The learned counsel appearing for the
appellant/defendant would submit that the Courts below have erred in
declaring the title of the respondents on the basis of Ex.A.1. The
appellant had contended that her signature in the sale deed was
obtained fraudulently and under a mistaken, identity of the document
as an Othi deed; that the appellant had subscribed her signature in
Ex.A.1 and therefore, the Courts below should not have rendered a
finding on the basis of Ex.A.1, her validity of Ex.A.1 should be
considered or affirmed for granting the relief to the respondents as
prayed for; the Courts below have erred in holding that the possession
of the suit property by the respondents was lawful and the Courts
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below have erred in placing reliance on the documents filed by the
respondents viz., patta, kist receipt, EB connection etc., when they are
all only followup documents to Ex.A.1 and prayed for allowing the
Second Appeal.
13.The learned counsel appearing for the
respondents/plaintiffs would submit that the first plaintiff has
purchased the suit property from the defendant under Ex.A.1-sale
deed. In Ex.A.1, it was clearly mentioned that the defendant has
conveyed the suit property measuring to an extent of 66 cents out of 1
acre 26 cents in S.F.No.321/4 in Ganapathi Agraharam Village, within
the four boundaries mentioned in Ex.A.1.
14.Heard the learned counsel appearing for the appellant
and the learned counsel appearing for the respondents 1 & 3 to 5 and
also perused the records carefully.
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15.According to the plaintiffs, the suit property measuring
0-66 cents out of 1 acre 26 cents absolutely belongs to the plaintiffs.
The first plaintiff has purchased the suit property under a registered
sale deed dated 09.07.1992 for a valuable consideration of Rs.
18,500/-. After purchase, the first plaintiff had constructed his
residential house in the suit property and he had also got an electricity
connection. The house tax has been assessed in the name of the first
plaintiff and he has paid the house tax. In the remaining extent of the
suit property, the first plaintiff had raised plantain crops and there were
about 200 plantains in the suit property aged two months. Apart from
the plantains, the first plaintiff had also raised and reared coconut
saplings in the suit property. Thus, the first plaintiff was in absolute
possession and enjoyment of the suit property and the first plaintiff
had been paying the kist for the suit property. The defendant has no
manner of right over the suit property after he has sold the same to
the first plaintiff and he was duly put in possession of the suit property.
The defendant wanted a loan of Rs.20,000/- from the first plaintiff, for
which, he expressed his inability to advance any loan to the first
defendant. On the application of the first plaintiff, the Firka surveyor
Papanasam Taluk came to the suit property to measure and sub-divide
the suit survey number. But the defendant did not permit him to carry
https://www.mhc.tn.gov.in/judis
out his work stating that she had to verify the extent sold to the first
plaintiff. On 12.03.1993, the defendant and her men made an attempt
to trespass into the suit property and her attempt was thwarted by the
plaintiffs with the help of the neighbours.
16.According to the defendant, she has filed a suit for
adjudging the document dated 09.07.1992 and registered as
Document No.627 of 1992 of the Sub-Registrar's office, Thiruvaiyaru as
null and void, unenforceable, invalid under law and cancelling the same
and for recovery of vacant possession. The first plaintiff has filed the
suit for a permanent injunction against the defendant suppressing the
fact that suit has already been filed by the defendant before the Sub
Court, Thanjavur. The defendant never sold the suit property in favour
of the first plaintiff. The alleged sale deed is invalid and it has no legal
force. In the entire 1 acre 26 cents, there are several kinds of trees
standing, but the first plaintiff who claims to have purchased 66 cents
out of which, the alleged sale deed did not say anything with regard to
the standing trees. No consideration was passed as alleged in the
plaint. The defendant never intended to execute a sale deed in favour
of the plaintiff. It was represented that the document was only an Othi
deed. But fraudulently, the first plaintiff without disclosing the recitals
https://www.mhc.tn.gov.in/judis
of the alleged sale deed obtained the signature of the defendant. The
defendant without knowing the contents and character of the
document, she had put her signature. The alleged sale deed has never
come into force. The first plaintiff was not in possession and enjoyment
of the suit property as alleged in the plaint. There was no valid sale
deed executed by the defendant. All along, the defendant was under
the impression that she had executed an Othi deed for 1 acre
measuring 21 X 41. The allegation that the first plaintiff had raised the
plantain crops was false. The plantain crops were raised only by the
defendant. For the coconut trees and other trees including the plantain
crops, the plaintiff cannot claim any ownership over it. Even if any
patta is granted, it would not bind the defendant. The allegation that
the defendant wanted a loan of Rs.20,000/- from the first plaintiff was
false. There was no demand for a loan by the defendant. The
defendant herself was in possession and enjoyment of the suit
property, except the hut. No such occurrence has taken place on
12.03.1993 as alleged in the plaint.
17.On perusal of the materials available on record, it is
seen that the defendant has deposed in her evidence that she has not
signed the sale deed, after reading the document. On perusing the oral
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evidence adduced on both sides, it is clearly proved that the first
plaintiff Samuthirarjan, obtained the sale deed after paying sufficient
sale consideration to the defendant. The defendant failed to prove
through sufficient evidence that Ex.A.1-sale deed is invalid as against
the evidence adduced on the side of the plaintiffs. After Ex.A.1-sale
deed, the ownership of the suit property was transferred in favour of
the plaintiffs. During the lifetime of the first plaintiff, he constructed a
hut in the suit property and joint patta to an extent of 0.51.5 ares in
S.F.No.321/4 in patta No.368 was issued in favour of Dhavamani and
the first plaintiff, since the first plaintiff has purchased 0.26.5 acres,
out of 0.51.5 acres in S.F.No.321/4 from Dhavamani. Hence, it is
clearly proved that Ex.A.2 joint patta was not cancelled. The enjoyment
of the plaintiffs regarding 60 cents is proved through Ex.A.1-sale deed.
The plaintiffs have proved that they have got a transfer of patta in their
names, constructed a house in the suit property, they are enjoying the
remaining property by paying kist and proved their possession.
18.Further, on perusal of the materials available on record,
it is seen that the defendant has received sufficient sale consideration
for the suit property and handed over the absolute possession of the
suit property to the first plaintiff. In Ex.A.2, it is clearly mentioned that
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since the first plaintiff has purchased 0.26.5 ares from the defendant,
patta for the land to an extent of 0.51.5 ares in S.F.No.321/4 in patta
No.368, the name of the first plaintiff is ordered to be included as joint
pattadars. On perusal of Exs.A.3 to A.6, it is clearly proved that the
plaintiffs have paid electric consumption charges for the electric service
connection in the house bearing Door No.3/152B in the suit property.
After the purchase of suit property in Ex.A.1, the first plaintiff paid kist
to the suit property under Ex.A.7. The defendant filed Ex.B.1-
cultivation adangal for fasli 1405 to show that she is in the cultivation
of the total extent of 0.51.5 ares in S.F.No.321/4. After the execution
of Ex.A.1-registered sale deed and after the patta transfer order, for
joint patta in the names of Thavamani and the first plaintiff with
reference to the entire extent of 0.51 acres in S.F.No.321/4, as against
Ex.A.1 and Ex.A.2, the defendant has not filed any document to prove
her case as against the case of the plaintiffs. After Ex.A.1-sale deed, no
sufficient document has been filed on the side of the defendant to
prove that she has been in absolute possession of the entire extent of
0.51.5 ares in S.F.No.321/4.
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19.Though in Ex.B.1, it is shown that during the fasli 1405,
the defendant was in the cultivation of the entire extent of 0.51.5 ares,
she has not filed sufficient and valid documents to prove that the
defendant is in possession and enjoyment of the suit property, after the
execution of Ex.A.1 and Ex.A.2. Admittedly, the plaintiffs are in
possession and enjoyment of the house bearing D.No.3/152B in the
suit property and they were given possession and enjoyment of the
suit property to an extent of 66 cents as per Ex.A.1-sale deed.
Furthermore, no document is filed on the side of the defendant to get
the transfer of possession from the plaintiffs, after the execution of
Ex.A.1. Hence, it is clear that the plaintiffs are in possession and
enjoyment of the suit property as per Ex.A.1-sale deed by paying kist
to the suit property and electric consumption charges to the house in
the suit property. Regarding the second question of law, if it is
necessary, the Court can mould and issue a Judgment regarding the
title.
20.The defendant has not let in any evidence to show that
she has not executed the sale deed, but admitted an 'Othi deed' has
been converted into a sale deed. Further, the defendant claims that the
Registrar did not even look into her and he simply signed the same is
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not proved by letting appropriate evidence to show that the said
document was not read over to her. When the defendant has not
clarified with the same from the Registrar, now she cannot claim the
same. Further, the defendant failed to proved that she has not parted
with the property and she herself stated that the plaintiffs have
trespassed into the property, constructed a house. However, the house
tax receipts, EB connection and kist are issued in favour of the
plaintiffs.
21.From the above, this Court is of the view that the
Judgments and Decrees of the Courts below are accompanied with
sufficient reasons, in which, this Court does not want to make any
interference. Accordingly, the substantial questions of law framed are
ordered as against the defendant and in favour of the plaintiffs.
22.In the result, the Second Appeal stands dismissed.
No costs.
30.09.2024
(1/2)
Index : Yes/No
Internet : Yes/No
https://www.mhc.tn.gov.in/judis
To
1.The Additional District Court cum Fast Track Court No.1,
Thanjavur.
2.The District Munsif Court,
Thiruvayyaru.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
30.09.2024
(1/2)
https://www.mhc.tn.gov.in/judis
