Madras High Court
Velankanni vs M.Vaitheesan on 13 September, 2024
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.2023 of 2000
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2024
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No.2023 of 2000
and
C.M.P.Nos. 19837 & 1378 of 2007
Velankanni
2. Malayappan
3. Mary
4. Rani
5. Selvaraj
6. Lilli Rose
(A1 died. A2 to A6 are brought on record
as legal representatives of deceased 1st
appellant vide court order dated 04.08.2023
made in C.M.P.No. 14899 of 2023) ... Appellants
Vs.
M.Vaitheesan .. Respondent
PRAYER : Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree dated 17.08.2000 passed
1/16
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S.A. No.2023 of 2000
in A.S.No.149 of 1999 on the file of Principal District Judge,
Tiruvannamalai reversing the judgment and decree dated 03.11.1999
passed in O.S.No.71 of 1996 on the file of District Munsif Court,
Tiruvannamalai.
For Appellant : Mr.P.Mani
For Respondent : Mr.Sadhasharan
JUDGMENT
The appellant, who is the plaintiff had filed a suit in O.S. No. 71 of
1996, against the defendant for the relief of declaration that she is the
absolute owner of suit property as described in the schedule, an extent of
2.53 cents of dry land in S.F.No.157, situated at Vadapuzhithiyur Village,
Tiruvannamalai Dt. and the same was dismissed. Against which, the plaintiff
preferred an appeal suit in A.S.No. 149 of 1999 and on analysing the facts
and evidence on record, the first appellate judge allowed the appeal
decreeing the suit. Challenging the reversal findings of first appellate court,
the defendant preferred this Second Appeal.
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2. For the sake of convenience, the parties are denoted as per the
ranking in the suit before the trial court.
3. Before the trial court, the plaintiff claimed right and title based on
the purchase made by him from the alleged owner George through the sale
deed dated 23.11.1995, on the other hand, the defendant not only denied the
plaintiff's title and also contended that based upon the sale agreement said to
be executed by the original owner George in favour of her husband
Ponnusamy, an unregistered sale agreement dated 28.05.1974. Though the
document was not registered, entire sale consideration of Rs.2300/- was paid
by him and eversince, he was in possession and enjoyment of the property.
After his death, his wife, the defendant is in possession and enjoyment of
the suit property, thereby she claimed that the plaintiff is not in
possession of property and also they perfected title by adverse possession.
Accordingly, she prayed to dismiss the suit.
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4. Before the trial court, both parties adduced evidence both oral
and documentary and on considering the same, the trial judge framed the
issues and finally held that the original owner George already handed
over the suit property to the husband of defendant Ponnusamy.
Thereafter, her husband cultivated the land and patta No.747 was also
granted in favour of Ponnusamy. Moreover, at the time of sale made in
favour of plaintiff, the original owner George was not in possession of
property. Therefore, the sale stands in the name of plaintiff is not valid
document. Hence, the plaintiff is not entitled for the relief of declaration.
Accordingly, the suit was dismissed.
5. Challenging the said findings, the plaintiff preferred an appeal in
A.S.No.149 of 1999 on the file of Principal District Judge,
Tiruvannamalai and the first appellate judge independently analysed the
facts and the evidence adduced by both parties, had framed a separate
issue. Considering the evidence on record, the first appellate judge held
that Ex.B1 unregistered sale agreement relied on by the defendant dated
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28.05.1974 is a void document and no reliance can be placed upon the
said unregistered sale agreement and the same was confirmed by this
court while disposing C.R.P.No. 572 of 1998 by an order dated
17.09.1998. Inspite of that, the trial court relied the said document Ex.B1
and dismissed the claim of plaintiff holding that the defendant is the
original owner of the property as such is erroneous one and the same is
liable to be set aside. Accordingly, the appeal suit was allowed and
consequently, the suit was decreed. Challenging the said findings, the
defendant preferred this Second Appeal.
6. The learned counsel for appellant would submit that the first
appellate judge ought to have appreciated Ex.B1, the alleged sale
agreement of the year 1974, which is much prior to the alleged sale deed
stands in the name of plaintiff. He would submit that the first appellate
judge failed to take note of the revenue documents relied on by the
appellant in order to prove her long and continued possession of the land
and established that she perfected title by adverse possession and without
appreciating the evidence on record, the first appellate judge allowed the
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appeal in favour of plaintiff as such is unjust and the same is liable to be
set aside. He would also submit that the first appellate judge failed to take
note of the fact that the plaintiff not proved his possession on the date of
filing of suit, without which, the decree was granted in favour of plaintiff
as such is illegal and the same is liable to be set aside.
7. Considering the facts and circumstances and considering his
submissions, this Second Appeal is admitted on the following question of
law :-
“(1) Whether the findings of lower appellate court are correct in
law in holding that the respondent/plaintiff got title under Ex.A1
Sale deed dated 23.11.1995?
(2) When the lower appellate court is correct in law in holding
that Ex.B1 Agreement of sale dated 28.04.1974 is a void
agreement inspite of Ex.B4 to B12, which proved that the
appellant/defendant is in possession and enjoyment of the suit
property right from 1974?
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(3) Whether the findings of lower appellate court is correct in
law regarding adverse possession inspite of pleadings and
documentary evidence let in on behalf of appellant/defendant?
8. The case of plaintiff is that the suit property, an extent of 2.53
cents of land was originally assigned to one George, son of Christhian by
the State of Tamil Nadu under D.K.No. 606/1976 dated 29.11.1969.
Thereafter, the said George was in possession and enjoyment of the
property. While so, he sold the property to the plaintiff through the sale
deed dated 23.11.1995 by receiving the sale consideration of Rs.2,300/-
and eversince, the plaintiff is enjoying the suit property as absolute
owner, but the defendant, who obtained Patta without knowledge of
plaintiff, had attempted to cause interference. Hence, the suit was filed.
9. The defendant denied not only denied the plaintiff's claim as well
as right of George by filing written statement stating that in fact,
conditional assignment was granted in favour of one George on
29.11.1969, since he is a retired Army man and one of condition was
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within ten years, he is not permitted to make any encumbrance over the
property. However, he intended to sell the property. Accordingly, the
husband of defendant viz., Ponnusamy purchased the property from the
said George by paying a sum of Rs.2300/- as sale consideration and due
to the condition enforced in the assignment, instead of writing sale deed,
sale agreement was executed on 28.05.1974 and the possession was also
handed over to him. Thereafter, Ponnusamy, as absolute owner cultivated
the property as absolute owner and original patta was also handed over
by the said George with him. Therefore, the alleged purchase made by the
plaintiff on 23.11.1995 would not bind the defendant. Even after that, the
defendant's husband alone was in possession and enjoyment till his life
time. Thereafter, the defendant as his legal heir enjoyed the property,
besides with the knowledge of true owner, they possessed and enjoyed
the property for more than decades, thereby they have perfected title by
adverse possession. Accordingly, he prayed to dismiss the suit.
10. The learned counsel for respondent would submit that based on
the unregistered sale agreement marked as Ex.B1 dated 28.05.1974, the
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defendant claimed right and title over the property, but the said
unregistered document would not confer any right or title, since it was not
registered under Sec.17 of Registration Act and also not admissible in
evidence, which was already decided by this court in C.R.P.No.572 of
1998 filed by the defendant against the order passed in I.A.No.81 of 1996
and produced the copy of order for the perusal of this court. It reveals that
already the alleged Ex.B1 unregistered sale agreement was not accepted
by this court for the reason that after the alleged sale agreement, no valid
sale deed entered between parties. Furthermore, the said finding
rendered in C.R.P. No. 572 of 1999 is still in force and so far, it is not set
aside. Therefore, already the validity of Ex.B1 unregistered sale
agreement was concluded by this court and based on that, the appellant
has no right or title over the suit property. Hence, she prayed to dismiss
this Second Appeal on that score alone.
11. Considering both side submissions, it reveals that the plaintiff
claiming right over the property based on the sale deed marked as Ex.A1,
dated 23.11.1995. The defendant claimed right over the property based
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on the unregistered sale agreement dated 28.05.1974. Originally, the suit
property was assigned in favour of George, who is a retired army person
by the conditional assignment is an undisputed fact. According to the
defendant, the said George intended to sell the property to her husband
Ponnusamy for a sum of Rs.2300/-. Due to condition imposed in the said
assignment, he was not able to execute the sale deed, on the other hand,
he executed a sale agreement dated 28.05.1974, but possession was
handed over to him on the same day. Eversince, her husband was in
possession and enjoyment of suit property. He would further content that
the original patta was also handed over to the defendant's husband to
conclude the said sale agreement. But, admittedly, on perusal of Ex.B1
sale agreement dated 28.05.1974, it is an unregistered sale agreement,
but as per the assignment Ex.B2 the said land was assigned in favour of
one George in the year of 1969 with the condition not to make any
encumbrance for the period of ten years. However, within five years
period, the sale agreement was entered, which stands in the name of
Ponnusamy, husband of defendant. Since the value of property is more
than Rs.10,000/-, it requires valid registration as per Sec. 17 of
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Registration Act, without which, it is not permissible to admit as
evidence. But, the learned counsel for appellant would submit that though
the document was unregistered one, but for the collateral purpose in
respect of possession and enjoyment of property, the said document could
be considered. To support his contentions, he relied the authority laid
down by the Apex Court reported in 2003 (2) CTC 635 in the case of
Bondar Singh and others vs. Nihal Singh and others, wherein it has
been held as follows :-
“Registration Act,1908, Sec.17 -Adverse possession – Plea of
adverse possession based on unstamped and unregistered
document – Validity – Unregistered and unstamped document
not admissible in evidence but can be looked into for
collateral purpose in order to show possession.”
12. Considering the said proposition, it reveals that the case in
hand, the document Ex.B1 is an unregistered sale agreement, which is not
admissible in evidence. Whether it can be looked into for collateral
purpose in respect of nature of possession by the party is to be verified.
According to plaintiff, he purchased the property in the year of 1995 and
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the sale deed was also produced, which is marked Ex.A1. Eversince then,
he claimed right over the property, but the defendant also produced the
kist receipts marked as Ex.B6 to Ex.B11 from the year of 1977 upto the
year of 1995. But, the case of plaintiff is that since George was not able to
cultivate the lands, he permitted the husband of Ponnusamy to cultivate
the land, accordingly, they cultivated land. While so, somehow they have
obtained patta, but the same was cancelled by the revenue authority after
due enquiry and subsequently, Patta was granted in favour of plaintiff. To
that effect, already the proceedings initiated by the revenue authority
dated 29.03.1996, it reveals that the Tahsildar conducted enquiry by
issuing notice to the plaintiff, in which the defendant Velankani has not
appeared, on the other hand, the plaintiff has appeared. On perusal of
documents, the revenue authorities cancelled the Patta stands in the name
of defendant and patta was granted in favour of plaintiff. In that enquiry,
original owner viz., George also appeared and he stated that they
(defendants) were permitted to cultivate the lands only and he has not
given full right to them. This fact was not denied by the defendant by
appearing before the revenue authority during the Patta transfer enquiry,
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Therefore, the documents produced on side of defendant shows that they
are not having valid right and title over the property. Accordingly, Patta
was cancelled by the revenue authority in the year of 1996 itself.
Therefore, the Kist receipts relied on by the defendant might have
obtained for cultivating the land under the original owner viz., George,
but not as a true owner of the land. Hence, the documents relied on by the
plaintiff showing that he had possessed and enjoyed the property were
supported by documents, but on the other hand, the vendor George
transferred the property in the year of 1995, at that time, the condition
imposed in the assignment also lapsed. Thereafter, from the year of 1995
onwards, he possessed and enjoyed the property and Patta also stands in
his name, which was rightly appreciated by the first appellate judge,
which needs no interference. One of the defence raised by the defendant
that she had also perfected title over the property based on adverse
possession, but the entire defence made by the defendant based on Ex.B1
sale agreement and she claimed right and title based on the said sale
agreement. Therefore, they are not entitled to claim adverse possession, as
inconsistent pleas also not permissible. To that effect, the ratio laid down
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in the authority reported in AIR 1996 SC 910, wherein the Apex Court
been held as follows:-
“As regards the first plea, it is inconsistent with the second
plea. Having come into possession under the agreement, he
must disclaim his right thereunder and plead and prove
assertion of his independent hostile adverse possession to the
knowledge of the transferrer his successor-in-title or interest
and that the latter had acquiesced to his illegal possession
during the entire period of 12 years i.e. upto completing the
period of his title by prescription nec vi nec clam nec
precario. Since the appellant's claim is founded on Sec.53-A,
it goes without saying that he admits by implication that he
came into possession of the land lawfully under the
agreement and continued to remain in possession till date of
the suit. Thereby, the plea of adverse possession is not
available to the appellant.”
The aforesaid authority relied on by the first appellate judge is sustainable
one. Therefore, the plea of adverse possession made by the appellant is
not sustainable one. To that effect, the findings rendered by the first
appellate judge needs no interference. Accordingly, the question of law
(1) to (3) are answered.
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13. In the result, this Second Appeal is dismissed as no merits and
the findings of first appellate judge in A.S.No. 149 of 1999 is upheld and
consequently, the suit filed by the plaintiff in O.S.No.71 of 1996 is
decreed as prayed for. No costs. Consequently, connected Civil
Miscellaneous Petitions are closed.
13.09.2024
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
The Principal District Judge,
Tiruvannamalai.
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T.V.THAMILSELVI, J.
rpp
Pre-delivery judgment in
13.09.2024
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