Madras High Court

Nagaraj vs Pandithurai ...1St on 20 September, 2024

Author: G.R.Swaminathan

Bench: G.R.Swaminathan

                                                                                SA(MD)No.269 of 2018


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 20.09.2024

                                                     CORAM

                                  THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               SA(MD)No.269 of 2018
                                                      and
                                              CMP(MD)No.7442 of 2018

                     Nagaraj                      ... Appellant / 4th respondent / 4th defendant


                                                        Vs.

                     1.Pandithurai                       ...1st respondent / appellant / plaintiff

                     2.Thavamani

                     3.Nagarajan

                     4.Manikandan

                     5.The Sub Registrar
                       NRT Main Road,
                       Theni, Theni Taluk &
                                 District.

                     6.The District Collector,
                       Theni District,
                       Theni – Madurai Main Road,
                       Theni.                                     ... Respondents 2 to 6 /
                                                                  Respondents 1 to 3, 5 & 6 /
                                                                  Defendants 1 to 3, 5 & 6




                     1/10

https://www.mhc.tn.gov.in/judis
                                                                                  SA(MD)No.269 of 2018


                     Prayer :         Second Appeal filed under Section 100 of Civil Procedure
                     Code to set aside the judgment and decree dated 16.02.2016 in A.S No.
                     19 of 2014 on the file of the Additional District and Sessions Court,
                     Theni at Periyakulam reversing the judgment and decree dated
                     22.04.2014 in O.S No.134 of 2008 on the file of the Sub Court, Theni.


                                        For Appellant     : Mr.K.Govindarajan
                                                                for Mr.M.Saravanakumar


                                        For Respondents : Mr.AR.L.Sundaresan, Senior Counsel
                                                                for Mr.A.K.Manickam for R1
                                                           Mr.R.Mathiyalagan for R2 & R3
                                                           Mr.R.Ragavendran
                                                           Government Advocate for R5 & R6
                                                           No appearance for R4




                                                           ORDER

The fourth defendant in O.S No.134 of 2008 on the file of the Sub

Court, Theni is the appellant in this second appeal. The first respondent

herein Mrs.Pandithurai, wife of Kamaraj filed the said suit seeking

declaration that Document No.8173 of 2007 on the file of the Sub

Registrar Office, Theni (sale deed dated 26.11.2007) executed in favour

of the fourth defendant is null and void and for permanent injunction.

The suit was dismissed on 22.04.2014. Questioning the same, the

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plaintiff filed A.S No.191 of 2014 before the Additional District and

Sessions Judge, Theni at Periyakulam. Vide judgment dated

16.12.2016, the first appellate court reversed the decision of the trial

court and decreed the suit as prayed for. Challenging the same, this

second appeal has been filed.

2.Though the second appeal was filed in June 2016, till date, it

has not been admitted. The learned counsel appearing for the appellant

reiterated all the contentions set out in the memorandum of grounds of

second appeal and called upon this Court to formulate the substantial

questions of law and answer the same in favor of the appellant and set

aside the decision of the first appellate court and restore the judgment

and decree passed by the trial court.

3.Per contra, the learned Senior Counsel appearing for the

plaintiff/first respondent submitted that the impugned judgment and

decree do not warrant interference and he pressed for dismissal of the

second appeal. He pointed out that no substantial questions of law

arise for consideration.

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4.I carefully considered the rival contentions and went through the

evidence on record. The suit property admittedly belonged to one

Arunachalam Chettiar . The said Arunachalam Chettiar mortgaged the

property in favour of one Veerappa Chettiar. Veerapa Chettiar filed O.S

No.227 of 1931 on the file of the District Munsif Court, Periyakulam for

enforcing the mortgage. During the pendency of the suit, both the

plaintiff as well as the defendant passed away and their legal

representatives came on record. The suit was decreed and the suit

property was brought to sale on 19.03.1936. The suit property was

purchased by the legal heirs of Veerapa Chettiar. The sale was

confirmed and the sale certificate was also issued on 17.06.1936.

Delivery was effected in E.A No.789 of 1936 on 21.07.1936.

5.It has been clearly demonstrated that the plaintiff

Mrs.Pandithurai traces her title over the suit property to the legal heirs of

Veerapa Chettiar who purchased the property. On the other hand, the

appellant entered into a sale agreement dated 16.10.2006 with one

Thavamani and her son Nagaraj through their power agent Manikandan.

To enforce the said sale agreement, the appellant herein filed O.S No.2

of 2007 before the Sub Court, Periyakulam. Ex parte decree was

passed on 19.02.2007 directing specific performance of the suit sale

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agreement. To enforce the decree, E.P was filed and since the

defendants did not come forward to comply with the decree, the suit sale

deed 26.11.2007 was executed by the Sub Judge, Periyakulam in favour

of the appellant. Seeking declaration that this sale deed is null and void,

the first respondent herein filed O.S No.134 of 2008. The trial court

framed the issue as to whether it has jurisdiction to declare the sale

deed executed pursuant to its own previous judgment and decree in

O.S No.2 of 2007 as null and void. The plaintiff examined her husband

as PW.1. Exs.A1 to A34 were marked. Thavamani was examined as

DW.1. The appellant was examined as DW.2. Exs.B1 to B14 were

marked. The trial court as already noted dismissed the suit. But the

appellate court reversed the trial court's decision and decreed the suit

as prayed for.

6.The learned counsel appearing for the appellant raised a

contention that without seeking to nullify the judgment and decree in O.S

No.2 of 2007, the present suit was not maintainable. He added that

since the plaintiff's title has been questioned, the suit prayer should have

included the relief of declaration of title also. He also contended that

there is no evidence to show that the plaintiff was in possession on the

date of filing of the suit and then the relief of permanent injunction in

respect of the possession should not have been granted.

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7.I am not impressed by any of the submissions advanced by the

learned counsel for the appellant. There is no dispute that the suit

property originally belonged to Arunachalam Chettiar. Arunachalam

Chettiar had mortgaged the suit property. The mortgagee filed O.S No.

227 of 1931 on the file of the District Munsif Court, Periyakulam to

foreclose the mortgage. The suit was decreed and the legal heirs of the

mortgagee purchased the suit property. Thus, Arunachalam Chettiar's

legal heirs had lost their right over the suit property. They were bereft of

title and could not have reconveyed any right, title or interest in favour of

the appellant. The appellant conceded before the courts below that he

is tracing his title only from the legal heirs of Arunachalam Chettiar.

When they themselves had lost their title, they could not have passed on

any title in favour of the appellant. It is too obvious that O.S No.2 of

2007 filed for specific performance by the appellant was collusive in

nature. The defendants consciously did remained ex parte both in the

suit as well as in the execution petition. There was no need for the

plaintiff Mrs.Pandithurai to seek any declaration of nullity as regards the

judgment and decree passed in O.S No.2 of 2007. The plaintiff was not

a party to the suit and therefore, she was not obliged to question the

same. Since the sale deed executed pursuant to the decree was

registered, it affected the plaintiff's right and therefore, the plaintiff was

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justified in confining her challenge to the consequential sale deed alone.

It is true that when cloud is cast on the plaintiff's title, declaration of title

must be sought for. But it must be a substantial challenge or at least a

prima facie challenge to the plaintiff's title. Mere denial of title or

assertion by the defendant is not sufficient. As already noted, the

defendants' assertion is in thin air. On the other hand, tracing of the

title by the plaintiff is impeccable.

8.In these circumstances, the first appellate court rightly came to

the conclusion that there was no need for the plaintiff to have sought the

relief of declaration of title. The learned counsel for the appellant

strongly asserted that the defendant is in possession of the suit

property and that the plaintiff has not placed any material to show that

she is in possession of the suit property. This contention again is

without merit. The learned Senior Counsel appearing for the first

respondent has drawn my attention to Ex.A4 dated 26.02.2001. Ex.A4

is the decree in O.S No.475 of 1995 on the file of the District Munsif

Court, Periyakulam. It was filed by Meenakshi Achi through her power

agent Rajendran against Thavamani and others. It was a suit for relief

of declaration. Permanent injunction was granted in favour of the

plaintiff against Thavamani. Meenakshi Achi is the predecessor in title

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of the present plaintiff. The decree dated 26.02.2001 in O.S No.475 of

1995 on the file of the District Munsif Court, Periyakulam has not been

set aside and it is holding good. When the relief of permanent injunction

was already granted in favour of Meenakshi Achi against Thavamani,

grant of permanent injunction in favour of Mrs.Pandhithurai, the first

respondent herein is clearly in order. That apart, the plaintiff has

marked Ex.A7 Patta and A12 patta passbook to show that she is in

possession of the suit property. In fact, the patta granted in favour of

Thavamani had been nullified in the earlier suit proceedings in O.S No.

475 of 1995. That is why, the first appellate court came to the

conclusion that the plaintiff has proved her possession over the suit

property.

9.Looked at from any angle, there is no merit in this appeal. No

substantial question of law arises for consideration. I, therefore, dismiss

this second appeal without admitting it. It stands dismissed. No costs.

Connected miscellaneous petition is closed.


                                                                                20.09.2024

                     Index              : Yes / No
                     Internet           : Yes/ No
                     Skm






https://www.mhc.tn.gov.in/judis



                     To

                     1.The Sub Registrar, NRT Main Road,
                       Theni, Theni Taluk & District.

                     2.The District Collector, Theni District,
                       Theni – Madurai Main Road,
                       Theni.

3.The Additional District and Sessions Court, Theni at Periyakulam

4.The Sub Court, Theni.

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