Madras High Court
Arun Kapur vs Mr. Anand S.Chabria on 10 June, 2025
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.06.2025
PRONOUNCED ON : 10.06.2025
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.S.No. 741 of 2016
Arun Kapur ... Plaintiff
Vs.
1. Mr. Anand S.Chabria
2. Mr.Rajkumar Jhaver ...Defendants
Prayer : Civil Suit filed under Order VII Rule 1 CPC read with Order IV
Rule 1 of OS Rules, to pass a Judgment and Decree by
a) directing the 1st and 2nd defendants to hand over vacant possession
of the said flat '4-A' as enumerated in schedules 'A' and 'B' below to the
plaintiff,; and
b) for costs of the suit.
***
For plaintiff : Mr. A.S.Balaji
For 1st Defendant : Mr. J.D.Srikanth Varma
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2
For 2nd Defendant : Given up
JUDGMENT
The suit had been filed for a direction against the first and second
defendants to handover vacant possession of a flat '4-A' measuring about
2000 sq.ft., of super built up area in the fourth floor of the multistored
building called “Ved Nivas” at No. 52, Taylor's Road, Kilpauk, Chennai –
600 010 to the plaintiff and for the costs of the suit.
2. During the pendency of the suit, a memo had been filed by the
learned counsel for the plaintiff that the relief against the second defendant is
not pressed since the second defendant, who was in possession of the
aforementioned flat, had vacated.
3. In the plaint, it had been stated that the plaintiff, Arun Kapur, his
mother Mrs.Vinay Kumari and his brother Mr.Atul Kapur were the joint
owners of the property measuring 11 grounds and 1837 sq.ft., at No. 52,
Taylor's Road, Kilpauk, Chennai – 600 010. They entered into a Joint
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Venture Agreement to develop the property and to construct a multistored
residential complex with M/s. Sukrit Constructions, Chennai. The plaintiff
further stated that he and his mother and brother had earlier availed loan from
Indian Overseas Bank, Chintadripet Branch, Chennai and the said Bank had a
lien over the property towards the amount due. The Bank had agreed that on
repayment of the dues, they would release the lien on the undivided share of
land as and when flats are sold.
4. The plaintiff further stated that on 01.04.2002 his brother Atul
Kapur had executed a Release Deed releasing his undivided share over the
property in favour of his mother Mrs. Vinay Kumari and the plaintiff. This
Release Deed was registered as Document No. 646 of 2002 on 01.04.2002 in
the Office of the Sub Registrar of Assurances, Periamet, Chennai. The
plaintiff further stated that one of the flats in the second floor, flat -E was
purchased by C.S.V.Raman, who had taken loan from Indian Bank,
Royapettah Branch, Chennai, towards the said purchase. That Bank had paid
Rs.18,00,000/- to Indian Overseas Bank and the lien was released on the
undivided share of land for the flat 2E sold to C.S.V.Raman. The sale deed
for the undivided share of land was executed by a Sale Deed registered as
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Document No. 2149 of 2002 on 11.11.2002 in the Office of the Sub Registrar
of Assurances Periamet, Chennai.
5. The plaintiff further stated that on 28.02.2003, his mother
Mrs.Vinay Kumari settled her undivided share in the said property in favour
of the plaintiff by a Settlement Deed registered as Document No. 447 of 2003
on 28.02.2003 in the Office of the Sub Registrar of Assurances, Periamet,
Chennai. The plaintiff thus claimed that he had become the absolute owner of
the entire property.
6. Subsequently, his brother Atul Kapur filed C.S.No. 985 of 2004 on
the Original Side of this Court to declare the Release Deed executed by him
registered as Document No. 646 of 2002 on 01.04.2002 as null and void. The
suit was dismissed by Judgment dated 04.03.2016.
7. The plaintiff further stated that C.S.V. Raman, who had purchased
the flat No.E in the second floor had however sold the flat No.A on the fourth
floor to the first defendant Anand Chabbria by sale deed dated 15.12.2004
registered as Document No. 2899 in the office of the Sub Registrar of
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Assurances, Periament, Chennai. It had been contended that the defendants
were able to get physical possession of the flats owing to fradulent act of
Mrs. Sujatha Hariharan, one of the partners of M/s. Sukrit Constructions and
also the sister-in-law of C.S.V.Raman. This sale deed was executed by
C.S.Hariharan, the husband of Mrs.Sujatha Hariharan, the Power of Attorney
Agent of C.S.V. Raman.
8. The plaintiff further claimed that this Sale Deed was declared as
null and void by a Judgment of the III Assistant City Civil Court dated
11.04.2011 in O.S.No.4411 of 2005. The decree was also registered as
Document No. 60 of 2012 on 12.01.2012 in the Office of the Sub Registrar of
Assurances, Periamet.
9. The plaintiff further stated that out of the total area of 28,237 sq.ft.,
the vendors, namely the plaintiff, his mother and brother had sold 26,217
sq.ft., as undivided share of land to various purchasers of flats. The plaintiff
however claimed that he was still the vendor and owner of the balance
unsold area measuring 2,020 sq.ft., of undivided share of land. He also stated
that he was the owner of the unsold flats in the complex.
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10. The plaintiff further stated that flat No.4-A was, at the time of
institution of the suit in the possession of the second defendant as a tenant of
the first defendant. Notice had been exchanged between the plaintiff and the
defendants prior to the institution of the suit. It is under these circumstances
that the suit had been filed seeking recovery of possession of the said flat and
for costs of the suit.
11. In the written statement filed by the first respondent, it had been
contended that the suit is not maintainable since a relief had not been sought
for declaration of title. It had also been pointed out that the plaintiff had also
joined in the execution of the sale deed dated 11.11.2002 registered as
Document No. 2149 of 2002 whereby undivided share of land had been sold
to C.S.V.Raman. It had been contended that the first defendant purchased
the undivided share of land from C.S.V. Raman by sale deed dated
15.12.2004 registered as Document No. 2899 of 2004. It had been therefore
contended that the suit filed in the year 2016 is hopelessely barred by
limitation.
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12. In the written statement, referrence was also made to the written
statement filed in O.S.No. 4411 of 2005 wherein it had been stated that the
plaintiff, his mother and brother had mortgaged the entire property with
Indian Overseas Bank and the debt had accrued to about Rs.2.50 crores. It
was further stated that the family had approached C.H. Subramaniam for help
and it was decided to develop the property and put up an apartment complex
to discharge the debt.
13. A partnership firm was therefore formed. The three partners were
the plaintiff, his son Rishi Kapur and Mrs. Sujatha Hariharan. A joint
development agreement was entered on 22.04.1999 with M/s. Sukrith
Constructions. Thereafter, a Memorandum of Undertaking was also signed on
14.12.2001 authorising the builder to collect hte amounts due on sale of the
flats and to resolve all disputes.
14. It had been specifically stated in the written statement that all these
facts had not been disclosed in the plaint. It had been very specifically
further stated that the plaintiff had lost his right and title in the property. The
first defendant claimed that he was the absolute owner of the suit property. It
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had therefore been contended that the plaintiff cannot seek possession
without seeking the relief of declaration of title.
15. It had been further stated that the plaintiff had not chosen to challenge
the allotment in favour of C.S.V.Raman or the sale deed in favour of the first
defendant and had also not chosen to declare his title of the suit property but
had instituted the suit seeking merely possession. It had been stated that
when there is a cloud is raised on the title, the relief of declaration of title
should be sought from the Court.
16. It had been further stated that the suit in O.S.No. 4411 of 2005
was still pending at the time of the filing of the written statement. It had been
further stated that the son of the plaintiff had executed a sale deed in favour
of C.S.V. Raman conveying 745 sq.ft., of undivided land in the property and
that M/s. Sukrit Constructions were entitled to sell Flat No.A in the fourth
floor with built up area of 2000 sq.ft. The undivided share of land was then
conveyed by C.S.V.Raman to the first respondent by a registered sale deed
dated 15.12.2004. A separate Construction Agreement was entered into with
M/s. Sukhrit Construction. The first defendant took possession of the flat
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and is in enjoyment of the same. It had been stated that without title, the
plaintiff had sought the relief of possession and that therefore, the suit is not
maintainable. It was thus contended that the suit should be dismissed.
17. The learned counsel for the plaintiff had filed a memo giving up
the relief sought against the second defendant.
18. On the basis of the above pleadings, the following issues were
framed for trial:-
“1. Whether the plaintiff is entitled for the relief
of recovery of possession without seeking relief of
declaration of title to the suit property?
2. Whether the vacant possession of the suit
schedule property was handed over to the first
defendant's Vendor Mr.C.S.V.Raman on the 1st
December 2003 by M/s. Sukrit constructions in view of
the construction agreement dated 11.11.2002?
3. To what other reliefs the parties are entitled
to?”
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19. During trial, the plaintiff Arun Kapur examined himself as PW-1
and marked Exs. P-1 to P-17. The father of the first defendant Suresh Kumar
Chabria was examined as DW-1 and he marked Exs. D-1 to D-3.
20. Heard arguments advanced by Mr.A.S.Balaji, learned counsel for
the plaintiff and Mr.J.D.Srikanth Varma, learned counsel for the first
defendant.
21. Mr.A.S.Balaji, learned counsel for the plaintiff took the Court
through the pleadings and the evidence adduced by the parties. He pointed
out that the plaintiff, his mother and brother were the absolute owners of land
measuring 11 grounds and 1837 sq.ft., at No. 52, Taylor's Road, Chennai.
They had obtained loan from Indian Overseas Bank, Chintadripet Branch. In
order to settle the dues they had taken a decision to develop the property.
The learned counsel pointed out that a Joint Venture Agreement was entered
into with M/s. Sukrit Cosntruction. Thereafter, on the development of the
flats, the flat No.E in the second floor had been sold to C.S.V.Raman, who is
actually the brother-in-law of one of the partners of M/s. Sukrit
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Constructions, Mrs. Sujatha Hariharan. The learned counsel pointed out that
while purchasing the flat, Mr. C.S.V.Raman had sought loan from Indian
Bank and specifically pointed out the correspondences between Indian Bank
and Indian Overseas Bank relating to release of lien and the amount that
should be paid to Indian Overseas Bank and stated that for all practical
purposes, Mr.C.S.V.Raman had purchased only Flat No.2E in the second
floor of the complex. A sale Deed was also executed in his favour for
undivided share of land of 745 sq.ft. The learned counsel pointed out that the
total plinth area of the flat No.2-E was 2840 sq.f.t, and the porportionate
undivided share of land was 745 sq.ft.
22. The learned counsel further pointed out that however
C.S.V.Raman had sold a flat in the fourth floor namely 4-A to the first
defendant. It was contended that he has no such right to convey the said flat.
23. The learned counsel further pointed out that the brother of the
plaintiff had executed a Release Deed releasing his one third undivided share
in the property but later filed a suit seeking to set aside the said Release Deed
as null and void. A Judgment was delivered in the year 2016 and this was
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affirmed. The mother of the plaintiff had also released her undivided one
third share to the plaintiff. The learned counsel therefore pointed out that the
plaintiff had become the owner of the total area of land.
24. The learned counsel stated that the first defendant had unlawfully
obtained Flat No.4-A without any title and without any right and it was
under those circumstances since the tile of the plaintiff had been affirmed in
the year 2016, the suit had been filed seeking recovery of possession of the
said flat. The learned counsel further pointed out that the Flat No.4-A
measured only 2000 sq.ft., and therefore contended that C.S.V. Raman could
not have conveyed 745 sq.ft., of land and should have conveyed only a lesser
area. The learned counsel therefore stated that the suit should be decreed as
prayed for and recovery of possession must be granted.
25. Mr.J.D.Srikanth Varma, learned counsel for the first defendant
however contested every point raised on behalf of the plaintiff. According to
him after the execution of the Joint Venture Agreement, the builder had taken
control of the entire property. The plaintiff can claim right and title only to
the unsold portions of the property. He contended that the builder transferred
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the fourth floor flat to Mr.C.S.V.Raman, quite apart from executing a sale
deed for the undivided share of land of 745 sq.ft. The learned counsel stated
that this flat in the fourth floor was later conveyed by C.S.V.Raman to the
first defendant. The learned counsel specifically questioned the right title of
the plaintiff to claim ownership of the property. He therefore stated that
without seeking the relief of declaration of title, the plaintif cannot seek
recovery of possession.
26. It was also contended that the sale deeds were of the years 2003
and 2004 and the suit instituted in the year 2016 and was therefore
hopelessely barred by the law of limitation. The learned counsel further
argued that the suit in the City Civil Court instituted by the son of the
plaintiff had been dismissed for default and that therefore, the plaintiff was a
third party to the documents executed by M/s. Sukrit Constructions cannot
claim the right to seek possession of the flat which had been lawfully
purchased by the first defendant. The learned counsel therefore asserted that
the suit should be dismissed.
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27. I have carefully considered the arguments advanced and perused
the records.
Issue No:1
28. The suit had been filed seeking a direction against the first and
second defendants to handover vacant possession of Flat No.4-A measuring
about 2000 sq.ft., built up area in the 4th floor of the multistoryed building
called “Ved Nivas” at No. 52, Taylor's Road, Kilpauk, Chennai – 600 010.
29. It is the case of the plaintiff that he, his brother Atul Kapur and
mother Mrs. Vinay Kumari, were the joint owners of the property at No.52,
Taylor's Road, Kilpauk, Chennai – 600 010, totally measuring 11 grounds
and 1837 sq.ft. They had obtained loan from Indian Overseas Bank,
Chintadripet Branch, Chennai. To settle the outstanding, they had taken a
decision to promote the property by constructing residential apartments.
30. They entered into a Joint Venture Agreement on 22.04.1999 with
M/s. Sukrit Constructions in which the son of the plaintiff was one of the
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partners. Pursuant to the Joint Venture Agreement, construction was put up.
One of the flats in the second floor Flat No.2-E measuring 2840 sq.ft., was
sought to be purchased by C.S.V.Raman, who incidently is the brother-in-law
of an other partner of M/s. Sukrit Constructions, Mrs. Sujatha Hariharan. In
this connection, he applied for loan from Indian Bank, Royapettah Branch.
The correspondeces in that regard between Indian Bank, Royapettah Branch
and Indian Overseas Bank, Chintadripet Branch, Chennai, were marked as
Exs.P-2, P-3, P-4 and P-5.
31. The learned counsel for the plaintiff placed much reliance on these
documents to show that the correspondences related to the Flat in the second
floor/2-E. Indian Bank, Royapettah Branch had sought clarification about
release of lien held by Indian Overseas Bank over the land. All these
correspondences were only with respect to Flat No.2-E. The learned counsel
for the plaintiff insisted that C.S.V.Raman had intention to purchase the flat
in the second floor / 2-E. Thereafter, consequent to such decision, a sale
deed of undivided share of land of 745 sq.ft., was also executed on
11.11.2002 under Ex.P-6 by Document No.2149 of 2002 registered in the
Sub Registrar of Assurances, Periamet. The learned counsel for the plaintiff
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argued that this undivided share of land of 745 sq.ft., was related to the total
area of the flat, namely, 2840 sq.ft. This sale deed had been executed by the
plaintiff, his mother and his brother. It is however contended that the brother
was joined as an executant only as a confirming party since he had earlier
executed a Release Deed on 01.04.2002, marked as Ex.P-1 by which he had
released his undivided share in the total property in favour of the plaintiff.
32. The main argument advanced by the plaintiff is that the plaintiff is
the owner of the entire land except the land which had been sold to the
purchasers of the various flats as undivided shares relatable to the area of the
flats and also of the unsold flats. The learned counsel pointed out that
C.S.V.Raman, who had obtained loan from Indian Bank, Royapettah Branch,
with intention to purchase the 2-E flat, then sold the flat in the 4 th floor / 4-A
flat to the first defendant by a sale deed dated 15.12.2004 under Ex.P-8 which
was registered as Document No. 2899 of 2004 in the Office of the Sub
Registrar of Assurances, Periamet. This particular document was sought to
be set aside and declared as null and void in a suit filed by the son of the
plaintiff, Rishi Kapur, in O.S.No.4411/2005 filed before III Assistant City
Civil Court, Chennai. An exparte decree was passed on 11.04.2011 under
Ex.P-9.
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33. It is the case of the plaintiff that on 28.02.2003 by Ex.P-7 the
mother of the plaintiff had also settled in favour of the plaintiff of her
undivided 1/3rd share in the land by Document No.447 of 2003 registered
again in the Sub Registrar of Assurances, Periamet. The plaintiff therefore
claims that by way of the release deed and settlement deed executed by his
brother and mother, he had become the absolute owner of the land except the
portions which had been sold to the purchasers of the flats. The plaintiff
claims that C.S.V.Raman had no right to convey the flat 4-A in the 4th floor.
34. In Ex.P-8 sale deed executed by C.S.V.Raman in favour of the first
defendant dated 15.12.2004 and registered as Document No.2899 of 2004 in
the office of the Sub Registrar of Assurances, Periament, the vendor
C.S.V.Raman had covenented that he was the absolute owner of the property
of the flat measuring 2000 sq.ft., of type A in the 4th floor of the premises.
This is a categorical statement made by the vendor in the year 2004.
35. It had been pointed out by the learned counsel for the plaintiff that
his brother, who had executed a Release Deed on 01.04.2002 marked as
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Ex.P-1 releasing his 1/3rd undivided share in the land in favour of the plaintiff
had then filed C.S.No. 985 of 2004 seeking a declaration that the said
Release Deed was brought about by fraud and undue influence and was
illegal and in operative and unenforceable. The suit was dismissed by
Judgment dated 04.03.2016 which was marked as Ex.P-14.
36. It is the claim of the plaintiff that on and from that date, his title
had been affirmed. But however, this suit had been filed seeking recovery of
possession of Flat 4-A which had already been sold by C.S.V.Raman on
15.12.2004 to the first defendant. The first defendant had filed Ex.D-2 which
is a document evidencing delivery of vacant possession of Flat No.4-A to
C.S.V.Raman by M/s. Sukrit Constructions. This is dated 01.12.2023. It is
thus seen that in so far as Flat-4A is concerned, M/s. Sukrit Constructions
had handed over vacant possession of the Flat to C.S.V.Raman and the
plaintiff and his mother along with his brother had also executed a sale deed
for an undivided share of 745 sq.ft., of land to C.S.V.Raman. In that
particular document, Ex.P-6, it had been convenented that the said sale was
consequent to a Joint Venture Agreement entered by the Vendors with M/s.
Sukrit Constructions for construction of flats and that M/s. Sukrit
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Constructions had taken possession of the property and are proceeding with
construction of flats. It had been contended that this sale of undivided share
of land of 745 sq.ft., is towards purchase of a flat by C.S.V.Raman.
37. The contention of the plaintiff is that C.S.V.Raman had taken loan
from Indian Bank, Royapettah Branch for purchase of a flat in the 2nd floor
but had sold a flat in the 4th floor to the first defedant. If that be so, then that
particular sale deed should have been challenged and a declaration should
have been sought that the sale deed is null and void and had been executed
with fradulent intention. But however, the plaintiff had not sought such
declaration. If he is to claim that he need not seek such declaration, then he
has to concede the title of C.S.V.Raman to convey the said flat.
38. In the plaint, however, it had been asserted by the plaintiff that he
is the owner of flat 4-A which according to him is an unsold flat, which
statement is obvisouly not correct in view of the sale deed executed by
C.S.V.Raman in favour of the first defendant. This sale deed was in the year
2004. The first defendant has been in possession from the year 2004. It is
contended that the plaintiff had become the absolute owner of the unsold land
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pursuant to the decree in C.S.No. 985 of 2004 dated 04.03.2016 marked as
Ex.P-14. But the issue in this case is not with respect to the land but with
specific referrence to flat No.4-A for which possession is sought. When that
particular flat had been sold by a registered document, such document stares
in the face of the plaintiff and unless such document is set aside, the plaintiff
can never seek possession of the said flat.
39. If the plaintiff was to seek such a declaration, then the plaintiff
would also run the risk of answering a charge of the relief being barred by
limitation.
40. The possession of the first defendant had been in open hostility to
the claim of the plaintiff on and from 15.12.2004. The reliance of the
plaintiff on the decree in C.S.No. 985 of 2004 under Ex.P-14 could be limited
only to the negation of the claim of his brother Atul Kapur regarding the
Release Deed executed by him which he alleged was executed under corecion
and undue influence. It could never stretch to a declaration that the plaintiff
is the owner of the Flat 4-A. Therefore without seeking such declaration, the
plaintiff can never seek possession of Flat 4-A. The suit in C.S.No. 985 of
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2004 was limited to the land in Door No. 52, Taylor's Road, Chennai. The
present suit is with specific referrence to Flat No.4-A for which the plaintiff
will necessarily have to seek a declaration that he is the owner.
41. The claim of the plaintiff that the sale of undivided share of land
of 745 sq.ft., to C.S.V.Raman was relatable to that 2-E which measured 2840
sq.ft., and not to that 4-A which measured 2000 sq.ft., would not advance the
case of the plaintiff since the sale deed in Ex.P-6 is with specific reference to
that 4-A and that sale deed has created a cloud over the claim of title by the
plaintiff.
42. In the written statement, the first defendant had very categorically
questioned the right, title and interest of the plaintiff over Flat No.4-A. When
a cloud is raised over the title of the plaintiff, then necessarily the plaint
should have been amended to include the relief of declaration of title. Having
failed to do so, the plaintiff can never seek possession without seeking such
declaration.
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43. In 2008 4 SCC 594 [ Anathula Sudhakar Vs. P.Buchi Reddy
(dead) by Lrs., and others] the Hon'ble Supreme Court had very categorically
stated that when a cloud is raised over the plaintiff's title and he is not in
possession, then a suit must be laid for declaration and possession, with or
without consequential injunction. It had been further clarified that a cloud is
said to be raised when prima facie the right of a third party is made over the
property.
44. In the instant case, Ex.P-6 is the sale deed executed C.S.V.Raman
in favour of the first defendant. It raises a prima facie presumtion that
specifically with respect to Flat No.4-A the title had flowed to the first
defendant by way of a registered document. The plaintiff had not sought a
declaration that he is the title holder of that particular flat. It is not sufficient
to hold that he is the owner of the land which is not sold. Additionally, the
Joint Venture Agreement had not been produced as a document. That
document would reveal the right which had accrued to the promoter of the
flats, M/s. Sukrit Constructions and the manner in which they could hand
over vacant possession of the flats to the proposed purchasers.
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45. In this connection, a referrence could be made to paragraph Nos.
13.3 & 14 in Anathulla Sudhakar, referred supra, which are as follows:-
“13.3. .......Where the title of the plaintiff is under
a cloud or in dispute and he is not in possession
or not able to establish possession, necessarily the
plaintiff will have to file a suit for declaration,
possession and injunction.
14. We may, however, clarify that a prayer for
declaration will be necessary only if the denial of
title by the defendant or challenge to the plaintiff's
title raises a cloud on the title of the plaintiff to
the property. A cloud is said to raise over a
person's title, when some apparent defect in his
title to a property, or when some prima facie right
of a third party over it, is made out or shown. .....”
46. In the instant case Ex.P-6 raises a cloud over the claim of the
plaintiff to title over that 4-A.
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47. I hold that the relief claimed by the plaintiff seeking possession
will have to fail since he had not sought the relief of declaration of title
particularly when a cloud over his title had been raised not only by the first
defendant but also by Ex.P-6 sale deed dated 15.12.2004 / Document
No.2899 of 2004 registered in the Office of the Sub Registrar of Assurances,
Periamet with specific referrence to flat No. 4-A. This issue is therefore
answered against the plaintiff.
Issue No.2:
48. This issue is whether vacant possession of flat 4-A had been
handed over to C.S.V. Raman by M/s. Sukrit Constructions on 01.12.2003 in
view of the Construction Agreement dated 11.11.2002.
49. It is pertinent to point out that neither C.S.V.Raman nor M/s.
Sukrit Constructions are parties to the suit. The Joint Venture Agreement
dated 11.11.2002 had not been produced as a document before the Court. The
plaintiff had also not taken summons to examine any partner of M/s. Sukrit
Constructions or C.S.V.Raman as witnesses during the course of trial.
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50. The first defendant had however produced Ex.D-2 during the
course of trial. The said document very clearly shows that vacant possession
of Flat 4A in the fourth floor had been delivered to C.S.V.Raman by M/s.
Sukrit Constructions. It must also be pointed out that the son of the plaintiff
is one of the partners of M/s. Sukrit Constructions. The plaintiff had not
taken steps to atleast examine his son as a witness to depose about the
veracity about this document.
51. The document had been admitted as evidence and no contra
evidence had been produced to disprove the said document. The witness had
also withstood cross examination on the said document. To a specific
question, DW-1 stated that one of the partners of M/s. Sukrit Constructions
handed over the flat 4-A to C.S.V.Raman. The said question and answer is as
follows:-
“Q22: Who allotted Flat 4A to C.S.V.Raman?
A: One of the partners of Ms.Sukrith Constructions handed over the
flat 4A to C.S.V.Raman.”
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52. It is thus evident that C.S.V.Raman had been handed over
possession of Flat 4-A in his capacity as owner. He had subsequently
conveyed the same to the first defendant under Ex.P-6. The plaintiff had also
not sought any relief to declare that Ex.P-6 is null and void and not binding
on him.
53. A cumulative appreciation of the above facts would show that
M/s. Sukrit Constructions had infact handed over vacant possession of flat 4-
A to C.S.V.Raman and at that particular point of time, the plaintiff had not
raised any objection. He had not raised any objection when the flat was
conveyed to the first defendant. He had not raised any objection on and from
the date when the first defendant came to be in possession.
54. In view of the fact that the Joint Venture Agreement need not be
produced by the plaintiff and the plaintiff had also not taken any steps to
issue summons to any of the partners of M/s. Sukrit Constructions and had
also not taken any steps to issue summons to C.S.V. Raman to confront them
with the veracity of Ex.D-2, I hold that vacant possession of Flat 4-A had
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been handed over to C.S.V.Raman by M/s. Sukrit Constructions under
Ex.D2.
55. This issue is answered against the plaintiff.
Issue No.3:
56. In view of the categorical findings returned with respect to Issue
Nos. 1 and 2, I hold that the suit has to fail and is accordingly dismissed.
57. In the result,
(i) The suit is dismissed with costs against the first defendant and
without costs against the second defendant.
Vsg 10.06.2025
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking Order
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1. List of Witnesses Examined on the side of the Plaintiff:-
1. P.W.1 – Mr. Arun Kapur
2. List of Exhibits Marked on the side of the Plaintiff:-
1. Ex.P1 is certified copy of release deed dated 01.04.2002;
2. Ex.P2 is the copy of the letter dated 05.11.2002;
3. Ex.P3 is the copy of the letter dated 05.11.2002;
4. Ex.P4 is the copy of the letter dated 11.11.2002;
5. Ex.P5 is the copy of letter dated 11.11.2002;
6. Ex.P6 is the certified copy of the sale deed dated
11.11.2002;
7. Ex.P7 is certified copy of the Settlement Deed dated
28.02.2003;
8. Ex.P8 is the certified copy of the sale deed dated
15.12.2004;
9. Ex.P9 is the certified copy of teh decree in O.S.No. 4411
of 2005 dated 11.04.2011;
10. Ex.P10 is the certified copy of Encumbrance Certificate
for the period 01.01.2001 to 31.07.2009 (under Section 65B
certificate is filed);
11. Ex.P11 is the office copy of the legal notice dated
28.01.2016 issued by the plaintiff counsel;
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12. Ex.P12 is the served copy of the reply notice dated
08.02.2016;
13. Ex.P13 is the served copy of the reply notice dated
18.02.2016 issued by the second defendant;
14. Ex.P14 is the certified copy of judgment in C.S.No. 985 of
2004 dated 04.03.2016 on the file of Hon'ble High Court,
Chennai.;
15. Ex.P15 is the certified copy of the Judgment in O.S.No.
4411 of 2005 dated 11.04.2011 on the file of III Assistant
Judge, CCC;
16. Ex.P16 is the certified copy of the sale agreement dated
21.10.2002. (The learned counsel for the defendant
objected to mark the document on the ground that the
document is unregistered and not a original and signatory to
the Sale Agreement is not party to the suit; and
17. Ex.P17 is the grounds of revision.
2. List of Witnesses Examined on the side of the Defendants:-
1. P.W.1 – Mr. Arun Kapur
3. List of Exhibits Marked on the side of the Defendants:-
1. Ex.D1 is the original sale deed dated 11.11.2002 executed
by Mrs. Vinay Kumari, Mr.Arun Kapur, Mr.Atul Kapur to
CSV Raman registered as Document No.2149 of 2002 on
the file of Sub-Registrar Office, Periamet;
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2. Ex.D2 is the original letter dated 01.12.2003 of delivery of
possession of flat issued by M/s. Sukrit Constructions in
favour of CSV Raman; and
3. Ex.D3 is the original Sale Deed dated 15.12.2004 executed
by Mr. CSV Raman to and in favour of Mr.Anand S Chabria
registered as document No. 2899 of 2004.
10.06.2025
vsg
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C.V.KARTHIKEYAN, J.
Vsg
Pre-Delivery Judgment made in
10.06.2025
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