Madras High Court
Chandra vs A.Murugan on 25 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.1158 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.06.2025
CORAM:
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal. No.1158 of 2013
Chandra ... Appellant
-Vs-
1. A.Murugan
2. V.Kasturi ... Respondents
Prayer:- Second Appeal filed under Section 100 of Civil Procedure Code
to set aside the Judgment and Decree dated 18.03.2013 in A.S.No.90 of
2011 on the file of the learned Subordinate Judge, Kanchipuram
confirming the Judgment and Decree dated 06.08.2011 in O.S.No.455 of
2006 on the file of the learned Principal District Munsif, Kanchipuram.
For Appellant : Mr.T.Thiyagarajan
for Mr.V.Ramesh
For Respondents : Ms.R.V.Gayatri
for M/s.P.B.Ramanujam Associates
JUDGMENT
This Second Appeal has been filed to set aside the Judgment and
Decree dated 18.03.2013 in A.S.No.90 of 2011 on the file of the learned
Subordinate Judge, Kanchipuram by confirming the Judgment and Decree
dated 06.08.2011 in O.S.No.455 of 2006 on the file of the learned
Principal District Munsif, Kanchipuram.
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2. The second Plaintiff before the learned Principal District Munsif,
Kanchipuram is the Appellant herein. As per the Plaint averments, the first
Plaintiff/Govindammal originally filed a Suit in O.S.No.455 of 2006 before
the learned Principal District Munsif, Kanchipuram for direction directing
the Defendants to hand over vacant possession of the Suit property to the
Plaintiffs in the event of receiving a sum of Rs.30,000/- from the Plaintiffs.
It is the claim of the Plaintiff in the Plaint that her husband/Mannar was an
Ex-Serviceman. After retirement from the Indian Army, he had been
cultivating in the Suit property which is an Odai Poramboke and he had
also sought an assignment from the Government. Pending his Petition for
assignment, Mannar died leaving behind the first Plaintiff/Govindammal
and her daughter. The first plaintiff/ Govindammal wanted to perform the
marriage of her granddaughter who is the daughter of the second Plaintiff.
At the time of marriage discussions, she had obtained the loan of
Rs.30,000/- from the first Defendant in the presence of the second
Plaintiff/her daughter and her grandson who were witnesses to the
borrowal of loan. At that time, the Defendant obtained thumb impression
from the first plaintiff Govindammal. As per the terms of the oral
agreement between the Defendants and the Plaintiffs towards interest for
the principal amount of Rs.30,000/-, the possession of the property is to be
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handed over to the Defendants. So that the Defendants cultivate the same
for two years and interest will be settled by availing proceeds of the
cultivation for two years. Whenever the Plaintiff was ready to repay the
amount, the possession would be handed over to the first Plaintiff. The
loan was availed in the year 1998 and Mannar/husband of the first Plaintiff
died in the year 1999. In the year 2001, the Plaintiffs were ready to repay
the amount of Rs.30,000/- and requested the Defendants to stop
cultivation. The first defendant wantonly refused to receive the amount
with an ulterior motive to grab the property. Therefore, the Plaintiff issued
a legal notice seeking return of the property. The legal notice was issued
on 18.06.2006. After receipt of the same, the Defendants 1 and 2 had
replied to the legal notice dated 28.06.2006 with false averments. It was
made to appear as though the Plaintiff had executed the sale deed. The
first Plaintiff is an illiterate and an aged widow. The first Defendant is a
Government Servant and the second Defendant is the sister of the first
Defendant. Both possess men, muscle power and political influence; and
they are trying to grab the property. Therefore, the second Plaintiff had
approached this Court by filing the Suit.
3. The Defendants in the written statement had disputed the claim of
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the Plaintiffs stating that the Plaintiffs had executed the sale deed dated
18.10.2000 and the possession was delivered to the Defendants and the
Defendants had been in enjoyment of the same by raising crops. The Suit is
filed after six years, from the date of execution of the sale deed and the
Suit is filed with false claims and fictitious allegations. The Defendants are
in lawful possession of all the rights of ownership. The sale deed dated
18.10.2000 is to be treated as a sale agreement and handing over the
possession is part-performance of the contract. The Defendants are taking
steps to enforce the contract against the Plaintiffs by way of specific
performance. The Plaintiff is estopped by her own conduct, acquiescence
and promise. There are standing crops in the Suit property. Hence, the
Plaintiff is not entitled to any relief much less permanent injunction.
Therefore, the Suit is liable to be dismissed.
4. Based on the averments in the Plaint and the written statement, the
learned Principal District Munsif, Kanchipuram had framed the following
issues:-
“(i) Whether the Plaintiff executed any sale deed in
favour of the Defendants?
(ii) Whether the Defendants were in lawful possession
of the Suit property?
(iii) Whether the Plaintiff is entitled to possession of
Suit property after remitting back Rs.30,000/- to the
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Defendants?
(iv) To what other relief?”
5. During pendency of the Suit, the first Plaintiff died. The only
daughter of Govindammal and Mannar/the second Plaintiff examined
herself as P.W-1. She was a witness to the transactions alleged in the
Plaint and marked documents as Ex.A-1 to Ex.A-8. Ex.A-1 is the report
regarding the Government property in the possession of Mannar; Ex.A-2 is
the notice issued by the Revenue Authorities to persons who are in
possession of Poramboke property. Ex.A-3 is the application for
assignment of cultivable land in the Village. Ex.A-4 is the letter from the
Secretary of Chennai Pattinam District Soldiers and Sailors Airmen's
Board. Ex.A-5 is the Special Registrar's Report dated 15.07.1971. Ex.A-6
is the series of Kist receipts No.1 to 56. Ex.A-7 is the copy of the legal
notice dated 18.06.2006 issued on behalf of the Plaintiff to the first
Defendant. Ex.A-8 is the reply notice dated 28.06.2006 by the first
Defendant.
6. In support of the claim of the Defendants, the first Defendant was
examined as D.W-1 and the documents were marked as Ex.B-1 to Ex.B-4.
Ex.B-1 is the sale deed dated 18.10.2000 in favour of the first Defendant.
Ex.B-2 is the sale deed dated 18.10.2000 in favour of the second
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Defendant. Ex.B-3 is the copy of the legal notice issued on behalf of the
Plaintiff under Ex.A-7 dated 18.06.2006. Ex.B-4 is the copy of the reply
notice issued to the learned Counsel for the Plaintiff.
7. After hearing both sides and perusal of evidence, the learned
Principal District Munsif, Kanchipuram had decreed the Suit. Against
which, the Defendants had preferred A.S.No.90 of 2011 before the learned
Sub Judge, Kancheepuram.
8. After hearing both sides, the learned Sub Judge, Kancheepuram
had allowed the Appeal. Aggrieved, the second Plaintiff had preferred this
Second Appeal before this Court and the following substantial questions
of law are framed by this Court:-
(i) Whether the Lower Appellate Court was right in
finding that the Plaintiff ought to have filed a Suit for
declaration to declare an unregistered sale deed as null
and void?
(ii) Whether the Lower Appellate Court had given
cogent reasons while reversing the findings of the trial
Court as mandated under Order XLI Rule 31 of CPC?
(iii) Whether the Lower Appellate Court failed to
take into consideration the specific defence taken by the
Defendant in the written statement and inspite of the
same, proceeded to dismiss the Suit filed by the Plaintiff?
(iv) Whether the findings of the Lower Appellate
Court can be termed as perverse due to improper
appreciation of the oral and documentary evidence?
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9. The learned Counsel for the Appellant in the Second Appeal
submitted that the Husband of the Plaintiff before the learned District
Munsif, Kancheepuram in O.S.No.455 of 2006 by name Mannar worked in
Indian Army as Gunner. He had filed petition seeking assignment of lands.
He was assigned 1 acre and 10 cents under Ex.A-4. To perform the
marriage of his grand daughter, Mannar had borrowed money from the
Defendants 1 and 2.
10. On demand of the Defendants, the possession of the property
assigned under Ex.A-4, the land that was assigned to Mannar was handed
over in possession of the Defendants, so that they can cultivate the land in
lieu of the interest towards the loan availed by the Plaintiff. Subsequently,
Mannar died. After repayment of loan, Plaintiff Govindammal sought
return of the property. The Defendants alleged that the Plaintiff had
executed an unregistered sale deed and therefore they cannot handover
possession of the property to the Plaintiff.
11. Aggrieved, the Plaintiff had approached the learned Principal
District Munsif, Kancheepuram by filing the suit for return of the property
and to handover the vacant possession of the property after payment of the
original amount availed from the Defendants. Prior to filing of the suit,
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legal notice was issued to which the Defendants replied. The Defendant
had not denied the contention of the Plaintiff regarding borrowal of the
amount and regarding handing over the possession of the property, in lieu
of the interest. The only claim by the Defendants in the reply notice was
that the Plaintiff had executed unregistered sale deed. The Defendants
entered appearance and filed written statement reiterating the contents
raised in the reply notice by the Defendants. The learned Counsel for the
Appellant submitted that after due trial, the learned Principal District
Munsif, Kancheepuram by judgment dated 06.08.2011 granted decree in
favour of the Plaintiff. Aggrieved by the same, the Defendant filed Appeal
in A.S.No.90 of 2011 before the learned Sub Judge, Kancheepuram. The
learned Sub Judge, Kancheepuram by judgment dated 18.03.2013 reversed
the judgment and decree of the learned Principal District Munsif and
dismissed the suit. Aggrieved by the judgment and reversal of the
judgment of the learned Principal District Munsif by judgment of first
Appellate Court, the Plaintiff before the learned Principal District Munsif
is the Appellant in this Second Appeal. During pendency of the suit, after
giving evidence, the Plaintiff died. Therefore, the daughter of the Plaintiff
had impleaded herself to continue with the proceedings.
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12. The learned Counsel for the Appellant invited the attention of
this Court to the plaint in O.S.No.455 of 2006, to the written statement
filed on behalf of the first Defendant in O.S.No.455 of 2006, the issues
framed by the learned Principal District Munsif and the evidence of the
Plaintiff and Defendant and the Judgment of the learned District Munsif
dated 06.08.2011. The Suit filed by the Appellant herein as Plaintiff was
dismissed. Aggrieved by the dismissal of the Suit the Plaintiff before the
learned Principal District Munsif, Kancheepuram preferred Appeal in
A.S.No.90 of 2011 before the learned Sub Judge, Kancheepuram.
13. Also, the learned Counsel for the Appellant invited the attention
of this Court to the memorandum of grounds of appeal and the discussion
of the evidence before the trial Court by the learned first Appellate Court,
the learned Sub Judge, Kancheepuram in the judgment in A.S.No.90 of
2011 dated 18.03.2013.
14. It is the contention of the learned Counsel for the Appellant that
the learned Appellate Judge had dismissed the appeal on two grounds that
the Plaintiff had not sought declaration of the unregistered sale deed and
the Plaintiff had not approached the Court within three (3) years seeking
declaration. On these two grounds, the Appeal was allowed and the
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judgment of the learned Principal District Munsif was reversed.
15. It is the contention of the learned Counsel for the Appellant that
nowhere either in the pre-suit reply notice by the Defendants or in the
written statement, they had disputed title of the Plaintiff. Therefore, the
question of seeking declaration does not arise. Also it is his contention that
the Plaintiff in the plaint had stated that they had handed over the
possession of the property only to enable the Defendants to cultivate the
same in lieu of the interest towards the loan amount. When the Defendants
had obtained signature of the Plaintiff and her daughter in blank papers
which was described by the Plaintiff in the legal notice prior to filing of the
suit which was not denied by the Defendants in the reply notice. The denial
of the title by the Defendants was also not stated in the legal notice or in
the written statement. The observation by the learned Appellate Judge that
the Plaintiff ought to have filed suit for declaration does not arise. Also
when the Defendants had stated in the written statement that the Plaintiff
had executed unregistered sale deed in the blank sheets wherein the
Defendants had obtained signature from the Plaintiff and her daughter
which was exploited by the Defendant to create forged sale deed, when
property having value of more than Rs.100/- is to be registered, the
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unregistered sale deed relied by the Defendants cannot be marked during
trial. It cannot be linked into by the trial Court or Civil Court. These facts
were ignored by the first Appellate Court Judge and had misdirected
himself to arrive at a contradictory conclusion thereby reversed the
judgment of the learned District Munsif, Kancheepuram in the judgment
dated 06.08.2011. Therefore, it is the contention of the learned Counsel for
the Appellant that the finding of the learned first Appellate Court is
perverse and is to be set aside.
16. The learned Counsel for the Respondents invited the attention of
the Court to the plaint averments. The claim of the Defendants is that the
Plaintiffs are not the owner of the property. There is a cloud on the title.
The learned Counsel for the Respondents also relied on the documents
under Ex.A-1 which is the report regarding the Government property in
possession of Mannar; Ex.A-2 is the notice issued by the Revenue
Authorities to the persons who are in possession of Poramboke property.
Ex.A-3 is the application for assignment of cultivable land in the Village.
Ex.A-4 is the letter from the Secretary, Chennai Pattinam District Soldiers
and Sailors Airmen's Board. Ex.A-5 is the Special Registrar's Report dated
15.07.1971. Ex.A-6 is the series of Kist receipts No.1 to 56. Ex.A-7 is the
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copy of the legal notice issued on behalf of the Plaintiff to the first
Defendant dated 18.06.2006. The learned Counsel for the Respondents
invited the attention of this Court to the contents of the written statement.
There is a specific denial by the Defendants. The relevant portion reads as
follows:-
“4. This Defendant submits that after receiving the
entire sale consideration the Plaintiff has executed the sale
deed dated 18.10.2000 in respect of the Suit property in
favour of the Defendants and possession was also delivered to
them. When the Defendants insisted upon due registration,
the Plaintiff has been postponing the registration for unknown
reasons. The Defendants are in valid possession and
enjoyment of the Suit property by raising crops. It is quite
strange and un-understandable that the Plaintiff having slept
ever for six years woke up in 2006 and has chosen to move the
above Suit with false untenable and fictitious allegations. It is
travesty of truth to aver that there is a loan transaction
between the parties and in lieu of the interest possession was
handed over. The Defendants are in lawful possession with
all rights of ownership. The Suit is bad in law and misguided.
In any event viewed from legal angle, the sale deeds dated
18.10.2000 through remain unregistered can be treated as
sale agreement and as part performance of contract
possession was delivered to them. The Defendants are taking
steps to enforce the contract against the Plaintiff by way of
specific performance Suit.
5. The Plaintiff is estopped by her own conduct,
acquaint and promise. There are standing crops in the Suit
property. With a view to removing the crops which are ripe
for harvest the Plaintiff has chosen the Hon'ble Court as play
ground. The Plaintiff has not done any equity. Hence, she
cannot be allowed to seek enquiry through back door. The
Plaintiff is not entitled to any relief much less permanent
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injunction as claimed in the Suit. It is liable to be vacated
forthwith. There is no merits in the Suit and the same is liable
to be dismissed with costs.”
17. The Defendants claim that the Plaintiffs had executed the sale
deed. If the sale deed is an unregistered deed, it is to be treated as
agreement to sale. On the date of the sale deed, the possession was handed
over by the Plaintiffs to the Defendants. After having executed the sale
deed, even though unregistered sale deed, the Plaintiff is estopped from
resiling from the expressions in the sale deed. As per Section 92 of the
Indian Evidence Act, the parties to a document are not permitted to depose
against the recitals of the written document. Actually, it is a sale
agreement.
18. The Plaintiffs had received entire sale consideration of
Rs.30,000/-. By the cause of action, the sale deed had been executed. The
Defendants were rightly put in possession. The learned Counsel for the
Defendants relied on the discussion of evidence by the learned Sub Judge,
Kanchipuram. The relevant portion is extracted hereunder:-
14.................On perusal of evidence of P.W-1, she has
categorically admitted that the amount of Rs.30,000/- was
received from the appellants and also admitted that the 1ª
plaintiff has put up thumb impression in the stamp papers.
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But the plaintiff has failed to prove that the appellants have
prepared the sale deed by way of using the blank stamp
papers. The original documents filed by the respondents are
all related to prior to the suit i.e obtained by the husband of
the 1st plaintiff. It may be true that as a Government servant
before purchasing the immovable property should be
obtained permission from the Government. But for which
the respondent herein has no right to question the same
before the court of law. Because, permission for purchasing
the property is between the Government and the
Government servant. Further, the appellants have also
taken steps for registration of unregistered sale deed and
wanted to get over the illegality by way of paying penalties.
If at all, the 1st plaintiff has allegedly borrowed loan amount
why she would have executed a sale deed in favour of the
appellants. The intention of the plaintiff is to discharge the
loan amount borrowed from the defendants by way of
attesting the loan amount towards sale consideration. For
which the appellants are not liable to loss their right over
the suit properties. Any how, the consideration for the suit
property is passed with the plaintiff and accepted by the
same. Further, before filing the suit, the plaintiffs have
issued legal notice to the appellants. For which the
appellants have also issued reply in which, they have
categorically stated that the 1st plaintiff has executed a sale
deed dated 18/10/2000 in favour of the appellants by way of
two documents which was marked as Exhibit B-1 and B-2.
Even though the contradiction stated by the 1st appellant
during the course of examination, which will not create any
prejudice to the title of the appellants over the suit
properties. The citations submitted by the appellants would
prove that the unregistered sale deed was used for the
collateral purposes since for the purpose of transferring the
title to the suit property in favour of the appellants they have
executed the documents. Further the appellants have
categorically denied the allegations of the plaintiff in the
written statement generally and subsequently claim that the
suit properties belonged to the appellants by way of
unregistered sale deed dated 18/10/2000. The plaintiffs have
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to file the suit within three years from the date of
unregistered sale deed and challenged the same by way of
filing the suit. But the plaintiffs have filed the suit in the year
2006. Hence without cancellation of the unregistered sale
deed, the plaintiffs cannot file the suit. Further, the plaintiffs
did not seek relief of declaration in respect of the Suit
properties. Hence, the Suit framed by the plaintiffs are not
maintainable. Further, the plaintiffs not filed the suit within
three years from the date of sale deed by way of canceling
the same. Hence, the suit filed by the plaintiffs is barred by
limitation. The citations submitted by the appellants are
very relevant to the facts of the present case on hand. The
grounds or reasons stating for decreeing the suit is not at
all acceptable on the basis of the above said facts and
circumstances of the case. In view of the foregoing
narration of both the factual and legal premise, the court
has found any illegality or infirmity in the judgment and
decree of the trial court and the same need be interfered
with. Therefore, the arguments advanced by the learned
counsel appearing for the appellants as convinced once and
this court is ready to accept the same and whereas the
arguments advanced by the learned counsel appearing for
the respondents is not really having considerable force and
effect. Therefore, the above points are answered
accordingly in favour of the appellants.
19. Until the filing of the Suit, the Plaintiffs had not deposited the
amount or paid the amount to the Defendants. The Defendants dispute the
title of the Plaintiffs. The Plaintiffs had not approached the Court with
clean hands. The Plaintiff's case has to be thrown out. In support of her
submission, the learned Counsel for the Defendant relied on the ruling
reported in (2008) 4 SCC 594 : AIR 2008 SCC 2033 in the case of
Anathula Sudhakar Vs. P.Bhuchi Reddy (Dead) by Lrs. and others. The
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facts of this Second Appeal squarely fall in Para 13 of the Judgment and
whether Rs.30,000/- amount to be repaid by the Plaintiff can be waived by
the Defendant is the question raised by the Defendant. Therefore, this
Second Appeal is to be dismissed. The Plaintiffs had admitted the
signature on the document under Ex.B-3 and Ex.B-4. The Plaintiff failed
to prove that she signed on blank paper. Therefore, the Defendants contend
that the Judgment of the learned Sub Judge, Kanchipuram is on strong
reasoning.
20. By way of rejoinder, the learned Counsel for the Plaintiffs
submitted that there is no cloud over the title of the Plaintiffs. Therefore,
the question of filing the Suit for declaration does not arise. The sale
deeds had been created by the Defendants by misusing the signatures and
thumb impression obtained from the Plaintiffs and her daughter on blank
sheets. Ex.A-3 is the application by Mannar seeking assignment of lands.
Ex.A-4 is the letter from the Secretary, Chennai Pattinam District Soldiers
and Sailors Airmen's Board to the Tahsildar seeking assignment in favour
of Mannar.
21. The learned Counsel for the Plaintiffs invited the attention of this
Court to written statement filed by the Defendants wherein there is no
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specific denial regarding the exchange of legal notices. The Defendants do
not deny the claim in the Plaint. The Plaintiffs had sought decree for return
of the lands that were given as security for cultivation by the Defendants,
for adjustable interest for the principal amount of Rs.30,000/- . When the
Plaintiffs were ready to repay the amount, the Defendants refused it. The
conduct of the parties has to be viewed in the light of the evidence as well
as the circumstances, the first Plaintiff is an illiterate and aged widow. The
attempt of the first Defendant is to grab the property to which the
Defendants are not entitled. The first Defendant is a Central Government
servant, who had not obtained prior permission from his Superiors to
register the property, either on the date of filing of the written statement or
on the issuance of reply to the legal notice. The attempt of the Defendants
to register the sale deed through the Court also failed as the Sub Registrar
refused to register it. Since the property is an Odai Poramboke, the first
Plaintiff who is an agriculturist and the widow of a retired Army Jawan,
had been cultivating the land, and had approached the Government for
assignment of the land. Pending assignment, there was borrowal for which
the Defendants obtained signatures and thumb impressions from the
illiterate aged widow of Mannar/first Plaintiff and the signature from the
daughter of the second Plaintiff, which was subsequently converted into
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documents/sale deeds, which he could not register it as it is an Odai
Poramboke land. The Government Servant is not expected to encroach on
the Poramboke lands whereas the poor landless retired Army Jawan
cultivating Odai Poramboke seeking assignment of lands is justified.
Therefore, the learned Counsel for the Plaintiffs by way of rejoinder sought
to allow the Second Appeal and to set aside the Judgment of the learned
Sub Judge, Kanchipuram as perverse and restore the Judgment of the
learned Principal District Munsif, Kanchipuram which was a well-reasoned
Judgment.
22. Heard the learned Counsel for the Appellant and the learned
Counsel for the Respondent.
23. Perused the evidence before the learned Principal District Munsif
and the Judgment of the learned Principal District Munsif and the
Judgment of the learned Sub Judge, Kancheepuram.
24. On perusal of the evidence and the Judgment of the learned
Principal District Munsif dated 06.08.2011 in O.S.No.455 of 2006, it is
found that the learned Principal District Munsif in the Judgment had
observed that Ex.B-1 and Ex.B-2 are unregistered documents. Also, the
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learned Judge had in the Judgment stated that the learned Counsel for the
Defendant had submitted that Ex.B-1 and Ex.B-2, being unregistered
documents, are to be treated as a sale agreement. Based on the sale
agreement, possession was handed over to the Plaintiff by the Defendant.
Under Section 17 of the Registration Act, if any interest is transferred, it
has to be registered mandatorily. But Ex.B-1 and Ex.B-2 are unregistered
documents. Steps were taken through the Court to register the same by
paying a penalty and getting the registration of sale deeds through the
Court. But the same was refused by the Office of the Registrar for the
reason that it is an Odai Poramboke. The learned Counsel for the
Defendant before the learned District Munsif had submitted that Ex.B-1
and Ex.B-2 can be looked into for collateral purpose for which he cited the
decision in the case of Venugopal @ Alagarsamy (died) and others Vs.
Bajanai Alagarsamy and another reported in 2004 (3) Mad LJ 362. Civil
Procedure Code IV of 1908 under Order XLI Rule 31 of Civil Procedure
Code, 1908, where the land was leased for excavating earth to take bricks,
the land was exploited and the claim was for recovery of possession and
compensation. Agreement entered into between parties was not registered.
The lower Appellate Court refused to grant relief as unregistered document
cannot be considered even for collateral purpose. It was held that though
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the validity of unregistered documents is inadmissible as evidence but it
may be considered for collateral purpose. The Order of the lower
Appellate Court is set aside.
25. Also, the learned Counsel for the Defendant before the learned
District Munsif relied on another reported Judgment in (1999) 3 CTC 40 in
the case of M/s.Ram Mohan represented by Proprietors R.Renu Vs. M/s
Ganesar Gining Company Private Limited, Coimbatore and others. In
Registration Act(XVI) of 1908-Section 49 (c )lease deed that was not
registered was marked as a document. The landlord was not seeking to
enforce the terms of the lease in the suit, but only sought for vacant
possession and other reliefs. It was held that the lease deed was to prove
the nature of possession only belated. What is prohibited is the attempt to
enforce the terms of the lease. However, establishing the purpose for
which the lease was executed is permitted for a collateral purpose.
26. The learned Counsel for the Defendant before the learned
District Munsif had relied on the another ruling of the High Court reported
in 1997 (2) MLJ 23 in the case of M.K.Varappan Vs. Sri
Lakshminarayana Gopala Samy Temple by Executive Officer, Big
Bazaar. It is a time-barred suit. It is admitted by the Defendant that the
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loan was obtained in the year 1998 and they failed to make payment in the
year 2000. Under the Limitation Act, the Suit for recovery of possession
can be filed within a period of 12 years. The Suit was filed in the year
2006, it is well within the period of limitation and the plea of the
Defendant was rejected. The learned Principal District Judge had perused
the evidence and considered the rival contentions. It was the contention of
the Defendant that the Suit is not within time. As per the Defendant, the
Plaintiff had paid Rs.30,000/- and handed over possession. They had
executed the sale deed and they had come forward by filing the Suit as
though the Suit had been filed for recovery of vacant possession. It was
made to appear as though they had handed over possession for a time
bound period towards the settlement of the interest and that they were
ready to repay the principal amount. However, the Defendants refused to
accept the principal amount of Rs.30,000/-. Whereas the Defendants claim
that the Plaintiff had executed the sale deed after the receipt of Rs.30,000/-
and towards execution of the sale, they had handed over possession. From
the date of handing over the possession, the Defendants have been
cultivating the same. Now, the Plaintiff cannot be permitted to claim that
the sale deed was not executed just because Ex.B-1 and Ex.B-2 are
unregistered sale deeds. The contention of the learned Counsel for the
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Defendants before the learned District Munsif was that even though it is an
unregistered document, it can be treated as a sale agreement and it was in
continuation of the sale deed, the possession was handed over to the
Defendants. In the light of the rival submissions, the learned Principal
District Munsif held that the borrowal of the amount by the Plaintiff had
been admitted by the Defendants. The claim of the Defendants that the
Suit is barred by limitation was rejected on the ground that the Suit is filed
for recovery of possession and it is within time from the date of borrowal
ie., 1998 till the date of filing of the Suit i.e. 2006. The period for recovery
of possession is 12 years as per the Limitation Act. Therefore, the learned
Principal District Munsif had rejected the claim of the Defendants that the
Suit was barred by limitation. Section 66 of the Limitation Act is extracted
hereunder:-
Description of Suit Period of Time from which
limitation period begins to run
66. For possession of immovable Twelve years When the forfeiture is
property when the Plaintiff has incurred or the
become entitled to possession by condition is broken.
reason of any forfeiture or
breach of condition.”
27. The learned Principal District Munsif in the subsequent
Paragraphs had observed that the pleadings of the Defendants and evidence
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of the Defendants contradicted each other. The learned Principal District
Munsif had observed that the Plaintiffs had taken a plea that the signature
of the Plaintiffs had been obtained in blank papers by the Defendants. It is
the case of the Plaintiffs that a sum of Rs.30,000/- was borrowed and the
same was not repaid. The Plaintiffs had proved that the Defendants are in
illegal possession of the Suit property and they have to be evicted. The
Plaintiffs have to prove that the Defendants are in illegal occupation of the
Suit and that the Defendants might have misused the blank signed papers.
The Plaintiffs had proved their case. Therefore, the issues were decided in
favour of the Plaintiffs. Thereby the learned Principal District Munsif
decreed the Suit and answered the issues 1 to 3 in favour of the Plaintiffs.
Aggrieved, the Defendants had preferred the Appeal before the learned
Sub Judge, Kanchipuram claiming that the learned Principal District
Munsif misread the evidence of P.W-1 and failed to appreciate the legal
contentions in proper perspective raised with reference to the probative
value of Ex.B-1 and Ex.B-2. The trial court failed to see that even though
Ex.B-1 and Ex.B-2 are unregistered documents, still in the eyes of law, the
same could be treated as an agreement between the parties under which the
Plaintiffs had in their own writing gave up their occupancy/possession in
respect of the Suit property on the date indicated in the said documents.
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The trial court committed an error in holding that Ex.B-1 and Ex.B-2
cannot be treated as sale deeds. Therefore, the possession of the defendants
would be illegal when the appellants are entitled to rely upon these
documents to prove they were inducted in possession in a lawful manner.
The trial Court erred in holding that the suit was not barred under the
Limitation Act as it overlooked the fact that 12 years limitation period
cannot be availed by the plaintiffs when the suit property admittedly
belongs to the Government. Hence, the suit filed after six years ought to
have been rejected on this ground also. The learned District Munsif failed
to apply the settled principles laid down in the decisions relied up on by
the defendants regarding Ex.B-1 and Ex.B-2. Therefore, the
Defendants/Appellants sought to set aside the Judgment and decree
granted by the learned District Munsif. The learned Sub Judge,
Kanchipuram after hearing the argument of the learned counsel for the
Appellant (Defendant before the learned District Munsif) and the learned
counsel for the respondent (Plaintiff before the District Munsif) and on
appreciation of evidence had raised the following points for consideration:-
1. Whether the Decree and Judgment passed by the trial
Court is correct or not?
2. Whether the Appellant is entitled to allow this
Appeal?
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3. Whether the Suit is barred by limitation?
4. Whether the sale deed executed by the first
Defendant in favour of the Appellant on 18.10.2000 is
valid?
5. To what other relief?
28. All the points for determination are taken together for
consideration on the basis of the appreciation of evidence. The learned Sub
Judge in the Judgment had observed in the course of the re-appreciation of
evidence, which reads as follows:-
“11. On perusal of entire statement of witnesses, the
Plaintiff herself admitted in evidence that they have received
amount of Rs.30,000/- and the Suit property was handed over
to the Appellants for cultivating the same. The citations
submitted by the Appellants proves that the right and title
vested with the Appellants from 2000 onwards to till dated.
Hence, the trial Court has without considering the original
facts of the case and statement of witnesses, decreed the Suit
in favour of the Respondent. Hence, the reasons given by the
trial Court is not acceptable and hence, the decree and
Judgment of the trial Court should be set aside and the
Appeal may be allowed with costs.”
29. In the course of the discussion of evidence by the learned Sub
Judge, it is observed that the plaintiffs themselves admitted that they had
borrowed Rs.30,000/- from the first defendant and signed the blank papers.
The signature was also admitted by the plaintiffs. The second plaintiff had
also attested as a witness. During the course of trial, the first Defendant
had filed the Petition seeking to register the unregistered sale deed dated
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18.10.2000 with a penalty which was also allowed by the Court. At the
time of registration, the Sub Registrar had refused to register in favour of
the Appellants since the suit property is classified as Odai Poramboke.
Even though the property was classified as a cultivable land, this was not
communicated by the authorities, for which the defendants are not
responsible. On perusal of the evidence of P.W-1, she had categorically
admitted that the amount of Rs.30,000/- was received from the defendants
and the first plaintiff had affixed her thumb impression on the blank stamp
paper. However, the plaintiffs failed to prove that the defendants had
prepared the sale deed by way of using the blank stamp papers. The
original documents filed by the plaintiffs are all related to prior to the suit
i.e., obtained by the husband of the first Plaintiff. It may be true that a
government servant before purchasing an immovable property should
obtain permission from the government. But for which the plaintiff before
the trial court has no right to question the same before the Court of law
because permission for purchasing the property is between the government
and the government servant. Further, the defendants have also taken steps
for registration of unregistered sale deeds and wanted to get over the
illegality by way of paying penalties. If at all, the first plaintiff has
allegedly borrowed loan amount, why would she have executed a sale deed
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in favour of the defendants. The intention of the plaintiff is to discharge
the loan amount borrowed from the defendants by way of adjusting the
loan amount towards sale consideration. For which the
appellants/defendants are not liable to lose their right over the suit
properties. Anyhow, the consideration for the suit property is passed to the
plaintiff and accepted by the same. Further, before filing the suit, the
plaintiffs had issued legal notice to the Appellants/Defendants. For which
the Defendants have also issued reply notice in which they have
categorically stated that the first plaintiff had executed the sale deed dated
18.10.2000 in favour of the defendants by way of two documents which
were marked as Ex.B-1 and Ex.B-2. The contradiction stated by the first
defendant during the course of examination will not create any prejudice to
the title of the defendants over the suit properties. The citations submitted
by the learned counsel for the defendants before the learned Principal
District Munsif would prove that the unregistered sale deed was used for
collateral purpose. Since the purpose was the transfer of title of the suit
property in favour of the defendants, they have executed the documents.
Further, the Defendants have categorically denied the claim of the
plaintiffs in the written statement and subsequently claimed that the suit
property belonged to the defendants by way of unregistered sale deed dated
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18.10.2000. The plaintiffs ought to have filed the suit within three years
from the date of the unregistered sale deed and challenge the same by way
of filing the suit. However, the plaintiffs filed the suit in the year 2006.
Hence, without cancellation of the unregistered sale deed, the plaintiffs
cannot file the suit. Further, the plaintiffs did not seek relief of declaration
in respect of the suit property. Hence, the suit filed by the plaintiffs is not
maintainable. The plaintiffs had not filed the suit within three years from
the date of sale deed, by way of cancelling the same. Hence, the Suit filed
by the Plaintiff is barred by limitation. The citations submitted by the
learned Counsel for the defendants before the learned Principal District
Munsif are relevant to the facts of the case on hand. The grounds or
reasons stating that the judgment of the learned Principal District Munsif is
perverse, in the light of the reported decisions relied by the learned
Counsel for the defendants before the learned Principal District Munsif.
Therefore, the judgment to be set aside was accepted by the learned Sub
Judge, thereby the arguments put forth by the learned Counsel for the
Plaintiffs as Respondents in the Appeal was rejected and the Judgment of
the learned Principal District Munsif was set aside.
30. On perusal of the Judgment of the learned Principal District
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Munsif and the Judgment of the learned Sub Judge, the reasoning of the
learned Sub Judge cannot at all be accepted. In the evidence of D-1 as
D.W-1 he had admitted that he was serving as Superintendent in the
Central Government. The Plaintiff while approaching the Court by filing
the Plaint had clearly stated that her husband retired from the Indian Army.
He was assigned the land, he had been cultivating the land which was in
the register of the Revenue Department as Odai Poramboke. He had been
paying the kist which has been marked as Ex.A-6 which is series of kist
receipts Nos.1 to 56. He had filed an application seeking assignment under
Ex.A-3 and it was pending. While so, the husband of the original
Plaintiff/Mannar died in the year 1999, the Plaintiff had approached the
first Defendant seeking loan of Rs.30,000/- to perform the marriage of her
granddaughter. At that time, the daughter of the Plaintiff was also a
witness along with the grandson/Jayapal and the signatures of the Plaintiff
and the daughter of the Plaintiff were obtained by the first Defendant in
blank papers. As per the oral agreement between the Plaintiffs and the first
defendant, the possession of the cultivable land which the Plaintiff had
been cultivating was handed over to the first Defendant. As per the oral
agreement, the Defendants 1 and 2 will cultivate the land and derive
income from the agricultural yield, from which they will adjust the interest
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for Rs.30,000/-. Initially, the agreement was for two years and whenever
the Plaintiffs were ready with the original principal amount of Rs.30,000/-,
she would be handed over the possession of the land by the Defendants.
In 2001, she went with the money but the Defendants did not accept the
money. Therefore, the Plaintiffs apprehended that the document blank
papers on which she had affixed her thumb impression may be exploited to
create documents. Apprehending such conduct, the Plaintiff had issued
notice under Ex.A-7 seeking to hand over vacant possession of the land
over to the Plaintiffs. Instead, the Defendants had sent a reply notice
claiming that the Plaintiffs had executed the sale deed.
31. In the pleadings in the Plaint, it has been clearly stated that the
original Plaintiff, the first Plaintiff was an illiterate widow and she had
only one daughter who had impleaded herself as second Plaintiff. After
the death of the first Plaintiff, second Plaintiff was a witness to the
transaction. Therefore, she had proceeded with the Suit as the legal heir of
Mannar and Govindammal. She had cogently stated the fact in her
evidence. The learned Principal District Munsif had on proper appreciation
of evidence and considering the fact that the Suit was filed for recovery of
vacant possession assessed the matter. As per the Plaint averments and as
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per the claim of the Defendants, it was an agreement for refund of the
money after cultivating the land with the intention to adjust the amount
towards interest. Therefore, practically, it is a mortgage. The first
Defendant being better placed, is not illiterate, he is educated, worldly
wise, and obtained thumb impression and signatures from Plaintiff and the
daughter of the Plaintiff as security. Subsequently, he had converted those
documents into “sale deeds”, which he could not register. As per evidence
available before the trial Court, he had filed a Petition to register it which
was allowed by the learned Principal District Munsif in the course of the
trial. But when the document was produced before the concerned Sub
Registrar, the Sub Registrar refused to register on the ground that it is an
“Odai Poramboke” and that much of evidence is available before the
learned District Munsif. Therefore, by all means, it is only a mortgage
deed. Therefore, even if Ex.B-1 and Ex.B-2 were treated as sale agreement
deeds and in the light of sale agreement deeds, possession was handed over
to the Defendants, the Plaintiff is within her rights to seek recovery of
vacant possession.She was an illiterate and not worldly wise whereas the
first Defendant is the educated and working in Central Government service
and holding the Post of Superintendent. Therefore, the learned Principal
District Munsif had properly analysed the evidence in proper perspective.
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The claim of the Plaintiffs as Respondents in the Appeal that the first
Defendant being a Government Servant before ever getting a sale deed has
to obtain permission from his superior Authority is the normal conduct of a
lawful citizen working in Government Service before registering a sale,
otherwise he will end up in trouble. The observation of the learned Sub
Judge while re-appreciating evidence and while rejecting the finding of the
learned Principal District Munsif with the observation that the Plaintiff has
no right to question the same before the Court of law cannot be accepted.
The Court of law is expected to enforce the law and not encourage
lawlessness or violation of law. The first Defendant admits in cross-
examination that he is working as a Superintendent in Central Government
service and he admits in cross-examination that before registering a
document, he has to obtain approval from his Superiors. When he has not
obtained the said approval, the claim that the Plaintiffs executed the sale
deed for Rs.30,000/- has to be rejected. The learned Principal District
Munsif had properly analysed the evidence whereas the learned Sub Judge
had observed that the trial Court failed to consider the fact. This specific
observation of the learned Sub Judge is condemnable as it failed to
appreciate the evidence as it is. The learned Judge had found means to
encourage violations by a Government Servant and also as a common man
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in exploiting the illiteracy and helplessness of an aged, illiterate widow, an
aspect that also was ignored by the learned Sub Judge, Kanchipuram while
re-appreciating the evidence independently. Therefore, the finding of the
learned Sub Judge, Kanchipuram in setting aside the Judgment of the
learned District Munsif itself is perverse.
32. The finding of the learned Principal District Munsif is on strong
reasoning. The fact has to be considered that the husband of the first
Plaintiff, the father of the second Plaintiff was an ex-serviceman. He had
been cultivating the Odai Poramboke as a cultivating tenant which is
proved as per Ex.A-6-kist series 1 to 56 numbers and he had been issued
with notice under Ex.A-2 under Act 3 of 1905. Also, he had addressed the
Revenue Authorities seeking assignment of the land as per Ex.A-3. While
so, the learned Sub Judge had on appreciation of evidence stated the Suit
properties is classified as Odai Poramboke even though the property is
shown as cultivable which was not communicated by the Revenue
Authorities, for which the Respondent is not responsible. The original
documents filed by the Respondents are all related to prior to the Suit.
33. On perusal of the Plaint, the learned Sub Judge ought to have
found out that the Suit was for recovery of possession and not for
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declaration that the sale deed is null and void. The Plaint averments are
clear. She apprehended that her thumb impression might have been
misused. Therefore, she had issued notice under Ex.A-7 for which reply
was given under Ex.A-8. Only after Ex.A-8, she had filed the Suit. By the
time she approached the Court, it was beyond three years. Therefore, she
had to seek recovery of possession and accordingly, she had filed the Suit.
The reasoning by the learned Judge that the Suit property is Odai
Poramboke for which the Plaintiff cannot seek recovery of possession is a
misinterpretation of the fact. The facts before the learned Principal District
Munsif are clear and simple. The husband of the Plaintiff was cultivating
“Odai Poramboke” as per Ex.A-6 for quite a long time and he was
expecting the Government to assign the land to him. For all practical
purposes, he is the owner of the land and his application for assignment is
pending with the Government. Therefore, when the first Defendant sought
thumb impression, Plaintiff had given her thumb impression and the only
daughter of the Plaintiff who is an attesting witness had affixed her
signature as a witness to the transaction. The borrowal had been accepted
by the Plaintiffs. It is a clear case of the Plaintiffs that when she wanted to
return the principal amount, the Defendants refused to accept the same.
Only then, she suspected that he had some other motive i.e., to grab the
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property which forced her to issue notice under Ex.A-7 calling upon the
Defendants to hand over vacant possession. Instead of handing over vacant
possession, he claimed to have obtained the sale deed. When the
defendants claim to have obtained the sale deed, it is the right to question
the defendants in the witness box by the learned Counsel for the Plaintiffs
that before registering a sale deed and before proceeding with the purchase
of the property the Defendants ought to have obtained appropriate
permission from his Authorities which is a very important legal issue
which was however lightly rejected as unnecessary, unimportant by the
learned Sub Judge. The Judge enforcing the law is not expected to reject
such important question of law. Also, he had observed that the Plaintiffs
had not furnished the document regarding assignment of the land. After
conversion it is clear that it is a cultivable land. It is clear that even though
the Court had granted permission to the Defendants to execute the
unregistered deed as registered deed, the Sub Registrar of the Registration
Department refused to register it as it is an “Odai Poramboke”. Therefore,
by all means, the Defendant has to return the possession of the land to the
Plaintiffs. He has adjusted the principal till the original amount is repaid by
the Plaintiffs. It is to be noted that the Government Servants are not
expected to encroach on “Odai Poramboke” or seek ownership of
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Government lands as it is a violation of the rules of conduct of a
Government servant, whether he served under the Central Government or
State Government. Here, by all means, it is an illegal act on the part of the
Defendants to assert the property which is in possession of the Plaintiffs as
cultivable tenants as agriculturists and as a retired army man/the husband
of the Plaintiff. The Plaintiffs were also expecting assignment of the land
as per Ex.A-3. Therefore, the entire claim of the Defendants in the written
statement ought to have been rejected by the Appellate Judge, instead the
learned Appellate Judge had found ways to justify the conduct of the
Defendants, which a Court of law is not expected to do.
34. The arguments put forth on behalf of the Defendants relying
upon the ruling before the learned Sub Judge in the case of Venugopal @
Alagarsamy (died) and others Vs. Bajanai Alagarsamy and another
(reported in 2004 (3) Mad LJ 362; in the case of M/s.Ram Mohan
represented by Proprietors R.Renu Vs. M/s Ganesar Gining Company
Private Limited, Coimbatore and others ((reported in 1999) 3 CTC 40);
and in the case of M.K.Varappan Vs. Sri Lakshminarayana Gopala
Samy Temple by Executive Officer, Big Bazaar (reported in 1997 (2)
MLJ 23) cannot be pressed into the service of this case. The first
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Defendant admitted that he is a Central Government servant and he had not
obtained prior permission before executing the sale deed. Therefore, the
probable claim of the Plaintiffs that she had borrowed Rs.30,000/- and she
had given her thumb impression and her daughter and grandson had been
witnesses to the transaction has to be accepted as it is. As security for the
borrowal, the Plaintiffs had handed over possession of the property which
they had been cultivating to the Defendants and permitted the Defendants
to cultivate and adjust the income derived from it towards the interest.
When she was ready with Rs.30,000/- and she wanted repay the borrowed
amount, the Defendants refused to accept it, instead, the Defendants
claimed that the Plaintiffs had executed a sale deed which is marked as
Ex.B-1 and Ex.B-2. Therefore, the Defendants contended that the Plaintiff
ceased to be the owner of the property. The attempt of the Defendants to
execute and to register the sale deed even though allowed by the Court of
law, was refused by the Sub Registrar as it was “Odai Poramboke”. The
first Defendant who is the Government Servant is not expected to be
encroaching on Poramboke lands. Therefore, it is an illegal attempt which
cannot be justified in a Court of law. The learned Sub Judge had reversed
the Judgment of the learned Principal District Munsif on the ground that
the Suit was filed after three years as though the Plaintiff had filed a Suit
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for declaration of title or for a declaration to declare the sale deed as null
and void. She need not seek declaration. It is a clear case that she had
borrowed the money and she had handed over possession to the
Defendants. Therefore, the Suit for recovery falls under Article 66 of the
Limitation Act, and the Judgment of the learned Principal District Munsif
was well-reasoned. The reasoning of the learned Sub Judge cannot at all be
accepted as per the provisions of law. He had wantonly reversed the
finding by justifying the violation of a Government Servant attempting to
grab Odai Poramboke land cultivated by a former Army Jawan and his
legal heirs which cannot be justified by Courts of law. The Judgment of
the learned Sub Judge ignoring those well-reasoned, well-settled
principles and justifying illegality cannot be condoned. The learned Sub
Judge has found ways to set aside the Judgment of the learned Principal
District Munsif which cannot be appreciated by this Court in the Second
Appeal.
35. As per the rulings cited by the learned Counsel for the Appellant
reported in (1990) 4 SCC 706 in the case of Achal Reddy Vs.
Ramakrishna Reddiar and Others; and AIR 2021 SCC 4293 in the case
of T.V.Ramakrishna Reddy Vs. M.Mallappa and another, the first
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Appellate Court was not right in its finding that the Plaintiffs ought to have
filed a Suit for declaration to declare an unregistered sale deed as null and
void. The Plaintiffs need not seek declaration to declare the unregistered
sale deed as null and void. The Plaintiffs had clearly stated that she had
given her thumb impression in blank sheets of paper at the time of
borrowal and she had clearly stated that she had handed over possession on
demand of the Defendants. So that interest could be adjusted from the
yield of the land through cultivation. Therefore, the substantial question
of law-1 is answered in favour of the Plaintiffs before the learned
Principal District Munsif and against the Defendants 1 and 2.
36. Substantial Questions of Law-2 to 4:- the reasons given by the
learned Sub Judge are not mandated as per Order 41 Rule 31 of the Civil
Procedure Code. The learned Sub Judge had raised the points for
determination but had not answered it separately as per Order 41, Rule 31
of the Civil Procedure Code. It is a settled principle of law as laid down by
the Hon'ble Supreme Court that while re-appreciating evidence by the
Appellate Court, the Appellate Court shall not disturb the finding by the
trial Court, if the finding of the trial Court is on proper appreciation of
evidence. Even if the Appellate Court arrives at an opposite finding on the
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same set of facts and evidence, the same shall not be thrust on the trial
Court if the finding of the trial Court is based on proper appreciation of
evidence. This is due to the fact that the trial Court had the advantage of
observing the demeanour of the witnesses which is not available to the
Appellate Court. In the light of such principle, the Judgment of the learned
Sub Judge as Appellate Court cannot be accepted. In the light of the above
discussions, the finding of the first Appellate Court is found perverse due
to improper appreciation of oral and documentary evidence.
37. The first Appellate Court had not given cogent reasons while
reversing the findings of the trial Court as mandated under Order 41, Rule
31 of the Civil Procedure Code. The first Appellate Court failed to take
into consideration the specific defence taken by the Defendants in the
written statement that the Plaintiff had executed sale deed in favour of the
Defendants, and despite of the same proceeded to dismiss the Suit filed by
the Plaintiffs. The Judgment of the first Appellate Court is erroneous. The
substantial questions of law-2 to 4 are answered in favour of the
Plaintiffs and against the Defendants before the learned District Munsif.
38. The learned Counsel for the Respondents in the Second
Appeal/Defendants before the learned District Munsif had relied upon the
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ruling reported in the case of Anathula Sudhakar Vs. P.Buchi Reddy
(Dead) by Lrs. And others ((2008) 4 SCC 594) which is not applicable to
the facts of this case. Here, there is no cloud of title. The Suit property is
treated as Odai Poramoke which is under the cultivation of the first
Plaintiff and her husband/Mannar. The first Plaintiff's husband was a
retired Army Jawan and the Revenue Authorities had collected penalty
from him through a series of kist receipts (Nos. 1 to 56) which is marked as
Ex.A-6. The husband of the first Plaintiff was expecting the Government
to give him an assignment order towards his long enjoyment of the Odai
Poramboke as he was cultivating the same. He had also preferred
application under Ex.A-3 for the same. Therefore, there is no cloud of title.
The case of the Plaintiffs is simple. She had clearly stated that the land was
under cultivation and her husband had approached the Revenue Authorities
for assigning the land to him. Being a landless and poor retired Army
Jawan, he cultivated the Poramboke land as an agriculturist. However, the
Defendants, under the guise of extending loan obtained thumb impression
from an illiterate aged widow. Though, it was accepted as a security, it
was later misused by the Defendants. When the Plaintiff wanted to repay
the loan, the Defendants refused to accept it, claiming that she had already
executed a sale deed. The claim of the Defendants under Ex.B-1 and
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Ex.B-2/sale deeds cannot be accepted by Courts of law. The first
Defendant is employed in the Central Government service and being a
Government servant, he is not expected to encroach upon the Government
lands. If the claim of the Defendants in the written statement is to be
accepted, it would amount to encroachment on the Government lands. The
Government, however, is within its power and discretion to grant
assignment of lands available with the Government to the landless poor.
The Courts cannot interfere. Even though the Plaintiff had been in
enjoyment of an Odai Poramboke, she had permitted the Defendant to
cultivate the same and adjust the yield towards interest on the loan amount
of Rs.30,000/-. Therefore, the reversal of the Judgment of the learned
Principal District Munsif by the learned Sub Judge cannot be considered as
well-reasoned Judgment by applying the reported ruling cited by the
learned Counsel for the Respondent in (2008) 4 SCC 594 : AIR 2008 SCC
2033 in the case of Anathula Sudhakar Vs. P.Bhuchi Reddy (Dead) by
Lrs. and others.
39. The finding of the learned Sub Judge that the Suit filed by the
Plaintiffs is not maintainable had been reiterated by the learned Counsel
for the Respondents. The written statement claims that the Suit was for
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bare injunction. However, it is not a Suit for bare injunction, rather it is a
Suit for recovery of possession, which is well within the period of
limitation.
40. The learned Counsel for the Appellants/Plaintiffs relied on the
ruling reported in (1990) 4 SCC 706 in the case of Achal Reddy Vs.
Ramakrishna Reddiar and Others. The claim of the Defendants before
the learned District Munsif that the Plaintiffs handed over possession in the
light of Ex.B-1 and Ex.B-2, which are sale deeds, and thus, has to be
treated as sale agreement deeds cannot be accepted by the Courts below.
The claim of adverse possession also cannot be accepted in the light of the
ruling reported in (1990) 4 SCC 706 in the case of Achal Reddy Vs.
Ramakrishna Reddiar and Others. When the Defendants claim that
possession was handed over by the Plaintiffs, then such possession cannot
be considered as illegal. It is legal possession. It is only from the date of
the Defendants refusal to accept the repayment of loan amount that it had
been adverse to the Plaintiffs. The Defendants have not claimed adverse
possession in the written statement. They had only claimed that they had
taken possession in the light of sale deeds. Therefore, this ruling is not
helpful to the facts of this case. Only it has to be considered as either the
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possession of the Plaintiffs was accepted by the Defendants while
extending the loan and possession was handed over to the Defendants by
the Plaintiffs as security.
41. The learned Counsel for the Plaintiffs relied on the ruling
reported in AIR 2021 SCC 4293 in the case of T.V.Ramakrishna Reddy
Vs. M.Mallappa and another. The facts of this case are different from the
reported ruling. The Plaintiffs had filed the Suit for recovery of possession
which was not considered by the learned Sub Judge. She need not seek
declaration of title or declaration of sale deed executed relied on by the
Defendants as null and void. She had clearly narrated the facts and the
evidence in support of her case was also found proper. Therefore, the
ruling is not applicable to the facts of this case.
42. In the light of the above discussions, the substantial questions
of law are answered in favour of the Plaintiffs and against the
Defendants.
In the light of the above discussions, this Second Appeal is allowed.
The Judgment dated 18.03.2013 in A.S.No.90 of 2011 on the file of the
learned Sub Judge, Kanchipuram is set aside and the Judgment dated
06.08.2011 passed in O.S.No.455 of 2006 on the file of the learned
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Principal District Munsif, Kanchipuram is restored. The Plaintiff is
directed to pay Rs.30,000/- to the Defendant within a period of three
months from the date of receipt of a copy of this Order. No costs.
25.06.2025
dh
Index : Yes/No
Speaking/Non-speaking order
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To
1. The Sub Judge,
Kanchipuram.
2. The Principal District Munsif,
Kanchipuram.
3. The Section Officer,
V.R.Section,
High Court, Madras.
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SATHI KUMAR SUKUMARA KURUP, J.,
dh
Pre-delivery Judgment made in
25.06.2025
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SATHI KUMAR SUKUMARA KURUP, J.
This case is listed today under the caption “for being mentioned” at
the instance of the learned Counsel for the Appellant.
2. The learned Counsel for the Appellant submitted that as per
the judgment of the learned Principal District Munsif, Kancheepuram in
O.S.No.455 of 2006 dated 06.08.2011, the Defendant was directed to
handover possession of the property within a period of three months from
the date of judgment and the Plaintiff was directed to make payment of
Rs.30,000/- to the Defendant with interest at the rate of 12% p.a. from the
date of borrowal till the date of judgment and the same has to be paid
within three months from the date of judgment. But, in the judgment dated
25.06.2025 made in this Second Appeal, the same was omitted to be
ordered. Therefore, the learned Counsel for the Appellant sought to
include those directions in this Judgment also.
3. Considering the submission of the learned Counsel for the
Appellant, the result portion of the judgment shall read as follows:
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"In the light of the above discussion, this Second
Appeal is allowed. The judgment dated 18.03.2013 in
A.S.No.90 of 2011 on the file of the learned Sub Judge,
Kanchipuram is set aside and the judgment dated 06.08.2011
passed in O.S.No.455 of 2006 on the file of the learned
Principal District Munsif, Kanchipuram is restored. The
Defendant is directed to handover possession of the property
to the Plaintiff within the period of three months from the date
of receipt of a copy of this judgment. The Plaintiff is directed
to pay Rs.30,000/- to the Defendant with interest at the rate of
12% p.a from the date of borrowal till date of decree before
the trial Court and 6% from the date of decree till the date of
realisation. No costs. "
4. Registry is directed to incorporate the above paragraph instead of
the earlier one and issue fresh copy of the judgment to both parties.
11.07.2025
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SATHI KUMAR SUKUMARA KURUP, J.
Shl
11.07.2025
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