Madras High Court
N.Balakrishnan ... 8Th vs A.A.Arughathoss on 16 October, 2025
A.S.No.624 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.10.2025
CORAM
THE HONOURABLE MR.JUSTICE P.B. BALAJI
A.S.No.624 of 2025
&
C.M.P.No.12112 of 2025
N.Balakrishnan ... 8th Defendant / Appellant
Vs.
1. A.A.Arughathoss
2. Thiyagarajan
3. Sakunthala
4. Vasu
5. Rosaiya
6. K.Yesu
7. Kanchana
8. Ranjith Kumar
9. (minor) Sathish Kumar
S/o.Doss
(Represented by his mother and natural guardian Kanchana 7th Respondent
herein)
10. V.Srinivasan
11. V.Kalaivani
12. V.Rajalakshmi
13. V.Umadevi
First appeal filed under Section 96 of the Code of Civil Procedure,
1908 against the judgment and decree of learned Additional District and
Sessions Judge- III, Poonamallee made in O.S.No.83 of 2012 dated
1/12
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A.S.No.624 of 2025
21.02.2025.
For Appellant : Mr.Kumarasamy
for Mr.B.B.Sendhil Kumar
For Respondents : Mr.P.Dinesh Kumar
for Caveator/R1
JUDGMENT
The 8th defendant in O.S.No.83 of 2012 is the appellant herein. The
said suit was filed by the first respondent herein for declaration of his title
and for recovery of possession from Defendants 1 to 7 initially. Pending
suit, the appellant herein got himself impleaded as 8th defendant. Thereafter,
in view of demise of some of the defendants, their legal representatives were
also impleaded as Defendants 9 to 15.
2. After trial, the suit was decreed in favour of the first respondent
herein granting a decree declaring the plaintiff's right and title over the suit
property and also granting a decree for surrendering possession. Even
though the decree mentions that 8th defendant is also liable to deliver vacant
possession, it is not even the case of the plaintiff that 8th defendant was in
possession of the property. In fact, the plaintiff has, in the first place, never
chosen to file the suit against the 8th defendant and there was no relief sought
for against 8th defendant. It is to be noted that the defendants, who are
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directed to surrender vacant possession, have not chosen to challenge the
judgment and decree and only the 8th defendant has chosen to file the present
appeal.
3. Contending that the plaintiff,who had purchased the suit property by
way of an auction, had no sufficient means to meet the purchase price and it
was the appellant, who funded the plaintiff and that the appellant and first
respondent had orally agreed for the arrangement that the profits would be
shared in the ratio of 80:20 (80 to appellant and 20 to first respondent), the
appellant got himself impleaded in the suit.
4. The trial Court, after considering the pleadings on record, framed
the following issues:
“Issues:
1. Whether the plaintiff is the owner of the suit property?
2. Whether the plaintiff is entitled to the relief of declaration
and the consequential relief of recovery of possession?
3. Whether the plaintiff is entitled to the relief of permanent
injunction restraining the defendants from putting up superstructures
in the suit property?
4. To what other relief(s) is the plaintiff entitled?
Additional Issues:
1. Whether the suit is maintainable?
2. Whether the suit is barred by limitation?
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3. Whether the suit is hit under Section 11 of CPC?
4. Whether the suit hit under Section 47 of CPC?
5. Whether the plaintiff is entitled to the reliefs as claimed in the
suit?
Additional Issue:
6) Whether the valuation of the suit and the court fee paid by the
plaintiff is in correct?”
5. At the trial, on the side of the plaintiff, the plaintiff himself
examined as PW1 and Exs.A1 to A11 were marked. On the side of the
defendants, 12th defendant examined himself as DW1 and Exs.B1 to B3 were
marked. It is relevant to note that all these exhibits viz., Exs.B1 to B3 were
marked by the 8th defendant through PW1 in cross-examination. The suit
was ultimately decreed by the trial Court. Challenging the judgment and
decree, 8th defendant has filed the present appeal.
6. I heard Mr.Kumarasamy, learned counsel representing
Mr.B.B.Sendhil Kumar, counsel on record for the appellant and Mr.P.Dinesh
Kumar, learned counsel for the respondents.
7. Mr.Kumarasamy, learned counsel for the appellant would submit
that the trial Court has committed a patent illegality and grave error by not
even considering the written statement filed by the 8th defendant. The
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learned counsel would also state that the trial Court has miserably failed to
frame an issue with regard to the contentions raised by the 8th defendant in
the written statement and he would further state that the appellant/8th
defendant has also taken out an application for adducing additional evidence
in the appeal and the same is yet to be numbered by the Registry. It is his
further submission that 8th defendant has not been given a fair opportunity to
put forth his case to establish that there was an oral arrangement between the
plaintiff and the 8th defendant with regard to sharing of the profits viz., sale
price that the suit property would fetch. It is to be noted that the suit
property comprised of several plots. The learned counsel would therefore
state that the appellant/8th defendant has been denied fair opportunity and the
trial Court also not having even considered the defence taken by the 8 th
defendant, ought not to have decreed the suit as prayed for by the plaintiff.
He would, therefore, seek for the matter being remitted to the trial Court in
order to give an opportunity to the appellant to establish his defence.
Mr.Kumarasamy, learned counsel for the appellant would further state that
the compromise memo, which was filed through PW1 during the plaintiff's
cross-examination, contains the signature of the 8th defendant and it is the
case of the learned counsel that only because the 8th defendant / appellant
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travelled along with the plaintiff through out the transaction and had
financed even for the purchase of the suit property, 8th defendant's signature
was taken in the compromise memo. He would therefore state that if an
opportunity is given to the appellant/8th defendant to prove the various
circumstances leading to the compromise memo and the appellant is given an
opportunity to establish his contentions in the written statement, then the
plaintiff would not be entitled to any decree and therefore, learned counsel
seeks for the matter to be remitted to the trial Court for fresh consideration.
8. Per contra, Mr.Dinesh Kumar, learned counsel for first
respondent/plaintiff would submit that the appellant/8 th defendant, despite
not being arrayed as defendant originally in the suit, sought to implead
himself on the strength of on oral arrangement with the plaintiff. The
learned counsel would further state that despite opportunities given to the 8th
defendant, he has not availed the same and not even chosen to enter the
witness box to establish his plea that there was an oral arrangement of
sharing of the sale price in the ratio of 80:20 as between the appellant/8th
defendant and first respondent/plaintiff. Further it is contended by
Mr.Dinesh Kumar that the suit was filed by the plaintiff for recovery of
possession of properties from several encroachers, the case set up by the 8 th
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defendant was totally alien and therefore, there is no error committed by the
trial Court in not framing an issue pertaining to the stand taken by the 8th
defendant and therefore, there is no merit in the appeal and the same
deserves to be dismissed.
9. The points that arise for consideration in the first appeal are as
follows:
i) Whether the appellant/8th defendant has been denied by the
trial Court an opportunity to putforth his contentions and establish
his interest in the suit property?
ii) Whether the trial Court fell in error in not considering the
appellant's/8th defendant's claim over the suit property?
Points 1 and 2:
10. Admittedly, the plaintiff, based on sale deed standing in his name,
has sought for declaration of his title and for recovery of possession against
Defendants 1 to 7. Pending suit, the 8 th defendant got himself impleaded
alleging that there was an oral arrangement between the plaintiff and the 8th
defendant with regard to the sharing of sale price of the suit property and that
the plaintiff is attempting to defraud the 8th defendant. The impleading
application was allowed and the 8th defendant also filed a written statement.
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The case of the 8th defendant in the written statement is that the plaintiff is
not the absolute owner of the suit property; the suit property was originally
sold in Court auction on 10.02.1988 and the plaintiff, who evinced interest in
purchasing the property, was not possessed of sufficient funds and there were
also several encroachers and it was only the 8th defendant, who is a close
friend of the plaintiff from 1969 onwards, who funded the plaintiff for not
only purchasing the suit property, but also for settling the encroachers as
well as for conducting various cases. It is the specific case put forth by the
appellant/8th defendant that he had an oral agreement with the plaintiff that
the 8th defendant would be entitled to 80% of the sale price of the suit
property and the plaintiff would be entitled to 20% alone. It is also the case
of the 8th defendant that only because 8th defendant had paid substantial
monies to various encroachers, his signature was also obtained in the joint
memo of compromise. The joint memo of compromise has been marked as
Ex.B3 in cross-examination of PW1 through the 8th defendant.
11. With regard to the contentions of Mr.Kumarasamy that the trial
Court has not framed the issues properly and has not even factored the stand
taken by the appellant/8th defendant, I do not see any error committed by the
trial Court. Firstly, the suit has been filed by the plaintiff only against
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Defendants 1 to 7 and consequent to the demise of some of the defendants,
who are stated to be encroachers, their legal representatives have been
impleaded as defendants 9 to 15. No relief has been sought for by the
plaintiff as against the 8th defendant. Though the 8th defendant has been
impleaded in the suit and has filed the written statement, the said written
statement has nothing to do with the claim of the plaintiff. If at all the 8th
defendant wanted his rights to be declared by the Court, then 8 th defendant
ought to have filed a counter claim. Admittedly, the 8th defendant has not
filed any counter claim but has only chosen to file his written statement. In
fact, I find that the 8th defendant did not even choose to enter the witness box
and lead evidence. Despite the trial Court having posted the matter for
evidence of 8th defendant on three occasions, the 8th defendant did not avail
of the opportunity and learned counsel for 8th defendant, has in fact, filed a
memo stating that 8th defendant has gone abroad and he does not intend to
lead any oral evidence. In any event, the 8th defendant has marked three
exhibits through PW1 in cross-examination.
12. In the light of the fact that relief was sought for in the suit only as
against Defendants 1 to 7 and some of their legal representatives i.e.,
Defendants 9 to 15, I do not see how the trial Court was necessitated to
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frame any issue with regard to the contentions raised by the 8th defendant. If
at all the 8th defendant had chosen to file a counter claim, then he may be
right in contending that the trial Court has not framed proper and necessary
issues. Unfortunately, the written statement filed by the 8th defendant, that
too, basing his claim on an oral agreement, does not in any way aid the trial
Court in adjudicating the issues that arise for consideration based upon the
plaint and the written statement filed by the contesting first defendant. I do
not see how the trial Court was required to even consider the case of the 8th
defendant, who had nothing to do with the suit claim, which was at the
instance of the plaintiff.
13. In any event, the 8th defendant has also not chosen to enter the
witness box and though it was contended by the learned counsel for
appellant Mr.Kumarsamy that the trial Court has not even considered the
stand of the appellant at the time of deciding the issues framed by the trial
Court, I find that the trial Court has rightly found that the case of the 8 th
defendant is that he has spent and funded the cost of acquisition of the
property and also met the litigation expenses and that though there was oral
arrangement pleaded and that the 8th defendant has not entered the witness
box to even speak on oath regarding his case. The trial Court rightly found
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that the 8th defendant's contention cannot be accepted since there is no
sufficient evidence and from the available documents, the trial Court has
found that the plaintiff has established that he is the owner of the suit
property. I do not find any patent error, infirmity or illegality in the finding
arrived at by the trial Court in decreeing the suit, in a manner it has been
done, in favour of the first respondent/plaintiff. In fact, none of the other
defendants have chosen to challenge the said judgmnet and decree. However,
insofar as the claim made by the appellant /8th defendant that there was an
oral arrangement and the appellant is entitled to 80% of the sale proceeds of
the suit property, it is totally an independent cause of action and it is for the
8th defendant to work out his right in accordance with law if permissible
subject to law of limitation.
In fine, the points 1 and 2 formulated above are answered against the
appellant and the first appeal is dismissed. There shall be no order as to
costs. Consequently, the connected civil miscellaneous petition is closed.
16.10.2025
Index: Yes/No
Neutral Citation: Yes/No
gpa
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P.B.BALAJI.J.,
gpa
To
The Additional District and Sessions Judge- III
Poonamallee
16.10.2025
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