Madras High Court
V.V.Murugesan vs Rajendran on 23 October, 2025
2025:MHC:2427
S.A.NO.1502 OF 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 23 / 07 / 2025
JUDGMENT PRONOUNCED ON : 23 / 10 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.1502 OF 2010
AND
M.P.NO.1 of 2010
V.V.Murugesan ... Appellant /
Appellant /
Plaintiff
Vs.
1.Rajendran
2.M.Appachi Gounder
3.Thangaraj
4.D.Murugan
... Respondents /
Respondents /
Defendants
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
August 16, 2010 passed in A.S. No.123 of 2009 on the file of Principal
District Court, Erode District confirming the Judgment and Decree dated
July 17, 2009 passed in O.S. No.37 of 2006 on the file of Principal Sub
Court, Erode.
Page No.1 of 18
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For Appellant : Mr.S.Ramesh
For Respondents
1 and 2 : Mr.P.Pachaiyappan
for Mr.J.Kannan
For Respondents
3 and 4 : Mr.K.S.Jeyaganeshan
JUDGMENT
This Second Appeal is directed at the instance of the plaintiff in the
Original Suit. Challenge is to the Judgment and Decree dated August 16,
2010 passed in A.S. No.123 of 2009 by the 'Principal District Court,
Erode, Erode District' [henceforth 'First Appellate Court'], wherein and
whereby the Judgment and Decree dated July 17, 2009 passed in O.S.
No.37 of 2006 by the 'Principal Sub Court, Erode' [henceforth 'Trial
Court'] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE:
3. The plaintiff and his elder brother - V.Srigandhi entered into a
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registered Partition Deed on February 19, 1986, whereby the plaintiff was
allotted 'B' Schedule properties therein, measuring an extent of 2 Acre 8
Cents in R.S.No.339/4. On the date of partition itself, the plaintiff took
possession and continues to enjoy it as its absolute owner.
3.1. The plaintiff and one K.Suthanthiram entered into a Sale
Agreement dated September 15, 1988, whereby the plaintiff agreed to sell
the aforesaid land to K.Suthanthiram for a consideration of Rs.2,75,000/-
per Acre. On the same day, the plaintiff received an advance of
Rs.1,00,000/-. The time agreed for performance was one year.
3.2. K.Suthanthiram intended to convert the aforesaid land into house
sites and as per his directions, the plaintiff executed four Sale Deeds in
favour of (i) Rajendiran, (ii) Appichi Gounder, (iii) Mangalam and (iv)
Gopalakrishnan, in respect of a total extent of 8626 ¾ sq. ft., without any
consideration, as according to K.Suthanthiram, the same would promote
the sale of remaining house sites. However, no further sales took place.
The said 8626 sq. ft. is the suit property herein.
3.3. K.Suthanthiram was never willing to perform his part of the
contract by paying the balance sale consideration, in spite of the repeated
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demands made and the notices sent by the plaintiff. The relief under the
aforesaid Sale Agreement thereby got barred by efflux of time.
3.4. Then K.Suthanthiram filed the Suit in O.S. No.907 of 1993
before the Trial Court for specific performance against the plaintiff and
the same was dismissed. Subsequently, he filed an appeal before this
Court in A.S. No.1039 of 1996 and the same is pending.
3.5. While so, the plaintiff learnt that two of his vendees, namely
Mangalam and Gopalakrishnan purportedly sold what they purchased in
the suit property in favour of the defendants 3 and 4 on November 25,
1994.
3.6. The defendants and their predecessors in title have not taken
possession of the suit property from the plaintiff. The suit property
continues to be part and parcel of the agricultural land of the plaintiff, and
he is raising crops therein periodically and also using it as cattle pen. The
respective shares of the defendants were not demarcated. The defendants
and their vendors have not exercised the right of ownership over the
property at any point of time.
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3.7. The plaintiff perfected title by being in possession openly,
continuously and uninterruptedly with necessary animus to the knowledge
of the defendants and their vendors since 1989.
3.8. The defendants being the henchmen of K.Suthanthiram, tried to
trespass into the suit property on January 28, 2006, and thereby created
cloud over the plaintiff's title. Hence, the Suit for declaration and
permanent injunction.
DEFENDANTS' CASE:
4. The defendants 1 and 2 together filed a separate written
statement while defendants 3 and 4 together filed a separate written
statement. Sum and substance of the written statements is that an extent of
2 Acre 8 Cents in R.S.No.339/3 to 6, was allotted to the plaintiff as 'B'
Schedule property under the Partition Deed dated February 19, 1986, and
he was in possession of it, as absolute owner.
4.1. Then the plaintiff sold certain portions thereof to the defendants
1 and 2, and predecessors-in-title of defendants 3 and 4, for
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consideration.
4.2. Site Nos.1 to 3 were sold to defendants 1 and 2 vide Sale Deeds
dated June 21, 1989 and June 30, 1989 respectively. Defendants 1 and 2
are father and son.
4.3. Site Nos.5 and 6, totally an extent of 2929 sq. ft. were sold to
Mangalam by plaintiff vide Sale Deed dated August 23, 1989. In turn,
Mangalam sold entire Site No.4 and a portion of Site No.5, totally an
extent of 2529 sq. ft. to fourth defendant vide Sale Deed dated November
25, 1994 for consideration.
4.4. Site No.6, an extent of 1050 sq. ft., was sold to Gopalakrishnan
by plaintiff vide Sale Deed dated August 23, 1989. The third defendant
purchased a portion of Site No.5 and the entire Site No.6 from Mangalam
and legal heirs of Gopalakrishnan respectively, totalling to an extent of
1450 sq. ft., vide Sale Deed November 25, 1994.
4.5. Ever since the date of purchase, the defendants / predecessors-in-
title have been in continuous possession and enjoyment of their respective
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portions. In fact, on December 19, 1989, the first defendant obtained
building plan approval from Panchayat in respect of Site No.1.
4.6. The description of property in the Sale Deeds executed by
plaintiff shows that the properties were plotted and roads of 25 feet width
were also formed.
4.7. The defendants have no knowledge about the said Sale
Agreement dated September 15, 1988. Neither the plaintiff nor
K.Suthanthiram, who is an attestor to aforesaid Sale Deeds, informed
about the existence of the said Sale Agreement at the time of purchase of
Site Nos.1 to 6.
4.8. The defendants are not parties to the Suit in O.S.No.907 of 1993
and had no knowledge about the same. Hence, if any decree is passed it
will not bind the defendants.
4.9. The defendants never trespassed into the property and no need
arose for them to do so, as they / predecessors-in-title are in the
possession of the property from the date of conveyance. The Suit is barred
by limitation, bad for non-joinder of necessary parties and not properly
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valued. Stating so, the defendants sought for dismissal of the suit.
TRIAL COURT:
5. Based on the above pleadings, the Trial Court framed the
following issues:
''(1).Whether the plaintiff is entitled to declaration as
prayed for?
(2).Whether the plaintiff is entitled to the permanent
injunction as prayed for?
(3).To what relief?"
5.1. The Trial Court framed the following issues as additional
issues on June 1, 2009:
''(1) Whether the Suit is not maintainable for non-
joinder of necessary party viz., Thiru K.Sudanthiram ?
(2) Whether the Suit is barred by limitation ?''
6.During trial, on the side of the plaintiff, the plaintiff was
examined as P.W.1, one Mr.Yoganathan was examined as P.W.2, and Ex-
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A.1 and Ex-A.9 were marked. On the side of the defendants, the first
defendant was examined as D.W.1, one Mr.Sivanantham was examined as
D.W.2 and third defendant was examined as D.W.3 and Ex-B.1 to Ex-B.11
were marked. Ex-C.1 – Advocate Commissioner's report and and Ex-C.2
- sketch were marked as Court documents.
7. After full-fledged trial, the Trial Court held that the plaintiff has
already sold the property through Ex-B.1 to Ex-B.4 to the defendants for
valid consideration and no right persists to him as on date. Further held
that the agreement holder – K.Suthanthiram is not a necessary party to
decide this lis. Further held that the relief sought for in the plaint is
barred by law of limitation. Finally, the Trial Court held that the plaintiff
is not entitled for the relief of declaration and permanent injunction and
dismissed the Suit accordingly.
FIRST APPELLATE COURT:
8. Feeling aggrieved with the Trial Court's Judgment and Decree,
the plaintiff, as sole appellant, preferred an appeal in A.S.No.123 of 2009
before the First Appellate Court.
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8.1. After hearing both sides, the First Appellate Court dismissed
the Appeal Suit filed by the plaintiff and confirmed the Judgment and
Decree dated July 17, 2009 passed in O.S.No.37 of 2006 by the Trial
Court.
SECOND APPEAL:
9. Feeling aggrieved by the Judgment and Decree passed by the
First Appellate Court, the appellant therein, who is the plaintiff in the
Original Suit, has preferred this Second Appeal.
ARGUMENTS:
10. Mr.S.Ramesh, learned Counsel for the appellant / plaintiff
would reiterate the plaint averments and argue that though plaintiff
executed Ex-B.1 to Ex-B.4 - Sale Deeds in favour of the Defendant Nos.1
and 2 and the predecessors-in-title of defendants 3 and 4, no consideration
was passed thereunder and possession was never handed over. The
plaintiff remains in actual possession and enjoyment of the suit property.
Since there was no consideration and no handing over of possession, Ex-
B.1 to Ex-B.4 are void. The defendants tried to trespass into the suit
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property and created cloud over the plaintiff's title. Hence, the Suit for
declaration and permanent injunction. The Trial Court as well as the First
Appellate Court failed to consider the fact that the plaintiff remains in
possession and enjoyment of the suit property, failed to appreciate Ex-C.1
and Ex-C.2 - Advocate Commissioner's Report and Sketch in proper
perspective and erred in dismissing the Suit. Both the Courts erroneously
held that non-examination of plaintiff's brother is fatal to plaintiff's case.
The Judgment and Decree of the Trial Court and those of First Appellate
Court are erroneous and deserves to be interfered with. Accordingly, he
would pray to set aside the Judgment and Decree of both the Courts.
11. The arguments of Mr.P.Pachaiyappan for Mr.J.Kannan, learned
Counsel on record for the respondents 1 and 2 / defendants 1 and 2, and
Mr.K.S.Jeyaganeshan, learned Counsel for the respondents 3 and 4 /
defendants 3 and 4 can be summarised as follows:
11.1. The plaintiff admitted the execution of Ex-B.1 to Ex-B.4 in
favour of the defendants 1 and 2 and the vendors of defendants 3 and 4.
11.2. Since Ex-B.1 to Ex-B.4 are registered Sale Deeds the plaintiff is
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precluded from leading evidence against the contents thereof under
Sections 91 and 92 of the Indian Evidence Act, 1872.
11.3. Moreover, the relief sought for by the plaintiff qua declaration
is barred by limitation. The plaintiff ought to have filed the Suit within
three years from the date of execution of Sale Deed.
11.4. Both the Courts concurrently held that the plaintiff executed
Ex-B.1 to Ex-B.4 - Sale Deeds for valid consideration and handed over
possession. The said factual findings were recorded, after considering the
documentary evidence as well as the oral evidence. There is no question
of law, much less, substantial question of law is involved in this Second
Appeal. Accordingly, they prayed to dismiss the Second Appeal.
DISCUSSION:
12. Heard on either side. Perused the evidence available on record.
It is learnt from the typed set of papers annexed with the Second Appeal
case file, that the Suit filed by K.Suthanthiram against the plaintiff in O.S.
No.907 of 1993 on the file of Trial Court seeking the relief of specific
performance was dismissed. The Appeal filed under Section 96 of CPC
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against the said Dismissal Decree was allowed in part by confirming the
dismissal of the relief of specific performance and granted the alternate
relief of refund of advance amount vide Judgment of this Court dated
November 6, 2009. There is no dispute with the above facts. Moreover,
mere sale agreement does not create or confer any right to the agreement
holder – namely K.Suthanthiram. Hence, aforesaid K.Suthanthiram is not
a necessary party to the suit. The Trial Court rightly decided the said
issue.
13. The case of the plaintiff is that though he executed Ex-B.1 to
Ex-B.4 - Sale Deeds in favour of the defendants 1 and 2 and the vendors
of defendants 3 and 4, there was no passing of consideration thereunder
nor possession was handed over. Ex-B.1 to Ex-B.4 - Sale Deeds are duly
registered and they contain sufficient recitals to show passing of
consideration thereunder by cash. Hence, the plaintiff is precluded from
contending and leading evidence contrary to the recitals contained in Ex-
B.1 to Ex-B.4 in view of Sections 91 and 92 of the Indian Evidence Act,
1872.
14. This Second Appeal was simultaneously heard along with A.S.
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No.944 of 2015 as the matters are interconnected, and separate Judgments
are being pronounced. The said Appeal Suit was preferred over the
Judgment and Decree of the I Additional District Court, Erode in O.S.
No.185 of 2013. The defendants herein were also initially arrayed as
Defendant Nos.4 to 7 and later, fourth defendant herein / sixth defendant
therein namely Murugan alone was exonerated. In the latter Suit
proceedings, i.e., in O.S. No.185 of 2013, the plaintiff herein, who is the
second defendant therein, had pleaded in his written statement wherein he
clearly admitted the execution of Ex-B.1 to Ex-B.4 - Sale Deeds in favour
of the defendants 1 and 2 and the vendors of defendants 3 and 4 namely
Mangalam and Gopalakrishnan and also admitted that possession had
been given under Ex-B1 to Ex.B4 sale deeds. To that effect, he deposed
in Court.
15. The Trial Court as well as the First Appellate Court upon
hearing either side and perusing the evidence available on record and also
considering the facts and circumstances of this case, concurrently arrived
at a factual finding that Ex-B.1 to Ex-B.4 were executed by plaintiff in
favour of the defendants 1 and 2 and the predecessors-in-title of
defendants 3 and 4 for a valid consideration and that possession was
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pursuantly handed over to the vendees. The Sale Deeds in Ex-B.1 to Ex-
B.4 were all executed in 1989 and the Suit has been filed in the year 2006
and therefore, the relief of declaration as sought for in this Suit i.e.,
without seeking cancellation of Ex-B.1 to Ex-B.4 - Sale Deeds, is not
maintainable. This Court does not find any illegality, irregularity or
perversity in the Judgment and Decree of the Trial Court as well as the
First Appellate Court.
16. The plaintiff has raised 5 questions as Substantial Questions of
Law in the memorandum of grounds of appeal under Section 100 (3) of
CPC. This Court has perused the same and is of the considered view that
they essentially are factual questions. There is no questions of law much
less substantial question of law is involved in this Second Appeal.
Therefore, the Second Appeal must fail for lack of substantial question of
law.
CONCLUSION:
17. In the result, the Second Appeal is dismissed for lack of
substantial question of law. The Judgment and Decree of the First
Appellate Court as well as the Trial Court are hereby confirmed. In view
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of the facts and circumstances of this case, there shall be no order as to
costs in this Second Appeal. Connected Miscellaneous Petition shall be
closed.
23 / 10 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
pam/TK
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S.A.NO.1502 OF 2010
To
1.The Principal District Court,
Erode,
Erode District.
2.The Principal Sub Court,
Erode.
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S.A.NO.1502 OF 2010
R. SAKTHIVEL, J.
PAM/TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.1502 OF 2010
23 / 10 / 2025
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