IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.07.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A. No.47 of 1997 1.D.Aruldoss (Deceased) 2.Prema Florance Vasantha 3.Arul Choodamani (Appellants 2 and 3 brought on record as L.Rs. Of the Deceased Sole Appellant vide order of Court dated 13.04.10 made in CMP No.21213 and 21214/2003) ...Appellants Vs. 1.C.Palayam 2.Subramani 3.Panjam 4.Rathinam 5.Dhanammal ...Respondents Prayer: Appeal filed under Section of 100 of C.P.C. against the Judgment and Decree dated 14.08.1996 in A.S.No.30 of 1994 passed by the Learned Subordinate Judge, Tiruvallur confirming the Judgment and Decree dated 28.02.1994 in O.S.No.108 of 1985 on the file of the District Munsif Court, Tiruvallur. For Appellants : M/s.V.Chandrakanthan For Respondents : Mr.J.R.K.Bhavenandam for R1 No Appearance for R2 to R5 J U D G M E N T
The Appellant/Plaintiff (during his life time) has preferred this Second Appeal before this Court as against the Judgment and Decree dated 14.08.1996 in A.S.No.30 of 1994 on the file of the Subordinate Court, Thiruvallur.
2. During the pendency of Appeal, consequent to the death of the Appellant/Plaintiff (Deceased) his Legal heirs have been brought on record as Second and Third Appellants.
3. The First Appellate Court viz., the Learned Subordinate Judge, Thiruvallur while passing the Judgment in A.S.30 of 1994 dated 14.06.1996 has among other things observed that ‘the Appellant/Plaintiff (Deceased) has not established that he has a right and Title in the suit property and also opined that the Appellant/Plaintiff (Deceased) has not established his case and has come to a resultant conclusion that he is not entitled to claim any relief and resultantly, dismissed the Appeal with costs.
4. Before the trial Court, on the side of the Appellant/Plaintiff (Deceased), Witnesses P.Ws.1 to 4 have been examined and Exs.A1 to A4 have been marked. On the side of the Respondents, D.Ws.1 to 3 have been examined and Exs.D1 to D3 have been marked.
5. The trial Court has framed in all three issues. On an appreciation of oral and documentary available evidence on record, the trial Court has come to the conclusion that the Appellant/Plaintiff (Deceased) has not got the right in the suit property and that he is not entitled to claim the Declaratory relief and also the permanent injunction and resultantly, dismissed the suit with costs.
6. At the time of admission of the Second Appeal, this Court has framed the following Substantial questions of Law for determination:
(i)Whether the possession delivered under the unregistered Sale Deed under Section 53 A of the Transfer of Property Act is not sufficient to prove the possession of the suit property?
(ii) Whether the Appellant can claim Adverse Possession under the un-registered Sale Deed under which the possession has been delivered under Section 53 A of the Transfer of Property Act?
(iii) Whether the hostile possession of the Appellant against the co-owner who is in possession for more than 50 years can claim ouster?
CONTENTIONS, DISCUSSIONS AND FINDINGS ON
POINTS 1 TO 3:
7. According to the Learned counsel for the Appellants, both the Courts below have not taken into account of the fact that Appellant/Plaintiff (Deceased) purchased the suit property as per Ex.A1 Agreement/Document dated 15.05.1942 and that he was in possession and enjoyment of the suit property without any interruption whatsoever and as a matter of fact, the Appellant/Plaintiff’s (Vendor) Easurathinam sold the property to the Appellant/Plaintiff (Deceased) and delivered the possession. It is the further plea of the Learned counsel for the Appellants that the evidence of witnesses P.Ws.2 to 4 have not been taken into account by the Courts below to the effect that the Appellant/Plaintiff (Deceased) purchased the property from Easurathinam.
8.Expatiating his arguments, the Learned counsel for the Appellants submits that the Courts below have not appreciated Ex.B1 Sale Deed dated 10.12.1984 in favour of the First Defendant as illegal and unjust one and indeed, the evidence of D.Ws.1 to 3 ought to have been rejected by both the Courts as false one and in short, both the Courts have not adverted to the material aspects of the matter in a proper legal perspective, which has resulted in serious miscarriage of justice and therefore, prays for allowing the Appeal in furtherance of substantial cause of justice.
9. Per contra, the Learned counsel for the First Respondent contends that both the Courts below have taken note of the relevant attendant facts and circumstances of the case in a real perspective and both the Courts have come to a proper conclusion after scrutinising the available material and evidence on record that the Appellant/Plaintiff (Deceased) is not entitled to claim any relief and rightly dismissed the suit, which need not be interfered with by this Court at this stage in the Second Appeal.
10. It is useful to refer to the evidence of P.W1 (Deceased Plaintiff) who has deposed that the suit property belongs to him and his brother and that he has purchased the same from Easurathinam on 15.05.1942 by means of Ex.A1 Agreement and from that date of Agreement, he and his brother are in enjoyment of the suit property.
11. It is the further evidence of PW1 that in the suit property, one Kanikannu is residing and that the rough plan pertaining to the suit property is Ex.A4 and in regard to the property, that he is in possession and enjoyment from the year 1942. The First Respondent/Second Defendant Palayam has no right whatsoever.
12. It is the evidence of PW2 that the suit property belongs to the Appellant/Plaintiff (Deceased) and that the Appellant/Plaintiff (Deceased) has been enjoying the suit property for the past 45 years and that the suit property has been purchased by the Appellant/Plaintiff (Deceased) Easurathinam and that in the suit property, the Appellant/Plaintiff (Deceased) has constructed a house and he has been residing there.
13.The evidence of PW3 is to the effect that the suit property has been in enjoyment of the Appellant/Plaintiff (Deceased) for the past 30-35 years and that the Appellant/Plaintiff (Deceased) informed him that he has purchased the suit property from Teacher Easurathinam. It is the evidence of PW4 that the suit property belongs to the Appellant/Plaintiff (Deceased) and since the Appellant/Plaintiff (Deceased) has enjoyed the suit property that it belongs to him.
14. DW1 (Second Defendant) in his evidence has deposed that the suit property is his ancestral property and initially, his Father Periyakannikan and Chinnakanikan are the owners and that he has served as a Thalayari before and that presently, his son is serving as Thalayari and that the suit property is measuring 110 feet and that Appellant/Plaintiff (Deceased) has not enjoyed the suit property.
15. DW2 in his evidence has deposed that Rajammal had a house site which was sold to Palayam and in the said Sale Deed, he has signed as a witness and further, it is not correct to say that the Rathinam is enjoying the suit property.
16. DW3 in his evidence has stated that his house and the Second Defendants house are just opposite to each other and the First Defendant had a house site only in that place which was later on sold to Palayam and that the Sale Deed was executed at Uthukottai.
17. It is the evidence of DW1 (Palayam) in his cross-examination that he has no right in the property sold by Easurathinam.
18. At this stage, a perusal of the plaint filed by the Appellant/Plaintiff (Deceased) indicates that the suit has been filed for Declaration of Title of the Appellant/Plaintiff (Deceased) to the suit items and for a permanent injunction restraining the Defendants, their men and Agent,s from in any manner interfering with his peaceful possession of suit items.
19. Continuing further, in the plaint, the Appellant/Plaintiff (Deceased) has mentioned that he is in possession of the suit items and initially, they belong to Easurathinam and that by Deed of Agreement of Sale dated 15.05.1942, Easurathinam has agreed to execute a Sale Deed in favour of the Appellant/Plaintiff (Deceased) of the suit items for Rs.430/- and received the full amount and in pursuance of the Agreement and from that date onwards, he was in exclusive possession by fencing the said site.
20. According to the Learned counsel for the Appellants, the Appellant/Plaintiff (Deceased) was tethering his cattle and lives West of item No.2 etc., and since the Appellant/Plaintiff (Deceased) during his life time was entitled to be in possession, he is entitled to claim the benefit under Section 53(A) of the Transfer of Property Act.
21. Added further, in the plea, the Appellant/Plaintiff (Deceased) also had averred that the Defendants had no manner of right and interest in the suit items and when the Appellant/Plaintiff (Deceased) came to know that the Second Defendant was prepared to obstruct his possession, he issued a Notice to him dated 23.01.1985 demanding acknowledgement of Plaintiff’s Right but the Defendant declined to do so and therefore, the Appellant/Plaintiff (Deceased) had filed the suit for Declaration of his Title in respect of the suit items and for the relief of permanent injunction.
22. In the Written Statement, the First Respondent/Second Defendant had stated that the suit property is the ancestral family property of PeriyaKannikan and ChinnaKannikan and Peria Kanniakan had three sons viz., Chinnayyan, Pandurangan and Kolandaivan. The last two being issueless and that the First Respondent/Second Defendant is the daughter of one Kannian and that the three brothers share of the family properties were divided into two halves and one half was with Rani Chinnappan which was purchased from Rajammal, Daughter of K.Chinnappan and that the First Defendant purchased the same and that the Plaintiff was never in possession of any portion of the ancestral site and if at all, any purchase is made, it was only the site belonging to the Father of the so-called Vendor Easurathinammal which is still intact as could be seen from the recitals of the Sale Deed in favour of the First Defendant dated 10.12.1984 and the share of Easurathinam is still there and therefore, Appellant/Plaintiff (Deceased) cannot file a suit for Declaration of his Title and also the Description and Plan of the suit property are not clear and they are confusing.
23. It is the contention on the side of the First Respondent that the Sale Deed of the year 1942 consists of a single block and nowhere in the Schedule, there are two distinct items.
24. Ex.A1 Agreement/Document dated 15.05.1942 does not bear the caption of the Document. Further, in upper portion of the Document, it is mentioned as Sale Agreement and in the middle portion of the said document, there is a recital that the schedule property of the said document has been sold out for a sum of Rs.430/-. A perusal of Ex.A1 Document dated 15.05.1942 shows that it has been executed by Easurathinam in favour of the Appellant/Plaintiff (Deceased). In the bottom portion of the document, Ex.A1 refers as absolute Sale Agreement. Even, the schedule of the property of Ex.A1 does not refer to the extent of the property and it is measurement like length and breadth with directions. In short, Ex.A1 Sale Deed dated 15.05.1942 refers to Door No.46 in Perandur Village bearing S.No.28/6, etc.,
25. Further, in Ex.A2 Lawyer’s Notice addressed to the First Respondent/Second Defendant refers to the suit property viz., House Site in S.No.28/6 in Perandur Village, Uthukottai Taluk, measuring 25 feet East-West in North and 35 feet in South and 120 feet North-South, with trees, hayrich, etc., and Ex.A4 is the Plan.
26. It is quite evident from Ex.B1 Sale Deed (Registered one) dated 10.12.1984 in favour of the First Respondent/Second Defendant has been executed by the Deceased First Defendant Rajamma. In the said document, there is a reference that Ex.B1 two items of properties comprising of total extent of 857 = square ft. Belonging to the Deceased First Defendants grandfather Chinnakannikan and her her father Kari Chinnappan and since they do not have male issues she has got the property ancestrally and was enjoying the same and sold the two items of the suit properties for a total sale consideration of Rs.1286.25p. In Ex.B2 Reply Notice dated 06.02.1985 addressed to the counsel for the Appellant/Plaintiff (Deceased), it is inter alia mentioned that one of the boundaries in both the sides of the Sale Deed dated 10.12.1984 is in the name of Easurathinam, ChinnaKannigan had three sons viz., Kari Chinnappan, Chinnappan and Kullan. The three brothers share of family properties were divided into two halves and one half has been with the Kari Chinnappan and the same was sold by Rajiammal daughter.
27. Significantly, in Ex.B2 Reply Notice dated 06.02.1985, it is also mentioned that ‘Curiously the Notice does not disclose the nature of so-called Document dated 15.05.1942 about which his client viz., the First Respondent or his ancestors were not aware of and even if true the property of the Appellant/Plaintiff’s (Deceased) Vendor Easurathinam is intact even now as a vacant site.
28. In short, Ex.B2 Reply Lawyer’s Notice dated 06.02.1985 pinpointedly points out that the Appellant/Plaintiff (Deceased) never enjoyed the suit property at any time much less use of the same as set forth in the Notice and the trees are the absolute property of the First Respondent’s Vendor.
29. As far as Ex.A1 Agreement/Document dated 15.05.1942 is concerned, though at one place, it is styled as Agreement and in another place, it is referred to as Sale Deed, curiously the said Document only contains the signature of the persons concerned together with two witnesses and the said document does not speak of the schedule of the property, the extent of the property, length and breadth of the property along with its direction. It is not out of place for this Court to make a relevant mention that the viz., Easurathinam mentioned in Ex.A1 Document dated 15.05.1942 has not been examined as a witness before the trial Court. Even though Ex.A1 Document dated 15.05.1942 does not bear the description of property and the Survey Number and Boundaries, etc.,
30. The Learned counsel for the Appellants submits that Ex.A2 Notice point out specifically the schedule of property as S.No.28/6 in Perandur Village, Uthukottai Taluk measuring 25 feet East West in North and 35 feet in South and 120 Feet North-South, with trees, hayrick, etc., The Appellant/Plaintiff (Deceased) has established his case with definiteness and since the Appellant/Plaintiff (Deceased) by virtue of Ex.A1 Document dated 15.05.1942 has been in possession and enjoyment of the suit property then both the Courts should have granted the relief of Declaration to the Appellant/Plaintiff (Deceased) as well as the relief of permanent injunction.
31. In a Civil Suit, it is the duty of the Appellant/Plaintiff (Deceased) to prove his case on the basis of the pleadings set out by him. It is not open to the Appellant/Plaintiff (Deceased) to pick up the holes of the Defendants and to take advantage of the same, as opined by this Court. A Defendant/Defendants in a suit can certainly take an inconsistent stand. Merely because, Ex.A1 Document dated 15.05.1942 which at one portion refers to Sale Agreement and in another portion, it is styled as Sale Deed and inasmuch as the said Document does not bear the Description and Survey Number of the property, one cannot place much reliance on it. Though an endeavour has been made on the side of the Appellants that Ex.A2 Notice dated 23.01.1985 refers to the Survey Number as 28/6 in Perandur Village, etc., it is to borne in mind that notice cannot be a cementing platform for the Appellant/Plaintiff to make a claim in respect of the suit property. The Appellant/Plaintiff (Deceased) and his L.Rs. have to prove de hors of Ex.A2 Lawyer’s Notice dated 23.01.1985 that the Appellant/Plaintiff (Deceased) had a right over the suit property by means of Ex.A1 Document dated 15.05.1942 or by other documents. To locate or demarcate the suit property, no Commissioner has been appointed on an application being taken out by anyone of the parties.
32. Although on the side of the Appellants, it is informed that the Appellant/Plaintiff (Deceased) has let out the suit property to one Mani and that the said Mani has been running a tea shop, but no documentary proof in this regard has been filed before the trial Court. If really, a person has said to be in possession of a property much less a suit property then certainly there might have been a documentary evidence like payment of kist receipts, etc., In fact, Witness Mani when he has been cross-examined before the trial Court has deposed categorically that he does not know how much of rent he paid to the tea shop.
33. If a person to base his claim as per Section 53 (A) of the T.P. Act, he has to satisfy the following requirements:
i)There must be a contract to transfer for consideration any immovable property.
ii) The contract must be in writing, signed by the transferor, or by someone on his behalf.
iii) The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
iv) The transferee must in part performance of the contract take possession of the property or of any part thereof.
v) The transferee must have done some act in furtherance of the contract.
vi)The transferee must have performed or be willing to perform his part of the contract, NABULAL V PHOOL CHAND (1969) 3 SCC 120.
34. It is to be noted that the right under Section 53 A of the T.P. Act is available to the Plaintiff and not to the Defendant. Moreover, the right of Transferee is only a shield and cannot be used as a sword (A weapon of attack). The shield cannot be effective against a third party but only against Transferor or person claiming under him. Also, the Section 53 A of the T.P. Act does not give any right which the informal agreement would not give.
35. Furthermore, a person who has agreed to purchase, on the basis of an agreement to sell is to file only a suit for Specific Performance of the Contract. In reality, where possession by the Transferor to the Transferee is not supported by any valid transfer or by title holder, the Transferee cannot claim possession of the suit property as part performance even. In law an unregistered Sale Deed cannot support a suit or title as per decision BHABANI SARMA V. NARAYAN SARMA, AIR 2003 GAU 171 at page 176.
36. It is true that the plea under Section 53(A) of the T.P. Act involves a mixed question of law and fact and it cannot be permitted to be urged for the first time at the stage of Second Appeal.
37. The Learned counsel for the Appellants submits that in Ex.B1 Sale Deed dated 10.12.1984 in the schedule of the property in the first item of the boundary, there is a reference to West of house site of Easurathinam and the second item of the said document refers to Rathinam’s West of Easurathinam’s backyard.
38. As pointed out earlier in Ex.A1 Agreement/Document dated 15.05.1942, there is no reference to Survey Number and Boundary, etc., Further, in Ex.B1 Sale Deed dated 10.12.1984, there is a specific reference of first item in the schedule and also in the second item with definite boundaries and extent thereto. The first item length and breadth as mentioned has consists of 61/2, North South as 110 totalling 715 square. ft. The second item refers to East West as 7 = square ft. and North South as 19 measuring an extent of 142.50. In short, one and two items of Ex.B1 Sale Deed dated 10.12.1984 deals with an total extent of 815 square. ft. In Ex.B1 Sale Deed executed by the First Defendant (Deceased) Rajiammal in favour of the First Respondent (Second Defendant) , there is a reference at page 3 that Rajiammal has been enjoying the schedule mentioned property Ex.B1 by getting the same and has sold the items in favour of the First Respondent /Second Defendant.
39. For the first item, before this Court, the Learned counsel for the Appellants projects a plea that the suit property is not the Ex.B1 Property and by referring to the boundary recitals of the schedule of Ex.B1 Sale Deed dated 10.12.1984 in respect of two items thereto wherein a reference to Rathinam’s West of house site in the first item and in the second item as backyard of Rathinam. But this kind of plea, it is to be noted has not been put forward on the side of the Appellant/Plaintiff (Deceased) before both the Courts and only after the demise of the Appellant/Plaintiff (Deceased), it is projected the Second Appeal for the first time and as such, the same cannot be permitted by this Court. At this stage, the Learned counsel for the Appellants by drawing admission of the First Respondent (Second Defendant) in his cross-examination that he has no right in the suit property sold out by Easurathinam points out that this Court may grant a liberty to the Appellants to file a fresh suit and if no liberty is granted by this Court, then the Appellants will be prejudiced.
40. It is not in doubt that the DW1 (Second Defendant) in his cross-examination has specifically admitted that in the property belonging to that of Easurathinam which has been sold he has no interest in the property but that does not mean that this Court can grant liberty to the Appellants to initiate a fresh suit.
41. When the Appellant/Plaintiff (Deceased) comes out with a suit praying for the relief of declaration of his title in respect of suit items and for the relief of consequential injunction, it is for him to prove his case. But in the instant case on hand, both the Courts below have come to a definite conclusion that the Appellant/Plaintiff (Deceased) has not proved his case in respect of declaratory relief of title and also the consequential relief of injunction. Though the Appellant/Plaintiff (Deceased) has examined, on his side other witnesses to substantiate his version of his case, yet this Court is of the considered view that the Appellant/Plaintiff (Deceased) bases his claim only on the basis of Ex.A1 Document dated 15.05.1942. The said Document has no definite caption. Although it refers to the receipt of sale consideration of Rs.430/- in one portion of the Document, it is mentioned as Sale Deed. In fact, the particular Document Ex.A1 cannot be accepted in the face of the First Respondent/Second Defendants Document viz., Ex.B1 Sale Deed dated 10.12.1984 which clearly defines the two items of with boundaries, measures and survey numbers. In the absence of any schedule being referred to in Ex.A1 and also the fact that the writer of Ex.A1 Document dated 15.05.1942, a Teacher has not been examined before the trial Court, one cannot give credence to the said document. Also, the reference made by the Appellant/Plaintiff (Deceased) with respect to the schedule of the property in respect of the items 1 and 2 boundaries cannot be given importance though a strenuous endeavour has been made on the side of the Appellants/Plaintiffs by placing reliance by Ex.A2 Notice dated 23.01.1985.
42. On a careful consideration of the oral and documentary evidence and available materials on record, this Court is of the considered view that in between Ex.A1 Document dated 15.05.1942 and Ex.B1 Sale Deed dated 10.12.1984 in favour of the First Respondent executed by the First Defendant/Second Respondent, the First Respondent has a more probable and definite case that he has purchased the two items mentioned in the said documents with nowhere details and therefore, this Court accepts the First Respondent/Second Defendant Ex.B1 Sale Deed dated 10.12.1984 in preferring to the Ex.A1 Agreement/Document dated 15.05.1942 filed on behalf of the Appellant/Plaintiff (Deceased). When the First Respondent/Second Defendant has proved to the satisfaction of this Court that he has purchased tow items mentioned in Ex.B1 Sale Deed dated 10.12.1984 from the Deceased First Defendant Rajiammal then it is quite clear that the Appellant/Plaintiff (Deceased) has not proved his case in a cogent, convincing and in a coherent manner to prove his case of declaratory relief of title in respect of the suit items and for the relief of permanent injunction.
43. Coming to the aspect of the Appellant/Plaintiff (Deceased) claiming Adverse Possession in respect of the suit properties, it is to be pointed out that the Appellant/Plaintiff (Deceased) (during his life time) either before the Appellate Court or before the trial Court has not ventured to project any Application praying for appointment of Advocate Commissioner with the help of a Surveyor to note down the physical features of the property and also, the enjoyment of the property by the Appellant/Plaintiff (Deceased) or the present Appellants and also to find out whether any trees have been in existence thereto. But such a course has not been resorted to by the Appellant/Plaintiff (Deceased) which is certainly not a favourable circumstance either in favour of the Appellant/Plaintiff (Deceased) or the Appellants, in the considered opinion of this Court.
44.The Learned counsel for the Appellants by referring to the deposition of DW1 in his cross-examination that he has no right in the property of Easurathinam, this Court can grant the relief to the present Appellants to file a fresh suit against the concerned. For this submission, the answer of this Court is that if the Appellants are entitled to file a suit against the concerned then no such permission of this Court is necessary in law and accordingly, this Court opines that if at all, the Appellants have a right in law, it is open to them to seek appropriate remedy in the manner known to law against the concerned, subject to the plea of Law of Limitation.
45. Be that as it may, in the light of the qualitative and quantitative discussions mentioned supra and on over all assessment of the oral and documentary evidence on record and keep in mind, the attendant facts and circumstances of the case in a cumulative fashion, this Court is of the considered view that the Appellants have not proved to the satisfaction of this Court that they are entitled to claim the relief of Declaration of title in respect of the suit properties and as such, they are not entitled to claim the relief of permanent injunction and also that the plea of Adverse Possession claimed by them) have not been substantiated to the satisfaction of this Court and in the light of Ex.B1 Sale Deed dated 10.12.1984, the Appellants cannot claim the relief of adverse possession and also, the said Ex.A1 Agreement/Document dated 15.05.1942 will not any way heighten the case of the Appellants to prove their possession in respect of the suit properties and in any event, the plea of hostile possession against the co-owner who is in possession for more than 50 years and a claim of ouster cannot be accepted for the simple reason that in the absence of any plea being raised thereto in the plaint and thus, this Court answers the substantial questions of law 1 to 3 against the Appellant/Plaintiff (Deceased) and resultantly, the Second Appeal fails.
M.VENUGOPAL,J.
Vri
46. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs.
20.07.2010
Index :Yes/No
Internet:Yes/No
vri
To
1.The Subordinate Judge,
Tiruvallur.
2.The District Munsif Court,
Tiruvallur.
S.A.NO.47 OF 1997
20.07.2010