IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 7.10.2010
CORAM
THE HON'BLE MR.JUSTICE M.JEYAPAUL
Second Appeal No.1102 of 2010
Mrs.Meerabai Ammal ... Appellant
vs.
Mr.P.L.Purushothaman ... Respondent
Second appeal preferred against the decree and judgment dated 4.12.2009 passed by the Sub Judge, Poonamallee, in A.S.No.38 of 2009 confirming the decree and judgment dated 1.4.2009 passed by the District Munsif, Poonamallee, in O.S.No.47 of 1995.
For Appellant : Mr.P.Veeraraghavan
For Respondent : Mr.V.Manohar
JUDGMENT
The unsuccessful plaintiff, who lost the suit before both the Courts below, is the appellant herein. The suit was filed for bare injunction. It is the contention of the plaintiff that she is the absolute owner of the suit property, having purchased the same under the sale deed dated 20.10.1989 from the original owners. The plaintiff also would contend that she has been in possession and enjoyment of the suit property, having mutated her name in the Revenue records and paid the kists to the Revenue authorities. Contending that the defendant who had no manner of right or title to the suit property, is making an attempt to interfere with the possession of the plaintiff, the suit has been filed for the aforesaid relief.
2. The defendant who is the respondent herein filed the written statement, denying the ownership claimed by the plaintiff on the basis of the sale deed, which she obtained from her alleged predecessors in title. It is contended that the defendant filed the suit in O.S.No.149 of 1983 on the file of the District Munsic, Kanchipuram, against one M.Elumalai for declaration of title and also for permanent injunction. The right, title and possession of the defendant were ultimately declared by the competent Court. The said Elumalai had alienated the suit property to the predecessors in title of the plaintiff even during the pendency of the said suit. The aforesaid alienations are subject to the principles of lis pendens. Contending that the defendant has raised ground nut crop in the suit properties and has been in possession and enjoyment of the same, sought to dismiss the suit filed by the plaintiff.
3. The trial Court, on a careful consideration of the materials produced before it returned a finding that the right and title of the defendant was already declared in the previous suit laid by the defendant as against one Elumalai-the predecessor to the predecessors in title of the plaintiff. The competent Court had also declared in the aforesaid earlier suit that the defendant has been in possession and enjoyment of the suit property. In other words, the plea of the said Elumalai that he has been in possession and enjoyment of the suit property was rejected by the competent Court in the earlier suit. The trial Court also held that the documents produced by the plaintiff had come into existence subsequent to the filing of the present suit, and therefore much credence cannot be bestowed on such documents. It has also been held by the trial Court that the earlier decree passed by the competent Court declaring the right and title of the defendant was not put to challenge in the present suit before ever the plaintiff seeks for a bare injunction. As a result of which, the trial Court dismissed the suit filed by the plaintiff praying for permanent injunction as against the defendant. The first appellate Court having entered into a broad discussion of the materials on record, has confirmed the judgment of the trial Court.
4. The learned counsel appearing for the appellant would submit that the Survey Number of the suit property was not at all referred to in the earlier suit filed by the defendant as against Elumalai. Therefore it is the contention that the suit property has nothing to do with the property dealt under the earlier suit in O.S.No.149 of 1983 on the file of the District Munsif, Kancheepuram. He would also contend that the Courts below have come to the conclusion that the principle of lis pendens would apply even without framing any issue relating thereto. He would also attack the judgment of the trial Court on the ground that the trial Court has jumped to a conclusion that the defendant is the owner of the suit property based on the judgment pronounced in the earlier suit and not based on independent documentary proof let in by the defendant. Referring to Section 4(2) of the Benami Transactions (Prohibition) Act, 1988, the learned counsel appearing for the appellant would submit that the respondent cannot raise a defence based on his right in respect of the property held benami. Therefore, he would submit that both the Courts below have clearly erred in coming to a conclusion that the plaintiff failed to establish her prima facie title to the suit property and possession thereof and therefore she is not entitled to an order of permanent injunction.
5. Per contra, the learned counsel appearing for the respondent would submit that the right and title of the respondent/defendant were already established before the competent Court in O.S.No.149 of 1983 on the file of the District Munsif, Kancheepuram and therefore the necessity to produce any other documentary proof to establish the title of the defendant does not arise for consideration. The documents produced by the plaintiff subsequent to the filing of the suit to show her possession has been rightly rejected by the Courts below. In the face of the findings given by the competent Court in O.S.No.149 of 1983 it was correctly held that the possession of the defendant was established and therefore, the defendant was entitled to an order of permanent injunction. It is his further submission that the plaintiff without challenging the earlier judgment in A.S.No.14 of 1998, which stares at her, cannot seek for a bare injunction. He would also submit that inasmuch as the possession of Elumalai, as contended by him was rejected in the earlier proceedings in A.S.No.14 of 1998, and no evidence also was let in by the plaintiff to show that the possession of the defendant was divested and Elumalai took possession of the property, the plaintiff cannot independently set up a plea that she has come into possession of the property pursuant to the sale transactions clinched with the predecessors in title, who got the property from the very same Elumalai.
6. As per Section 4(2) of the Benami Transactions(Prohibition) Act, 1988, no defence is available based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, but the aforesaid provision found under Section 4(2) is subject to the provision under Section 4(3) of the said Act. Section 4(3)(b) of the said Act would read that neither Section 4(1) nor Section 4(2) would apply in a case where the person in whose name the property is held is a trustee and the property is held for the benefit of another person for whom he is a trustee.
7. The defendant has claimed in the earlier suit in O.S.No.149 of 1983 on the file of the District Munsif, Kancheepuram, that the said Elumalai held the property on behalf of and for the benefit of the defendant in his capacity as trustee. The appellate Court in A.S.No.14 of 1998 has accepted the contention of the defendant herein that the said Elumalai held the property in his capacity as trustee on behalf of the defendant herein. Having thus held, it decreed the suit for declaration of title prayed for by the defendant. Having further held that the defendant herein established his possession over the property, granted the relief of permanent injunction also in the said suit.
8. In the instant case, the defendant having established that the said Elumalai held the property in his capacity as trustee on behalf of and for the benefit of the defendant, got a decree in his favour. When the right and title of the defendant was declared in terms of the provision under Section 4(3) of the Benami Transactions (Prohibition) Act, 1988, the provisions under Section 4(1) and 4(2) of the said Act, stand completely muted. Therefore, the submission made by the learned counsel appearing for the appellant that the defendant cannot set up a plea of benami transaction, as there is a bar to raise such a defence under Section 4(2) of the Act, does not hold water.
9. The courts below having thoroughly adverted to the description of the property in OS.No.149 of 1983, have returned a finding that the suit property described in the present suit very much forms part of the suit property described in O.S.No.149 of 1983. Further, it is found that the plaintiff also traces her title to the said Elumalai. When the Courts below have factually found that the suit property formed part of the property described in O.S.No.149 of 1983, this Court cannot reopen the factual findings already held by the Courts below.
10. Of course, the defendant has not independently produced the documents of title or documents to show his possession, except producing various judgments pronounced by the Courts in the earlier proceedings. It has been demonstrated that the competent Court has already held, based on the documentary proof adduced by the defendant, that the defendant was the absolute owner of the suit property and that he had been in possession and enjoyment of the same. That being the position, the defendant cannot be called upon to produce independently the documents of title. Further, it is for the plaintiff, who has come forward with the suit based on title that she has been in possession and enjoyment of the suit property, to establish that she has got title to the suit property and has been in possession and enjoyment of the same. The title of Elumalai was rejected by the competent Court in A.S.No.14 of 1998. The plea of possession set up by Elumalai also was rejected by the competent appellate Court. There was no evidence let in on the side of the plaintiff as to when the defendant was divested of his possession and when Elumalai came into possession of the property. When Elumalai himself was not in possession of the property, as per the findings of the competent Court in A.S.No.14 of 1998, the plaintiff cannot trace her possession to the said original owner Elumalai. There would have been no occasion for Elumalai to pass on the possession to the predecessors in title to the plaintiff, when he himself was not in possession of the property. The Courts below have rightly held that all these documents to show the possession produced by the plaintiff have come into existence only after the filing of the suit.
11. As rightly pointed out by the learned counsel appearing for the defendant, when the decree passed in A.S.No.14 of 1998 is virtually staring at the plaintiff, she should have challenged the said decree and thereafter sought for the permanent injunction. But quite unfortunately no challenge was made to the judgment and decree passed in A.S.No.14 of 1998 declaring the title, interest and possession of the defendant in the suit.
12. The Courts below have rightly come to a decision that the plaintiff has not prima facie established her right over the suit property and she has also not established that she has been in possession and enjoyment of the suit property. No question of law has arisen for determination in this second appeal. The second appeal therefore fails and it stands dismissed. However, there is no order as to costs.
Msk
To
1.The Sub Judge, Poonamallee.
2.The District Munsif,
Poonamallee