BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/06/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL.No.319 of 2008 G.Selvin ... Appellant/ Plaintiff Vs. Uchimalai ... Respondent/ 2nd defendant This Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 27.02.2007 passed in Appeal Suit No.54 of 2005 by the Subordinate Court, Kuzhithurai, confirming the judgment and decree dated 29.10.2004 passed in Original Suit No.28 of 1982 by the I-Additional District Munsif Court, Kuzhithurai. !For appellant ... Mr.R.Subramanian ^For respondent ... Mr.Sree Kumaran Nair :JUDGMENT
Challenge in this second appeal is to the concurrent judgments
passed in Original Suit No.28 of 1982 by the First Additional District Munsif
Court, Kuzhithurai and in Appeal Suit No.54 of 2005 by the Subordinate Court,
Kuzhithurai.
2.The appellant herein as plaintiff has instituted Original Suit
No.28 of 1982 on the file of the First Additional District Munsif Court,
Kuzhithurai, for the reliefs of declaration and recovery of possession, wherein
the present respondent has been shown as the second defendant.
3.The epitome of the averments made in the plaint may be stated like
thus;
The suit ‘A’ schedule property is originally belong to one
Sankaralingom Pilla and he died intestate leaving behind him, his two sons
namely Gopalakrishna Pilla and Vallinayagom Pilla. On 13.01.1975 Gopalakrishna
Pilla has executed a sale deed in favour of the plaintiff under Document No.158
and on the same day, his brother by name Vallinayagom Pilla has executed a sale
deed in favour of the plaintiff under Document No.159. On 09.05.1969,
P.Valliyamma Pilla has executed a sale deed in favour of the plaintiff under
Document No.1672. After purchase, mutation has been effected in the name of the
plaintiff. Sankaralingom Pilla has permitted one Madan Pilla son of Paradesia
Pilla, the father of the first defendant, to put up a shed in the suit ‘A’
schedule property and accordingly a shed has been put up in an extent of three
quarters cent and after the demise of Madan Pilla, the first defendant has
resided in the shed. On 10.12.1981, the defendants have demolished the old shed
and abandoned their residence and thus their permissive possession has ceased to
exist. On 13.12.1981 the defendants with the assistance of hooligans, have
entered into the plaint ‘B’ schedule property and attempted to put up a new
building. On 16.12.1981 the plaintiff has come to know that Kuzhithurai
Municipality has given a fraudulent sanction to put up a new building in favour
of the second defendant. On 17.12.1981 the plaintiff filed a petition before
the Kuzhithurai Municipality to cancel the sanction order. Without perusing
relevant documents and without conducting proper enquiry, the Municipal
Commissioner has rejected the petition given by the plaintiff. On 21.12.1981
the plaintiff has issued a legal notice to the defendants and they issued a
reply notice containing false allegations. The plaintiff is the absolute owner
of the suit ‘A’ schedule property. The suit ‘B’ & ‘C’ schedule properties are
the part and parcel of the suit ‘A’ Schedule property. The defendants are also
making arrangements to cut and remove tamarind trees which are standing in ‘B’
Schedule property. The defendants have no manner of right, title and interest
over the suit ‘B’ & ‘C’ schedule properties. Under the said circumstances, the
plaintiff has come forward with the present suit for the reliefs of declaration
and recovery of possession in respect of the suit ‘B’ & ‘C’ schedule properties.
4.The nubble of the averments made in the written statement may be
stated like thus;
The description of properties is not correct. There is no property
on ground measuring 17.34 acres as described in the plaint ‘A’ schedule. The
suit ‘B’ & ‘C’ schedule properties have not been properly described in the
plaint. The sale deeds mentioned in the plaint are invalid. The suit
properties are within the jurisdiction of Marthandam Sub Registry. The ‘B’
schedule properties described in the sale deeds relied upon by the plaintiff are
fictitious properties. The executants of the sale deeds have no manner of
right, title and interest over Survey No.229/1A of Kulathoor Village. In order
to practice fraud in registration, the said properties have been introduced in
the sale deeds and therefore, all the sale deeds relied upon by the plaintiff
are void abinitio. The ancestors of the first defendant have enjoyed the plot
admeasuring 0.05 cents and they put up a building. After the demise of the
ancestors of the first defendant, the defendants are in possession and enjoyment
of the same. The plaintiff is not having title to the suit properties. The
alleged predecessors in title of the plaintiff have filed Original Suit No.980
of 1109 for the relief of possession, wherein the father of the first defendant
has been shown as sixth defendant and the said suit has been dismissed and the
decision rendered therein operates as resjudicata to the present suit. The
defendants and their predecessors in title have had enjoyed the suit property
more than a statutory period and thereby prescribed title to the same by adverse
possession. There is no merit in the suit and the same deserves dismissal.
5.On the basis of the rival pleadings raised by either party, the
trial Court has framed necessary issues. On the side of the plaintiff, PW1 and
on the side of the defendants, DW1 and on the side of the Court, CW1, have been
examined. Further on the side of the plaintiff, Exs.A1 to A28 and on the side
of the defendants, Exs.B1 to B32 and on the side of the Court, Exs.C1 to C4,
have been filed.
6.The trial Court, after perpending both the oral and documentary
evidence, has dismissed the suit without costs. The judgment and decree passed
by the trial Court have been challenged in Appeal Suit No.54 of 2005 on the file
of the first appellate Court. The first appellate Court, after reappraising the
evidence available on record, has dismissed the appeal, whereby and whereunder
confirmed the judgment and decree passed by the trial Court. Against the
concurrent judgments, the present second appeal has been filed.
7.On the side of the appellant, the following substantial questions
of law and additional substantial question of law, have been raised for
consideration;
“a)Whether in law have not the Courts below failed to see that once the
defendants admit title in respect of part of suit claim, the suit cannot be
dismissed in toto, but the Courts should have moulded the relief Order-7 Rule-7
C.P.C?
b)Have not the Courts below misconstrued the judgment in 2003(1) CTC 539,
which has resulted in perverse findings?
c)Whether in law are not the Courts below wrong in holding that the
defendants have prescribed title by adverse possession in the absence of
necessary pleadings and evidence?
d)Whether in law have not the Courts below misconstrued the concept of
res-judicata when Ex.B4 and Ex.B7 where not decided on merits?”
8.As agreed by the learned counsel appearing for both sides, this
second appeal is disposed of at the stage of admission.
9.The crux of the plaintiff’s case is that the suit ‘B’ & ‘C’
schedule properties are the part and parcel of suit ‘A’ Schedule property and
the same is originally belonged to one Sankaralingom Pilla and after his demise,
the plaintiff has purchased the same under three registered sale deeds dated
09.05.1969 & 13.01.1975 and by virtue of the said sale deeds, the plaintiff has
become the absolute owner of the suit ‘A’ schedule property and the defendants
have no manner of right, title and interest over the same and now they
unlawfully trespassed into the suit ‘B’ & ‘C’ schedule properties and under the
said circumstances, the plaintiff has come forward with the present suit for the
reliefs of declaration and recovery of possession of the suit ‘B’ & ‘C’
schedule properties.
10.The specific contentions urged on the side of the defendants are
that the sale deeds relied upon by the plaintiff for claiming title to the suit
‘A’ schedule property, are not legally valid and the same are void and
therefore, the plaintiff is not entitled to get the reliefs sought for in the
plaint and further the predecessors in title of the first defendant, have had
enjoyed the suit ‘B’ & ‘C’ schedule properties during their life time and after
their demise, the defendants are enjoying the same and the alleged predecessors
in title of the plaintiff have filed Original Suit No.980 of 1109 for the relief
of recovery of possession, wherein the father of the first defendant has been
shown as sixth defendant and the said suit has been dismissed after hot contest
and therefore, the decision rendered therein is binding upon the plaintiff and
also operates as resjudicata to the present suit and altogether the plaintiff is
not entitled to get the reliefs sought for in the plaint.
11.The trial Court, has framed necessary issues and after
contemplating the evidence available on record, has held that the sale deeds
relied upon by the plaintiff are not legally valid and the same are void.
Further the trial Court has held that the decision rendered in Original Suit
No.980 of 1109 operates as resjudicata to the present suit. The first appellate
Court, after having thorough discussion has confirmed the judgment and decree
passed by the trial Court.
12.The learned counsel appearing for the appellant/plaintiff has
made various attempts so as to supplant the concurrent judgments passed by the
Courts below. The first and foremost limb of argument is that the suit ‘A’
schedule property is originally belonged to Sankaralingom Pilla and after his
demise, his two sons have succeeded his estate and they executed sale deeds in
favour of the plaintiff and one P.Valliyamma Pilla has executed another sale
deed in favour of the plaintiff and thus the plaintiff has acquired valid title
to the entire ‘A’ schedule property and the trial Court, without considering the
same has erroneously found that the sale deeds which stand in the name of the
plaintiff are void and the first appellate Court has also erroneously upheld the
finding given by the trial Court and therefore, the concurrent judgments passed
by the Courts below are liable to be set aside.
13.In order to remonstrate the above limb of argument advanced by
the learned counsel appearing for the appellant/plaintiff, the learned counsel
appearing for the respondent/second defendant has befittingly contended that in
the sale deeds dated 13.01.1975, the properties comprised in Survey No.229/1A,
situate in Kulathoor Village, have been shown as ‘B’ schedule properties and the
suit ‘A’ schedule property is situate within the jurisdiction of Marthandam Sub
Registry and in order to commit fraud in registration, the properties comprised
in Survey No.229/1A have been schemingly introduced in the said sale deeds and
the vendors of the plaintiff are not the owners of the properties, situate in
Survey No.229/1A and therefore, the sale deeds which stand in the name of the
plaintiff are not legally valid and the same are void and the trial court has
elaborately dealt with the above factual as well as legal aspect and ultimately
found that the sale deeds which stand in the name of the plaintiff are void and
the first appellate Court, has also upheld the finding given by the trial Court
and since the sale deeds which stand in the name of the plaintiff are void, no
valid title has been passed in favour of the plaintiff in respect of the suit
‘A’ schedule property and therefore, the plaintiff is not entitled to get the
reliefs sought for in the plaint and under the said circumstances, the
concurrent judgments passed by the Courts below are not liable to be interfered
with.
14.On the basis of the rival submissions made by either counsel, the
Court has to analyse as to whether the sale deeds which stand in the name of the
plaintiff are valid or void.
15.The plaintiff has come forward with the present suit for the
reliefs of declaration and recovery of possession. Therefore, the plaintiff
should succeed only on the basis of the pleadings put forth on his side. The
sale deeds dated 13.01.1975, have been marked as Exs.A1 & A3. It is an admitted
fact that the suit ‘A’ schedule property lies within the jurisdiction of
Marthandam Sub-Registrar Office. It is also equally an admitted fact that the
concerned Thasildar has issued a certificate and the same has been marked as
Ex.B14, wherein it has been clearly stated that Survey No.229/1A is a promboke
land and the same situate in Kulathoor Village, which is not within the
jurisdiction of Marthandam Sub-Registry. Therefore, it is quite clear that in
order to commit fraud in registration, the lands comprised in Survey No.229/1A
have been schemingly introduced in Exs.A1 & A3.
16.The learned counsel appearing for the respondent/second defendant
has befittingly drawn the attention of the Court to the decision reported in
2003(1) CTC 539 (M.Manoharadhas Vs. C.Arumughaperumal Pillai and another)
wherein this Court has held at Paragraph-8 that the suit property is situate in
Kanyakumari District i.e., within the jurisdiction of Sub-Registrar of
Nagercoil. The first defendant had executed the sale deed Ex.B1 dated
26.06.1985 at Parasalai of Kerala State. To enable such a sale, the property at
S.No.80/1, Parasalai Village in Neyyartin Karai Taluk, is shown as a security.
The first respondent/plaintiff has produced Ex.A6 certificate from the Tahsildar
stating that the first defendant has no possession or ownership of the property
situate in Survey No.80/1, which has been shown as security in Ex.B1. If no such
property is in existence, it follows that Ex.B1 sale deed cannot be a valid
sale.
17.From the close reading of the decision referred to above, it is
made clear that if any sale deed is executed in respect of a property which
situates in Tamil Nadu, a property which situates in other state and that too
not standing in the name of vendor, should not be included in the sale deed for
the purpose of getting registration in other state and if such property has been
included and registration has also been made in other state, the entire sale
deed is nothing but void.
18.At this juncture, it would be more useful to look into Section
17(1)(b) of the Registration Act, 1908 and the same reads as follows;
“The following documents shall be registered, if the property to which
they relate is situate in a district in which, and if they have been executed on
or after the date on which, Act No.XVI of 1864, or the Indian Registration Act,
1866(XX of 1866), or the Registration Act, 1871 (VIII of 1871), or the Indian
Registration Act, 1877(III of 1877), or this Act came or comes into force,
namely:
(a)… (b)other non-testamentary instruments which purport or operate
to create, declare assign, limit or extinguish, whether in present or in future,
any right, title or interest, whether vested or contingent, of the value of one
hundred rupees and upwards, to or in immovable property;”
19.From the close reading of the provisions mentioned supra, it is
very clear that if any property is sold and the same should be registered in a
district in which it is situate. In the instant case, as adverted to earlier,
the suit ‘A’ Schedule property situates in Marthandam Sub-Registry, Tamil Nadu.
The properties comprised in Survey No.229/01 are situate in Kulathoor Village,
Kerala State and Exs.A1 & A3 have been registered in Kerala State. As per the
provision of 17(1)(b) of the Registration Act, 1908, Exs.A1 & A3 should be
registered in the Sub-Registrar Office, Marthandam. In order to avoid
registration charges, the properties comprised in Survey No.229/1A have been
included in Exs.A1 & A3 in which the predecessors in title of the plaintiff have
had no semblance of right. Therefore, it is quite clear that Exs.A1 & A3 are
void documents.
20.In view of the foregoing elucidation of both the factual and
legal aspect, it is needless to say that the first limb of argument advanced by
the learned counsel appearing for the appellant/plaintiff is sans merit.
21.The learned counsel appearing for the appellant/plaintiff has
advanced his second limb of argument to the effect that the present suit has
been instituted only in respect of the suit ‘B’ & ‘C’ Schedule properties and
the plaintiff is ready to give the same to the defendants, but the trial Court
has unnecessarily framed an issue to the effect as to whether the sale deeds
which stand in the name of the plaintiff are valid and ultimately held that
Exs.A1 & A3 are void documents and on the basis of finding given by the trial
Court, the plaintiff has lost his title in respect of entire ‘A’ schedule
property and therefore, the finding given by the trial Court with regard to
Exs.A1 & A3 is nothing but superfluous and the same is liable to be set aside.
22.The plaintiff has filed the present suit only on the basis of
Exs.A1, A3 & A5. The plaintiff has claimed absolute right and title over the
suit ‘B’ & ‘C’ schedule properties. Since the plaintiff has claimed title to the
suit properties by virtue of Exs.A1, A3 & A5, the defendants have clearly stated
in the written statement at paragraph 8 that the sale deeds relied upon by the
plaintiff are abinitio void. It is an acknowledged principle of law that a
question of law need not be raised in the pleading. As per Order VI Rule 1 & 2
of the Code of Civil Procedure, “Pleading” shall mean plaint or written
statement and every pleading shall contain, and contain only, a statement in a
concise form of the material facts on which the party pleading relies for his
claim or defence, as the case may be. Even though question of law need not be
raised in the pleading, in the instant case, in the written statement filed by
the defendants, it has been specifically mentioned that sale deeds relied upon
by the plaintiff are abinitio void. Therefore, the trial Court has framed an
issue to that effect and after discussing all the relevant factors, the trial
Court has come to a conclusion that Exs.A1 & A3 are void documents.
23.Further the argument of the learned counsel appearing for the
appellant/plaintiff is that the Courts below have concurrently dismissed the
suit mainly on the basis that Exs.A1 & A3 are void documents and even assuming
that the defendants are entitled to get the suit ‘B’ & ‘C’ schedule properties,
the plaintiff can maintain his title to the remaining portion of the ‘A’
schedule property. It has already been stated in many places that the plaintiff
has based his title to the entire ‘A’ schedule property only on the basis of
Exs.A1, A3 & A5 and further the present suit is one for declaration and recovery
of possession. Therefore, the title of the plaintiff can be declared only on
the basis of documents on which he based his claim. Under the said
circumstances, the legal character of Exs.A1 & A3 should be decided by the
Court. In a suit for declaration without having valid document, the Court
cannot grant the relief of declaration and further Exs.A1 & A3 are void
documents. Under void sales, no valid title passed in favour of vendee. Since
Exs.A1 & A3 are void sales, the plaintiff is not having title to the suit ‘A’,
‘B’ & ‘C’ schedule properties. Therefore, the second limb of argument advanced
by the learned counsel appearing for the appellant/plaintiff is not having
subsisting force.
24.On the side of the appellant/plaintiff as many as four
substantial questions of law have been raised. The first and foremost
substantial question of law is as to whether the Courts can mould the relief as
per order VII Rule 7 of the Code of Civil Procedure. It has already been
taunted in many places that in the instant case, Exs.A1 & A3 are void documents
and the same have not conferred valid title in favour of the plaintiff.
Therefore, in the instant case, question of moulding the relief does not arise.
25.The second substantial question of law is as to whether the
Courts below have misconstrued the dictum rendered in the decision reported in
2003(1) CTC 539 (M.Manoharadhas Vs. C.Arumughaperumal Pillai and another). In
fact, this Court has also relied upon the said decision and the Courts below
have rightly applied the same. Therefore, the second substantial question of
law raised on the side of the appellant/plaintiff is not legally sustainable.
26.The third substantial question of law is as to whether the Courts
below are right in coming to a conclusion that the defendants have prescribed
title to the suit property by adverse possession. In fact, an issue has been
framed to that effect by the trial Court, but no effective finding has been
given with regard to adverse possession. In the instant case, the plaintiff is
not having title to the entire ‘A’ schedule property by virtue of sale deeds
viz., Exs.A1 & A3 which are void documents. Further as stated earlier, no
effective finding has been given by the Courts below with regard to adverse
possession and on that ground, the third substantial question of law raised on
the side of the appellant/plaintiff is also not legally sustainable.
27.The fourth substantial question of law is as to whether the
Courts below are right in coming to a conclusion that the present suit is barred
by resjudicata. In the written statement filed on the side of the defendants,
it has been specifically mentioned that the predecessors in title of the
plaintiff have filed Original Suit No.980 of 1109 and in which the father of the
first defendant has been shown as sixth defendant and the said suit has been
dismissed and the decision rendered therein operates as resjudicata to the
present suit. The Courts below have concurrently found that the present suit is
barred by resjudicata, in view of the decision rendered in Original Suit No.980
of 1109. The Courts below have concurrently found that the plaintiff is not
having title to the suit properties since Ex.A1 & A3 are void documents. After
coming to the conclusion that the plaintiff is not having title to the suit
properties, the plea of resjudicata need not be decided, but the Courts below
have considered the same and the findings given by the Courts below are nothing
but supernumerary and the same will not impinge nor debilitate the concurrent
judgments passed by the Courts below. Therefore, in view of the discussions
made earlier, it is very clear that all the substantial questions of law raised
on the side of the appellant/plaintiff are not legally sustainable and no
substantial question of law arises in the present second appeal and ultimately
the present second appeal deserves dismissal at the stage of admission.
28.In fine, this second appeal deserves dismissal and accordingly is
dismissed with costs at the stage of admission. The judgment and decree passed
in Original Suit No.28 of 1982 by the First Additional District Munsif Court,
Kuzhithurai and upheld in Appeal Suit No.54 of 2005 by the Subordinate Court,
Kuzhithurai, are confirmed.
gcg
To
1.The Subordinate Judge,
Kuzhihurai.
2.The I-Additional District Munsif,
Kuzhithurai.