BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 10/10/2007 CORAM: THE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Second Appeal (MD) No.152 of 2006 and C.M.P.No.1098 of 2006 K.Ponnu Pandian ... Appellant Vs. 1.Muthiah 2.Arumuga Thevar ... Respondents PRAYER Second Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 05.09.2005 passed in A.S.No.77 of 2005 on the file of the Subordinate Court, Thoothukudi confirming the judgment and decree dated 30.03.1999 passed in O.S.No.88 of 1997 on the file of the District Munsif, Srivaikuntam. !For Appellant ... Mr.M.Muthu Geethiyan Advocate ^For Respondents ... No Appearance :JUDGMENT
The plaintiff in O.S.No.88 of 1997 on the file of the Court of the
District Munsif of Srivaikundam is the appellant herein. The plaintiff had
filed the suit in respect of the plaint schedule property for bare injunction on
the ground that he is in possession of the plaint schedule property.
2.The short facts of the averments in the plaint relevant for the purpose
for deciding this appeal are as follows:-
The plaint schedule property originally belonged to one Vaikunta Iyer
under a sale deed dated 26.10.1950. After the demise of the said Vaikunta Iyer,
his legal heirs have partitioned that family properties in which the plaint
schedule property was allotted to the share of Vaikunta Iyer’s son
Balasubramanian. The said partition deed was registered on 08.10.1973. The
daughter of Vaikunta Iyer namely Rajammal had executed a release deed on
09.10.1973 releasing her interest in the suit property in favour of
Balasubramanian. From the year 1973 onwards, the said Balasubramanian was in
possession and enjoyment of the plaint schedule property as an absolute owner.
Balasubramanian had executed a registered power of attorney on 29.01.1996 in
favour of one Durairaj son of Sorimuthu Thevar of Manappadai veedu,
Palayamkottai who had executed a sale deed in respect of the plaint schedule
property in favour of the plaintiff on 07.02.1996. From the said date of sale,
the plaintiff is in possession and enjoyment of the plaint schedule property by
paying house tax and electricity consumption charges. The plaintiff has simply
mortgaged the suit property on 29.09.1997, in favour of the second defendant and
in view of the interest, the second defendant was put in possession of the suit
property. The first defendant is an utter stranger to the suit property and he
is not having any right or title in respect of the suit property. On
12.10.1997, the first defendant attempted to interfere with the plaintiff’s
possession and enjoyment of the suit property and had threatened the second
defendant to dispossess him illegally and forcibly. Hence, the suit.
3.The first defendant in his written statement would contend that the
alleged power of attorney executed by Balasubramanian in favour of Durairaj
dated 29.01.1996 is not a valid document. The sale deed dated 07.02.1996 said
to have been executed by the said Durairaj as power of attorney of
Balasubramaian in favour of the plaintiff is ab initio void. The alleged
mortgage in favour of the second defendant is also invalid under law. This
defendant has not trespassed into the suit property. The plaint schedule
property was originally let out to one Saravanan in the year 1989 for rent. The
said Balasubramanian was residing in the up-stairs portion of the plaint
schedule property and Saravanan was the tenant in the ground floor.
Balasubramanian was insisting Saravanan to vacate and hand over the possession
of the ground floor on the ground of owner’s occupation. But, Saravanan was
resisting the claim of Balasubramanian by giving one reason or other.
Subsequently, the owner of the plaint schedule property, Balasubramanian had
entered into a sale agreement with one Narayanathevar on 20.12.1995 for a sale
consideration of Rs.46,000/-. On the date of sale agreement itself,
Balasubramanian had received Rs.2,000/- from Narayanathevar as advance of the
purchase money. In the meantime, the tenant Saravanan gave notice in Kathiravan
Daily dated 02.01.1996, stating that he had purchased the suit property from
Balasubramanian. In turn, Balasubramanian had preferred a complaint against the
said Saravanan with Srivaikuntam Police Station on 13.01.996, which was
registered under Crime No.5/1996. Since Naryanathevar could not perform his
part of contract as per the sale agreement dated 20.12.1995, Balasubramanian had
executed a sale deed in favour of the second defendant in respect of the plaint
schedule property on 19.01.1996. After the purchase, the first defendant had
requested Saravanan to vacate and hand over the possession of the plaint
schedule property to him. After knowing that, the original owner
Balasubramanian had executed the sale deed in favour of the first defendant, the
plaintiff clandestinely, with the connivance of Durairaj had created a sale deed
dated 07.02.1996 in favour of him in respect of the plaint schedule property.
After the execution of the sale deed in favour of the first defendant on
19.01.1996 in respect of the plaint schedule property, Durairaj as power of
attorney of Balasubramanian had nothing to convey under the sale deed dated
07.02.1996 in favour of the plaintiff. The sale deed dated 07.02.1996, the
mortgage deed dated 29.09.1997 are all concocted documents created for the
purpose of this case. At the time, when Saravanan was away from the plaint
schedule property, the plaintiff along with the second defendant had broken upon
the lock of the plaint schedule property and trespassed into the same. In this
connection, Saravanan had preferred a complaint with Srivaikuntam Police against
the plaintiff which was registered under Crime No.37 of 1997. After the
complaint, the plaintiff had let the second defendant to reside in the plaint
schedule property. Hence, the suit is liable to be dismissed. The second
defendant remained exparte.
4.On the basis of the above pleadings, the learned trial Judge had framed
two issues for trial. Before the trial Court, on the side of the plaintiff,
the plaintiff has examined himself as P.W.1 and exihibited Exs.A1 to A11. On
the side of the defendant, the first defendant has examined himself as D.W.1
besides examining D.Ws.2 to 4. Exs.B1 to B7 were marked on the side of the
defendants. The complaint preferred against the plaintiff on 01.02.1999 was
marked as X1 and copy of the power of attorney in favour of Durairaj was marked
as X2.
5.After considering both oral and documentary evidence let in before the
trial Court, the learned trial Judge has come to an assailable conclusion that
the plaintiff is not entitled to any relief asked for in the plaint and
accordingly, dismissed the suit.
6.Aggrieved by the findings of the learned trial Judge, the plaintiff
preferred an appeal in A.S.No.77 of 2005 before the Subordinate Judge,
Tuticorin. After giving due deliberations to the submissions made by the
learned counsel appearing for the appellant as well as for the respondents and
after meticulously going through the evidence both oral and documentary let in
before the trial Court, the learned First Appellate Judge has held that there is
no material to interfere with the findings of the learned trial Judge and
accordingly, dismissed the appeal thereby confirming the findings of the learned
trial Judge, which necessitated the plaintiff to prefer this second appeal.
7.Before admission, notice was ordered to the respondents and records were
called for. The learned counsel appearing for the appellant Mr.Muthu
Geetharajan, would attack the findings of the learned trial Judge on the ground
that Ex.B2 was registered at Parasalai, Kerala State wherein the suit property
is situated at Sri Vaikuntam in Tamilnadu and that the registration of Ex.B2
sale deed itself is not valid under law as per Section 28 of the Registration
Act 1908, which runs as follows:-
“28.Place for registering documents relating to land.- Save as in this
part otherwise provided, – (a) every document mentioned in clauses (a), (b),
(c), (d) and (e) of sub-section (1) and sub-section (2) of Section 17 in so far
as such document affects immovable property and in clauses (a), (b), (c) and
(cc) of section 18, shall be presented for registration in the office of a Sub-
registrar within whose sub-district the whole or some portion of the property to
which such document relates is situate in the State of Tamil Nadu; and
b) document registered outside the State of Tamil Nadu in contravention of
the provisions of clause (a) shall be deemed to be null and void.”
There cannot be any two opinion with regard to the above said provision of law.
If the sale deed is to be registered in respect of the property situate in the
State of Tamilnadu, it shall be registered in the office of the Sub Registrar
within whose Sub District it is situated.
8.A perusal of Ex.B2 sale deed will go to show that under Ex.B2 not only
the plaint schedule property but also the property situate in Parasalai, Kerala
State was conveyed under Ex.B2. The schedule 1 to Ex.B2 is the plaint schedule
property which is in Srivaikuntam Panchayat, Tamilnadu State. The schedule 2 to
Ex.B2 is the property measuring 7 cents in Survey No.115/15 in Parasalai Firka,
Parasalai Panchayat, Parasalai village, Neyyartin Karai Taluk, Parasalai Sub
District in Trivandrum District, Kerala State.
9.Under such circumstances, Section 28 of the Registration Act is not a
bar to register Ex.B2 sale deed at Parasalai, Kerala State since one of the
properties conveyed under Ex.B2 is situate at Parasalai State. The learned
counsel relying on 2003 (1) CTC 539, M.MANOHARADHAS V. C.ARUMUGHAPERUMAL PILLAI
and contend that showing a strip of land situate in Kerala State as security for
the property conveyed under the sale deed situate in Tamilnadu, sale deed
registered in Parasalai sub Registrar Office, Kerala State was held to be
illegal and void.
10.The facts of the said case in brief are as follows:
“The plaintiff in O.S.No.67 of 1986 on the file of the Sub Court,
Nagercoi,l filed the suit for a direction to the first defendant to execute a
sale deed in favour of the plaintiff after directing the plaintiff to pay the
balance sale consideration of Rs.9,400/- and directing the defendant to hand
over the possession of the plaint property to the plaintiff. The trial Court
granted a decree as prayed for. On First Appeal, reversing the findings of the
trial Court, the First Appellate Court granted a decree against the first
defendant and the second defendant to execute the sale deed and hand over the
possession against which the second appeal was preferred. It was contended on
behalf of the plaintiff that the sale deed executed under Ex.B1 in favour of the
defendant is the void sale and is fraud on the law of registration, on the
ground that the defendant instead of executing the sale deed in favour of the
plaintiff on the basis of the agreement of sale Ex.A1 dated 14.05.1983, had sold
the property under Ex.B1 sale deed dated 26.06.1985 in the Sub Registrar Office,
Parasalai in Kerala. While answering the issue whether Ex.B1 sale deed is valid
relying on AIR 1936 PC 91 VENKATARAMA RAO V. APPA RAO, 1988 (I) M.L.J. 447
MOHD. KASSIM V. RAJARAM, AIR 1972 SC 608 P.C.PURUSHOTHAMA V. S.PERUMAL, AIR 1934
PC 68 BHUP NARAIN V. GOKUL CHAND, AIR 1946 PC 97 S.N. MUNDAGE V. NEW MOFUSSIL
CO. LTD.”, a learned Judge of this Court has held that
” Ex.A6 Certificate issued by the Tahsildar holding that the first
defendant has no possession or ownership of the land in Survey No.80/1, rightly
accepted by the Courts below which follows the registration of the sale deed is
illegal and void.”
11. In that case, the suit property was situate at Kanyakumari District
and within the jurisdiction of the Sub Registrar at Nagercoil. The first
defendant had executed the sale deed Ex.B1 dated 26.06.1985 at Parasalai of
Kerala state to enable the property at Survey No.80/1, Parasalai Village, in
Neyyartin Karai Taluk is shown as a security. The first respondent/the
plaintiff has produced Ex.A6 Certificate from the Tahsildar stating that Sri
Rajavel D1 has no possession or ownership of the property in S.No.80/1, which
was shown as security for the Ex.B1 sale. Only on such circumstances, it was
held that Ex.B1 sale deed cannot be a valid sale. The point to be noted is a
strip of land was shown as a security in Ex.B1 sale deed in that case was in
Parasalai Village but the Tahsildar Certificate Ex.A6 shows that the first
defendant had no possession or ownership in respect of the said strip of land in
S.No.80/1 Parasalai village to offer as the security in respect of the property
sold under Ex.B1. The property sold under Ex.B1 was at Kanyakumari District
within the jurisdiction of Sub Registrar of Nagercoil. Only on such
circumstances, it has been held that the registeration of the sale at Parasalai
Sub Registrar Office at Kerala State in respect of the property situate at
Kanyakumari District is illegal and bad and void in law. But that is not the
case herein , under Ex.B2 sale deed which was executed by the original owner
Balasubramanian in favour of the first defendant under Ex.B2 is not only in
respect of the plaint schedule property but also for another property in Survey
No.115/15 measuring 7 cents situate in Parasalai Village, Neyyartin Karai Taluk,
Parasalai Sub District, Trivandrum District, Kerala State. There is absolutely
no eveidence let in before the trial Court to show that item No.2 to the
schedule to Ex.B2 namely Survey No.115/15 in Parasalai Firka, is not situate in
Parasalai firka and the said Balasubramanian, the vendor under Ex.B2 had no
right title or possession in respect of item No.2 to Ex.B2 to convey the same
under Ex.B2 in favour of the first defendant. On such circumstances, the ratio
decidendi in the ratio 2003(1) CTC 539, will not be applicable to the present
facts of the case.
12.Admittedly, the plaintiff’s sale deed Ex.A5 is dated 07.02.1996
executed by one Durairaj as power agent of the original owner Balasubramanian.
Ex.A5 is subsequent to Ex.B2 dated 19.01.1996 so on the date of execution of
Ex.A5 sale deed the original owner Balasubramanian himself had no right or title
in respect of the plaint schedule property since he had already conveyed the
same under Ex.B2 on 19.01.1996 in favour of D1. Both the courts below have
concurrently held that Ex.A4 and A5 are invalid documents.
13.The learned counsel appearing for the appellant would contend that the
plaintiff’s possession in the suit property has been admitted by the defendant.
The second defendant remained exparte in the suit. It is the case of the
plaintiff that he had executed a mortgage under Ex.A8 in favour of D2 subsequent
to Ex.A5 sale deed. A reading of the written statement filed by D1 would go to
show that one Saravanan was in possession of the plaint schedule property as
tenant under Balasubramanian. The plaintiff in the absence of Saravanan in the
plaint schedule property, broke open the lock and trespassed into the suit
property and in this connection, Saravanan had preferred a complaint with
Srivaikuntam Police is seen from Ex.X1 dated 01.02.1999. After the police
complaint, the plaintiff had allowed the second defendant to reside in the
plaint schedule property is the case of the first defendant in his written
statement. Nowhere in the written statement, D1 had admitted that the plaintiff
is in possession and enjoyment of the plaint schedule property. It is not the
case of D2 that he is in possession and enjoyment of the plaint schedule
property. Under such circumstances, the claim of the learned counsel for the
appellant that the possession of the plaintiff even though he is a trespasser
according to D1, is to be protected, cannot be sustainable. Once Ex.A4 and A5
goes, the plaintiff has no right or title in respect of the suit property, as
correctly held by the Courts below. I do not find any substantial question of
law involved in the second appeal for admission.
14.In fine, the second appeal is dismissed before admission. No costs.
Consequently, connected miscellaneous petition is closed.
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