BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/01/2011 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A(MD)NO.954 of 2010 and M.P(MD)No.1 of 2010 1. Lakshmi 2. Elango 3. Eswari ...Appellants/defendants vs 1. Karuppathal alias Sadayammal 2. Nallammal ...Respondents/plaintiffs PRAYER Second Appeal filed under Section 100 of Civil Procedure Code, praying this Court to set aside the judgment and decree made in A.S.No.38 of 2009, dated 29.07.2010, on the file of the Subordinate Judge, Palani, reversing the judgment and decree made in O.S.No.243 of 2007, dated 29.06.2009, on the file of the District Munsif Court, Oddanchatram. !For Appellant ... Mr.S.Anand Chandrasekar for M/s.Sarvabhauman Associates ^ :JUDGMENT
The submissions made by Mr.S.Anand Chandrasekar, learned counsel for the
appellants were heard. The grounds of appeal, judgments of the courts below and
other papers produced in the form of typed-set of papers were also perused.
2. The defendants in the original suit O.S.No.243 of 2007, on the file of
the District Munsif Court, Oddanchatram are the appellants herein. The
respondents herein filed the said suit as plaintiffs for declaration of their
alleged title in respect of the suit property, for recovery of possession and
for costs.
3. The respondents herein/plaintiffs contended that their mother Kumarayee
Ammal was the owner of the suit property and on her death, the same devolved
upon them. The further case of the respondents herein/plaintiffs is that they
entrusted the suit property to Arumugam, late husband of the first appellant;
that the said Arumugam who was thus put in permissive possession managed the
suit property on behalf of the respondents herein/plaintiffs; that about six
months prior to the issuance of pre-suit notice the said Arumugam started
claiming adverse possession and chose to issue a reply to the notice issued by
the respondents/plaintiffs claiming extinquishment of the title of Kumarayee
Ammal; that he also falsely claimed to have been put in possession of the suit
property pursuant to an alleged agreement for sale; that subsequently he died
about four months prior to the filing of the suit leaving the
appellants/defendants as his legal heirs and that hence, they were constrained
to file the suit for the above said reliefs.
4. It is not disputed that the suit property belonged to the mother of the
respondents. On the other hand, the appellants/defendants took a stand that the
mother of the respondents executed a sale agreement agreeing to sell the suit
property to Arumugam, late husband of the first appellant, for a sum of
Rs.25,500/-; that Ex.B1 was the said agreement executed on 28.09.1992; that at
the time of entering into the agreement itself, the parent deed under which
Kumarayee Ammal had purchased the property in 1983 was also handed over to
Arumugam besides putting him in possession of the suit property in part
performance of the contract; that as such the said Arumugam and after his death,
the appellants were in continuous possession and enjoyment of the property in
their own right without any hindrance from any source and that hence, they had
perfected title by adverse possession. It was also contended by the
appellants/defendants that since the said Arumugam was put in possession of the
suit property in part performance of Ex.B2-Agreement, his possession was legally
protected under Section 53-A of the Transfer of Property Act even against the
legal heirs of Kumarayee Ammal,namely the respondents herein, and that for that
reasons also, the suit for recovery of possession must fail.
5. Based on the pleadings, the trial court framed four issues to the
following effect:
“1. Whether the claim of title by the plaintiffs can be sustained?
2. Whether the claim of title by the defendants can be sustained?
3. Whether the relief sought for by the plaintiffs can be granted?
4. To what other reliefs, the plaintiffs are entitled to?”
6. The first plaintiff figured as the sole witness(P.W.1) on the side of
the plaintiffs and seven documents were marked as Ex.A1 to Ex.A7. The second
defendant figured as D.W.1 and another Arumugam, the attestor of Ex.B2 was
examined as D.W.2. Four documents were marked as Ex.B1 to Ex.B4 on the side of
the defendants.
7. The learned Trial Judge, after considering the evidence brought
before it, came to the conclusion that the suit property belonged to the
respondents herein/plaintiffs; that the claim of title by the
appellants/defendants could not be sustained and that the respondents/plaintiffs
would be entitled to the reliefs of declaration of title and recovery of
possession. An appeal preferred against the above said judgment and decree of
the learned Trial Judge was dismissed by the learned Appellate Judge, namely,
learned Subordinate Judge, Palani, by judgment dated 27.09.2010. Upholding the
decree passed by the trial court and confirming the judgment of the trial court
in all respects, the lower appellate court has dismissed the appeal. Aggrieved
by the same, the present second appeal has been filed.
8. Though for convenience sake, the brief facts have been narrated
supra, this Second Appeal can be disposed of on a short point itself. The
respondents/plaintiffs had filed the suit for declaration of their title and for
the recovery of possession from the appellants/defendants. When such a claim is
made based on alleged title, the suit can be resisted either by denying the
title of the respondents/plaintiffs or by setting up a right in the
appellants/defendants better than that of the plaintiffs. In this case, it is
an admitted fact that the suit property belonged to the mother of the
respondents herein/plaintiffs. The respondents/plaintiffs contended that the
husband of the first appellant was put in permissive possession to manage the
suit property on behalf of the respondents/plaintiffs and that revoking the said
permission, they sought recovery of possession. As per the plaint averments,
since the appellants tried to deny the title of the respondents
herein/plaintiffs, they had to seek the relief of declaration also. When the
title of the plaintiffs’ mother is admitted and the plaintiffs are admitted to
be the legal heirs of the original owner, then their plea for declaration can be
defeated only if the defendants are able to prove better title in themselves.
In this regard, the plea of the appellants/defendants is that Arumugam, husband
of the first appellant/first defendant entered into an agreement for the
purchase of the suit property with Kumarayee Ammal, the mother of the
respondents herein under Ex.B2 and in part performance of the contract under the
said agreement he was put in possession of the suit property and that after the
death of the said Arumugam, the appellants/defendants are in possession and
enjoyment of the same. When the appellants/defendants trace the title to an
agreement for sale in favour of the husband of the first appellant, then the
same tantamounts to admitting their possession under the agreement to be a
permissive one. Under such circumstances, if they want to establish perfection
of title by adverse possession, they have to necessarily plead that they
started either denying the title of the original owner with whom Arumugam
entered into an agreement for purchasing the property or started asserting
openly a title in them to the knowledge of that owner which will have the effect
of denial of title of the original owner. Then only, they can succeed in their
attempt to substantiate their plea of perfection of title by adverse possession.
The appellants/defendants have taken a plea that under Ex.B2, the husband of the
first appellant got possession of the suit property in part performance of the
contract in the year 1992. They have not stated from which date, they started
denying the title of Kumarayee Ammal or that of the respondents herein after the
death of Kumarayee Ammal and from which date they claimed absolute title of the
property to the knowledge of Kumarayee Ammal and to the knowledge of the
respondents herein, after the death of the Kumarayee Ammal.
9. The learned counsel for the appellants would state that Arumugam died
in the year 2006 and only thereafter, the respondents chose to file a suit
suppressing the fact that their mother had executed a sale agreement in favour
of Arumugam. The relief of declaration and recovery of possession based on
title are not discretionary reliefs which can be denied on the ground of
suppression of fact. When suppression of fact is pleaded, the court has to
consider whether the same will clinch the issue in favour of the other side and
if the said fact is brought to the notice of the Court. In this case, assuming
that there is an agreement and Ex.B2 agreement is true and that possession was
handed over to Arumugam in part performance of the said contract; that alone
shall not be enough to non-suit the respondents herein/plaintiffs for the relief
of recovery of possession based on title.
10. The appellants/defendants, as pointed out supra, by admitting that
their possession of the suit property was in part performance of an agreement
for sale, they have admitted their possession to be permissive. They have not
made necessary pleading and have failed to adduce necessary evidence as to the
date from which their possession became adverse possession. In fact, the learned
counsel for the appellants,during his arguments, has also admitted his inability
to make any submission on the said aspect. Therefore, this Court is of the
considered view that the plea of perfection of title by adverse possession was
not properly raised by giving necessary particulars and that such a plea was
not substantiated by letting in reliable evidence.
11. The next ground on which the appellants/defendants can defeat the
suit, not in full but in part, is by expousing their right under Section 53-A of
the Transfer of Property Act. This Court is of the considered view that for
sustaining a plea of protection under Section 53-A of the Transfer of Property
Act, the person claiming such protection cannot deny the title of the vendor
under the agreement and cannot succeed in resisting the plea of the vendor under
the agreement or their legal heirs for the relief of declaration of title. The
consequential relief of recovery of possession can be resisted based on Section
53-A of the Transfer of Property Act. In Order to get protection under Section
53-A of Transfer of Property Act, one should prove three aspects. They are as
follows:
1) There is an agreement for sale of immovable property in his/her
favour;
2) He/she was put in possession in part performance of the agreement for
sale;and
3) He/she has performed or is ready and willing to perform his/her part
of the contract under the agreement.
12. A pleading of the above said aspects and proof of the same are sine
qua non for the successful resistance of the plea for recovery of possession.
In this case, though the first two conditions are pleaded, the third and most
important aspect has been omitted to be pleaded. No evidence has been adduced to
prove the existence of the third condition also. In fact, across the bar, it is
brought to the notice of this Court that till date, the appellants/defendants
have not chosen to file any suit seeking specific performance of the contract
for sale under Ex.B2. The appellants have not pleaded and proved that the
appellants have performed or are ready and willing to perform their obligations
under Ex.B2-agreement. Hence, they are bound to fail in their attempt to resist
the suit for the relief of recovery of possession also. Therefore this Court
does not find any substance in the second appeal.
13. For all the reasons stated above, this Court comes to the conclusion
that the Second Appeal deserves to be dismissed at the admission stage itself.
Accordingly, the Second Appeal is dismissed. Consequently, connected Civil
Miscellaneous Petition is also dismissed. No costs.
vsn
To
1. The Subordinate Judge,
Palani.
2. The District Munsif,
Oddanchatram.