IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.11.2009
CORAM
THE HON'BLE MR.JUSTICE M.JEYAPAUL
S.A.No.108 of 1998
1.Thiagarajan(died)
2.Saravanan ... Appellants.
vs.
1.D.Meenakshi
2.Kaliyamurthy
3.Bakiyavathi
4.T.Sasidevi
5.K.Dhanalakshmi
6.K.Thiagaprabhakaran ... Respondents.
(R4 to R6 are brought on record
as Legal representatives of the
deceased 1st Appellant vide order
of court dated 08.02.2007 made
in CMP 20378, 20380 of 2004.)
Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree of the learned Additional District and Sessions Judge of South Arcot Vallalar District at Cuddalore dated 22.08.1997 made in A.S.No.302 of 1993 confirming the judgment and decree of the trial Court dated 11.11.1993 made in O.S.No.404 of 1992 on the file of the Principal District Munsif Court of Cuddalore.
For appellants : Mr.R.Subramaniam
For respondents : Mr.S.K.Rakunathan
JUDGMENT
The defendants who suffered a decree for permanent injunction at the hands o the plaintiff throughout prefers the present second appeal.
2.The plaintiff would contend that he got the suit properties under the oral partition that took place in his family on 08.07.1960. He has been in the possession and enjoyment of the suit property doing agricultural operation therein. The defendants who are adjacent owners of the suit property who have no right or interest therein attempted to trespass upon the suit property. Having thus contended the plaintiff sought for permanent injunction as against the defendants. The defendants resisted the contentions of the plaintiff on the ground that the suit properties were purchased by the defendants from the legal heirs of Jeevarathinam Ammal and Janakiraman Chettiyar who purchased the suit properties in the court auction sale brought by one Pakkiri Chettiyar having obtained a decree in the cases in Small Causes no.144 of 1960 and 114 of 1960 on the file of the Subordinate Judges Court, Cuddalore. Janakiraman Chettiyar and Jeevarathinam Ammal having purchased the suit properties under court auction sale got delivery of these properties through court and they have been in possession of the same. The defendants having purchased the suit properties from the legal heirs of the purchasers through court auction sale have been in possession and enjoyment of the suit property. They have also set up a plea that they have prescribed title by adverse possession as they have been in possession and enjoyment of the property for more than 12 years.
3.Both the courts below having relied upon the kist receipts Exhibit A1 to A3, the adangal extracts Exhibit A4 to A6, Chitta extract A6 and the mortgage deed Exhibit A10 executed by the plaintiff in favour of one Padmavathy arrived at a conclusion that the plaintiffs have established their possession and enjoyment of the suit property. It has also been observed by the courts below that the kist receipts Exhibit B6 to B9 do not relate to the suit properties in as much as the patta number does not relate to the suit properties. Both the courts below have observed that based on the sale certificate and the delivery receipt it cannot be concluded that Janakiraman Chettiyar and Jeevarathinam Ammal having taken actual delivery of the suit properties have been in possession and enjoyment of the same. Having thus observed the plaintiff was granted with a decree for permanent injunction.
4.The following substantial questions of law were framed at the time of admission of the second appeal.
“1.Whether the lower appellate court was right in holding that no actual delivery was effected under Ex.B.4 and Ex.B.5 delivery receipts moreso when this Hon’ble Court has time and again reiterated that a party to a suit cannot claim that the delivery effected through process of Court is not actual delivery.
2.Is not the deceased first plaintiff bound by Ex.B.4 and B.5 he having suffered a decree and having attested one of them.
3.Whether the lower appellate court was right in not framing points for determination in the appeal, thereby violating the mandatory provisions of Order 41 Rule 31 CPC.
4.Whether the lower appellate court was right in granting the equitable relief of injunction in favour of a person who has come to court supressing the prior proceedings to which he was a party.”
5.The learned counsel appearing for the defendants would submit that there was no pleadings that fraud was played upon in the execution proceedings which culminated in the issuance of delivery receipt. Exhibit A10 does not relate to the suit property in as much as the boundaries of the properties referred to in Exhibit A10 are found to be totally different from the boundaries of the suit properties. The sale certificates and the delivery receipts marked as Exhibit B2 to B5 have got more probative value than the kist receipts and the adangal extract filed by the plaintiff. At any rate an order of injunction cannot be issued as against the real owner of the suit properties.
6.The learned counsel appearing for the plaintiff would submit that the plaintiff has established by filing kist receipts and adangal extracts that he has been in possession and enjoyment of the suit property. The revenue records filed on the side of the plaintiff belie the version of the defendants that the auction purchasers were infact given actual possession of the suit properties. Though there is some variation in the description of the boundaries under Exhibit A10, the survey number and the extent of two of the suit properties and some of the boundaries referred to therein do tally with the descriptions of the suit properties. Therefore, the plaintiff also have established that some of the suit properties were dealt with by the plaintiff even after the alleged delivery of possession by the court through amina to Janakiraman Chettiyar and Jeevarathinam Ammal, it is further contended.
7.There is no dispute to the fact that Pakkiri Chettiyar got a money decree as against the plaintiff Palani Padayatchi. The plaintiff disputes the allegation made by the defendant that the plaintiff was aware of the execution proceedings initiated by Pakkiri Chettiyar. But the sale receipts Exhibit B2 dated 05.01.1970 and Exhibit B3 dated 14.08.1969 would go to establish that Jeevarathinam Ammal and Janakiraman Chettiyar who participated in the court auction sale brought by Pakkiri Chettiyar were declared as successful bidders and they were issued with sale certificates. Exhibit B4 dated 27.11.1970 and Exhibit B5 dated 20.08.1969 were produced to show that Jeevarathinam Ammal and Janakiraman Chettiyar were put in possession of the suit properties through court amina. It is found that in Exhibit B5, the plaintiff has figured as one of the witnesses to the delivery receipt issued in favour of Janakiraman Chettiyar. Therefore, the plaintiff’s contention that he was not aware of the execution proceedings is found to be false. The plaintiff cannot be non suited on such ground.
8.The question that arises for consideration is whether there was actual physical delivery of possession of the suit properties through court amina to Janakiraman Chettiyar and Jeevarathinam Ammal. As rightly pointed out by the courts below, the kist receipts Exhibit A1 to A3 would go to establish that the plaintiff had paid kist for the suit properties bearing patta numbers 76 and 80 as referred under Exhibit A8 for the faslis 1388, 1395, 1396, 1399, 1400 and 1401. That apart the adangal extracts Exhibit A4 to A6 would also establish that the plaintiff was shown as the person who actually cultivated the suit properties during faslis 1380, 1381, 1382, 1395, 1397, 1398, 1400 and 1401. The patta issued for the period from faslis 1389 to 1401 under Exhibit A7 would also show that the name of the plaintiff found a place in the chitta prepared in the village settlement jamabandhi.
9.The suit was filed in the year 1992 immediately after the defendants purchased the suit properties from the legal heirs of Jeevarathinam Ammal and Janakiraman Chettiyar by the plaintiffs seeking permanent injunction. The voluminous documents referred to above produced and marked on the side of the plaintiff would establish that despite the fact that the court executed sale receipt in favour of the predecessors in title of the defendants namely Jeevarathinam Ammal and Janakiraman Chettiyar and delivery receipts Exhibit B4 and B5 also were issued in their name, the plaintiff continued to be in possession of the suit properties paying land revenue to the Government. The revenue authorities also recognised the plaintiff as the actual cultivator of the suit properties for a long period of time prior to the institution of the suit by the plaintiff.
10.Exhibit B8 has come into existence after the institution of the suit. Further Exhibit B6 to B9 do ot reflect the admitted patta numbers 76 and 80. Therefore, the fact remains that the defendants could not produce any documents to show that their predecessors in title were in possession of the suit properties.
11.Exhibit A10 is a mortgage deed executed by the plaintiff in favour of Padmavathy Ammal on 10.02.1983. It is true that some of the boundaries referred to therein with respect to the suit properties is found to be different. But the survey number, the extent of property and some description of the boundaries of two items of suit properties are found referred in Exhibit A10. Therefore, exhibit A10 cannot be rejected in toto. It is established by the plaintiff through Exhibit A10 had in-fact dealt with a part of the subject property in the year 1983 long after the alleged sale certificates and delivery receipts issued in favour of the predecessors in title of the defendants. If at all there was actual physical delivery of possession of the suit properties by the court through its amina to Jeevarathinam Ammal and Janakiraman Chettiyar and the latter and their successors in interest have been in possession and enjoyment of the suit properties, the name of the plaintiff would not have figured in the adangal extract, chitta and kist receipt produced by the plaintiff. The plaintiff also would not have had an occasion to deal with a part of the suit properties by mortgaging under Exhibit A10 dated 10.02.1983.
12.The learned counsel appearing for the appellant referred to the decision of this court in G.Ramasami Vs. Kuruva Boyan and others 1991-1-L.W. 244 wherein it has been held as follows:
“It is not possible for a court to ignore the evidence afforded by the court officials to the effect that delivery has been effected, on the mere allegation that there was no actual delivery. In order to reject the official records such as the bailiff’s endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full particulars as are necessary to support the same, the court shall not direct an enquiry as to whether there is actual delivery. In every case the judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an order of stay in the appellate Court. A bare allegation that the delivery is a paper delivery and the appellant continues in possession is hardly sufficient to direct an enquiry whethe there is physical delivery. The presumption under section 114 of the Evidence Act that official acts are performed regularly will undoubtedly apply.”
13.The aforesaid decision of this court was followed in the later judgment in Komiah Vs. Subbulakshmiammal and another (2002)-I-MLJ-647. That was a case where there was a mere allegation that the delivery of possession was only a paper delivery without any production of hard evidence. In such circumstances this court held that a bald allegation that the delivery is a paper delivery is not sufficient. There must be a definite and specific plea of fraud.
14.In the instant case, there is no specific plea that the delivery of possession by the court was tainted with fraud. But the plaintiff could produce voluminous documents to establish that he continues to be in possession of the suit properties even after the sale certificates and delivery receipts were issued by the court. Of-course a presumption arises under section 114 of the Evidence Act as to the official act performed by the court amina in the matter of delivery of possession as per Exhibit A4 and A5. But such a presumption has been satisfactorily rebutted by the plaintiff by producing the revenue records to establish that he has been in possession and enjoyment of the suit property. Therefore lack of plea of fraud in the above circumstances does not non-suit the plaintiff in this case.
15.The fact that he has subscribed his signature to Exhibit A5 as one of the attestors to the delivery receipt loses its significance in view of the fact that he continued to be in possession of the suit property even after such a delivery receipt came into existence in favour of one of the predecessors in title of the suit properties.
16.It is found that the courts below have rightly held on proper appreciation and evacuation of the evidence on record that the plaintiff established that he has been in possession and enjoyment of the suit property despite the fact the issuance of delivery receipts vouchsafing the delivery of possession by the court through court amina to the predecessors in title of the defendants. As the plaintiffs have established that they have been in continuous possession and enjoyment of the suit property they are entitled to protect their possession even from the real owner. The courts below have rightly returned the verdict that the plaintiffs are entitled to permanent injunction as against the defendants.
17.In view of the above, the appeal stands dismissed. There is no order as to cost.
pri
To
1. The learned Additional District and
Sessions Judge of South Arcot Vallalar District
at Cuddalore.
2. The Principal District Munsif Court of
Cuddalore