{"id":65305,"date":"2007-10-10T00:00:00","date_gmt":"2007-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-ponnu-pandian-vs-muthiah-on-10-october-2007"},"modified":"2016-10-15T16:10:26","modified_gmt":"2016-10-15T10:40:26","slug":"k-ponnu-pandian-vs-muthiah-on-10-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-ponnu-pandian-vs-muthiah-on-10-october-2007","title":{"rendered":"K.Ponnu Pandian vs Muthiah on 10 October, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
K.Ponnu Pandian vs Muthiah on 10 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDated : 10\/10\/2007\n\n\nCORAM:\nTHE HONOURABLE MR. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\n\nSecond Appeal (MD) No.152 of 2006\nand\nC.M.P.No.1098 of 2006\n\n\nK.Ponnu Pandian\t... \tAppellant\n\n\nVs.\n\n\n1.Muthiah\n2.Arumuga Thevar\t...\tRespondents\n\n\nPRAYER\n\n\nSecond Appeal filed under Section 100 of C.P.C. against the judgment and\ndecree dated 05.09.2005 passed in A.S.No.77 of 2005 on the file of the\nSubordinate Court, Thoothukudi confirming the judgment and decree dated\n30.03.1999 passed in O.S.No.88 of 1997 on the file of the District Munsif,\nSrivaikuntam.\n\n\n!For Appellant     \t...\tMr.M.Muthu Geethiyan\n\t\t\t\tAdvocate\n\t\t\t\t\t\n^For Respondents\t...\tNo Appearance\n\n\n:JUDGMENT\n<\/pre>\n
\tThe plaintiff in O.S.No.88 of 1997 on the file of the Court of the
\nDistrict Munsif of Srivaikundam is the appellant herein.  The plaintiff had
\nfiled the suit in respect of the plaint schedule property for bare injunction on
\nthe ground that he is in possession of the plaint schedule property.\n<\/p>\n
\t2.The short facts of the averments in the plaint relevant for the purpose
\nfor deciding this appeal are as follows:-\n<\/p>\n
\tThe plaint schedule property originally belonged to one Vaikunta Iyer
\nunder a sale deed dated 26.10.1950.  After the demise of the said Vaikunta Iyer,
\nhis legal heirs have partitioned that family properties in which the plaint
\nschedule property was allotted to the share of Vaikunta Iyer’s son
\nBalasubramanian.  The said partition deed was registered on 08.10.1973.  The
\ndaughter of Vaikunta Iyer namely Rajammal had executed a release deed on
\n09.10.1973 releasing her interest in the suit property in favour of
\nBalasubramanian.  From the year 1973 onwards, the said Balasubramanian was in
\npossession and enjoyment of the plaint schedule property as an absolute owner.
\nBalasubramanian had executed a registered power of attorney on 29.01.1996 in
\nfavour of one Durairaj son of Sorimuthu Thevar of Manappadai veedu,
\nPalayamkottai who had executed a sale deed in respect of the plaint schedule
\nproperty in favour of the plaintiff on 07.02.1996.  From the said date of sale,
\nthe plaintiff is in possession and enjoyment of the plaint schedule property by
\npaying house tax and electricity consumption charges.  The plaintiff has simply
\nmortgaged the suit property on 29.09.1997, in favour of the second defendant and
\nin view of the interest, the second defendant was put in possession of the suit
\nproperty.  The first defendant is an utter stranger to the suit property and he
\nis not having any right or title in respect of the suit property.  On
\n12.10.1997, the first defendant attempted to interfere with the plaintiff’s
\npossession and enjoyment of the suit property and had threatened the second
\ndefendant  to dispossess him illegally and forcibly.  Hence, the suit.\n<\/p>\n
\t3.The first defendant in his written statement would contend that the
\nalleged power of attorney executed by Balasubramanian in favour of Durairaj
\ndated 29.01.1996 is not a valid document.  The sale deed dated 07.02.1996 said
\nto have been executed by the said Durairaj as power of attorney of
\nBalasubramaian in favour of the plaintiff is ab initio void.  The alleged
\nmortgage in favour of the second defendant is also invalid under law.  This
\ndefendant has not trespassed into the suit property.  The plaint schedule
\nproperty was originally let out to one Saravanan in the year 1989 for rent.  The
\nsaid Balasubramanian was residing in the up-stairs portion of the plaint
\nschedule property and Saravanan was the tenant in the ground floor.
\nBalasubramanian was insisting Saravanan to vacate and hand over the possession
\nof the ground floor on the ground of owner’s occupation.  But, Saravanan was
\nresisting the claim of Balasubramanian by giving one reason or other.
\nSubsequently, the owner of the plaint schedule property, Balasubramanian had
\nentered into a sale agreement with one Narayanathevar on 20.12.1995 for a sale
\nconsideration of Rs.46,000\/-.  On the date of sale agreement itself,
\nBalasubramanian had received Rs.2,000\/- from Narayanathevar as advance of the
\npurchase money.  In the meantime, the tenant Saravanan gave notice in Kathiravan
\nDaily dated 02.01.1996, stating that he had purchased the suit property from
\nBalasubramanian. In turn, Balasubramanian had preferred a complaint against the
\nsaid Saravanan with Srivaikuntam Police Station on 13.01.996, which was
\nregistered under Crime No.5\/1996.  Since Naryanathevar could not perform his
\npart of contract as per the sale agreement dated 20.12.1995, Balasubramanian had
\nexecuted a sale deed in favour of the second defendant in respect of the plaint
\nschedule property on 19.01.1996.  After the purchase, the first defendant had
\nrequested Saravanan to vacate and hand over the possession of the plaint
\nschedule property to him.  After knowing that, the original owner
\nBalasubramanian had executed the sale deed in favour of the first defendant, the
\nplaintiff clandestinely, with the connivance of Durairaj had created a sale deed
\ndated 07.02.1996 in favour of him in respect of the plaint schedule property.
\nAfter the execution of the sale deed in favour of the first defendant on
\n19.01.1996 in respect of the plaint schedule property, Durairaj as power of
\nattorney of Balasubramanian had nothing to convey under the sale deed dated
\n07.02.1996 in favour of the plaintiff.  The sale deed dated 07.02.1996, the
\nmortgage deed dated 29.09.1997 are all concocted documents created for the
\npurpose of this case.  At the time, when Saravanan was away from the plaint
\nschedule property, the plaintiff along with the second defendant had broken upon
\nthe lock of the plaint schedule property and trespassed into the same.  In this
\nconnection, Saravanan had preferred a complaint with Srivaikuntam Police against
\nthe plaintiff which was registered under Crime No.37 of 1997.  After the
\ncomplaint, the plaintiff had let the second defendant to reside in the plaint
\nschedule property.  Hence, the suit is liable to be dismissed. The second
\ndefendant remained exparte.\n<\/p>\n
\t4.On the basis of the above pleadings, the learned trial Judge had framed
\ntwo issues for trial.  Before the trial Court,  on the side of the plaintiff,
\nthe plaintiff has examined  himself as P.W.1 and exihibited Exs.A1 to A11.  On
\nthe side of the defendant, the first defendant has examined himself as D.W.1
\nbesides examining D.Ws.2 to 4.  Exs.B1 to B7 were marked on the side of the
\ndefendants.  The complaint preferred against the plaintiff on 01.02.1999 was
\nmarked as X1 and copy of the power of attorney in favour of Durairaj was marked
\nas X2.\n<\/p>\n
\t5.After considering both oral and documentary evidence let in before the
\ntrial Court, the learned trial Judge has come to an assailable conclusion that
\nthe plaintiff is not entitled to any relief asked for in the plaint and
\naccordingly, dismissed the suit.\n<\/p>\n
\t6.Aggrieved by the findings of the learned trial Judge, the plaintiff
\npreferred an appeal in A.S.No.77 of 2005 before the Subordinate Judge,
\nTuticorin.  After giving due deliberations to the submissions made by the
\nlearned counsel appearing for the appellant as well as for the respondents and
\nafter meticulously going through the evidence both oral and documentary let in
\nbefore the trial Court, the learned First Appellate Judge has held that there is
\nno material to interfere with the findings of the learned trial Judge and
\naccordingly, dismissed the appeal thereby confirming the findings of the learned
\ntrial Judge, which necessitated the plaintiff to prefer this second appeal.\n<\/p>\n
\t7.Before admission, notice was ordered to the respondents and records were
\ncalled for.  The learned counsel appearing for the appellant Mr.Muthu
\nGeetharajan, would attack the findings of the learned trial Judge on the ground
\nthat Ex.B2 was registered  at Parasalai, Kerala State wherein the suit property
\nis situated at Sri Vaikuntam in Tamilnadu and that the registration of Ex.B2
\nsale deed itself is not valid under law as per Section 28 of the Registration
\nAct 1908, which runs as follows:-\n<\/p>\n
\t“28.Place for registering documents relating to land.- Save as in this
\npart otherwise provided, – (a) every document mentioned in clauses (a), (b),\n<\/p>\n
(c), (d) and (e) of sub-section (1) and sub-section (2) of Section 17 in so far
\nas such document affects immovable property and in clauses (a), (b), (c)  and
\n(cc) of section 18, shall be presented for registration in the office of a Sub-
\nregistrar within whose sub-district the whole or some portion of the property to
\nwhich such document relates is situate in the State of Tamil Nadu; and\n<\/p>\n
\tb) document registered outside the State of Tamil Nadu in contravention of
\nthe provisions of clause (a)  shall be deemed to be null and void.”\n<\/p>\n
There cannot be any two opinion with regard to the above said provision of law.
\nIf the sale deed is to be registered in respect of the property situate in the
\nState of Tamilnadu, it shall be registered in the office of the Sub Registrar
\nwithin whose Sub District it is situated.\n<\/p>\n
\t8.A perusal of Ex.B2 sale deed will go to show that under Ex.B2 not only
\nthe plaint schedule property but also the property situate in Parasalai, Kerala
\nState was conveyed under Ex.B2.  The schedule 1 to Ex.B2 is the plaint schedule
\nproperty which is in Srivaikuntam Panchayat, Tamilnadu State.  The schedule 2 to
\nEx.B2 is the property measuring 7 cents in Survey No.115\/15 in Parasalai Firka,
\nParasalai Panchayat, Parasalai village, Neyyartin Karai Taluk, Parasalai Sub
\nDistrict in Trivandrum District, Kerala State.\n<\/p>\n
\t9.Under such circumstances, Section 28 of the Registration Act is not a
\nbar to register Ex.B2 sale deed at Parasalai, Kerala State since one of the
\nproperties conveyed under Ex.B2 is situate at Parasalai State.  The learned
\ncounsel relying on 2003 (1) CTC 539, M.MANOHARADHAS V. C.ARUMUGHAPERUMAL PILLAI
\nand<\/a> contend that showing a strip of land situate in Kerala State as security for
\nthe property conveyed under the sale deed situate in Tamilnadu, sale deed
\nregistered in Parasalai sub Registrar Office, Kerala State was held to be
\nillegal and void.\n<\/p>\n
\t10.The facts of the said case in brief are as follows:\n<\/p>\n
\t“The plaintiff in O.S.No.67 of 1986 on the file of the Sub Court,
\nNagercoi,l filed the suit for a direction to the first defendant to execute a
\nsale deed in favour of the plaintiff after directing the plaintiff to pay the
\nbalance sale consideration of Rs.9,400\/- and directing the defendant to hand
\nover the possession of the plaint property to the plaintiff.  The trial Court
\ngranted a decree as prayed for.  On First Appeal, reversing the findings of the
\ntrial Court, the First Appellate Court granted a decree against the first
\ndefendant and the second defendant to execute the sale deed and hand over the
\npossession against which the second appeal was preferred.  It was contended on
\nbehalf of the plaintiff that the sale deed executed under Ex.B1 in favour of the
\ndefendant is the void sale and is fraud on the law of registration, on the
\nground that the defendant instead of executing the sale deed in favour of the
\nplaintiff on the basis of the agreement of sale Ex.A1 dated 14.05.1983, had sold
\nthe property under Ex.B1 sale deed dated 26.06.1985 in the Sub Registrar Office,
\nParasalai in Kerala.  While answering the issue whether Ex.B1 sale deed is valid
\nrelying on AIR 1936 PC 91 VENKATARAMA RAO V. APPA RAO,<\/a>  1988 (I) M.L.J. 447
\nMOHD. KASSIM V. RAJARAM, AIR<\/a> 1972 SC 608 P.C.PURUSHOTHAMA V. S.PERUMAL, AIR<\/a> 1934
\nPC 68 BHUP NARAIN V. GOKUL CHAND, AIR 1946 PC 97 S.N. MUNDAGE V. NEW MOFUSSIL
\nCO. LTD.”, a learned Judge of this Court has held that
\n\t” Ex.A6 Certificate issued by the Tahsildar holding that the first
\ndefendant has no possession or ownership of the land in Survey No.80\/1, rightly
\naccepted by the Courts below which follows the registration of the sale deed is
\nillegal and void.”\n<\/p>\n
\t11.  In that case, the suit property was situate at Kanyakumari District
\nand within the jurisdiction of the Sub Registrar at Nagercoil.  The first
\ndefendant had executed the sale deed Ex.B1 dated 26.06.1985 at Parasalai of
\nKerala state  to enable the property at Survey No.80\/1, Parasalai Village, in
\nNeyyartin Karai Taluk is shown as a security.  The first respondent\/the
\nplaintiff has produced Ex.A6 Certificate from the Tahsildar stating that Sri
\nRajavel D1 has no possession or ownership of the property in S.No.80\/1, which
\nwas shown as security for the Ex.B1 sale.  Only on such circumstances, it was
\nheld that Ex.B1 sale deed cannot be a valid sale.  The point to be noted is a
\nstrip of land was shown as a security in Ex.B1 sale deed in that case was in
\nParasalai Village but the Tahsildar Certificate Ex.A6 shows that the first
\ndefendant had no possession or ownership in respect of the said strip of land in
\nS.No.80\/1 Parasalai village to offer as the security in respect of the property
\nsold under Ex.B1.  The property sold under Ex.B1 was at Kanyakumari District
\nwithin the jurisdiction of Sub Registrar of Nagercoil.  Only on such
\ncircumstances, it has been held that the registeration of the sale at Parasalai
\nSub Registrar Office at Kerala State in respect of the property situate at
\nKanyakumari District is illegal and bad and void in law.  But that is not the
\ncase herein , under Ex.B2 sale deed which was executed by the original owner
\nBalasubramanian in favour of the first defendant under Ex.B2 is not only in
\nrespect of the plaint schedule property but also for another property in Survey
\nNo.115\/15 measuring 7 cents situate in Parasalai Village, Neyyartin Karai Taluk,
\nParasalai Sub District, Trivandrum District, Kerala State. There is absolutely
\nno eveidence let in before the trial Court to show that item No.2 to the
\nschedule to Ex.B2 namely Survey No.115\/15 in Parasalai Firka, is not situate in
\nParasalai firka and the said Balasubramanian, the vendor under Ex.B2 had no
\nright title or possession in respect of item No.2 to Ex.B2 to convey the same
\nunder Ex.B2 in favour of the first defendant.  On such circumstances, the ratio
\ndecidendi in the ratio 2003(1) CTC 539, will not be applicable to the present
\nfacts of the case.\n<\/p>\n
\t12.Admittedly, the plaintiff’s sale deed Ex.A5 is dated 07.02.1996
\nexecuted by one Durairaj as power agent  of the original owner Balasubramanian.
\nEx.A5 is subsequent to Ex.B2 dated 19.01.1996 so on the date of execution of
\nEx.A5 sale deed the original owner Balasubramanian himself had no right or title
\nin respect of the plaint schedule property since he had already conveyed the
\nsame under Ex.B2 on 19.01.1996 in favour of D1.  Both the courts below have
\nconcurrently held that Ex.A4 and A5 are invalid documents.\n<\/p>\n
\t13.The learned counsel appearing for the appellant would contend that the
\nplaintiff’s possession in the suit property has been admitted by the defendant.
\nThe second defendant remained exparte in the suit.  It is the case of the
\nplaintiff that he had executed a mortgage under Ex.A8 in favour of D2 subsequent
\nto Ex.A5 sale deed.  A reading of the written statement filed by D1 would go to
\nshow that one Saravanan was in possession of the plaint schedule property as
\ntenant under Balasubramanian.  The plaintiff in the absence of Saravanan in the
\nplaint schedule property, broke open the lock and trespassed into the suit
\nproperty and in this connection, Saravanan had preferred a complaint with
\nSrivaikuntam Police is seen from Ex.X1 dated 01.02.1999.  After the police
\ncomplaint, the plaintiff had allowed the second defendant to reside in the
\nplaint schedule property is the case of the first defendant in his written
\nstatement.  Nowhere in the written statement, D1 had admitted that the plaintiff
\nis in possession and enjoyment of the plaint schedule property.  It is not the
\ncase of D2 that he is in possession and enjoyment of the plaint schedule
\nproperty.  Under such circumstances, the claim of the learned counsel for the
\nappellant that the possession of the plaintiff even though he is a trespasser
\naccording to D1, is to be protected, cannot be sustainable.  Once Ex.A4 and A5
\ngoes, the plaintiff has no right or title in respect of the suit property, as
\ncorrectly held by the Courts below.  I do not find any substantial question of
\nlaw involved in the second appeal for admission.\n<\/p>\n
\t14.In fine, the second appeal is dismissed before admission.  No costs.
\nConsequently, connected miscellaneous petition is closed.\n<\/p>\n
vri<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K.Ponnu Pandian vs Muthiah on 10 October, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-65305","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK.Ponnu Pandian vs Muthiah on 10 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-ponnu-pandian-vs-muthiah-on-10-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.Ponnu Pandian vs Muthiah on 10 October, 2007 - 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