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2005 DIGILAW 617 (MAD)

Alamelu Ammal v. Krishna Nattar & Others

2005-04-09

A.R.RAMALINGAM

body2005
Judgment :- Aggrieved against the judgment rendered by the Sub Judge, Thiruvannamalai in A.S.No.34 of 1993 in and by which the Sub Judge dismissed the appeal preferred by the plaintiff Alamelu Ammal in O.S.No.311 of 1985 on the file of the District Munsif, Thiruvannamalai and allowed the cross appeal by upholding the prescription of title by the defendants, the appellant/plaintiff Alamelu Ammal has filed the second appeal. 2. The suit in O.S.No.311 of 1985 was filed by Alamelu Ammal against the four defendants for the reliefs of declaration of title and permanent injunction in respect of the suit properties viz., 6 acres 66 cents covered by S.No.312/1 and 84 cents covered by S.No.312/2A at Sathanur Village, Changam Taluk with the allegations that the plaintiff purchased the suit properties on 29.8.1963 from defendants 1 to 3 through a registered sale deed for Rs.3000/= and defendants 1 to 3 executed the said sale deed in favour of the plaintiff for the purpose of discharging the debts and pressing need thereof that were incurred by the parents of the defendants as well as the first defendant as joint family manager and that ever since of that purchase, the plaintiff is in possession and enjoyment of the suit properties and cultivating the suit properties through lease in favour of third parties and that the defendants have left the suit village for their livelihood and that after retirement of the plaintiff's husband from the Police Department, the plaintiff and her husband came to the suit village and are cultivating the suit properties through lessees and that while so, the defendants, without any manner of right are attempting to interfere with the possession and enjoyment of the plaintiff upon the suit properties and that is why the plaintiff happened to file the suit for the relief of declaration and permanent injunction against the defendants. 3. 3. The said suit was resisted by the defendants through written statement of the first defendant with the allegations that the alleged sale deed dated 29.8.1963 is not a true and genuine one and instead it was obtained by the plaintiff through coercion and undue influence by saying that it was a mortgage deed towards the loan of Rs.1000/= obtained by the first defendant from the plaintiff and that since the plaintiff happens to be the sister of the defendants' mother, the defendants were having implicit obedience and they were under the control of the plaintiff and by taking advantage of the situation, the plaintiff has obtained the sale deed with ulterior motive and it is not supported by consideration and that the fourth defendant is not one of the executants of the sale deed and mere signatures of defendants 1 to 3 alone were obtained in the sale deed without knowing the implication of the document and thereby the said alleged sale deed in favour of the plaintiff is not only valid but also not binding upon defendants 1 to 3 and particularly the fourth defendant who is not an executant and that the plaintiff was never in possession and enjoyment of the suit properties either in person or through lessee and that in fact, the defendants alone are in possession and enjoyment of the suit properties to the knowledge of the villagers as well as the plaintiff and they have been paying kist and that there is no question of interference by the defendants as alleged in the plaint and that the defendants also have prescribed title by adverse possession upon the suit properties and in all, the suit is liable to be dismissed. 4. On trial and after examining three witnesses including the plaintiff as PW1 for the plaintiff and 7 witnesses including the first defendant as DW1 for the defendants and marking of 12 documents as Exs.A1 to A12 and 24 documents as B1 to B24, the District Munsif has found and come to the conclusion that the sale deed dated 29.8.1963 marked as Ex.A1 is not valid and binding upon the defendants and both the parties have not prescribed title by adverse possession and consequently dismissed the suit. 5. 5. On appeal filed by the plaintiff, the Sub Judge, Thiruvannamalai has found and come to the conclusion that the said sale deed is not valid and binding upon the defendants and so, the plaintiff cannot seek for the relief of declaration and also there is no prescription of title by adverse possession also by the plaintiff and that the defendants alone have prescribed title by adverse possession also and consequently dismissed the appeal filed by the plaintiff and allowed the cross appeal filed by the defendants. 6. I have gone through the entire oral and documentary evidence available in this case in depth in the light of the judgments of both the courts below and the arguments of the counsels appearing for either side in detail. From this, I am able to see the following important factors for proper appreciation and conclusion in the light of the questions of law raised by the appellant. 7. Learned counsel appearing for the appellant contended that as per the new Limitation Act, the persons who claim adverse possession should prove it by cogent evidence inasmuch as there is document of title in favour of the plaintiff under Ex.A1 and defendants 1 to 3 are parties for themselves and on behalf of the fourth defendant and it was also contended that even for argument sake if it is construed that the plaintiff has not proved all the debts referred to in Ex.A1, it does not mean that the title is not passed on to the plaintiff and that the remedy for the defendants is only to claim the amount of undischarged debts from the plaintiff and it is not open for the defendants to question the validity of the sale deed as if debts were not discharged in accordance with the recital in Ex.A1 and that the plea of coercion and undue influence relating to Ex.A1 should be proved only by the defendants. He also contended that the evidence available for the defendants is not to the extent of establishing Ex.A1 as voidable document based upon the alleged coercion and undue influence. He also contended that the evidence available for the defendants is not to the extent of establishing Ex.A1 as voidable document based upon the alleged coercion and undue influence. He also contended that the evidence of the first defendant as DW1 itself goes to show that the said sale deed was obtained by the plaintiff by saying that it is a mortgage deed towards loan amount of Rs.1000/= obtained by the first defendant from the plaintiff and thereby it goes without saying that defendants 1 to 3 were consenting parties for execution of Ex.A1 sale deed thinking that it was a mortgage deed. Therefore, he further contended that if really the defendants were not consenting parties to Ex.A1 it is always open for all the defendants or any of the defendants to dispute or challenge the said sale deed marked as Ex.A1 either within three years from the date of the execution of the sale deed or three years from the date of becoming major. 8. None of the defendants has chosen to dispute or challenge the original of Ex.A1 sale deed within three years that too when it has been executed in the year 1963. The allegation of coercion and undue influence on the other hand is totally challenged by the plaintiff in her evidence and instead she has given evidence to the effect that the parents of the defendants had incurred many debts and there was pressing necessity for the defendants to discharge those debts incurred by the parents as well as the first defendant and with the good intention of helping the defendants, the plaintiff came forward to purchase the suit properties for Rs.3000/= in order to discharge those debts made in Ex.A1 for the welfare of the defendants and consequently, the plaintiff has also discharged those debts covered by Ex.A2 pertaining to the mortgage debt of Rs.800/=, Ex.A3 pertaining to another mortgage deed of Rs.350/=, Ex.A4 pertaining to pronote debt of Rs.135/=, Ex.A5 suit debt in Small Cause Suit No.587 of 1962, Ex.A6 pertaining to pro note debt, Ex.A11 pertaining to mortgage debt of Rs.800/= and Ex.A12 pertaining to pro note debt of Rs.100/=, etc. All these debts have been enumerated by way of recital in the original of Ex.A1. All these debts have been enumerated by way of recital in the original of Ex.A1. Therefore, he contended further that Ex.A1 sale deed if at all cannot be binding upon the fourth defendant who is not one of the executants of the sale deed and it is binding and valid so far it relates to defendants 1 to 3 who are parties to the execution of the sale deed. Therefore, the original of Ex.A1 is a registered document and there is no acceptable and convincing materials to establish that it was executed on misrepresentation as mortgage deed or by coercion or undue influence and it cannot be accepted and believed as if the original of Ex.A1 is not a valid and binding one upon defendants 1 to 3. 9. This aspect is also probabilised by the fact that none of the defendants has chosen to dispute or challenge the sale deed within three years from the date of execution of the sale deed or from the date of attaining majority till the filing of the suit. In such circumstances, the reasoning and approach of the courts below to hold as if that original of Ex.A1 is not valid and binding upon the defendants, in my view, is not proper, justified and correct. In this context, the ruling reported in MELUR CO-OP. MARKETING SOCIETY v. SALIA MARIAM (1972 II MLJ 406) and RAJAMANI AMMAL v. BHOORASAMI (AIR 1974 Madras 36) wherein it has been held that intention of the parties alone is important and non payment of balance sale consideration cannot be a ground for disputing the passing of title and as per section 54 of the Transfer of Property Act, the price paid or promised or part paid or part promised is enough for passing of title under the instrument and the seller can always sue for the amount not paid by the purchaser and that the instrument obtained by undue influence is voidable and the suit to set aside it must be brought within three years from the date, were cited by the appellant's counsel in support of his contention that the original of Ex.A1 cannot be held as invalid and not binding upon the defendants and particularly defendants 1 to 3. Therefore, the contention of the appellant's counsel, as such, in my view, stands legally acceptable and correct on the facts and circumstances of this case. Therefore, the contention of the appellant's counsel, as such, in my view, stands legally acceptable and correct on the facts and circumstances of this case. Accordingly, the finding of the courts below pertaining to Ex.A1 has to be necessarily set aside and the original of Ex.A1 as such has to be held as a valid document and it is binding upon defendants 1 to 3 who are executants and it cannot be binding upon the fourth defendant. 10. Coming to the question of adverse possession prescribed by the defendants, as found by the first appellate court, in cross appeal, the following important aspects have to be taken into consideration. Though the plaintiff has pleaded and given evidence to the effect that the suit properties were all along possessed and enjoyed and cultivated by her for some time personally and at times through lessees, there is no acceptable and reliable proof to show that either the plaintiff or her lessees were actually cultivating the suit properties ever since of the purchase made by her under the original of Ex.A1. On the other hand, the defendants have produced Ex.B1 viz., patta passbook wherein the defendants' names (Krishnan vagaiara) for the suit properties and Ex.B2 chitta extract to show that the names of the defendants (Krishnan vagaiara) for the suit properties and that particularly Exs.B4 to B18 which are Cultivating Adangal Extracts relating to the suit properties for faslis 1381 to 1394 continuously for the period of 14 years i.e., before filing of the suit and after filing of the suit wherein the defendants' name as Krishnan Vagaiara alone have been entered as cultivators of the suit properties. 11. In this context, it is to be observed that if really the plaintiff had taken possession from the date of the sale deed and she only was in possession and enjoyment and cultivation, there is no necessity for the cultivation adangal extracts continuously for a period of 14 years in the names of the defendants. It is also not the plea and evidence of the plaintiff that she enjoyed the suit properties by cultivating through the defendants due to her close relationship. Further, it is also not the evidence of the plaintiff that her name has been included in adangal from the year 1963 onwards. It is also not the plea and evidence of the plaintiff that she enjoyed the suit properties by cultivating through the defendants due to her close relationship. Further, it is also not the evidence of the plaintiff that her name has been included in adangal from the year 1963 onwards. When that being so, it is too much on the part of the plaintiff to contend as if the suit properties were possessed and enjoyed by the plaintiff alone to the knowledge of the defendants for more than statutory period. 12. On the other hand, the documents in support of the defendants viz., cultivation adangal extracts go to show that the defendants alone are in possession and enjoyment of the suit properties for so many years continuously and it is also the evidence of the first defendant that they alone are cultivating the suit properties for long number of years to the knowledge of the plaintiff and so on. In a way to strengthen this, the defendants also produced kist receipts marked as Exs.B19 to B22 respectively for faslis 1379, 1381, 1394 and 1399 in the names of the first defendant Krishnan, and the second defendant Balaraman. Therefore, it goes without saying that the defendants have perfected title by adverse possession upon the suit properties to the knowledge of the plaintiff and thereby the finding of the Sub Judge, Thiruvannamalai in the cross appeal to the effect that the defendants have prescribed title by adverse possession, in my view, is correct and justified and there is no need for interference with such a finding of the Sub Judge, Thiruvannamalai in this second appeal. 13. Accordingly, though the appellant/plaintiff is entitled to have the finding in respect of sale deed as a valid and binding one so far it relates to defendants 1 to 3, the second appeal fails on the question of adverse possession in favour of the defendants. 14. In the result, the second appeal fails and the same is dismissed, but, without costs.