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2005 DIGILAW 99 (MAD)

Kothandapani Naidu v. Abdul Wahab Sahib

2005-01-24

A.R.RAMALINGAM

body2005
Judgment :- Aggrieved against the judgment and decree given by the Sub Court, Cuddalore in A.S.No.121 of 1992 in and by which the Sub Court has set aside the judgment and decree passed by the District Munsif, Kallakurichi in O.S.No.423 of 1984, the plaintiff viz., one Kothandapani Naidu has filed this second appeal. 2. The said Kothandapani Naidu filed O.S.No.423 of 1984 on the file of the District Munsif Court, Kallakurichi for the reliefs of declaration and permanent injunction against the four defendants viz., Kulla Karuppan, Marimuthu Ammal, Chinnasamy Chetty and Wahab Sahib with the pleadings that the plaint schedule properties viz., 8 acres 45 cents covered by S.No.166, 4 acres 12 cents covered by S.No.168 at Lakkinayakanpatti Village were purchased in court auction sale as permitted decree holder in pursuance of the decree in Small Cause Suit No.289 of 1968 obtained against one Poongavanam Ammal and that delivery of the properties was also taken by the said Kothandapani Naidu by filing Execution Petition on 12.9.1972 itself and eversince of that date, the plaintiff Kothandapani Naidu alone is in possession and enjoyment of the suit properties covered by patta No.83 issued in his name and also by paying kist and that since the defendants tried to interfere with his enjoyment in the guise of purchase made by the fourth defendant Wahab Sahib, the plaintiff happened to file the said suit. 3. However, defendants 1 to 3 in the suit did not contest the suit and the fourth defendant Wahab Sahib alone filed written statement stating that it is not correct to say that the plaintiff purchased the suit properties in court auction sale and took delivery of the same and that in fact the fourth defendant and his vendors alone are in possession and enjoyment of the suit properties for more than twelve years and that even before the court auction, kalian Chetty had purchased the suit properties from Poongavanam Ammal and then his heirs were enjoying the suit properties and lastly the fourth defendant purchased the suit properties from the heirs of Kalian Chetty and thereby the fourth defendant alone is having title and enjoyment of the suit property and consequently the suit is liable to be dismissed. 4. 4. The Trial Court, viz., the District Munsif, Kallakurichi, after considering the oral and documentary evidence available for either side, has found that the plaintiff alone is having title and possession and enjoyment of the suit properties and the fourth defendant cannot have title and possession upon the suit properties and consequently, decreed the suit as prayed for. 5. Aggrieved against such judgment and decree, the fourth defendant preferred appeal in A.S.No.121 of 1992 on the file of the Sub Court, Cuddalore and the Sub Court, Cuddalore, after considering the judgment of the Trial Court, has allowed the appeal and set aside the judgment and decree of the Trial Court. That is why the second appeal has been filed by the plaintiff Kothandapani Naidu. 6. I have gone through the entire oral and documentary evidence available for either side in the light of the judgments of both the courts below and the arguments of both the counsels in detail. On such perusal, I am able to see that the Sub Court, Cuddalore has pointed out that the court auction purchase and the consequent delivery of possession, etc., have been denied by the fourth defendant and the fourth defendant alone has purchased the suit properties and he alone is in possession and enjoyment of the suit properties and further pointed out that the plaintiff Kothandapani Naidu himself in his evidence has admitted that possession of the suit property is not with him and that the plaintiff Kothandapani Naidu did not appear before the Sub Court and putforwarded his case and therefore, the documents filed on the side of the plaintiff Kothandapani Naidu such as Exs.A1, A2 and A3 to A6 cannot be binding upon the fourth defendant and thereby the fourth defendant alone is having title and possession of the suit properties and consequently allowed the appeal and dismissed the suit. In this context, I am to point out that the Sub Court, Cuddalore appears to have been carried away by the non appearance of the plaintiff Kothandapani Naidu before that court and the incorrect version of the fourth defendant as if the plaintiff in his evidence admitted that possession of the suit properties was not with him and simply ignored the considered judgment of the Trial Curt and allowed the appeal. 7. 7. In fact, Ex.A1 shows that Kothandapani Naidu filed a suit in Small Cause Suit NO.289 of 1968 against one Poongavanam Ammal for recovering the debt due to him and obtained decree and then he brought the suit properties for court auction sale and then he, as permitted decree holder, purchased the suit properties in court auction. Ex.A2 shows that on 12.9.1972, the said Kothandapani Naidu filed Execution Petition and took delivery of the suit properties in pursuance of his purchase in court auction sale. Ex.A3 shows that it is a common order passed by the District Munsif, Kallakurichi in I.A.No.502 of 1976 in O.S.No.105 of 1976 and I.A.No.504 of 1976 in O.S.No.108 of 1976 in and by which the application for temporary injunction filed by Kothandapani Naidu in I.A.No.502 of 1976 in O.S.No.105 of 1976 has been granted and the temporary injunction petition filed by Kaliamurthy Chetty against Kothandapani Naidu in I.A.No.504 of 1976 in O.S.No.108 of 1976 has been dismissed after elaborate discussion. Ex.A4 shows that it is a copy of the decreetal order in I.A.No.502 of 1976 in O.S.No.105 of 1976 in and by which injunction has been granted in favour of Kothandapani Naidu against Kalian Chetty. Ex.A5 shows that it is the decree passed by the District Munsif, Thirukivilur in O.S.No.15 of 1978 (Kallakurichi O.S.No.108 of 1976) in and by which the said suit filed by Kaliamurthy Chetty against Kothandapani Naidu for the relief of declaration and permanent injunction in respect of the suit properties has been dismissed on 22.6.1978 itself. Ex.A7 shows that it is a patta book issued by the Revenue Department in the name of Kothandapani Naidu containing patta number as 83 relating to the suit properties. Ex.A8 shows that Kothandapani Naidu has paid kist for the lands covered by patta No.83 for the fasli 1393 on 3.8.1984 and 9.6.1976. Ex.A7 shows that it is a patta book issued by the Revenue Department in the name of Kothandapani Naidu containing patta number as 83 relating to the suit properties. Ex.A8 shows that Kothandapani Naidu has paid kist for the lands covered by patta No.83 for the fasli 1393 on 3.8.1984 and 9.6.1976. Therefore, all these documents clearly go to show that the said Kothandapani Naidu, for the debt incurred by Poongavanam Ammal, filed a Small Cause Suit against her and obtained decree and then executed the same and brought the suit properties for court auction and then as permitted decree holder, purchased the suit properties in court auction and the sale in his favour was confirmed by the court and subsequently, he also took delivery of the suit properties through court and he has also obtained patta number 83 in his name for the suit properties and he also paid kist. 8. On the other hand, Ex.B1 shows that it is a certified copy of the sale deed executed in favour of the fourth defendant by one Marimuthu Ammal wife of Kaliamurthy Chetty, her son Karuppan, one Arumugam and one Annammal on 21.7.1984 in respect of the suit properties. Ex.B2 shows that it is a kist receipt showing the payment of kist for the fasli 1386 and 1387 on 29.7.1978 in the name of Kalian Chetty. In this context, it is to be pointed out that Exs.A1 to A8 cumulatively show that even before the fourth defendant got the sale deed dated 21.7.1984, the plaintiff has got title and possession of the suit properties through valid and reliable documents. On the other hand, the fourth defendant appears to have purchased the suit properties from the persons who have no title upon the suit properties belatedly on 21.7.1984 in the light of the previous and anterior documents viz., Exs.A1 to A8. Further, significantly, it is to be pointed out that when once the plaintiff has brought the suit properties for court auction in pursuance of the decree obtained against one Poongavanam Ammal who was the original owner of the suit properties, and purchased the suit properties in court auction and took delivery of the same through court, it is surprising as to how the fourth defendant has chosen to purchase the very same suit properties from third persons. Though it is feebly pleaded by the fourth defendant that Kaliamurthy Chetty had purchased the suit properties from Poongavanam Ammal even before the date of court auction purchase made by the plaintiff, there is no such sale deed produced before the court to substantiate such pleading and there is also no explanation as to why the document has not been produced into court. Therefore, in such circumstances and in the light of the fact that the suit filed by the very same Kaliamurthy Chetty against Kothandapani Naidu as if he alone is the title holder on the strength of the purchase from Poongavanam Ammal in earlier point of time has been dismissed and another suit filed by Kothandapani Naidu against Kaliamurthy Chetty has been decreed by the District Munsif Court, Thirukovilur, it is too much on the part of the fourth defendant to contend as if he has prescribed title by adverse possession also for more than twelve years. So, it is needless to point out that whatever rights and liabilities available with the vendors of the fourth defendant should be available for the fourth defendant as purchaser. The fourth defendant cannot say as if those civil proceedings by way of suits etc., between Kothandapani Naidu and Kaliamurthy Chetty or Poongavanam Ammal cannot be binding upon him for the purpose of Ex.B1 sale deed. It is also not explained as to why the fourth defendant is not prepared to file the original of Ex.B1 sale deed into court. In such circumstances, it seems that even the said Poongavanam Ammal and then Kaliamurthy Chetty and others appear to have set up the fourth defendant to create a sale deed in his name for the purpose of defeating the rights of Kothandapani Naidu with ulterior motive. 9. On the strength of the above observed aspects, I am to point out that the Trial Court viz., the District Munsif, Kallakurichi has discussed and appreciated the evidence available for either side in detail and then only come to the conclusion that the suit should be decreed whereas the Sub Court, Cuddalore has not properly appreciated the evidence and allowed the appeal and dismissed the suit. Consequently, I am of the view that the second appeal succeeds and the judgment and decree of the Sub Court, Cuddalore has to be set aside and the judgment and decree of the District Munsif, Kallakurichi has to be restored. Accordingly, the second appeal is allowed with costs and the judgment and decree of the Sub Court, Cuddalore is set aside and the judgment and decree of the District Munsif, Kallakurichi is restored.