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2006 DIGILAW 3424 (MAD)

Sargunam v. V. R. Jayasingh & Another

2006-12-12

A.KULASEKARAN

body2006
Judgment :- (Prayer: - These Second Appeals are filed against the Judgement and Decree dated 29.2.1996 made in AS.Nos.43/92, 38/1992 and 42/1992, on the file of the Sub Court, Tiruvallur, confirming the Judgement and Decree dated 28.2.1992 made in OS.Nos.136/1988, 874/1988 and 700/1985, on the file of the District Munsif Court, Tiruvallur.) 1. The Appellant herein, who lost his case before the courts below in all the three suits, is the Appellant in all these Second Appeals. 2. For the sake of convenience, the Appellant herein is referred to as the Appellant in all these Second Appeals and the Respondents in SA.Nos.723 and 724/1996 and the Respondents 3 and 4 in SA.No.725/96 are referred to as the Respondents 1 and 2. The Respondents 1 and 2 in SA.No.725, viz. Lakshmi Ammal and Vedavalli are referred to by their names. One Gangadaran, who along with Lakshmiammal and Vedavalli executed the sale agreement dated 3.12.1981 in favour of the Appellant herein, died during the pendency of the first appeals. 3. The suit in OS.No.700/1985 was filed by the Appellant herein before the District Munsif Court, Ponneri for registration of the sale deed and recovery of possession, which was dismissed. Aggrieved by the same, the appeal in AS.No.42/1992 before the Sub Court, Tiruvallur, filed by the Appellant herein was also dismissed. As against the same, SA.No.725/96 is filed by the Appellant herein. 4. The Respondents 1 and 2 in SA.Nos.723 and 724/1996 filed the suit in OS.No.136/88 before the District Munsif Court, Ponneri, against the Appellant herein for permanent injunction, which was decreed. Aggrieved by the same, the appeal in AS.No.43/1992 before the Sub Court, Tiruvallur, filed by the Appellant herein was dismissed. Aggrieved by the same, SA.No.723/96 has been filed. 5. The Respondents 1 and 2 in SA.Nos.723 and 724/1996 also filed another suit in OS.No.874/1988 before the District Munsif Court, Ponneri, against the Appellant herein for recovery of possession, which was also decreed. Aggrieved by the same, the appeal in AS.No.38/92 before the Sub Court, Tiruvallur, filed by the Appellant herein was also dismissed. Aggrieved by the same, SA.No.724/96 is filed by the Appellant. 6. The Trial Court passed a common judgement in all the three suits. However, the lower Appellate Court passed separate judgements in the respective appeals. Aggrieved by the same, the appeal in AS.No.38/92 before the Sub Court, Tiruvallur, filed by the Appellant herein was also dismissed. Aggrieved by the same, SA.No.724/96 is filed by the Appellant. 6. The Trial Court passed a common judgement in all the three suits. However, the lower Appellate Court passed separate judgements in the respective appeals. Considering the subject matter of these Second Appeals as well as the parties are also more or less same, all these Second Appeals are disposed of by this common judgement. 7. The case of the Appellant herein and one Gangadaran, Lakshmiammal and Vedavalli entered into an agreement dated 3.12.1981 for the sale of 700 sq.ft. of land out of 2021 sq.ft, which is the subject matter in all these Second Appeals and paid a sum of Rs.6,500/-, enabling the vendors to deposit the amount into the court as ordered by the Trial Court in OS.No.1062/75, wherein the said persons filed a petition under Section 9 of the Tamil Nadu City Tenants Protection Act (herein after referred to as the Act), which was said to have been allowed. In view of the fact that though the said Gangadaran, Lakshmiammal and Vedavalli received the total consideration of Rs.6,500/-, as per the agreement for sale, they did not deliver possession, the suit in OS.No.700/85 was filed seeking for registration of the sale deed and recovery of possession. 8. The case of the Respondents 1 and 2 is that they have purchased the land to an extent of 2021 sq.ft. under the sale deed dated 4.8.1986 executed by one Rajamanickam, RV.Ranganathan and R.Niranjan and ever since the said date, they are in possession and enjoyment of the properties by paying necessary taxes and charges to the concerned authorities; that based on the said sale deed, they have filed OS.No.136/1988 for permanent injunction, restraining the Appellant from interfering with their possession; that the Respondents 1 and 2 also filed another suit in OS.No.874/1988 against the Appellant for recovery of possession to an extent of 10' x 15', which is located on the north-eastern side corner of the suit property. 9. 9. Before the Trial Court, in OS.No.700/1985, the Appellant herein marked Ex.A1, the sale agreement dated 3.12.1981, Ex.A2, Judgement and Decree dated 28.2.1981 made in in OS.No.1062/75, Ex.A3, Advocate's Notice dated 12.9.1985 and Ex.A4 and A5, acknowledgements from the Respondents 1 and 2 herein and Ex.A6 Postal Receipts and examined himself as PW.1 and the said Gangadaran, Lakshmiammal and Vedavalli marked Exs.B1, dated 1.1.1958, Encumbrance Certificate relating to S.No.173/23, Ex.B2, patta book, Ex.B3 dated 20.8.1986, Advocate's Notice issued by the Appellant, and Ex.B4 dated 2.9.1986, reply given by them and examined the 1st Respondent herein as DW.1. In OS.No.874/1983, the Respondents 1 and 2 did not mark any documents, but examined the 1st Respondent as PW.1 and the Appellant herein did not mark any documents, but examined himself as DW.1. In OS.No.136/1988, the Respondents 1 and 2 marked Ex.A1, sale deed dated 4.8.1986 and examined the 1st Respondent as PW.1 and the Appellant herein did not mark any documents, but examined himself as DW.1. The Trial Court appointed an Advocate Commissioner, who after inspection, filed a report and plan, which were marked as Ex.C1 and C2. 10. In OS.No.136/1988, the Respondents 1 and 2 marked Ex.A1, sale deed dated 4.8.1986 and examined the 1st Respondent as PW.1 and the Appellant herein did not mark any documents, but examined himself as DW.1. The Trial Court appointed an Advocate Commissioner, who after inspection, filed a report and plan, which were marked as Ex.C1 and C2. 10. The Trial Court, considering the oral and documentary evidence, decreed the suits in OS.No.136/88 and 874/86 filed by the Respondents 1 and 2 and dismissed the suit in OS.No.700/85 filed by the Appellant herein on the grounds that though the Appellant herein claimed that he paid the total consideration under Ex.A1, the sale agreement dated 3.12.1981, the sale was not completed and possession was not delivered; that though the amount deposited as per the order passed in the application filed under Section 9 of the said Act, no sale deed was executed in favour of Lakshmiammal and Vedavalli and as such, they were eligible to execute the the agreement for sale and hence, he is not entitled to seek the remedy of registration of the sale deed and recovery of possession; that the sale agreement was said to have been executed by six persons, but the Appellant herein did not choose to array the remaining three of them as the Defendants, and hence, the non joinder of the remaining three persons was fatal to the case of the Appellant herein; that the Respondents 1 and 2 purchased the suit property under the sale deed dated 4.8.19886 and in view of the same, they are in possession and enjoyment and hence, they are entitled to the relief of permanent injunction as well as recovery of possession. 11. The lower Appellate Court also, on the very same lines, dismissed all the appeals filed by the Appellant herein. 12. These Second Appeals were admitted on the following substantial questions of law:- 13. Whether the lower Appellate Court is right in holding that the Defendants 1 to 3 (Gangadaran, Lakshmiammal and Vedavalli) had no right to convey? 14. Whether the lower Appellate Court is right in holding that Ex.A1 sale agreement dated 3.12.1981 is not true and valid? 15. Whether the lower Appellate Court is right in holding that the suit is barred by limitation, especially when time is not the essence of the contract? 16. 14. Whether the lower Appellate Court is right in holding that Ex.A1 sale agreement dated 3.12.1981 is not true and valid? 15. Whether the lower Appellate Court is right in holding that the suit is barred by limitation, especially when time is not the essence of the contract? 16. When the Plaintiff in OS.No.700/85 (appellant) proved possession of the suit property, is the lower Appellate Court right in holding that the Plaintiff did not come to Court with clean hands? 17. Whether the lower Appellate Court is right in holding that the Defendants 4 and 5/ Respondents 1 and 2 herein are in possession of a portion of the suit property? 18. Whether the lower Appellate Court is right in granting a decree for possession to Defendants 4 and 5/ Respondents 1 and 2 herein? 19. The learned counsel for the Appellant herein has submitted that the vendors Gangadaran, Lakshmiammal and Vedavalli, who were the tenants of the suit mentioned property, have filed an application under Section 9 of the said Act, which was allowed, directing them to deposit the amount into the court in OS.No.1062/75, which was also deposited within the time stipulated by the court and while so, even in the absence of any sale deed by the vendor of them, in their favour, still they are entitled to alienate the same and on that basis, they executed the sale agreement Ex.A1, dated 3.12.1981 in favour of the Appellant herein; that they have delivered possession on the very same day and thus, the Appellant is in possession of about 700 sq.ft. of lands, which form part of the property mentioned in the other suits; that the Trial Court, having verified the fact that the amount ordered in the application filed under Section 9 of the said Act was deposited, ought not to have rejected the claim of the Appellant on the sole ground that the sale deed was not executed in favour of his vendors; that the Appellant is in lawful possession; that even prior to sale deed 4.8.19886 in favour of Respondents 1 and 2, Ex.A1 dated 3.12.1981 in OS.No.700/85 (hereinafter referred to as the sale agreement dated 3.12.1981) was executed, but without considering the said fact, the courts below erroneously rejected the claim of the Appellant and prayed for setting aside the Judgement and Decree of the courts below. 20. 20. The learned counsel for the Respondents has submitted that the sale agreement dated 3.12.1981 does not confer any right to the Appellant herein; that in the absence of any sale deed executed in favour of the vendors of the Appellant herein, it is not open to them to execute the said sale agreement; that the averment that the possession of 700 sq.ft of land was delivered under the sale agreement is also false; that nowhere in the sale agreement dated 3.12.1981, delivery of possession is found mentioned; that the Respondents 1 and 2 purchased the suit property for a valid sale consideration under the sale deed dated 4.8.1986 and hence, they are entitled to the reliefs as sought for in both the suits filed by them viz. recovery of possession of about 50 sq.ft as well as permanent injunction against the Appellant herein; that the Appellant herein neither examined his vendors nor the scribe nor the attesting witnesses of the sale agreement dated 3.12.1981; that therefore, the sale agreement, dated 3.12.1981 is not a valid document and hence, it will not confer any right to the Appellant; that in the decree in OS.No.1062/75, about six persons were arrayed as the Defendants, who were said to have filed an application under Section 9 of the said Act; that even assuming that the said application was ordered and that they were permitted to deposit the amount, all the six persons are not parties in the sale agreement dated 3.12.1981; that in view of the fact of non joinder of necessary parties, the suit in OS.No.700/1985 filed by the Appellant is not valid in the eye of law and prayed for the dismissal of these Second Appeals. 21. This court carefully considered the arguments of the learned counsel on either side and also perused the material records placed. 22. The Appellant herein claimed his right under the sale agreement dated 3.12.1981. It is not in dispute that in OS.No.1062/75, altogether six tenants were arrayed as the Defendants, who have filed an application under Section 9 of the said Act, which was ordered as prayed for. Admittedly, no sale deed was executed in favour of the said six persons by their landlords. It is also not in dispute that all the said six persons have not executed the sale agreement dated 3.12.1981. Admittedly, no sale deed was executed in favour of the said six persons by their landlords. It is also not in dispute that all the said six persons have not executed the sale agreement dated 3.12.1981. Even in the said sale agreement, the delivery of possession to the Appellant was not found mentioned. The Appellant claimed that he is in possession of about 700 sq.ft of land, whereas the report and the plan of the Advocate Commissioner, Exs.C1 and C2 disclose that the Appellant is in occupation of about 15' X 14' and the evidence of the Respondents 1 and 2 disclosed the same. In view of the above said fact that the possession was not delivered even under the sale agreement dated 3.12.1981, besides that it is not a valid one, since all the necessary parties are not there and the said agreement dated 3.12.1981 was also not proved by the Appellant by examining the vendors, scribe and the attesting witnesses, this court is of the considered view that that the possession of the Appellant is not legal. Before the lower Appellate Court, the Appellant herein sought for permission to examine the vendor, who executed the sale agreement, dated 3.12.1981, as well as the attesting witnesses, which was rightly rejected on the ground that the Appellant did not explain as to why they were not examined before the Trial Court. 23. The first substantial question of law is concerned, admittedly no sale deed was executed by the landlord in favour of Gangadharan, Lakshmiammal and Vedavalli, however, the amount was deposited by them along with three other persons. It is not explained as to what is the contribution made by each member to the said deposit. It is needless to mention that the above said six persons are entitled to a share, of course, corresponding to the extent of their occupation. The right of the said three persons are not ascertained, hence, they are not competent to convey 700 feet or any extent, thus, the first substantial question of law is answered against the appellant. 24. It is needless to mention that the above said six persons are entitled to a share, of course, corresponding to the extent of their occupation. The right of the said three persons are not ascertained, hence, they are not competent to convey 700 feet or any extent, thus, the first substantial question of law is answered against the appellant. 24. In so far as the second question of law is concerned, the appellant has not examined the above said Gangadharan, Laxmiammal and Vedavalli or the attesting witnesses of the agreement dated 03.12.1981 and it is not valid, hence, the first appellate Court is right in holding that Ex.A1, sale agreement dated 03.12.1981 is not true and valid, thus, the second substantial question of law is also ordered against the appellant. 25. The third substantial question of law is relating to limitation, but the said issue did not arose on the pleadings, so it cannot be determined without there being any pleadings and evidence on that aspect. This question of law is answered accordingly. 26. The 4th substantial question of law is concerned, the respondents 1 and 2 sought for relief of possession admitting the possession of the appellant. As mentioned above, the possession of the appellant in a small extent is not lawful and therefore the fourth substantial question of law is also answered against the appellant. 27. The respondents 1 and 2 have filed the sale deed dated 04.08.1986 under which possession was also delivered to them. The evidence let in by them also disclose that they are in possession except the portion which is under the occupation of the appellant. As per the sale deed dated 04.08.1986, they are entitled to the entire extent, hence, they sought for recovery of possession of the portion which is under the occupation of the appellant. Considering the above said facts and the oral and documentary evidence, the courts below rightly granted the relief of possession sought for by the respondents 1 and 2, thus, the 5th and 6th substantial questions of law are also answered against the appellant. 28. In view of the above said discussions, this court is of the view that the Judgment and Decree of the courts below are perfectly valid. This court also do not find any infirmity or illegality in the findings of the lower Appellate Court, warranting interference by this court. 29. 28. In view of the above said discussions, this court is of the view that the Judgment and Decree of the courts below are perfectly valid. This court also do not find any infirmity or illegality in the findings of the lower Appellate Court, warranting interference by this court. 29. In the result, the Second Appeals fail and the same are dismissed, as devoid of merits. No costs. Consequently, the connected MPs are closed.