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2009 DIGILAW 966 (MAD)

Kumutha & Another v. Kandasamy

2009-04-03

G.RAJASURIA

body2009
Judgment Common Judgment: 1. The second appeal No.266 of 2008 is focused by Kumutha, the plaintiff in O.S.No.552 of 1995 and Second Appeal No.267 of 2007 is focused by the same Kumutha along with her husband Sivalingam, the defendants in O.S.No.92 of 1996, animadverting upon the judgments and decrees dated 29.09.2006 passed in A.S.Nos.68 and 67 of 2004 by the Subordinate Judge, Dharmapuri, confirming the judgments and decrees dated 06.08.2004 passed by the District Munsif Court at Harur, in O.S.No.552 of 1995 and O.S.No.92 of 1996 respectively. 2. In the S.A.No.266 of 2008 Kumutha alone is the appellant, whereas in S.A.No.267 of 2008 Kumutha and her husband Sivalingam are the appellants (hereinafter referred to as appellant for convenience sake) and Kandasamy is the first respondent in S.A.No.266 of 2008 and only respondent in S.A.No.267 of 2008 (herein after referred to as respondent). 3. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of these second appeals, would run thus: (i) The appellant/plaintiff, Kumutha filed the suit O.S.No.552 of 1995, seeking declaration and permanent injunction; the defendants entered appearance and D1/Kandasamy filed the written statement resisting the suit. (ii) The respondent/defendant, Kandasamy filed the suit O.S.No.92 of 1996 for declaration and possession of the suit property; the defendants therein entered appearance and filed the written statement resisting the suit. 4. The trial Court framed the relevant issues. During joint trial of both the sides, on Kumuthas side, P.Ws.1 to 3 were examined and Exs.A1 to A19 were marked (in O.S.No.552 of 1995). On the Kandasamys side, D.Ws.1 to 3 were examined and Exs.B1 to B12 were marked. Exs.C1 and C2 were marked as Court documents. 5. Ultimately the trial Court dismissed the suit O.S.No.552 of 1995 filed by the appellant/plaintiff - Kumutha and allowed the suit O.S.No.92 of 1996 filed by the respondent/Kandasamy, as against which First Appeals were filed by the appellant/Kumutha along with her husband, for nothing but to be dismissed by the appellate Court, confirming the judgment and decrees of the trial Court. Being disconcerted and aggrieved by the judgment and decrees of both the Courts below, these Second Appeals are focused on various grounds and also setting out some substantial questions of law. 6. Heard both sides. 7. Being disconcerted and aggrieved by the judgment and decrees of both the Courts below, these Second Appeals are focused on various grounds and also setting out some substantial questions of law. 6. Heard both sides. 7. A plain poring over and perusal of the relevant records including the typed set of papers and copies of the judgment and decrees of both the Courts below would display and demonstrate that Kumutha, the second appellant/plaintiff filed O.S.No.552 of 1995 for declaration and permanent injunction on the strength of Ex.A1, the sale deed dated 012. 1994 relating to the following suit property: Tamil Whereas, Kandasamy, R1/D1 in S.A.No.766 of 2008 filed the suit O.S.No.92 of 1996 as against the said Kumutha and one other person virtually based on Exs.B1 and B8 seeking declaration of title for recovery of possession in respect of the following extent of property: Tamil 8. The learned Senior Counsel for the appellant would advance his argument to the effect that both the Courts below committed serious error in simply ignoring the proceedings in REP No.20 of 1985 and the related auction proceedings as per which Natesa Gounder, the vendor in Exs.A1 and B8 acquired title in respect of the entire extent of 1 acre 44 cents of land in S.No.127/1 in Chinna Koundampatti Village. He sold on 012. 1994 an extent of 72 cents on the western portion of the said larger extent of land as per Ex.A1 in favour of Kumutha/appellant herein and on the same day, the said Natesa Gounder sold in favour of Kandasamy/respondent as per Ex.B8 the remaining extent of 72 cents and in such a case, the respondent/Kandasamy had no right to claim any portion of the property covered by Ex.A1 and in fact, the area claimed in O.S.No.92 of 1996 filed by the plaintiff is covered by Ex.A1 and both the Courts below failed to take into account the very admission of Kandasamy about the proceedings in R.E.P. and also the fact that the claim petition filed by him, based on Ex.B1 the sale deed in his favour, in respect of half portion in the larger extent of 1 acre 44 cents having been dismissed. 9. 9. Whereas, the learned counsel for the respondent/ Kandasamy would develop his argument that both the Courts below correctly held that Natesa Gounder had only 72 cents of land in S.No.127/1, which was sold as per Ex.B8 the registered sale deed dated 012. 1994. Whereas, Ex.A1 alleged to have emerged on 012. 1994, was registered belatedly, so to say, later than Ex.B8. The remaining extent of 72 cents in S.No.127/1 was already purchased by Kandasamy as per Ex.B1 dated 17.07.1972 and accordingly he prayed for dismissal of both the Second Appeals. 10. After hearing both sides for some time, the following substantial questions of law have been framed: (i) Whether both the Courts below were justified in placing reliance on Ex.B1 dated 17.07.1972 and Ex.B8 dated 012. 1994 in deciding the matter in favour of the defendants? Or (ii) Whether both the Courts below committed error in ignoring the REP No.20 of 1985 proceedings and the claim petition filed by the defendants and dismissed as admitted by them before the trial Court. 11. The available unassailable and indubitable facts and circumstances ex facie and prima facie, would make it clear that the respondent/ Kandasamy has tried his level best to create a cloud in the title of Kumutha/appellant as though already Kandasamy purchased as per Ex.B1, half of the said entire extent of 1 acre 44 cents of land and what remained was only 72 cents in the larger extent of 1 acre 44 cents of land and that extent only was acquired by Natesa Gounder, who in turn sold that also in favour of Kandasamy Gounder as per Ex.B8. Put simply, the contention of Kandasamy Gounder ignores in toto the factum of the proceedings in REP, despite he having admitted during trial supinely and categorically the auction proceedings. 12. The learned Senior Counsel for the plaintiff would appropriately and appositely, correctly and convincingly draw the attention of this Court to the deposition of D.W.1 during cross examination and hence it is extracted hereunder for ready reference. 13. A bare perusal of the above excerpt from the deposition of Kandasamy would unambiguously and unequivocally highlight the fact that Natesa Gounder in the Court auction sale purchased the entire extent of 1 acre 44 cents in S.No.127/1. 13. A bare perusal of the above excerpt from the deposition of Kandasamy would unambiguously and unequivocally highlight the fact that Natesa Gounder in the Court auction sale purchased the entire extent of 1 acre 44 cents in S.No.127/1. As against the same, the said Kandasamy/respondent herein preferred claim petition based on Ex.B1 and it was also dismissed and in such a case, absolutely there is no rhyme or reason on the part of the Kandasamy/the respondent in contending that as per Ex.B1 already in the said larger extent of 1 acre 44 cents, he had acquired 72 cents and there was only remaining 72 cents which he purchased under Ex.B8 and thereby he became the owner of the entire extent of 1 acre 44 cents of land. The admission about the previous proceedings and the relevant facts are admissible in evidence and there could be no doubt about it. The decision of this Court reported in 1999(I) CTC 36 [Subbammal vs. Masanamuthu Thevar and other] has been cited on the appellants side. An excerpt from it would run thus: Tamil "34. It is to be pointed out that Section 31 of the Evidence Act provides that admission is not conclusive proof of the matter admitted but they may operate as estopped. It is well accepted that admissions is the best evidence. Admission in the pleadings by a party in evidence conclusive. It is to be pointed out that the defendants 1 and 2 or that matter D.W.1 had not admitted the title to the suit property but what they have admitted is the execution of a sale agreement to sell and affixing of their signatures and the concluded contact as well as the stipulations therein. Even before the filing of the suit and in the reply notice also the defendants 1 and 2 have admitted the concluded sale agreement. The decisions relied upon by the learned counsel for the appellant, in my considered view will have no application to the facts of the case as the admission is not with respect to the identity or interest which they have already conveyed in favour of the third defendant as they ceased to be the owner thereof. But the admission is with respect to the conclusion of the sale agreement, which the defendants 1 and 2 being parties to the agreement Ex.A.1 have admitted. But the admission is with respect to the conclusion of the sale agreement, which the defendants 1 and 2 being parties to the agreement Ex.A.1 have admitted. An admission of a party to an attested document of its execution is sufficient to prove its execution as against the executant. The admission in the present case relates to the person who actually executed the sale agreement and it is in the pleadings as well as in the evidence in the present case. The admission of execution by defendants 1 and 2 is sufficient to prove against the said executant. In the circumstances, this Court holds on the admission of defendants 1 and 2 Ex.A.1 could be very much be relied upon and the plaintiff is entitled to enforce the agreement. 38. Mr. K. Srinivasan relied upon the passage in the text book on Treaties of Specific Performance of Contracts by FRY (Sixth Edition). In the said book at page 247 it has been held thus:- 510.... "As seen as the fact is established of the final mutual assent of the parties to certain terms, and those terms are evidenced by any writing signed by the party to be charged or his agent lawfully authorised, there exist all the materials, which this Court requires, to make a legally binding contract. 515....The statute requiring that the agreement, or the memorandum or note thereof, shall be signed by the party to be charged therewith, or his agent, and not requiring that it shall be signed by both parties to the contract, it has been held, both in courts of Equity and also in Common Law Courts, that a signature by the party against whom the contract is sought to be enforced is sufficient." But both the Courts below without going the whole log in reading meticulously the depositions of the parties concerned, misdirected themselves by resorting to perverse reasoning as though for Natesa Gounder only 72 cents were available and it was purchased by Kandasamy from him. 14. 14. The learned counsel for the Kandasamy/respondent would invite the attention of this Court to the Kumutha/the appellants plaint in O.S.No.552 of 1995 and develop his argument that there is admission in the plaint by the appellant herself in favour of Kandasamy, which runs as under: Tamil No way the said excerpt would indicate any admission by Kumutha in favour of Kandasamy, as the above narration would clearly indicate that Kandasamy tried to purchase the property covered under Ex.A1, but he failed to get it and thereby he developed enmity. 15. At this juncture, it is just and necessary to refer to the recitals in Ex.A1 and Ex.B8. In Ex.B8, the sale deed dated 012. 1994, there is clear narration detailing and delineating the fact that Natesa Gounder in R.E.P. No.20 of 1985 in O.S.No.157 of 1977 purchased the suit property. An excerpt from it would run thus: Tamil The description of the suit property in Ex.B8 also is reproduced hereunder for ready reference: Tamil 16. A plain reading of the above excerpt from Ex.B8 including the entire Ex.B8 would clearly indicate and convey that Kandasamy is the purchaser of the said property referred in Ex.A8 measuring 72 cents of land, out of the entire extent of 1 acre 44 cents of land after the other 72 cents which was sold by Natesa Gounder in favour of Kumadha as per Ex.A1. Kandasamy clearly admitted that Natesa Gounder happened to be the absolute owner of the extent of 1.44 acres and out of that Kandasamy purchased the eastern half measuring 72 cents. No purchaser having head over shoulder would ever venture to accept the sale deed Ex.B8 with such recitals referred to supra if he happened to be the owner of the remaining extent of 72 cents already in the said larger extent. 17. By way of adding fuel to the fire and by way of worsening the case of Kandasamy, in Ex.B8, it is also found recited that the area purchased under Ex.B8, is situated to the east of Kumutha/appellants land. In Ex.A1 also the said Natesa Gounder while executing the sale in favour of Kumutha/appellant recited about the said REP proceedings and also stated that he was selling 72 cents of land, viz., the western half of said extent of 1.44 acres in S.No.127/1. 18. In Ex.A1 also the said Natesa Gounder while executing the sale in favour of Kumutha/appellant recited about the said REP proceedings and also stated that he was selling 72 cents of land, viz., the western half of said extent of 1.44 acres in S.No.127/1. 18. It is therefore pellucidly and palpably clear that both the Courts below wrongly analysed the evidence and their understanding of the case was nothing short of perversity warranting interference by this Court. 19. The contention on the side of Kandasamy/respondent that Ex.A1 dated 012. 1994 was registered belatedly, was considered as an important fact by the First Appellate Court and simply misdirected itself. Here there is no contradiction between Ex.A1 and Ex.B8, as Ex.A1 is relating to the western half and Ex.B8 to the eastern half of the said entire extent of 1.44 acres. As such, mere belated registration of Ex.A1 is having no adverse effect at all to the case of the appellant. Further more the Ex.A1 is anterior to Ex.B8 as the recitals and the description of the property in Ex.B8 would reveal the same. 20. The learned Senior Counsel cited the following decision of the Honble Apex Court: 2009-1-L.W.1 [State Bank of India and others v. S.N. Goyal], and developed his argument that when there is perversity in the findings of both the Courts below, the High Court could interfere in the Second Appeal as per Section 100 CPC. I would also like to refer to the other decisions of the Honble Apex Court: (i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL. (ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. A perusal of all these decisions would clearly indicate and convey that when there is perversity in appreciating the evidence on the part of the Courts below, Section 100 CPC would be attracted and the High Court is bound to interfere with the judgments of both the Courts below. 21. Accordingly, the substantial question of law No.1 is decided to the effect that both the Courts below committed serious error in giving weightage to Ex.B1 in favour of Kandasamy and misconstrued Ex.B8 and correspondingly Ex.A1 also. 22. 21. Accordingly, the substantial question of law No.1 is decided to the effect that both the Courts below committed serious error in giving weightage to Ex.B1 in favour of Kandasamy and misconstrued Ex.B8 and correspondingly Ex.A1 also. 22. In view of the my discussion supra, the substantial question of law No.2 is decided to the effect that by ignoring to consider the admission made by Kandasamy in his deposition, both the Courts below ignored the significance of the REP proceedings and also failed to take note of the importance of the recitals in Ex.A1 and Ex.B8; wherefore, the findings of both the Courts below were nothing, but perverse, warranting interference by this Court. 23. The net result is that the judgments and decrees of both the Courts below are set aside and the O.S.No.92 of 1996 filed by Kandasamy shall stand dismissed and the O.S.No.522 of 1995 filed by Kumutha shall stand decreed as prayed for. Accordingly, the decree shall follow. In the result the Second Appeals are allowed. No costs. Consequently, connected miscellaneous petitions are closed.