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2010 DIGILAW 2594 (MAD)

Gundumalli Hemavathy v. Srinibai (died)

2010-06-29

M.JAICHANDREN

body2010
Judgment :- 1. Both the second appeals, in S.A.Nos.510 and 512 of 2010, have been filed against the judgment and decree of the Subordinate Court, Poonamallee, dated 11.3.2010, made in A.S.No.67 of 2009, confirming the judgment and decree of the District Munsif Court, Poonamallee, dated 27.4.2005, made in O.S.No.1043 of 1988. 2. The defendants 4, 5 and 14 in the suit, in O.S.No.1043 of 1988, are the appellants in the second appeal, in S.A.No.510 of 2010. Defendant Nos.37 and 38 in the said suit are the appellants in the second appeal, in S.A.No.512 of 2010. 3. The suit had been filed by the plaintiffs praying for a judgment and decree declaring that the plaintiffs are the absolute owners of the suit schedule property, for a direction to the defendants and their men and others claiming through them to deliver vacant possession of the suit property, for a permanent injunction restraining the defendants and others from, in any way, interfering with the peaceful possession, enjoyment and occupation of the portions of the suit property in the occupation of the plaintiffs and for a permanent injunction restraining the defendants from alienating the schedule mentioned property or any portion thereon, to any person, and for costs. 4. The plaintiffs had claimed that the suit schedule property had, originally, belonged to V.B.Vinayaga Mudaliar, the husband of the first plaintiff and the father of the second and the third plaintiffs. The said property had been purchased by V.B.Vinayaga Mudaliar, by way of a registered sale deed, dated 9.12.1942, registered as Document No.1836/42, in the office of the Sub Registrar, Saidapet. The vendor of the first plaintiff’s husband is M.S.Srinivasan, who had in turn purchased the property from T.M.Srinivasa Pillai, by means of a registered sale deed, dated 31.10.1942, registered as Document No.1543/42, in the office of the Sub Registrar, Saidapet. T.M.Srinivasa Pillai had purchased the suit property by way of a sale deed, dated 25.7.1923. From the date of the purchase of the property V.B.Vinayaga Mudaliar has been in absolute possession and enjoyment of the schedule mentioned property. After the death of V.B.Vinayaga Mudaliar the plaintiffs have been in exclusive possession and enjoyment of the suit schedule property. A portion of the property had been cultivated by the plaintiffs and they have been paying the land revenue and the other dues. 5. After the death of V.B.Vinayaga Mudaliar the plaintiffs have been in exclusive possession and enjoyment of the suit schedule property. A portion of the property had been cultivated by the plaintiffs and they have been paying the land revenue and the other dues. 5. It had also been stated that during the year, 1983, the plaintiffs had come to know that there were some land acquisition proceedings in respect of the property concerned. A writ petition had been filed before the High Court of Judicature at Madras, in W.P.No.8200 of 1984, challenging the said proceedings. The writ petition had been allowed. While so, it was learnt by the plaintiffs that the defendants were taking active steps to sell the suit schedule property, situated in four survey numbers, with a total extent of 10.55 acres, to third parties, by misrepresenting that they are the owners of the property. In such circumstances, the plaintiffs had filed the suit, in O.S.No.1043 of 1988, on the file of the District Munsif Court, Poonamallee. 6. In the written statement filed on behalf of the respondents the claims and allegations made by the plaintiffs, in the plaint, had been denied. The defendants had stated that they are the owners of various portions of the suit schedule property, having purchased their respective shares for a valid consideration from the erstwhile owners of the property. The defendants had made many improvements in the property, including the constructions therein, by spending huge amounts of money. They have also planted a number of trees in the property. 7. It had also been stated that the defendants have obtained electricity connection to their property and they have been paying the property tax, house tax and other dues to the appropriate authorities. It had also been stated that the defendants have been in possession and enjoyment of their respective shares in the property in question and therefore, they have obtained prescriptive rights in the said property. It had also been stated that the defendants 1 to 3, along with certain other persons had entered into an illegal compromise with the plaintiffs in order to defeat the rights of the other defendants who had been impleaded in the suit, subsequently. In such circumstances, the suit filed by the plaintiffs is not maintainable in law and therefore, it is liable to be dismissed. 8. In such circumstances, the suit filed by the plaintiffs is not maintainable in law and therefore, it is liable to be dismissed. 8. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration: “1. Whether the plaintiffs are the absolute owners of the suit property? 2. Whether the plaintiffs are entitled to vacant possession of the suit property? 3. Whether the alleged purchase of a portion of the suit property made by the defendants four, five and fourteen under their respective sale deeds convey valid title to the respective defendants? 4. Whether the plaintiffs are entitled to permanent injunction as prayed for? 5. To what relief, the plaintiffs are entitled to?” 9. The second plaintiff had been examined as P.W.1. Exs.A-1 to A-18 were marked on the side of the plaintiffs. The fifth defendant had been examined as D.W.1. Exs.B-1 to B-3 had been marked on the side of the defendants. Exs.C-1 to C-6, the report of the advocate commissioner and the plans filed by the Advocate Commissioner had also been marked as court documents. 10. On a perusal of the records the trial Court had found that the defendants 1 to 3 had entered into a memo of compromise, along with some third parties, and thus, they had submitted themselves to the passing of a decree in favour of the plaintiffs upholding their title in respect of the suit property. The compromise memo had been marked as Ex.C-3. From the cross examination of D.W.1, the fifth defendant in the suit, it had been found that she had not been diligent to ascertain the facts regarding the real owner in respect of the property she had purchased. 11. The trial Court had also found that the defendants 37 and 38 had purchased their respective plots, on 10.12.1990 and 23.4.1996. The alleged sale of the plots had taken place during the pendency of the suit. Further, there was an order of interim injunction in favour of the plaintiffs at that time. Therefore, the alienation of the property concerned is null and void, as it is hit by Section 52 of the Transfer of Property Act, 1882, under the principle of lis pendens. 12. Further, there was an order of interim injunction in favour of the plaintiffs at that time. Therefore, the alienation of the property concerned is null and void, as it is hit by Section 52 of the Transfer of Property Act, 1882, under the principle of lis pendens. 12. The trial Court had also found that in spite of sufficient opportunities having been given, defendants D-37 and D-38 had not chosen to let in any evidence on their side. Further, they had not chosen to cross-examine the plaintiffs’ witness. It had also been noted that the plaintiffs had filed valid title documents to prove their title in respect of the suit schedule property. On a perusal of Exs.A-3 and A-4, it is seen that the father of the second and the third plaintiffs had purchased the suit property in the year, 1942, and that the plaintiffs have been in continuous possession and enjoyment of the property in question. In such circumstances, the trial Court had decreed the suit in favour of the plaintiffs. 13. Aggrieved by the judgment and decree of the trial Court, dated 27.4.2005, made in O.S.No.1043 of 1988, defendants 4, 5, 14, 37 and 38 had filed an appeal, in A.S.No.67 of 2009, on the file of the Subordinate Court, Poonamallee. 13. The First Appellate Court had framed the following points for consideration: 1) Whether the suit property had belonged to V.B.Vinayaga Mudaliar? 2) Whether the possession of the suit property by the defendants is legal? 15. The First Appellate Court had found, based on the available documents, that the suit property had belonged to V.B.Vinayaga Mudaliar. After his death the property had devolved on his wife, the first plaintiff in the suit. The fifth defendant, who had been examined during the trial, as D.W.1, had not denied the existence of the legal heirs of the plaintiff. From Ex.A-2, the First Appellate Court had found that the plaintiffs are the legal heirs of V.B.Vinayaga Mudaliar. 16. The First Appellate Court had also found that the defendants 4,5 and 14 had purchased the plots prior to the filing of the suit and defendants 37 and 38 had purchased their plots during the pendency of the suit and when there was an order of interim injunction in operation. Therefore, the purchase of the plots by the defendants 37 and 38, had been hit by the principles of lis pendens. Therefore, the purchase of the plots by the defendants 37 and 38, had been hit by the principles of lis pendens. Even though the first defendant had claimed that the property had been purchased by him for a valid consideration, no document had been filed to support his claim. Further, during his cross examination at the time of the trial in the suit, he had admitted that no legal opinion had been obtained. It had also been noted that the property had not been purchased after proper verification of the necessary documents. As such, the possession of the property by the fifth defendant is illegal, as it amounts to encroachment. Accordingly, the First Appellate Court had dismissed the appeal, confirming the judgment and decree of the trial Court, by its judgment and decree, dated 11.3.2010, made in A.S.No.67 of 2009. 17. Aggrieved by the judgment and decree of the First Appellate Court, dated 11.3.2010, two second appeals have been filed before this Court in S.A.Nos.510 and 512 of 2010. 18. The second appeal, in S.A.No.510 of 2010, has been filed by the defendants 4,5 and 14. S.A.No.512 of 2010, has been filed by the defendants 37 and 38. 19. In S.A.No.510 of 2010, the following questions have been raised by the appellants, as substantial questions of law: “1. Whether the respondents/plaintiffs 2 and 3 have made out any prima facie case for the relief sought by them. 2. Whether the courts below is right in relying upon the sham and nominal document i.e. the Compromise agreement, dated 5.7.1993, in which the appellants have not been made as party, and even at the time of the filing the suit? 3. Whether the Courts below is right in ignoring the land acquisition proceedings, in which it has sent a notice in the year 2005 to the occupants of the suit property as well as to the plaintiffs? 4. Whether the appellants Court below is right in ignoring the grounds raised against the findings of the trial Court which is within the ambit of laws?” 20. In S.A.No.512 of 2010, the following questions have been raised by the appellants, as substantial questions of law: “1. Whether the respondents/plaintiffs 2 and 3 have made out any prima facie case for the relief sought by them? 2. In S.A.No.512 of 2010, the following questions have been raised by the appellants, as substantial questions of law: “1. Whether the respondents/plaintiffs 2 and 3 have made out any prima facie case for the relief sought by them? 2. Whether the Courts are right in passing a judgment and decree in O.S.No.1043 of 1988 against this appellant/defendants 37 and 38 when the plaintiff have not sought for a proper relief to set aside the sale deed executed by the defendants 1 to 3 during the pendency of the suit? 3. Whether the Courts below are right in relying upon the sham and nominal document i.e. the compromise agreement, dated 5.7.1993, in which the appellants have not been made as party, and even at the time of filing the suit? 4. Whether the Courts below are right in ignoring the land acquisition proceedings, in which it has sent a notice in the year 2005 to the occupants of the suit property as well as to the plaintiffs? 5. Whether the Appellate Court below is right in ignoring the grounds raised against the findings of the trial Court which is within the ambit of laws?” 21. Various grounds have been raised by the appellants in the second appeals stating that both the Courts below had erred in not appreciating, properly, the evidence available on record, which are in favour of the appellants. It had also been stated that the Courts below had not noted the fact that the defendants 1 to 3 had entered into an illegal compromise with the plaintiffs in the suit, in O.S.No.1043 of 1988, without notice to the other defendants. Further, the Courts below had not taken note of the fact that the appellants had been in possession and enjoyment of different portions of the suit schedule property, for a long time and that they have put up constructions thereon and had also grown trees and are carrying on cultivation in a portion of the property. The findings of the Courts below are contrary to the report of the advocate commissioner, marked as Ex.C-5. The Courts below ought to have decreed the suit based on the compromise alleged to have been entered into between the plaintiffs and the defendants 1 to 3, without looking into the oral, as well as the documentary evidence adduced on behalf of the appellants in the second appeals. 22. The Courts below ought to have decreed the suit based on the compromise alleged to have been entered into between the plaintiffs and the defendants 1 to 3, without looking into the oral, as well as the documentary evidence adduced on behalf of the appellants in the second appeals. 22. The Courts below had failed to note that Ex.A-3, Deed of Conveyance, dated 9.12.1942, had not been proved by the plaintiffs. Even though the plaintiffs had claimed that a writ petition had been filed before the High Court of Judicature at Madras, in W.P.No.8200 of 1984, they had not chosen to produce the order of the High Court, dated 21.1.1988, by which the writ petition is said to have been allowed. The Courts below had not considered the fact that the entire property was under the control of the Tamil Nadu Housing Board and therefore, the plaintiffs cannot have any claim against the appellants, who were the defendants in the suit, in O.S.No.1043 of 1988. It had also been stated that the Courts below had erred in failing to note, from Exhibits A-1 and A2, that the suit land is categorized as “Natham” and therefore, it would belong to the Government. As such, the plaintiffs cannot claim any right in respect of the said land. 23. The learned counsel appearing on behalf of the appellants, in both the second appeals, had submitted that the suit filed by the plaintiffs, in O.S.No.1043 of 1988, have been dismissed by the Courts below for non joinder of necessary parties. Since, the suit property had belonged to the Government, as it had been classified as `Natham’ and that it was under the control of the Tamil Nadu Housing Board, pursuant to the land acquisition proceedings, at the time of the filing of the suit, the State Government, as well as the Tamil Nadu Housing Board, ought to have been made as parties to the suit. It had also been submitted that as the appellants had been in possession and enjoyment of the suit schedule property for a number of years, after having purchased the same and as they had put up constructions thereon, and have also been enjoying the property by cultivating crops and by growing trees, the suit filed by the plaintiffs, making false claims, cannot be maintained. The appellants had also shown that they are in possession of the various portions of the property in question by having obtained electricity service connection. Further, during the year, 1990, notices had been issued to the appellants by the Tamil Nadu Housing Board, asking the appellants to appear for a further enquiry before the Special Tahsildar, Land Acquisition, Tamil Nadu Housing Board Scheme, Tirumangalam. Further, pattas had been issued by the concerned Tahsildar, Ambattur. It had also been stated that the suit had been filed by the plaintiffs, originally, only against the first three defendants. Thereafter, the appellants had been added as parties to the suit. The compromise entered into between the plaintiffs, defendants 1 to 3 and some other persons, is collusive in nature. Further, the first defendant had died, on 20.8.2002. However, the judgment and decree had been passed by the trial Court, only on 27.4.2005. As such, the judgment and decree of the trial Court cannot be maintained. 24. Per contra the learned counsel appearing on behalf of the respondents had submitted that the appellants in the second appeal, in S.A.No.510 of 2010, have claimed that they are in possession of certain portions of suit schedule property, by way of alleged sale deeds, dated 17.2.1988, in respect of Plot Nos.50,51, 52, 53, 54, 57, 58, 59, 60 and 61 in Bhuvaneswari Nagar, Nerkundram Village. The sale deed, dated 21.3.1988, relates to Plot Nos.55 and 56 in the same area. 25. The appellants in the second appeal, in S.A.No.510 of 2010, have claimed that the said sale deeds have come into existence prior to the filing of the suit by the plaintiffs, in O.S.No.1043 of 1988, on 27.4.1988. The appellants in the second appeal, in S.A.No.512 of 2010, had purchased Plots Nos.254, 255 and 256, by a sale deed, dated 10.12.1990, and Plot No.193, by way of a sale deed, dated 23.4.1991. The alleged sale deeds have come into existence during the pendency of the suit, in O.S.No.1043 of 1988, on the file of the District Munsif Court, Poonamallee and that an order of interim injunction was in existence in favour of the plaintiffs. As such, the alleged sale would be covered by the principle of lis pendens and therefore, they would be illegal and void. 26. As such, the alleged sale would be covered by the principle of lis pendens and therefore, they would be illegal and void. 26. The learned counsel had also submitted that the appellants in the second appeals had not been in a position to show that the suit properties had been sold to them by persons, who had valid title in respect of the properties concerned. All the vendors of the defendants 4, 5, 14, 37 and 38 are the sons of Isaac, who was the first defendant in the suit, in O.S.No.1043 of 1988. The first defendant had entered into a compromise with the plaintiffs and some other persons and therefore, the transfer of the plots in question, thereafter, would be subject to the compromise memo, dated 5.7.1993. According to the memo of compromise, dated 5.7.1993, defendants 1 to 3 had submitted to the decree acknowledging the plaintiffs’ title in respect of the suit property. The appellants would not have a better title than the vendors of the property. Defendants 1 to 3, who were parties to the compromise memo, had sold the suit property in favour of the appellants. The defendants 1 to 3 in the suit had sold the suit property in favour of the defendants 4,5,14,37 and 38, either by themselves or through their children or by way of their power of attorney agents. As such the sale of the properties in favour of the appellants in the present second appeals are illegal, invalid and in violation of the order of the interim injunction passed by the District Munsif Court, in I.A.No.1208 of 1988, in O.S.No.1043 of 1988. 27. It had also been stated that the fifth defendant had filed a petition, in E.A.No.28 of 2007, in E.P.No.102 of 2005, in O.S.No.1043 of 1988, questioning the executability of the decree. The said petition had been dismissed by an order, dated 6.8.2008. The said order had become final, as it had not been challenged thereafter. The said facts had not been disclosed by the appellants before this Court. Further, the substantial questions of law raised by the appellants in the present second appeal had also been raised in the petition filed under Section 47 of the Civil Procedure Code, 1908. 28. The said order had become final, as it had not been challenged thereafter. The said facts had not been disclosed by the appellants before this Court. Further, the substantial questions of law raised by the appellants in the present second appeal had also been raised in the petition filed under Section 47 of the Civil Procedure Code, 1908. 28. The learned counsel appearing on behalf of the respondents in the second appeals had also submitted that the land acquisition proceedings, in respect of the suit property had been challenged by the plaintiff in the suit, in O.S.No.1043 of 1988, by way of a writ petition, in W.P.No.8200 of 1984, before this Court. The said writ petition had been allowed by an order of the High Court of Judicature at Madras, dated 21.1.1988, questioning the declaration made under Section 6 of the Land Acquisition Act, 1894. Thereafter, the State Government had dropped the acquisition proceedings in Nerkundram Village. No evidence had been let in on behalf of the appellants, with regard to the alleged land acquisition proceedings, in respect of the suit property. The appellants are not entitled to raise the issue of land acquisition at this belated stage. 29. The learned counsel appearing on behalf of the respondents had also stated that except the fifth defendant no other person had deposed in favour of the appellants during the trial of the suit, in O.S.No.1043 of 1988. The alleged sale deeds, said to have been executed in favour of the appellants, had not been filed before the trial Court. All the persons, who are said to have signed the alleged sale deeds, had signed the memo of compromise, dated 5.7.1993. In such circumstances, the burden was on the appellants to substantiate their claims. However, they had miserably failed to do so. As such, there is no error in the findings of the Courts below. 30. The learned counsel had relied on the following decisions in support of his contentions. 30.1. Sri Jagannath Mahaprabhu V. Pravat Chandra Chatterjee and others (AIR 1992 Orissa 47); “A transferee pendente lite to the extent he has acquired interest from the defendant is vitally interest in the litigation, whether the transfer is of the entire interest of the defendant; the latter having no more interest in the property may not properly defend the suit. He may collude with the plaintiff. He may collude with the plaintiff. Hence, though the plaintiff is under no obligation to make a lis pendens transferee a party; under Order 22, Rule 10 an alienee pendente lite may be joined as party. The plaintiff is not bound to make him a party. But the Court has discretion in the matter which must be judicially exercised and an alienee would ordinarily be joined as a party to enable him to protect his interests. Even if a lis pendens transferee is not a necessary party and the plaintiff can ignore the transfer even if he has notice thereof and a decree or order obtained by him would be binding on the lis pendens transferee, when a motion is made by the lis pendens transferee to be impleaded as a party, the Court may, in exercise of its discretion judicially, add him as a proper party to prevent multiplicity of suits.” 30.2. In Surjit Singh Vs. Harbans Singh, it had been held as follows: “In defiance of the restraint order, alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.” 30.3. In Dhanna Singh and others V. Baljinder Kaur and others (AIR 1997 Supreme Court 3720), it had been held as follows: “The undisputed fact is that in the plaint the plaintiff-respondent had already sought for a relief of injunction of alienation, yet the alienation came to be made. Apart from the doctrine of lis pendense under Section 52 of the T.P.Act, the subsequent purchaser does not get any right to lead to any evidence, as he stepped into the shoes of the first defendant, who had given up the right to lead evidence. In view of these circumstances, he does not get any right to lead any evidence” 30.4. In S.Mustaffa Vs. In view of these circumstances, he does not get any right to lead any evidence” 30.4. In S.Mustaffa Vs. Aabeeza Beebi alias and others, it had been held as follows: “Where a party to the suit does not appear in the witness-box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions” 30.5. In P.Chengaiah and others V. D.Chandra, it has been held as follows: “33. Here is a case where the respondent has played fraud upon the court by inviting a consent decree in C.S.No.1142 of 1992 to upset the restraint order the applications obtained as against her in C.S.No.1843 of 1994 and also to force the applicants to grope in the dark without there being any property at the fag end of the trial of the case. It will be a travesty of justice to direct the applicants to work out their remedy in C.S.No.128 of 2006 filed by them against the respondent praying to declare the sale deed dated 10.7.2003 executed by the respondent in favour of Dhakshayini, permitting the respondent to participate in the main suit in C.S.No.1843 of 1994. The confidence reposed by the public in the majesty of law will be shaken if the alienation made by the respondent pendente lite against the spirit of the restraint order is allowed to continue even for a minute. This Court will have to exercise its inherent jurisdiction under Section 151 of the Code of Civil Procedure to nullify the sale deed dated 10.7.2003 taking into account the admitted position and also the fact that transferee has no right to defend himself on the plea that he was a bona fide purchaser for consideration without notice. Only then, can the respondent be permitted to defend the suit in C.S.No.1142 of 1992……… 36. In the result, the sale deed dated 10.7.2003 executed by the respondent in favour of Dhakshayini, a nominee of Banu Priya is declared null and void exercising the inherent jurisdiction of this Court under Section 151 of the Code of Civil Procedure….” 30.6. In Narayanan Rajendran and another Vs. In the result, the sale deed dated 10.7.2003 executed by the respondent in favour of Dhakshayini, a nominee of Banu Priya is declared null and void exercising the inherent jurisdiction of this Court under Section 151 of the Code of Civil Procedure….” 30.6. In Narayanan Rajendran and another Vs. Lekshmy Sarojini and others, it had been held as follows: “The scope of interference by the High Court in second appeal under Section 100 CPC after 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law” 31. In view of the averments made on behalf of the appellants, as well as the respondents in the present second appeals and in view of the averments made by the learned counsels appearing on their behalf and on a perusal of the records available, this Court is of the considered view that the appellants have not shown sufficient cause or reason for this Court to interfere with the concurrent findings of the Courts below. The appellants have not been in a position to substantiate their claims that they have been in possession and enjoyment of the property in question, after having validly purchased the same from their vendors. 32. Even otherwise the alleged vendors could not have transferred a better title than what they had at the time of the sale of suit schedule property in favour of the appellants. The defendants 1 to 3 in the suit, in O.S.No.1043 of 1988, having subjected themselves to a compromise memo, dated 5.7.1993, recognizing the title of the plaintiffs in respect of the suit property they could not have validly transferred their interests in the property concerned, either through their legal heirs or through their power of attorney agents. 33. It is also seen that the appellants have made contradictory claims with regard to the suit property. While they had claimed that the plots said to be under their possession and enjoyment is part of poramboke lands belonging the Government, which had been acquired for the Tamil Nadu Housing Board Scheme, they are not entitled to validly claim that they had purchased the plots from defendants 1 to 3 or their legal heirs and their power of attorney agents. The appellants had not filed the sale deeds alleged to have been executed in their favour, in respect of the suit schedule property. Except the deposition of the fifth defendant no other evidence was available to substantiate the claim of the appellants. Further, no substantial questions of law arises for the consideration of this Court. In such circumstances, the second appeals stand dismissed, confirming the judgment and decree of the Courts below. No costs. Consequently, connected miscellaneous petitions are closed.