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2010 DIGILAW 4132 (MAD)

Kalavathy v. G. Radhakrishnan

2010-09-14

R.SUBBIAH

body2010
Judgment :- 1. This Second Appeal has been filed at the instance of the legal heir of the deceased sole Defendant, challenging the decree and judgment dated 30.9.2004 passed by the learned Additional District Judge, Fast Tract Court No.III. Chengalpet at Poonamalle, in A.S. No.73 of 2000, whereby the decree and judgment dated 25.7.2000 passed by the learned District Munisif-cum-Judicial Magistrate, Ambattur, in O.S. No.464 of 1996, were affirmed. 2. The 1st Respondent herein instituted the Suit in O.S. No.4 64 of 1996 against one Padmavathy Ammal and the 2nd Respondent herein as the Defendants, for the following reliefs: (a) For a declaration of the Plaintiff’s title to the Suit mentioned ‘B’ schedule property and for vacant possession of the ‘B’ schedule property from the 1st Defendant after removing the superstructure put up by the 1st Defendant: (b) For a mandatory injunction directing the 2nd Defendant to disconnect and remove the power connection given to the 1st Defendant; and (c) For costs of the Suit to be paid by the Defendants. 3. The case of the Plaintiff, in brief, was that one Ranganayagi Ammal, wife of Krishnasamy Reddiar, has purchased 3,445 sq.ft. out of 0.67 cents from one Balaraman, the power agent of one Kistappa Reddiar and one Kuppuswamy Reddiar, under a registered Sale Deed dated 05.12.1966, which is described as ‘A’ schedule. Ever since the date of purchase, the said Ranganayagi Ammal had been in possession and enjoyment of the same in her own right. Thereafter, Ranganayagi Ammal had settled the eastern moiety of the ‘A’ schedule property in favour of one Kesavalu Reddiar under a registered Settlement Deed date 2.6.1970, which is described as the ‘B’ schedule property. Subsequently, the said Kesavalu Reddiar had conveyed the ‘B’ schedule property to the Plaintiff under a Sale Deed dated 11.12.1985 and from the date, the Plaintiff had been in possession and enjoyment of the ‘B’ schedule property in his own right. Except the Plaintiff, no one has any right, interest or title to the ‘B’ schedule property. The said Ranganayagi Ammal had also settled the western moiety of the ‘A’ schedule property in favour of one Parthasarathy Reddiar ‘under a registered Settlement Deed dated 2.6.1970 and placed him in possession and enjoyment of the same. Except the Plaintiff, no one has any right, interest or title to the ‘B’ schedule property. The said Ranganayagi Ammal had also settled the western moiety of the ‘A’ schedule property in favour of one Parthasarathy Reddiar ‘under a registered Settlement Deed dated 2.6.1970 and placed him in possession and enjoyment of the same. Thereafter, the said Parathasarathy Reddiar had conveyed the same to one Subramaniam Mudaliar under a registered Sale Deed dated 14.4.1972, who in turn , sold the same to one Deivasigamani under a registered Sale Deed dated 19.12.1975. The Plaintiff was residing away from the suit property at Virugambakkam and used to visit occasionally the suit property. While so, when the Plaintiff had visited the property in the 1st week of March, 1991, to his shock, he found that the 1st Defendant had trespassed into the ‘B’ schedule property and had put up a flimsy superstructure measuring 10’ x 10’ with Mangalore tiles, taking advantage of the fact that the Plaintiff’s residence was far off from the suit property. Hence, the Plaintiff sent a legal notice to the 1st Defendant to vacate and deliver vacant possession of the suit property, after removing the superstructure put up by her; for which, she sent a reply with false allegations. Moreover, in spice of the objection sent by the Plaintiff on 19.3.1991 to the 2nd Defendant not to give any power connection to the 1st Defendant’s superstructure, the 2nd Defendants did not do so. Hence, the Plaintiff was constrained to file the Suit for the said reliefs. 4. The 1st Defendant resisted the Suit and filed a Written Statement stating that she had purchased an extent of 1484 sq.ft. under a Sale Deed dated 5.9.1990 in S. No. 73/2 vide Document No.7853 of 1990 of S.R.O., Ambattur. From that date, she was in absolute possession and enjoyment of the same and in which, she had also constructed a house by incurring an expenditure of Rs. 1.5 lakhs and the house was assessed to the property tax and patta was also given for the same. Since she had purchased the property after verifying the relevant documents and put up the construction as a bona fide transferee for the value of the immovable property, she was entitled to the benefits under Section 51 of the Transfer of Property Act. Since she had purchased the property after verifying the relevant documents and put up the construction as a bona fide transferee for the value of the immovable property, she was entitled to the benefits under Section 51 of the Transfer of Property Act. The Plaintiff had knowledge about the construction done by her and if he had objected the construction at the first instance, the damages occurred to both sides could have been avoided. But the Plaintiff, knowing full well about the construction in the suit property, sent a frivolous notice after completing the construction. Hence, the Suit was liable to be dismissed. 5. On the basis of the above said pleadings, the Trial Court framed five issues and on the side of the Plaintiff, he examined himself as P.W.I besides examining one Kesavan as P.W.2 and marked Exs.A-1 to A-10 and on the side of the Defendants, the 1st Defendant examined himself as D.W.I and marked Exs.B-1 to B-22. The Trial Court, on a consideration of the entire evidence on record, both oral and documentary, by a judgment dated 25.7.2000, decreed the Suit as prayed for with a direction to the 1st Defendant to hand over the vacant possession of the ‘B’ schedule property within two months from that date. As against the said judgment of the Trial Court, the 1st Defendant filed an Appeal in A.S. No.73 of 2000 before the Additional District Court (Fast Tract Court No.III), Chengalpattu at Poonamalee. Pending Appeal, the sole 1st Defendant died and the legal representatives were impleaded as the 2nd Appellant and Respondents 3 to 5. The Lower Appellate Court also dismissed the Appeal and confirmed the decree and judgment of the Trial Court. Feeling aggrieved by the judgment of the Appellate Court, Kalavathy, the legal heir of the deceased 1st Defendant has filed the present Second Appeal, showing the other legal heirs of the deceased 1st Defendant as Respondents 3 to 5. 6. At the time of admission of the Second Appeal, this Court framed the following substantial questions of law for consideration: (1) Whether the Appellant is entitled to claim the value of improvements under Section 51 of the Transfer of Property Act? (2) Whether the Courts below are right in not adverting to the Commissioner’s report and plan which categorically state that the ‘B’ schedule of the Plaint is different from his plan in directions? (2) Whether the Courts below are right in not adverting to the Commissioner’s report and plan which categorically state that the ‘B’ schedule of the Plaint is different from his plan in directions? (3) Whether the Courts below are right in decreeing the Suit as prayed for with a mandatory injunction to the 2nd Defendant to disconnect the electricity supply to the ‘B’ schedule property? 7. Learned Counsel for the Appellant (the legal heir of the deceased 1st Defendant) submitted that it was the case of the 1st Respondent that he had purchased the Suit ‘A’ schedule property from one Kesavalu Reddiar under Ex.A-3. The ‘B’ schedule property was the eastern part of the ‘A’ schedule property. Now the dispute is only with regard to the ‘B’ schedule property measuring to an extent of 1722-1/2 sq.ft. Learned Counsel further submitted that the ‘B’ schedule property was purchased by the 1st Defendant under the Sale Deed dated 5.9.1990 under Ex.B-1 from one Anandammal, Ramachandran and others, the legal representatives of one Balaraman, who was the power agent of the original owners, viz., Kistappa Reddiar and Kuppusamy Reddiar. After purchasing the ‘B’ schedule property in the year 1990, the 1st Defendant had started the construction. In the said situation, in March, 1991 i.e. a few months after starting the construction, the 1st Respondent herein had sent a notice dated 18.3.1991 marked as Ex.A-8, to the Electricity Board requesting them not to give service connection to her, but no such notice was issued to the 1st Defendant. In this regard, the learned Counsel submitted that when it was the case of the 1st Respondent that when he had purchased the ‘B’ schedule property under Ex.A-3, he ought to have put the Appellant on notice not to proceed with the construction in the ‘B’ schedule property. Actually, the first notice was issued by the 1st Respondent/Plaintiff to the 2nd Defendant only on 17.8.1991 i.e. after completing the construction in the ‘B’ schedule property. In this regard, the learned Counsel further submitted that before purchasing the property by the 1st Defendant under the registered Sale Deed marked as Ex.B-1, she had verified the Encumbrance Certificate and found that no encumbrance was created over the property. In this regard, the learned Counsel further submitted that before purchasing the property by the 1st Defendant under the registered Sale Deed marked as Ex.B-1, she had verified the Encumbrance Certificate and found that no encumbrance was created over the property. Now, the 1st Respondent, after having allowed the 1st Defendant to put up the construction, is estopped from saying that the 1st Defendant had purchased the property from the defective tile holder. Had the Appellant been put on notice, she would not have proceeded with the construction. Since she had made improvements in the ‘B’ schedule property as a bona fide holder under the defective title, she was entitled to the benefits as per Section 51 of the Transfer of Property Act. Learned Counsel has relied on the judgment reported in Muthuswamai Gounder v. Annamalai and Others, 1981 (1) MLJ 258 , in support of his contentions by stating that the concurrent findings have to be set aside. 8. Per contra, the learned Counsel for the 1st Respondent/Plaintiff would submit that Ranganayagi Ammal was the owner of the suit property, who had purchased the same from Balaraman, the power agent of Kishtappa Reddiar and Kuppusamy Reddiar under the Sale Deed-Ex.A-1 dated 5.12.1966. Subsequently the said Ranganayagi Ammal executed two settlement deeds dated 2.6.1970 in favour of Kesavalu Reddiar Parthasarathy Reddiar, marked as Exs.A-2 and A-6. The property settled in favour of Kesavalu Reddiar was described as the ‘B’ schedule, which was purchased by the 1st Respondent from the said Kesavalu Reddiar under Ex.A-3 dated 11.12.1985, measuring to an extent of 1722 sq.ft. Similarly, the said Parthasarathy Reddiar sold his share to one Subramaniam Mudaliar on 14.4.1972, who, in turn, sold it to Deivasigamani on 19.2.1975. Therefore, the ‘B’ schedule property was purchased by the 1st Respondent from the valid title holders. In the said situation, in 1991, when the Plaintiff visited the ‘B’ schedule property, he found that the 1st Defendant had trespassed into a portion of the ‘B’ schedule property and had raised a flimsy superstructure measuring to an extent of 10’ x 10’ with Mangalore tiles. Hence, the 1st Respondent sent a letter to the Electricity Board not to effect the power connection to the said superstructure. Hence, the 1st Respondent sent a letter to the Electricity Board not to effect the power connection to the said superstructure. Though the 1st Defendant claimed that she had purchased the property from the legal heirs of Balaraman (the Power Agent of original owners Kistappa Reddiar and Kuppusamy Reddiar) under Ex.B-1 dated 5.9.1990, it does not disclose under what authority the legal heirs have sold the property inasmuch as the said Balaraman did not have any right to the suit property. Therefore, the question of getting benefits under Section 51 of the Transfer of Property Act does not arise, because the only person, who is entitle to get the benefit under Section 51 should be a bona fide transferee for value of the immovable property; believing in good faith that he is entitled to make improvements on it; and the person should not have suffered from knowledge that he is holding the property under a defective title. But, all these ingredients are totally absent in this case. Under such circumstances, the 1st Defendant is not entitled to get the benefits under Section 51 of the transfer of Property Act. In support of his contentions, the learned Counsel has relied upon the following decisions: Daya Ram v. Shyam Sundari, AIR 1956 SC 1049; Maddanappa (Deceased), rep. by His L.Rs. v. Chandramma and others, AIR 1965 SC 1812 ; Arjun Lal Gupta v. Mriganka Mohan Sur and Others, 1974 (2) SCC 586 ; Ponnia Pillai v. Pannai Minor Sivanupandia Thevar Thro’ His Brother and Guardian, 1947 (1) MLJ9; and Krishnan v. Backian and Another, 2008 (1) CTC 446 (sc) : 2007 (12) SCC 190 . 9. Heard the learned Counsel for the parties and perused the materials available on record. 10. Now, it is the contention of the Appellant that the deceased Defendant had purchased the ‘B’ schedule property by virtue of a Sale Deed dated 5.9.1990 marked as Ex.B-1. 9. Heard the learned Counsel for the parties and perused the materials available on record. 10. Now, it is the contention of the Appellant that the deceased Defendant had purchased the ‘B’ schedule property by virtue of a Sale Deed dated 5.9.1990 marked as Ex.B-1. It was the case of the deceased Defendant before the Trial Court that before purchasing the said property, the Defendant had verified the relevant documents and found that no encumbrance was created in the ‘B’ schedule property and hence, she was the bona fide purchaser and immediately after purchasing the ‘B’ schedule property, she had started construction and only in March, 1991, the 1st Respondent/Plaintiff sent a notice to the 2nd Respondent-Electricity Board on 18.3.1991, marked as Ex.A-8, requesting them not to effect service connection to the Defendant’s superstructure, but no notice was sent to the Defendant. The learned Counsel for the Appellant submitted that this conduct of the 1st Respondent would show that he had allowed the deceased Defendant to proceed with the construction in the ‘B’ schedule property and only after completing the construction, on 17.8.1991 i.e. after a year from the date of purchase of the ‘B’ schedule property by the Defendant, a notice was sent by the 1st Respondent to the deceased Defendant. Therefore, under Section 51 of the Transfer of Property Act, as the legal heir of the deceased Defendant, the Appellant is entitled to the benefit under Section 51 of the Transfer of Property Act since the deceased Defendant had purchased the property form a defective title holder believing in good faith that she is entitled to make improvement on it. In support of his contention, the learned Counsel for the Appellant has also relied upon a decision reported in Muthuswamai Gounder v. Annamalai and Others, 1981 (1) MLJ 258 . Per contra, it is the submission of the 1st Respondent/Plaintiff that only if the Defendant is a bona fide purchaser, then only the Appellant can claim the benefits under Section 51 of the said Act. In view of the submissions and rival submission made by the learned Counsel on either side, now it is necessary to see whether the deceased Defendant is the bona fide purchaser of the ‘B’ schedule property from the defective title holder or not? 11. Obviously, the subject property originally belonged to one Kistappa Reddiar and Kuppuswamy Reddiar. In view of the submissions and rival submission made by the learned Counsel on either side, now it is necessary to see whether the deceased Defendant is the bona fide purchaser of the ‘B’ schedule property from the defective title holder or not? 11. Obviously, the subject property originally belonged to one Kistappa Reddiar and Kuppuswamy Reddiar. One Ranganayagi Ammal had purchased 345 sq.ft. out of 0.67 cents from one Balaram, the power agent of the said original owners, under the Sale Deed-Ex.A-1 dated 5.12.1966, which was described as ‘A’ schedule in the plaint. Thereafter, the said Ranganayaki Ammal had settled the eastern moiety of the ‘A’ schedule property in favour of one Kesavalu Reddiar under a registered Settlement Deed dated 2.6.1970, which is described as the ‘B’ schedule property. Subsequently, the said Kesavulu Reddiar had conveyed the property under the Sale Deed-Ex.A-3 dated 11.12.1985 to the Plaintiff. Therefore, the 1st Respondent traced his title from Ranganayaki Ammal, whereas, it is the case of the Appellant that the Defendant had purchased the ‘B’ schedule property from the legal heirs of Balaraman, who is the power agent of the original owners. But absolutely, no evidence was available as to under what authority, the defendant had purchased the ‘B’ schedule property from the legal heirs of the Power Agent. This aspect would show that without verifying the title documents, the Defendant had purchased the property from the defective title holder, who had not title to the property. Therefore, the Defendant cannot be constructed as a bona fide transferee for value of the immovable property. 12. It is the submission of the learned Counsel for the 1st Respondent that to claim benefits under Section 51 of the Transfer of Property Act, the conditions under the said Section should be satisfied. At this stage, it is relevant to extract Section 51, as follows: “51. Improvements made by bona fide holders under defective titles. 12. It is the submission of the learned Counsel for the 1st Respondent that to claim benefits under Section 51 of the Transfer of Property Act, the conditions under the said Section should be satisfied. At this stage, it is relevant to extract Section 51, as follows: “51. Improvements made by bona fide holders under defective titles. - When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secure to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has plated or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them”. But, absolutely, such conditions were not satisfied in this case. In this regard, it would be relevant to extract some paragraphs in the decisions cited by the learned Counsel for the 1st Respondent. In Daya Ram v. Shyam Sundari AIR 1965 SC 1049 , it has been held as follows: “8. Learned Counsel for the Appellants, though he referred to the Partition Act, could not obviously rely upon it because the procedure adopted by the learned Trial Judge was not one which was sanctioned by that enactment viz. sale of the entire property which is the subject of partition. Learned Counsel for the Appellants, though he referred to the Partition Act, could not obviously rely upon it because the procedure adopted by the learned Trial Judge was not one which was sanctioned by that enactment viz. sale of the entire property which is the subject of partition. He, therefore, urged before us that at the stage when Mata Din entered into the agreement with the Improvement Trust the position was that the interest of the co-shares was in jeopardy and they ran the risk of losing the entire property by the same being acquired under the Land Acquisition Act and that by his act in entering into the agreement the co-owners had been saved the property now in dispute and that, in the circumstances, the agreement was one which was entered into bona fide and that he could claim an equity based on the constructions erected in pursuance thereof. We do not see any substance in this argument. If the property had been acquired under the Land Acquisition Act compensation at the market value with the solatium would have been provided and Shyam Sundari would have been entitled to a third share in that compensation. There is, therefore, no question of Mata Din salvaging something for the co-owners; and on that ground being entitled to plead an equity based on such an act. Nor is there any substance in the argument derived from the analogy of improvements ejected by co-owners or co-shares, for admittedly Mata Din dealt with the property as full owner denying the claims of Shyam Sundari to a third share in the property. Virtually it would be seen that the equity pleaded is based on the principle underlying Section 51 of the Transfer of Property Act, and as we have seen, the argument calling in aid this provision of law had been urged before the High court in the Appeal against the decree in Suit No 20 of 1922 and had been rejected for the reason we have extracted earlier, and these reasons clearly negative all bona fides in the construction of these buildings. In these circumstances, we consider that the learned Judges were justified in treating the acts of Mata din as those of a trespassed who, with notice of the claim of the true owner, had effected constructions on the property. In these circumstances, we consider that the learned Judges were justified in treating the acts of Mata din as those of a trespassed who, with notice of the claim of the true owner, had effected constructions on the property. It is obvious that in those circumstances he could claim no special equity based upon his having bona fide put common property to use and effect improvements on it. We consider, therefore, that the decree passed by the High Court is not open to objection and the Appeal has accordingly to fail”. 13. In Maddanappa (Deceased), rep. by His L.Rs. v. chandramma and Others, AIR 1965 SC 1812 , it has been as follows: “14 finally on this aspect of the case the learned Counsel referred to the observations of Lord Granworth in Ramsden v. Dyson. LRI HL App 129 (140), which are as follows: “If a stranger begins to build on my land supposing it to be his won and I (the real owner) perceiving his mistake, abstain from setting him right, and leave aim to preserve in his error, a Court of equity will not allow me afterwards to assert my title to the land, on which he has expended money on the supposition, that the land was his own. It considers that when I saw the mistake in which he had fallen, it was my duty to be active and to state his adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion in order afterwards to profit by the mistake which I might have prevented.” The Doctrine of Acquiescence cannot afford any help to the Appellants for the simple reason that Maddanappa who knew the true state of affairs could not say that any mistaken belief was caused in his mind by reason of what the First Defendant said or did. According to the learned Counsel, even if the First Defendant’s claim to the half share in the suit property cannot be denied to her she must at least be made to pay for the improvements effected by Maddanappa, according to her proportionate share in the suit property cannot be denied to her she must at least be made to pay for the improvements effected by Maddanappa, according to her proportionate share in the suit property. As already stated the Appellant was in enjoyment of these properties after his wife’s death and though fully aware of the fact that they belonged to the daughters he dealt with them as he chose. When he spent moneys on those properties he knew what he was doing and it is not open to him or to those who claim under him to say that the real owners of the properties or either of them should be made to pay for those improvements. No man who, knowing fully well that he has no title to property spends money on improving it can be permitted to deprive the original owner of his right to possession of the property except upon the payment for the improvements whichwere not effected with the consent of that person. In our view, therefore, neither was Defendant I estopped from claiming possession of half share of the properties nor can she be made liable to pay half the costs of improvements alleged to have been made by the Second Defendant”. 14. In Arjun Lal Gupta v. Mriganka Mohan Sur and Others, 1974 (2) SCC 586 , it has been held as follows: “4. It had been rightly held that there was no evidence to show that the Plaintiff had in any way encouraged the Defendants to incur any expense or had made any representations to induce them to change their position to their disadvantage. The Plaintiff had asserted his rights within a reasonable time after learning of the trespass. He did not stand by watching valuable constructions being put up on his land, but had sent a notice objecting to the trespass as soon as he learnt of it. The Defendants had not shown that they had acquired any right in the land from an owner. They had, very half-heartedly, set up a plea of limitation which was not seriously pressed. The whole stand of the Defendants-Appellants was lacking in bona fides”. 15. A reading of the above judgments would show that only if the Defendant is the bona fide transferee, from the defective title holder she can claim the benefits under Section 51 of the Act; but, the facts found in the instant case would show that the Defendant without analysing the relevant documents, had purchased the ‘B’ schedule property from the person, who had no valid title. Under such circumstances, she is not entitled to claim the benefits under Section 51 of the Transfer of Property Act. 16. So far as the estoppel is concerned, it cannot be said that the Defendant was induced by any act or declaration of the 1st Respondent/Plaintiff to act in a particular way. In order to attract the Principle of Estoppel, it is essential that the person against whom the Doctrine of Estoppel is sought to be applied must have made some representation, or by his own conduct amounting to representation, must have induced the other party to act as otherwise he would not have done. In the present case, on the finding, there is no such case made out at all. In my opinion, therefore, the Plaintiff cannot be said to be estopped from asking for possession by demolition of the building standing on his land. Hence, I find that the Courts below have correctly appreciated the evidence and the documents adduced by the parties and the concurrent findings reflect the evidence on record. The reasonings and findings cannot be interfered with in the Second Appeal.