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2010 DIGILAW 733 (MAD)

N. Bhojan v. S. B. Raju

2010-02-22

S.TAMILVANAN

body2010
Judgment :- 1. Heard both the learned counsel appearing for the appellant as well as the respondent. 2. It is seen that the suit was filed by the respondent herein in O.S.No.5 of 2004 on the file of the District Munsif of Kotagiri seeking judgment and decree against the appellant/defendant for rectification of a sale deed No.695/86, dated 23.07.1986 to be executed by the defendant by subsisting the S.No.447/15 in the place of S.No.447/6A in the schedule of property and for permanent injunction restraining the appellant/defendant and his men or agent from interfering with the possession and enjoyment of the respondent/ plaintiff in the suit property and also for the cost of the suit. The trial court dismissed the suit by its judgment dated 30.11.2007. 3. Aggrieved by which the appeal in A.S.No.21/08 was preferred by the respondent/plaintiff herein. Learned Subordinate Judge, Nilgiris allowed the appeal setting aside the judgment and decree passed by the trial court and decreed the suit as prayed for by the plaintiff, against which the second appeal has been preferred. 4. The learned counsel appearing for the appellant has raised the following substantial questions of law for admitting the second appeal in the grounds of appeal: "1. Is not the suit filed admittedly after 17 years barred by limitation? 2. Whether suit for plain injunction and rectification maintainable in law? 3. Has not the defendant/Appellant perfected title by adverse possession? 4. In the absence of a prayer for mandatory injunction is the suit maintainable in law? 5. Whether the suit for rectification of sale deed maintainable in law, in the absence of any consideration for the rectification sought for?" 5. Substantial questions of law 1 and 2:-In the written statement filed by the defendant in paragraph no.3, the appellant/defendant has admitted the execution of the sale deed marked as Ex.P.A1 dated 23.07.1986 in favour of the respondent/plaintiff. According to him, the sale deed was executed by the defendant in favour of the plaintiff as a collateral security for the amount borrowed by him and not as sale deed. 6. Learned counsel appearing for the respondent submitted that the appellant/defendant after having executed the sale deed Ex.A1 before the Sub-Registrar and handed over the possession of the property to the respondent/ plaintiff, has come forward with the untennable defence which is not legally sustainable. 7. 6. Learned counsel appearing for the respondent submitted that the appellant/defendant after having executed the sale deed Ex.A1 before the Sub-Registrar and handed over the possession of the property to the respondent/ plaintiff, has come forward with the untennable defence which is not legally sustainable. 7. In the plaint, the respondent/plaintiff has contented that he was in possession and enjoyment of the property, pursuant to the sale deed, however, he came to know, about the wrong mentioning of the sub-division number of the land in sale the deed only in the first week of January 2003 and demanded the appellant/defendant to execute a rectification deed. However, the appellant/defendant failed to execute the rectification deed, but attempted to trespass into the property. Hence the suit was filed by the respondent/plaintiff seeking the aforesaid relief. 8. The appellant/defendant has admitted the execution of the sale deed, Ex.P.A1 by him. Had the sale deed been obtained under threat and coercion or undue influence against the will of the appellant/defendant, he could have filed a suit for the cancellation of the sale deed on the said ground. But no such suit was filed by the appellant/defendant against the respondent/plaintiff for cancellation of the sale deed. As per the sale deed the respondent/plaintiff is in possession and enjoyment of the property pursuant to the sale deed dated 23.07.1986. The learned counsel for the respondent/plaintiff submitted that the appellant/defendant is estopped from raising a defence that he had executed the sale deed only as a collateral security for an amount borrowed from the respondent/plaintiff, against the averments made in the sale deed. 9. As per Section 114 of the Indian Evidence Act, 1872, "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case" and the Court may presume as per sub-section (e) "That judicial and official acts have been regularly performed." Court may presume that a judicial or official act has been regularly performed until the contrary is proved by the person who is disputing the judicial or official act. 10. In the instant case, the sale deed dated 23.07.1986 was executed and registered in the presence of Sub-Registrar, who performed his official duty by registering the document. 10. In the instant case, the sale deed dated 23.07.1986 was executed and registered in the presence of Sub-Registrar, who performed his official duty by registering the document. Registration of the sale deed by the Sub-Registrar is an official act and therefore, the court has to presume legally that the official act of Registration has been regularly performed, until the contrary is proved. The appellant has not disposed the fact that he went to the Registrar Office and signed in the sale deed dated 23.07.1986 in the presence of the Sub-Registrar. Had the sale deed Ex.A1 was executed, and registered by the appellant under threat and coercion, the appellant/defendant could have filed a criminal complaint against the persons respondents for the same or filed a suit seeking cancellation of the sale deed. However, no such suit was filed by the appellant/plaintiff. The defence raised by the appellant herein was Ex.B1, a letter containing no date, said to have been written by the respondent/ plaintiff before the Sub-Inspector of police, Kotagiri police station. The letter said to have been sent to the Sub-Inspector of police is not sufficient to cancel the sale deed, the registered document executed as per regular procedure by the appellant herein, in the presence of witnesses. 11. According to the appellant/defendant the sale deed is a document executed for collateral purpose as alleged by the appellant/ defendant in the written statement. The appellant herein, has stated that the said letter Ex.B1, was sent by the appellant to the Sub-Inspector of police, though the Sub-Inspector had no authority to decide a civil dispute. Further in the said document no date or seal of the police station is available. Even if the date and seal of the police station are available, it would not be sufficient to declare the sale deed as a document executed for collateral purposes. Though the appellant/defendant has stated that Ex.A1 was executed for some collateral purposes, the sale deed Ex.P.A1, is not under challenge in the suit with a specific prayer for cancellation of the sale deed. Admittedly, it is a registered document executed by the appellant/ defendant and the execution of the document has been admitted by the appellant. The appellant/ defendant could not raise the plea of limitation as the relief sought for in the plaint is only for rectification of the Sub-Division of the Survey Number. Admittedly, it is a registered document executed by the appellant/ defendant and the execution of the document has been admitted by the appellant. The appellant/ defendant could not raise the plea of limitation as the relief sought for in the plaint is only for rectification of the Sub-Division of the Survey Number. The respondent/plaintiff has specifically stated, that he came to know that the subdivision was wrongly stated in the sale deed and he approached the appellant/defendant to execute a rectification deed. As he was not inclined to execute the rectification deed, the respondent/plaintiff filed the suit seeking mandatory injunction directing the appellant/defendant to execute a rectification deed in order to correct S.No.447/15 in the place of 447/6A in the Schedule of property of the sale deed dated 23.07.1986. In such circumstances, I am of the view that the appellant/defendant cannot raise the plea against the relief sought for, after having executing the sale deed for consideration. As it is only a rectification deed I am of the considered view that the relief sought for by the plaintiff is not barred by the limitation merely on the ground that the sale deed was executed 17 years back by him. There is no bar for seeking rectification of sale deed on the base of the error crept in the sale deed with regard to the Subdivision of the survey number, in the absence of a plea of defendant that some other property having the same number was sold by him to the respondent/ plaintiff. Similarly there is no dispute with regard to the extend of the land or description of the property sold by the appellant. 12. On the facts and circumstances, discussed above, this Court is of the view that the suit is not barred by limitation and the relief sought for rectification of sub-division number and also for injunction is maintainable. Accordingly the substantial questions of law 1 and 2 are answered in favour of the respondent/plaintiff and against the appellant/ defendant. 13. Substantial questions of law 3, 4 and 5:-It is seen that the appellant/defendant has also claimed title to the property by adverse possession, which is not legally sustainable. Being the vendor of the property after executing the sale deed in favour of the respondent/plaintiff under Ex.P.A1, it is not open to the appellant/ defendant for seeking adverse possession. 13. Substantial questions of law 3, 4 and 5:-It is seen that the appellant/defendant has also claimed title to the property by adverse possession, which is not legally sustainable. Being the vendor of the property after executing the sale deed in favour of the respondent/plaintiff under Ex.P.A1, it is not open to the appellant/ defendant for seeking adverse possession. No one can claim adverse possession for his own property. After execution of the sale and possession was handed over pursuant to Ex.P.A1 in favour of the respondent/plaintiff, the appellant/defendant is estopped from raising a plea of adverse possession. There is no difficulty in the identification of the property sold by the appellant in favour of the respondent herein and as per the sale deed, possession of the property was also handed over to the respondent/plaintiff on the same date. It is not the case of the appellant that some other property was sold by way of the sale deed Ex.A1 in favour of the respondent herein. As the Sub-division number was wrongly stated by the appellant/defendant in the sale deed, as contended by the learned counsel for the plaintiff he could have obtained adangal. However, the evidence available on record would clearly show that the appellant/defendant is not in possession of the property and further, the respondent/plaintiff has specifically stated that he has been in possession and enjoyment of the suit property pursuant to the sale deed executed by the appellant/defendant. Therefore, it cannot be held that the appellant/defendant has perfected title by adverse possession, since he is estopped from raising a plea against his own admission made in the sale deed. 14. Similarly after executing the sale deed in favour of the respondent/plaintiff, as vendor, the title of the respondent/plaintiff cannot be questioned by the appellant/defendant. As the title has been established by the respondent/plaintiff the relief seeking a decree to rectify the survey number in the sale deed dated 23.07.1986 is legally sustainable. The relief sought for by the respondent/plaintiff is only rectification of the correct sub-division number in sale deed. Hence, the 5th substantial question, whether the suit for rectification of sale deed is maintainable in the absence of consideration does not arise. As per the sale deed consideration was passed on the respondent herein on the date of sale deed. The relief sought for by the respondent/plaintiff is only rectification of the correct sub-division number in sale deed. Hence, the 5th substantial question, whether the suit for rectification of sale deed is maintainable in the absence of consideration does not arise. As per the sale deed consideration was passed on the respondent herein on the date of sale deed. The relief sought for by the respondent/plaintiff was only to rectify the error in mentioning the correct sub-division of the survey number in the sale deed, and therefore, no question of further consideration would arise. 15. Admittedly the registered sale deed relating to the suit was executed by the Revision Petitioner/defendant. He has not filed any suit for cancellation of the sale deed and the petitioner has not raised any allegation that he had been made to sign under threat and coercion. He has also not pleaded that some other land was sold by him under the sale deed. Hence, it is crystal clear that the appellant is raising a only an untennable defence, since he had failed to mention the correct sub-division number in the sale deed, executed by him, and also registered before the Sub-Registrar. 16. The appellant/defendant, who sold the property in favour of the respondent after handing over the possession to the respondent as per the averments of the sale deed Ex.A1 is estopped from raising a contradictory plea and claim adverse possession. In the absence of a specific pleadings and evidence in support of the pleadings, the appellant/defendant is not entitled to claim adverse possession after the sale merely on the ground of stating a wrong Sub-division number in the sale deed executed by him in favour of the respondent. Accordingly, the substantial questions of law 3 to 5 raised by the appellant/defendant are also answered against the appellant and in favour of the respondent herein. 17. Considering the findings of the Courts below and on the evidence available on record, and also the argument advanced by both the learned counsel, I am of the view, that there is no substantial questions of law involved in favour of the appellant, in this second appeal as contemplated under section 100 of the Code of Civil Procedure to be decided in the second appeal. It is a well settled proposition of law that second appeal is not maintainable, when there is no substantial question of law involved to be decided by this Court. Having gone through the impugned judgment, evidence available on record based on the arguments advanced by both the learned counsel, I am of the considered view that there is no substantial question of law involved in the second appeal to be decided and that the finding of the Court below cannot be construed as perverse. 18. Hence the second appeal is liable to be dismissed. Accordingly, the second appeal is dismissed. However, there is no order as to costs.