Research › Search › Judgment

Kerala High Court · body

2010 DIGILAW 955 (KER)

Xavier v. John

2010-12-07

S.S.SATHEESACHANDRAN

body2010
Judgment : The first defendant in a suit for declaration of title and recovery of possession is the appellant. He has filed this appeal challenging the correctness of the decree and judgment rendered by the lower appellate court, by which, allowing the appeal of the plaintiff, the decree was modified and recovery of possession of property much more in extent than decreed by the trial court was granted. 2. The dispute involved in the appeal, in fact, lies within a narrow campus, and as such, it is quite unnecessary to advert to in detail the pleadings of the parties and also the issues adjudicated upon before the two courts below. In brief, the facts are thus: Once acre and 96 cents of land in Survey No.200 of Manjoor Village originally belonged to one Varkey, the father-in-law of the plaintiff and father of the defendants. That property was sold to a chitty fund, namely “”St.Mary’s Chitty Fund”, probably, on account of some liability outstanding from Varkey. However, later, on an agreement between the chitty fund and the parties to the suit, plaintiff and also the defendants, the assignee chitty fund, agreed to convey that property to the plaintiff and defendants for valuable consideration. Accordingly, plaintiff obtained 72 cents of land under Ext.A1 sale deed and the rest, one acre and 24 cents, by the defendants, both of them together, under Ext.A2 sale deed. Later a suit for partition as between the defendants arose, instituted five years prior to the present suit, over the one acre and 24 cents of land obtained by them under Ext.A2 sale deed. In that suit, filed by the present first defendant as plaintiff, a decree had been passed for separate possession between the two defendants in the present suit in accordance with their rights over that property. The present suit was subsequently instituted by the plaintiff canvassing a case that in the previous suit between the defendants for partition, the advocate commissioner, had prepared a report and plan showing that the total extent of property covered under the survey numbers relating to Exts.A1 and A2 deeds has a deficiency of 12 cents, and on that basis, there is an attempt by the defendants to trespass upon the plaint property covered by Ext.A1 deed obtained by him. Suit was initially filed for declaration of title, fixation of boundary and injunction over the property described under Ext.A1 sale deed. However, later, after a report was filed by an advocate commissioner, who, after conducting local inspection and measurement of the property, reported that a bund separated the plaint property from the eastern property, which, no doubt, was covered by Ext.A2 sale deed, the plaintiff amended the plaint seeking recovery of possession of item No.2 property, describing it as a portion of plaint item No.1, trespassed upon by the defendants after institution of the suit. 3. The first defendant alone contested the suit and the second defendant remained ex parte. The 1st defendant resisted the suit claims contending that the property of the plaintiff and that of the defendants is separated by a well demarcated natural boundary and the plaintiff is not entitled to claim any portion of the property to the east of that natural boundary. It was further contended that the suit had been filed at the instance of the second defendant after the passing of the preliminary decree in the previous suit for partition filed by him, in which, that respondent had been appointed as a receiver over the property by the court. Suit claims canvassed by the plaintiff were not allowable, in short, was the sum and substance of the contentions raised by the first defendant. 4. The trail court, on the materials placed by both sides, which consisted of PWs.1 to 3 and Exts.A1 to A3 for the plaintiff, DWs.1 to 5 and Exts.B1 and B2 for the first defendant, and also Exts.C1 to C3, the reports and plans prepared by the advocate commissioner, arrived at the conclusion that the deficiency found with respect to the extent of land covered by Exts.A1 and A2 sale deeds together, determined as 12 cents, has to be suffered by both the parties proportionately in accordance with the extent of the property described under the respective deed. The report and plan prepared by the Advocate Commissioner, exhibited as Exts.C2 and C2 (a), were accepted. In Ext.C2(a) plan, the commissioner separately marking the properties covered by Exts.A1 and A2 deeds, had earmarked the proportionate deduction to be effected, on account of the deficiency found in extent of the whole property. The report and plan prepared by the Advocate Commissioner, exhibited as Exts.C2 and C2 (a), were accepted. In Ext.C2(a) plan, the commissioner separately marking the properties covered by Exts.A1 and A2 deeds, had earmarked the proportionate deduction to be effected, on account of the deficiency found in extent of the whole property. Separating line of the properties, shown as MN line in Ext.C2 plan, giving effect to proportionate reduction, was declared as the boundary separating the properties of the plaintiff and the defendants, and a decree of declaration in respect of the property lying to the west of the MN line as identified in the plan was granted in favour of the plaintiff allowing him to recover portions of the property trespassed upon by the defendants in his property upto MN line from the possession of the defendants. A further direction was also given to the defendants to surrender vacant possession of the property trespassed upto the west of MN line, within two months. A decree of perpetual prohibitory injunction was also passed against the defendants from trespassing upon the property of the plaintiff, which was identified as extending upto MN line as shown in Ext.C2(a) plan. There was no further challenge against the decree from the 1st defendant, but, feeling aggrieved, the plaintiff preferred an appeal mainly contending that the fixation of the boundary as MN line under Ext.C2(a) plan was incorrect and it should have been fixed as PQ line as shown in that plan, which was further east to MN line. The lower appellate court, after re-appreciating the materials tendered in the case, before which, both sides had accepted the correctness of Ext.C2(a) plan for resolving the controversy, analysed the challenge raised by the plaintiff over the fixation of boundary following the principles governing execution of documents one after the other in respect of the same property, under Section 48 of the Transfer of Property Act. Which among the documents under Exts.A1 and A2 was executed earlier in point of time was examined by the lower appellate court with respect to the contents of those documents and other materials produced and it was concluded that Ext.A1 sale deed of the plaintiff was earlier in point of time, and as such, it was held that the plaintiff is entitled to the entire extent shown under that document and the deficiency detected over the whole property, on measurement, has to be suffered by the defendants. Proportionate reduction made by the trial court with respect to deficiency detected over the property was found not correct, and, accordingly, modifying the decree of the trial court, the lower appellate court passed a decree determining PQ line in Ext.C2(a) plan as the separating boundary of the properties of the plaintiff and the defendants. The 1st defendant has filed this appeal impeaching the correctness of the modification made by the lower appellate court in re-fixing the boundary line as PQ line from MN line under Ext.C2 (a) plan, contending that the recourse made to Section 48 of the Transfer of Property Act, in the given facts of the case, was uncalled for, as there was no material whatsoever to spell out which among the documents simultaneously registered was executed earlier in point of time. 5. The following substantial question of law has been raised for hearing: Has not the lower appellate court erred in interfering with the decree passed by the trial court wrongly applying Section 48 of the Transfer of Property Act, which was inapplicable, where admittedly Exts.A1 and A2 deeds are seen simultaneously registered one after the other with no materials tendered in the case as to which of them was executed earlier in point of time? 6. I heard the learned counsel on both sides. 6. I heard the learned counsel on both sides. The learned counsel for the appellant assailed the decree of the lower appellate court contending that there was no pleading nor the parties were at issue as to which among the registered documents, Exts.A1 and A2, registered on the same day, was executed earlier in point of time, and as such, the exercise taken by the lower appellate court on the basis of Section 48 of the Transfer of Property Act to determine that question and on that basis to interfere with the decree of the trial court and re-fix the boundary separating the property, is totally unsustainable under law and facts. Per contra, the learned counsel for the first respondent/plaintiff contended that a reading of the plaint as a whole, especially paragraphs 4 and 6 and also the evidence let in the case would clearly demonstrate that the real issue in the case was whether under Ext.A1 sale deed, which, admittedly, was registered earlier in point of time, the plaintiff has obtained the extent shown thereunder, and such being the case, the applicability of the principles of Section 48 of the Transfer of Property Act resorted to by the lower appellate court cannot be found fault with, and at any rate, it cannot be canvassed as a substantial question of law to impeach the decision rendered by that court. 7. On the submissions made by the counsel on both sides and also in view of the limited scope of challenge raised in the appeal, which pertains only to the question what is the demarcating line separating the boundaries of the properties, whether it is MN line or PQ line as under Ext.C2 (a) plan, the cardinal issue to be looked into is whether Section 48 of the Transfer of Property Act has any application to the given facts of the case. Perusing the judgment rendered by the lower appellate court, it is seen, it has taken note that there was absence of pleadings on the crucial question whether Ext.A1 was executed prior to the execution of Ext.A2 or whether they were simultaneous transactions, both of which were admittedly registered on the same date one after the other. Perusing the judgment rendered by the lower appellate court, it is seen, it has taken note that there was absence of pleadings on the crucial question whether Ext.A1 was executed prior to the execution of Ext.A2 or whether they were simultaneous transactions, both of which were admittedly registered on the same date one after the other. Despite taking notice that there was no pleading and no case that Ext.A1 was executed earlier in point of time to Ext.A2, and as such, this was a case where principles of Section 48 of the Transfer of Property Act would apply, the lower appellate court proceeded to examine whether there is any evidence to find out whether Ext.A1 deed was executed anterior to the execution of Ext.A2 deed. At the outset, it has to be stated that such an exercise was uncalled for when no party to the proceedings has canvassed or set up a case that one among the two registered documents was executed earlier in point of time to the other. Whatever be the amount of evidence let in the case, on that crucial question, in the absence of specific pleadings thereof and no opportunity being given to the opposite party to meet such a case, on the basis of evidence let in the case alone, it was not at all proper to decide such an issue, which no doubt, detrimentally affect the right and interest of a party over an immovable property. Further more, it is seen, solely on the basis of the statements made in Exts.A1 and A2, the lower appellate court had jumped into a conclusion that Ext.A1 sale deed was executed earlier in point of time. Statement in Ext.A2 sale deed that the property conveyed thereunder to the defendants was the remaining extent of the land, which was conveyed under Ext.A1 sale deed to the plaintiff was given undue significance by the lower appellate court to conclude that it has got vital effect in determining which one of the two deeds registered on the same day had been executed earlier. However, the lower appellate court failed to take note that even in Ext.A1 sale deed, it has been stated that the prior documents relating to the property conveyed are handed over to the respondents under Ext.A2 sale deed, and thus, they are not handed over to the transferee thereunder, the plaintiff. However, the lower appellate court failed to take note that even in Ext.A1 sale deed, it has been stated that the prior documents relating to the property conveyed are handed over to the respondents under Ext.A2 sale deed, and thus, they are not handed over to the transferee thereunder, the plaintiff. Normally, prior documents are handed over on transfer of an immovable property only when the transfer deed is executed which would presuppose it was a case where Ext.A2 sale deed had precedence over Ext.A1 sale deed in execution. Leaving apart those aspects, it has also come out from evidence that the plaintiff herein was examined as a witness on behalf of the second defendant in the earlier suit for partition filed by the first defendant as plaintiff. It has to be taken note that the second defendant, who remained ex parte in the present suit, had been appointed as a receiver over the property covered by Ext.A2 in the suit for partition, and it was after a decree was passed in such suit, and that too, after measurement of the property in the final decree proceedings, the plaintiff has come forward with the present suit. When the second defendant had been appointed as a receiver in the previous suit, the fact that he remained ex parte in the present proceedings, gives some credence to the case canvassed by the first defendant that after a decree had been passed in the suit for partition, he was instrumental in filing of the present suit through the plaintiff to stultify the decree in the earlier suit. 8. Section 48 of the Transfer of Property Act reads thus: 48. Priority of rights created by transfer: Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. The rules enshrined under the section is based on the maxim qui prior est tempore potior est jure – (he who is prior in time is better in law). The rules enshrined under the section is based on the maxim qui prior est tempore potior est jure – (he who is prior in time is better in law). The one who has the advantage in time should have precedence in law as well, is the basis of the rule where two successive transfers of the same property have been effected. The section lays down the transfer effected later must submit to the earlier. In other wards, the section embodies the rule of priority founded on law and justice that in case a person purports to create by transfer at different times right over the same immovable property and such rights cannot at all co-exist or be exercised to their full extent together, the later transfer shall be subject to rights previously created. In the event of disputes emanating from such successive transfers creating rights over the same immovable property in different transferees, with such right cannot co-exist or be exercised to their full extent together, the rights of priority of the transferees have to be determined by the operation of the rule covered by the section. Determination of the rights of priority in the case of successive transferees over the same immovable property calls for a combined operation of Section 48 of the Transfer of Property Act and Sections 47 and 49 of the Registration Act. However, where the document is registered, by virtue of Section 47 of the Registration Act, it has to be noted the documents take effect from the date of its execution, and as such, the determination of the right of priority of successive transferees will have to be determined in tune with the rule under Section 48 of the Transfer of Property Act that the transfer created later shall be subject to rights previously created. In a case where two deeds of transfer over the same property or one involving portions of property covered by the other as well were executed on the same day, it must be proved which deed was in fact executed first. However, if the deeds themselves show an intention either that they shall take effect pari passu or even that the later deed shall take effect in priority to the earlier, it will be presumed that the deeds were executed in such order as to give effect to that intention. However, if the deeds themselves show an intention either that they shall take effect pari passu or even that the later deed shall take effect in priority to the earlier, it will be presumed that the deeds were executed in such order as to give effect to that intention. Where two or more deeds were executed on the same day and the order of their execution cannot be ascertained, all the deeds will take effect at once and pari passu. The rule of priority is subject to the exception covered by the equitable principle of estoppel. In a case where the 1st transferee was aware of the second transfer and also the contents of the deed thereunder, necessarily, any claim by him on the right of priority has to be examined with reference to the principles of equity and also rule of estoppel. 9. Where no case has been set up by any of the parties in the suit which among the sale deeds registered on the same day was executed earlier, there is no scope for examining whether the principles covered under Section 48 of the Transfer of Property Act are applicable. The lower appellate court, it is seen, has placed reliance on Exts.B1 and B2, commission report and plan in the suit for partition filed by the first defendant as plaintiff, to hold that the measurement of the property covered by that suit was carried out only in respect of the property described under Ext.A2, leaving the 72 cents obtained by the plaintiff under Ext.A1. However, the lower appellate court ignored or failed to take note that the present suit was filed at a stage when final decree proceedings in the previous suit for partition was pending, and that too, laid on an apprehension raised by the plaintiff that under the decree passed in that suit, there is an attempt to annex portions of his property by the defendants. There was no material on record to conclude whether Ext.B1 report and Ext.B2 plan had been accepted or even exhibited in evidence in the suit, in which the commissioner was deputed to prepare such report and plan. There was no material on record to conclude whether Ext.B1 report and Ext.B2 plan had been accepted or even exhibited in evidence in the suit, in which the commissioner was deputed to prepare such report and plan. So much so measurement was carried out by the advocate commissioner in the final decree proceedings in the earlier suit for partition, after leaving 72 cents claimed by the plaintiff under Ext.A1, as canvassed for, no way improves the case of the present plaintiff nor does it indicate that Ext.A1 sale deed was executed earlier in point of time to Ext.A2 sale deed. It is also seen when the commissioner who had prepared Exts.B1 and B2 was examined as DW2 in the present case, the measurements noted by him, and the plan prepared, were impeached as not correct by the plaintiff, as could be seen from the cross examination of that witness. When that be the case, where the plaintiff had impeached the validity and correctness of the report and plan prepared by DW2, which was exhibited as Exts.B1 and B2 in the present case, no reliance on that report and plan was permissible that too, to support a conclusion that Ext.A1 sale deed was executed earlier to Ext.A2 sale deed. Determination of the rule of priority with respect to the two documents, Exts.A1 and A2, both registered on the same day, but with no pleading as to which of them was executed earlier, undertaken by the lower appellate court, was quite unwarranted, and the findings entered in such exercise ignoring the totality of the facts involved in the case, but solely on the basis of some statements in the deed to conclude that Ext.A1 was executed earlier in point of time of Ext.A2, is thoroughly unsustainable. In short, the lower appellate court was not justified in re-fixing the boundary as PQ line modifying the fixation of MN line by the trial court applying the principles under Section 48 of the Transfer of Property Act, the consideration of which, on the proved facts and materials presented, never arose in the case. The interference made by the lower appellate court over the boundary fixation of the properties made by the trial court, cannot be justified. 10. The interference made by the lower appellate court over the boundary fixation of the properties made by the trial court, cannot be justified. 10. In the light of the discussions made above, reversing the decree of the lower appellate court, the decree passed by the trail court is liable to be restored, and it is ordered accordingly. Appeal is allowed directing both sides to suffer their respective costs.