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2012 DIGILAW 2175 (MAD)

Balarama Naicker v. Lakshmi

2012-06-04

T.RAJA

body2012
Judgment :- 1. The present second appeal has been filed by the defendants as against the concurrent findings of the Courts below. 2. Brief facts leading to the filing of the second appeal are given as under:- The plaintiffs 1 and 2/respondents herein are sister and brother, born to Arumugham and Dhanappaggiammal. The defendant/appellant herein is the son of Kishtappa Naicker, who is the elder brother of Arumugham. The suit property is a poramboke land bearing new S.No.411/5 and old S.No.377/1, and the same was encroached by one Arumugham, the plaintiffs' father and for which, 'B' memo was issued in his favour, which proves the possession and enjoyment of the plaintiffs' father. After the death of the plaintiffs' father, the mother of the plaintiffs also died on 19.02.1996. Therefore, the plaintiffs are the legal heirs of their parents and to that effect, they have also produced the VAO certificate. It was also claimed that as the encroachment of suit property by Arumugham, the plaintiffs' father, as early as 1965, the parents of the plaintiffs were in enjoyment till their life time and thereafter, the plaintiffs continues to be in possession and enjoyment of the same till now. This continuous occupation of the suit property goes to show that they have perfected the title by occupation and also by prescription as well. A patta was also granted in the name of the plaintiffs' mother on 23.03.1996 also supports the case of the plaintiffs. Whileso, the plaintiffs raised several trees in the suit property. Further, it was also pleaded that the defendant, being the plaintiffs' paternal uncle's son, was allowed to reside in 'EFGH' portion of the suit property from the plaintiffs' mother 6 years ago. Subsequently, as promised, the defendant refused to vacate by taking advantage of demise of the plaintiffs' mother. The defendant attempted to grab the property, by joining his name in the house tax receipt, falsely alleging that he is also one of the sons of Arumugham. Since the defendant is creating some fraudulent documents to show that he is the son of Late Arumugham, the plaintiffs filed the present suit seeking for declaration, with a consequential permanent injunction and also recovery of possession. 3. Opposing the said claim, the defendant filed a written statement, stating that the extent and boundary recitals given in the plaint are incorrect. 3. Opposing the said claim, the defendant filed a written statement, stating that the extent and boundary recitals given in the plaint are incorrect. Further, when the defendant and the father of the plaintiffs are brothers, only the defendant's father encroached upon an extent of 23 cents in S.Nos.411/5 and 411/6, about five decades ago by rearing treas thereon. In fact, when the father of the plaintiffs residing in a road poramboke at Mambalam, he was forced to shift his residence and his encroachment was removed by the State Government. At this juncture, the defendant's father, who took pity on the plaintiffs' father, allowed him to occupy a portion of the side, abutting the road in the suit property. But, after the demise of the plaintiffs' father and mother, the plaintiffs cannot set up a title on the suit property, when the northern portion of the suit property is the only access to reach the defendant's residence and another passage has been in existence for several decades ago and even in the year 1989, the defendant obtained a service connection No.730, by erecting a pillar on the eastern portion of the suit property. Therefore, the 'B' memo receipt filed by the plaintiffs is relating to only 9 cents, which is under permissive occupation and possession. Further, it was also pleaded that the plaintiffs, taking advantage of the defendant's absence and inability, said to have obtained patta for 11 cents by wrongly representing to the authorities concerned. Only then, the defendant came to know this. However, when the mediation process was initiated in the month of July in the village, consequent to the mediation, the plaintiffs have entered into a sale agreement with the defendant on 27.07.1996 to sell eastern portion of the suit property, measuring 7.70 metres east-west, 19.2 metres north-south, way measuring 1.45 metres north-south and 23.5 metres in the East-west direction as shown in the rough sketch, for Rs.5,500/- to the defendant. After receiving the said amount, the plaintiffs also executed the sale agreement on the same day in the presence of the villagers, who have signed as witnesses and delivered possession of the eastern portion of the suit property and path way on the northern portion of the suit property. Concealing the sale agreement regarding the defendant's continuous possession and subsequent purchase under the sale agreement, the plaintiffs have wrongly filed the suit. Concealing the sale agreement regarding the defendant's continuous possession and subsequent purchase under the sale agreement, the plaintiffs have wrongly filed the suit. Since the sale agreement was entered and subsequent possession of the eastern and northern portion of the suit property was delivered, the plaintiffs are estopped from questioning the defendant's right to enjoy the suit property. On that basis, it was contended that the plaintiffs are not entitled to discretionary relief of injunction. 4. A rejoinder was also filed by the plaintiffs, denying the allegations that the defendant paid a sum of Rs.5,500/- to the plaintiffs towards sale consideration. However, it was stated that some of the respectable persons in the village came to the plaintiffs' house and asked them to sign in the stamp paper telling that they wanted their signature for submitting it to the Electricity Board regarding some dispute in grant of service connection to the defendant and in turn, the plaintiffs also gave that stamp paper by putting their signature to solve the problem of the defendant. As the plaintiffs are illiterates, they do not know to read and write, but knows only to sign, however, believing the words of some elders, they signed the document, dated 27.07.1996, as a sale agreement, hence, the same is not a genuine one. 5. Under these circumstances, the trial Court, after receiving the report of the Advocate Commissioner, took up the matter for trial. Before the trial Court, both parties agreed that the suit property is a Government poramboke land. Before the enquiry, it was admitted by the defendant that when the defendant's father was in possession of the suit property, he allowed the plaintiffs to occupy 9 cents of land. However, the plaintiffs also deposed that in S.No.411/5, out of 30 cents, 25 cents are belonging to plaintiffs. But, the defendant attempted to encroach the said land for constructing the house. DW2, in his deposition, has stated that the plaintiffs' mother was permitted to construct a small house in the land belonging to the defendant. Therefore, the learned trial Court came to the conclusion that the plaintiffs are entitled to the relief as prayed for. Aggrieved by the same, when an appeal was filed before the learned first appellate Court, the learned first appellate Court also upheld the judgment and decree passed by the learned trial Court. Therefore, the learned trial Court came to the conclusion that the plaintiffs are entitled to the relief as prayed for. Aggrieved by the same, when an appeal was filed before the learned first appellate Court, the learned first appellate Court also upheld the judgment and decree passed by the learned trial Court. As against the same, the present second appeal has been filed. 6. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law;- i. When the measurements and boundaries are in dispute, can the Court pass a decree for possession on the basis of schedule and plan without specific measurements and boundaries? ii. Whether inaccuracy in specifying the survey and patta numbers in the schedule will make an agreement of sale an incomplete transaction? 7. While arguing on the substantial questions of law, learned counsel appearing for the appellants submitted that when the plaintiffs, under Ex.B2-sale agreement, admitted the ownership and possession of the defendant and had agreed to sell the disputed area of land by receiving the entire consideration, the Courts below on the basis of Ex.B2, should have refused the prayer by dismissing the suit. As the Courts below seriously committed error in relying upon agreement of sale, that the defendant had failed to file a suit for specific performance, should have ordered specific performance, since the Courts have sufficient power to do so. 8. This argument is completely fallacious, for the reason that when the learned first appellate Court, after considering Exs.A1 to A7, including Ex.A15, a patta issued in the name of the plaintiffs' mother and also receipts, like kist, house tax receipt, demand notice, census card receipt, which were marked under Exs.A1 to A12, 14 and 17, held that the plaintif1fs are entitled for the relief as prayed for, inasmuch as the DW2 has also supported the case of the plaintiffs, by clearly making an admission before the trial Court that the plaintiffs' mother was permitted by the defendant to construct a small house in the place belonging to the defendant, under this circumstances, when patta was also issued in respect of the suit property in favour of the plaintiffs, the same findings cannot disturbed. Further, even if it is presumed that the plaintiffs executed the sale agreement, dated 27.07.1996 in favour of the defendant, after receiving the sale consideration for selling the suit property, as rightly held by the trial Court, the defendant has not taken any steps to execute the sale agreement. In fact, the time for filing a suit for specific performance of the sale agreement is also lost by now. 9. Further, it is not in dispute that the suit property is a poramboke land bearing new survey No.411/5 and old survey No.377/1 and the same came to be encroached by the plaintiff's father, for which 'B' memo was issued in favour of Mr. Arumugam, father of the plaintiffs since 1965. Subsequently, when patta was obtained in the name of the plaintiffs' mother on 23.03.1996, the learned trail Court, agreeing with continuous possession of the suit property, decreed the suit for declaration with consequential permanent injunction and also for recovery of possession. Whileso, raising a question of law by the defendant/appellant herein that when the measurements and boundaries are in dispute, the lower Court cannot pass a decree for possession without specific boundaries, is without any substance, because the defendant/appellant herein had not made out any semblance of case in his support, accordingly, this Court finds no merit in this appeal. Under these circumstances, the concurrent findings reached by the Courts below cannot be interfered with by this Court. 10. In result, the second appeal is dismissed, by answering the substantial questions of law against the appellant. No Costs.