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2012 DIGILAW 5006 (MAD)

K. Rajathi v. V. A. Palaniappan

2012-12-21

P.R.SHIVAKUMAR

body2012
JUDGMENT 1. The defendant in the original suit is the appellant. The plaintiffs in the suit are the respondents herein. The respondents herein/plaintiffs filed the suit in O.S. No. 279 of 2005 on the file of the II Additional District Munsif, Coimbatore for a mandatory injunction directing the appellant herein/defendant to remove the unauthorized construction put up by her in Site No. 8 and for the removal of the encroachments made by her in Site No. 9 in the lay out formed in S. Nos. 395/2, 396/1 and 396/2 in Kavundampalayam, Coimbatore Taluk, Coimbatore District and for a permanent injunction restraining the appellant herein/defendant from making any construction or encroachment or alteration in the said sites. The II Additional District Munsif, Coimbatore, after trial, decreed the suit as prayed for by judgment and decree dated 7.7.2011. The said decree was challenged by the appellant herein before the Sub-Court, Coimbatore in A.S. No. 96 of 2011 and the same was dismissed by the I Additional Subordinate Judge, Coimbatore by a judgment and decree dated 29.7.2012. Challenging the said decree of the lower appellate Court by which the decree passed by the trial Court stands confirmed, the present second appeal has been preferred. 2. The admitted facts are as follows:- The 30 cents of land comprised in S. Nos. 395/2, 396/1 and 396/2 along with an adjacent land was laid out into house sites by the first respondent/first defendant V.A .Palaniappan along with his brother Pongalai Konar. The entire land was converted into 9 house sites bearing Plot Nos. 1 to 9. Plot Nos. 1,2 and 3 belonged to Pongalai Konar. Out of the remaining house sites, namely Plot Nos. 4 to 9, the appellant herein/defendant purchased Plot No. 7 measuring an extent of 2156 sq.ft under a registered sale deed dated 24.12.2003, a certified copy of which has been produced as Exhibit A-2. The appellant herein/defendant, holding out that she could not get the approval for putting up a construction in the plot purchased by her as it transpired that a scheme road had been proposed to be laid cutting across the said plot, started putting up a construction in Plot No. 8 and a portion of plot No. 9. Contending that such a construction was unauthorized, the respondents herein filed the suit for the above said reliefs. 3. Contending that such a construction was unauthorized, the respondents herein filed the suit for the above said reliefs. 3. The appellant herein/defendant resisted the suit contending that when she applied for approval of the plan for putting up a construction in Plot No. 7 purchased by her, the same was declined stating that there was a proposal to form a scheme road cutting across Plot No. 7; that her vendors knowing the said fact had sold Plot No. 7 to her suppressing the said proposal and thereby cheated her; that on coming to know of the same, she approached the respondents/plaintiffs through mediators and the respondents/ plaintiffs consented for the appellant/defendant taking Plot No. 8 instead of Plot No. 7; that despite the same, when the appellant / defendant approached the respondents/plaintiffs with a draft rectification deed, they refused to come and execute the same and that only with the knowledge of the respondents/plaintiffs, the appellant/defendant was putting up the construction and that hence the suit filed by them for the above said reliefs should be dismissed. 4. Based on the above said pleadings, the learned trial Judge framed three issues, which are as follows: 1) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? 2) Whether the plaintiffs are entitled to the relief of mandatory injunction directing the defendant to remove the unauthorized construction put up by her in Plot Nos. 8 and 9 after trespassing into the said plots? 3) To what relief? 5. PW1 was examined as the sole witness and Exhibit A-1 to A-5 were marked on the side of the plaintiffs and two witnesses were examined as DWs 1 and 2 on the side of the appellant/defendant and 7 documents were marked as Exhibits B-1 to B-7 on her side. The report and plan submitted by the advocate Commissioner have been marked as Exhibits C-1 and C-2. 6. The learned trial Judge, who considered the evidence adduced on both sides, came to the conclusion that the appellant/defendant did not possess any title in respect of Plot Nos. 8 and 9 and the constructions put up by her in Plot No. 8 and a portion of Plot No. 9 was unauthorized. 6. The learned trial Judge, who considered the evidence adduced on both sides, came to the conclusion that the appellant/defendant did not possess any title in respect of Plot Nos. 8 and 9 and the constructions put up by her in Plot No. 8 and a portion of Plot No. 9 was unauthorized. Holding that the plaintiffs, the owners of the said plots, were entitled to seek the removal of the encroachment and unauthorized construction made by the appellant herein/defendant and also for a permanent injunction, the learned trial Judge answered all the issues in favour of the plaintiffs and decreed the suit without costs as prayed for. The learned trial Judge also granted three months time for removal of the construction. On appeal, the learned appellate Judge also, on a thorough re-appreciation of evidence, agreed with the findings of the trail Court, found no merit in the appeal and dismissed the appeal confirming the decree passed by the trial Court. Thus, the appellant herein/defendant is before this Court in this second appeal. 7. Learned counsel for the appellant in the second appeal/defendant, advancing argument on behalf of the appellant for the admission of the appeal, made the following submissions: “The respondents/plaintiffs knowing fully well that a proposed scheme road would cut across Plot No. 7, suppressing the material information, played a fraud on the appellant/defendant and sold Plot No. 7 to her. In view of the same, the appellant/defendant is entitled to claim the other portions available with the respondents/plaintiffs. The appellant/defendant was justified in asking the respondents/plaintiffs to give her an alternative plot and the respondents/plaintiffs in fact agreed to give Plot No. 8 to the appellant/defendant and allowed her to put up the construction, but later on they refused to execute the necessary documents to confirm the title of the appellant/defendant in respect of Plot No. 8. The respondents/plaintiffs sent a pre-suit notice to a wrong address to deny the appellant/defendant, a chance to refute the claim of the respondents/plaintiffs made in the pre-suit notice and while filing the suit, they had furnished the correct address of the appellant/defendant. The same would go to show that the respondents/plaintiffs had not come to the Court with clean hands. The respondents/plaintiffs sent a pre-suit notice to a wrong address to deny the appellant/defendant, a chance to refute the claim of the respondents/plaintiffs made in the pre-suit notice and while filing the suit, they had furnished the correct address of the appellant/defendant. The same would go to show that the respondents/plaintiffs had not come to the Court with clean hands. The appellant/defendant having been allowed to put up a construction in Plot No. 8 pursuant to the oral agreement for substituting Plot No. 8 for Plot No. 7 as the land sold to the appellant/defendant, her possession of Plot No. 8 is protected under Section 53-A of the Transfer of Property Act. The appellant/defendant is also entitled to the benefit of Section 51 of the Transfer of Property Act and the appellant/defendant is justified in claiming the derivation of title to Plot No. 8 regarding which alone her vendors did have valid and transferable title.” 8. Based on the above said contention, learned counsel for the appellant made an attempt to show that the Courts below have committed an error in not considering the above said aspects. 9. Now the above said contentions raised on behalf of the appellant/defendant can be taken up for consideration to find out whether any substantial question of law has arisen to be decided in the second appeal. 10. Admittedly, the vendors of the appellant/defendant who executed the sale deed, namely the original of Exhibit A-2 in favour of the appellant/defendant conveying Plot No. 7, were the owners of the said plot and they did have the absolute power of disposition. The appellant/defendant chose to purchase the said property knowing fully well that the said plot was in an unapproved lay out. The appellant/defendant would contend that after her purchase she wanted to put up a construction in Plot No. 7 purchased by her for which she applied for approval of the plan to the local body and the local body declined approval stating that a scheme road was proposed to be laid cutting across Plot No. 7. The said contention of the appellant/defendant seems to be the mere statement and assertion of the appellant/defendant. No document has been produced to show that she applied for the sanction of the building plan and the same was rejected by the local body. The said contention of the appellant/defendant seems to be the mere statement and assertion of the appellant/defendant. No document has been produced to show that she applied for the sanction of the building plan and the same was rejected by the local body. No order received from the local body declining approval for the building plan has been produced. Even assuming that it could be true, the proposal to lay a road alone will not affect the sale effected in respect of the property over which the road was proposed to be laid, unless a notification for the acquisition of the same has been issued. 11. Learned counsel for the appellant would submit that the proposal for forming a scheme road cutting across Plot No. 7 had been made long back in 1993 itself and suppressing the said fact the plot was sold to her. If at all it was a proposal made in 1993, till the proposal was put into action by taking concrete steps by issuing notification for the acquisition of the land, the sale made by the owners of the land cannot be said to be one made in suppression of a material fact. A proposal may or may not fructify into a scheme. There is nothing to show that till the date on which the sale deed was executed in favour of the appellant/defendant any notification for acquisition of the land was made. Therefore, absolutely there is no justification on the part of the appellant/defendant in contending that she has been cheated by the respondents/plaintiffs. Further, there is nothing to show that the appellant/defendant got an approval for the building plan for the building she is putting up in Plot No. 8 and in a portion of Plot No. 9. When she is able to put up a construction without a sanctioned plan in Plot No. 8 and a portion of Plot No. 9, she could have even put up such a construction without such plan in Plot No. 7 also running the risk of the property being acquired by the local body for forming the road. Hence, the contention of the appellant/defendant that since a proposed scheme road would cut across Plot No. 7 sold to the appellant/defendant, in equity she would be entitled to the other plots owned by her vendors, namely respondents/plaintiffs cannot be accepted. Hence, the contention of the appellant/defendant that since a proposed scheme road would cut across Plot No. 7 sold to the appellant/defendant, in equity she would be entitled to the other plots owned by her vendors, namely respondents/plaintiffs cannot be accepted. What Section 51 of the Transfer of Property Act contemplates is a right of the person who makes any improvement on the property believing in good faith that he is absolutely entitled to do so and subsequently he is evicted there from by any person having a better title, to have the value of the improvements made by him paid to him or to ask for the sale of the property to him at the prevailing market value irrespective of such improvement made by him. It is not the case of the appellant that she purchased plot No. 8 or any part of Plot No. 9 and she was having a defective title and believing in good faith to be the owner of the property she made the improvements by putting up the construction. The case of the appellant/defendant is that there was mediation and after the mediation for the transfer of Plot No. 8 to the appellant/defendant and that a draft rectification deed was prepared by her and the respondents / plaintiffs were asked to come and execute such a deed and they declined to do so. When that is so, there cannot be any bona fide belief on the part of the appellant/defendant that she is entitled to Plot No. 8. 12. So far as the question of protection of the possession of the appellant/defendant under Section 53-A of the Transfer of Property Act, there is no written agreement and in fact there is no agreement for the transfer of the same. Therefore, the plea of part performance cannot be pressed into service in support of the appellant/defendant. In fact, rectification deed proposed to be obtained from the respondents/plaintiffs was not a document executed by them and it was not preceded by any contract in writing signed by the respondents/plaintiffs or anybody on their behalf. Therefore, the plea of part performance cannot be pressed into service in support of the appellant/defendant. In fact, rectification deed proposed to be obtained from the respondents/plaintiffs was not a document executed by them and it was not preceded by any contract in writing signed by the respondents/plaintiffs or anybody on their behalf. For better appreciation Section 53-A of the Transfer of Property Act is reproduced hereunder: “53-A-Part performance – Where any contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract. And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this Section shall affect the rights of the transferee for consideration who has no notice of the contract or of the part performance thereof.” The first part of Section 53-A makes it abundantly clear that the plea of part performance will be available to the proposed purchaser only when there is a contract in writing signed by the proposed vendor or anybody on his behalf to transfer the immovable property for consideration. In this case, excepting the self-serving document prepared by the appellant/defendant herself, there is not even a scrap of paper to show that there is such a contract in writing to convey Plot No. 8 or any portion of Plot No. 9 to the appellant/defendant. On that short point, the claim that her possession is protected under Section 53-A of the Transfer of Property Act is bound to be rejected. On that short point, the claim that her possession is protected under Section 53-A of the Transfer of Property Act is bound to be rejected. So far as the supposed right of the appellant/defendant to claim the value of the improvement made by her or to seek the transfer of the property disregarding the improvement as contemplated under Section 51 of the Transfer of Property Act is concerned, the Courts below on proper appreciation of evidence, have arrived at a correct conclusion that she is not entitled to such a benefit. 13. The purchase was made by the appellant/defendant on 24.12.2003. As pointed out supra, there is no record to show that she applied for sanction of the building plan and the same was refused on the ground that a scheme road cutting across the Plot No. 7 purchased by her was proposed to be laid. Again there is no document to show that the appellant/defendant was allowed by the respondents/plaintiffs to occupy Plot No. 8 or any portion of Plot No. 9 and put up constructions. There is absence of sufficient evidence to show acquiescence on the part of the respondents/plaintiffs. The appellant/defendant has not disputed the fact that she started putting up construction in August 2004. Immediately after coming to know of the development, the respondents/plaintiffs have chosen to issue a notice under Exhibit A-3 on 17.11.2004 to the last known address of the appellant/defendant and the same was returned un-served. The returned cover has been produced as Exhibit A-4. The mere fact that the address found in the notice and the address of the appellant/defendant in the plaint differ from each other does not mean that the respondents/plaintiffs deliberately issued a notice to a wrong address. It is not the case of the appellant/defendant that the address found in Exhibitss A-3 ad A4 was not her address at any point of time. Even assuming that the notice was sent to a wrong address, we have to disregard the notice and it should be construed that it is a suit filed without issuing a pre-suit notice. Unless the statute provides a notice of demand or a pre-suit notice as in the case of suit against Government, the suit filed by the respondents/plaintiffs cannot be held to be defective. Unless the statute provides a notice of demand or a pre-suit notice as in the case of suit against Government, the suit filed by the respondents/plaintiffs cannot be held to be defective. Within the period of limitation from the date of knowledge and from the date of which the appellant/defendant started putting up construction, the respondent/plaintiffs have approached the Court and there is no scope for holding that there is latches on their part. That being so, the contention of the appellant/defendant that she is entitled to the equity contemplated under Section 51 of the Transfer of Property Act is bound to be rejected. At the cost of repetition, it is pointed out that the act of putting up construction on the part of the appellant/defendant cannot be accepted as one done on good faith. There is no acquiescence on the part of the respondents/plaintiffs to attract the equity contemplated under Section 51 of the Transfer of Property Act. 14. Viewed from any angle, the appellant/defendant is to be viewed as a rank trespasser and the Courts below have rightly come to the conclusion that the respondents/ plaintiffs being the owners of the property are entitled to the relief of mandatory injunction as sought for and also the relief of permanent injunction. The well considered judgments of the Courts below incorporating a concurrent finding, which cannot be termed perverse, do not deserve interference in this second appeal. No substantial question of law is proved to have arisen in this second appeal and not even a question of law is shown to have been decided wrongly by the Courts below. 15. For all the reasons stated above, this Court comes to the conclusion that the second appeal does not even merit admission and the same deserves dismissal at the threshold. Accordingly the second appeal is dismissed. No costs. Second appeal dismissed.