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2012 DIGILAW 850 (MAD)

Krishnamoorthy v. Singaravel Chettiar

2012-02-16

V.PERIYA KARUPPIAH

body2012
JUDGMENT 1. This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.42 of 2003 dated 13.08.2003 in reversing the judgment of the trial court made in O.S.No.232 of 1999 dated 16.12.2002 in dismissing the suit. 2. The appellant herein was the defendant and the respondent herein was the plaintiff before the trial court. 3. The gist of the plaintiff's case before the trial court would be as follows:- The suit property described in the schedule belonged to one Mangayarkarasi, wife ofthe plaintiff. She purchased the said property under a registered sale deed dated 3.8.1966 from one Murugan Chettiyar and others. The said Mangayarkarasi died in the year 1994 leaving the plaintiff and her husband, son and daughter by name G.Gurunath and Meenakshi subsequently, the legal representatives of the deceased Mangayarkarasi effected partition among themselves on 08.03.1995 and the suit property was allotted to the plaintiff. The suit property is situate within the municipal limit, hence, no kist is being collected. The suit property is now lying vacant and fallow on account of the dearth of water supply in the irrigation channel. The defendants wanted to buy the suit property from the plaintiff in order to convert it as house site and sell to third parties and thereby to make profit out of it. But the plaintiff is not willing for such course. Various Nanja lands are being converted into house sites in and around the suit property and therefore, the defendants ventured to buy the suit properties. Since the plaintiff was not willing to convey the suit property, he was aggrieved and on 24.04.1999, he attempted to enter upon the suit property to execute earth and to put fences in and around the suit property and the same was prevented but the defendant was still giving out threats that he would take forceable possession of the suit property. Therefore, the permanent injunction restraining the defendant and his men from any way causing interference to the plaintiff's possession and enjoyment of the suit property may be granted in order to avoid irreparable loss likely to have cause to the plaintiff. 4. The objections raised by the defendants by way of written statement would be as follows:- The plaintiffs claim is false. No doubt, the suit property belongs to the plaintiff. But the defendant was not aware of the alleged partition deed dated 08.03.1995. 4. The objections raised by the defendants by way of written statement would be as follows:- The plaintiffs claim is false. No doubt, the suit property belongs to the plaintiff. But the defendant was not aware of the alleged partition deed dated 08.03.1995. The defendant has served as a kariasthar in between one Kanaga sabai chettiyar in and about 1972. The plaintiff requested the defendant to look after his farm affairs also. From that day onwards, the defendant was looking after the affairs of the Nanja land of the plaintiff. At that time, the defendant stopped the service to the said Kanaga Sabai chettiyar. The defendant was cultivating the land belonged to one Aruvathumoovar Trust and there was no natrangal for the said property. Therefore, the plaintiff offered the defendant to purchase the suit property from him. The total sale consideration was fixed at Rs.600/-and the entire sale consideration was paid by the defendant and he was put in possession of the same. Subsequently, in or about 1992, the plaintiff converted his nanja land into house sites and therefore, the defendant had also stopped his service. After successfully disposing his nanja lands as house sites, the plaintiff wanted to lay claim over the suit property also because the lands situated in and around the suit property were also converted into house sites. The plaintiff at the instigation of his son Guha Gurunathan, filed the suit with a view to grab at the suit property to gain unlawfully. The entire village people are aware of the possession and enjoyment of the defendant over the suit properties. Till 1995, the defendant has raised seedlings therein. On account of formation of lay out in and around the suit properties, the irrigation facilities were stopped and cultivation should not be done. Therefore, the suit property is lying fallow. The said Guha Gurunathan having an eye over the suit property instigated his father and forced him to file the suit against his wish. Even after the filing of the suit, the said Guha Gurunathan approached the defendant through mediators and requested the plaintiff to receive some amount to surrender possession. The defendant is still in possession and enjoyment of the suit property, he has raised 5 cocoanut sapplings and fenced all the sides no cause of action and therefore, the suit as to be dismissed. 5. The defendant is still in possession and enjoyment of the suit property, he has raised 5 cocoanut sapplings and fenced all the sides no cause of action and therefore, the suit as to be dismissed. 5. The trial Court had framed necessary issues and entered trial. After appraisal of the evidence adduced on either side, it had dismissed the suit. 6. Aggrieved by the dismissal of the suit, the plaintiff as preferred an appeal before the First Appellate Court in A.S.No.42 of 2003. After hearing both sides, the learned First Appellate Judge had come to the conclusion of reversing the findings of the trial court and decreed the suit as prayed for. 7. The defendant, having aggrieved by the judgment and decree passed by the First Appellate Court, has preferred the present second appeal before this Court. 8. On admission of the second appeal, this Court has formulated the following substantial question of law to be decided in this appeal. "Whether the lower appellate court as a final court of facts, erred in not adverting to evidence of D.W.1 to D.W.4 independently as required by Order 41 Rule 31 of C.P.C., and also various decisions of Apex Court?” 9. Heard Mr.S.Sounther, learned counsel for the appellant and Mr.A.Muthukumar, learned counsel for the respondent. 10. The learned counsel for the appellant would submit in his argument that the lower Appellate Court had come to an erroneous finding in decreeing the suit for permanent injunction when there is no evidence to show that the plaintiff was in possession and enjoyment of the suit properties on the date of the suit. He would further submit that the report of the Advocate Commissioner was not considered by the First Appellate Court regarding the fact that the suit property was found in possession and enjoyment of the defendant since he delivered the key to enter into the suit property at the time of inspection. He would further submit that the evidence of DWs 1 to 4 were not considered by the First Appellate Court as true since there was a panchayat regarding the sale of the property. He would further submit that the evidence of DWs 2 to 4 would clearly show that the defendant was alone in possession and enjoyment of the suit property and therefore, the suit filed by the plaintiff for bare injunction cannot be maintained by him. He would further submit that the evidence of DWs 2 to 4 would clearly show that the defendant was alone in possession and enjoyment of the suit property and therefore, the suit filed by the plaintiff for bare injunction cannot be maintained by him. He would further submit that if really, the plaintiff is entitled to the suit property, he would have filed the suit for recovery of possession and the possession of the defendant regarding the suit property cannot be disturbed since he was put in lawful possession by the plaintiff himself on the basis of sale agreement for a sum of Rs.600/-. He would further submit that the evidence of DW2 regarding panchayat held in the village and the panchayat resolution produced as Ex.B2 should have been accepted by the First Appellate Court, but it had rejected the same stating some discrepancies which are not material. He would further submit that the suit filed by the plaintiff for bare injunction is not maintainable in view of the judgment of Hon'ble Apex Court reported in 2008 (4) SCC 594 (Anathula Sudhakar v.P.Buchi Reddy(Dead) by LRs and others). He would also request the Court that the plaintiff ought to have been non-suited since he was not found in possession of the suit property. He would further submit that the First Appellate Court has necessarily interfered with the judgment and decree passed by the trial court based upon the evidence recorded by the said Court and therefore, the judgment and decree passed by the First Appellate Court may be interfered and set aside and thus, the judgment and decree of the trial court may be restored. 11. The learned counsel for the respondent/plaintiff would submit in his argument that the plaintiff was the owner of the property and the said fact was admitted by the defendant and the suit property admittedly, a fallow land lying vacant and therefore, the possession follows title. He would further submit that the case of the defendant that he ha purchased the suit property for a sum of Rs.600/-orally was not true and in no occasion, the plaintiff had agreed to enter into any sale agreement nor accepted for oral sale for a sum of Rs.600/- and in pursuance of the said sale, the defendant was put in possession. He would further submit that the plaintiff did not engage the defendant as kariasthar but he was working as Thalayari and his service was ended since the plaintiff did not require his service. He would further submit that the case of the defendant that the property was sold to him was not true and the evidence adduced by the defendant, cannot be accepted and the First Appellate Court had considered all the evidence and since they are contradictory in nature, it did not accept the theory of panchayat and also the alleged possession held by the defendant as spoken by DWs 3 and 4. He would further submit that the alleged panchayat was not put to the plaintiff during the course of cross-examination. He would also submit that the alleged panchayat was stated to have taken place only after the suit but the evidence of DW2 did not state any date regarding the convening of panchayat in between parties. The evidence of DWs would not in any way help the defendant to show that he was in lawful possession of the suit properties, since the oral sale for a sum of Rs.600/-cannot be sustained in law, even it is true. He would further submit that the plaintiff cannot set up any right or possession in the suit property after admitting that the plaintiff was the owner of the suit property. He would further submit that even otherwise, the defendant was considered to be in possession of the suit property, his possession would be that of an agent holding possession on behalf of principal and therefore, it cannot be adverse to the plaintiff and he is deemed to be in possession on behalf of the plaintiff. He would cite a judgment of Hon'ble Apex Court reported in AIR 1990 SC 673 (Southern Roadways Ltd., Madurai v. S.M.Krishnan) for the said proposition of law. He would further submit that the First Appellate Court discussed the evidence and approached the case in accordance with law and facts and had rightly reversed the erroneous findings on facts, of the trial court. He would also submit that the finding of the trial court are contrary to the facts and law and therefore, it was rightly interfered by the First Appellate Court. He would also submit that the finding of the trial court are contrary to the facts and law and therefore, it was rightly interfered by the First Appellate Court. He would therefore, request the Court to dismiss the appeal by confirming the judgment and decree passed by the First Appellate Court in decreeing the suit. 12. I have given anxious thoughts to the arguments advanced on either side. 13. The suit property is a vacant site, lying fallow. The plaintiff was admittedly the owner of the suit property. Even though, the partition deed produced in Ex.A2 was denied by the defendant in his pleadings, he had admitted the plaintiff's title to the suit property and had claimed that the defendants had purchased the property on the foot of the sale agreement for a consideration of Rs.600/-. The further defence put forth by the defendant was to the effect that the suit property was purchased by him orally from the plaintiff and he was put in possession accordingly. The defendant deposed as DW1 and had spoken to that effect. Whether such an oral sale for a sum of Rs.600/- in respect of the suit property, even if true, is valid in law is a question. The First Appellate Court had found that a sale for more than Rs.100/-can be made only through registered document as per Section 54 of Transfer of Property Act. The First Appellate Court liberally discussed the said point and had come to the conclusion and found that the oral sale as pleaded by the defendant in respect of the suit property for a sum of Rs.600/- was held as invalid. It had also drawn the support from the judgment of this Court reported in 1998 (1) LW 590 (Thomas v. Davidson). 14. In the said judgment of this Court the principle laid down by the Full Bench of this Court reported in ILR 45 MAD 612 was followed and a oral sale for more than Rs.100/-was required to be in writing and be registered as per Section 54 of Transfer of Property Act and if not registered in a document, such oral sale deemed to have been invalid. Therefore, there is no point in upholding the oral sale as put-forth by the defendant in his written statement and evidence. Therefore, there is no point in upholding the oral sale as put-forth by the defendant in his written statement and evidence. It was also contended that the said transaction was only an agreement for sale and it was not an outright sale and therefore, the Section 54 of Transfer of Property Act is not applicable to the said argument since it has been categorically admitted by the defendant in his cross-examination that he is claiming his title to the suit property by virtue of an oral sale for a sum of Rs.600/-. Therefore, the defence as put-forth by the defendant that he was the owner of the suit property on the basis of oral sale for a sum of Rs.600/-was correctly discarded as not sustainable by the First Appellate Court. 15. When there was no right for the defendant in the suit property what would be his position if any regarding the suit property. The report of the Commissioner would go to show that the defendant had produced the key for opening the lock put up in the compound gate of the suit property. But, however, it was denied by plaintiff in his evidence that there was no lock put up in the suit property and it would have been created by the defendant prior to the inspection of the Commissioner. It is not the case of the defendant that he had raised any crop in the said properties but in the written statement it has been categorically admitted that it is lying fallow due to dearth of irrigating canals. In the said circumstances, it is a vacant fallow land and the possession of such properties would be concluded on the basis of title. When we decide about the title, it has been categorically laid down by Hon'ble Apex Court that in a suit for bare injunction, the title of the plaintiff has to be decided incidentally for the purpose of finding the possession. The relevant paragraph in the judgment cited by the learned counsel for the appellant reported in 2008 (4) SCC 594 (Anathula Sudhakar v.P.Buchi Reddy(Dead) by LRs and others) would be as follows:- "16. .... The relevant paragraph in the judgment cited by the learned counsel for the appellant reported in 2008 (4) SCC 594 (Anathula Sudhakar v.P.Buchi Reddy(Dead) by LRs and others) would be as follows:- "16. .... This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, were the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction." 16. Therefore, we have to see that in what way the plaintiff has got an indefeasible title in the suit property. Exs. A1 and A2 produced by the plaintiff were not disputed by the defendant. In fact, the defendant had admitted the title of the plaintiff in the suit property for the plea of oral sale. In the earlier discussion, we found that the oral sale was not established nor a legal one. Therefore, the plaintiff is certainly the owner of the property, who has got the right, title to the said property. It is a settled law that the possession follows title. Therefore, the plaintiff is deemed to be in lawful possession of the suit property. There was no other agreement of lease or licence pleaded by the defendant to evidence the possession and the defendant also failed to show any contingency. The only point raised by the defendant was that he was put in possession in pursuance of the oral sale. Since the plaintiff was found to be the lawful owner and the defendant was not found entitled to the suit property his alleged possession of the suit property in the absence of any other lawful agreements, cannot be deemed to be a lawful possession for the simple reasons that the suit property is a vacant land. It is also an admitted case that the suit property is lying vacant and fallow and no agricultural operations such as raising natrangal were done in the said property. Even though some coconut saplings are found in the suit property, it cannot be said that such plantation of coconut saplings would not in any way help the defendant to show his possession. 17. Even though some coconut saplings are found in the suit property, it cannot be said that such plantation of coconut saplings would not in any way help the defendant to show his possession. 17. As regards the panchayat said to have been held in between the parties, the First Appellate Court had discussed in detail regarding controversies in the resolution of panchayat produced in Ex.B2 and did not rely upon the evidence of DW2. Even otherwise, the evidence of DW2 is accepted, since the oral sale is not valid in law, it cannot be held that the panchayat can create any right over the suit property despite an oral sale above Rs.100/- is not valid under Section 54 of Transfer of Property Act. As regards, the evidence of DWs 3 and 4 regarding the possession of the suit properties held by the defendants they have spoken in respect of a vacant land in which no agricultural operations were held. In the earlier discussion, I have found that the plaintiff was the lawful owner of the suit property and since the suit property is a vacant land, possession follows title and plaintiff was found to be in lawful possession and therefore, the evidence given by DWs 3 and 4 cannot be considered as proving the possession of the defendant. The First Appellate Court had rightly not relied upon the evidence of DWs 3 and 4, since they were not in consonance with the provisions of law. No doubt, the judgment of Hon'ble Apex Court reported in 2008 (4) SCC 594 (Anathula Sudhakar v.P.Buchi Reddy(Dead) by LRs and others) in laying the principles regarding the suit filed for bare injunction. The relevant passage would run in para 15 and 16 would be as follows:- "15..... the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally. 16. But what if the property is a vacant site, which is not physically, possessed, used or enjoyed? In such cases the principle is tat possession, follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title." 18. In the said judgment, it has been held that possession follows title, when title has been established. In the said circumstances, the said judgment of Hon'ble Apex Court is not helpful to the appellant but would confirm the findings reached by the First Appellate Court. 19. For the foregoing discussion, I am not able to see any point in favour of the appellant and therefore, the question of law framed is decided against the appellant. Accordingly, I find no reason to interfere with the judgment and decree passed by the First Appellate Court and therefore, they are confirmed. 20. In fine, the second appeal preferred by the appellant/defendant is dismissed with costs and thereby, the judgment and decree passed by the First Appellate Court are confirmed.