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2013 DIGILAW 483 (MAD)

Padmavathy v. P. Thiruthuvaraj

2013-01-22

VINOD K.SHARMA

body2013
JUDGMENT Vinod K. Sharma, J. 1. The plaintiffs/applicants have filed suit for declaration, that the plaintiffs 2 to 4 are the absolute owners of the Schedule-F property and as such entitling to take the vacant possession of the Schedule-F property from the defendants. Consequential relief of mandatory injunction is also prayed for directing the defendants to vacate and deliver the vacant possession of the Schedule-F property to the plaintiffs 2 to 4 by removing the illegal constructions put up in the Schedule-F property. 2. Further declaration is sought for ownership of Schedule-G property with possession and for permanent injunction, restraining the defendants, their men and agents from interfering with the plaintiffs' peaceful possession and enjoyment of the Schedule-G property. 3. It is pleaded case of the plaintiffs/applicants, that the property described in Schedule-A was originally owned by Thiru Munusamy, who purchased the property vide sale deed dated 07.11.1900. After the death of Thiru Munusamy, his son Thiru Ponnusamy sold the land measuring 37.5 cents in the Schedule-A property to the ancestors of the 1st plaintiff's mother, i.e. Elangali Ammal, namely, Rajammal and Muniammal vide sale deed dated 07.04.1925. 4. The property was inherited by mother of the 1st plaintiff, being the only legal heir from Tmt. Rajammal and Tmt. Muniammal. The mother of 1st plaintiff vide sale deed dated 11.07.1938 purchased total land measuring 37.5 cents from another son of Thiru Munusamy, namely, Kuppu and his son Athimulam. This property is Schedule-B property. 5. Out of 58 cents in Schedule-A property, 30.5 cents of the property was acquired by the State Government under the Award No.18 of 1974. 6. That when Schedule-C property was acquired, Schedule-B property was sub-divided and as such in the Schedule-B property on the Northern side of the Schedule-C property to an extent of 0 acres and 33.5 cents more fully described in the Schedule-D hereunder and on the Southern side of the Schedule-C property, to an extent of 0 acres and 11 cents and more fully described in the Schedule-E hereunder alone the properties out of the Schedule-B property is available for the first plaintiff's mother Elangalli Ammal as her absolute property. 7. That after acquiring the Schedule-C property, Schedule-D property was identified as survey No.283/1 and Schedule-E property was identified as survey No.283/3 and 283/11. The Schedule-C property acquired for the purpose of forming 100 feet Taramani-Velachery link Road was identified as S.No.283/2. 8. 7. That after acquiring the Schedule-C property, Schedule-D property was identified as survey No.283/1 and Schedule-E property was identified as survey No.283/3 and 283/11. The Schedule-C property acquired for the purpose of forming 100 feet Taramani-Velachery link Road was identified as S.No.283/2. 8. That after acquiring the Schedule-C property, the entire Schedule-C property is being utilized for the formation 100 Feet Velachery – Taramani link Road by the Highways department of Government of Tamil Nadu and as such the entire Schedule-C property is in absolute possession of the Highways department of Government of Tamil Nadu and the same is being used by the general public as public road. The Highways department of Government of Tamil Nadu, by letter dated 16.11.2009 also confirmed the same. Leaving the Schedule-C property out of the Schedule-B property from the date of acquisition by the Government of Tamil Nadu as stated above, the first plaintiff's mother Elangalli Ammal being the absolute owner of the Schedule-D property and Schedule-E property was in absolute possession and enjoyment of the Schedule-D property and Schedule-E property till her life time. The remaining properties in the Schedule-A property belonging to the heirs of Munusamy and the claimants under them, were identified as survey No.283/4 to 283/10. 9. It is the case of plaintiffs/applicants, that patta No.510 for Schedule-D property and Schedule-E property was also in the name of the 1st plaintiff's mother Elangalli Ammal. Similarly, the mother of 1st plaintiff's was recorded as absolute owner of the Schedule D & E property in Chitta and Adangal. It is further case, that 1st plaintiff is the only legal heir and plaintiffs 2 to 4 are her children. 10. It is submitted, that the mother of 1st plaintiff died on 19.06.1985. The 1st plaintiff, being illiterate lady, was living with her husband, whereas husband was employed as Cook and she was also employed as housemaid, therefore, she could not visit the property. That by taking advantage of the death of 1st plaintiff's mother and absence of the 1st plaintiff and her family, the defendants encroached the Schedule-D and E properties. The 1st plaintiff, being illiterate lady, was living with her husband, whereas husband was employed as Cook and she was also employed as housemaid, therefore, she could not visit the property. That by taking advantage of the death of 1st plaintiff's mother and absence of the 1st plaintiff and her family, the defendants encroached the Schedule-D and E properties. That the defendants have done fraudulent acts as mentioned below: "(i) The defendants 1 to 4 with an intention to encroach the portions of the Schedule-D property, created the following fraudulent documents for the Schedule-C property, which is owned by the Government of Tamil Nadu as per the award No.18/74 and which is in possession of the High Ways department as part of public Road namely 100 ft Taramani Velachery Link Road. (a) The defendants 1 to 4 knowing well that they have no right over the schedule properties and knowing well that the Schedule-C property is the property of the first plaintiff's mother Late. Elangali Ammal and knowing well that the first plaintiff's mother Elangali Ammal passed away leaving the first plaintiff as her legal heir, surreptitiously, without the knowledge of the plaintiffs, by conspiring with each other created the sale deed dated 11.11.1991, in the name of the second defendant bearing Document No.2320 of 1991, registered before the Sub-Registrar, at Saidapet, for the portion of the Schedule-C property. (b) The defendants 1 to 4 knowing well that they have no right over the schedule properties and knowing well that the Schedule-C property is the property of the High ways department and the schedule-D property is the property of the first plaintiff's mother Late.Elangali Ammal and knowing well that the first plaintiff's mother Elangali Ammal passed away leaving the first plaintiff as her legal heir, surreptitiously, without the knowledge of the plaintiff, by conspiring with each other created the sale deed dated 11.11.1991, in the name of the first defendant bearing Document No.2325 of 1991, registered before the Sub-Registrar, at Saidapet, for the portion of the Schedule-C property. (c) The defendants 1 to 4 knowing well that they have no right over the schedule properties and knowing well that the Schedule-C property is the property of the High ways department and the Schedule-D property is the property of the first plaintiff's mother Late. (c) The defendants 1 to 4 knowing well that they have no right over the schedule properties and knowing well that the Schedule-C property is the property of the High ways department and the Schedule-D property is the property of the first plaintiff's mother Late. Elangali Ammal and knowing well that the first plaintiff's mother Elangali Ammal passed away leaving the first plaintiff as her legal heir surreptitiously, without the knowledge of the plaintiffs, by conspiring with each other created the sale deed dated 11.01.1993, in the name of the second defendant bearing Documente No.343 of 1993, registered before the sub-registrar, at Saidapet, for the portions of the Schedule-C property. (d) The defendants 1 to 4 knowing well that they have no right over the schedule properties and knowing well that the Schedule-C property is the property of the High ways department and the schedule property is the property of the High ways department and the Schedule-D property is the property of the first plaintiff's mother Late. Elangali Ammal and knowing well that the first plaintiff's mother Elangali Ammal passed away leaving the first plaintiff as her legal heir, surreptitiously, without the knowledge of the plaintiff, by conspiring with each other created the sale deed dated 21.08.1993, in the name of the second defendant bearing Document No.1539 of 1993, registered before the sub-registrar, at Saidapet, for the portion of the Schedule-C property. (e) In the above said sale deeds neither the plaintiffs nor the first plaintiff's mother Elangali Ammal is a party. The sale deeds were created by the defendants 1 and 2 fraudulently and against the public policy, knowing well that the Schedule-C property is the public road and as such fraudulently created the above said sale deeds. Hence, the same being void ab-initio does not confer any right or title over any of the schedule properties to the defendants 1 and 2. The Schedule-C property, in S.No.283/2, is the public property and as such any sale deeds created by the defendants 1 and 2 with reference to the said survey S.No.283/2, are fraudulent and opposed to public policy and as such the same are void ab-initio and not binding not only against the Highways Department but also against the plaintiff. The Schedule-C property, in S.No.283/2, is the public property and as such any sale deeds created by the defendants 1 and 2 with reference to the said survey S.No.283/2, are fraudulent and opposed to public policy and as such the same are void ab-initio and not binding not only against the Highways Department but also against the plaintiff. (ii) The plaintiff respectfully submits that the defendants 1 and 2 having created the false document as stated above, by conspiring with each other created the forged documents and committed following fraudulent acts as detailed here under: (a) The defendants 1 and 2 by conspiring with each other by creating imaginary fraudulent subdivision namely 283/13 created the forged patta bearing No.4969 in the name of the second defendant. (b) The defendants 1 and 2 by conspiring with each other by creating imaginary fraudulent subdivision namely 283/14 created the forged patta bearing No.5023 in the name of the first defendant. (c) However, the Schedule-A property in S.No.283 is subdivided in to eleven subdivisions namely 283/1 to 283/11 only. The alleged subdivision namely 283/13 and 283/14 are not at all available and the same are falsely claimed by the defendants only for the purpose of their fraudulent claim. The above said forged pattas are bearing TR.No.46/97-98 for the forged patta bearing No.4969 in the name of the second defendant and TR.No.45/97-98 for the patta bearing No.5023 in the name of the second defendant were not at all issued by the revenue department and as such the said pattas are forged and created by the defendants 1 and 2 by conspiring with each other. The Deputy Tahsildar, Mambalam-Guindy Talu, by letter dated 11.12.2009 bearing No.A.1/146/09-10 confirmed that the property in S.No.283 is subdivided in to Sub divisions No.283/1 to 283/11 alone. Similarly the Assistant Director of Survey, Chennai also by letter dated 14.12.2009 bearing No.O.Mu.E1/4938/09 confirmed that the property in S.No.283 is subdivided in to Sub divisions No.283/1 to 283/11 alone. (d) The defendants 1 and 2 by creating the forged patta as detailed above on 28.04.1998, using the said forged patta and the fraudulent sale deeds in their name as detailed above created a false building planning remittance challan bearing Serial No.D10/7310/98, with the Corporation of Chennai. (d) The defendants 1 and 2 by creating the forged patta as detailed above on 28.04.1998, using the said forged patta and the fraudulent sale deeds in their name as detailed above created a false building planning remittance challan bearing Serial No.D10/7310/98, with the Corporation of Chennai. (e) The defendants 1 and 2 by creating the above said false building planning remittance challan, using the fraudulent sale deed, forged patta and false building plan remittance challan created false property tax demand notices, with the connivance of the corporation officials. (f) The defendants 1 and 2 after creating the above said forged documents, taking advantage of the plaintiff's non availability in or near the schedule property, in the year 2005 surreptitiously, without knowledge of the plaintiff, encroached upon the portion of the Schedule-D property, and illegally put up the unlawful construction in the encroached portion which is more-fully described in the Schedule-F here under. 20. The plaintiffs respectfully submit that the defendants 1 and 2 having encroached the Schedule-F property, by joining with the defendants 5 to 7, committed the following fraudulent acts: (a) The defendants 1 and 2 having encroached the Schedule-F property, fraudulently by colluding with the defendants 5 to 7 created false and fraudulent rental agreement dated 01.02.2005 in the name of the 5th defendant for the portion of the building illegally constructed in the Schedule-F property. (b) The defendants respectfully submit that the defendants 5 to 7 in the guise of the rental agreement, as a tenant under the defendants 1 and 2, using the false agreement of rent occupied the portion of the building in the Schedule-F property. 24. (b) The defendants respectfully submit that the defendants 5 to 7 in the guise of the rental agreement, as a tenant under the defendants 1 and 2, using the false agreement of rent occupied the portion of the building in the Schedule-F property. 24. The plaintiffs respectfully submit that the defendants 5 to 7, having came to know through the first plaintiff that the first plaintiff's mother Elangaliammal is the real owner of the schedule properties, and the first plaintiff's mother Elangali Ammal passed away and as such the first plaintiff being the legal heir of the said Elangali Ammal entitled to the schedule-D and schedule-E property and after the plaintiffs taken possession of the schedule-G property and are in possession and enjoyment of the schedule-G property as absolute owner of the schedule-D and schedule-E property, and the defendants 1 and 2 have no title over the schedule properties, defendants 5 to 10 by conspiring with each other, from the year 2007 with an intention to grab the Schedule-G property and with an intention to throw away the plaintiffs from the schedule-G property, created the forged documents and committed the following illegal acts: a. The defendants 5 to 10 by conspiring with each other, with an intention to grab the schedule-G property and with an intention to throw the plaintiffs out of their possession from the schedule-G property, by impersonating the name of the first plaintiff's mother Late Elangali Ammal, created the forged will dated 24.03.1993, in the name of 10th defendant for an extent of 0 acres and 10.5 cents of vacant land in the schedule-D property. b. The defendants 5 to 10 by conspiring with each other with an intention to grab the schedule-G property and with an intention to through the plaintiffs out of their possession from the schedule-G property, having created the forged Will dated 24.03.1993, by using the same, created forged and fraudulent sale deed dated 16.07.2007 in the name of the 8th defendant and registered the same as Document bearing No.3216 of 2007 registered before the sub-Registrar at Velachery with respect to a portion of the schedule-G property to an extent of 1806 sq.feet of Vacant Land. c. The defendants 5 to 10 by conspiring with each other with an intention to grab the schedule-G property and with an intention to throw the plaintiffs out of their possession from the schedule-G property, having created the forged Will dated 24.03.1993, by using the forged Will dated 24.03.1993, created forged and fraudulent sale deed dated 16.07.2007 in the name of the 9th defendant and registered the same as Document bearing No.3220 of 2007 registered before the sub-Registrar at Velachery with respect to a portion of the schedule-G property to an extent of 2825 sq.Feet of Vacant Land. d. The defendants 5 to 10 with an intention to grab the schedule-G property and with an intention to through the plaintiffs out of their possession from the schedule-G property, having created the forged Will, and forged sale deeds as detailed above, using the same created the forged power of attorney dated 26.07.2007 executed by the 9th defendant in the name of the 6th defendant and registered the same as document bearing No.1953 of 2007, registered before the sub-registrar at Velachery for the portion of the schedule-G property vacant land. e. The defendants 5 to 10 with an intention to grab the schedule-G property and with an intention to through the plaintiffs out of their possession from the schedule-G property, having created the forged Will, and forged sale deeds as detailed above, using the same created the forged power of attorney dated 26.07.2007 executed by the 8th defendant in the name of the 6th defendant and registered the same as document bearing No.1954 of 2007, registered before te sub-registrar at Velachery for the portion of the schedule-G property vacant land. f. The defendants 5 to 10 with an intention to grab the schedule-G property and with an intention to through the plaintiffs out of their possession from the schedule-G property, having created the forged Will, and forged sale deeds as detailed above, using the same created forged and fraudulent lease agreement dated 21.10.2008, executed by the defendants 8 and 9 in the name of the 5th defendant and registered as document bearing No.4353 of 2008, registered before the sub-registrar at Velachery for the entire schedule-G property showing the schedule-G property as land and superstructure." 11. It is the case of plaintiffs/applicants, that defendants 1 and 2 have encroached the Schedule-F property and have rented out the property to defendant nos.5 to 7, where illegal constructions have been raised. It is further case, that the 1st plaintiff has settled the property in favour of plaintiff nos.2 to 4 vide settlement deed dated 06.10.2008. It is submitted that, the defendants have been conspiring to take over the property. Allegations are also levelled, that forged Will has been created. 12. In sum and substance of the pleadings, the plaintiffs/applicants claim, that they are absolute owners of the property through mother of 1st plaintiff, whereas defendants are encroachers of the suit property without any right or title in the property. 13. This Court, on 06.12.2012 had passed the following order: "The plaintiffs/applicants have filed a suit for declaration and possession and also for injunction, claiming interim injunction restraining the respondents from dealing with the schedule 'G' and 'F' properties, including creating any further encumbrance till disposal of the suit. 2. The second application has been filed for temporary interim injunction restraining the defendants/respondents from interfering with peaceful possession of the applicants. 3. The applications are opposed by the non-applicants on the plea that the plaintiffs before filing the suit in this Court, had earlier approached the City Civil Court by filing a suit for permanent injunction for the same property which was got dismissed as withdrawn, without liberty to file a fresh suit on the same cause of action. 4. This fact is disputed by the learned counsel for the applicants. He prays for short adjournment to place on record the order passed by the learned Civil Judge in allowing withdrawal of the suit. Adjourned to 11.12.2012." 14. Learned counsel for the respondents placed on record copy of the order passed by the learned XIII Assistant Judge (Vacation Court), City Civil Court, Chennai on 17.05.2012, which reads as under: "JUDGMENT Suit for Permanent Injunction and for costs. In view of the endorsement the suit hearing advanced to today itself and the suit is dismissed as withdrawn. Pronounced by me in Open Court, this the 17th day of May, 2012." 15. In view of the endorsement the suit hearing advanced to today itself and the suit is dismissed as withdrawn. Pronounced by me in Open Court, this the 17th day of May, 2012." 15. It is seen, that the plaintiffs/applicants on earlier occasion had filed Suit for permanent injunction against defendants/respondents in the City Civil Court, Chennai, which was got dismissed as withdrawn without liberty to file afresh one on the same cause of action. In any case, no such liberty was granted to the plaintiffs/applicants to file the suit. 16. Learned counsel for the plaintiff/applicants vehemently contended, that at the time of filing suit for permanent injunction, application was moved under Order II Rule 2 of CPC, seeking liberty to subsequently file suit to declaration, which was allowed. 17. However, the plaintiffs/applicants have failed to plead the fact regarding filing of suit for injunction and liberty given to the plaintiffs/applicants to file subsequent suit under Order II Rule 2 of the CPC. 18. Learned counsel for the applicants/plaintiffs referred to the endorsement made by the learned counsel for the plaintiffs at the time of withdrawal of suit, wherein liberty was sought to file afresh suit. However, reading of the order passed by the City Civil Court, Chennai does not show that any such liberty was granted to file fresh suit on the same cause of action, as would be clear from the order reproduced above. 19. That the learned counsel for the plaintiffs/applicants also contended, that the cause of action in both the suits is different, therefore, the present suit is maintainable. 20. It is well settled law, that the party coming to the Court with unclean hand is not entitled to the discretionary relief of injunction. Admittedly, the plaintiffs/applicants have not disclosed the fact regarding the filing previous suit, which was got dismissed as withdrawn. The suit was withdrawn without liberty to file fresh one. 21. The fact remains, that the plaintiffs/applicants did not disclose the material fact regarding filing of previous suit and its withdrawal, therefore, cannot be said to have come to the Court with clean hands, thus, are not entitled to the discretionary relief of injunction. 22. Consequently, all these applications are dismissed. No costs.