Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3840 (MAD)

K. Balasubramani v. K. Subramani

2014-10-15

P.DEVADASS

body2014
Judgment : 1. This Second Appeal has been directed as against the Judgment and Decree, dated 30.09.2013, passed in A.S.No.47 of 2013, on the file of the learned Principal Subordinate Judge, Dindigul, confirming the Judgment and decree, dated 08.02.2013, passed in O.S.No.197 of 2011, by the learned District Munsif, Nilakottai. 2. The plaintiff and the defendant are blood brothers. The plaintiff instituted the suit in O.S.No.197 of 2011, in the Court of District Munsif, Nilakottai, seeking declaration as to his title based on Ex.A3 Sale Agreement and for consequential injunction. 3. Under Ex.A3, dated 21.01.1995, the defendant is agreed to sell the suit property for Rs.59,000/- inclusive of the advance paid under Ex.A3 and further amounts paid under Ex.A4, totally Rs.62,000/- has been paid. However, a regular Sale Deed has not been executed by the defendant in favour of the plaintiff. Under these circumstances, the plaintiff had filed the suit for a declaration as to his title to the suit property. 4. The respondent/defendant resisted the suit by filing written statement raising several contentions. 5. It is pertinent to note that during the trial, the defendant had admitted that the plaintiff is in possession of the suit property. 6. The learned District Munsif, Nilakottai, came to the conclusion that as on date as no sale deed has been executed by the defendant in favour of the plaintiff dismissed the suit. 7. In A.S.No.47 of 2013, the learned Principal Sub Judge, Dindigul, concurring with the view of the learned District Munsif, Nilakottai, and thus dismissed the appeal preferred by the plaintiff. 8. Aggrieved, the plaintiff had directed the present Second Appeal. 9. Learned counsel for the appellant would contend that since both the appellant and the respondent are blood brothers, the plaintiff thought that his brother/defendant would honour his commitment, after receiving the entire sale consideration, he did not do it. 10. The learned counsel for the appellant further contended that immediately, on execution of Ex.A3 Sale Agreement, the plaintiff was put in possession of the suit property and he is enjoying the suit property. Even during trial, the defendant has admitted that the plaintiff is in possession of the suit property. In these circumstances, at least the lesser relief of injunction might have been granted to the plaintiff. 11. Even during trial, the defendant has admitted that the plaintiff is in possession of the suit property. In these circumstances, at least the lesser relief of injunction might have been granted to the plaintiff. 11. On the other hand, the learned counsel for the respondent would contend that both the Courts below have took the view correctly. There is nothing to interfere with that. The learned counsel for the respondent would contend that the very right of the plaintiff over the suit property itself gone and there is no question of trimming the tail. Now, the plaintiff cannot woven a new case that too at the Second Appeal stage. Therefore, granting of the lesser relief sought for would not arise. 12. I have anxiously considered the rival submissions, perused the case records and the Judgments and Decrees of the Courts below. 13. Right to an immovable property could be acquired by regular title deed or by adverse possession or by disintegrating of the existence of common ownership to a property by metes and bounds. 14. Sale of immovable property is regulated under the provisions of Transfer of Property Act and Indian Registration Act. One of the mode of acquisition of property is by way of purchase by way of a Sale Deed. Execution of Sale Agreement is not equivalent to execution of a regular Sale Deed. Ofcourse, a Sale Agreement will become enforceable in a Court of Law. Based on Sale Agreement, the equitable relief of specific performance can be asked for. 15. In this case, the appellant and the defendant are blood brothers. Human bondage is different from persons abiding interest in money and property. They may take even common mess, but their money and property will not be common. Whatever might be the closeness of relationship right to property could be attained only as per Law. 16. As per Ex.A3, it is seen that the defendant had sold the property to the plaintiff. But, according to the appellant, there is no proper quid pro quo for the amount paid, namely, execution of sale deed. 17. Based on Ex.A3 alone the suit has been filed seeking a declaration as to plaintiff's title to the suit property. It is pertinent to mention that the suit as framed is not conducive for the relief sought for, namely, declaration as to title. The suit should have been properly constituted. 17. Based on Ex.A3 alone the suit has been filed seeking a declaration as to plaintiff's title to the suit property. It is pertinent to mention that the suit as framed is not conducive for the relief sought for, namely, declaration as to title. The suit should have been properly constituted. It should be properly tailored. Otherwise, stitching will not be proper and the shirt will not be suited. 18. Of course, in this case, as per the statement of the appellant, he might have paid the entire sale consideration. But, unless it has been transferred by a regular Sale Deed, proprietary right in the suit property will remain with the defendant only and it will not pass on to the plaintiff. 19. Dehors Sale Deed in pursuance of Ex.A3 Sale Agreement, a Court cannot pronounce that the plaintiff had become owner of the suit property. Under these circumstances, the Trial Court is bound to deny him the declaration sought for and rightly that is what the view taken by the First Appellate Court also. 20. Under the guise of moulding the relief, the basic principles relating to framing of suit and seeking relief, which may be catalogued as Rules of pleading cannot be thrown into wind. When the parties have gone to trial and during the trial although there are lacking of some pleadings, with some view as to some relief they have litigated and there are some basic pleadings for granting such relief, then the Court can mould the relief accordingly. 21. But, in this case, both sides have litigated on the question of title, based on Ex.A3 Sale Agreement. It was not fought as an injunction suit. The relief of injunction remained only a tail, but in this case the head itself had gone. In such circumstances, the tail should not have any existence. Under these circumstances, the last battle of the learned counsel for the appellant, at least, to get some reprieve for his client also has to fail. 22. In these circumstances, this Court has to agree with the views taken by the learned District Munsif, Nilakottai, as well as the learned Principal Sub Judge, Dindigul. 23. In the result, this Second Appeal fails and it is hereby dismissed. 22. In these circumstances, this Court has to agree with the views taken by the learned District Munsif, Nilakottai, as well as the learned Principal Sub Judge, Dindigul. 23. In the result, this Second Appeal fails and it is hereby dismissed. Judgment and Decree, dated 30.09.2013, passed in A.S.No.47 of 2013, on the file of the learned Principal Subordinate Judge, Dindigul, confirming the Judgment and decree, dated 08.02.2013, passed in O.S.No.197 of 2011, by the learned District Munsif, Nilakottai, are confirmed. However, both the appellant and the respondent shall bear their own costs.