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2014 DIGILAW 388 (MAD)

Periasamy Reddy – Died v. Kousalya

2014-02-18

R.KARUPPIAH

body2014
Judgment : 10. Per contra, the learned counsel for the respondent would submit that the suit property was originally belonged to the respondent's husband Munusamy and after his death, the respondent is in possession over the suit property. It is further submitted that the deceased first appellant or his LRs are not entitled to any right in the suit property and they are not in possession of the suit property. The learned counsel pointed out that the above said alleged Ex.B1/agreement for sale is not true and valid document and the appellants have not proved the same as genuine document. The learned counsel further contended that in the pleadings it is not stated as the deceased first appellant was in possession as a lessee in the suit property, but at the time of evidence, the deceased first appellant has deposed as if he was tenant in the suit, even prior to the agreement of sale. Therefore, the above said contention is also not true, since the suit property was in possession of the respondent's husband/Munusamy and after his death the respondent is in possession and enjoyment over the suit property as LRs of the deceased Munusamy. 11. Admittedly, the appellants have not claimed any title over the suit property, but claimed only possession over the suit property as per Ex.B1/agreement of sale allegedly to have executed by respondent husband viz., Munusamy and his brother son Balaraman. 12. The learned counsel for the respondent would submit that the suit property was originally belonged to Munusamy and after his death as his wife, the respondent is in possession and enjoyment of the suit property and also denied the alleged agreement of sale. The appellants have admitted that the respondent husband having ½ share in the suit property, but by contending that the remaining ½ share belongs to Balaraman. Except the oral testimony of appellant, no other documentary evidence to prove that the suit property was originally belonged to Munusamy and his brother or his brother's son Balaraman. 13. On the side of the respondent produced Ex.A1-Patta issued in the name of respondent husband viz., Kannan @ Munusamy, Ex.A2-Chitta for Fasili year 1399-1408, Ex.A3-Adangal and Ex.A4-Kist receipts. The above said documents would prove that the property lies in the name of Munusamy alone. 13. On the side of the respondent produced Ex.A1-Patta issued in the name of respondent husband viz., Kannan @ Munusamy, Ex.A2-Chitta for Fasili year 1399-1408, Ex.A3-Adangal and Ex.A4-Kist receipts. The above said documents would prove that the property lies in the name of Munusamy alone. Further the respondent has produced the documents issued in the name of respondent/Kousalya viz., Ex.A8-Patta pass book and Ex.A9-Kist receipts paid by respondent revealed that after the death of Munusamy, in the revenue records transferred in the name of respondent. On perusal of all the above said documents would reveal that the patta was originally issued in the name of the respondent husband/Kannan@Munusamy and after his death patta was transferred in the name of the respondent and she alone paying tax in her name. It is also revealed that the suit property was originally in possession of the respondent husband and after his death the respondent is in possession over the suit property. 14. As rightly pointed out by the learned counsel for the respondent the appellants have failed to produce any documentary evidence to prove that the suit property originally belonged to the deceased Munusamy and his brother. Further the above said alleged Ex.B1/agreement for sale executed by the deceased Munusamy and Balaraman was denied by the respondent side. But, even after filing the present suit, the deceased first appellant has not filed any suit for specific performance to execute the sale deed in terms of the above said alleged Ex.B1/agreement of sale. No reason has been stated for not taking any steps to execute the sale deed in terms of the alleged agreement of sale. Further as rightly pointed out by the learned counsel for the respondent except oral evidence, there is no other documentary evidence to prove that the deceased first appellant has paid the balance sale consideration of Rs.2,000/- on 25.01.2000 and no such endorsement has also been made in the Ex.B1/agreement for sale. Therefore, the above said alleged Ex.B1/agreement of sale has not been proved as genuine document. 15. Admittedly both the Courts below have held that the appellants have not proved that the suit property was originally belonged to the deceased Munusamy and his brother/Subramani, after the death of Subramani, both deceased Munusamy and Balaraman s/o.Subramani are entitled to the suit property. Therefore, the above said alleged Ex.B1/agreement of sale has not been proved as genuine document. 15. Admittedly both the Courts below have held that the appellants have not proved that the suit property was originally belonged to the deceased Munusamy and his brother/Subramani, after the death of Subramani, both deceased Munusamy and Balaraman s/o.Subramani are entitled to the suit property. It is further held that the appellants have miserably failed to prove the genuineness of the alleged Ex.B1/agreement of sale. Both the Courts below have further discussed and held that the appellants have not proved the alleged part balance consideration of Rs.2,000/- by adducing any documentary evidence or reliable oral evidence. As already discussed in the earlier paras both the Courts below have correctly discussed the above said facts and findings of both the courts below are not perverse findings. 16. The learned counsel for the appellants submitted that even prior to Ex.B1/agreement of sale, the suit property was given to the deceased first appellant by way of lease and on the basis of lease agreement the deceased first appellant was in possession. Even if the agreement of sale is not proved, the appellants are entitled to the possession as per lease agreement. As rightly pointed out by the learned counsel for the respondent, the appellants have not pleaded the above said contention in the written statement and deposed only at the time of oral evidence. Further no documentary evidence (or) oral evidence except the interested oral testimony of DW1 and therefore the above said contention cannot be accepted. 17. The next contention of the learned counsel for the appellants is that since the appellants have paid the entire sale consideration as per Ex.B1/agreement of sale, the appellants are entitled to possession as per Section 53(A) of the Transfer of Property Act. The learned counsel for the respondent submitted that the said alleged Ex.B1/agreement of sale has not been proved as genuine document. Even assuming that it is a genuine document, the appellants have not filed any suit for specific performance seeking the relief of execution of the sale deed as per Ex.B1/agreement of sale and also not proved their readiness and willingness to perform their part of contract. It is also pointed out that the appellants have not proved the payment of balance sale consideration of Rs.2,000/-. It is also pointed out that the appellants have not proved the payment of balance sale consideration of Rs.2,000/-. In the said circumstances, the appellants are not entitled to claim right over the suit property under Section 53(A) of the Transfer of Property Act. 18. The learned counsel for the respondent in support of his contention relied on the decision of the Bombay High Court reported in AIR 1995 Bombay 113 Smt.Kamalabai Laxman Pathak and others V. Onkar Parsharam Patil and others wherein in paras 7 and 9, it is held as follows : 7. "......In this context, I need to emphasise that it is a necessary ingredient of Section 53A of the Transfer of Property Act that the terms of the written contract must be ascertainable with reasonable certainty. The emphasis on the words "reasonable certainty" presupposes that the Court should be in a position to judge the exact nature of the transaction that is the subject-matter of the document. This is the foundational basis for Section 53A of the Transfer of Property Act and in the absence of a document (and in the absence of secondary evidence) from which the Court can ascertain the terms of that document with reasonable certainty, it would be difficult to hold that the defence based solely on the doctrine of part-performance would assist the defendants." 9. "As indicated earlier, Section 53A of the Transfer of Property Act will apply only in such cases where all the ingredients are satisfied and not merely where some of them are satisfied. ......" 19. In the instant case, the appellants have not proved the Ex.B1/agreement of sale as a genuine document and not proved their readiness and willingness to perform their part of contract. Further, the appellants have not filed any separate suit for specific performance of the contract. Further, the appellants have not proved the alleged balance sale consideration of Rs.2,000/- by oral and documentary evidence. Therefore, the appellants are not entitled to seek any relief under Section 53A of the Transfer of Property Act, since the above said conditions are not complied with by the appellants. 20. Further, the appellants have not proved the alleged balance sale consideration of Rs.2,000/- by oral and documentary evidence. Therefore, the appellants are not entitled to seek any relief under Section 53A of the Transfer of Property Act, since the above said conditions are not complied with by the appellants. 20. The next contention as stated by the appellants in the written statement that the suit property originally belonged to the deceased Munusamy and his brother deceased Subramani and after the death of Subramani, both Munusamy and Balaraman s/o.Subramani entered into an agreement of sale with the deceased first appellant. As per the agreement of sale, possession of the suit property was hand over to the deceased first appellant and in the said circumstances, suit for permanent injunction alone filed by the respondent is not maintainable on the ground of non-joinder of necessary parties viz., Balaraman and other LRs of Munusamy. As already stated supra, the appellants have miserably failed to prove the alleged Ex.B1/agreement for sale. Further, in the said agreement also it is not stated that the possession was handed over to the deceased first appellant by the Munsuamy and Balaraman. As against the pleadings and written statement, the deceased first appellant deposed that even prior to the agreement of sale he was in possession as lessee and the above said fact also not proved. Therefore, the contention of the appellant is not correct. 21. The learned counsel for the respondent submitted that even assuming that the Balaraman also entitled to the suit property as co-owner, the present suit filed for permanent injunction by one of the co-owner viz., by the respondent as against the alleged trespassers and hence, the suit is maintainable as against the appellants who are trespassers. To substantiate his contention, the learned counsel relied on the decisions of this Court reported in (i) 1996 (1) MLJ 338 Nachal and another V. C.Arjunan and another ( and ) (ii) (2007) 1 MLJ 135 S.A.Mohammed Sheriff and others V. C.D.Meyyappan. (i) 1996 (1) MLJ 338 (cited supra) wherein in para 4 of the decision this Court held as follows : "4. The view expressed by the appellate Court is not correct in view of the fact that the plaintiffs have admitted the rights of the other co-owners in the suit properties. (i) 1996 (1) MLJ 338 (cited supra) wherein in para 4 of the decision this Court held as follows : "4. The view expressed by the appellate Court is not correct in view of the fact that the plaintiffs have admitted the rights of the other co-owners in the suit properties. Insofar as the defendant is concerned according to the case of the plaintiffs, they are trespassers and they have no right in the properties. In such a situation, any one co-owner can file a suit as against the alleged trespassers and claim reliefs. This proposition has been laid down by a Division Bench of this Court in Thimmayya V. Siddappa AIR 1925 Mad 63 : 75 I.C. 112" (ii) (2007) 1 MLJ 135 (cited supra) in para 11 this Court held as follows : "11.The object of Order 1, Rule 8 is only to prevent multiplicity of litigations. Because when persons seek to represent a particular community or Association, the right and interest of others have to be taken into account and that is why publication is ordered and permission is also sought for to represent others. In such cases, there is a chance for multiplicity of litigation by persons who want to sue others, instead of the persons who seek to represent others. In a case of this nature, where the co-owners are family members, and when there is no dispute among themselves as to their equal shares, there is no necessity to file a petition to get permission to obtain leave of the Court to file the suit in a representative capacity. ....." 22. A careful reading of the above said decisions would reveal that the present suit filed by the respondent seeking a relief of permanent injunction is maintainable. As rightly pointed out by the learned counsel for the respondent, that both the Courts below have fairly considered the evidence and had reached to a correct conclusion that the respondent is in possession of the suit property and entitled for permanent injunction. This court does not find any reason much less valid reason to interfere with the well considered findings rendered by both the Courts below. 23. This court does not find any reason much less valid reason to interfere with the well considered findings rendered by both the Courts below. 23. The learned counsel appearing for the respondent submitted that the findings of both the courts below are not perverse findings and hence, no need to re-appreciation of the evidence in this regard by applying Section 100 Code of Civil Procedure. The learned counsel for the respondent in support of his above said contention relied on the following decisions of the Hon'ble Apex Court: (i)In (1989) 2 SCC 685 Maniar Ismail Sab and others V. Maniar Fakruddin and others it is held as follows : "2. ..... What the High Court had done is to reverse the findings of fact upon considerations which proceed entirely upon facts. This the High Court was not competent to do in a Second Appeal under Section 100 of the Code of Civil Procedure" (ii)The Hon'ble Supreme Court in the decision reported in 1992 Supp (1) Supreme Court Cases 712 Ramaswamy Kalingaryar V. Mathayan Padayachi observed as follows : "2. .....The High Court had thus no jurisdiction either to-assess the evidence or without re-assessing as such find any infirmity n it. The measure of proof is within the domain of the two courts of fact in the hierarchy. Sufficiency of proof can be no ground for the High Court to interfere in a finding of fact" (iii)In para 21 of the authority reported in (1996) 6 SCC 166 Navaneethammal V. Arjuna Chetty it is held as follows : "21. In our considered view the lower appellate Court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by limitation. Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate Court was based on no material." (iv)The Hon'ble Apex Court in the judgment reported in (1998) 3 SCC 331 Tirumala Tirupati Devasthanams V. K.M.Krishnaiah "12. It is obvious that under Section 100 CPC in Second appeal it was not open to the second appellate Court to re-appreciate the evidence and reject the evidence accepted by the Courts below on the question of possession". It is obvious that under Section 100 CPC in Second appeal it was not open to the second appellate Court to re-appreciate the evidence and reject the evidence accepted by the Courts below on the question of possession". (v)Para 11 of the judgment in Leela Soni and others V. Rajesh Goyal and others reads as follows "11. There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure (CPC) is confined to the framing of substantial questions of law involved in the second appeal and to decide the same. Section 101 CPC provides that no second appeal shall lie except on the grounds mentioned in Section 100 CPC. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are erroneous it will be apt to refer to Section 103 CPC which enables the High Court to determine the issues of fact: “103. Power of High Court to determine issue of fact.—In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,— (a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.” 24. From the above said settled principles of law laid down by Hon'ble Apex Court, Bombay High Court and Our High Court as relied on by the learned counsel for the respondent, it is clear that if the findings of both the courts below are correct findings and not perverse findings regarding the facts, the High Court should not interfere with the above said findings by applying Section 100 CPC. 25. 25. In the instant case, the appellants have not proved the possession was handed over to the deceased first appellant, in the above said circumstances, the contention of the appellants is that the possession should have been handed over to the deceased first appellant, since he has paid huge amount of sale consideration cannot be accepted. Further, as rightly held by both the Courts below and as discussed in earlier paras, the respondent has proved the possession by reliable oral and documentary evidence and the above said documents are not created documents as contended by the appellants. This Court does not find any reason much less valid reason to interfere with the well considered finding rendered by the Courts below and the substantial questions of law are accordingly answered against the appellants. Therefore, the findings of both the Courts are to be confirmed and the second appeal is liable to be dismissed and the suit filed by the plaintiff is to be decreed as prayed for in the suit. 26. In the result, the second appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.