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2015 DIGILAW 2193 (MAD)

R. Ponnusamy (Died) v. S. Velusamy

2015-06-09

R.MALA

body2015
JUDGMENT : 1. The second appeal arises out of the judgment and decree dated 17.12.2004 in A.S.No.78 of 2003 on the file of the Additional District Court (Fast Track Court No. III), Namakkal, confirming the judgment and decree dated 25.11.1998 in O.S.No.146 of 1997 on the file of the District Munsif Court-cum-Judicial Magistrate's Court, Paramathi. 2. The averments made in the plaint are as follows:- (i) Originally, the suit property belonged to one Duraisamy Gounder, S/o.Rasappa Gounder. The said Duraisamy Gounder agreed to sell the suit property to the plaintiff, for which, he entered into a sale agreement dated 20.06.1987 for consideration of Rs.50,000/- and the plaintiff has paid Rs.20,000/- as an advance and agreed to complete the sale on or before 20.01.1988. Even though the plaintiff is ready to pay the balance sum, the said Duraisamy is not ready and willing to perform the part of contract. Therefore, the plaintiff has sent a legal notice to the said Duraisamy Gounder on 18.12.1987. The said Duraisamy gounder sent a reply stating that he executed a settlement deed in favour of his wife Lakshmiammal. Therefore, the plaintiff filed a suit in O.S.No.33 of 1988 against the said Duraisamy Gounder and his wife Lakshmiammal and that suit was decreed in favour of him. Thereafter, the plaintiff filed execution petition and got the sale deed. (ii) During pendency of O.S.No.33 of 1988, the said Lakshmi Ammal has executed sale deeds dated 24.04.1989 and 06.08.1990 in favour of the defendants. Since the sale deeds have been executed in favour of the defendants during lis pendens, the sale deeds are barred by law. As the defendants got sale deeds, the plaintiff has filed an application in I.A.No.59 of 1992 to implead the defendants 1 and 2 as parties in O.S.No.33 of 1988, but that application was dismissed stating that the plaintiff has to file a separate suit against the defendants 1 and 2. The plaintiff is entitled to the suit property on the basis of the sale agreement dated 20.06.1987 as well as the sale deed. Therefore, the plaintiff has filed the present suit against the defendants 1 and 2 for declaration of title and recovery of possession with mesne profits. 3. The gist and essence of the written statement filed by the defendants are as follows: (i) Originally, the suit property belonged to Duraisamy Gounder. Therefore, the plaintiff has filed the present suit against the defendants 1 and 2 for declaration of title and recovery of possession with mesne profits. 3. The gist and essence of the written statement filed by the defendants are as follows: (i) Originally, the suit property belonged to Duraisamy Gounder. The defendants were aware about the alleged notice issued by the plaintiff to Duraisamy Gounder only after verifying Court records. It is true, the said Duraisamy Gounder in his reply notice denied the execution of sale agreement in favour of the plaintiff. The plaintiff filed the suit against Duraisamy Gounder only and Lakshmi ammal was not a defendant in the said suit. (ii) Even though the plaintiff had knowledge that on the date of reply notice dated 22.12.1987 itself, the suit properties were settled by Duraisamy gounder as early as 05.08.1987 in favour of his wife Lakshmi Ammal, he had not chosen to file the said suit against Lakshmi Ammal, the real owner of the said properties for the relief of specific performance. (iii) On the date of suit (i.e.) on 20.01.1988, Duraiswamy gounder had no manner of right, title or interest in the suit properties. The decree in O.S.No.33 of 1988 does not bind upon the defendants, since the defendants were not parties to that suit. The plaintiff has no title to the suit properties by virtue of the decree in O.S.No.33 of 1988, which is null and void. (iv) These defendants are bona fide purchasers for value without notice of any claim of plaintiff over the suit properties. On the date of sale of the suit properties, the vendor of these defendants viz., Lakshmi Ammal was not a defendant in O.S.No.33 of 1988 and hence, the question of list pendens does not arise. Hence, the plaintiff is not entitled to the relief of possession or mesne profits. Therefore, he prayed for dismissal of the suit. 4. The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1, D.W.1 and Exs.A1 to A6 and Exs.B1 to B8, decreed the suit. Aggrieved against the judgment and decree passed by the trial court, the defendants preferred an appeal in A.S.No.78 of 2003 on the file of the Additional District Court (Fast Track Court No. III), Namakkal. 5. Aggrieved against the judgment and decree passed by the trial court, the defendants preferred an appeal in A.S.No.78 of 2003 on the file of the Additional District Court (Fast Track Court No. III), Namakkal. 5. The learned First Appellate Court has considered the arguments advanced on either side and framed necessary point for consideration and confirmed the Judgment and Decree passed by the Trial Court and dismissed the appeal. Against the Decree and Judgment passed by the first Appellate Court, the present second appeal has been preferred by the defendants/appellants. During pendency of the appeal, the first appellant died and hence, his legal heirs were impleaded as appellants 3 to 7. 6. At the time of admission, the following substantial question of law has been framed: “(i) When the vendor of the appellants had acquired title much prior to the institution of the earlier suit and when the appellants are bona fide purchasers for valid sale consideration without notice of any legal proceeding, whether the doctrine of lis pendens, envisaged under Section 52 of the Transfer of Property Act, 1882, is applicable? (ii) When the admission of the respondent examined as P.W.1 would prove that the settlement in favour of the vendor of the appellants had come into effect, whether the Courts below are justified in law in eschewing such admission and in holding that the settle did not have right to execute sale deed in favour of the appellants? (iii) When Ex.A3, Reply Notice & Ex.B2, written statement in O.S.No.33 of 1988, would categorically prove that the alleged vendor of the respondent had already settled the property upon his wife, whether the suit filed against the alleged vendor, who did not have any title on the date of the suit, can form the basis for the present suit for declaration and possession?” 7. Challenging the concurrent findings of both the Courts below, learned counsel appearing for the appellants submits that the appellants/defendants are bona fide purchasers for value without notice of the litigation and that factum was not considered by the trial Court. Originally, the properties are owned by one Duraisamy Gounder and he executed the settlement deed in favour of his wife Lakshmi Ammal on 05.08.1987. The respondent/plaintiff had issued notice under Ex.A2 on 18.12.1987 and he received reply under Ex.A3 on 22.12.1987 and filed the suit which was taken on file on 20.01.1988. Originally, the properties are owned by one Duraisamy Gounder and he executed the settlement deed in favour of his wife Lakshmi Ammal on 05.08.1987. The respondent/plaintiff had issued notice under Ex.A2 on 18.12.1987 and he received reply under Ex.A3 on 22.12.1987 and filed the suit which was taken on file on 20.01.1988. He further submits that O.S.No.33 of 1988 is filed by the plaintiff only against Duraiswamy Gounder, but in Ex.A3/reply notice itself, it was specifically mentioned that the said Duraiswamy Gounder disputed the sale agreement under Ex.A1 and he admitted that he executed the settlement deed in favour of his wife Lakshmi Ammal. But the respondent/plaintiff without impleading Lakshmi Ammal, filed the suit. Furthermore, after lapsing of four years, the respondent/plaintiff has filed an application in I.A.No.599 of 1992 for impleading Lakshmi Ammal and the defendants 1 to 2 as parties to the suit and the same was dismissed. That application was marked as Ex.B3; Ex.B4 is the counter statement; Ex.B5 is the order passed in I.A.No.599 of 1992. Further, the plaintiff has not filed civil revision petition against the dismissal of I.A.No.599 of 1992. 8. Learned counsel for the appellants further submits that Ex.A4 is the sale deed obtained by the plaintiff through the Sub-Court, Namakkal on 04.07.1996. But the appellants/defendants purchased the property under Exs.A5 and A6 on 24.04.1989 and 06.08.1990. So the appellants are not having knowledge about the pendency of the suit. But both the Courts below erroneously held that the sale deeds are hit by lis pendens. He would drawn attention of this Court through the deposition of P.W.1 and submits that P.W.1/respondent herein in his evidence has not deposed that the appellants are aware of the suit before purchasing the suit property. Therefore, he prayed for allowing the second appeal. 9. Resisting the same, learned counsel for the respondent/plaintiff submits that settlement deed itself is sham and nominal, which was executed to defeat the rights of the respondent/agreement holder. The suit was filed by the plaintiff and it was decreed in his favour and at the time of filing written statement, the settlement deed was not filed before the Court. After filing of the suit only, sale deeds under Exs.A4 and A5 came into existence and he is the adjacent land owner. D.W.1/first defendant/first appellant himself admitted that the property was in possession and enjoyment of Duraiswamy Gounder, who is the true owner. After filing of the suit only, sale deeds under Exs.A4 and A5 came into existence and he is the adjacent land owner. D.W.1/first defendant/first appellant himself admitted that the property was in possession and enjoyment of Duraiswamy Gounder, who is the true owner. But there is no mutation of revenue records, the settlement deed was not acted upon and possession has not been handed over. So neither Duraiswamy Gounder nor Lakshmi Ammal has filed settlement deed to prove the title. Even though the plaintiff has filed an application to implead Lakshmi Ammal and defendants 1 and 2, the defendants made objections and on that basis only, the said I.A.No.599 of 1992 was dismissed. Both the Courts below considered all the aspects in proper perspective and came to the correct conclusion. He further submitted that unless the judgments of the trial Court and first appellate Court are perverse, there is no need to interfere with the concurrent findings. Hence, he prayed for dismissal of the second appeal. 10. Considered the rival submissions made on both sides and perused the materials available on record. 11. Originally, the suit property is owned by Duraiswamy Gounder and he has entered into an sale agreement with the respondent/plaintiff under Ex.A1 on 20.06.1987, which is an unregistered document. Its value has been fixed as Rs.50,000/- and Rs.20,000/- has been paid allegedly by the plaintiff as an advance and to execute the sale deed, three months time has been given. Since the said Duraiswamy Gounder is not ready and willing to perform his part of contract, the plaintiff has issued Ex.A2 notice on 18.12.1987 stating that he personally made a request on 10.12.1987, but Duraiswamy Gounder evaded the same. Then Duraiswamy Gounder sent Ex.A3 reply notice on 22.12.1987 stating that he executed settlement deed in favour of his wife on 05.08.1987 and further he has gone to the extent of saying that Ex.A1 sale agreement is a forged one. Immediately, the respondent/plaintiff has filed a suit in O.S.No.33 of 1988 on 20.01.1988 against Duraiswamy Gounder only. It is true, Lakshmi Ammal, wife of Duraiswamy Gounder was not impleaded as party to that suit. Immediately, the respondent/plaintiff has filed a suit in O.S.No.33 of 1988 on 20.01.1988 against Duraiswamy Gounder only. It is true, Lakshmi Ammal, wife of Duraiswamy Gounder was not impleaded as party to that suit. Even though the defendant/Duraiswamy Gounder has filed written statement, he has not filed the settlement deed to show that the property has been settled in favour of Lakshmi Ammal After the death of Duraiswamy Gounder and after impleading Lakshmi Ammal as his legal heir, O.S.No.33 of 1988 has been decreed and sale deed has been executed by the Court of law. It is pertinent to note that both the Courts below have considered the evidence of D.W.1 and came to the conclusion that he is the adjacent land owner and possession is only with the husband of Lakshmi Ammal (i.e.) Duraiswamy Gounder and after entering into the sale agreement with the plaintiff, he has purchased the property, so it is hit by lis pendens. 12. On perusal of Exs.B7 and B8/decree and judgment in O.S.No.33 of 1988, it reveals that exparte decree has been passed against Lakshmi Ammal. Even though the plea has been raised that the sale agreement is forged one, she has not contested. So the suit has been decreed and after filing execution petition, the respondent/plaintiff got Ex.A4/sale deed dated 04.07.1996 through the Sub-Court, Namakkal. Since the possession is with the appellants/defendants, the respondent/plaintiff has filed the present suit for declaration of title and possession. 13. Admittedly, during pendency of the suit in O.S.No.33 of 1988, the vendor Lakshmi Ammal has executed Exs.A5 and A6 sale deeds dated 24.04.1989 and 06.08.1990 respectively in favour of the defendants 1 and 2. But the vendor Lakshmi Ammmal is not a party to that suit. It is to be noted that the properties under Exs.A5 and A6 are subject matter of the suit in O.S.No.33 of 1988. 14. As per the evidence of D.W.1, the property was in possession with the settlor Duraiswamy Gounder. The defence of Duraiswamy Gounder is that Ex.A1 sale agreement is forged and he executed the settlement deed in favour of his wife, it is the duty of the defendant to prove the same. Once the plea has been raised as settlement deed itself is void, sham and nominal, the same has also to be proved. The defence of Duraiswamy Gounder is that Ex.A1 sale agreement is forged and he executed the settlement deed in favour of his wife, it is the duty of the defendant to prove the same. Once the plea has been raised as settlement deed itself is void, sham and nominal, the same has also to be proved. But before the trial Court, neither Lakshmi Ammal was examined nor original settlement deed was marked and no document to show that in pursuance of the settlement deed, mutation of revenue records made and Lakshmi Ammal was in possession and enjoyment of the suit property till the suit property has been disposed of. Per contra, as per the evidence of D.W.1, Duraiswamy Gounder was in possession till the suit property was purchased by the defendants. In such circumstances, I am of the view, both the Courts below rightly came to the conclusion that only with a view to defraud the agreement holder/respondent herein, settlement deed has been executed, which is not acted upon. 15. Considering the aforestated circumstances of the case, I am of the view, once the settlement has not been proved as genuine, true, accepted and acted upon, the purchaser from the settlement has not acquired any right under Exs.A5 and A6/sale deeds. Furthermore, it is admitted that the defendants are the adjacent land owners, while purchasing the property, the defendants made an enquiry and came to know the pendency of the suit. In such circumstances, both the Courts below have rightly held that the respondent/plaintiff is the lawful title owner and he is entitled to possession. Moreover, the defendants have filed plaint, written statement, affidavit in I.A.No.599 of 1992 under Order 1 Rule 10(2) of C.P.C. (i.e.) impleading application, counter, order in I.A.No.599 of 1992, decree and judgment in O.S.No.33 of 1988 as Exs.B1 to B8, but they neither filed original settlement deed nor original sale deeds. During the appellate stage, the defendants filed the copy of settlement deed. It shows that the appellants/defendants have not proved that they are the bona fide purchasers for value without notice of any legal proceeding. So the appellants/defendants have not entitled to any relief. The substantial questions of law are answered accordingly. 16. During the appellate stage, the defendants filed the copy of settlement deed. It shows that the appellants/defendants have not proved that they are the bona fide purchasers for value without notice of any legal proceeding. So the appellants/defendants have not entitled to any relief. The substantial questions of law are answered accordingly. 16. For the foregoing reasons, the decree and judgment passed by both the courts below does not suffer any irregularity or illegality and it does not warrant any interference and the same are hereby confirmed. The second appeal is liable to be dismissed and it is hereby dismissed. 17. In fine, Second Appeal is dismissed with costs. The decree and judgment passed by both the Courts below are hereby confirmed. Two months time is granted to the appellants/defendants to hand over the possession to the respondent/plaintiff. Consequently, connected Miscellaneous Petition is closed.