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2017 DIGILAW 4176 (MAD)

Ramasamy Gounder (deceased) v. Periasamy Gounder

2017-12-07

T.RAVINDRAN

body2017
JUDGMENT : 1. This second appeal is directed against the judgment and Decree dated 13.09.2001 made in A.S.No.27 of 2000 on the file of the Principal Subordinate Court, Vridhachalam confirming the Judgment and decree dated 07.07.2000 made in O.S.No.36 of 1986 on the file of the Principal District Munsiff Court, Vridhachalam. 2. Parties are referred to as per their rankings in the trial Court. 3. Suit for declaration and permanent injunction. 4. The case of the plaintiff, in brief, is that the suit property is a vacant site located in Grama Natham and the suit property and the other property situated to the North of the same originally belonged to Kulandhai gounder and he died leaving behind his two sons viz., Perumal Gounder and Bala Gounder and the above said sons enjoyed the suit property and thereafter, divided the property belonging to them and accordingly, the suit property was allotted to Bala gounder and the property situated to the North of the suit property was allotted to Perumal Gounder and accordingly, the suit property was enjoyed for laying haystack and tieing cows etc. Perumal gounder and his son sold the property allotted to them to one Arumuga pandithar on 11.08.1971 and Bala Gounder and his son Muthusamy Gounder were enjoying the suit property and Muthusamy Gounder died leaving behind his wife and daughter Sivamalai and Dhanalakshmi respectively and after his death, the suit property was enjoyed by them and the plaintiff purchased the suit property from them on 19.11.1985 and enjoying the suit property and also the plaintiff has perfected his title to the suit property by way of adverse possession and the defendant, without any legal authority, attempted to interfere with the plaintiff's possession and enjoyment and hence, the plaintiff has come forward to lay the suit for appropriate reliefs. 5. The case of the defendant, in brief, is that it is true that the suit property and the other property situated to North of the same originally belonged to Kulandai Gounder and after his death, his two sons were enjoying the same and in the partition effected between them, the suit property was allotted to Bala gounder and the northern property was allotted to Perumal gounder. Bala gounder and his son Muthusamy gounder entered into a sale agreement with the defendant in respect of the suit property on 02.01.1974 and accordingly, agreed to convey the suit property to the defendant for a sum of Rs.700/- and on the same day, the defendant paid the entire sale consideration and accordingly, he was entrusted the possession of the suit property and thence from, enjoying the suit property and thus, the defendant has also perfected his title to the suit property on account of the continuous possession and enjoyment and Bala gounder and his son Muthusamy, however, evaded the execution of the sale deed in favour of the defendant, despite several requests by the defendant and accordingly, inasmuch as the defendant is in possession and enjoyment of the suit property based on an agreement of sale, he is entitled to the benefits provided under Section 53 (A) of the Transfer of Properties Act and after the sale agreement dated 02.01.1974 neither Bala gouner nor his son Muthusamy are entitled to claim any title to the suit property and hence, the suit property cannot be validly inherited by Sivamalai and Dhanalakshmi and hence, the sale deed effected by them in favour of the plaintiff on 19.11.1985 is not true and valid and hence, the suit is liable to be dismissed. 6. In support of the plaintiff's case, PWs1 & 2 were examined and Exs.A1 to 3 were marked. On the side of the defendant, DWs 1 to 4 were marked and Exs.B1 was marked. 7. On a consideration of the oral and documentary evidence placed by the respective parties, both Courts below were pleased to accept the plaintiff's case and accordingly, granted the decree in favour of the plaintiff as prayed for. Aggrieved over the same, the present second appeal has been preferred. 8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: “(i) Whether the courts below are correct in decreeing the suit on the weakness of the defendant's case without considering the case of the plaintiff? (ii) Whether both the pleas of title and adverse possession may be pleaded by the plaintiff which are inconsistent? (iii) Whether the Court below is correct in granting decree of injunction without giving any finding as to possession?” 9. (ii) Whether both the pleas of title and adverse possession may be pleaded by the plaintiff which are inconsistent? (iii) Whether the Court below is correct in granting decree of injunction without giving any finding as to possession?” 9. It is not in dispute that the suit property originally belonged to Perumal Gounder and Bala Gounder along with other property inherited by them from their father Kulandhai gounder. Now, according to the plaintiff, in the partition effected between Bala gounder and Perumal gounder, the suit property was allotted to Bala gounder and thereafter, Bala gounder and his son Muthusamy gounder enjoyed the suit property and after their demise, the suit property was inherited by the wife and daughter of Muthusamy viz., Sivamalai and Dhanalakshmi and the plaintiff had purchased the suit property from them by way of a registered sale deed dated 19.11.1985 and thus, it is stated that the plaintiff, is in possession and enjoyment of the suit property and inasmuch as the defendant, without any legal authority, attempted to interfere with his possession, the plaintiff has been necessitated to institute the suit. 10. Per contra, it is the case of the defendant that he had entered into an agreement of sale with Bala gounder and Muthusamy in respect of the suit property for a sum of Rs.700/- on 02.01.1974 itself and he had paid the entire sale consideration and accordingly, was put in possession and enjoyment of the suit property and despite several requests, they had been evading to execute the sale deed and therefore, it is contended that after the execution of the sale agreement by Bala gounder and Muthusamy Gounder, they could not lay a claim to the suit property and hence, their Legal Representatives are also not entitled to make any lawful claim to the suit property and hence, the case of the plaintiff that he had purchased the suit property from the LRs of the Muthusamy Gounder viz., Sivamalai and Dhanalakshmi is not true and valid and hence, it is contended that the plaintiff is not entitled to obtain the reliefs sought for. 11. It is thus found that the defendant seeks claim to the suit property only on the basis of an agreement of sale and the sale agreement has come to be marked as Ex.B1. 11. It is thus found that the defendant seeks claim to the suit property only on the basis of an agreement of sale and the sale agreement has come to be marked as Ex.B1. Even though in Ex.B1, the property comprised therein is stated to be situated in survey No.45/19, considering the boundaries and the extent given to the same, it is seen that the same would only refer to the suit property. The suit property is found to be situated in survey No.45/1. However, as rightly found and determined by the Courts below, Ex.B1 is found to be not a registered sale agreement. That apart, it has not been established by the defendant that pursuant to Ex.B1, he had put in possession of the suit property by the vendors viz., Muthusamy gounder and Bala Gounder. Though the defendant would claim that he had been entrusted with the possession and enjoyment by the vendors, however, no acceptable and reliable material has been placed on the part of the defendant to hold that he had been in possession and enjoyment of the suit property since 02.01.1974. That apart, the defendant has also not endeavorued to establish the truth and validity of Ex.B1. To buttress his case, he has not chosen to examine the attestors to the document Ex.B1. No doubt, the scribe of the document has been examined as DW2. On a perusal of the evidence of defendant examined as DW1 and the evidence of DW2, it could be seen that both of them are closely related. Further DW2 being a scribe of the document, it is seen that his evidence cannot be the basis for holding that Ex.B1 had really come to be entered into between the parties as put forth by the defendant. Further, DW2 has not clearly disclosed in his evidence that the sale consideration had been paid by the defendant to the vendors on the date of the alleged sale agreement and he would only state that the parties had agreed the sale price at Rs.700/-. That apart, he has not mentioned anything about the passing of the said sale consideration from the defendant to the vendors. That apart, he has not mentioned anything about the passing of the said sale consideration from the defendant to the vendors. Though DW2 would testify that the defendant was put in possession of the suit property on the date of the sale agreement as above mentioned, there is no document placed on record to hold that the defendant was given the possession of the suit property pursuant to Ex.B1. 12. If really, Ex.B1 sale agreement is a guanine document and if really, the defendant had paid the entire sale consideration to the vendors as pleaded by him, nothing prevented the defendant from enforcing the sale agreement immediately on seeing the attitude of the vendors in not executing the sale deed in his favour and it has not been explained by the defendant as to why he should refrain from taking any action for enforcing the sale agreement Ex.B1. The case of the defendant that inasmuch as he had been put in possession of the suit property, he had not evinced interest to proceed further under Ex.B1 as such cannot be accepted readily. That apart, when the defendant has not established that he had been put in possession of the suit property following Ex.B1 and when it has not been established by the defendant that he has been always ready and willing to perform his part of the contract under Ex.B1 and when it is further seen that there is no material as such to hold that the defendant had paid the entire sale consideration to the vendors pursuant to Ex.B1 and when it is seen that till date the defendant has not taken any lawful action to enforce Ex.B1, all the above facts would cumulatively go to disclose that inasmuch as Ex.B1 sale agreement is not a true document, it is seen that the defendant has not evinced interest to enforce the same to obtain a pacca sale deed with reference to the suit property from the vendors. Therefore, the contention of the defendant that he is entitled to the benefits conferred under Section 53 (A) of the Transfer of Properties Act cannot be accepted and the said issue has been rightly determined against him by the Courts below. 13. Therefore, the contention of the defendant that he is entitled to the benefits conferred under Section 53 (A) of the Transfer of Properties Act cannot be accepted and the said issue has been rightly determined against him by the Courts below. 13. Further, as rightly held by the first appellate Court, on a careful perusal of Ex.B1, it is seen that the same had come to be prepared during the year 1994 and there seems to be a correction in the year of the document from 1994 to 1974. With reference to the above said correction, no proper explanation has been placed by the defendant. Therefore, the above aspect also throws a great suspicion in the genuineness of Ex.B1. 14. In this second appeal, it is mainly contended by the defendant's counsel that the plaintiff has failed to establish that he is in possession and enjoyment of the suit property and in such view of the matter, according to him, the plaintiff cannot be allowed to draw support on the weakness of the defendant's case and hence, on the above sole ground, the plaintiff's suit should fail. However, when it is seen that admittedly Perumal gounder and Bala gounder were the original owners of the suit property and when it is further seen that in the partition effected between them, the suit property had been allotted to Bala Gounder and accordingly, when it is seen that pursuant to Ex.A2, the plaintiff had purchased the suit property from the legal heirs of Bala Gounder, the plaintiff has clearly established his title to the suit property as put forth by him. As regards the possession and enjoyment of the suit property, it is the specific case of the plaintiff that the suit property has been used by him only for laying haystack and tieing cows etc., and that apart, DW4 examined on behalf of the defendant has admitted that till the lifetime of Muthusamy gounder and Bala gounder, it is only they, who had been in possession and enjoyment of the suit property. This piece of evidence would only go to show that the suit property was not given in possession to the defendant by them by way of Ex.B1 and they continue to hold the possession of the suit property and accordingly, it is seen that their Legal representatives, thereafter continue to be in possession of the suit property and accordingly, after the sale deed executed in favour of the plaintiff, it is seen that the plaintiff is in possession and enjoyment of the suit property. Such being the position, when there is material to hold that the plaintiff has derived title to the suit property from the lawful owners and accordingly, placed in possession and enjoyment of the suit property and continue to be in possession and enjoyment of the same, the contention put forth by the defendant's counsel that the plaintiff is attempting to derive support to his case on the weakness of the defendant's case as such cannot be readily accepted. 15. Though the plaintiff has in a stray manner also pleaded that he has perfected title to the suit property by way of adverse possession, it is found that the plaintiff has laid the claim to the suit property only on the basis of his purchase under Ex.A2 and such being the position, it is seen that the plaintiff has not prosecuted the case on the plea of adverse possession. Therefore, the contention of the defendant's counsel that inconsistent pleas were raised by the plaintiff to claim title to the suit property in legally unsustainable and on the above ground alone, the plaintiff's suit should fail as such cannot be countenanced. It is found that the Courts below, on the basis of the correct appreciation of the materials on record both factually as well as legally, accordingly, held that it is only the plaintiff, who has a valid title to the suit property and accordingly, granted the decree in favour of the plaintiff as prayed for. In such view of the matter, the substantial questions of law formulated in this second appeal are answered in favour of the plaintiff and against the defendant. In conclusion, the second appeal fails and is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, closed.