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2018 DIGILAW 1902 (MAD)

P. LAKSHMANA NAICKER v. VEL NADAR

2018-06-19

K.RAVICHANDRABAABU

body2018
JUDGMENT : K. Ravichandrabaabu, J. The appellants are the defendants in a suit for declaration and for permanent injunction. The trial Court dismissed the suit. On appeal by the plaintiffs, the appellate Court reversed the finding of the trial Court and decreed the suit as prayed for. Hence, the present second appeal. 2. The case of the plaintiffs in short is as follows:- The first schedule of the suit property consisting of a larger extent belonged to the first defendant and his brother Rama Subbiah Naicker. The 2nd and 3rd defendants are the sons of Rama Subbiah Naicker. In a partition suit filed by the 2nd and 3rd defendants, 1/2 share of the suit first schedule was allotted to the first defendant and remaining 1/2 share was allotted to the 2nd and 3rd defendants and their father. Thus, the first defendant got the right and title over 1/2 share of the suit first schedule. Out of the total extent of such 1/2 share, he sold 19 cents to one Pooranammal by way of a registered sale deed dated 19.03.1976. After such sale, the said Pooranammal and the defendants orally partitioned the property. Accordingly, the suit second schedule containing 19 cents of land was allotted to Pooranammal. She was in possession and enjoyment of the property from the date of sale. On 20.08.1986, the plaintiffs purchased the said property from the said Pooranammal by way of registered sale deed. From the date of purchase, the plaintiffs are in possession and enjoyment of the same. The defendants are not having any right or title over the suit second schedule property. However, they tried to interfere with the plaintiffs' peaceful possession and enjoyment of the suit property. Therefore, the suit for declaration and permanent injunction was filed. 3. The case of the defendants is as follows:- It is not correct to state that the first defendant sold 19 cents of land to Pooranammal. The sale deed executed in favour of the said Pooranammal was sham and nominal document as the same was made only to escape from the clutches of the creditor of the first defendant. The possession and enjoyment of suit second schedule was not given to the said Pooranammal at any point of time. Therefore, the subsequent sale deed obtained by the plaintiffs from the said Pooranammal is also not valid. The possession and enjoyment of suit second schedule was not given to the said Pooranammal at any point of time. Therefore, the subsequent sale deed obtained by the plaintiffs from the said Pooranammal is also not valid. There was no oral partition between the defendants and Pooranammal as claimed by the plaintiffs. 4. Before the trial Court, the plaintiffs examined P.W.1 to P.W.3 and marked Exs.A1 to A8 and the defendants examined D.W.1 to D.W.3 and marked Exs.B.1 to B34. 5. The trial Court, after considering the respective pleadings of the parties as well as the evidence let in by them, found that the sale deed executed by the first defendant in favour of the said Pooranammal was not a sham and nominal document. However, the trial Court refused to grant the relief to the plaintiffs only on the reason that the oral partition claimed to have taken between the Pooranammal and defendants, pursuant to the sale deed dated 19.03.1976 (Ex.A.7), was not proved. The trial Court thus found that the suit second schedule item was not allotted to the said Pooranammal, as claimed by the plaintiffs and consequently they are not entitled to the relief of declaration and injunction. The trial Court also found that the plaintiffs have not proved their possession in the suit property. Aggrieved plaintiffs preferred appeal before the first appellate Court. 6. The first appellate Court found that the plaintiffs are entitled to a decree for declaration, since the trial Court found that the sale made by the first defendant in favour of the Pooranammal under Ex.A.7 is not a sham and nominal document and on the other hand, it is a valid document. Insofar as the possession of the suit properties is concerned, the first appellate Court found that the plaintiffs are in possession and enjoyment of the same as they have marked Exs.A2 and A3 Kist receipts. The appellate Court has also found that once the sale is accepted to be valid, there is a presumption that possession follows such title. Therefore, the appellate Court reversed the finding of the trial Court and decreed the suit as prayed for. 7. Aggrieved against the judgment and decree of the lower appellate Court, the defendants preferred the present second appeal, which was admitted by this Court on the following substantial questions of law. Therefore, the appellate Court reversed the finding of the trial Court and decreed the suit as prayed for. 7. Aggrieved against the judgment and decree of the lower appellate Court, the defendants preferred the present second appeal, which was admitted by this Court on the following substantial questions of law. "(1) Whether the lower appellate Court is right in its observation that it is to be presumed that when a person purchases a property possession also will be with the purchaser? (2) Whether the lower appellate Court failed to note that Ex.A7 is a sham and nominal document and therefore, Poornathammal did not get any title over the said sale deed? (3) Whether the judgment of the Appellate Court is perverse in arriving at conclusions even without discussing the documents and oral evidence let in by the parties especially when it is a reversing judgment? (4) Whether the suit as framed is not maintainable since the application under Order 1 Rule 8 C.P.C was dismissed?" 8. The learned counsel for the appellants submitted as follows:- The sale in favour of the Pooranammal is a sham and nominal document executed only to escape the clutches of the creditors of the first defendant. The purchase by the plaintiffs was made only for the public and therefore, the plaintiffs cannot seek relief in their individual capacity, especially when their application filed to sue in representative capacity was dismissed. Plaintiffs admitted the possession of the defendants during the examination. Therefore, the suit filed for declaration and injunction is not maintainable without seeking for the relief of possession. In support of such contention, the learned counsel relied on a decision [Executive Officer vs. Chandran, (2017) 2 MadLJ 404 (SC)]. 9. Per contra, the learned counsel for the respondents submitted as follows:- There was no pleadings by the defendants regarding the possession as claimed before this Court. Since the Pooranammal has purchased 19 cents of undivided share out of total extent of 32 cents, her title to the property and consequently the plaintiffs' title over the same in pursuant to the sale made by the Pooranammal, cannot be disputed or denied. Once both the courts below have found that the sale made by the first defendant in favour of the Pooranammal is valid, the relief of declaration is automatic. Once both the courts below have found that the sale made by the first defendant in favour of the Pooranammal is valid, the relief of declaration is automatic. The consequential relief of injunction has also been rightly granted by the appellate Court by considering the kist receipts filed by the plaintiffs. 10. Heard both sides. 11. The dispute between the parties is in respect of 19 cents of land shown as suit second schedule, which forms part of suit first schedule. There is no dispute to the fact that the suit first schedule was allotted to the share of the first defendant in pursuant to a decree for partition, in a suit filed between the family members of the first defendant. It is also not in dispute that the first defendant executed the sale deed in favour of the said Pooranammal on 19.03.1976 in respect of 19 cents of land out of the total extent of the suit first schedule. It is also not in dispute that the said Pooranammal sold the said property (suit second schedule) to the plaintiffs on 20.08.1986. Though the first defendant had taken a plea before the trial Court that the sale made in favour of the Pooranammal under Ex.A7 was sham and nominal and not intended to be acted upon, the trial Court disbelieved such contention and rejected the said claim of the first defendant by holding that it is not a sham and nominal document. Therefore, it goes without saying that the sale made by the first defendant in favour of the Pooranammal under Ex.A7 having been found as a valid document, title over the said property automatically vested on the said Pooranammal. Thus, she became the absolute owner of the said property. After ten years, the said Pooranammal sold the said property to the plaintiffs on 20.08.1986. Therefore, the title already passed on to the said Pooranammal was subsequently transferred to the plaintiffs by way of a valid sale deed, which is not disproved or denied by the defendants. Thus, it is evident that the plaintiffs have established their title over the subject matter property and consequently they are entitled for the relief of declaration. Therefore, the title already passed on to the said Pooranammal was subsequently transferred to the plaintiffs by way of a valid sale deed, which is not disproved or denied by the defendants. Thus, it is evident that the plaintiffs have established their title over the subject matter property and consequently they are entitled for the relief of declaration. The trial Court even though found that the sale in favour of the Pooranammal was valid, however refused to grant the relief to the plaintiffs only on the reason that the oral partition between the defendant and the Pooranammal was not proved. The appellate Court rightly found that the plaintiffs are in possession and enjoyment of the subject matter property and in support of such conclusion, the lower appellate Court relied on the kist receipts filed on behalf of the plaintiffs. Even otherwise, the trial Court was not justified in rejecting the relief to the plaintiffs, since, at the worst, it can be said that they have purchased the undivided share of 19 cents of the land out of the total extent of the suit first schedule. But in this case, kist receipts filed by the plaintiffs were considered by the first appellate Court as the fact finding authority and it was found that the plaintiffs are in possession of the suit second schedule. Hence, this Court is not inclined to take a different view in respect of the possession over the suit property. No doubt, the learned counsel for the appellants sought to rely upon certain admissions made by the plaintiffs during their examination, as if the first defendant is cultivating subject matter land. It is not in dispute that the first defendant, apart from selling the subject matter 19 cents, is in possession and enjoyment of the remaining extent of land of the suit first schedule. Therefore, the statement made by the plaintiffs that the defendants are cultivating 14 cents of land cannot be taken to mean that the first defendant was cultivating the suit second schedule itself. 12. It is well settled that the possession follows the title. Therefore, the statement made by the plaintiffs that the defendants are cultivating 14 cents of land cannot be taken to mean that the first defendant was cultivating the suit second schedule itself. 12. It is well settled that the possession follows the title. When both the Courts below have concurrently found that the sale deed executed by the first defendant in favour of the Pooranammal is valid and it is not a sham and nominal document, this Court has no hesitation in holding that the possession of the suit property is also with the plaintiffs, more particularly, when such possession has been proved by them by marking kist receipts, which the lower appellate Court has found in favour of the plaintiffs. Even otherwise, assuming that there was no oral partition between the first defendant and Pooranammal, still the plaintiffs, having purchased the undivided share of 19 cents of land, are entitled for partition of such share from the first defendant. Therefore, it has to be construed that the possession of the first defendant over the suit property at the best could be joint possession and not exclusive one. Therefore, the plaintiffs cannot be non suited as found by the trial Court. In any event, as the appellate Court has found that the plaintiffs are in possession, and such finding was rendered based on the appreciation of documentary evidence, namely, kist receipts, I find no reason to interfere with such factual findings rendered by the lower appellate Court. Therefore, the decision relied on by the learned counsel for the appellant reported in (2017) 2 MLJ 404 (SC) cannot be applied to the present case as the facts are different and distinguishable. In the case before the Apex Court, the trial Court therein recorded a finding that the plaintiff therein has failed to prove that the property belongs to the plaintiffs and they were in possession. In this case, both the courts below concurrently found that the sale deed executed by the first defendant in favour of Pooranammal is valid and not a sham and nominal document. Therefore, the declaratory relief is automatically to be conferred on the plaintiffs, which the lower appellate Court rightly granted. Insofar as the possession is concerned, the trial Court only disbelieved the oral partition. On the other hand, the appellate Court relied on the kist receipt and found that the plaintiffs are in possession. Therefore, the declaratory relief is automatically to be conferred on the plaintiffs, which the lower appellate Court rightly granted. Insofar as the possession is concerned, the trial Court only disbelieved the oral partition. On the other hand, the appellate Court relied on the kist receipt and found that the plaintiffs are in possession. Therefore, the possession has also been found in favour of the plaintiffs and consequently the appellate Court has rightly decreed the suit as prayed for. 13. Though the learned counsel for the appellants sought to raise a contention as if the present plaintiffs, having failed to file the suit in a representative capacity, cannot have any individual right, I do not find any such issue raised before the trial Court or the appellate Court at any point of time. Therefore, the learned counsel for the appellants is not justified in rasing such issue before this Court as first time. 14. Considering all these aspects, I find no ground to interfere with the judgment and decree passed by the lower appellate Court. Accordingly, the second appeal fails and the same is dismissed. The questions of law raised in the above second appeal are answered against the appellants and in favour of the respondents. No costs.