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2018 DIGILAW 3432 (MAD)

N. Palaniandavar v. R. Rathakrishnan

2018-10-01

C.V.KARTHIKEYAN

body2018
JUDGMENT 1. The first and second defendants in O.S. No. 102 of 1997 on the file of the District Munsif Court, Periyakulam are the appellants. The above said suit had been filed by the plaintiff/R. Rathakrishnan against two defendants/N. Palaniandavar and N. Kandhappa Nathan, seeking a Judgment and Decree for permanent injunction from interference with his peaceful possession and enjoyment of the suit property. 2. The suit property is vacant land measuring 18, sq. ft. less than three cents in R.S. No. 2052/2006, OS No. 56, Subramanya Barathi Street, Ward-5, Pazhanichettipatti, Veerapandi Village, Theni Sub-District, Periyakulam District. 3. This suit was dismissed by Judgment and Decree dated 21.07.2004. Challenging that, the plaintiff had filed A.S. No. 135 of 2004 which came up for consideration before the Subordinate Court, Periyakulam. By Judgment and Decree dated 29.07.2005, the appeal was allowed and the Judgment of the trial Court was set aside and the suit was decreed. Challenging that Judgment, the defendants have filed the present Second appeal. 4. O.S. No. 102 of 1997 - District Munsif Court, Periyakulam: The plaintiff claimed that the suit property was natham promboke vacant land. It was under the possession of Vairammal @ Sadaiyalammal wife of Sivasubramanian, Pazhanichettipatti, Theni Taluk. She was in possession of the property. 'B' memo was granted to her by the Revenue Inspector of Theni. It was stated that she had also gained title through possession. The plaintiff had purchased the suit property from Vairammal @ Sadaiyalammal on 21.05.1997 for a total consideration of Rs. 31,300/- (Rupees Thirty One Thousand Three Hundred Only). The defendants attempted to interfere with his peaceful possession. Consequently, the above said suit had been filed, seeking permanent injunction against the defendants from interfering with possession. 5. The defendants filed their written statement. It was stated that Sadaiyalammal did not have another name called Vairammal. They stated that Sadaiyalammal was actually their sister. Vairammal was their mother. The property originally belonged to their grand father Anantha Vayiru Chettiar. After his death, it devolved to his daughter Vairammal. Thereafter the defendants, on her death, took possession of the property as her inheritors. It had been stated that Sadaiyalammal attempted to deal with the property and also sought partition. Consequently, the defendants had issued an advocate notice on 29.06.1997. It was replied by notice dated 04.06.1997 claiming Sadaiyalammal to be in possession. Thereafter the defendants, on her death, took possession of the property as her inheritors. It had been stated that Sadaiyalammal attempted to deal with the property and also sought partition. Consequently, the defendants had issued an advocate notice on 29.06.1997. It was replied by notice dated 04.06.1997 claiming Sadaiyalammal to be in possession. The defendants therefore stated that the claim of the plaintiff that he had purchased the property on 21.05.1997 cannot be true. They claimed that they were in possession of the suit property. They stated that the suit should be dismissed. 6. The defendants also filed an additional written statement again reiterating the said facts and also stating that grant of 'B' memo to Sadaiyalammal was against law and that the document had no value. They stated that the property belonged to their mother Vairammal and thereafter it had devolved to them. They also stated that Vairammal executed a Will dated 05.04.1991. They claimed that the suit should be dismissed. 7. On the basis of the above pleadings, the learned District Munsif, Periyakulam framed the following issues for trial. 1. Whether the plaint schedule property belonged to Sadaiyalammal prior to the sale in favour of the plaintiff? 2. Whether the plaintiff is entitled to permanent injunction? 3. To what relief the plaintiff is entitled? The learned District Munsif, Periyakulam framed additional issue is as follows: 1. Whether the alleged Will is a genuine one? 8. During trial, the plaintiff examined himself as PW-1 and marked Ex.A.1, original sale deed executed by Vairammal @ Sadaiyalammal dated 21.05.1997. Kamala Kannan S/o Sadaiyalammal was examined as PW-2 and 'B' memo was marked as Ex.A.2. On the side of the defendants, the second defendant was examined as DW-1 and an independent witness Rajappan was examined as DW-2. Ex.B.1 to Ex.B.19 were marked on the side of the defendants. Ex.B.1, dated 15.07.1908 is the copy of the sale deed in favour of Anantha Vaiyiru Chettiyar. Ex.B.2 is the sale deed in favour of Thonthiappn Chettiar dated 15.11.1914. Ex.B.3 is the sale deed dated 11.01.1917 in favour of Kanthasamy Chettiar. Ex.B.4 is the Will executed by Vairammal in favour of the defendants dated 05.04.1991. Ex.B.9, dated 13.11.1998 is the proceedings of the Tahsildar, Theni and Ex.B.10 is the Patta issued by the Tahsildar in favour of the defendants dated 20.11.1988. Ex.B.3 is the sale deed dated 11.01.1917 in favour of Kanthasamy Chettiar. Ex.B.4 is the Will executed by Vairammal in favour of the defendants dated 05.04.1991. Ex.B.9, dated 13.11.1998 is the proceedings of the Tahsildar, Theni and Ex.B.10 is the Patta issued by the Tahsildar in favour of the defendants dated 20.11.1988. During the cross examination of DW-1, the plaintiff marked Ex.A.3, the copy of the legal notice sent by the defendants to Sadayalammal dated 29.05.1997. The reply notice was marked as Ex.B.8 dated 04.06.1997. 9. On the basis of the oral and documentary evidence, the learned District Munsif, Periyakulam held that the plaintiff has to prove his case and to seek injunction, must possess some right and prove that the defendants were attempting to interfere over his possession. The learned District Munsif, Periyakulam held that the plaintiff had failed to prove these facts. Consequently, the suit was dismissed. 10. A.S. No. 135 of 2004: The plaintiff preferred A.S. No. 135 of 2004 before the Subordinate Court, Periyakulam. The learned Subordinate Judge reexamined the evidence and framed points for consideration. By Judgment and Decree dated 29.07.2005, the learned Subordinate Judge, Periyakulam held that the plaintiff was in possession of the property. He did not agree to the contention that the suit property originally belonged to Anantha Vaiyiru Chettiyar. He therefore held that the defendants have not established their case and since the plaintiff has proved possession, the appeal was allowed, reversing the findings and the Judgment and Decree of the Trial Court. 11. S.A. (MD) No. 471 of 2006: The defendants filed the present Second appeal, challenging the Judgment and Decree of the learned Subordinate Judge, Periyakulam dated 29.07.2005 in A.S. No. 135 of 2004. The Second appeal had been admitted on the following substantial questions of law. 1. When the character of the property is promboke whether it is transferable for consideration? 2. Whether issue of single "B" memo after continuous enjoyment for more than 60 years can defeat title by adverse possession? 3. Whether in the absence of the title over the suit property, can possession be transferred for consideration by invalid sale deed? 12. Heard arguments advanced by Mr. I. Suthakaran, learned counsel for the appellants and Mr. A. Arumugam for M/s.Ajmal Associates, learned counsel for the sole respondent. 13. For the sake of convenience the contesting parties shall be referred to as Plaintiff and Defendants. 12. Heard arguments advanced by Mr. I. Suthakaran, learned counsel for the appellants and Mr. A. Arumugam for M/s.Ajmal Associates, learned counsel for the sole respondent. 13. For the sake of convenience the contesting parties shall be referred to as Plaintiff and Defendants. The defendants are the appellants and the plaintiff is the respondent. 14. The plaintiff had instituted a suit claiming that he had purchased the suit property from Vairammal @ Sadayalammal by sale deed dated 21.05.1997 marked as Ex.A.1. The plaintiff further claimed that 'B' memo was issued in favour of Sadayalammal and the same has been marked as Ex.A.2. The plaintiff had stated in the plaint that the suit property was promboke land. Ex.A.2 which the plaintiff strongly relied on, actually certified to the fact that the property is a Government property. It is actually a show cause notice issued to Sadayalammal by the Revenue Inspector, Theni, under Section 5 of Tamil Nadu Act 3 of 1905. It does not confer any title to Sadayalammal. It does not even recognise her title. It conclusively establishs that the property bearing Survey No. 56 of Veerapandi Village vested with the Government and therefore, Sadayalammal has no title over the property. When Sadayalammal has no title, she could not legally transfer the property to anyone. 15. The first substantial question of law framed was, when the character of the property is poromboke whether it is transferable for consideration. The answer lies in Ex.A.2 produced by the plaintiffs. The property is Government poromboke land. I hold that the first Appellate Court had erred in holding otherwise. The plaintiff claims to have purchased the property under Ex.A.1. However the plaintiff had not produced any document to show that the Sadaiyalammal had a pre-existing title over the property. Document has not been produced to show that the plaintiff was in possession of the suit property. Sadaiyalammal had not tile over the property and it is concluded that the plaintiff has no title over the suit property. 16. The second substantial question of law framed was whether issue of a single 'B' memo can defeat title. Ex.A.2 is 'B' memo issued in favour of Sadayalammal. It is actually a show cause notice issued under Section 5 of Tamil Nadu Act 3 of 1905. It is a notice calling upon to her to vacate the property. 16. The second substantial question of law framed was whether issue of a single 'B' memo can defeat title. Ex.A.2 is 'B' memo issued in favour of Sadayalammal. It is actually a show cause notice issued under Section 5 of Tamil Nadu Act 3 of 1905. It is a notice calling upon to her to vacate the property. The defendants have marked a registered sale deed in favour of Anantha Vairu Chettiar dated 15.07.1908 as Ex.B.1. He had dealt with the property and had executed Ex.B.2 & Ex.B.3 which a dated 05.11.1914 and 11.01.1917. They are sale deeds in favour of Thonthiappan Chettiar and Kandasamy Chettiar. Ex.B.14 is the copy of Plaint in O.S. No. 118 of 2004. In that plaint, Sadayallammal had pleaded that the property originally belonged to her mother Vairammal. Ex.B.16 is the legal heir certificate of Vairammal issued by the Tahsildar, Periyakulam. It is seen that Sadayalammal, Palaniammal and the defendants have been described as legal heirs of Vairammal. It is held that Sadaiyalammal was not granted 'B' memo but a notice to vacate the property. A 'B' memo cannot defeat title. 17. The third substantial question of law is when there is no title, whether possession can be transferred for consideration by a invalid sale deed. Only a person having title can convey title. A sale deed has to be valid and in accordance with the procedures necessitated by law. The plaintiff has not proved his title over the suit property. The plaintiff has no title. The plaintiff has not even proved his possession. Injunction cannot be granted and title has not been proved or established. A person having no title cannot convey title or transfer possession. 18. I hold that the Judgment and Decree of the Appellate Court requires interference and it is set aside. The Judgment and Decree of the Trial Court is confirmed. 19. In the result: 1. The Second appeal is allowed with costs. 2. The Judgment and Decree dated 29.07.2005 in A.S. No. 135 of 2004 passed by the learned Subordinate Judge, Periyakulam is set aside. 3. The Judgment and Decree dated 21.07.2004 in O.S. No. 102 of 1997 passed by the learned District Munsif, Periyakulam is confirmed.