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2019 DIGILAW 1662 (MAD)

Kathirvel Sathyavthi (Deceased) v. D. Loganayaki

2019-06-17

T.RAVINDRAN

body2019
JUDGMENT : (Prayer: Second Appeal has been filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 27.06.2018 passed in A.S.No.185 of 2015 on the file of the VII Additional City Civil Court, Chennai, confirming the judgment and decree dated 31.01.2011 passed in O.S.No.13347 of 2009 on the file of the XI Assistant City Civil Court, Chennai.) 1. In this second appeal, challenge is made to the Judgment and Decree dated 27.06.2018 passed in A.S.No.185 of 2015 on the file of the VII Additional Judge City Civil Court, Chennai, confirming the judgment and decree dated 31.01.2011 passed in O.S.No.13347 of 2009 on the file of the XI Assistant Judge City Civil Court, Chennai. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 3. The defendants 3 & 4 have preferred the present second appeal impugning the judgment and decree of the Courts below. 4. The suit has come to be laid by the plaintiffs seeking for the reliefs of declaration and permanent injunction. 5. The plaintiffs have claimed the relief of declaration that the sale deed dated 27.12.2005 executed by the Tamil Nadu Slum Clearance Board in favour of the defendants 1 & 2 is illegal, void, inoperative, null and void and the sale deed executed by the defendants 1 & 2 through their power of attorney agent i.e. the third defendant in favour of the 4th defendant dated 01.02.2007 is illegal, void, inoperative, null and void and prayed for the relief of permanent injunction restraining the defendants 1 to 4 and their men, agents etc., from alienating or mortgaging or leasing out or putting up further construction or transferring and encumbering the suit property in any mode or any part thereof to any body. 6. As could be seen from the materials available on record, it is found that though the defendants 1 to 4 had been served in the matter in the trial Court, they had failed to come forward and contest the suit laid by the plaintiffs. Accordingly, it is seen that the defendants 1 to 4 had been set ex-parte by the trial Court. It is only the defendants 5 to 7, who had contested the plaintiffs' suit. Accordingly, it is seen that the defendants 1 to 4 had been set ex-parte by the trial Court. It is only the defendants 5 to 7, who had contested the plaintiffs' suit. As such, it is found that the reliefs prayed for by the plaintiffs are only directed against the defendants 1 to 4 in particular. However, despite the service of summons as determined by the trial Court as well as the appellate Court, the defendants 1 to 4 have not endeavoured to come forward and contest the plaintiffs' suit for one reason or the other. 7. As could be seen from the materials available on record, it is found that the suit property had been allotted to the first plaintiff's father Sambasivam by the Tamil Nadu Slum Clearance Board on 01.11.1985 and it could be further seen that Manoranjitham is the wife of Sambasivam. The first plaintiff is the daughter born to Sambasivam and Manoranjitham and the first plaintiffs' husband is one Devarajan. It is seen that the first plaintiff is the second wife of Devarajan. The first wife of Devarajan is Anjalakshmi. It is further seen that Anjalakshmi is the sister of the first plaintiff's father Sambasivam. It is further seen that through Anjalakshmi, the first defendant, the second plaintiff and the husband of the 5th plaintiff, viz., Dillibabu were born to Devarajan. Through the first plaintiff, the third plaintiff and the fourth plaintiff were born to Devarajan. As such, it is found that the abovesaid facts are not Put in issue. 8. As could be seen from the materials available on record, even before Sambasivam could complete the payment of the installments qua the suit property to the Tamil Nadu Slum Clearance Board, it is found that he had died and his death certificate has been marked as Ex.A10. His legal heirship certificate has been marked as Ex.A1, wherefrom, it could be gathered that only the first plaintiff's mother Manoranjitham and the first plaintiff had been recorded as his legal heirs. The legal heirship certificate of Devarajan has been marked as Ex.A2, wherein, the first plaintiff, the first defendant and the plaintiffs 3 & 4 are shown as his legal heirs and the death certificate of Devarajan has been marked as Ex.A3. The copy of the ration card of the first plaintiff as the wife of Devarajan has been marked as Ex.A14. The copy of the ration card of the first plaintiff as the wife of Devarajan has been marked as Ex.A14. According to the plaintiffs, after the death of Sambasivam, the first plaintiff, reposing confidence on the first defendant, requested him to pay the installments in respect of the suit property to the Tamil Nadu Slum Clearance Board and it is further pleaded by the plaintiffs that taking advantage of the abovesaid situation, according to the plaintiffs, the first defendant had falsely misrepresented that he alone is the legal heir of Sambasivam and Manoranjitham and accordingly, based on the fabricated documents created by him with reference to the same, had stealthily obtained the sale deed in respect of the suit property from the Tamil Nadu Slum Clearance Board and the same had also been registered by the 7th defendant, which document has come to be marked as Ex.A4 and therefore, according to the plaintiffs, when Manoranjitham and the first plaintiff alone are the legal heirs of Sambasivam and after the demise of Manoranjitham, it is only the first plaintiff, who is the sole heir, she alone would be entitled to obtain the sale deed in respect of the suit property from the Tamil Nadu Slum Clearance Board in the place of Sambasivam, the original allottee and suppressing the same, the first defendant had fraudulently obtained the sale deed and hence, the sale deed obtained by the first defendant should be declared as null and void. In Ex.A4, the document recites, as if the sale deed had been conveyed in favour of the second defendant also, who is the wife of the first defendant. However, the second defendant's signature is not found in the said document. According to the plaintiffs, for obtaining Ex.A4 sale deed fraudulently, the first defendant has pressed into service the legal heirship certificate marked as Ex.A12 and the election voter identity card marked as Ex.A13. Ex.A12 is found to be the legal heirship certificate of Manoranjitham. As abovenoted, the first plaintiff is the daughter of Manoranjitham born through Sambasivam, however, in Ex.A12, it is found that only the name of the first defendant has been recorded as the legal heir of Manoranjitham and on the basis of Ex.A12, it is found that the first defendant had also obtained the voter identity card Ex.A13, as if he is the son of Sambasivam. However, as rightly found and determined by the Courts below, when from the death certificate of Sambasivam marked as Ex.A10 and the legal heirship certificate of Sambasivam marked as Ex.A1, it is noted that only Manoranjitham and the first plaintiff have been shown as his legal heirs and when from the materials placed on record, the first defendant's father is found to be Devarajan and his mother is found to be one Anjalakshmi, suppressing the abovesaid facts, it is found that the first defendant had obtained the legal heirship certificate, as if he is only the legal heir of Manoranjitham and on that basis, it appears that he had also obtained the voter identity card Ex.A13 and on the strength of the abovesaid documents, it is evident that he had misrepresented that he is the only legal representative of Sambasivam and thereby, had obtained the sale deed in respect of the suit property from the Tamil Nadu Slum Clearance Board and the Tamil Nadu Slum Clearance Board had also failed to appreciate and determine as to who are the true legal heirs of the original allottee Sambasivam and further, correctly proceed with the matter qua the allotment of the suit property in favour of his legal representatives. If really, the first defendant alone is the legal representative of the deceased Sambasivam, it does not stand to reason as to how come Ex.A4 sale deed has been taken both in the name of the first defendant and in the name of the second defendant and on the strength of Ex.A4, it is found that the defendants 1 & 2 had conveyed the suit property in favour of the 4th defendant through their alleged power of attorney agent viz., the third defendant by way of the sale deed dated 01.02.2007, which document has come to be marked as Ex.A5. It is to be noted at this juncture that the 4th defendant is the wife of the third defendant. It is to be noted at this juncture that the 4th defendant is the wife of the third defendant. As determined by the Courts below, when there is no material placed on record to safely hold and conclude that Ex.A4 sale deed was validly obtained by the first defendant from the Tamil Nadu Slum Clearance Board and on the other hand, the materials on record go to indicate and point out that though the first defendant is found to be the son of Devarajan, he had falsely represented himself to be the legal heir of Sambasivam and Manoranjitham and thereby, stealthily endeavoured to obtain the sale deed in his favour in the place of the original allottee, viz., Sambasivam. In the light of the abovesaid factors, as found by the Courts below, when on the demise of the original allottee Sambasivam, only his legal representative would be entitled to secure the allotment from the Tamil Nadu Slum Clearance Board and when the materials available on record go to point out that it is only the first plaintiff, who alone is the legal representative of the deceased Sambasivam born through his wife Manoranjitham and when it is further seen that the plaintiffs 3 & 4 are born to the first plaintiff through Devarajan and when the first defendant, the second plaintiff and the husband of the 5th defendant, viz., Dillibabu are found to be born to Devarajan through his first wife Anjalakshmi, the case of the plaintiffs that the first defendant had stealthily obtained the sale deed from the Tamil Nadu Slum Clearance Board on the strength of the fabricated materials, as above discussed, had been rightly assessed and determined by the Courts below and accordingly, found that the sale deed obtained by the first defendant from the Tamil Nadu Slum Clearance Board is invalid and null and void and following the same, rightly determined that the sale deed executed by the defendants 1 & 2 through their power of attorney agent i.e. the third defendant in favour of the 4th defendant dated 01.02.2007 is also null and void and invalid and accordingly, also held that the plaintiffs are entitled to obtain the relief of permanent injunction as prayed for. 9. 9. In the light of the abovesaid factors, when the Courts below are found to have assessed, analysed and determined the issues involved between the parties by taking into consideration the materials placed on record in the right perspective by affording acceptable reasonings and conclusions, I do not find any valid reason to interfere with the abovesaid determination of the Courts below for upholding the plaintiffs' case. 10. As abovenoted, if really, the defendants 1 to 4 have a valid case to contest the plaintiffs' case, they would have endeavoured to enter appearance in the trial Court and filed their written statement and challenged the plaintiffs' case in the manner known to law. On the other hand, despite the service of summons, they have not endeavoured to challenge the plaintiffs' suit. After the culmination of the decree in favour of the plaintiffs before the trial Court, it is found that the defendants 3 & 4 have preferred the first appeal with an inordinate delay and the first appellate Court had chosen to condone the delay, however, did not accept the case of the defendants 3 & 4 that they had not been properly served with the summons in the trial Court. With reference to the abovesaid contention projected by the defendants 3 & 4, when the defendants 3 & 4 have not challenged the address of service given in the plaint and would only contend that the said address is only their old address and hence according to them, inasmuch as they had shifted their residence to the new address, they had not served with summons and accordingly, contended that they had not been properly served in the trial proceedings and urged the first appellate Court to set aside the decree passed against them. However, as rightly determined by the first appellate Court, with reference to the abovesaid contentions of the defendants 3 & 4 that they had shifted their residence to the new address, absolutely there is no material forthcoming on the part of the defendants 3 & 4. However, as rightly determined by the first appellate Court, with reference to the abovesaid contentions of the defendants 3 & 4 that they had shifted their residence to the new address, absolutely there is no material forthcoming on the part of the defendants 3 & 4. If really, the defendants 3 & 4 had already shifted the residence from their old address as described in the plaint, prior to the filing of the suit or at the time when the suit was levied, as rightly put forth by the counsel for the caveator, the defendants 3 & 4 would have placed acceptable materials and proof pertaining to the same by way of additional evidence before the first appellate Court and endeavoured to succeed in their case. On the other hand, other than baldly contending that they had shifted their residence from the old address to the new address and when they had not placed any material to hold as to where they were actually residing at the time of the institution of the suit, in such view of the matter, when with reference to their abovesaid contentions, they had not chosen to file any additional documents, the first appellate Court is right in holding that the defendants 3 & 4 cannot be construed as bonafide purchasers and cannot be held that they do not know anything about the proceedings of the trial Court. The resultant conclusion is that as determined by the first appellate Court knowing that they had not obtained a valid sale deed in respect of the suit property and knowing fully well that the defendants 1 & 2 had also not obtained a valid sale deed from the Tamil Nadu Slum Clearance Board, accordingly, it is found that the defendants 3 & 4 have not chosen to place any material to establish that they had not duly served in the trial Court proceedings. On the other hand, as could be seen from the available materials on record, when the trial Court has come to the conclusion that the defendants 1 to 4 have been properly served and despite the service, they had not chosen to enter appearance and contest the plaintiffs' suit, the grounds presently projected by the defendants 3 & 4 that they had not been duly served in the trial Court cannot at all be countenanced and rightly discountenanced by the first appellate Court. 11. 11. In the light of the above discussions, I do not find any valid reason to interfere with the judgment and decree of the Courts below for upholding the plaintiffs' case. No substantial question of law is found to be involved in the second appeal. 12. In conclusion, the second appeal fails and is, accordingly, dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.