Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 1914 (MAD)

Lakshmanaperumal Raja v. Muthulakshmi

2019-07-23

R.THARANI

body2019
JUDGMENT : R. Tharani, J. 1. Heard the learned counsel appearing on both the side. 2. This appeal is filed against the Judgment and Decree passed in A.S. No. 8 of 2008 dated 11.03.2009 on the file of the learned Subordinate Judge, Srivilliputhur reversing the judgment and decree made in O.S. No. 193 of 2004 dated 26.10.2007 on the file of the learned Additional District Munsif, Srivilliputhur. 3. The appellant herein is the first defendant, the respondents 1 to 3 herein are the plaintiffs and the fourth respondent herein is the second defendant in the suit. The respondents 1 to 3 herein have filed a suit in O.S. No. 193 of 2004 before the learned Additional District Munsif, Srivilliputhur for a prayer of declaration of title and for injunction and as an alternative prayer for recovery of possession and for mesne profits. The trial Court after trial dismissed the suit. Against that Judgment and decree, the respondents 1 to 3 have preferred an appeal in A.S. No. 8 of 2008 before the Sub Court, Srivilliputhur. The learned Sub Judge reversed the Judgment and decree passed by the trial Court. Against which, the appellant herein has preferred this appeal. 4. The case of the plaintiffs is that the suit second schedule property is the part and parcel of the first schedule property and the first schedule property was purchased by the plaintiffs on 27.06.1988 from one Ramasubramanian and others. As there is a dispute in the measurement between the plaintiffs and Charity Trust, there was an agreement between the Manager of the trust and the plaintiffs on 03.06.1990. The suit property was described as the second schedule property in the agreement. When the plaintiffs tried to construct a wall upon the suit property, the first defendant who is running a tea shop in the municipal road objected the construction. The defendant lodged a complaint even after being admonished by the plaintiffs. The first defendant is disturbing the possession of the plaintiffs. The first defendant sold out the second schedule property to the second defendant and hence, this case is filed by the plaintiffs. 5. The brief averments of the first defendant is that the suit second schedule property is in possession of the first defendant for a very long period. The first defendant is disturbing the possession of the plaintiffs. The first defendant sold out the second schedule property to the second defendant and hence, this case is filed by the plaintiffs. 5. The brief averments of the first defendant is that the suit second schedule property is in possession of the first defendant for a very long period. The father of the first defendant was running a fire work shop in that property and he was enjoying the property for more than 37 years. The agreement dated 03.06.1990 was a false one and it was not binding upon the first' defendant. The second schedule property mentioned in the agreement belongs to the first defendant. In the sale deed of the plaintiffs, it was clearly stated that the property is situated on the south side of the Dharmalingaraja house site. After the house of Dharmalingaraja, there was a four feet lane and a vacant house site and that the vacant house site belong to the first defendant. The first defendant sold out the property to the second defendant on 07.05.1992. The southern boundary for the first schedule property is vacant site that belongs to N.R. Krishnamaraja charity. But in the sale deed, the property was mentioned as incomplete construction. Only with an idea to grab the second schedule property, the unregistered agreement dated 03.06.1990 was created. Only because the plaintiffs were not the owners of the property, the approval for construction was not granted to the plaintiffs. The first defendant is running the tea shop in his own lands not in the municipal road. When the plaintiffs tried to demolish the tea shop, the mother of the first defendant lodged a complaint before the police. The plaintiffs are not in possession of the property and they are not entitled for the second schedule property. On the basis of the pleadings, the trial Court framed the following issues: 6. Three witnesses were examined as P.W. 1 to P.W.3 and 12 documents were marked as Exs. A1 to A12 on the side of the plaintiffs, and two witnesses were examined as D.W. 1 and D.W. 2 and 10 documents were marked as Exs. B1 to B10 on the side of the defendants. After trial, the trial Court dismissed the suit. 7. A1 to A12 on the side of the plaintiffs, and two witnesses were examined as D.W. 1 and D.W. 2 and 10 documents were marked as Exs. B1 to B10 on the side of the defendants. After trial, the trial Court dismissed the suit. 7. Against which, the plaintiffs filed an appeal in A.S. No. 8 of 2008 before the Sub Court, Srivilliputhur stating that the plaintiffs have purchased 9 cents of land under Ex. A1 and the northern boundary is the house site of Dharmalingaraja and the southern boundary is an incomplete building which is mentioned as the second schedule property in Ex. A2 agreement. The trial Court is wrong in deciding the case on the basis of the documents, Exs. A1, A5 and A2 and that the trial Court failed to see that Ex. A2 is the document dated 03.06.1990 and that Exs. A1 and A5 are dated 27.06.1988 and 04.11.1987. Ex. B1 is the agreement executed during the pendency of the suit and the respondents 1 to 3 prayed the first appellate Court to allow the appeal stating that Ex. A8 did not confer any title to the first defendant. 8. The first appellate Court framed the following issues: 9. The first appellate Court after hearing both the sides, allowed the appeal. Against which, the appellant herein has preferred the second appeal. 10. In the grounds of this second appeal, it is stated that the first appellate Court failed to consider that the suit property was sold to Ganesraja under Ex. B1. The first appellate Court failed to consider that the plaintiff is not having any property as per the description of the agreement, Ex. B2. The first appellate Court wrongly came to the conclusion that the building was put up only after the institution of the suit. The first appellate Court failed to consider that there are pucka buildings, two shops and two residential houses and the first appellate Court failed to consider that the defendants are not a party to Ex. A2, injunction order. The first appellate Court failed to consider that the plaintiffs were not in possession for more than 27 years and that no document was filed to show the possession. The suit schedule property is not the property mentioned in Ex. A1. Hence, the plaintiff cannot claim title on the basis of Ex. A1. 11. A2, injunction order. The first appellate Court failed to consider that the plaintiffs were not in possession for more than 27 years and that no document was filed to show the possession. The suit schedule property is not the property mentioned in Ex. A1. Hence, the plaintiff cannot claim title on the basis of Ex. A1. 11. This Court by its order dated 19.08.2009, has admitted the second appeal and has framed the following substantial questions of law, which are as follows: "(1) Whether a prayer for injunction to restrain from interfering with possession and enjoyment of the plaintiffs and for recovery of possession as an alternative prayer is sustainable in the eye of law? (2) Whether the plaintiff can seek the relief of declaration of a property without being in possession and not paying tax for the same for more than 25 years? (3) Whether the appellate Court is right in granting the relief of recovery of possession without the prayer for mandatory injunction when admittedly there is a building in the suit property put up by the defendant?" Issue Nos. 1 and 2: 12. On the side of the appellant, it is stated that the prayer of the plaintiffs for injunction restraining the defendants from interfering the possession and enjoyment of the plaintiff and for recovery of possession as an alternative prayer is sustainable in the eye of law. 13. On the side of the respondents 2 and 3, it is stated that in the plaint itself, the prayers sought for by the plaintiffs were double folded one was seeking for injunction and other was for recovery of possession. The plaintiffs were not clear whether they were in possession of the property or not and these two prayers are opposite to each other and a person cannot claim to be in possession and seek for recovery of possession at the same time. Only when the possession was taken away after the filing of the suit, the plaintiffs can alter the prayer as to recovery of possession. However, in this case, the plaintiffs did not choose to take a definite stand. Moreover the plaintiffs themselves have admitted that the first defendant was in possession of the suit property. Even after the sale of the property under Ex. B1, the plaintiffs did not choose to implead the purchaser as a party to the suit. However, in this case, the plaintiffs did not choose to take a definite stand. Moreover the plaintiffs themselves have admitted that the first defendant was in possession of the suit property. Even after the sale of the property under Ex. B1, the plaintiffs did not choose to implead the purchaser as a party to the suit. Admittedly the plaintiffs sold 5 cents of the land to one Ganeshrajan which was mentioned in Ex. A1 but he was claiming declaration of title for the entire extend of the land. Even after the sale of the property to Srikanda Raja, the plaintiffs have not chosen to make amendment in the schedule property. No specific measurements was given in the second schedule property. The description of the property in Ex. A1 reveals that the northern boundary was one house site of Dharmalinga Raja but the suit property's northern boundary was mentioned as house of Dharmalinga Raja. The case of the defendants was that Dharmalinga Raja and the first defendant were brothers and there was a four feet lane adjoining the house of the Dharmalinga Raja and vacant site was also available and that the first defendant was the, owner of the vacant house site and the description of the property was not correct. Though the defendants have raised this point, the plaintiffs did not choose to file a petition to appoint Commissioner. 14. On the side of the appellant it is stated that in the suit for, declaration of title and possession, the plaintiffs have to prove the title as well as the possession-and It is not the duty of the defendants to disprove the case. In support of his contention the Judgment passed by the Hon'ble Supreme Court in the case of Union of India and others v. Vasavi Co-op. Housing Society Ltd., and others reported in 2014 (2) L.W. 862 : 2014 (4) CTC 471 , which reads as follows: "The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against in the absence of establishment of plaintiff's own little, plaintiff must be non-suited." 15. On the side of the appellant, it is stated that Ex. A2 is not a document of title and that Ex. A2 is an unregistered document hit by the Registration Act and by the Stamp Duty Act and that Ex. A2 is not binding upon the first defendant. The learned counsel appearing for the appellant would rely on the Judgment passed by this Court in the case of S. Thirumalai v. S. Govindarajan (Died) and others reported in 2016 (5) L.W. 834 : 2017 (1) CTC 198 , which reads as follows: "20. Further, provisions to Section 35 are substantive whereas Section 36 are only procedure. There are two limbs for Section 35. The first limb is that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law authority to receive such instrument in evidence, if such instrument is not duly stamped. The second limb of Section 35 is that such unstamped instrument shall not be acted upon or authenticated by any such person, who is the authority to' receive any evidence. However the instrument even if it is admitted in evidence cannot be acted upon by Court when. the same is not duly stamped. Hence, considering the issue in all perspectives, I am., of the view that the document Ex. B7 is inadmissible in evidence and the same cannot be acted upon or relied upon for any purpose. Since the instrument is also unregistered, the case of prior partition pleaded by defendants by means and bounds cannot be accepted relying upon the document-Ex. B7. The suggestion that the document can be looked into for the purpose of severance of status has no merit for obvious reasons flow from my conclusions in the previous paragraphs." 16. On the side of the appellant, it is stated that under Section 79 of the Registration Act, Ex. A2 is inadmissible in evidence and the first appellate Court failed to consider this Act. On the side of the appellant, it is stated that under Section 79 of the Registration Act, Ex. A2 is inadmissible in evidence and the first appellate Court failed to consider this Act. The learned counsel appearing for the appellant would rely on the Judgment passed by this Court in the case of A. Raja Bhoopathi (Died) and others v. A. Vivekanandan reported in 2017 (3) CTC 163 , which reads as follows: "18. The entire reading of the document sought to be introduced as evidence, speaks about the division of property in present and in future. Therefore, registration is necessary and without registration, it cannot be considered as evidence as per Section 17 of the Indian Registration Act. 21. Under these circumstances, photocopy of the inadequately stamped and unregistered document purported to have been executed under the caption as ' Family Arrangement' and rechristened by the revision petitioners as "Memorandum of Understanding" in respect of family property, is totally inadmissible in evidence in the light of Section 17 of the Indian Registration Act and Section 35 of the Indian Stamp Act. Hence, there is no illegality in the impugned order of the trial Court." 17. The learned counsel appearing for the appellant would rely on the Judgment passed by the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (died) by I.Rs. v. Jagannath (Died) by L.Rs. and others reported in 1994 (1) L.W. 21, which reads as follows: "5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the Court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. The Courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax evaders, bank-loan-dodgers and other unscrupulous persons from all Walks of life find the Court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown at any stage of the litigation." 18. On the side of the appellant, it is stated that it is the duty of the plaintiffs to prove the case and in the suit for declaration of title and possession, it is the duty of the plaintiffs to prove his previous possession and from which date his possession was disturbed and the plaintiffs cannot depend upon the weakness of defendant's case. It is stated that the date of dispossession by the defendants was not stated in the plaint. No proof for the possession of the plaintiffs was filed before this Court. 19. In support of this contention, he cited a Judgment passed by the Hon'ble Supreme Court in the case of T.K. Mohammed Abubucker thr. Lrs. v. P.SM. Ahatned Abdul Khader, reported in AIR 2009 SC 2966 , which reads as follows: "14. The Letters patent Bench overlooked the fact that a plaintiff in a suit for declaration of title and possession, can succeed only by making out his title and entitlement to possession and not on any alleged weakness in the title or possession of the defendants. It also overlooked the fact that the plaintiff did not step into the witness box and that none of his vendors and none of the neighbours/villagers, were examined. There was therefore no evidence about previous possession. In fact, plaintiff had deliberately withheld evidence as to the date from which the defendants were in possession. .........The trial Court and the first appellate Court also notice the significant fact that the plaint and the evidence of plaintiff are wholly silent as to when, that is in which year, the defendants allegedly encroached upon the suit property. The plaint merely stated that during the absence of plaintiff, the defendants had encroached the suit property in entirety. Neither the date, month or year is given. The plaint merely stated that during the absence of plaintiff, the defendants had encroached the suit property in entirety. Neither the date, month or year is given. In that context, the trial Court also observed that defendants should be taken as having established their adverse possessory title also and consequently, suit should be held to be barred by limitation." 20. On the side of the appellant, it is stated that the prayer sought for by the plaintiffs is barred by limitation. The learned counsel appearing for the appellant would rely on the Judgment passed by this Court in the case of Hemanakumar v. D. Melvinkumar and others reported in 2018 (6) CTC 645, which reads as follows: "If declaratory relief sought together with relief of possession then Article 65 would be applicable and limitation period would be 12 years - If plaintiff seeks alternative prayer for recovery of possession, then Article 65 would come into play and bar of limitation can be overcome. 17. If Article 58 is applicable, time will begin to run when the right to sue first accrues. But the expression "first" is absent in Article 113. But, that may not make much of a difference. If the declaratory relief is sought together with the relief of possession, then obviously Article 65 would be applicable in which event the limitation period will be 12 years. The suit on hand being one for the relief of Injunction, I have, to necessarily apply the ratio laid, down by the Hon'ble Supreme Court in the decision reported in C. Mohammed Yunus v. Syed Unnissa, AIR 1961 SC 808 ." 21. On the side of the respondents 2 and 3, it is stated that an unregistered document can be relied on for collateral purpose. The learned counsel appearing for the respondents 2 and 3 would rely on the Judgment passed by the Hon'ble Supreme Court in the case of Sita Ram Bhama v. Ramvatar Bhama reported in 2018 (4) L.W. 775 : 2018 (3) CTC 441, which reads as follows: "17. The learned counsel appearing for the respondents 2 and 3 would rely on the Judgment passed by the Hon'ble Supreme Court in the case of Sita Ram Bhama v. Ramvatar Bhama reported in 2018 (4) L.W. 775 : 2018 (3) CTC 441, which reads as follows: "17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an' inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17 (i) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition. 18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy, AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds." 22. On the side of the respondents 2 and 3, it is stated that Ex. A1 is not a document of title. Ex. A4 is only a document which fix the boundary of the land and Ex. On the side of the respondents 2 and 3, it is stated that Ex. A1 is not a document of title. Ex. A4 is only a document which fix the boundary of the land and Ex. A2 did not confer title. Hence, no right is relinquished. In support of his contention, the Judgment passed by the Hon'ble Supreme Court in the case of Yellapu Uma Maheshwari and another v. Buddha Jagadheeswararao and others reported in 2016 (2) L.W. 656 : (2015) 16 SCC 787 , which reads as follows: "Matter was taken up by this Court. In "the above case, this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B.21 and B-22 held that they require registration. In paragraph 15 following was held: "15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the' document in question. A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in of immovable property through a document which is compulsorily, registrable document and if the same is not registered it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition." 14. After holding the said documents as inadmissible, this Court further proceeded to consider the question as to whether the documents B-21 and B-22 can be used for any collateral purpose. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition." 14. After holding the said documents as inadmissible, this Court further proceeded to consider the question as to whether the documents B-21 and B-22 can be used for any collateral purpose. In the above context the Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided appellant-defendant to pay the stamp duty together with penalty and get the document impounded. In paragraphs 16 and 17 following has been laid down: "16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy (AIR 1969 AP 242) has held that the whole process of partition contemplates three phases i.e. Severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. Division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance." 23. There is difference in the northern and southern boundaries in Exs. A1 and A2. The measurement in Exs. A1 and A2' are different. As per Ex. A2, the measurement given for the second item will be final measurement and in that case, the property available to the plaintiffs is much lesser than what was stated in Ex. A1. It is the duty of the plaintiffs to prove suit. After filing of the suit, the plaintiffs sold a property to Ganeshrajan through Ex. B1. The plaintiffs is not the owner of the entire property as stated in Ex. A1. Without impleading Ganeshrajan, the prayer for declaration of title for the entire suit property is impossible. A1. It is the duty of the plaintiffs to prove suit. After filing of the suit, the plaintiffs sold a property to Ganeshrajan through Ex. B1. The plaintiffs is not the owner of the entire property as stated in Ex. A1. Without impleading Ganeshrajan, the prayer for declaration of title for the entire suit property is impossible. After the property was sold to Ganeshrajan, the plaintiffs was not in possession of the particular portion of the property. 24. The prayer sought for by the plaintiffs itself is doubtful. The plaintiffs are not sure whether they are in possession, they sought for an alternative prayer for recovery of possession. The plaintiffs did not mention any particular date of trespass by the first defendant. The copy of complaint before the Police cannot be treated as a document for proof of trespass, when similar complaint was filed by the defendants against the plaintiffs. Ex. B2 proves that the first defendant is in possession from the year 1986 onwards. No specific boundaries are stated in the schedule of property for the second item. 25. The plaintiffs are not specific whether they are in possession or not. The plaintiffs did not claim that the first defendant trespassed into the property on a particular date. Admittedly there is tea shop run by the first defendant. In the above circumstances, the claim of injunction and an alternative prayer for recovery of possession is unsustainable. Issue No. 3: 26. On the side of the appellant, it is stated that the first appellate Court is wrong in granting relief of recovery of possession without a prayer for mandatory injunction. It is stated that there was a building in the suit property which was admitted by the evidence of the plaintiffs. There were shops and houses in the schedule property. But the first appellate Court failed to consider all these things and ordered recovery of possession without a prayer of mandatory injunction. 27. On the side of the respondents 2 and 3, it is stated that there was no building in the suit property and only a tea shop was being run and there was no necessity for mandatory injunction. The case of the plaintiffs is that the plaintiffs were occupying the municipality road. Admittedly there was a building in, the suit property. Admittedly there was some construction in the suit property. In Ex. The case of the plaintiffs is that the plaintiffs were occupying the municipality road. Admittedly there was a building in, the suit property. Admittedly there was some construction in the suit property. In Ex. B2 clearly reveals that the first defendant is paying property tax and EB charges and he was having a building in the suit property. But there was no prayer for mandatory injunction. Moreover the plaintiffs are doubtful whether they are in possession of the suit property. In the above circumstances, the first appellate Court is wrong in granting a relief of recovery of possession, when there was no specific allegation of encroachment. 28. As per the above discussion, it is decided that the judgment and decree of the first appellate Court is to be set aside and the judgment and decree passed by the trial Court is to be confirmed. Hence, this second appeal is allowed by setting aside the Judgment and decree passed in A.S. No. 8 of 2008 dated 11.03.2009 on the file of the learned Subordinate Judge, Srivilliputhur. The judgment and decree made in O.S. No. 193 of 2004 dated 26.10.2007 on the file of the learned Additional District Munsif, Srivilliputhur is hereby confirmed. No Costs.