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2019 DIGILAW 84 (MAD)

Jacob Alexander v. Anish Paul

2019-01-04

R.THARANI

body2019
JUDGMENT : R. Tharani, J. 1. Heard Mrs. J. Anandhavalli, learned Counsel appearing for the Appellant and Mr. V. Meenakshi Sundaram, learned Counsel appearing for the Respondent. 2. This Appeal is filed against the Judgment and Decree passed in A.S. No. 50 of 2009, dated 12.9.2012 on the file of the learned District Judge, Kanyakumari reversing the Decree and Judgment passed in O.S. No. 8 of 2007, dated 13.10.2009 on the file of the learned Subordinate Judge, Kuzhithurai. 3. The Appellant herein is the Plaintiff and the Respondent herein is the Defendant in this case. The Appellant herein has filed a Suit in O.S. No. 8 of 2007 before the learned Sub-Judge, Kuzhithurai for a prayer of demarcation of Northern 8 cents in the Eastern 10 cents of the Suit property and the Plaintiff be allowed to put up a boundary on the Western and Southern sides through Court. As an alternative Prayer, it is prayed that the Plaintiff be given a Decree for Partition of the Suit property allotting the Northern 8 cents in the Eastern 10 cents to the Plaintiff in accordance with his possession and the Plaintiff be allowed to have separate possession. The Sub-Judge, Kuzhithurai has partly decreed the Suit for Partition alone and the Preliminary Decree for Partition is passed in favour of the Plaintiff with regard to 8 cents in the Plaint Schedule property and the Suit was dismissed with regard to the other reliefs. Against which, the Respondent herein has filed an Appeal in A.S. No. 50 of 2009 on the file of the learned District Judge, Kanyakumari and the Appellant herein has filed a Cross-Appeal. The learned District Judge, Kanyakumari allowed the Appeal and dismissed the Cross-Appeal. Against the Decree and Judgment, the Appellant has filed this Second Appeal. 4. The case of the Plaintiff/Appellant herein is that the property having an extent of 44.780 cents lying as a specific plot in Resurvey No. D2/110-2/2 of Nalloor Village is scheduled as the Plaint Schedule property. The entire Suit property formerly belonged to one Lovesom Merina David and one Paulraj has purchased the Eastern 10 cents and one Radhamani has purchased the remaining Western 34.780 cents. Accordingly Paulraj was in possession of the Eastern 10 cents and Radhamani was in possession of the remaining Western area. There was an old dilapidated building in the Suit property. The entire Suit property formerly belonged to one Lovesom Merina David and one Paulraj has purchased the Eastern 10 cents and one Radhamani has purchased the remaining Western 34.780 cents. Accordingly Paulraj was in possession of the Eastern 10 cents and Radhamani was in possession of the remaining Western area. There was an old dilapidated building in the Suit property. On 4.8.1999 Paulraj has executed a Sale Deed in respect of the Northern 8 cents in the Eastern 10 cents of the Suit property in favour of the Plaintiff and the Plaintiff has got title and possession over the same. The remaining area of the Suit property now vests with the Defendant by subsequent transfer from Paulraj and Radhamani. There is no clear boundary between the 8 cents which was purchased by the Plaintiff and the remaining area of the Defendant in the Suit property. On 2.1.2007, when the Plaintiff has attempted to put up a boundary line along the Western and Southern boundary of the 8 cents purchased by him the Defendant and his men obstructed the Plaintiff and the Defendant has no right to do so. The Plaintiff is entitled to get a Decree for demarcation of the Northern 8 cents in the Eastern 10 cents in the Suit property and the Plaintiff be allowed to put up a boundary line alone the Western and Southern sides through Court, or as an alternative Prayer the Plaintiff be given a Decree for Partition of the Suit property allotting the Northern 8 cents of the Eastern 10 cents to the Plaintiff in accordance with his possession and the Plaintiff be allowed to have separate possession of the same. 5. The case of the Defendant/Respondent herein is that the Suit property originally belonged to one Angel Mary David. As per the Partition Deed entered by the Owners of the Suit property, the D schedule property having an extent of 44.750 cents was allotted to her. While so, on 26.10.1995, her power holder one Devadhas has executed a Sale Deed for 34% cents in favour of Radhamony, the mother of the Defendant. Then the above said Devadhas executed a Sale Deed in favour of Paulraj for 10 cents. The said Sale Deed was recorded in the name of Paulraj who is the husband of Radhamony with her. funds. Radhamony is also a necessary party. Then the above said Devadhas executed a Sale Deed in favour of Paulraj for 10 cents. The said Sale Deed was recorded in the name of Paulraj who is the husband of Radhamony with her. funds. Radhamony is also a necessary party. It is further stated that on 24.5.2004, mother Radhamony and father Paulraj have executed a Gift Deed in favour of this Defendant for 36¾ cents inclusive of the Eastern road side. 6. It is further stated that the Plaintiff is a Money Lender and on 25.10.1999, the father of the Defendant had borrowed some amount from the Plaintiff and then they executed the Sale Deed and they made an Agreement to release the property on repayment of the Loan and that the Plaintiff obtained a Cheque leaf from the father of the Defendant and forced him to execute the impugned Sale Deed as a sham and nominal document and that the Plaintiff unlawfully used one of the Cheque leafs and filed a Private Complaint in S.T.C. No. 665 of 2006 before the learned Additional Chief Judicial Magistrate, Thiruvananthapuram and Paulraj was in judicial custody and that after that the Plaintiff has filed this Suit and that the father of the Defendant has no right to transfer the property and that the Plaintiff could not claim any right on the basis of the impugned Sale Deed. 7. This Court by Order, dated 21.2.2013, has admitted the Second Appeal and has framed the following Substantial Questions of Law, which are as follows: "(a) Whether the dismissal of the Suit as not maintainable for want of prayer for Declaration is sustainable in law in the absence of specific denial of title by the Defendant? (b) Is not the Lower Appellate Court committed an error in accepting the Respondent's case of Benami, when the plea of Benami having been abolished under the Benami Transaction Prohibition Act.? (c) Whether the dismissal of the Suit for non-jointer of necessary party is sustainable in law?" Issue No. 1:. 8. On the side of the Appellant, it is stated that the Trial Court has come to a wrong conclusion that the Suit is not maintainable as there was no prayer for Declaration of Title. (c) Whether the dismissal of the Suit for non-jointer of necessary party is sustainable in law?" Issue No. 1:. 8. On the side of the Appellant, it is stated that the Trial Court has come to a wrong conclusion that the Suit is not maintainable as there was no prayer for Declaration of Title. It is stated that no denial is made in the Written Statement as to the ownership and that the Defendant was claiming Benami transaction which is not legally permissible and that the Trial Court failed to consider that the burden is upon the person who claims Benami transaction to prove the same and that even the Gift Deed relied on by the Defendant was executed by the father of the Defendant and that the Gift Deed itself will disprove the claim of Benami transaction and the burden is upon the Defendant to disprove Ex. A1-Sale. Deed and that there is no necessity for a prayer for Declaration of Title. 9. On the side of the Respondent/Defendant, it is stated that Ex. A1 is a sham and nominal document and that the property in 44¾ cents was purchased by the mother of the Defendant from her own funds but the Sale Deed for 10 cents alone was executed in the name of the father of the Defendant and that the Plaintiff is a Money Lender and the Defendant's father borrowed some amount from the Plaintiff and executed the Sale Deed only as a Security and that the Plaintiff already filed a Cheque case against the Defendant's father in Kerala and that the Defendant's father was not having any right to transfer the Suit property as he was only a trustee and that the Suit is not maintainable without a prayer for Declaration of Title. 10. On the side of the Appellant, it is stated that the identification of the property is not disputed in the Written Statement. No denial is made in the Written Statement as to the ownership and the burden is upon the Defendant to show that Radhamony has funds to pay for the property in the name of her husband. There cannot be question over the title in the Written Statement and there is no necessity for a prayer for Declaration of Title. No denial is made in the Written Statement as to the ownership and the burden is upon the Defendant to show that Radhamony has funds to pay for the property in the name of her husband. There cannot be question over the title in the Written Statement and there is no necessity for a prayer for Declaration of Title. The plea in the Written Statement is not proved by the Defendant and the Defendant has admitted that she has no separate income to purchase the property and hence, the Appeal is to be allowed. 11. On the side of the Appellant, it is stated that the lower Appellate Court in Paragraph No. 15 of the Judgment has decided that "in the present case, the Plaintiff is not seeking any declaration relief. Therefore, this Court has accepted the Defendant's contention regarding that he is in possession of the Suit Schedule property" and that in Paragraph No. 21 of the same Judgment, the First Appellate Court has decided that "the Defendant has filed the Written Statement disputing the Plaintiff's title and the Defendant has stated that the Plaintiff is not in possession and the Defendant's mother is enjoying the property. Paragraph Nos. 15 & 21 of the First Appellate Court Judgment itself will show that the lower Court has decided that the Suit is not maintainable as the Defendant disputed the title and that the lower Court failed to consider that the Defendant's claim is only Benami transaction and the Gift Deed in favour of the Defendant itself shows that the contention of the Defendant is wrong and that the Plaintiff established possession by way of Exs. A1 to 3. 12. The Paragraph Nos. 15 & 21 of the Lower Appellate Court Judgment clearly reveals that the lower Court has considered only the wordings in the Written Statement and decided that the Suit is not maintainable. The Lower Appellate Court fails to consider the documents filed by both sides and fails to consider the nature of the claim. Hence, this issue is decided in favour of the Appellant. Issue No. 2: 13. On the side of the Appellant, it is stated that the Lower Appellate Court committed an error in accepting Benami transaction. It is stated that if the property was purchased by the mother, the father need not have signed the Gift Deed executed in favour of the Defendant. Issue No. 2: 13. On the side of the Appellant, it is stated that the Lower Appellate Court committed an error in accepting Benami transaction. It is stated that if the property was purchased by the mother, the father need not have signed the Gift Deed executed in favour of the Defendant. Even in the Gift Deed, it is clearly stated that the father of the Defendant was having two cents of land and the mother was having 34¾ cents of land. This clearly shows that the father of the Defendant was not having more than 2 cents at the time of execution of Gift Deed. 14. The stand of the Respondent is that the father of the Defendant is not having any right over the property and the father of the Defendant is only the trustee of the property and the property was purchased in the name of the father of the Defendant with the funds of the mother of the Defendant. 15. The Benami transaction is prohibited under the Benami Transaction Prohibition Act. In the evidence of DW 1, the mother of the Defendant has clearly admitted that she has no source of income and her husband was doing Timber business and he is having a Textile shop. DW 1 has admitted that she has filed no document to show that she had 100 sovereigns of gold and she sold the same for the purchase of the property. 16. A perusal of the document reveals that the Gift Deed was executed by the father and the mother of the Defendant in favour of the Defendant in which it is clearly stated that 2 cents of the property belonged to the father of the Defendant.. This document shows that the property belonged to the father of the Defendant. There is no question of Benami transaction or Trustee. If at all the father of the Defendant is having 10 cents at that time, he might have gifted 10 cents in favour of the Defendant. But the father of the Defendant has executed Gift Deed for an extent of only 2 cents. This clearly reveals that 8 cents of land was already sold to the Plaintiff. The Gift Deed in favour of the Defendant itself clearly shows that there is no Benami transaction. But the father of the Defendant has executed Gift Deed for an extent of only 2 cents. This clearly reveals that 8 cents of land was already sold to the Plaintiff. The Gift Deed in favour of the Defendant itself clearly shows that there is no Benami transaction. Even if there is Benami transaction it is prohibited under the Benami Transaction Prohibition Act and the Defendant failed to prove any such transaction. 17. Hence, it is decided that the Lower Appellate Court has committed an error in accepting the Respondent's case of Benami transaction, when the plea of Benami transaction having been abolished under the Benami Transaction Prohibition Act. Issue No. 3: 18. On the side of the Respondent, it is stated that Radhamony is in possession of the Suit property. No documents is filed on the side of the Defendant to prove possession. On the side of the Plaintiff-Exs. A1 to A3 were filed. Ex. A2-Patta is not a document of title. But Ex. A2 can be taken into consideration to prove possession. Ex. A3 is the Tax Receipt. PW 1 has deposed regarding his possession. The Defendant failed to examine himself as a Witness. Only mother of the Defendant was examined as DW 1. The contention of the Respondent is that there was a Cheque case against the Respondent filed by the Plaintiff in Kerala and that the Plaintiff has filed this Suit simultaneously and that the property was not correctly identified are not acceptable, as this matters were not proved by the Defendant. 19. There is no document to show the title and possession of the Defendant, whereas Exs. A1 to A3 prove the possession of the Plaintiff. Binami transaction is prohibited. Hence, it is decided that there is no necessity to implead the mother of the Plaintiff. All the Substantial Questions of Law are decided in favour of the Plaintiff. 20. From the above discussion, it is clear that there is some dispute regarding the boundaries between the parties. Though specific boundaries are given in the Sale Deed executed in favour of the Plaintiff, it seems that there is some dispute over the fixing of the boundaries. 21. 20. From the above discussion, it is clear that there is some dispute regarding the boundaries between the parties. Though specific boundaries are given in the Sale Deed executed in favour of the Plaintiff, it seems that there is some dispute over the fixing of the boundaries. 21. The Judgment and Decree passed in A.S. No. 5G of 2009, dated 12.9.2012 on the file of the learned District Judge, Kanyakumari is set aside and the Judgment and Decree passed in O.S. No. 8 of 2007, dated 13.10.2009 on the file of the learned Subordinate Judge, Kuzhithurai is hereby confirmed. 22. The Appellant is hereby directed to file a Final Decree Petition within a period of four weeks from the date of receipt of copy of this Order and on such Petition, the Trial Court is directed to dispose the Petition within a period of three months from the date of filing of the Petition. With the above directions, this Second Appeal is allowed. No Costs. Consequently, M.P.(MD) No. 1 of 2013 is closed.