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2020 DIGILAW 857 (MAD)

Louis Sinnaya Arokiasamy v. Vengadachalam

2020-06-02

K.KALYANASUNDARAM

body2020
JUDGMENT : K. KALYANASUNDARAM, J. 1. As the issues involved in these Appeals are one and the same, they are disposed of by this common Judgment. Assailing the common Judgment/Order passed by the Additional Sub-Judge, Puducherry in A.S. Nos. 15 of 2017 and 22 of 2017, the present Appeals have been filed. 2. Brief facts giving rise to these Appeals would run thus: The First Respondent-Vengadachalam [hereinafter called as “Agreement-holder”] had entered into an Agreement of Sale, dated 9.1.1978 with Louis Sinnaya Arokiasamy and Dr. Louis Pragasam Cannaiya, the Appellants in S.A. Nos. 22 of 2020 and 26 of 2020 [hereinafter called as “original Owners”] to purchase the property measuring an extent of 2 kanis and 39 Kuzhis in Cadastre No. 492 for a total Sale consideration of Rs. 37,000. According to the Agreement-holder, he was ready and willing to perform his part of Contract, but the original Owners failed to come forward to execute the Sale-Deed. Hence, a Suit in O.S. No. 168 of 1979 was instituted for Specific Performance of the agreement, dated 9.1.1978. It appears that after contest, the Suit came to be decreed on 19.9.1980. In E.P. No. 360 of 1980, a Sale-Deed was executed through Court in favour of the Agreement-holder and it was registered as Document No. 1367 of 1981. It is not in dispute that the Decree and Judgment made in O.S. No. 168 of 1979 had become final as no Appeal was preferred challenging the same. 3. One Mrs. Rathina Mary, the sister of the original Owners executed a Release Deed, dated 9.7.1983 releasing her share in Cadastre No. 492 in favour of the Agreement-holder. It is the case of the Agreement-holder that major portion of the Suit property was handed over in pursuance of the Decree in O.S. No. 168 of 1979, but a portion was occupied by one Gundu Govindasamy claiming to be the tenant of the original Owners. Since he refused to hand over vacant possession, the Agreement-holder filed O.S. No. 460 of 1982 for Declaration of Title to ‘A’ Schedule property and for Recovery of possession of ‘B’ Schedule property i.e. three portions mentioned as ‘A’ and ‘B’ and ‘C’ in the Plaint Plan. Since he refused to hand over vacant possession, the Agreement-holder filed O.S. No. 460 of 1982 for Declaration of Title to ‘A’ Schedule property and for Recovery of possession of ‘B’ Schedule property i.e. three portions mentioned as ‘A’ and ‘B’ and ‘C’ in the Plaint Plan. The Suit was resisted by the said Gundu Govindasamy contending that he is a Cultivating Tenant of the Suit property and the description is not correct and the Suit is bad for non-joinder of necessary parties. In I.A. No. 3016 of 1984, an Advocate Commissioner was appointed to carry out measurement of the Suit with the help of a Surveyor. The Report and Sketch were marked as Exs.C1 and C2. The Advocate Commissioner and the Surveyor were examined as Witnesses. After analyzing the evidence adduced by the parties, the trial Court decreed the Suit on 24.02.1988 in accordance with the plan submitted by the Advocate Commissioner and the Plan was directed to be part and parcel of the Decree. 4. Aggrieved over the Judgment and Decree, Gundu Govindasamy preferred an Appeal before the Principal District Judge, Pondicherry in A.S. No. 104 of 1988. The Appellate Court dismissed the Appeal confirming the Judgment of the Trial Court, by its Judgment and Decree, dated 5.4.1989. Challenging the same, the Second Appeal No. 1389 of 1989 was filed and the same was dismissed by this Court on 22.6.2000. 5. Thereupon, Execution Petition No. 185 of 2000 was filed for delivery of possession of the Suit Schedule property. It seems that delivery was objected by one Munusamy and others. Hence, E.A. No. 240 of 2001 was filed under Order 21, Rule 97 of CPC for removal of obstruction. The said E.A. contested on the ground that the Suit property was not part of the Sale-Deed and the Decree passed in O.S. No. 460 of 1982. It appears, at that juncture, the Judgment-debtor Gundu Govindasamy passed away and his Legal Heirs were brought on record. The Executing Court allowed E.A. No. 240 of 2001, by its order dated 17.11.2008. Aggrieved over the same, the obstructors preferred an Appeal before the Principal Sub-Court, Puducherry in A.S. No. 34 of 2008. The Appeal was dismissed vide Order/Judgment dated 25.10.2010. The Appeal in C.M.S.A. No. 25 of 2010 preferred therefrom came to be dismissed by this Court on 7.1.2011. Aggrieved over the same, the obstructors preferred an Appeal before the Principal Sub-Court, Puducherry in A.S. No. 34 of 2008. The Appeal was dismissed vide Order/Judgment dated 25.10.2010. The Appeal in C.M.S.A. No. 25 of 2010 preferred therefrom came to be dismissed by this Court on 7.1.2011. The Hon’ble Apex Court confirmed the Judgment of the High Court and dismissed the SLP (Civil) No. 7966 of 2011 on 18.7.2011. 6. The original Owners filed E.A. No. 9 of 2013 in E.P. No. 185 of 2000 and one Mangala Gowri [hereinafter called as “subsequent Purchaser”] filed E.A. No. 14 of 2013 in E.P. No. 185 of 2000 under Order 21, Rule 97 of CPC read with Section 151 of CPC to record their objection and obstruction for delivery of Petition mentioned property. It is not disputed that out of three portions ‘A’ and ‘B’ and ‘C’ the Decree Holder had taken possession of ‘B’ and ‘C’ portions and the dispute is only with regard to ‘A’ portion, which has an extent of 10,526 sq. ft. The case of the original Owners is that the Petition mentioned property originally belonged to their great grandfather Louis Arokiasamy Mudaliar. On his death, it was succeeded by their father and after the death of their father on 08.08.1965, it was inherited by them along with their sister Rathina Mary. They entered into an Agreement of Sale with the First Respondent for sale of the property situated in Cadastre No. 492 corresponding to R.S. No. 152/5 in Karuvadikuppam Revenue Village, Puducherry. Since they were unable to execute a Sale-Deed, the First Respondent filed the Suit in O.S. No. 168 of 1979 for Specific Performance and obtained a Decree on 19.9.1980. It is their further case that the Petition Schedule property was not the subject matter of the Suit in O.S. No. 168 of 1979 or the Sale-Deed, dated 4.7.1981. The Petition mentioned property falls within Cadastre No. 491 Bis and 492 Bis and it is corresponding to R.S. No. 152/4. It is further stated that the Petitioners have already sold major portion of their property in S. No. 152/4 and have retained a portion covering an extent of 12,000 sq. ft. The Petition mentioned property was under Lease to one Gundu Govindasamy and his family members and they handed over possession of the Suit property to the Petitioners. It is further stated that the Petitioners have already sold major portion of their property in S. No. 152/4 and have retained a portion covering an extent of 12,000 sq. ft. The Petition mentioned property was under Lease to one Gundu Govindasamy and his family members and they handed over possession of the Suit property to the Petitioners. It is alleged that the Petitioners/Original Owners came across a publication in Tamil Daily, dated 16.5.2012 issued by the First Respondent claiming right over the Petition property. It is also stated that the original Owners/Petitioners filed a Suit in O.S. No. 404 of 2013 against the First Respondent and others for appropriate relief. 7. It is the case of the subsequent Purchaser/Applicant in E.A. No. 14 of 2013, she became absolute Owner of the property having an extent of 2,425 sq. ft. covered under Cadastre No. 491 Bis and 492 Bis by virtue of a Sale-Deed, dated 30.11.2012 and she was a bona-fide purchaser of the said property for a valid consideration. It is also the case of the subsequent Purchaser that the First Respondent purchased the property comprised in Cadastre No. 492, which is correlated to 152/5, but he is attempting to take possession of a property covered in Cadastre No. 491 Bis and 492 Bis correlated to R.S. No. 152/4. 8. The Executing Court based on the above pleadings framed points for determination. The parties have adduced oral and documentary evidence in support of their respective contentions. The Executing Court dismissed both the Petitions by an Order, dated 19.6.2017. Aggrieved over the same, the original Owners preferred an Appeal in A.S. No. 15 of 2017, while the subsequent Purchaser filed Appeal Suit No. 22 of 2017. The Appellate Court concurred with the finding of the Executing Court and dismissed both the Appeals. Challenging the concurrent findings, the present Appeals have been filed. 9. These Appeals have been admitted on the following Substantial Questions of Law: S.A. No. 22 of 2020: “(i) Whether in law the Courts below are right in failing to see that the Decree obtained behind the back of the Appellants is not binding on them and that they are entitled to object the First Respondent taking possession of a portion of their property? (ii) Whether in law the Courts below are right in overlooking that the Appellants are necessary and proper parties to the Suit and that the Decree obtained in their absence is non est in law and inexecutable? (iii) Whether the Courts below have overlooked the material evidence and hence, the finding is perverse?” S.A. No. 26 of 2020: “(i) Whether the Judgment and Decree dated 19.9.1980 passed in O.S. No. 460 of 1982 on the file of II Additional District Munsif, at Pondicherry obtained by the First Respondent against one Gundu Govindasamy without impleading Appellant as party in the Suit is binding on the Appellant also? (ii) Whether the shortage in extent of the property would give right for the First Respondent to claim additional extent which was not sold to him? (iii) Whether the Lower Appellate Court committed serious error in not considering the vital document i.e. Explanation, dated 9.2.2018 submitted by the Tahsildar, Taluk Office, Oulgaret, in which he categorically stated that Warrant could not be executed and property could not be demarcated, since there was difference in Cadastre numbers between warrant Schedule and Advocate Commissioner’s Sketch pertaining to Portion-A?” S.A. No. 80 of 2020: “(i) Under the guise of execution of Decree in O.S. No. 460/1982, which goes beyond the Schedule property R.S. No. 152/5 mentioned in the Plaint Schedule and the Order of the execution of the Decree based on the Advocate Commissioner’s Report in respect of R.S. No. 152/4, whether it deserves interference. (ii) When the Court Amin and the Revenue Authorities have given a categorical statement before the Executing Court with regard to the inability in executing the Decree due to the non mentioning of the sub division in the Decree and in the Warrant, in the light of the same, whether the Executing Court is right in passing the Order. (iii) The finding of the Execution Court that the Decree holder has right in respect of R.S. No. 152/4 pursuant to the Release Deed executed by Rathna Mary Ammal in respect of her undivided 1/6th share, whether could be lawful, when the Decree holder claiming through Rathna Mary Ammal had not chosen to seek prayer for partition demarcating the share in the property.” 10. I have Heard Mrs. Hema Sampath, learned Senior Counsel appearing on behalf of Mr. C. Vigneswaran, learned Counsel for the Appellant in S.A. No. 22 of 2020; Mr. I have Heard Mrs. Hema Sampath, learned Senior Counsel appearing on behalf of Mr. C. Vigneswaran, learned Counsel for the Appellant in S.A. No. 22 of 2020; Mr. Prakash Adiapadam, learned Counsel for the Appellant in S.A. No. 26 of 2020 and Mr. A. Tamilvanan, learned Counsel for the Appellants in S.A. No. 80 of 2020 and Mr. S. Sethuraman, learned Counsel for the First Respondent in all the Second Appeals and perused the materials available on record. 11. It is urged by the learned Counsels appearing for the Appellants that what was sold to the First Respondent was the property of the original Owners in Cadastre No. 492 with R.S. No. 152/5 and that the property to the rest of the one sold to him in Cadastre No. 492 B is belonged to his vendors. It is alleged in O.S. No. 460 of 1982 that a lessee Gundu Gbyindasamy was in possession Of ‘A’ portion, even when the property was sold to the First Respondent and the Lessee only sought time to surrender possession after harvest. In the Written Statement, the lessee has made categorical statement that he is in possession of the land belonging to the Appellants herein. Even after that, the First Respondent did not choose to implead the Owners and hence, the Suit is hit by non-joinder of necessary parties. It is further added that the original Owners were totally ignorant of the Suit filed against the lessee and came to know only from the advertisement in a newspaper dated 16.5.2012. The Decree obtained against the Lessee is not binding on the Appellants. Hence, non-joinder of the Appellants in the Suit is fatal. 12. It is further contended by the learned Counsels for the Appellants that the Courts below failed to identify ‘A’ Schedule property sought to be recovered. According to the learned Counsel, the Report filed by the Advocate Commissioner marked as Exs.C1 and the Sketch drawn by the Surveyor which was marked as Ex.C2 are not based on authentic records from the Government survey and Ex.B6 & B9 would reveal that the disputed ‘A’ portion is only part of the Appellants’ property and that it is not in R.S. No. 152/5. It is also contended that there is no finding by the First Appellate Court as to whether the obstruction was occasioned without any just cause as required under Rule 98(2) of Order 21, of CPC. The Lower Appellate Court ought to have allowed I.A. No. 866 of 2019 to receive additional evidence to prove that the disputed ‘A’ portion is not a part of the property sold to the First Respondent in Cadastre No. 492. The learned Counsels by placing reliance upon the decision in Kamakshhi Animal vs. R. Ranganathan Chettiar, 1969 (82) LW 142, argued that the boundaries will prevail over extent and even if there is any shortfall that cannot be recovered from the original Owners. 13. Per contra, it is argued by the learned Counsel for the First Respondent that the Appellants-Louis Sinnaya Arokiasamy and Dr. Louis Pragasam Cannaiya had entered into an Agreement of Sale with the First Respondent on 9.1.1978 agreeing to sell 2 kanis and 39 Kuzhis in Cadastre No. 492. As the Owners did not come forward to execute the Sale-Deed, the Suit was filed in the year 1979 being O.S. No. 168 of 1979 and it was decreed in favour of the First Respondent, after contest. Based on the Decree, a Sale-Deed was executed in favour of the First Respondent/Agreement-holder on 4.7.1981 and thereafter so many litigations ensued between the Lessee of the original Owners and in all the litigations, the First Respondent succeeded. Despite the same, he is not able to enjoy the fruits of the Decree. According to the learned Counsel, the issue with regard to identify of ‘A’ Schedule property was settled long back and on number of occasions. It is further submitted that the original Owners have not approached the Court with clean hand and there is no averment when the Lessee had surrendered possession and what was the extent of the property and on the other hand, on the date of filing of the Suit, the original Owners were not in possession of the extent claimed in the Application, and hence, no interference is required in these Appeals. In the earlier proceedings, it has been categorically held that the Petition property is situated in Cadastre No. 492 and the Appellants/original Owners are not necessary parties in the subsequent Suit. But only in order to prolong the litigation, Applications and Appeals were filed by the Appellants. In the earlier proceedings, it has been categorically held that the Petition property is situated in Cadastre No. 492 and the Appellants/original Owners are not necessary parties in the subsequent Suit. But only in order to prolong the litigation, Applications and Appeals were filed by the Appellants. It is also contended that the subsequent Purchaser-Mangala Gowri is not entitled to claim right over the property and she is not a bona-fide purchaser. 14. I have heard the rival submissions of learned Counsels and perused the materials available on record. 15. In the case on hand, it is not in dispute that the petition mentioned ‘A’ property was owned by Louis Sinnaya Arokiasamy and Dr. Louis Pragasam Cannaiya. It is the case of the Agreement-holder that they entered into an agreement with him on 9.1.1978 to sell the property measuring an extent of 2 Kanis and 39 kuzhis in Cadastre No. 492, which includes ‘A’ mentioned property. Indisputably, the Agreement-holder instituted Suit in O.S. No. 168 of 1979 for Specific Performance of the Agreement, dated 9.1.1978 and the Suit was decreed in favour of the First Respondent. Since the Appellants/original Owners did not come forward to execute the Sale-Deed, the Court executed the Sale-Deed on 4.7.1981 in favour of the First Respondent. It is the case of the First Respondent/Agreement-holder that pursuant to the Decree major portion of the property was handed over, but a small portion was under occupation of the Lessee Gundu Goyindasamy. Despite his undertaking, the Lessee refused to hand over possession, therefore, the Suit in O.S. No. 460 of 1982 was filed for recovery of possession. As already observed out of 2 Kanis and 29 kuzhis, equivalent to 1,37,664 sq. ft. except ‘A’ portion having extent of 10,526 sq. ft. the First Respondent was put in possession of the rest of the land. 16. It is to be seen that in O.S. No. 460 of 1982, an Advocate Commissioner was appointed to measure the property with the assistance of a Surveyor. After survey, a Report and Sketch were filed and they were marked as Exs.C1 and C2. The trial Court found that the disputed property is in Cadastre No. 492 and not in Cadastre No. 492 Bis as claimed by the Appellants herein. After survey, a Report and Sketch were filed and they were marked as Exs.C1 and C2. The trial Court found that the disputed property is in Cadastre No. 492 and not in Cadastre No. 492 Bis as claimed by the Appellants herein. The issue as to whether the Suit is bad for non-joinder of necessary parties also came up for consideration and it was found that the original Owners are not necessary parties, because in the previous Suit in O.S. No. 168 of 1979 in respect of Schedule property, a Sale-Deed was executed in favour of the Plaintiff. The matter did not rest with that and it was taken up to the First Appellate Court and the High Court. In S.A. No. 1389 of 1989, this Court confirmed the finding rendered in O.S. No. 460 of 1982. 17. It is pertinent to note that in the Execution Proceedings, the First Respondent was constrained to file E.A. No. 240 of 2001 for removal of obstructions made by the Respondents. The parties let in oral and documentary evidence and after scrutinizing the entire evidence, the said E.A. was allowed on 17.11.2008. The Order was challenged by the Obstructors unsuccessfully before the Sub-Judge, Puducherry in A.S. No. 34 of 2008 and before this Court in C.M.S.A. No. 25 of 2010. Eventually by an Order, dated 18.07.2011, the Hon’ble Apex Court confirmed the finding in E.A. No. 240 of 2001 in S.L.P. (Civil) No. 7966 of 2011. It is to be noted that till the S.L.P. was dismissed by the Hon’ble Apex Court, it was contended by the Lessee-Guhdu Govindsamy and his legal heirs that they were in possession and enjoyment of the property in dispute. After they lost their case before the Apex Court, one more application seems to have filed by Ambujam, the daughter of Gundu Govindasamy in E.A. No. 273 of 2011. Though the maintainability of the E.A. was challenged by the First Respondent straight away in C.R.P. (PD) No. 753 of 2012 before this Court, but later it came to be dismissed by the District Munsif by an Order, dated 20.12.2013. 18. It is relevant to note that the Applications in E.A. No. 9 of 2013 and 14 of 2013 were filed by the Appellants in June 2013 and the original Owners also instituted a separate Suit in O.S. No. 404 of 2013 on 7.3.2013 seeking right over the property. 18. It is relevant to note that the Applications in E.A. No. 9 of 2013 and 14 of 2013 were filed by the Appellants in June 2013 and the original Owners also instituted a separate Suit in O.S. No. 404 of 2013 on 7.3.2013 seeking right over the property. Till then, the original Owners were only silent spectators as no action has been taken by them. In the present application, it is stated that the Petition Schedule property was under lease to Gundu Govindasamy and his family, members and possession of the property was handed over to the Petitioners. The Executing Court as well as the First Appellate Court found that the Appellants/Original Owners have admitted that the daughter of Gundu Govindasamy Ambujam alias Manonmani still retains 3000 sq. ft. out of the total extent of 10,526 sq. ft. It is also found that the original Owners have sold 2,425 sq. ft. to Mangala Gowri subsequent Purchaser under Exs.R9 by a registered Sale-Deed, dated 30.11.2012. Another extent of 1,813 sq. ft. was sold to one Leela by a registered Sale-Deed, dated 31.3.2013. 19. The Suit was filed on 7.3.2013 and the E.A. was filed in June 2013 but in both the proceedings, sale effected by the original Owners were not mentioned. In this context, the Courts below found that the original Owners have not approached the Court with clean hands. It is fairly well settled that if the party has not approached the Court with clean hands, they are not entitled to the indulgence of the Court. 20. It is fruitful to mention the following decisions in this regard: (i) Ramjas Foundation vs. Union of India, 2010 (14) SCC 38 : “14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the Petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others Courts and Judicial Forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants, who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue arising in the case.” (ii) M. Perumal and Others vs. Vijayakumari and Others, 2017 (1) CTC 517 : “26. It is very unfortunate and shock and surprise that once the Plaintiffs have approached the Court by suppressing the fact about the sale of the portions of the land and sought for the prayer for declaration, declaring the title of the Plaintiffs for the entire properties of the 25 cents, which is absolutely amounts to fraud played by the Plaintiffs particularly, the First Respondent/first Plaintiff on the Court. Therefore, it is made clear that there was no cause of action for filing the Suit.” 21. It is also seen that the petitioners did not choose to enter into the Witness box; but only their Power of Attorney was examined in support of their case. The Court found that no documentary evidence was produced to contradict Exs.R1 and R6 which are the Decree passed in O.S. No. 460 of 1982 and the Report of the Advocate Commissioner and Sketch. It is apposite to mention that Mangala Gowri had purchased the property from the original Owners by a Sale-Deed, dated 30.11.2012 and the same was marked as Ex.R9. The Power of Attorney of Mangala Gowri in her evidence admitted that the First Respondent Agreement-holder issued a Paper Publication on 18.6.2012 informing about the litigation over the property since 1979, despite the same, she purchased the property in view of the clarification given by the original Owners. After considering the evidence of the subsequent Purchaser, it was held that she did not derive valid title from the original Owners and she is not a bona-fide Purchaser. The above narrated facts would prove that the parties are re-agitating the issues which were already decided in the earlier round of litigation and reached finality. Therefore, I find no merits in the contention of the Appellants. 22. In the light of the discussion and finding, all the questions of law are answered against the Appellants. The above narrated facts would prove that the parties are re-agitating the issues which were already decided in the earlier round of litigation and reached finality. Therefore, I find no merits in the contention of the Appellants. 22. In the light of the discussion and finding, all the questions of law are answered against the Appellants. In the result, the Appeals fail and they are dismissed as devoid of merits. However, there shall be no order as to Costs. Consequently, connected Miscellaneous Petitions are closed.