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2022 DIGILAW 3019 (MAD)

Ponnusamy (Died) v. Kandasamy

2022-09-01

R.N.MANJULA

body2022
JUDGMENT : (Prayer: Appeal filed under Section 96 read with Order XLI & XLI-A of the Civil Procedure Code praying to set aside the Judgment and Decree dated 14.12.2016 made in OS.No.74 of 2010 on file of the Principal District Court, Namakkal. Appeal filed under Section 96 read with Order XLI & XLI-A of the Civil Procedure Code praying to set aside the Judgment and Decree dated 14.12.2016 made in OS.No.10 of 2011, challenging the dismissal of the same on the file of the Principal District Court, Namakkal. Cross Objection filed under Section 96 read with Order XLI and Rule 1 of the Civil Procedure Code praying to set aside the Judgment and Decree dated 14.12.2016 made in OS.No.74 of 2010 on file of the Principal District Court, Namakkal and thereby allow this cross appeal in so far as relates to the use and occupational damage of the suit properties by the defendant of Rs.1,50,000/- for the period from 01.12.2009 to 01.04.2010 and also imposing a sum of Rs.30,000/- p.m. From the date of suit till date of delivery of possession to the plaintiffs towards use and occupation of the suit property is concerned.) 1. These appeals and cross objection were preferred challenging the common judgment of the learned Principal District Judge, Namakkal dated 14.12.2016 made in OS.No.74 of 2010 and OS.No.10 of 2011. 2. The trial in both the suits was conducted simultaneously and by the impugned common judgment, OS.No.74 of 2010 was partly decreed and OS.No.10 of 2011 was dismissed. Aggrieved over that, defendants 1 to 6 in OS.No.74 of 2010 filed AS.No.226 of 2017 and the plaintiff in OS.No.10 of 2011 filed AS.No.227 of 2017. The plaintiffs in OS.No.74 of 2010 filed the cross objection in CROS.OBJ.No.13 of 2020 in AS.No.226 of 2017. During the pendency of both the appeals, the 1st defendant in OS.No.74 of 2010, who was the plaintiff in OS.NO.10 of 2011, died. The 4th defendant in OS.No.74 of 2010 also died. Therefore, their legal representatives were brought on record as parties to the entire proceedings. 3. During the pendency of both the appeals, the 1st defendant in OS.No.74 of 2010, who was the plaintiff in OS.NO.10 of 2011, died. The 4th defendant in OS.No.74 of 2010 also died. Therefore, their legal representatives were brought on record as parties to the entire proceedings. 3. The avernments of the plaint in OS.No.74 of 2010 are, in brief, as hereunder: The plaintiffs are respondents 1 and 2 in AS.No.226 of 2017 and respondents 4 and 5 in AS.No.227 of 2017; it is the case of the plaintiffs that the suit property measuring an extent of 8430 sq.ft in S.No.136/2A is situated in Periyapatti Village, Namakkal Taluk; it originally belonged to the 1st defendant namely R.Ponnusamy by virtue of a sale deed dated 06.02.1981; the 3rd defendant namely P.Ayyammal is the wife of the 1st defendant; defendants 4 and 5 namely P.Saravanan and P.Raju are the children of defendants 1 and 3; the 6th defendant namely C.Srinivasan is the brother of the 3rd defendant; defendants 1, 4 and 5 sold the suit property in favour of one P.Deivasigamani and one P.Tamilselvan through a sale deed dated 27.01.2003; subsequently, P.Deivasigamani relinquished his half share in the suit property in favour of his brother - P.Tamilselvan by virtue of a release deed dated 03.05.2006; 3.1. Thereafter, the plaintiffs purchased the suit property through two separate sale deeds dated 06.10.2009; as per the sale deeds dated 06.10.2009, the western portion measuring an extent of 4,215 sq.ft was purchased by the 2nd plaintiff and the eastern portion measuring an extent of 4,215 sq.ft was purchased by the 1st plaintiff; the plaintiffs came into possession of the suit property immediately after the execution of the sale deeds and the plaintiffs got a joint patta on 09.11.2009. 3.2. 3.2. The 2nd defendant in O.S.No.74 of 2010 namely M/s.Sri Kamatchi Amman Labour Auto Spring Works by its Managing Director Ponnusamy is a concern run by defendants 1, 3 and 6 in the suit property; they met the vendor of the plaintiffs namely P.Tamilselvan during the month of May-2006 and requested him to let out an extent of 7,492¾ sq.ft of the suit property for the purpose of running their business; the vendor of the plaintiffs agreed for letting out the above extent for a rent of Rs.30,000/- per month; a rental agreement was also entered into between the tenants and the landlord on 02.06.2006; in the rental agreement, it has been clearly stated that the defendants should not make any alteration in the suit property without the permission of the landlord; since the defendants made attempts to alter the superstructure on 16.06.2007 without getting permission from the vendor of the plaintiffs - P. Tamilselvan, he has filed a suit in OS.No.459 of 2007 on the file of the District Munsif Court, Namakkal against the defendants seeking the relief of permanent injunction. 3.3. In the written statement filed by the defendants in OS.No.459 of 2007, the defendants raised a false allegation that the sale deed executed by them on 27.01.2003 in favour of P.Tamilselvan and P.Deivasigamani was sham and nominal; the first defendant subsequently filed a suit in OS.No.145 of 2008 for cancellation of the sale deed dated 27.01.2033 executed by him and his sons in favour of P.Tamilselvan and P.Deivasigamani and also for the relief of permanent injunction; at that stage, the plaintiffs met the 1st defendant – R.Ponnusamy and enquired him about the suit proceedings; the 1st defendant ensured that he was only a tenant in the suit premises and he would vacate the suit property if given some time; the 1st defendant assured the plaintiffs that he would vacate the suit premises immediately; only thereafter, the plaintiffs purchased the suit property; but, subsequently, the defendants refused to hand over possession to the plaintiffs; hence, the plaintiffs filed the suit in OS.No.74 of 2010 for declaration, for recovery of possession and for damages for use and occupation at the rate of RS.30,000/- per month including past and future damages. 4. 4. The 1st defendant filed a written statement in OS.No.74 of 2010 for himself and on behalf of defendants 2 to 6 by stating that the sale deed dated 27.01.2003 said to have been executed by defendants 1, 4 & 5 in favour of P.Tamilselvan and P.Deivasigamani was a sham and nominal document; the 1st defendant borrowed an amount from the vendor of the plaintiffs namely P.Tamilselvan, for which, he and his two sons executed the sale deed dated 27.01.2003 as a security; the alleged release deed also would not pass on any title in favour of the vendor of the plaintiffs; since the vendor of the plaintiffs had illegally disconnected the service connection, they filed a suit against him and it is pending; there is no cause of action for the suit and the suit is bad for non-joinder of necessary parties, in view of the non-impleadment of the vendor of the plaintiffs. 5. The averments as contained in the plaint in OS.No.10 of 2011, in brief, are as follows: This suit has been filed by the 1st defendant in OS.No.74 of 2010 for cancellation of the sale deed dated 27.01.2003. The pleadings in OS.No.10 of 2011 are similar to the averments as contained in the written statement filed in OS.No.74 of 2010 and the averments in the written statement filed by the 4th defendant namely Kandasamy in OS.No.10 of 2011 are similar to the averments made in the plaint filed in OS.No.74 of 2010. 6. On the basis of the pleadings, the learned trial Judge has framed the following issues: “(i) OS.No.74 of 2010: 1. Whether the plaintiffs are entitled to declaration and recovery and possession of the properties? 2. Whether the plaintiff is entitled to damages for use and occupation of sum of Rs.1,50,000/- for the period from 01.12.2009 to 01.04.2010? 3. Whether the plaintiff is entitled to damages for the use and occupation of the rent of Rs.30,000/- p.m.,till delivery of possession? 4. Whether the 1st defendant is the absolute owner of the suit properties? and 5. To what relief if any the plaintiff is entitled to? (ii) OS.No.10 of 2011: 1. Whether the cause of action for the suit is true? 2. Whether the plaintiff is entitled for the relief of cancel the sale deed dated 27.01.2003? 3. Whether the plaintiff is entitled for the suit claim? 4. and 5. To what relief if any the plaintiff is entitled to? (ii) OS.No.10 of 2011: 1. Whether the cause of action for the suit is true? 2. Whether the plaintiff is entitled for the relief of cancel the sale deed dated 27.01.2003? 3. Whether the plaintiff is entitled for the suit claim? 4. Whether the 1st defendant is the absolute owner of the suit properties?and 5. To what relief if any the plaintiff is entitled to? 7. During the course of simultaneous trial, in OS.No.74 of 2010, on the side of the plaintiffs, four witnesses were examined as PW.1 to PW.4 and Ex.A1 to A16 were marked. On the side of the defendants, two witnesses were examined as DW.1 and DW.2 and no exhibits were marked. Further one Court witness was examined as CW.1. 7.1. In OS.No.10 of 2011, on the side of both the plaintiff and the defendants, no witnesses were examined and no documents were marked. However, Court exhibits namely Ex.C1 and C2 alone were marked. 8. After conclusion of the trial, OS.No.74 of 2010 was partly decreed in respect of the relief of declaration and recovery of possession and with regard to the relief of damages for use and occupation, the suit in OS.No.74 of 2010 was dismissed. The other suit in OS.No.10 of 2011 was dismissed. Aggrieved over that, the defendants in OS.No.74 of 2010 filed the appeal in AS.No.226 of 2017. The plaintiff in OS.No.10 of 2011 filed AS.No.227 of 2017. The plaintiffs in OS.No.74 of 2010 filed the cross objection in CROS.OBJ.No.13 of 2020. 9. Heard the submissions made by the learned counsel on either side and perused the materials available on record. 10. Aggrieved over that, the defendants in OS.No.74 of 2010 filed the appeal in AS.No.226 of 2017. The plaintiff in OS.No.10 of 2011 filed AS.No.227 of 2017. The plaintiffs in OS.No.74 of 2010 filed the cross objection in CROS.OBJ.No.13 of 2020. 9. Heard the submissions made by the learned counsel on either side and perused the materials available on record. 10. The learned counsel for the appellants in AS.No.226 & 227 of 2017 submitted that the sale deed in favour of the vendor of the plaintiffs in OS.No.74 of 2010 dated 27.01.2003 marked as Ex.A2, has been executed only by way of security; on this aspect, the 4th defendant in OS.No.74 of 2010 namely P.S.Saravanan has been examined as DW.1 and the stamp vendor of Ex.A3 release deed dated 03.05.2006 was examined as DW.2; the evidence of D.W.1 would prove that the 1st defendant had borrowed a loan of Rs.45,00,000/- from the father of the plaintiffs' vendor and offered the suit property only as a security; even though Ex.A2 dated 27.01.2003 was executed like a sale deed, the intention of the executants is not to convey the suit property to P.Tamilselvan and P.Deivasigamani, but only to have the suit property as a security; the learned trial Judge would have considered the evidence on the side of the defendants in OS.No.74 of 2010 and ought to have chosen to dismiss the suit in OS.No.74 of 2010 in entirety and hence, the judgment with regard to that portion has to be set aside. 11. 11. Per contra, the learned counsel for the plaintiffs in OS.No.74 of 2010 submitted that the sale deed-Ex.A2 dated 27.01.2003 is a registered one, which has been executed by the 1st defendant and his sons for a valuable consideration; having admitted the execution of the sale deed, the appellants/ defendants in OS.No.74 of 2010 cannot plead any other intention than the recitals in the sale deed-Ex.A2 dated 27.1.2003; in fact, the appellants/defendants in OS.No.74 of 2010 are estopped from denying the sale transaction in view of Sections 91 and 92 of the Indian Evidence Act; despite the sale deed dated-Ex.A2 dated 27.01.2003 has been executed in the year 2003, the suit in OS.No.10 of 2011 has been filed in the year 2010 and hence, it is barred by limitation; since the respondents in AS.No.226 of 2017 namely the plaintiffs in OS.No.74 of 2010 purchased the suit property from the owners, in whose favour, defendants 1, 4 and 5 in OS.No.74 of 2010 had already executed the sale deed, the vendor of the plaintiffs in OS.No.74 of 2010 is not a necessary party to the suit; the oral evidence of DW.1 – P.S.Saravanan is in no way helpful to their case; defendants 1, 4 and 5 in OS.No.74 of 2010 had executed the sale deed-Ex.A2 dated 27.01.2003 and conveyed title in respect of the suit property in favour of P.Tamilselvan and P.Deivasigamani; they executed a tenancy agreement in favour of the vendor of the plaintiffs in OS.No.74 of 2010 in the year 2006 for the purpose of continuing their business in the suit premises; the appellants/defendants in OS.No.74 of 2010, by their own conduct, had chosen to execute a tenancy agreement and now they cannot turn around and say that they did not execute the sale deed-Ex.A2 dated 27.01.2003 with an intention to convey the title in favour of P.Tamilselvan and P.Deivasigamani. 11.1. 11.1. According to the learned counsel for the plaintiffs in OS.No.74 of 2010, even though the learned trial Judge was pleased to grant the relief of declaration and recovery of possession, the prayer for the relief of damages for use and occupation by the appellants/defendants in OS.NO.74 of 2010 was dismissed; the learned trial Judge had made an observation in the judgment that the tenancy agreement was executed by the 1st defendant in OS.No.74 of 2010 along with one Ramasamy and since the said Ramasamy was not impleaded as a party to the proceedings, the relief for damages was denied; but, in reality, the above said Ramasamy was not a party to the tenancy agreement, which has been marked as Ex.A4; Ex.A4 would only show that Ramasamy is the father of the 1st defendant in OS.No.74 of 2010; the learned trial Judge misconstrued that Ramasamy was also a party to the tenancy agreement and concluded that the respondents in AS.No.226 of 2017 were not entitled to claim damages in the absence of Ramasamy; since the learned trial Judge had chosen to dismiss the relief in respect of the damages on a misconception, that portion of the judgment of the learned trial Judge may be reversed. 12. Point for consideration: (i) Whether the common judgment of the trial Judge dated 14.12.2016 is fair and proper? and (ii) Whether the denial of the relief of damages for use and occupation in respect of the suit property by the defendants in OS.No.74 of 2010 was on a misconception? 13. The fact that the suit property was originally belonged to the first appellant namely R.Ponnusamy is not denied. The first appellant- R.Ponnusamy purchased the same on 06.02.1981 by virtue of a sale deed marked as Ex.A1. The claim of the respondents in AS.No.226 of 2017/plaintiffs in OS.No.74 of 2010 is that the suit property was sold by the 1st defendant and his sons namely defendants 4 & 5 by virtue of a sale deed-Ex.A2 dated 27.01.2003 in favour of P.Tamilselvan and P.Deivasigamani, who are the sons of one Padmanaban. Subsequent to the above sale, P.Deivasigamani relinquished his half share in the suit property in favour of his brother - P.Tamilselvan by virtue of a release deed dated 03.05.2006. Subsequent to the above sale, P.Deivasigamani relinquished his half share in the suit property in favour of his brother - P.Tamilselvan by virtue of a release deed dated 03.05.2006. The respondents in AS.No.226 of 2017 are the purchasers from P.Tamilselvan and they purchased half share each by two separate sale deeds both dated 06.10.2009, which are available as Ex.A11 and Ex.A12. 14. The appellants have come out with a case that the sale deed Ex.A2 dated 27.01.2003 was not executed with an intention to sell the suit property in favour of P.Tamilselvan and P.Deivasigamani, but it was executed only as a security for the loan amount availed by the deceased 1st appellant from Padmanaban, who is the father of P.Tamilselvan and P.Deivasigamani. No explanation has been given on the side of the appellants as to why the sale deed-Ex.A2 dated 27.01.2003 was executed in favour of the sons of Padmanaban instead of a mortgage deed. Even if the sale deed was executed as a security, it could have been at least as a conditional sale deed. But, the avernments in Ex.A2 dated 27.01.2003 would only show that it is a pucca sale deed and there is no condition attached to it to pass on the title in favour of the predecessors of the plaintiffs. 15. It is needless to state that Section 91 the Indian Evidence Act deals with the exclusion of oral evidence by documentary evidence. Once the written instrument is produced and the executants accept its execution, then the presumption will go in favour of the predecessors and the terms of sale deed should be presumed to be true. So, in the case on hand, defendants 1, 4 and 5 did not deny the execution of the sale deed Ex.A2 dated 27.01.2003. Their only contention is that the sale deed Ex.A2 dated 27.01.2003 was not executed with an intention to convey the title of the suit property. 16. It is not the contention of the appellants that there is a fraud or coercion committed by the predecessors in title and that they were defrauded or cheated. It was not pleaded by the appellants that the sale deed Ex.A2 dated 27.01.2003 was obtained from them by making any misrepresentation. The sale deed-Ex.A2 dated 27.01.2003 was executed by the executants namely defendants 1, 4 and 5 in OS.No.74 of 2010 knowing pretty well that it is a sale deed. It was not pleaded by the appellants that the sale deed Ex.A2 dated 27.01.2003 was obtained from them by making any misrepresentation. The sale deed-Ex.A2 dated 27.01.2003 was executed by the executants namely defendants 1, 4 and 5 in OS.No.74 of 2010 knowing pretty well that it is a sale deed. For a sale deed, which was executed in the year 2003, the case was filed in the year 2010 to cancel the same. The plaint avernments in OS.No.74 of 2010 also show that the 1st appellant- R.Ponnusamy also filed OS.No.145 of 2008 on the file of the Sub Court, Namakkal against Padmanaban, P.Tamilselvan and P.Deivasigamani to cancel the sale deed Ex.A2 dated 27.01.2003. Since the 1st appellant namely R.Ponnusamy was a party to the sale deed Ex.A2 dated 27.01.2003, the cause of action would start from 27.01.2003 itself. Despite the same, the suit in OS.No.10 of 2011 was not filed within three years, but, it has been filed in the year 2010 and hence, the suit in OS.No.10 of 2011 filed by the 1st appellant- R.Ponnusamy is barred by limitation. 17. The one and only material available in support of the appellants is the evidence of DW.1. During the cross examination of DW.1, who is the 4th defendant in OS.No.74 of 2010, he accepted that both the sale deeds dated 06.10.2009 were executed and registered in a manner it has to be done in the Sub Registrar office. There is no rebuttal proof available on record to show that the sale deed Ex.A2 dated 27.01.2003 was executed only with an intention to offer them as a security. The appellants have not produced any documents to show that they had paid interest to the alleged loan availed by the deceased 1st appellant from the father of the vendor of the respondents in AS.No.226 of 2017. On the other hand, the respondents in AS.No.226 of 2017 have proved that the deceased 1st appellant namely R.Ponnusamy had executed a tenancy agreement in favour of the vendor of the respondents in AS.No.226 of 2017 on 02.06.2006 and later extended it on 25.06.2007. 18. It is clearly stated in Ex.A4 that the 1st appellant – R.Ponnusamy was conducting business in the name and style M/S.Sri Kamatchi Amman Labour Auto Spring Works. In the tenancy agreement, it has further been stated that the it was executed on 02.6.2006 between P.Tamilselvan and R.Ponnusamy. 18. It is clearly stated in Ex.A4 that the 1st appellant – R.Ponnusamy was conducting business in the name and style M/S.Sri Kamatchi Amman Labour Auto Spring Works. In the tenancy agreement, it has further been stated that the it was executed on 02.6.2006 between P.Tamilselvan and R.Ponnusamy. R.Ponnusamy- 1st appellant had been described as the son of Mr.Ramasamy. However, the learned trial Judge misconstrued that Ramasamy was also a party to the tenancy agreement and made an observation that without impleading Ramasamy, the respondents in AS.No.226 of 2017 ought not to have claimed the relief of damages for use and occupation of the premises. As per Ex.A4- lease agreement, the rent for the premises was agreed at the rate of Rs.30,000/- per month. Had Ex.A2 sale deed dated 27.01.2003 been executed only by way of security, there is no need to execute Ex.A4 lease deed dated 02.06.2006. The conduct of the 1st appellant- R.Ponnusamy and his sons would only show that they had sold the suit property in favour of P.Tamilselvan and P.Deivasigamani. However, they continued to be in possession of the suit property as tenants and executed the lease agreement Ex.A4 dated 02.06.2006 with P.Tamilselvan. 19. The predecessors of the plaintiffs in OS.No.74 of 2010 namely P.Tamilselvan and P.Deivasigamani got the title in respect of the suit property by virtue of a sale deed Ex.A2 dated 27.01.2003. One of the predecessors by name P.Deivasigamani relinquished his half share in favour of his brother P.Tamilselvan by virtue of a release deed dated 03.05.2006. Since the appellants failed to prove that the sale deed-Ex.A2 27.01.2003 was executed only for the purpose of security, they cannot claim that the release deed Ex.A3 dated 03.05.2006 executed between the predecessors of the respondents in AS.No.226 of 2017 was invalid. At the risk of the repetition, it was reiterated that the suit filed by the 1st appellant- R.Ponnusamy was not within the period of limitation and the very suit itself namely OS.No.10 of 2011 was barred by limitation. 20. At any rate, the appellants did not have any title in respect of the suit property. At the risk of the repetition, it was reiterated that the suit filed by the 1st appellant- R.Ponnusamy was not within the period of limitation and the very suit itself namely OS.No.10 of 2011 was barred by limitation. 20. At any rate, the appellants did not have any title in respect of the suit property. Having passed on the title by knowing pretty well that they are executing the sale deed-Ex.A2 dated 27.01.2003 in favour of P.Tamilselvan and P.Deivasigamani, the 1st appellant filed the previous suit in OS.No.145 of 2008 on the file of the Sub Court, Namakkal by claiming that the sale deed was sham and nominal. The plaintiffs in OS.No.74 of 2010 purchased the suit property from the original owner namely P.Tamilselvan by virtue of two sale deeds Ex.A11 & Ex.A12 both dated 06.10.2009. Since the plaintiffs have acquired title to the suit property, the learned trial Judge has rightly granted the relief of declaration and recovery of possession. The lease in favour of the appellants was not renewed for any subsequent period. Further, the appellants denied their tenancy, rather sought to claim ownership in the suit property, which was already disposed of by them in favour of the predecessors of the plaintiffs. 21. Hence, it is right for the learned trial Judge to grant the relief of declaration and recovery of possession. Since the vendor of the plaintiffs in OS.No.74 of 2010 had passed on their title in respect of the suit property in favour of them, the vendor of the plaintiffs is not a necessary party to the suit filed by the plaintiffs in OS.No.74 of 2010 against the appellants. So, the suit filed in OS.No.74 of 2010 is not bad for non joinder of necessary party. However, the learned trial Judge disallowed the relief for damages for use and occupation of the suit property by the appellants on a misconception that Ramasamy was also a party to the tenancy agreement. 22. The tenancy agreement was wrongly read by the learned trial Judge and hence, it was misconstrued that Ramasamy was also a party to the tenancy agreement. In fact, Ramasamy is the father of the 1st appellant- R.Ponnusamy and the description made in the lease agreement-Ex.A4 dated 02.06.2006 was misconstrued and misinterpreted by the learned trial Judge and because of that, the relief for damages was denied. In fact, Ramasamy is the father of the 1st appellant- R.Ponnusamy and the description made in the lease agreement-Ex.A4 dated 02.06.2006 was misconstrued and misinterpreted by the learned trial Judge and because of that, the relief for damages was denied. Since the mistake on the part of the trial Court is apparent, the cross objection filed by the plaintiffs in OS.No.74 of 2010 needs to be allowed. In view of the above discussions, the appeals filed by the appellants in AS.Nos.226 & 227 of 2017 are liable to be dismissed and the cross objection in CROS.OBJ.No.13 of 2020 is to be allowed. In the result, the Appeals in AS.Nos.226 & 227 of 2017 are dismissed and the cross objection in CROS.OBJ.No.13 of 2020 is allowed and the Judgment and Decree dated 14.12.2016 made in OS.No.74 of 2010 on file of the Principal District Court, Namakkal, is modified and the suit in OS.No.74 of 2010 is decreed in entirety. Time 3 months. No costs. Consequently connected miscellaneous petitions are also closed.