Allowed

C.Govindasamy Pillay (Deceased v. Muniyappa Pillai

Madras HC20 Aug 2019SA/1443/1999

Case brief

AI extract

What is this about?

Second appeal filed to challenge the decree confirming the plaintiff's title in suit property. The High Court held a sale deed executed 30 years post-original transaction, without additional consideration, invalid. Title and possession restored to the plaintiff based on partition evidence.

What did the court decide?

Second appeal allowed; lower appellate judgment set aside; trial court judgment restored in favor of the plaintiff.

C.Govindasamy Pillay (Deceased Vs Muniyappa Pillai — Specific Performance | Madras HC (2019)

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THE HIGH COURT OF JUDICATURE AT MADRAS

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Judgment Reserved on : 19.07.2019

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Judgment Delivered on : 20.08.2019

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CORAM:

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THE HONOURABLE Mr.JUSTICE RMT.TEEKAA RAMAN

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S.A.No.1443 of 1999

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1.C.Govindasamy Pillay (deceased) 2.R.Venkatachalam ... Appellants/Plaitniffs [ 2^nd appellant impleaded as party vide order dt.09.07.2012 made in CMP.Nos.497 & 498 of 2012 in S.A. 1443/1999] Versus 1.Muniyappa Pillay (deceased) 2.Janaki Ammal 3.V.Veerappan 4.V.Muthaiyan 5.V.Venukkannu Pillay 6.Pattammal 7.Saroja 8.Kangarajan 9.Muruganandam 10.Jayaraman ... Respondents/Defendants 1,3 to 7

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[ R7 to 10 brought on record as LR's of the deceased R1 vide order of Court dated 20.03.2018 made in CMP.Nos.2716 to 2718 of 2018 in S.A. 1443/1999]

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This Second Appeal has been filed under Section 100 of C.P.C., against the Judgment and decree dated 29.04.1999 in A.S.No.9 of 1999 on the file of the Additional Subordinate Judge, Nagapattinam reversing the Judgment and decree dated 27.06.1996 passed in O.S.No.133 of 1989 on the file of the District Munsif , Thiruthuraipoondi.

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For Appellants : M/s.V.J.Latha For Respondents: Died – R1 : Ex-parte – R2 to R6 & R8 : Mr.P.Srinivas (for R7, R9 & R10)

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JUDGMENT

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The plaintiff in the suit is the first appellant herein and the second appellant is the legal representative of the deceased first appellant/plaintiff.

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2.The plaintiff has filed the above suit in O.S.No.133 of 1989 before the District Munsif Court, Thiruthuraipoondi, for declaration of title and for recovery of possession.

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3.For the sake of convenience, the parties are referred to as per ranking are mentioned before the trial.

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4.The plaint proceeds on the basis that the suit property originally belonged to the family of the plaintiff's father Chinniyapillai and his brothers Chellaiya pillai and the 2^nd defendant Vaithiyalingam pillai. Plaintiff's father Chinnaiya pillai got the suit properties in an oral partition effected between the said brothers. After him, the plaintiff got the suit properties in a oral partition, effected amongst his brothers. So, the plaintiff enjoyed the suit property on his own right.

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5.In the plaint, it is further contended that the said Vaithiyalingam Pillai by Ex.A.10 sale deed, in the year 1958 executed a sale deed in favour of the father of the first defendant Ganesa Pillai. Thereafter, again under Ex.B.1 dated23.01.1987, in respect of lands in two Survey numbers, measuring 3 ½ cents are said to have been conveyed to the first defendant, wherein, Survey No.192/2006 measuring 1 ½ cents were also conveyed, as if, the same was left out / omitted to be included due to inadvertence under Ex.A.10 and taking advantage of sale deed in the year 1987, the first respondent/Muniappa pillay had tried to trespass into the said suit property and hence, the plaintiff prayed for recovery of possession.

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6.In the written statement, it is contended that the suit properties and the adjacent Eastern property measuring 1.98 cents, originally belonged to the family of the 2^nd defendant and his brothers, namely the plaintiff's father and one Chellaiya pillai. The said brothers divided the said proeprty equally in the oral partition. In the said partition Western 0.66 cent was given to the 2^nd defendant, middle 0.66 cent was given to the plaintiff's father, an Eastern 0.66 cent was given to Chellaiya pillai. The 2^nd defendant sold the said property so allotted, in

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his favour, to the 1^st defendant's father Ganesan pillai on 12.05.1958. Since then, after 1^st defendant's father, the 1^st defendant and his brother were enjoying the same without division. So, the suit properties belongs to them. Further, due to long enjoyment, they derived title in the suit properties by adverse possession also. But the survey numbers, covering the suit property was by oversight, omitted. So, rectification deed was executed in favour of the 1^st defendant for the suit properties. So, the plaintiff and his predecessor have no right in the suit properties.

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7.Before the Trial Court, the plaintiff examined himself as P.W.1 and marked Ex.A.1 to Ex.A10. On behalf of the defendants, D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.12 were marked. The Trial Court held that the suit properties belongs to the plaintiff and further, the Trial Court reached a conclusion that neither the deceased 2^nd defendant, nor the 1^st defendant either on derivative right or on prescription, had title in the suit properties.

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8.The Trial Court, on a consideration of both oral and documentary evidence, came to the conclusion that in the absence of any positive evidence to show the vendor of the first defendant viz., the second defendant Vaithiyalingam Pillai was never in possession of the property conveyed under Ex.B.1 and the Survey numbers, the extent and the boundaries mentioned under Ex.A.10 appear to be correct and they do not have any reference to any of the properties covered under Ex.B1. Therefore, Ex.B1 cannot be said to be a rectification deed nor omission to mention the Survey numbers, as projected by the first defendant, which was accepted by the Triral Court and also negatived the claim of the defendants on the plea of the adverse possession and decreed the suit in entirety.

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9.Aggrieved by the said judgment and decree passed by the Trial Court in O.S.No.133 of 1989, the defeated defendant has preferred A.S.No.9 of 1999 and after contest, the Lower Appellate Court held that though the land in dispute in Survey Nos.185/1 and 192/6 were not mentioned under Ex.A.10, however, by way of rectification, it has been given effect to and further held that the 2^nd defendant is in possession of the property and hence, rejected the plea of the plaintiff and upheld the plea of the defendant to the limited extent of title to the property, while concurring with the findings of the Trial Court regarding adverse possession and hence, Second Appeal is preferred by the plaintiff (deceased).

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10.Due to the death of the 2^nd defendant, defendants 3 to 7 are added as his legal representatives. Further, the 1^st defendant encroached the suit properties. Therefore, the suit is field for declaration of title and for recovery of possession with profits.

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11.The learned counsel for the appellant would contend that the lands in Survey Nos.193/1 and 192/7, both measuring 66 cents, were sold by the 2^nd defendant in favour of the 1^st defendant under Ex.A.10 and the totality of the lands is covered under the said sale deed in respect of Survey numbers, extent and boundaries, and there is no whisper regarding any of the Survey numbers or the boundaries that are now sought to be conveyed under Ex.B.1 including the lands covered under Ex.B1. The 2^nd defendant has no right to convey the properties and nor was he in possession of the properties, since the lands covered under Ex.B.1, especially, Survey No.192/6, were allotted to the share of the plaintiff's father/Chinnayya Pillai in a oral partition and thereafter, in the oral partition among the brothers, and sons of the Chinnayya Pillai, the suit properties were allotted to the plaintiff.

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12.Since initially only notice of motion was ordered, the Second appeal was admitted on 24.01.2019, on the following substantial questions of law:-

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“Whether a sale deed executed 30 years after the date of the sale deed and property is included without payment of any additional consideration, would be valid and binding on the parties?”

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13.For better appreciation, the genealogy between the parties is extracted hereunder:-

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14.The sum and substance of submissions by the appellant counsel are that: The Lower Appellate Court has not appreciated the evidence of Patta to prove the right of possession of the plaintiff from his father and in view of the admission by the D.W.1 that no consideration was passed under Ex.B1, the deed though styled as sale deed, without consideration, cannot pass any title and also drew the attention of this Court to the concurrent findings regarding the adverse possession being negatived by the Court below.

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15.Heard the learned counsel for the respondents/defendants, who made submissions in support of the judgment of the Lower Appellate Court.

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16.On perusing the oral and documentary evidence adduced before the Trial Court, it is seen that the suit properties bears a sub-divided Survey No.185/11 with an extent of 0.01 acre. The property, admittedly is situated on the East of the suit property, which belongs to the 1^st defendant, who with derivate right from his father, who purchased the same under Ex.A10 sale deed, dated 12.05.1958 from the deceased 2^nd defendant.

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17.The property, which was also admittedly situated on the West of the suit property, is the property purchased by the plaintiff under Ex.B7/sale deed. The plaintiff's contention is that though the 1^st defendant's father's vendor-2^nd defendant

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owned the property, situate on the East of the suit property, the suit property belongs to him based on derivate right from his father/Chellaiya pillai, as the same was allotted to Chinnaiya pillai in a partition, effected with his brother namely the 2^nd defendant and one Chellaiah pillai. The plaintiff relied on Ex.A1/UDR Patta issued for the suit property in his favour in Patta No.174 and Ex.A2 to A6/Kist receipts for the said Patta, which had the old Patta No.72, in this case. It is also to be noted that when the plaintiff was examined himself as PW.1, he had categorically stated the relationship between the parties and also the manner of the partition between his father and his maternal uncle. The relevant portion of the evidence is as extracted hereunder:-

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“,itfs; vy;yhk; nrh;e;J 1 Vf;fh; 98 brd;l; epyk; ,Ue;jJ/ mij bgukhl;rp gps;isfs; kfd;fs; K:j;jtu; bry;iyah gps;is. VdJ jfg;gdhu; rpd;idah gps;is, 2tJ gpujpthjp itj;jpyp';f gps;is K:tUk;. Rkkhf gpupj;J bfhz;lhu;fs; vd;why; rupjhd;/ mjpy; fPH; filrp ghfk; bry;iyaht[f;F itj;jhu;fs;/ eLghfk; vd; jfg;gdhUf;F itj;jhu;fs;/ nky; ghfk; itj;jpyp';fk; gps;isf;F itj;jhu;fs;/ mitfs; mtu;fs;jdpjdpahf Rthjpdk; bra;jhu;fs;/ 3 ngUk; mtu;fSlia ghfk;f';fis gpupf;Fk;go tug;g[fs; itj;J bfhz;lhu;fs;/

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18.So, also the answer elicited in the cross-examination of DW.1 is as extracted hereunder:-

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19.From the above oral evidence adduced by the parties and the answer elicited in the cross-examination of DW.1, coupled with the documentary evidence of Ex.A1 to A5, it is seen that the plaintiff was in possession and enjoyment of the suit property and he had paid the necessary Kists. Furthermore, it is also seen that the Patta No.72 was allotted for the suit property and thereafter the same was re-numbered as Patta No.174, as could be seen from Ex.A1. Moreover on and from 25.01.1987, the plaintiff was paying the kists and under Patta No.174 has reflected in Ex.A6. Thus, on a combined reading on the above factual position emerged from the records, it is seen that the plaintiff was in possession and enjoyment of the suit property from the year 1973 to 1987 and the suit was filed in the year 1989.

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20.It is to be stated that the first defendant has specifically raised a plea in the written statement as well as deposed in the Chief examination of DW.1, that he has not produced any documentary evidence to show that he was in possession of the suit properties. In fact, he has admitted so, in his evidence as extracted above. Furthermore, it is to be stated that as per Ex.B1/sale deed dated 12.05.1958, there is no reference to the survey number that is in dispute in the suit property. DW.1 has categorically admitted in the crossexamination that he has not filed any document of title in respect of the suit property held by the 2^nd defendant and he has not filed any Revenue document to show that he was in possession of the property and thus, causes serious doubt to the truth and veracity of the sale deed of Ex.B1.

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21.Taking into consideration the above facts and in the absence of any document of title in the nature of derivative title or any document to show possessory title to the suit properties with the 2^nd defendant, coupled with the admission of DW.1 in the cross-examination, as extracted supra, no document had been filed to demonstrate the defendants are in possession of suit properties either from the year 1973 or on the date up to the year 1987, furthermore, it is also seen that Exs.B2, B3, B10 & B11 are Kist receipts paid, which are subsequent to the purchase of the suit property, and while Exs.B4, B5 & B6 are not relate to the suit properties and as there is no documentary evidence to prove the title of the 1^st defendant/vendor and furthermore, in view of the specific evidence of PW.1 coupled with the documentary evidence of Exs.A1 to A4 and in the partition of the property a portion, which had fallen to the share of the plaintiff, the documents relied on by the plaintiff has proved in title to the suit property.

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22.Thus, this Court finds that the Trial Court has rightly appreciated the evidence in proper perspective and rightly arrived at a conclusion that the plaintiff has proved his derivative title to the suit properties from the ancestors and also the partition among the brothers of his father and also proved the possession by filing Exs.A2 to A5 Revenue records and also proved that under Ex.A10/sale deed, the lands in survey numbers that are the subject matter of the suit, which was not included. While so, under the guise of sale deed purported to have been stated as settlement deed/rectification deed under Ex.B1, the 2^nd defendant executed the sale deed in respect of S.Nos.185/1 and 192/6, since he has no title to convey the properties to the 1^st defendant as rightly rejected the defendants case.

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23.Yet another point is that, in the written statement filed by the first defendant, a specific plea was raised that under the sale deed Ex.A.10 in favour of the father of the first defendant, two Survey numbers were omitted to be mentioned due to inadvertence and due to the passage of time from the year 1958, rectification deed could not be effected, as it was objected to by the Registration Department, hence, a sale deed was executed in the year 1987 and therefore, the first defendant claims that he is the owner of the property by virtue of the Ex.A.10 coupled with Ex.B.1.

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24.Moreover, Ex.A1/sale deed was executed in the year 1958, after 30 years under Ex.B1, the defendant was claiming as if the suit properties in the said survey numbers were omitted to be mentioned in Ex.A10 and subsequently, he has executed the deed after 30 years, the same cannot be done and hence the contention of the defendants that they have executed the deed under caption of sale deed, cannot be accepted.

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25.Furthermore, DW.1 admitted that under Ex.B1, no sale consideration has passed and hence, the Trial Court has rightly disbelieved the evidence of DW.1 and accepted the admission of PW.1 in support of the suit lands of the above said survey numbers and held that the 2^nd defendant has no title to convey under Ex.B1 and furthermore, the sale is without any consideration and thereby the Trial Court accepted the case of the plaintiff. In view of the decision of this Court in the preceding paragraphs, the title of the plaintiff has been established in the manner known to law, and hence, the findings arrived at by the Trial Court are just and proper.

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26.Per-contra, the findings arrived at by the Lower Appellate Court are contrary to the sound principles of law governing the filed. Hence, the findings rendered by the Lower Appellate Court hereby stands vacated and the findings of the Trial Court, with regard to the possession of the plaintiff in respect of the suit lands in O.S.No.133 of 1989 are restored. Accordingly, the substantial question of law is answered in affirmative and held that the so-called sale of lands is invalid and not binding on the parties and the substantial question of law is accordingly answered in favour of the appellant/plaintiff and against the defendants.

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27.In fine, this Court holds that the title and possession of the plaintiff is proved in the manner known to law and immediately before filing of the suit on the strength of Ex.B1, the defendants appear to have encroached upon the property and Ex.B1 is held to be invalid and not binding on the plaintiff herein.

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28.Accordingly, the Second appeal is allowed and the judgment and decree dated 29.04.1999 in A.S.No.9 of 1999 by the Appellate Court, Nagapattinam are set aside and the judgment and decree dated 27.06.1996 passed in O.S.No.133 of 1989 by the Trial Court, Thiruthuraipoondi is restored. No costs.

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s/d-
Assistant Registrar(CS V)
True Copy
Sub-Assistant Registrar
klt
To
1.The Additional Subordinate Judge, Nagapattinam.
2.The District Munsif Court, Thiruthuraipoondi.
3.The Section Officer,
V.R. Section, High Court, Madras – 104.
+1 CC to Mr.P.Srinivas, Advocate sr 72017.
+1 CC to M/s.V.J. Latha, Advocate sr 70636.
S.A.No.1443 of 1999
SAI(CO)
SP(03/02/2020)

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C.Govindasamy Pillay (Deceased v. Muniyappa Pillai

Case brief

What is this about?

What did the court decide?

C.Govindasamy Pillay (Deceased v. Muniyappa Pillai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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