Allowed

Reckchand Jain v. C.M.N.Ramachandran

Madras HC8 Nov 2019SA/489/2014

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for permanent injunction, the single judge examined conflicting accounts of land extent after acquisition. Relying on sale deed boundaries and lack of revenue records, the court held mathematical calculations were insufficient. The appeal was allowed, restoring the trial court's dismissal of the injunction suit.

What did the court decide?

The second appeal was allowed. The judgment and decree of the lower appellate court were set aside, and the judgment and decree of the trial court were restored.

Reckchand Jain Vs C.M.N.Ramachandran — Partition | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 08.11.2019

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CORAM:

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THE HON'BLE MR.JUSTICE R.SUBRAMANIAN

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S.A.No.489 of 2014

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Reckchand Jain ..Appellant/Respondent/Defendant

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Vs.

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C.M.N.Ramachandra ..Respondent/Appellant/Plaintiff

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PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree dated 04.01.2014 in A.S.No.329 of 2011, on the file of the IV Additional Judge, City Civil Court, Chennai, setting aside the judgment and decree passed in O.S.No.5769 of 2007 dated 27.07.2010 on the file of the II Assistant Judge, City Civil Court, Chennai.

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For Appellant : Mr.P.B.Balaji

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For Respondent : Mr.S.Umapathy

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The defendant in O.S.No.5769 of 2007 who was successful in getting the suit for permanent injunction dismissed by the trial court and upon its reversal by the lower appellate court has come up with this Second Appeal.

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According to the plaintiff, the suit property along with a larger extent belonged to one Krishnammal. She having purchased the same under two sale deeds during the year 1976 from one M/s.Abdul Rahim and Ganapathiappan. The total extent purchased by Krishnammal was 2397 sq.ft shown as Plot No.1A and 2400 sq.ft shown as Plot No.4A in Old S.No.101/5 equivalent to New S.No.7/3B. The said Krishnammal had on 16.07.1986 sold an extent of 1400 sq.ft to the defendant. Of the said 1400 sq.ft, 1110 sq.ft was carved out of Plot No.1A and 290 sq.ft was carved out of Plot No.4A. Just prior to the sale in 1986 by Krishnammal in favour of the defendant, a portion of the property measuring 1790 sq.ft comprised in both the Plots viz., 1A and 4A was acquired by the Government for formation of the ring road.

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According to the plaintiff, after deducting the extent of land acquired viz., 1790 sq.ft and the extent of land sold to the defendant viz., 290 sq.ft, 320 sq.ft was left with Krishnammal and Krishnammal had sold the said 320 sq.ft to the plaintiff under the sale deed dated 19.07.2007. Since the defendant attempted to interfere with the possession of the plaintiff of the 320 sq.ft purchased by him on 19.07.2007, the plaintiff had come up with the suit for injunction.

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The suit was resisted by the defendant contending that Krishnammal had no land left in S.No.7/3B after the sale and acquisition. Relying upon the boundaries in the sale deed dated 18.07.1986 marked as Ex.B6, the defendant would contend that the Southern boundary having been shown as ring road, Krishnammal had no land left on the Southern side after the sale in favour of the defendant. The plaintiff is the speculative purchaser, who had purchased 320 sq.ft. of land knowing fully well that Krishnammal had no title to any land in S.No.7/3B after the acquisition and the sale in favour of the defendant. On the above contentions, the defendant sought for dismissal of the suit.

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At trial, the plaintiff was examined as PW1 and Ex.A1 to Ex.A10 were marked. The defendant was examined as DW1 and Ex.B1 to Ex.B12 were marked. The award in the Land Acquisition Proceeding was marked as Ex.X1.

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The trial court on a consideration of the evidence on record, particularly, the recitals in the sale deed dated 16.07.1986 executed by Krishnammal in favour of the defendant concluded that Krishnammal had no land left after the acquisition and sale in favour of the defendant to have conveyed to the plaintiff in 2007. The trial court also pointed out the absence of revenue records in the name of Krishnammal from 1986 viz., date of acquisition till 2007, to buttress its conclusion that the plaintiff could not have been put in possession of 320 sq.ft which he claims to have purchased under the sale deed dated 19.07.2007.

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The trial court also took note of the fact that the revenue records, especially the patta, Ex.B3 would show that the Southern boundary of the plaintiff's property was shown as ring road, to reject the claim of the plaintiff that Krishnammal was in possession of 320 sq.ft of land in S.No.7/3B and that she had sold the same to the plaintiff under the sale deed dated 19.07.2007 and that the plaintiff was put in possession of the said extent of 320 sq.ft.

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The trial court also took note of the fact that the vendor of the plaintiff Krishnammal had suffered a decree for injunction in O.S.No.4244 of 1996 at the hands of the defendant. On the above findings, the trial court dismissed the suit for injunction. Aggrieved the plaintiff preferred an appeal in A.S.No.329 of 2011.

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The lower lower appellate court however went by the mathematical calculation and concluded that Krishnammal had an extent of 320 sq.ft of land left with her after acquisition and sale in favour of the defendant on 16.07.1986. The lower appellate court found that the total extent of Plot No.4A was 2400 sq.ft and after acquisition of 1790 sq.ft, Krishnammal was left with 610 sq.ft in Plot No.4A, out of which, she had sold only 290 sq.ft to the defendant under the sale deed dated 16.07.1986. Therefore, there was still balance of 320 sq.ft left with Krishnammal, which she had validly sold under the sale deed dated 19.07.2007 in favour of the plaintiff. On the said conclusion, the lower appellate court reversed the judgment and decree of the trial court and granted a decree for injunction as prayed for. Aggrieved the defendant has come up with this Second Appeal.

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The following questions of law were framed at the time of admission:-

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Whether not in the absence of express measurements or in the case of a conflict boundaries will prevail over the extent of a property?

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Whether a decree cannot be granted if the plaintiff has failed to prove his case and be based solely on the weaknesses of the defence?

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Whether not an express admission by a party to his detriment will be the best evidence against him?

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The ownership of Krishnammal is not in dispute. In fact both the plaintiff and the defendant claim under Krishnammal. The fact that 1790 sq.ft of land in S.No.7/3B was acquired by the Government for formation of ring road is also established by Ex.X1. After deducting 1790 sq.ft of land acquired, Krishnammal was entitled to 610 sq.ft in Plot No.4A. Under the sale deed dated 16.07.1986 Krishnammal has sold an extent of 290 sq.ft in favour of the defendant.

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Therefore, if we are to go strictly by mathematical calculation, Krishnammal would be entitled to an extent of 320 sq.ft of land in S.No.7/3B, which she could have validly conveyed in favour of the plaintiff under the sale deed dated 19.07.2007. But, the evidence available would demonstrate that such mathematical calculation would not lead us to a proper conclusion in the case on hand. The recitals in the sale deed dated 16.07.1986 assumes significance in this context. The said sale deed has been produced as Ex.B6. It is seen from Ex.B6 that the property has been sold in two sub-items. The description of the property sold shown as 'B' Schedule in Ex.B6 sale deed reads as follows:-

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nfhlk;ghf;fk; hPrg;oL. brd;id 106. mUk;ghf;fk; fpuhkk;. g [jpjhf tplg;gl;Ls;s hp';nuhoy;/ V.bc&oa{y; 1 mapl;lbrhj;jpy; xUghfk; tlf;fpy; ehd; ,d;W njjpapy; yj;jhFkhhpf;F fpuak; bra;a [k; tltd;il ghfk;. bjw;fpy;. hp';nuhL. nkw;fpy; o/v!;/be/7-2. fpHf;fpy; gpshl; be/ 4gp. o/v!;/be/7-3 ghh;l; gukrptj;Jf;F brhe;jkhd kid/ ,jd; kj;jpapy; bjd; tly; nky;g[uk; 23?1-2 mo. fPH;g[uk; 32 mo. fpH nky; tlg[uk; 37 mo. bjd;g[uk; 33?1-4 mo. kw;bwhU mst[ fpHnky; 25 mo bjd;tly; 23 1-2 mo bjd; nkw;F fpuhrpy; 36 1-2 mo Mf ,jw;F Toa 1400 rJuo bfhz;l fhyp kid. ,jd; gpshl; be/ 1V. ghh;l;/rh;nt be/101-5. o/v!;/be/7-3 ghh;l;. gpshf; be/12. brhj;jpd; khh;f;fl; kjpg;g[ U:/38500-?/

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The above description would definitely show that the Southern boundary of the property sold under Ex.B6 was shown as ring road. It is also seen from the description of the second part that the second part measuring 25 ft East-West on the North, 23 ½ ft North- South on the East, 36 ½ ft across from South – West. So the second part of the property sold under Ex.B6 sale deed is a triangular portion and this is shown to be bounded on the South by the ring road. It is therefore clear from Ex.B6 that Krishnammal did not have any property left with her after the sale under Ex.B6 in S.No.7/3B. The following recitals in the said sale deed would also justify the above conclusion:-

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nkw;go 1V. 4V. bek;gh;fs; bfhz;l gpshl;Lfspy; nuhL

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tp!;jhpg;g;[f;fhf vk;/vk;/o/V/tpdhy; mf;a{brc&d; bra;jJ nghf kPjk; ,Ug;gJk; nkny brhy;yp te;jgo V/bc&a{y; 1. 2 mapl;l brhj;jpy; xU ghfkhd gp/bc&a{ypy; fz;oUf;Fk; goahd 1400 rJuo bfhz;l fhyp kidia kl;Lk;////

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The above recitals in the document would demonstrate that what Krishnammal sold was the property that remained with her after acquisition for the ring road. The measurements in the sale deed as well as the plan attached to sale deed Ex.B6

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would show that the property acquired was partly in Plot No.4A and partly in Plot No.1A. The award which has been produced as Ex.X1 also depicts that the property acquired which comes to a total extent on 1790 sq.ft was not exclusively in Plot No.4A, but, portion of it fell in Plot No.1A which was on the North also.

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This is substantiated by the measurements in Ex.B6 sale deed which shows that East-West Southern measurement of portion in Plot No.1A is 33 ¼ ft, but East-West measurement on the Northern side of the immediate Southern property is shown as 25 ft. The boundary description in the award also would show that the Southern boundary is S.No.8 and not the remaining portion of S.No.7/3B. These features would definitely make it clear that Krishnammal was not entitled to or possessed of any land in S.No.7/3B after the acquisition and sale in favour of the defendant under the sale deed Ex.B6.

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The appellate court's conclusion on the basis of mathematical calculation which proceed on presumption that 1790 sq.ft of property acquired was situate only in Plot No.4A cannot be said to be correct, in view of the evidence available on record in the form of sale deed of the year 1986 and the award passed in the Land Acquisition Proceeding.

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Yet another striking feature which will derail the case of the plaintiff is that there are no revenue documents to show that Krishnammal was in possession of 320 sq.ft of property in between 1986 and 2007, till she sold the property in favour of the plaintiff. The suit being one for bare injunction, it is for the plaintiff to establish his possession on the date of the suit.

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No doubt, the plaintiff has produced the notice issued by the Corporation in 2007 i.e., after the suit and the receipt for payment of property tax on 03.12.2007, which is also after the suit. Thus, the documents cannot be relied upon to prove possession of the plaintiff.

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On the other hand, the defendant has produced the extract from the Town Survey Land Register issued to him as early as on 22.10.1998 in respect of the suit property as Ex.B3. The description of the property in the prior suit viz., O.S.No.4244 of 1996 filed by the defendant against Krishnammal and her children for bare injunction also shows that the property is bounded on the South by ring road. The suit in O.S.No.4244 of 1996 has been decreed exparte.

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A perusal of the evidence on record in my considered opinion justifies the conclusion of the trial court than that of the lower appellate court. The lower appellate court has only gone by mathematical calculation and has ignored the other evidence that is available on record.

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In view of the above conclusion, the first question of law has to be necessarily answered in favour of the appellant to the effect that both the measurement as well as the boundaries would go to show that Krishnammal was not entitled to any land in S.No.7/3B after the acquisition and sale.

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I do not think that the second question of law would strictly arise. The plaintiff has singularly failed to prove that Krishnammal was in possession of 320 sq.ft of land after 1986 till she sold the same in 2007 to the plaintiff. The title of Krishnammal has also been not proved. Therefore, I do not think that either the trial court or the appellate court could be said to have granted a decree in favour of the plaintiff on the weakness of the defence.

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It should also be pointed out that the plaintiff in his evidence as PW1 has admitted that 100 ft ring road run on the South of the defendant's property. This admission would also probabilise the case of the defendant. The lower appellate court has not adverted to the above evidence. Therefore, the third question of law is also answered in favour of the appellant to the effect that the respondent/ plaintiff has in fact admitted that Krishnammal did not have any property between the ring road and the property sold by her to the defendant in the year 1986 under Ex.B6.

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In view of the answers to the questions of law, the Second Appeal is allowed. The judgment and decree of the lower appellate court are set aside and that of the trial court are restored. However, in the circumstances, there shall be no order as to costs.

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Sd/-

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Assistant Registrar(CS-VIII)

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//True Copy//

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Sub Assistant Registrar

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dsa

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The IV Additional Judge, City Civil Court, Chennai.

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The II Assistant Judge, City Civil Court, Chennai.

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+1cc to Mr.P.B.Ramanujam, Advocate SR.92852 +1cc to Mr.S.Umapathy, Advocate SR.93646

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S.A.No.489 of 2014

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TM(CO) CB(10/06/2020)

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Reckchand Jain v. C.M.N.Ramachandran

Case brief

What is this about?

What did the court decide?

Reckchand Jain v. C.M.N.Ramachandran

Case brief

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What did the court decide?

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