Dismissed

K.Kanangaraj v. Chinnasamy

Madras HC24 Jan 2020SA/1112/2013

Case brief

AI extract

What is this about?

A vendor resisted the purchaser’s claim for possession by alleging unpaid sale consideration and permission to remain. The Court rejected that defence and the objections to the property description, sustained the first appellate decree, and dismissed the second appeal.

What the court decided

AI extract

K.Kanangaraj Vs Chinnasamy — Property and Title | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 20.11.2019 PRONOUNCED ON : 24.01.2020

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CORAM :

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THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

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S.A.No.1112 of 2013 and M.P.No.1 of 2013

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K.Kanagaraj ... Appellant/1^st defendant

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Vs. 1. Chinnasamy ... Respondent/Plaintiff 2. Revathi

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K.Narayanan

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Ayyammal 5. Munusamy ... Respondents/Defendants

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[R2 to R5 were set exparte before the lower Court. Hence, notice to R2 to R5, is dispensed with as per memo dated 17.09.2019 and vide order dated 17.09.2019 made in SA No.1112 of 2013 [RPAJ]]

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Prayer:- This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 05.02.2013 passed in A.S.No.8 of 2010 on the file of the Subordinate Court, Sankari, partly reversal of the judgment and decree dated 19.11.2009 passed in O.S.No.179 of 2005 on the file of the District Munsif Court, Sankari.

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For Appellant : Mr.N.Manokaran

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For Respondents : Mr.R.Subramanian (for R1)

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J U D G M E N T

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The appellant is the 1^st defendant in OS No.179 of 2005, on the file of the District Munsif Court, Sankari, Salem District. 1^st respondent herein viz., Chinnasamy, has filed the suit as against the appellant and against the respondents 2 to 5, for the following reliefs:

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(a) declaration, declaring that the plaintiff is the title holder of the suit properties and consequently, for the relief of permanent injunction in his favour;

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(b) decree of permanent mandatory injunction directing the 1^st defendant/appellant

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herein to remove the pipe line laid by the 1^st defendant in S.F.No.269/1B and S.F.No.269/1C;

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(c) decree of permanent mandatory injunction directing the 1^st defendant to remove the hut put up by him on 13.03.2006 in S.F.No.269/1A;

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(d) recovery of possession in respect to S.F.No.269/1A; and

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(e) direction to the defendants to pay a sum of Rs.5,000/- as the damages.

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The learned District Munsif, Sankari, by a judgment and decree dated 19.11.2009 allowed the suit partly and granted the decree for the relief of declaration, declaring that the plaintiff is the absolute owner of the suit property. In respect to the other reliefs, the suit has been dismissed with costs.

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Aggrieved over the said finding, the said Chinnasamy, as an appellant preferred an appeal in A.S.No.8 of 2010 on the file of the learned Subordinate Judge, Sankari. The learned Subordinate Judge, Sankari, by a judgment and decree dated 05.02.2013 had partly allowed the appeal and ultimately, he granted a decree in favour of the plaintiff in respect to all reliefs, except the relief of mandatory injunction for removal of pipe line along with the relief of declaration, which was already granted by trial Court. Feeling aggrieved over the same, the appellant/1^st defendant is before this Court, with the present Second Appeal.

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For the sake of convenience the parties are referred to as per their litigative status before the trial Court.

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The averments made in the plaint, in brief, are as follows:

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(i) Originally, the suit property belonged to defendants 3, 4 and others. Vide a registered sale deed dated 24.09.1998, they sold the same in favour of defendants 1 and 2 and that a portion of the suit property was purchased by the plaintiff from defendants 1 and 2 under a registered sale deed dated 22.01.2003. Further the plaintiff has purchased the remaining portion of the suit property also and therefore, the plaintiff is the title holder of the suit property and that after the above sale, the plaintiff was put in possession and enjoyment of the suit property. Patta has also been changed in the name of the plaintiff and thereafter, he only paid the gist to the Government. The plaintiff alone has been in absolute possession and enjoyment of the suit property.

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(ii) Recently, the defendants started interfering with the plaintiff's peaceful possession and enjoyment. On 02.07.2005 at about 10am, they came near to the suit property

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and attempted to trespass into the same, which was thwarted by the plaintiff successfully and that the threat of the defendants continued even thereafter. Having no other option, the plaintiff has instituted the suit, seeking the relief of declaration of his title and for a consequential perpetual injunction to restrain the defendants from in any way interfering with his peaceful possession and enjoyment.

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(iii) During the pendency of the suit, on 14.03.2006, the plaintiff was informed that on 13.03.2006, the 1^st defendant had put up a hut in S.F.No.269/1A admeasuring 10x15 ft and the said hut is under the possession and enjoyment of the 1^st defendant. The first defendant has no right to do so and is bound to remove the same and handover the vacant possession of the said land to the plaintiff. Even at the time, when the order of ad interim injunction was in force, the defendants have plucked the coconuts from the suit property and caused damages to the plaintiff to the tune of Rs.5,000/-, for which the plaintiff has to be suitably compensated. The defendants have also embedded pipeline in S.No.269/1B and 269/1C beneath the ground and the said pipeline is liable to be removed from the said land. In the said circumstances, the plaintiff was forced to amend the plaint seeking the relief of recovery of possession and mandatory injunction and damages also.

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The averments made in the written statement filed by the 1^st defendant, in brief, are as follows:

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(i) It is true that the defendants 1 and 2, through a registered sale deed dated 24.09.1998, have purchased the suit property from the defendants 3, 5 and others and that the relationship averred by the plaintiff is correct. Since the plaintiff wanted to purchase the suit properties and one Sellappa Nadar was alleged to have a pathway along and across the suit property, having anticipated a prolonged and agonizing Court proceedings, the 1^st defendant has decided to sell the suit properties to the plaintiff and that at that time, the plaintiff did not have enough cash and even though the sale price was fixed at Rs.3,17,000/-, the plaintiff was able to mobilize only Rs.1,17,000/- and that on 15.07.2002, he paid Rs.1,17,000/- alone, as part of the sale consideration and he promised to pay the balance of Rs.2,00,000/- soon after the anticipated litigation with Sellappa Nadar, came to an end.

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(ii) The plaintiff has also permitted the 1^st defendant to remain in the suit property saying that it should be sufficient guarantee for him to realise the balance sale consideration. Even after the aforesaid sale deed, the 1^st defendant alone continued in possession and enjoyment over the same. The 1^st defendant put up a tiled shed to keep the agricultural implements and nearby the said house, he has got his tethering ground, where he has got two cows and two buffaloes and he has dumped hayricks and he has also got a den

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where he is keeping his goats and that the 1^st defendant alone was cultivating the suit properties by raising crops like black gram, pasipayir, thattaipayir and cholam and that he has got about 60 coconut trees and he has also planted 150 coconut saplings. He also has been getting the usufructs from the trees.

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(iii) The 1^st defendant came to understand that the plaintiff has been taking steps to drive him out of the suit property, even without paying the balance sale consideration and that he was summoned by the Sub Inspector of Police, Poolampatty with regard to a petition preferred by the elder brother of the plaintiff viz., Palaniappan on behalf of the plaintiff, alleging that the 1^st defendant is not permitting the plaintiff to enjoy the suit property after selling it to him. After enquiry the police officials found out the truth and the said Palaniappan also gave in writing on behalf of the plaintiff that the plaintiff is yet to pay the balance sale consideration to the 1^st defendant.

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(iv) Therefore, the 1^st defendant issued a legal notice dated 11.05.2005 to the plaintiff, when the plaintiff was camping at Pakkanadu village giving all the details stated supra and that the plaintiff being a cunning man despite being a Professor had slit open the cover, read the contents and put it back after persuading the Postman to make an endorsement that the addressee is residing in an outstation and immediately, the plaintiff had chosen to institute the above suit and that the 1^st defendant is entitled to defend his possession even against the true owner especially when he was put in possession in the suit property by the plaintiff himself. At the worst, the plaintiff can only seek and secure possession of the suit property by due process of law relying on his title over the suit property and that the plaintiff is not entitled to seek the relief of perpetual injunction for the reasons stated above and the plaintiff has not come to the Court with clean hands. The plaintiff has suppressed the true facts and as such he is not entitled to the discretionary relief of perpetual injunction and that there is no cause of action for the suit and hence the suit is liable to be dismissed.

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The averments set out in the reply statement filed by the plaintiff, in brief, is as follows:

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(i) That all the averments contained in the written statement of the 1^st defendant are absolutely false. The defendants have trespassed into the suit property and that had cut and carried away two coconut trees for which a complaint was lodged at Poolampatty Police Station. For the said action, a case was registered in Crime No.3/2005 under Sections 447, 427, 506(i) and 399 (NP) IPC and that the contention of the 1^st defendant that the entire sale

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consideration was not paid during the sale dated 15.07.2002 is absolutely false and both the sale deeds dated 15.07.2002 and 22.01.2003 are supported by consideration and the plaintiff had already paid the entire sale consideration to defendants 1 and 2 and that the suit filed by one Sellappa Moopan before this Court as against the plaintiff was disposed of and the second appeal filed by the plaintiff is pending on the file of this Court.

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(ii) The above Sellappa Moopan had filed the above said suit in connivance with defendants 1 and 2 and that when the property was sold in favour of the plaintiff, there was no tiled shed in the suit property, the same itself would go to show that the 1^st defendant had trespassed into the suit properties despite the order of ad interim injunction passed by this Court and that it is false to allege that the brother of the plaintiff by name Palaniappan had lodged a complaint at Poolampatty Police Station on behalf of the plaintiff and the complaint lodged by the aforesaid Palaniappan has nothing to do with the present dispute and the same is relating to the money transaction between Palaniappan and the 1^st defendant. The plaintiff was residing at Ambasamuthram due to his profession. Hence, the legal notice alleged to be sent to him was returned by the postal department with an endorsement that the addressee is out of station and therefore, the allegation that the plaintiff had read over the contents of the legal notice by slit opening the postal cover is absolutely false and that during the pendency of the above suit, despite the order of ad interim injunction granted by this Court, the 1^st defendant had laid pipeline and put up a hut in the suit properties. In fact the 1^st defendant had committed a contempt.

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The averments made in the additional written statement filed by the 1^st defendant, in short, are as follows:

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(i) It is not correct to say that the 1^st defendant had put up a new thatched hut in S.No.269/1A, during the pendency of the suit. The said hut was put up even prior to the filing of the suit and the same has been enjoyed by the 1^st defendant and his family members considerably for a long period and that it is also false to allege that the 1^st defendant has encroached about 150 sq.ft alone in the aforesaid survey number. The entire property lies in the hands of 1^st defendant. The 1^st defendant alone is in continuous possession and enjoyment of the suit scheduled property.

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(ii) It is false to say that the 1^st defendant had embedded an underground pipeline in the suit property during the pendency of the suit and the aforesaid pipeline has been in existence even before the institution of the above suit. Only because of the said reason, the plaintiff has not filed any application for the appointment of Advocate Commissioner.

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After getting an exparte order of ad interim injunction in I.A.No.694 of 2005, the plaintiff has exercised so many dilatory tactics in prolonging the disposal of the above application despite the fact that the 1^st defendant is ready for inquiry in the above matter by filing his detailed counter and that the amendment carried out in the plaint has been made in order to suit the convenience of the plaintiff. Hence, the suit filed by the plaintiff is liable to be dismissed.

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Before the trial Court, the defendants 2 to 5 remained exparte. Based on the abovesaid pleadings, the learned Subordinate Judge, Sankari, has framed the necessary issues and tried the suit.

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Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as PW1 and exhibited 20 documents as Exs.A1 to A20. On the side of the defendants three witnesses have been examined as DW1 to DW3 and three documents were exhibited as Exs.B1 to B3.

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Having considered all the materials placed before him, the learned District Munsif, Sankari, had partly allowed the suit and granted the relief of declaration alone. He has dismissed the suit in respect to the other reliefs. In the appeal, the findings arrived at by the learned District Munsif, Sankari, in respect to the relief of perpetual injunction and the mandatory injunction was set aside. Only in respect to the relief of removing of pipeline sought out by the plaintiff, the order made by the learned District Munsif, Sankari was confirmed. Aggrieved over the said findings, the 1^st defendant is before this Court, praying to set aside the findings arrived at by the Courts below.

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At the time of admitting the second appeal, this Court has formulated the following substantial questions of law for consideration.

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“(1) Whether the learned First Appellate Court is right in reversing the well considered judgment of the trial Court, by overlooking the i) admission made by the plaintiff in his evidence, ii) defective description of the suit properties, iii) prevaricative stand of the plaintiff in his pleadings and evidence, and iv) conduct of approaching the Court with unclean hands?

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(2) Whether the appellant/first defendant is justified in law, in contending that he is not required to challenge the decree granted for declaration of title to the suit property in favour of the plaintiff, when the possession of the same is not parted with, in view of the understanding between the parties that part of sale consideration is yet to be paid by the plaintiff to the first

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defendant and that till such payment, the first defendant shall continue the possession of the suit property inspite of execution of sale deed.”

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Substantial Questions of Law 1 and 2:

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Before the trial Court the specific case of the plaintiff is as follows:

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(i) Originally the suit properties belongs to defendants 3 to 5. Vide Sale Deed [Ex.A3] dated 24.09.1998, the defendants 1 and 2 purchased the same from defendants 3 and 5. Subsequent to that vide Sale Deeds dated 15.07.2002 and 22.01.2003 [Exs.A1 & A2], the plaintiff has purchased the same from defendants 1 and 2. Thereafter, from the date of purchase, the plaintiff is in continuous possession and enjoyment of the property. Only during the pendency of the suit, 1^st defendant wrongfully trespassed into the suit property and put up a tiled shed and also underlaid the pipeline.

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On the other hand the specific case of the 1^st defendant before the trial Court is that though the suit property was sold in favour of the plaintiff on 15.07.2002, since the plaintiff was not able to mobilize the entire sale amount of Rs.3,17,000/- he permitted the 1^st defendant to remain in possession till the payment of balance sale consideration of Rs.2 lakhs. Now in order to avoid the payment of balance consideration of Rs.2 lakhs, the plaintiff has filed the present suit. According to the 1^st defendant, even after the sale, he has alone remained in possession of the entire suit scheduled property.

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In this connection, the learned counsel appearing on behalf of the plaintiff would contend that in the sale deeds executed in favour of the plaintiff, there was a clear recital that at the time of sale, the possession was handed over to the plaintiff. In otherwise, on the side of the 1^st defendant, no document was produced to show that the 1^st defendant remained in possession. In the said circumstances, claiming the possession of the suit scheduled property, by adducing oral evidence, is against Section 92 of the Indian Evidence Act. Accordingly, the claim made by the 1^st defendant has to be rejected in limine.

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Upon considering the arguments advanced by the learned counsel appearing on either side, it is true in Ex.A1Sale Deed, there was a recital, which reads as follows: “U:/3.17.000/00 vGj;jpy; K:d ;W ,yl;rj;J gjpndHhapuk; U:gha;fSf;F fpuak; ngrp

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nkw;go fpuaj;bjhiffs; g{uhita[k ; v';fspd; FLk;g cgnahfkhd bryt[fSf;fhft[k ; rpy;yiuf;fld;fs; fl;oj;jPu;g ;gjw;fhft[k ; j';fsplk; eh';fs ; ,d;W njjpapy; buhf;fkha; bgw;Wf;bfhz;L ,jdoapy; tpthpj;Js ;s brhj;Jf;fis ,d;nw j';fSf;F Rj;jf;fpuaKk; RthjPdKk; bra;Jf ; bfhLj;Jtpl;nlhk;”.

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Further in Ex.A2, it is found as follows: “eh';fs; j';fSf;F 15/7/2002e; njjpapy; $yfz;lg [uk ; rhu;gjpthsu; mYtyfk; 1 g[j ;jfk; 743 bjhFjp 13 Kjy; 16 tiu gf;f' ;fspy; 2002 Mk; Mz;od; 1174 vz;zhfg;gjpthd fpuag;gj;jpug;go?gj;jpuk; gjpt[ bra;Jf;bfhLj;J brhj;Jf;fs ; g {uhita[k ; md;nw j';fSila RthjPdj;jpy; xg;gilj;Jtpl;nlhk;/ mJKjny brhj;Jf;fs ; g[{uht[k ; j';fSila RthjPdj;jpYk; guhkhpg;gpYk; ,Ue;J tUfpwJ nkw;go j';fSf;F gjpthd 1174-2002 vz; fpuag;gj;jpuj;jpy; ,jdoapy; tpthpj;Js ;s brhj;Jf;fs ; fpuag; gj;jpuj;jpy; fhz;gpf;fg;glhky; tpl;Lg; ngha;tpl;lJ vdnt nkny tpthpj;Js ;sgo Vw;fdnt v';fSf;F ghj;jpag;gl ;L j';fSila RthjPdj;jpy; ,Ue;J tUk; ,jdoapy; brhj;J tpguj;jpy; tpthpj;Js ;s g[" ;ir tptrha ,iz epyr; brhj;Jf;fis eh';fs; j';fSf;F U:/6800/00 vGj;jpy; Mwhapuj;J vl;E}W U:gha;fSf;F fpuak; ngrp nkw;go fpuaj;bjhiffs; g{uhita[k ; v';fspd; FLk;g cgnahfkhd bryt[fSf;fhft[k ; rpy;yiuf;fld;fs; fl;oj;jPu;g ;gjw ;fhft[k ; j';fsplk; eh';fs ; ,d;W njjpapy; buhf;fkha; bgw;Wf;bfhz;L ,jdoapy; tpthpj;Js ;s j';fs ; tptrha ,iz epyr;brhj;Jf ;fis ,d;nw j';fSf;F Rj;jf;fpuak; bra;Jf; bfhLj;Jtpl;nlhk;”.

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Therefore, as per the recitals found in Exs.A1 and A2, the plaintiff has paid the entire sale consideration to his vendors and thereafter, possession has also been handed over to the plaintiff. Further, the said documents now referred as above are registered under the provisions of the Registration Act. In the said circumstances, it is necessary to see Sections 91 and 92 of the Indian Evidence Act. According to the said sections, oral evidence is inadmissible to contradict the written terms. Infact, no evidence of a contemporaneous agreement, or promise, or representation inconsistent with the written document could be admitted. Where a registered document on the face of it without any ambiguity is a pure and simple sale, the parties to the transaction or their successors-in-interest cannot be allowed under Section 92 to prove by parol evidence that it was intended to operate as a deed of sale.

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In this connection, it is relevant and useful to see the judgment of our Hon'ble Apex Court in Jamila Begum (dead) through Legal Representatives Vs. Shami Mohd. (dead) through Legal Representatives and Another, reported in 2019 (2) SCC 727, wherein in respect to the registered sale deed our Hon'ble Apex Court has held as follows:

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“A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.”

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Therefore, as per the above circumstances, the contentions raised by the learned counsel appearing for 1^st defendant, do not have much relevance to accept the case of the defense.

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It is the case of the 1^st defendant that without noting the admission made by the plaintiff in his evidence, defective description of the suit properties and the prevaricative stand of the plaintiff in his evidence, the first appellate Court decided the case in favour of the plaintiff. Infact the plaintiff has approached the Court with unclean hands.

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On the other hand, the learned counsel appearing for the plaintiff / 1^st respondent would contend that in the pleadings set out by the appellant/1^st defendant, he has not challenged the registered sale deeds viz., Exs.A1 and A2, which stand in the name of the plaintiff. Though, it is a specific case of the 1^st defendant that he is in permissible portion for the payment of Rs.2 Lakhs, the same has not been proved by producing the substantial evidence. The stand taken by the 1^st defendant is against Section 55 of the Contract Act.

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Now, on considering the said submission with the case of the 1^st defendant, it is true, he had claimed the right over the suit property only as a permissible possession. However, in respect to the non payment of balance sale consideration, the 1^st defendant has not shown any single iota of the document in order to prove the said contention.

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The trial Court while at the time of deciding the suit, came to the conclusion that though the averments contained in the amended plaint copy would show that except a piece of land measuring 150 sq.ft all the suit property remained under possession and enjoyment of the plaintiff, the oral evidence adduced by plaintiff as PW1 during his cross examination is something different, which is contrary to the abovesaid averments contained in the plaint. In this regard, the first appellate Court, has correctly overlooked the said findings as only in 2006 i.e., after the institution of the suit, the plaintiff has lodged the complaint before the Revenue Divisional Officer, as per Ex.B12, after the alleged wrongful entry of the 1^st defendant, in the suit scheduled property. Therefore, picking the isolated evidence from the evidence of PW1 is alone not sufficient and in that regard, overlooking the findings arrived at by the trial Court by the first appellate Court is correct.

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The learned counsel appearing for the 1^st defendant would contend that in the description of the suit property, the plaintiff has not stated correct measurements. Therefore, the defective description of the suit property and the prevaricating stand of the plaintiff would amount to probablise the fact that the plaintiff has not approached the Court with clean hands.

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On the other hand, the learned counsel appearing for the plaintiff would contend that the mentioning of the suit property in the amended plaint is not violative of Order VII Rule 3 of Code of Civil Procedure. Further, only after instituting the suit, the plaintiff lodged a complaint as against the defendant, holding that the 1^st defendant has removed the 5HP Motor.

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Upon considering the arguments advanced by the learned counsel appearing on either side, it is necessary to see Order VII Rule 3 of Code of Civil Procedure, which reads as under:

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“3. Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.”

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Further Order XX Rule 9 of Code of Civil Procedure, reads as follows:

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“9. Decree for recovery of immovable property: Where the subject matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or survey; the decree shall specify such boundaries or numbers.”

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The said sections enable the procedure that both in the suit and decree the description must be noted up to the level of identifying the property. In this case, on going through the description of the property found in the plaint, on earlier days, he has stated about the property only in accordance with the description of property found in the sale deeds viz., Exs.A1 and A2. In otherwise, on going through the written statement filed by the 1^st defendant, he has not disputed the suit property that the same is not correct. Therefore, the contention raised by the appellant/1^st defendant in respect to the identification of the property would no way affect the case of the plaintiff.

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Now the dispute is only with regard to the payment of money. But in order to substantiate the claim, the 1^st defendant has not produced any relevant documents to show that the plaintiff withheld Rs.2 Lakhs as balance sale consideration. So, without any iota of evidence mere pleadings and oral evidence made by the 1^st defendant does not create a case on his side.

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More than that, it is the admitted case of the 1^st defendant that he is in permissive possession of the suit property. For proving the possession no documentary evidence was produced, on the side of the 1^st defendant. Only DW1 to DW3 have stated that the 1^st defendant has continued in the possession after the execution of sale deed. But in the absence of document to prove the said oral evidence, it cannot be relied upon that the said oral evidence is a true one. Even assuming that the 1^st defendant was in the suit property, on oral permission, the plaintiff is entitled to cancel the said permission at any time, since at the time of execution of sale deeds, the title has passed in favour of the plaintiff. Though, there was no written document, available for cancelling the said permission, filing of the suit as against the defendants for the recovery of possession itself amounts to cancelling the permission. Therefore, in any way, the claim made by the 1^st defendant has not been substantiated by means of relevant documents.

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On the other hand, since the case of the plaintiff is that the 1^st defendant wrongfully entered into possession of the suit property, only after the institution of the suit, it is his duty to prove the same. In this aspect, on the side of the plaintiff on 09.04.2005 a complaint has been lodged to the Sub Inspector of Police, Poolampatty Police Station, stating that the 1^st defendant along with his family has wrongfully entered into the suit property and cut down the coconut trees. Further, the said document was produced on the side of the plaintiff as Ex.A7. Further as per the order passed by this Court in Cont.P.No.980 of 2005 dated 30.01.2006, a case was registered based on the complaint given by the plaintiff in respect to the wrongful entry made by the 1^st defendant.

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More than that, as per the evidence let in by either side, the service connection to the hut was obtained by the 1^st defendant only on 03.08.2006. Ex.A14, the letter sent by the Assistant Executive Engineer, Tamil Nadu Electricity Board, Jalakondapuram, proves the same. Further the said service connection was disconnected as per the letter dated 19.03.2008. Ex.A15, is the copy of the letter sent by the Executive Engineer, Tamil Nadu Electricity Board.

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The 1^st defendant's claims is that he is in the suit scheduled property continuously from the date of his purchase from defendants 3 and 4. If it is true, it is not necessary for him to obtain the service connection in 2006. in fact the same was after the execution of the sale deed viz., Exs.A1 and A2. Further, it is the specific case of the plaintiff that the 1^st defendant has stolen away the 5HP motor from the well situated in the suit property. Though, it was denied on the side of the 1^st defendant, in the sale deed, it was specifically stated as a 5HP motor has also been sold out

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along with the suit scheduled property.

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It is the case of the 1^st defendant that after knowing the contents of the letter sent by the 1^st defendant [Ex.B1], the plaintiff instituted a suit in order to recover the possession. In this regard, PW1 has admitted in his cross examination that Ex.B1 is slit open. Only because of the said reason that the letter written by the 1^st defendant is slit open, it cannot be presumed that the plaintiff knows the contents of the letter sent to him. It is not necessary for the plaintiff to return the said letter, prior to the dispute. In otherwise, the statement alleged to have been given by the Palaniappan before the Sub Inspector of Police, Poolampatty, does not have much importance in respect to the passing of title in favour of the plaintiff.

¶103

After execution of Exs.A1 and A2, if really the 1^st defendant feels that the plaintiff has not obeyed the oral assurance given to him in respect to the payment of Rs.2 Lakhs, it is necessary for him to institute the suit or send a notice denying the possession of plaintiff. Further, it is for him to file a suit for setting aside the sale deed. But the 1^st defendant has not taken any steps to cancel the alleged sale deeds, which stands in the name of the plaintiff.

¶104

So, culling out the entire circumstances, in order to prove the possession, the plaintiff has exhibited patta dated 03.06.2005, which stands in his name as Exs.A4 and A5. Further he has lodged a complaint before the police officers for the dispossession of 1^st defendant from the suit property. The first appellate Court has correctly held that if really the 1^st defendant is in the possession of the suit property, definitely in the revenue records especially the Adangal receipts, the name of the 1^st defendant would appear. The non filing of those documents on the side of the defendants would falsify the case of the 1^st defendant.

¶105

Ultimately, if the plaintiff has committed fraud, it is mandate under Order VI Rule 4 that the defendant has to specifically plead the misrepresentation or fraud committed by the plaintiff. But, absolutely, nothing is available on the side of the defendant to prove his stand.

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On the other hand, the plaintiff having the duty to prove his case, has produced the relevant documents to prove his title and possession. The documents relied on by the plaintiff is clear to prove the fact that the only during the time of pendency of the suit, the 1^st defendant wrongfully entered into the suit property and cut down the coconut trees and removed the electric pump. The complaint lodged after the execution of the sale deed will categorically prove the stand of the plaintiff. At any circumstances, only for the reason

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https://hcservices.ecourts.gov.in/hcservices/

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that the sale deeds executed in favour of the plaintiff, are not denied on the side of the defendant, this Court is not in a position to accept the case of the 1^st defendant. The first appellate Court has also walked on the same path and accepted the case of the plaintiff and therefore, the stand taken by the 1^st defendant is not justified and also the alleged understanding made between the parties, in respect to the payment of sale consideration, is also not proved.

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Therefore, the substantial questions of law are answered as above. The Judgment and decree dated 05.02.2013 passed in A.S.No.8 of 2010 on the file of the learned Subordinate Judge, Sankari, partly reversing the judgment and decree dated 19.11.2009 passed in O.S.No.179 of 2005 on the file of the learned District Munsif, Sankari, is sustained. The Second Appeal is dismissed. No Costs. Consequently, the connected Miscellaneous Petition is closed.

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Sd/Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar ars To 1.The Subordinate Judge, Sankari. 2.The District Munsif, Sankari. Copy to: The Section Officer, VR Section, High Court, Madras.

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+1cc to Mr.Manokaran, Advocate SR.5488 +1cc to Mr.Subramanian, Advocate SR.5597

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Pre-delivery Judgment in S.A.No.1112 of 2013 and M.P.No.1 of 2013

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MG(CO) CB(12/06/2020)

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