Dismissed

Narayanan v. Ramalingam

Madras HC3 Sept 2021SA/217/2019

Case brief

AI extract

What is this about?

The Second Appeal was dismissed against a decree for permanent injunction. The Court upheld the lower courts' reliance on the appellant's admitted cancellation of his 2007 sale deed, holding he had no right to interfere with the plaintiff's possession.

What did the court decide?

Second Appeal dismissed; connected Civil Miscellaneous Petition closed; no order as to costs.

Narayanan Vs Ramalingam — Contract and Commercial Disputes | Madras HC (2021)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

RESERVED ON : 16.08.2021

¶3

DELIVERED ON : 03.09.2021

¶4

CORAM

¶5

THE HONOURABLE MS. JUSTICE P.T.ASHA

¶6

S.A.No.217 of 2019 & C.M.P.No.3528 of 2019

¶7

Narayanan ...Appellant/Appellant/Defendants

¶8

¶9

Ramalingam ...Respondent/Respondent/Plaintiff

¶10

Prayer: Appeal filed under Section 100 of the CPC against the Judgement and Decree dated 19.09.2018 made in A.S.No.90 of 2011 on the file of the learned Sub Court, Kallakurichi confirming the Judgement and Decree dated 06.07.2011 made in O.S.No.977 of 2007 on the file of the learned Principal District Munsif Court, Kallakurichi.

¶11

For Appellant : Mr.N.Manoharan For Respondent : Mr.S.Sounthar

¶12

JUDGMENT

¶13

This Second Appeal is filed by the defendant who has been unsuccessful before the Courts below. The suit which gives rise to the present Second Appeal is one for a permanent injunction restraining the defendant, their men or agents from in any way interfering with the properties, subject matter of the suit O.S.No.977 of 2007 before the Principal District Munsif, Kallakurichi. The suit schedule property consists of three items of property. The facts in brief necessary to dispose of the above Second Appeal is herein below narrated and the appellant and respondent are referred to in the same rank as before the Trial Court.

¶14

The suit O.S.No.977 of 2007 was instituted for the reliefs stated supra. It is the plaintiff's case that he had purchased Item-I of suit property under a registered sale deed dated 22.02.1987 and Items-II and III under a registered sale deed dated 23.02.1987. Since the suit properties are vacant sites the same has not been assessed to tax. Under the UDR the

¶15

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

¶16

property has been converted as a Natham property. The defendant who has no right over the suit property has created certain documents on the basis of which he is attempting to interfere in the plaintiff's peaceful possession and enjoyment of the suit properties. In fact on 02.11.2007, the defendant had attempted to trespass into the suit property which was prevented by the plaintiff. Therefore, the plaintiff has come forward with the present suit.

¶17

The defense to the above suit is that the I-Item of the suit property does not belong to the plaintiff and neither the survey number nor the measurements and boundaries have been correctly described. The defendant would deny the plaintiff's purchase of the properties as described in the sale deeds. He would submit that the Survey No.40/1 is now subdivided as S.No.40/13 and S.No.40/14 and the defendant is in the enjoyment of 0.06 1/2 cents therein. The defendant would submit that there is no clarity with regard to the identity of the properties. He would further submit that he is entitled to the property purchased by him on 24.10.2007. It is his contention that the plaintiff has also purchased the Government porambokku land and has not measured the property while purchasing it. He would therefore seek to have the suit dismissed.

¶18

The Trial Court had framed the following issues:

¶19

"1/tHf;F K:yk; cz;ikahdjh>

¶20

2/tHf;F brhj;J tpguk;. g[y vz;. tp!;jPudk; Mfpait rupahdjh>

¶21

3/tpsk;g[if gupfhuk; nfhug;glhky; jhf;fy; bra;j ,t;tHf;F epiyf;fj;jf;fjh>

¶22

4/jhth brhj;J ehsJ njjpapy; thjpapDila rl;lgoahd mDgtj;jpy; ,Ue;J tUfpwjh>

¶23

5/thjpf;F ,t;tHf;fpy; nfhupa[s;sthW epue;ju cWj;Jf;fl;lis gupfhuk; fpilf;ff;Toajh>

¶24

6/thjpf;F fpilf;f;Toa gupfhuk; vd;d>

¶25

The parties had had gone to Trial on the basis of these issues. The plaintiff had examined himself as P.W.1 and marked Ex.A.1 and Ex.A.2, the two sale deeds under which he had purchased the properties. On the side of the defendant, the defendant had examined himself as D.W.1 and one Annamalai as D.W.2. However, no documents were filed on the side of the defendant.

¶26

The Trial Court after an elaborate consideration of the evidence both oral as well as documentary came to the conclusion that the plaintiff is in legal possession and enjoyment of the suit property and was therefore entitled to the decree for injunction as prayed for.

¶27

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

¶28

Aggrieved by this Judgement and Decree the defendant had filed A.S.No.90 of 2011 on the file of the Sub Court, Kallakurichi. Along with the appeal he had also filed applications in I.A.Nos.210 & 359 of 2014 for receiving additional documents. The learned Subordinate Judge, Kallakurichi considered the applications filed by the defendant and dismissed the same. Ultimately, the learned Subordinate Judge, Kallakurichi had dismissed the appeal and confirmed the Judgement and Decree of the Trial Court. Both the Courts below have taken note of the fact that the defendant has not produced the sale deed dated 24.10.2007 under which he claims to have purchased a portion of the suit property.

¶29

Challenging, this said Judgement and Decree the defendant is before this Court. This appeal had come up for admission on 21.02.2019 and notice was directed to the plaintiff / respondent. Accordingly, on receipt of summons from this Court the plaintiff has entered appearance through the counsel. Both the counsels have made their submissions.

¶30

Mr.N.Manoharan, learned counsel appearing on behalf of the defendant / appellant would submit that there is no clarity regarding the suit property. He would submit that the lower Appellate Court has erred in rejecting the application filed by the defendant for receiving additional documents. He would argue that had the lower Court ought to have allowed the applications and taken the documents on file it. Had it done so would have clearly demonstrated that the plaintiff does not have any right to the suit property.

¶31

He would further argue that the Courts below have not considered the Advocate Commissioner's report properly. In his report the Advocate Commissioner has stated that the property comprised in S.No.40/1 and S.No.40/4 are shown as Government Porambokku lands in the revenue records. S.No.40/1 is described as the road. The Advocate Commissioner has not been examined by the plaintiff nor objections filed to the report. In support of the above contentions the learned counsel for the defendant would rely on the Judgement reported in 2020 (1) SCC 1 - M.Siddiq (Dead) through legal representatives (Ram Janmabhumi Temple Case) Vs. Mahant Suresh Das and others.

¶32

Mr.N.Manoharan would submit that the Courts below have erroneously considered the admission of D.W.1 in his cross examination regarding the cancellation of the sale entered into between the defendant and the original owner. He would submit that the Courts below have decreed the suit only on the basis that the defendant has admitted that the sale deed entered into between him and the original vendor in the year 2007 has been cancelled. However, it does not absolve the plaintiff of the

¶33

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

¶34

obligation to prove the cause of action for filing the suit and that he is in possession of the same.

¶35

The learned counsel would further submit that the Courts below have decreed the suit on the ground that the defendant had failed to produce the sale deed under which he had purchased the property. This sale deed was sought to be filed by filing interlocutory applications. However, the same has been dismissed by the Courts below without affording an opportunity to the defendant to substantiate his contentions.

¶36

The learned counsel would also submit that under Section 31 of the Specific Relief Act, the plaintiff ought to have sought for the cancellation of the sale deed in favour of the defendant but however such a relief has not been sought for. He would also submit that though the defendant has admitted that the sale deed had been cancelled the Court must have insisted on the same being proved as provided under the proviso to Section 58 of the Indian Evidence Act and consequently ought to have allowed the applications filed by the defendant for receipt of the additional documents. He would therefore pray that the Second Appeal be allowed and the Judgement and Decree of the Courts below be set aside.

¶37

Per contra, Mr.S.Sounthar, learned counsel appearing on behalf of the respondent would submit that the defendant who now contends that the Advocate Commissioner had not been examined so as to enable the Court to come to the correct conclusion has himself not taken any steps in this regard before the Courts below. He would further submit that there is absolutely no confusion with regard to the identity of the property. The defendant has cross examined P.W.1 regarding the identity of properties and the witness, P.W.1 had responded that the land purchased by the defendant was to the west of Items-II and III of the suit property. Further the properties have been described with boundaries in the suit schedule.

¶38

Therefore, from the evidence it is clear that the defendant's property is not situate in the suit property. In these circumstances, the argument of the learned counsel for the defendant / appellant that the suit property has not been identified properly is puerile. The defendant has not disputed the purchase as well as the identity of the I and II Items of the suit property. The learned counsel would further submit that the Advocate Commissioner's report does not describe the boundaries and the Commissioner has failed to measure the property as per the documents of title.

¶39

The learned counsel would also submit that the defendant has himself stated that he has cancelled the deed under which he

¶40

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

¶41

has purchased the property from the vendors of the plaintiff and this has also been confirmed by D.W.2 during cross examination. That being the case, it does not lie in the mouth of the defendant to question the plaintiff's right to the property. In fact, the very fact that the defendant is openly objecting to the plaintiff's possession and setting up an independent right is itself an obstruction to the peaceful enjoyment of the property by the plaintiff. Therefore, the Courts below were right in decreeing the suit.

¶42

Discussion:

¶43

Heard the learned counsels and perused the records.

¶44

The plaintiff would come to the Court stating that he had purchased the suit properties under two registered sale deeds, Ex.A.1 and Ex.A.2 dated 22.02.1987 and 23.02.1987. The defendant would set up a claim to the portion of the suit property stating that he has purchased the same under the sale deed dated 24.10.2007. The plaintiff as well as the defendant claim to have purchased the property from a common owner.

¶45

It is the case of the plaintiff that the defendant on coming to know about the purchase by the plaintiff which was 20 years prior to his purchase had quarrelled with his vendor and had the sale cancelled and got refund of the consideration paid by him. Therefore, evidently the defendant had no interest in the property.

¶46

20.In fact the defendant in his cross examination had admitted as follows:

¶47

"jhth 3tJ mapl;lj;jpy; 5 brd;l; kl;Lk; thjp fpiuak; th';fpa[s;shu;/ mjid 1987y; thjp fpiuak; th';fpdhu;/ ehd; fpiuak; th';fpajhf vjpu; tHf;Fiuapy; brhy;ypa[s;s gj;jpuk; 2007y; Vw;gl;lJ/ thjpapd; fpiuag;gj;jpuj;jpw;F 20 tUlj;jpw;F gpd;du;jhd; thjp ,e;j tHf;if jhf;fy; bra;Js;shu;/ mjd;gpwF vd;Dila fpiuajhuiu ehd; brd;W nfl;nld;/ g";rhaj;Jk; itj;njd;/ g";rhaj;jpy; ,e;j tHf;F Koe;jgpd;du; thjpf;F nghf kPjp ,Ug;gij vdf;F jUtjhf cWjpTwp nehl;lup gg;spf; K:yk; ehDk;. vd;Dila fpiuajhuUk; xg;ge;jk; vGjpf; bfhz;nlhk;/ me;j xg;ge;jk; 16/06/2008y; Vw;gl;lJ vd;why;. njjp "hgfk; ,y;iy/ Mdhy; 2008y; Vw;gl;lJ/ nkw;go xg;ge;jg;go vd;Dila fpiuajhuuplkpUe;J vd; fpiuaj; bjhif 02/05/2008 njjpapl;l ,e;jpad; Xtu;rP!; t';fpapy; flYhu; fpisapy; o/o/ 592498967 vz;Zs;s tiuntiy K:ykhf U:/70000-?I ehd; bgw;Wf; bfhz;nld;/ tHf;F Koe;jgpwF njitg;gl;lhy; gj;jpuk; vGjpf; bfhs;tJ vd;gJ vdf;Fk;. vd;Dila fpiuajhuUf;Fk; Vw;gl;l Xg;ge;jk;/ Mf vd;Dila vjpu; tHf;Fiuapy; ehd; brhy;ypa[s;s fpiuaj;jpw;fhd gzj;ij ehd; jpUk;gg; bgw;Wf;bfhz;nld;/

¶48

A mere perusal of the above deposition would establish the fact that the sale deed executed in favour of the defendant had

¶49

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

¶50

been cancelled and the amount refunded to him. Therefore, the defendant had no semblance of a right to the suit property on the basis of the cancelled deed.

¶51

This statement is further confirmed during the examination of D.W.2, who would make the following admission:

¶52

"nfhg[ kw;Wk; mtuJ thupRjhuu;fsplkpUe;J ehuhazd; fpiuak; bgw;whu;/ g[y vz;/40-11. 13. 14 Mfpatw;wpy; Rkhu; 6 brd;l; tp!;jPu;zj;jpw;F fpiuak; th';fpdhu;/ me;eg; gj;jpuk; gjpthd gpwF fpiuak; bfhLj;j nfhg[tpw;nf mJ cupik ,y;iy vd;W jfuhW te;jJ/ mJFwpj;J g";rhaj;Jk; ngrg;gl;lJ/ mJ thjpapd; gj;jpuk; Kd;gj;jpuk; vd;Wk;. gpujpthjpapd;gj;jpuk; gpd;gj;jpuk; vd;Wk; ngrg;gl;lJ/ Kd;gj;jpuk; ,Uf;Fk; bghGJ kPz;Lk; xU gj;jpuk; Vd; vGjpf;bfhLj;jPu;fs; vd;W brhy;yp fpiua gzj;ij ehuhazd; jpUk;gp th';fptpl;lhu;/

¶53

Therefore, once the defendant ceased to have any right to the suit property he cannot be allowed to question the plaintiff's right to be in possession of the suit property. The Courts below have rightly relied upon this admission of the defendant to decree the suit. It is for this reason that the defendant was unable to produce the original sale deeds before the Courts below.

¶54

I do not find any reason to reverse the concurrent Judgement and Decree of the Courts below as the defendant / appellant has not made any substantial questions of law warranting the interference of this Court. Hence the Second Appeal is dismissed. Consequently, connected Civil Miscellaneous Petition is also closed. However, in these circumstances, there shall be no order as to costs.

¶55

Sd/Assistant Registrar(T&P)

¶56

//True Copy//

¶57

Sub Assistant Registrar

¶58

kan

¶59

¶60

The Subordinate Judge, Kallakurichi.

¶61

The Principal District Munsif Court, Kallakurichi.

¶62

+1cc to Mr.N.Manokaran, Advocate, S.R.No.44531 +1cc to Mr.S.Sounthar, Advocate, S.R.No.45161

¶63

S.A.No.217 of 2019 SPD(CO) RGA(25/11/2021)

¶64

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

Narayanan v. Ramalingam

Case brief

What is this about?

What did the court decide?

Narayanan v. Ramalingam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Land Acquisition Officer & Vs Hameedudeen(Decs)

V.M. Thangaiyan (Deceased) Vs Seenambaal

Sadaiyappa Gounder Vs M.Gomathi

T.v.Rajamanickam, Vs Akilandeswari

Sindhuja Vs Chakrapani

The Special Tahsildar Vs T.R.Damodaran