Dismissed

Jesudasan v. the President

Madras HC16 Sept 2021SA/804/2012

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Madras dismissed the appellant's, a seller's, challenge to a dismissal of his suit for mandatory injunction. The appellant sought a transfer of property tax assessment after obtaining a court-executed sale deed and delivery of possession. The High Court held that since the underlying triable issues of ownership and possession were resolved unfavorably for h

What did the court decide?

The second appeal stands dismissed. No costs. Connected miscellaneous petition is closed.

Jesudasan Vs the President — Specific Performance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 16.09.2021

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CORAM

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THE HON'BLE MR.JUSTICE M.GOVINDARAJ

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SA NO.804 OF 2012 AND MP NO.1 OF 2012

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Jesudasan ... Appellant/Appellant/Plaintiff

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VS.

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The President Thoppampalayam Panchayat Thoppampalayam, Sathyamangalam Taluk. 2. Manokaran ... Respondents/Respondents/Defendants

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PRAYER: Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree of the Subordinate Judge's Court at Sathyamangalam, dated 28.11.2011 in A.S.No.25 of 2011 confirming the judgment and decree of the District Munsif Court, Sathyamangalam, dated 15.02.2011 in O.S.No.348 of 2007.

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For Appellant : Mr.P.Valliappan For Respondent-1 : Mr.D.Suriyanarayan For Respondent-2 : Mr.M.Roshan Atiq

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J U D G M E N T

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The unsuccessful plaintiff is the appellant before this Court.

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2.The plaintiff filed a Suit for mandatory injunction directing the first defendant / first respondent to transfer the property tax assessment in his favour based on the delivery of possession made over to him pursuant to the decree passed in a Suit filed for specific performance in his favour.

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3.The brief facts of the Suit is that the Suit property originally belonged to one P.V.Jeyaraman. He entered into an agreement for sale with the plaintiff on 07.07.1997 for a sale consideration of Rs.1,20,000/-. On the date of sale agreement, the plaintiff paid an advance amount of Rs.25,000/- and agreed to pay the balance sale consideration of Rs.95,000/- within a period of two years. When he approached the said P.V.Jeyaraman, instead of executing the sale deed, he sought for further advance. Accordingly, on 06.07.1999, he received a sum of Rs.30,000/- and made an endorsement and extended the period of performance till 06.07.1999. Again when he approached the said P.V.Jeyaraman, he received another Rs.25,000/- on 02.07.2001 and extended the agreement till 06.07.2003 and again it was extended on receipt of Rs.20,000/- towards further advance till 06.07.2004. Thus, the said P.Jeyaraman had secured Rs.1,00,000/towards advance. However, he dodged in receiving the balance sale consideration and registering the sale deed. Therefore, the plaintiff filed a Suit in O.S.No.111 of 2004 for specific performance and it was decreed on 18.10.2004.

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4.As per the direction of the Court, the plaintiff deposited the balance sale consideration of Rs.20,000/- on 08.11.2004 on the file of Principal Sub Court, Gobichettipalayam and filed a petition in E.P.R.No.41/2005. Since the said P.V.Jeyaraman remained exparte, the Court executed the Sale Deed in his favour on 11.07.2005 and registered the same on 14.07.2005. The delivery of possession was made by the Senior Bailiff on 12.08.2005.

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5.Even though the plaintiff had taken possession of the property, the property tax assessment was not transferred in his favour. Therefore, the plaintiff issued a legal notice on 21.11.2005 to the first respondent Panchayat. The first respondent issued a reply dated 07.12.2005 that it can be transferred only by an order of Court and that they cannot do it on their own. Therefore, having no other alternative remady, the plaintiff has approached this Court for the relief of mandatory injunction to transfer the property tax assessment in his favour.

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6.The property tax assessment stands in the name of the second defendant, who is a close friend of the said P.V.Jeyaraman and that they have collusively entered into a sham transaction in order to defeat his right. When the possession was handed over by the Court, the property tax assessment should have been transferred in his favour.

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7.Denying the averments contained in the plaint, the first defendant has contended that as per the sale deed title

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stands in favour of the second defendant and as per his possession, the property tax assessment was transferred in his favour. The plaintiff claimed that he is entitled to title pursuant to the sale deed executed by the Court and issued a notice on 21.11.2005, to which, they have issued a suitable reply on 07.12.2005 advising him to get the relief through Court. Notice under Section 80 of the Code of Civil Procedure was not issued and therefore, the Suit is not maintainable and the valuation of the Suit also improper and therefore, the Suit is liable to be dismissed.

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8.The second defendant filed a written statement stating that the said P.V.Jeyaraman has agreed to sell the property by virtue of a sale agreement dated 20.11.1998 for a total sale consideration of Rs.2,00,000/- and received a sum of Rs.1,50,000/- towards advance sale price, fixing two years time limit for completion of performance. Since the said P.V.Jeyaraman dodged to execute the sale deed, he issued a notice dated 16.05.2000 and after acknowledging the same, he executed a registered sale deed on 13.11.2000 after receiving the balance sale consideration. This sale transaction was known to P.V.Jeyaraman and his wife Vani. After completion of sale, the second defendant has taken symbolic possession and on the request of the said P.V.Jeyaraman, leased out the premises on monthly rentals. The electricity service connection, property tax assessment were all transferred in favour of the second defendant and he continues to be in possession.

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9.When the rental agreement was about to expire, at the instigation of P.V.Jeyaraman, his wife Vani filed a maintenance Suit against her husband in O.S.No.207 of 2001. Even though they were living under the same roof, they have collusively filed the above Suit. The said P.V.Jeyaraman issued a legal notice dated 08.04.2002. Thereafter, the second defendant issued a reply dated 24.04.2002 directing the said P.V.Jeyaraman to deliver possession on or before 13.05.2002 which was acknowledged by him on 26.04.2002. Since he did not hand over possession, the second defendant filed a Suit in O.S.No.142 of 2002 for recovery of possession.

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10.While the matter stood thus, the wife of said P.V.Jeyaraman created a charge over the Suit property in the maintenance suit filed by her in O.S.No.207 of 2001. Her husband P.V.Jeyaraman also remained exparte and it was decreed exparte on 15.11.2002. On the basis of this exparte decree, she filed a petition in E.P.No.19 of 2002, for bringing the property for public auction. When the matter came to his knowledge, the second defendant filed an application in E.A.No.22 of 2003 in E.P.No.19 of 2002 and objected the sale of the property.

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11.The Court has conducted simultaneous trial in respect of O.S.No.142 of 2002 and E.A.No.22 of 2003 and decreed the Suit in favour of the second defendant on 29.06.2005 and allowed the application in E.A.No.22 of 2003.

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12.Against the order passed in E.A.No.22 of 2003, the said P.V.Jeyaraman's wife Vani preferred an appeal in A.S.No.51 of 2005 on the file of Sub Court, Gobichettipalayam. Thereafter, it was transferred to Fast Track Court, Gobichettipalayam and renumbered as AS No.6 of 2007. Against the order passed in E.A.No.22 of 2003, a Civil Miscellaneous Appeal in CMA no.4 of 2006 was also filed before the Sub Court, Gobichettipalayam and it was dismissed on 09.10.2007.

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13.Thereafter, the said P.V.Jeyaraman and his wife collusively entered into a sale agreement on 07.07.1997 with the plaintiff and on the basis of the same, the plaintiff filed a Suit in O..S.No.111 of 2004 and obtained a decree on 18.10.2004. The sale agreement was fabricated using anti dated stamp papers in order to defeat the rights of the second defendant. The said P.V.Jeyaraman, his wife and daughter have collusively executed the sale deeds in favour of the plaintiff and no possession was taken as on 12.08.2005 as alleged in the plaint. It is only a paper possession and at no point of time, the said P.V.Jeyaraman or his family vacated the house and the delivery of possession was fabricated by the plaintiff, P.V.Jeyaraman and his wife and family members. There is no cause of action for maintaining the Suit and it was hit by doctrine of lis pendens.

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14.The property was assessed legally pursuant to a registered sale deed dated 13.11.2000 and no title or possession could have been passed on to the plaintiff by virtue of sale deed dated 11.07.2005. It was obtained by suppression of facts and the conduct of plaintiff is malafide. Once the plaintiff has no title or possession, he is not entitled to mandatory injunction. There is no landlord or tenant relationship between the plaintiff and the wife of P.V.Jeyaraman. Since the title is disputed, the plaintiff should have filed a Suit for declaration of title and consequential mandatory injunction. Therefore also, the Suit is not maintainable.

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15.The Trial Court, after framing appropriate issues, conducted elaborate trial. The plaintiff examined himself as P.W.1 and one Raju as P.W.2 and marked Exs.A1 to A6. On the side of the defendants, the second defendant examined himself as D.W.1 and marked Exs.B1 to B15. The Trial Court has found that

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the plaintiff has failed to prove his possession and the sale is hit by lis pendens and therefore, held that in the absence of prayer for declaration of title, the prayer for mandatory injunction is not sustainable and accordingly, dismissed the Suit. On appeal, the judgment of the Trial Court was confirmed. Against which, the plaintiff has preferred the above Second Appeal.

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16.The learned counsel for the appellant would contend that the plaintiff's sale agreement dated 07.07.1997 is anterior to the agreement of the second defendant dated 20.11.1998. Pursuant to the decree of specific performance dated 18.10.2004, he got delivery of possession through Court on 12.08.2005. Therefore, the second defendant, who is admittedly not in possession, is not entitled to have the assessment in his favour and it should be transferred in favour of the plaintiff. When a competent Court has decreed the specific performance in his favour and executed a sale deed on behalf of the original owner namely P.V.Jeyaraman and delivery of possession was made in E.P.No.41 of 2005, the Courts below have failed to consider it in proper perspective, on the other hand, erred in upholding the false claim made by the second defendant. The second respondent / second defendant would reiterate in his statement with regard to the symbolic possession taken by him. He was not in lawful possession of the property, whereas it was categorically proved that the plaintiff was in lawful possession. The Courts below without considering the exhibits marked before it, in proper perspective, have erred in deciding the matter against the plaintiff. Therefore, he would contend that the First Appellate Court would have varied with the findings. But, on the contrary, it exceeded its jurisdiction and given a finding touching upon the title of the property. He would contend that in a Suit for bare injunction, Courts shall not enter into the title issue and give a finding.

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17.In support of his contention, the learned counsel for the appellant would rely on a judgment of the Hon'ble Supreme Court in ANATHULA SUDHAKAR VS. P.BUCHI REDDY AND OTHERS [AIR 2008 SC 2033] and a judgment of this Court in MARUTHAMUTHU VS. KALIAPERUMAL AND OTHERS [2011 (2) MWN (CIVIL) 420].

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18.I have heard the submissions.

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19.The facts are admitted. It is not in dispute that the Suit property originally owned by one P.V.Jeyaraman, who is not a party in the present Suit. According to the plaintiff, he

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entered into a Sale Agreement dated 07.07.1997 and paid a sum of Rs.25,000/- towards advance. Even though two years time limit was fixed, endorsement was made on 06.07.1999, 02.07.2001 and 02.07.2003 and on receipt of further advance, extending the period of the agreement till 06.07.2004. In the meanwhile, the said P.V.Jeyaraman sold the property to the second defendant by virtue of a registered Sale Deed dated 13.11.2000 pursuant to an agreement dated 20.11.1998. The Sale Deed dated 13.11.2000 has not been questioned by anybody till date. The second defendant / second respondent filed a Suit in O.S.No.142 of 2002 for the relief of recovery/delivery of possession from P.V.Jeyaraman and his wife. In the meanwhile, the wife of said P.V.Jeyaraman filed a maintenance Suit in O.S.No.207 of 2001 and obtained exparte decree and created a charge over the Suit property. When the Suit property was brought to auction in E.P.No.19 of 2002, the second defendant filed E.A.No.22 of 2003 objecting the sale. O.S.No.142 of 2002 and E.A.No.22 of 2003 were simultaneously tried and the Trial Court has rendered a categorical finding that O.S.No.207 of 2001 filed by the wife of P.V.Jeyaraman was collusive in nature and it was made to harass the second defendant. The appeal filed against the judgment and decree passed in O.S.No.142 of 2002 and the miscellaneous appeal filed against the order passed in E.A.No.22 of 2003 were dismissed and the entitlement of the second defendant was confirmed by the Courts below.

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20.It is pertinent to note that after the decree passed in O.S.No.207 of 2001, the plaintiff filed a Suit in O.S.No.111 of 2004 for specific performance against P.V.Jeyaraman and obtained an exparte decree on 18.10.2004. It is also relevant to note that as per the deposition of the plaintiff as P.W.1 in the Suit in O.S.No.111 of 2004, the encumbrance certificate was not produced before the Court. The plaintiff would depose that he has not seen the encumbrance over the property before its purchase and that he entered into a Sale Agreement for purchase of the property on the basis of trust. When a property is purchased, it is trite that the purchaser verifies the encumbrance and that he gets clear title through the purchase.

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21.In the instant case, the evidence of P.W.1 that he has not verified the encumbrance over the property on the basis of trust was disbelieved by the Courts below. Apart from that, P.W.2 who was a witness to the Sale Agreement would give contradictory answers. He would state that though he signed as a witness, he was not aware of the advance amount paid for registration of the sale deed in favour of the plaintiff. The Suit for specific performance was proceeded on the basis that the said P.V.Jeyaraman had valid and marketable title and the

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factum that it was sold even in the year 2000 was not brought to the knowledge of the trial court. Therefore, the Courts below have drawn adverse inference over the case projected by the plaintiff.

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22.Further, in respect of possession is concerned, it is the evidence of P.W.1 that on the basis of the decree of specific performance, he went to take possession of the property which was lying vacant. The possession was not handed over by the said Vani wife of P.V.Jeyaraman or his daughter. On the other hand, it was delivered by the village people and the Revenue Inspectors. Thereafter, he leased out it to the said P.V.Jeyaraman and Vani. But, Ex.A2 delivery receipt would read that an acknowledgment was obtained from the wife and daughter of the said P.V.Jeyaraman and the delivery receipt was witnessed by competent people. The statement in the delivery receipt and the deposition of P.W.1, the plaintiff herein, are diagonally opposite to each other. The Senior Bailiff would record that he took acknowledgment from the wife and daughter of the said P.V.Jeyaraman, whereas the plaintiff would depose that the house was vacant and nobody was there, particularly, Vani or his daughter not there. Therefore, it naturally raises serious doubt about the actual delivery of possession.

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23.As contended by the second defendant, it appears that it is only a paper possession. The plaintiff has not also come forward to examine the witnesses in order to prove that he leased out the premises to the said Vani wife of P.V.Jeyaraman. It is further substantiated by Exs.A5 and A6, the two rental agreements. These rental agreements were executed on 31.08.2005 and 01.12.2007 for a period of two years and it was not registered. Further, these rental agreements are documents came into existence after the institution of the Suit. Therefore, the Courts below have given a categorical finding that the validity and the enforceability of the agreement was not proved through proper witnesses and it cannot be relied on.

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24.It is also relevant to note that there is no explanation on the side of the plaintiff as to why he has not taken action for transfer of name in his favour in time. At the first instance, against the agreement dated 07.07.1997, the plaintiff has filed the Suit only in the year 2004 after a period of seven years. Eventhough it is pleaded that he was ready to get the sale executed and approached the said P.V.Jeyaraman, for performance of contract, time was extended on getting further advance amount. The explanation given by the plaintiff that it was periodically extended for a period of over

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seven years and that he has not enquired about the status of the property and the transaction made by P.V.Jeyaraman. Such statement and delay are not believable and the Courts below are rightly confirmed the adverse inference. Secondly, when he issued notice to the first respondent / Panchayat for transfer of property tax in his favour, it was replied as early as 2005 that the assessment stands in the name of the the second defendant pursuant to the Sale Deed dated 13.11.2000. The plaintiff had approached the Court only in the year 2007 after a period of seven years and the reason for delay was not explained. More particularly, when he got knowledge atleast on 07.12.2005 through Ex.A4, he has not questioned the sale made in favour of the second defendant.

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25.It is true to state that the Courts shall not venture into the question of title in a Suit for bare injunction. The Hon'ble Supreme Court in ANATHULA SUDHAKAR VS. P.BUCHI REDDY AND OTHERS [AIR 2008 SC 2033] has categorically held that where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a Suit for injunction.

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26.But, in the instant case, the very prayer of the plaintiff is based on his title. He claims title through a decree of specific performance and the Sale Deed executed in his favour by the Sub Court, Gobichettipalayam in EPR No.41 of 2005 dated 11.07.2005. Thus, the very foundation of the case of the plaintiff vests on the Sale Deed dated 13.11.2000 on the basis of which the property tax assessment was made in his favour. Therefore, the entire issue revolves around the rival claim of title of the second defendant. The Court has given a categorical findings which reads as follows:-

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"42/nkYk; 1k; gpujpthjpf;F vjpuhf braYWj;Jf;fl;lisg; ghpfhuk; nfhhp thjp tHf;F jhf;fy; bra;Js;s epiyapy; thjp/ 2k; gpujpthjp ,UtUf;Fk; chpik\y rh;r;ir cs;s epiyapy; tpsk;g [ifg; ghpfhuj;ij fl;lhakhf nfhhpapUf;f ntz;Lk;. vdnt ,ijg; bghWj;J thjp tpsk;g[ifg; ghpfhuk; nfhhp tHf;F jhf;fy; bra;ahky;/ ,t;tHf;if thjp 1k; gpujpthjpapd; kPJ braYWj;Jf;fl;lisg; ghpfhuk; jhf;fy; bra;Js;sJ Vw;Wf;bfhs;sj;jf;fjhf ,y;iybad;W ,e;ePjpkd;wk; jPh;khdpf;fpwJ. nkYk; vdnt ,t;tHf;fhdJ jhf;fy; bra;Js;s epiyapnyna epiyf;fj;jf;fjy;ybtd;W ,e;j vGtpdh 1f;F ,t;thwhf ,e;ePjpkd;wk; jPh;t[ fhz;fpwJ."

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27.As per the above conclusion, the Trial Court has categorically found that the Suit is not maintainable without

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claiming a comprehensive relief for declaration of title, but it does not decide on any title of the parties. Therefore, the concurrent findings of the Courts below does not warrant any interference. The questions of law framed in the Memorandum of Grounds of Appeal are pure questions of fact and does not give rise to any question of law much less substantial questions of law.

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28.The Second Appeal merits no consideration and accordingly, stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

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Sd/-

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Assistant Registrar(CS-IX)

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//True Copy//

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Sub Assistant Registrar

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The Subordinate Judge Subordinate Court Sathyamangalam.

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The District Munsif District Munsif Court Sathyamangalam.

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Copy to:

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The Section Officer, V.R. Section, High Court, Madras.

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+1cc to Mr.P.Valliappan, Advocate, S.R.No.47284

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SA NO.804 OF 2012

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NR(CO) SU(03/06/2022)

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Jesudasan v. the President

Case brief

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Jesudasan v. the President

Case brief

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