Easwari Vs Mallika

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S.A.Nos.617 & 618 of 2007

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on : 12.01.2023

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Delivered on : 09.02.2023

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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S.A.Nos.617 & 618 of 2007

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&

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M.P.No.1 of 2007

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S.A.No.617 of 2007:

Easwari

...Appellant

Vs

Mallika

...Respondent

Prayer : Second Appeal is filed under Section 100 of the CPC against the Judgement and Decree dated 27.03.2007 made in A.S.No.110 of 2006 on the file of the Additional District Court – Fast Track Court No.IV, Bhavani, reversing the Judgement and Decree dated 16.07.2004 made in O.S.No.586 of 2004 on the file of the I Additional District Munsif Court, Bhavani.

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https://www.mhc.tn.gov.in/judis

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S.A.Nos.617 & 618 of 2007

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S.A.No.618 of 2007:

1.Natarajan

2.Easwari

...Appellants

Vs

Mallika

...Respondent

Prayer : Second Appeal is filed under Section 100 of the CPC against the Judgement and Decree dated 27.03.2007 made in A.S.No.108 of 2006 on the file of the Additional District Court – Fast Track Court No.IV, Bhavani, reversing the Judgement and Decree dated 16.07.2004 made in O.S.No.166 of 2003 on the file of the I Additional District Munsif Court, Bhavani.

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: For Appellants Mr.T.Murugamanickam (in both appeals) Senior Counsel Mrs.Zeenath Begum : For Respondent Mr.P.M.Duraiswamy (in both appeals)

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S.A.Nos.617 & 618 of 2007

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COMMON JUDGMENT

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The appellant in S.A.No.617 of 2007 is the plaintiff in the suit O.S.No.586 of 2004 on the file of the I Additional District Munsif,

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Bhavani and the defendants in the suit O.S.No.166 of 2003 on the file of the I Additional District Munsif, Bhavani are the appellants in S.A.No.618 of 2007. The defendants in the suit O.S.No.166 of 2003

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are husband and wife and the wife is the plaintiff in the suit O.S.No.586 of 2004.

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Since the facts involved in both the suits are one and the same a common Judgement is being pronounced and the facts of the case is culled out from the suit O.S.No.586 of 2004. For easy understanding, the parties are referred in the same array as in the suit O.S.No.586 of 2004 and the 1^st defendant in the suit O.S.No.166 of 2003 is referred to by name, i.e., Natarajan.

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S.A.Nos.617 & 618 of 2007

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Plaintiff's case:

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The suit O.S.No.586 of 2004 has been filed by the plaintiff to cancel the sale deed dated 15.09.2000 executed by her in favour of the defendant and for a consequential injunction restraining the defendant from interfering with her peaceful possession and enjoyment of the suit schedule property. The suit schedule property

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has been described as follows in the suit O.S.No.586 of 2004:

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“<nuhL upoL. gthdp rg;oL. gthdp tl;lk;. ikyk;gho fpuhkk;. up/r/477-2 g[/bcw 2/96/0 juk; U:/4/08 ,jpy; bjd;g[wk; rupghjpf;Fr; brf;Fge;jp – nf/vk;/eluh$d; g{kpf;F (bjw;F). g[Jg;ghisak; nuhl;Lf;F (tlf;F). up/r/447-1 fhiyf;Fk; (fpHf;F). gHdpft[z;lu; g{kpf;F (nkw;F) ,jd; kj;jpapy;

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S.A.Nos.617 & 618 of 2007

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g[/V/3/65 ,J g{uht[k;. ic& g{kpapy; cs;s 100 X 11 mst[s;s fPw;Wf; tiug; nghlg;gl;Ls;s tlf;F jiythry; nfhHpg;gz;iz 2k; 100 X 11 mst[s;s bjw;F jiythry; fPw;Wf;Tiu nghl;l nfhHpg;gz;iz 1k; 100 X 11 mst[s;s rpbkz;l; nghl;l tlf;Fj;jiythry; FoapUg;g[ tPL 1k;. nfhHpg;gz;izapy; kpd; ,izg;g[ v!;/rp/vz;/262. FoapUg;g[ tPl;od; kpd; ,izg;g[ v!;/rp/vz;/314. tPl;od; fjt[ vz;/475 nkw;go g{kpf;Fupa bghJf;fpzw;wpYk;. mjpy; cs;s v!;/rp/vz;/246. kpd; ,izg;g[ rup ghjpa[k; kw;Wk; khtif. kutif. khK:y; tHpeil jlk; rfpjKk;/

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It is the case of the plaintiff that the suit property was

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purchased by her under a sale deed dated 23.07.1983 and since the date of purchase she has been in possession and enjoyment of the

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S.A.Nos.617 & 618 of 2007

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property. It is the case of the plaintiff that she and her husband Natarajan were having dealings with the defendant's husband, one Rangarajan, who was carrying on a finance business in the name and style of Malaimadheswara Finance in partnership with others.

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The plaintiff would further contend that in the course of this interaction she and her husband Natarajan had become indebted to the firm to the tune of Rs.1,00,000/-. Since there was a severe drought and no agricultural operations were possible, the plaintiff and the said Natarajan were without income for over 5 years.

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It is the case of the plaintiff that she had put up a house with a cement sheeted roof in the suit property and had also put up a poultry shed after borrowing a sum of Rs.78,300/- on 09.01.1996. Thereafter, the plaintiff had borrowed a sum of Rs.25,000/- from the South Indian Bank for commencing business on 02.02.2000 and the suit property had been mortgaged to the Bank. Meanwhile, the 6/29

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S.A.Nos.617 & 618 of 2007

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finance business being run by the defendant's husband and his partners was also going through a rough patch and the partners had authorised the defendant's husband, Rangarajan to collect the debts from plaintiff and her husband, Natarajan.

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The said Rangarajan demanded some form of security from the plaintiff and her husband, Natarajan. The said Rangarajan suggested that the plaintiff could execute a conditional sale deed as security for the repayment of the loan and on the repayment of the loan would be reconveyed to the plaintiff. On 15.09.2000, the plaintiff was rushed and pressurised into executing a deed without being permitted to peruse its contents. The plaintiff would submit that only when steps were taken by the defendant on 28.04.2003 to vacate her from the suit property, had she come to know about the fact that the deed she had executed was a sale deed. However, a perusal of the schedule to the sale deed would indicate that there is no reference to the construction put up on the property and the sale is

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only with reference to a vacant site. Therefore, the plaintiff has

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come forward with the suit in question.

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Defendant's case:

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The defendant had filed a written statement denying the

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allegations contained in the plaint regarding the contention that her husband was running a finance business. The defendant would contend that the plaintiff had purchased the property in the year 1983 and she had purchased the same as a vacant site and only a dilapidated Well was shown in the schedule.

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The defendant would contend that on 15.09.2000, the sale

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deed had been executed in her favour and possession of the property was also handed over to her on the said date. The said Natarajan was both the attesting as well as identifying witness. The defendant would further submit that she had purchased the vacant site and after

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her purchase she had constructed three thatched sheds for running a

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poultry farm and also an asbestos roofed shed.

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The defendant would further submit that she is personally cultivating the lands. The defendant would submit that on 25.05.1995, the plaintiff had executed an agreement with one Arunagiri for the sale of the suit property and the time fixed had expired. The plaintiff and the said Natarajan asked the defendant to sell the property to the said Arunagiri, which was refused by the defendant and therefore the plaintiff with an intent to spite the defendant come forward with the suit in question.

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The defendant had also filed a suit in O.S.No.166 of 2003

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for bare injunction contending that she is in possession of the enjoyment of the suit property.

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Trial Court:

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The Trial Court had framed the following issues in the suit

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S.A.Nos.617 & 618 of 2007

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O.S.No.586 of 2004:

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“1. jhth brhj;Jf;fspy; ,e;j thjp RthjPd mDnghfj;jpy; cs;shuh>

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nkhroahdjh. gpujpepjpj;Jtk;

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bfhz;ljpy;iyah>

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3/thjp tHf;Fiuapy; nfhupa[s;sgo jPu;g;ghizg; bgwj; jf;ftuh>

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4/thjpf;F fpilf;ff; Toa ntW gupfhuk;

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vd;d>

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In the suit O.S.No.166 of 2003, the following issues have

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been framed:

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nkhroahdjh>

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2/ thjp tHf;Fiuapy; nfhupa[s;sthW jPu;g;ghizg; bgwj;jf;ftuh>

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S.A.Nos.617 & 618 of 2007

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3/ ntW vd;d gupfhuk;>

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Evidence was recorded in the suit O.S.No.586 of 2004.

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The plaintiff had examined three witnesses and marked 25 documents. The defendant had also examined three witnesses and marked 13 documents. The Advocate Commissioner's report has been marked as Ex.C.1 and Ex.C.2. The learned I Additional District Munsif, Bhavani had proceeded to decree the suit O.S.No.586 of 2004 and dismiss the suit O.S.No.166 of 2003.

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An Advocate Commissioner was appointed and he had submitted a report with a plan which would clearly show the existence of a house, sheds etc., on the suit property apart from electricity service connection and well.

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Lower Appellate Court:

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Aggrieved by the said Judgement, the defendant had filed 11/29

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S.A.Nos.617 & 618 of 2007

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A.S.No.108 of 2006 challenging the Judgement in O.S.No.166 of 2003 and A.S.No.110 of 2006 against the Judgement in O.S.No.586 of 2004.

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The learned Additional District Judge, Fast Track Court IV, Bhavani by his Judgement and Decree dated 27.03.2007 was pleased to allow both the appeals.

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Substantial Question of Law:

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Challenging this reversing Judgement and Decree, the plaintiff has filed the above Second Appeals and the Second Appeals

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have been admitted on the following Substantial Questions of Law:

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“When the plaintiff has discharged the burden to

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prove that the sale deed said to have been executed by

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her has been obtained by fraud and when there is no rebuttal evidence, whether the finding of the lower

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S.A.Nos.617 & 618 of 2007

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appellate Court that merely because the sale deed has been registered, the sale has become complete, is

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sustainable in law.”

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Submissions:

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The learned senior counsel appearing on behalf of the appellant / plaintiff would submit that the deed in question, namely, the sale deed dated 15.09.2000 (Ex.A.1 = Ex.B.7) was never intended to be an absolute sale deed and this fact has been amply proved by the fact that the plaintiff continues to be in possession and enjoyment of the said property to date. Further, the defendant has herself admitted that they have not taken any steps whatsoever to peruse and obtain the original documents particularly when the same has been mortgaged with the State Bank of India.

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The learned senior counsel would further submit that the

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schedule given in Ex.A.1 does not disclose the property as available 13/29

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on site. The schedule in Ex.A.1 is silent about the buildings put up on the property. The learned senior counsel would submit that the fact that there were buildings is evident on a mere perusal of the Advocate Commissioner's report which would detail the buildings on site and the service connection in respect of the suit schedule property which has been taken as early as in the year 1997. This clearly proves the existence of the building even from the year 1997. Therefore, the allegation of the defendant that they had put the building after the sale is absolutely false.

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The learned senior counsel would further submit that the valuation of the suit property is also another indication that the document was never intended to be an absolute sale. The learned senior counsel would submit that the undervaluation of the property is evident from the fact that the sale deed has been referred under Section 47 A (1) of the Indian Stamp Act for undervaluation.

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S.A.Nos.617 & 618 of 2007

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Further, the learned senior counsel would submit that the

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defendant has not cross examined the said Arunagiri nor marked an alleged agreement of sale, which has been put across to substantiate the contention that the plaintiff had always intended to sell the suit schedule property. He would rely up on the following Judgements to support his contentions:

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2012 (1) CTC 53 – Lakshmi and others Vs.

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Muthusamy.

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2013 (4) CTC 45 – Venkatachalam and another

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Vs. Nallathambi.

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(2013) 9 SCC 319 – State of Andhra Pradesh

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and others Vs. Star Bone Mill and Fertiliser Company.

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S.A.No.1298 of 2019 – M.Rangaraj Vs. K.M.Natarajan and others.

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It was also his argument that the documents filed by the

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plaintiff particularly, Ex.A.6 to Ex.A.8, Ex.A.13 to Ex.A.15 and 15/29

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Ex.A.21, would clearly establish the fact that the possession in respect of the property continued to remain with the plaintiff and has never been handed over to the defendant which once again proves the falsity of the defendant's case that on the date of the sale she was put in possession of the suit property.

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Mr.P.M.Duraiswamy, learned counsel appearing on behalf

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of the respondent / defendant would submit that the sale deed had been executed as early as on 15.09.2000, whereas, the suit has been filed only in the year 2003. The plaintiff who has come to the Court with a case that the sale deed had been executed as a security for loan has not produced any document to show that the defendant's husband was running finance business and that the said Natarajan owed money to the said firm. Further, the said Natarajan has executed a sale deed on 06.06.2002 in favour of the defendant's husband in respect of a common property and since the said Natarajan has not come forward to execute the sale deed the 16/29

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S.A.Nos.617 & 618 of 2007

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defendant's husband had filed a suit for Specific Performance on 17.05.2003, which is the trigger point for filing the instant suit.

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The learned counsel would further submit that the suit for

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specific performance has been decreed directing the refund of an advance amount and the defendant's husband has initiated execution proceedings in E.P.No.10 of 2021 for recovery of the said amount.

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The learned counsel would submit that there is a written

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document and the plaintiff seeks to set up a plea contrary to the terms of the written document and therefore the onus is entirely upon the plaintiff to establish the pleading which in the instant case has not been properly complied with by the plaintiff.

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The learned counsel would rely upon the following

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Judgements in support of his argument in respect of Section 91 of the Evidence Act:

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CDJ 2009 SC 593 – Vimal Chand Chevarchand Jain and others Vs. Ramakant Eknath Jajoo.

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CDJ 2011 MHC 5389 – Dhandapani & others Vs. Balamurugan.

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Discussion:

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Heard the learned senior counsel for the appellant, learned counsel for the respondent and perused the records.

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The suit has been filed to cancel the sale deed dated 15.09.2000 executed by the plaintiff in favour of the defendant and for injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property. The plaintiff

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seeks to have the sale deed canceled for the following reasons:

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(a)The plaintiff had never intended to execute the

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sale deed in favour of the defendant and that it was only

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given as a security on the specific understanding that the

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property would be re-conveyed to the plaintiff on payment of the loan amount.

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(b)The sale deed does not reflect the existence of

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the superstructures there upon but would only show that the suit property is a vacant site.

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(c) The value of the property has been under

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valued and the document has been referred under Section 47 A (1) of the Indian Stamp Act, which would clearly show that the plaintiff and defendant had never intended to convey the property to the defendant. If the sale deed was a regular sale the purchaser would have taken steps to find out the guideline value of the property and also describe the property, superstructure and usufructs there on.

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(d) Had the sale deed been genuine one, the purchaser would never have parted with the sale

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consideration, unless and until she has been put in

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possession of the property and all the parent documents.

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(e) That the building has been in existence from the

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year 1997 is evident from the Advocate Commissioner's

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report.

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A perusal of the pleadings and documents would confirm

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these contentions made by the plaintiff. Therefore, from the above circumstances, it can be clearly inferred that the parties never intended the sale to be a regular sale. The defendant who is the purchaser during her cross examination as P.W.1 has not been able to satisfactorily provide any answers with reference to the physical features of the property, the location of the property, etc,.

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Further, in the insolvency proceedings in I.P.No.2 of 2004

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on the file of the Subordinate Judge, Bhavani as evidenced by Ex.A.23, it is seen that the plaintiff has filed an application to amend 20/29

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the B-Schedule, Item 2 therein to include the superstructure in their affidavit. The plaintiff has clearly mentioned that these superstructures have been omitted by an oversight.

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The defendant has stated that the construction has been put up on the suit property after her purchase on 15.09.2000. However, the evidence that is before the Court in the form of Ex.A.2 to Ex.A.8 and Ex.A.12 to Ex.A.17 would indicate that even prior to the institution of the suit, there was a superstructure on the suit property. That apart the Advocate Commissioner's report and plan, Ex.C.1 and Ex.C.2 would clearly show that there is a service connection in the suit property which is of the year 1997. Therefore, from a conjoint reading of these facts, it can be reasonably deduced that the sale deed which is executed by the plaintiff in favour of the defendant was only a sham and nominal document with no intention of actual conveying the property. The plaintiff has been able to establish her contention which is against the recitals of the document.

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P.W.3 has in his cross examination admitted that as per the

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guideline value the property in and around the suit property was selling at a rate of Rs.56,400/- per acre and therefore, the value of the property sold to the defendant is over a sum of Rs.3,58,704/- . Admittedly, the document of the plaintiff's property had been mortgaged. The defendant was not aware about this fact and nor has she demanded the copies of the documents filed.

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The very suit filed by the plaintiff is one to cancel the registered document, for which an adequate and cogent reasons have been given by the plaintiff. The Lower Appellate Court has not considered the Advocate Commissioner's report or the documents on the side of the plaintiff prior to the purchase by the defendant which would clearly indicate that the suit property contained superstructures. Therefore, the observation of the Lower Appellate 22/29

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Court that possession would follow title is not applicable.

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In the Judgement reported in 2013 (9) SCC 319 – State of

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Andhra Pradesh and others Vs. Star Bone Mill and Fertilizer Company, the Hon'ble Supreme Court observed that the maxim “possession follows title” is applicable in cases where proof of actual possession cannot be reasonably expected for instance in the case of wastelands, or where nothing is known about possession oneway or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party.

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In the Judgement of this Court reported in 2013 (4) CTC 45 – Venkatachalam and another Vs. Nallathambi , the learned Judge after considering the various Judgements on the point had observed as follows:

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“18. In my considered opinion in respect of the

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house property is concerned such presumption 'possession follows title' cannot be ushered in. There should be clinching evidence relating to the possession of a house, to grant injunction.

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19. The pertinent questions to be raised in a case

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of this nature touching upon house property are as to who was actually paying the Electricity Consumption Charges, Water Consumption Charges and whether any Ration Card or Voters Card speak in favour of the alleged possessor. Even though the Plaintiff would wax eloquence on the issue that he was put in possession ever since the emergence of Ex. A2-the Sale Deed, no clinching evidence on his side has been produced to show that he was paying Electricity Consumption Charges, Water Charges, etc.

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20. Over and above that it is the case of the

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Plaintiff that the said Power Agent Ramakrishnan ever

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since 1993 was in possession and enjoyment of those properties till he allegedly part with his possession in favour of the Plaintiff after emergence of Ex. A2-the Sale Deed. As such, the analysis of evidence is concerned, virtually on the Plaintiff's side there is no clinching evidence. But the First Appellate Court failed to take note of the same. Hence, regarding possession is concerned, the findings rendered by the First Appellate

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Court does not merit consideration.

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Therefore, in the light of the above discussion, the sale deed dated 15.09.2000, Ex.A.1 was never intended to be a regular sale deed. Though the alleged sale deed shows that the defendant has been put in possession of the property in reality that is not the

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case. That apart, the plaintiff has proved their possession by producing the tax receipts etc., coupled with the Advocate Commissioner's report stating that the service connection stood in the name of the plaintiff much prior to the institution of the suit clearly shows that the Judgement of the Lower appellate Court is totally erroneous and liable to be set aside. The plaintiff has discharged her duty to show that the document which was registered as sale deed was never intended to be so and was only a form of security.

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Therefore, the Substantial Question of Law is answered in favour of the plaintiff. Consequently, the Second Appeals are allowed and the Judgement of the learned Additional District Judge, Fast Track Court IV, Bhavani in A.S.Nos.108 & 110 of 2006 is set aside confirming the Judgement and Decree of the I Additional District Munsif, Bhavani, in O.S.No.166 of 2003 and 586 of 2004. Consequently, connected Miscellaneous Petition is closed. No costs. 26/29

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Internet : Yes/No Index :Yes/No Speaking / Non-Speaking kan

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09.02.2023

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To

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The Additional District Court – Fast Track Court No.IV, Bhavani

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The I Additional District Munsif Court, Bhavani.

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S.A.Nos.617 & 618 of 2007

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P.T. ASHA. J,

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kan

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Pre-delivery Judgment in S.A.Nos.617 & 618 of 2007

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09.02.2023

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Easwari v. Mallika

Case brief

What is this about?

What did the court decide?

Easwari v. Mallika

Case brief

What is this about?

What did the court decide?

What the court decided

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