Second appeal over title and possession of agricultural land claimed by defendant as agreement holder in part performance. The High Court held plaintiffs failed to prove dispossession during the suit, set aside the appellate decree and restored the trial court's dismissal of the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No. 99 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.11.2024
CORAM:
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
S.A. No.99 of 2011 and M.P.Nos.1 of 2011
Mani Padayachi
... Appellant/ 1st Defendant
Vs.
(R1 and R2 died and R3 to R5 are recorded as legal heirs of the deceased R1 as per the memo dated 27.08.2021 and vide orders dated 28.09.2021 and 09.12.2021 made in S.A.No.99/2011)
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, against judgment and decree dated 08.01.2010 passed in A.S.No.29/2010 before the Additional Sub-Court No.I, Cuddalore reversing
the judgment and decree dated 13.04.2010 passed in O.S.No.213/2006 on the
file of the Principal District Munsif's Court, Cuddalore.
1/14
S.A.No. 99 of 2011
JUDGMENT
Heard Ms.Nilafer, the learned counsel for the appellant and
Mr.Kingston Jerold, the learned counsel for R3 to R5.
plaintiffs for the relief of declaration of title and consequential permanent injunction and subsequently amended for recovery of possession. The trial Court dismissed the suit. The first appeal preferred by the plaintiffs was allowed by reversing the judgment of the trial Court. Hence, the first defendant had preferred this Second Appeal.
3. The short facts pleaded in the plaint:
The suit property was purchased by the first plaintiff through a sale deed dated 17.02.1966. By mistake, the Survey numbers in the sale deed has
2/14
S.A.No. 99 of 2011
been wrongly mentioned as “Dry S.No.1032” instead of “Wet S.No.99/3”. However, the boundary details would show that the suit property is “Wet S.No.99/3” comprising of 1 acre 37 cents. The first plaintiff was in possession and enjoyment of the suit property from the date of its purchase. The suit property was leased out to one Natesa Padayachi and Jayaram and they cultivated the property for 10 years and then executed a lease release deed on 18.05.1983 and surrendered the possession to the first plaintiff. The first plaintiff had raised paddy crops and they were two months old at the time when the suit was filed.
3.1 The patta of the suit property stands in the name of the first plaintiff in No.415 and he was paying the kist. The first defendant owns his property on the West and he wanted to purchase the property of the plaintiff and committed default. Now the defendants, by colluding between themselves, have attempted to trespass the suit property on and from 07.04.2006. Pending the suit, the defendants trespassed the suit property on 03.12.2006 and they are in unlawful possession over the suit properties. Though the plaintiff had originally filed the suit for declaration and permanent injunction, later amended the suit for adding the prayer for recovery of possession as well.
3/14
S.A.No. 99 of 2011
statement filed by the first defendant and adopted by the second defendant are as follows:
The villages by name “Senjikumarapalayam” and “Pillali” are adjacent villages and they have a common border. The plaintiff owns his property in Senjikumarapalayam village with water facility. When an adjacent property came up for sale, the plaintiff decided to buy the same. The plaintiff is also owning his property in Pillali village. Hence the plaintiff had decided to sell the suit property in Pillali village. By using the sale proceeds, he purchased the property in Senjikumarapalayam village adjacent to the property which he had already owned. The first defendant had agreed to purchase the suit property for a sale consideration of Rs.1,53,000/- and paid an advance of Rs.75,000/- and entered into a sale agreement on 11.05.1995. The plaintiffs have suppressed the material facts about the sale agreement in his plaint. The first defendant paid the balance sale consideration of Rs.78,000/- within a month and the property was delivered to the first defendant.
4.1 During the month of June, 1995, the first defendant was in
possession over the suit property. As the first defendant and the first plaintiff
4/14
S.A.No. 99 of 2011
were close friends from the year 1970, no execution of sale deed had taken
place. The first defendant alone had been in enjoyment of the property since June, 1995. At the time of filing the suit, there were paddy crops and they were harvested by the first defendant and he again cultivated paddy crops. The first defendant is entitled to the benefit of Section 53 A of the Transfer of Property Act, as he had been in possession and enjoyment of the property through part performance of a contract and he had been ready and willing to have the sale deed executed in his favour. It is false to state that the first defendant had taken possession only during the pendency of the suit and hence the plaintiffs are not entitled to the relief as prayed.
“ 1) Whether the suit property purchased by the plaintiff under sale deed dated 17.02.1996 is true, valid and accepted and acted upon ?
2) Whether the suit is maintainable ?
3) Whether the plaintiff is entitled for declaration and permanent injunction ?
4) To what other relief the plaintiff is entitled to ?”
The following are the additional issues framed on 23.11.2006:
1) Whether the agreement dated 11.05.1995 mentioned in the
5/14
S.A.No. 99 of 2011
written statement filed by the first defendant is true ?
The following are the additional issues framed on 03.04.2007:
property ?”
were examined as P.W.1 and P.W.2 and Exs.A1 to A7 were marked. On the side of the defendants four witnesses were examined as D.W.1 to D.W.4 and Exs.B1 to B3 were marked.
on record, the trial Court dismissed the suit. The first appeal preferred by the plaintiffs was allowed by the first appellate Court and the suit was decreed.
Now the first defendant had filed this second appeal by raising the following Substantial Questions of law:
“ 1. Whether in law the lower appellate Court was right in omitting to protect the possession of the appellant under Section 53A
6/14
S.A.No. 99 of 2011
of the Transfer of Property Act ?
2. Whether in law the lower appellate Court was right in holding that the appellant had trespassed into the suit property without any proof ?”
7/14
S.A.No. 99 of 2011
8/14
S.A.No. 99 of 2011
was entered into between himself and the deceased first plaintiff.
that he had been inducted into possession right from the date of sale
9/14
S.A.No. 99 of 2011
agreement and he has claimed that he has been in part performance of contract. For the reasons best known to the appellant / first defendant, he did not file any suit for the relief of specific performance. According to the first defendant, he has been in possession of the suit property for the past 15 years and the plaintiffs have set up a story that the defendants have trespassed during the pendency of the suit. The records would show that the plaintiff's witnesses have been examined before the suit was amended by seeking the relief of recovery of possession. But the non-examination of any witness from the plaintiff's side would deprive the plaintiffs from proving the allegation of unlawful possession over the suit property from any particular point of time. As the plaintiffs have filed the suit for recovery of possession, they have to prove that the defendants have trespassed the suit property during the pendency of the suit. Unless the plaintiffs discharges the said burden it cannot be fair in law to grant the relief of recovery of possession.
10/14
S.A.No. 99 of 2011
question which was put to D.W.3, prior to the question suggesting that the defendant was in two years enjoyment, it was submitted by D.W.3 that the deceased first plaintiff was in enjoyment of the suit property for 15 years. The next suggestion that was put to D.W.3 appears to have not been carried out by the stenographer properly. The lower appellate Court has shifted the burden on the defendants instead of placing the burden on the plaintiffs to prove that the defendants have trespassed the suit property during the pendency of the suit.
cannot deny the title of the first plaintiff as he himself has pleaded that he is
11/14
S.A.No. 99 of 2011
an agreement holder for the suit property.
12/14
S.A.No. 99 of 2011
22.11.2024
Index:Yes/No Speaking Order / Non-speaking order Neutral Citation Case : Yes / No bkn
To:
Coimbatore.
Coimbatore.
13/14
S.A.No. 99 of 2011
R.N.MANJULA, J.
bkn
S.A. No.99 of 2011
22.11.2024
14/14
2 issues framed by the court
Whether the lower appellate Court rightly failed to protect the appellant's possession under Section 53A TPA.
Whether the lower appellate Court wrongly held the appellant had trespassed into the suit property without proof.
2 provisions across 2 enactments
Mani Padayachi
Ananthayi (deceased)
Karthikeyan (deceased)
Vaidyanathan
Boovaragavan
Gunasekaran
R.N.MANJULA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
