1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM REVIEW APPLICATION No.42 of 2011 in APPEAL SUIT No.995 of 1993 and REVIEW APPLICATION No.43 of 2011 in SECOND APPEAL No.1509 of 1993 Review Application No.42 of 2011 in Appeal Suit No.995 of 1993: 1.V.R.Manickam Asari (died) 2.M.Nehru 3.Nagammai 4.M.Kamban 5.M.Mageshwari 6.M.Muthukumar 7.M.Vasuki 8.M.Muthulakshmi 9.M.Kamalakannan (Review Applicants 3 to 9 are brought on record as legal heirs of the deceased first review applicant vide order dated 25.03.2010 passed in M.P.No.2 of 2009 in Rev.Aplc.SR.No.2023 of 2008) .. Petitioners Vs. 1.K.Narayanan represented by his power agent K.R.Viswanathan 2.M.Alagappan 3.M.Muthukaruppan 4.C.Alagia Meenal 5.K.R.Alagappan Ambalam 6.V.Alagia Meenal .. Respondents Review Application has been filed under Order XLVII, Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 against the Judgment and decree dated 27.04.2007 passed in Appeal Suit No.995 of 1993. Prayer in Appeal Suit No.995/1993 : Appeal against the Judgment and decree dated 27.11.1992 passed in original Suit No.28/1988 on the file of Subordinate Judge, Devakottai. For Petitioners : Mr.H.Arumugam For Respondent : Mr.R.Sundar Srinivasan No.3 For Respondent : Mr.K.S.Muthu No.4 For Respondents : No appearance 1,2,5 and 6 https://hcservices.ecourts.gov.in/hcservices/ 2 Review Application No.43 of 2011 in Second Appeal No.1509 of 1993: 1.V.R.Manickam Asari (died) 2.Natchemmai 3.M.Nehru 4.M.Kamban 5.M.Mageshwari 6.M.Muthukumar 7.M.Vasuki 8.M.Muthulakshmi 9.M.Kamalakannan (Review Applicants 2 to 9 are brought on record as legal heirs of the deceased sole review applicant vide order dated 22.04.2010 passed in M.P.No.3 of 2009 in Rev.Aplc.SR.No.2022 of 2008) .. Petitioners Vs. 1.K.Narayanan 2.M.Muthukaruppan Ambalam .. Respondents/Respondents Review Application has been filed under Order XLVII, Rule 1 read with Section 114 of the Code of Civil Procedure, 1908 against the Judgment and decree dated 27.04.2007 passed in Second Appeal No.1509 of 1993. Prayer in S.A.No.1509 of 1993 : Second Appeal agains the Judgment and decree of the Subordinate Judge, Devokottai in Appeal Suit No.56/1991 dated 27.11.1992 confirming the Judgment and decree dated 19.07.1991 passed in Original Suit No.97/88 on the file of the district Munsif Court, Devakottai. For Petitioners : Mr.H.Arumugam For Respondent : Mr.R.Sundar Srinivasan No.2 For Respondent : No appearance No.1 C O M M O N O R D E R These Review Applications have been preferred against the Judgments and decrees passed in Second Appeal No.1509 of 1993 and in Appeal Suit No.995 of 1993 by this Court. 2. The deceased first review applicant as plaintiff has instituted Original Suit No.97 of 1988 on the file of the District Munsif Court, Devakottai for the relief of permanent injunction, wherein the respondents found in Second Appeal No.1509 of 1993 have been shown as defendants. Likewise the first respondent in Appeal Suit No.995 of 1993 as plaintiff has instituted Original Suit No.28 of 1988 on the file of https://hcservices.ecourts.gov.in/hcservices/ 3 the Sub Court, Devakottai for the reliefs of partition and separate possession, wherein the deceased first review applicant/first appellant in Appeal Suit No.995 of 1993 has been shown as one of the defendants. 3. The District Munsif Court, Devakottai after considering the available evidence on record has dismissed Original Suit No.97 of 1988. Against the Judgment and decree passed by the trial Court, Appeal Suit No.56 of 1991 has been preferred on the file of the first appellate Court and the same has been dismissed. Against the concurrent Judgments and decrees passed by the Courts below, Second Appeal No.1509 of 1993 has been filed on the file of this Court. 4. The Sub Court, Devakottai after considering the available evidence on record in Original Suit No.28 of 1988, has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, Appeal Suit No.995 of 1993 has been preferred on the file of this Court. 5. This Court has clubbed both the proceedings and passed a common Judgment and ultimately dismissed both the appeal suits whereby and whereunder confirmed the concurrent Judgments and decrees passed by the Courts below in Original Suit No.97 of 1988 and in Appeal Suit No.56 of 1991 and also confirmed the Judgment and decree passed in Original Suit No.28 of 1988. In order to review the common Judgment passed by this Court in Second Appeal No.1509 of 1993 and in Appeal Suit No.995 of 1993, these Review Applications have been preferred by the deceased review applicant and after his demise his legal representatives have been brought on record. 6. The learned counsel appearing for the review applicants has contended that the suit property is comprised in T.S.No.100 and its total extent is 11,278 square feet and the plaintiff in Original Suit No.28 of 1988 has purchased 11,404 square feet under a registered sale deed dated 25.04.1984 from the fifth defendant in Original Suit No.28 of 1988 and the deceased appellant/ review applicant has enjoyed a portion of the suit property as a tenant and subsequently sale agreement has come into existence in the year 1982 and in pursuance of the same, the fifth defendant has executed a sale deed dated 30.04.1984 in respect of an extent of 4906 square feet and also in respect of a house bearing Door No.11/A and under the said circumstances the provisions of Section 48 of the Transfer of Property Act, 1882 is not applicable to the facts and circumstances of the present case, but this Court has held that the sale deed dated 30.04.1984 is not at all valid in view of the said provision and further the Courts below have concurrently found that the deceased review applicant is in possession and enjoyment of the property, which has been purchased by him under the registered sale deed dated 30.04.1984 and this Court has erroneously accepted the concurrent Judgments and decree passed by the Courts below in Original Suit No.97 of 1988 and in Appeal Suit No.56 of 1991 and therefore the common Judgment passed by this Court in Second Appeal No.1509 of 1993 and in Appeal Suit No.1995 of 1993 is liable to be reviewed. 7. In order to dispel the contentions putforth on the side of the review applicants, the learned counsel appearing for the third respondent in Review Application No.42 of 2011/ second respondent in Review Application No.43 of 2011 has contended that the total extent available in T.S.No.100 is only 17,278 square feet, wherein the vendor of the second respondent as well as the deceased review applicant has had only one-third share and it comes to an extent of 5,759 square feet, but https://hcservices.ecourts.gov.in/hcservices/ 4 unfortunately she sold 11,404 square feet in favour of the plaintiff in Original Suit No.28 of 1988 under a registered sale deed dated 25.04.1984 and after executing the sale deed dated 25.04.1984, the fifth defendant, so-called vendor of the plaintiff in Original Suit No.28 of 1988 and vendor of the plaintiff in Original Suit No.97 of 1988, has had no right and therefore the sale deed dated 30.04.1984, which stands in the name of the plaintiff in Original Suit No.97 of 1988 has not conveyed any right, title and interest in respect of the extent mentioned therein and since the so-called vendor of both parties has had only one-third share and to that extent the sale deed dated 25.04.1984 is valid, for the same extent the sale deed dated 30.04.1984 cannot be executed and further the same does not convey any right in favour of the purchaser therein and under the said circumstances the provisions of Section 48 of the Transfer of Property Act, 1882 is applicable to the present case and this Court has rightly passed its Judgment and further the relief sought for in Original Suit No.97 of 1988 cannot be granted in view of the alleged fact that the parties therein are co-owners and this Court has also rightly accepted the findings given by the Courts below and therefore the present Review Applications are liable to be dismissed. 8. As stated earlier, in T.S.No.100, total extent of land is 17,278 square feet. It is an admitted fact that the fifth defendant in Original Suit No.28 of 1988 is the vendor of the plaintiff in Original Suit No.28 of 1988 and the plaintiff in Original Suit No.97 of 1988 and she has had only one-third share out of 17,278 square feet and it comes to an extent of 5,759 square feet. 9. The consistent case of the plaintiff in Original Suit No.28 of 1988 is that the fifth defendant has sold 11,404 square feet under a registered sale deed dated 25.04.1984. Even though, the vendor has had right to an extent of 5,759 square feet, she has conveyed larger extent of 11,404 square feet and therefore the sale deed dated 25.04.1984 is valid only to an extent of 5,759 square feet (share of fifth defendant in Original Suit No.28 of 1988). After executing the sale deed dated 25.04.1984, the fifth defendant has had no right in T.S.No.100. Admittedly, the deceased review applicant (plaintiff in Original Suit No.97 of 1988) has obtained a sale deed dated 30.04.1984 in respect of 4,906 square feet and also in respect of the house bearing Door No.11/A. Since separate and distinct properties have been mentioned in the sale deed dated 30.04.1984, a faint attempt has been made in the present Review Applications to the effect that Section 48 of the Transfer of Property Act, 1882 is not at all applicable to the facts of the present case. 10. The learned counsel appearing for the review applicants has contended that the property mentioned in the sale deed dated 25.04.1984 is entirely different from the property mentioned in the sale deed dated 30.04.1984 and for application of Section 48 of the said Act, the very same property must be dealt with in subsequent transactions. 11. In support of the contentions raised on the side of the review applicants, the decision in B.Sivaraman (deceased by LRs.) v. S.Ramalingam reported in AIR 2007 Madras 221 is relied upon, wherein a single plot in the form of different sects have been dealt with on different deeds. Under the said circumstances, this Court has given a finding to the effect that Section 48 of the Transfer of Property Act, 1882 is not at all applicable. In the instance case, the position is otherwise. It has already been discussed in detail that in T.S.No.100, total extent available is 17,278 square feet, in which the vendor of both https://hcservices.ecourts.gov.in/hcservices/ 5 parties has had only one-third share and it comes to an extent of 5,759 square feet. On 25.04.1984, the vendor of the plaintiff in Original Suit No.28 of 1988 has sold 11,404 square feet in favour of the plaintiff in Original Suit No.28 of 1988, even though she has had right to convey to an extent of 5,759 square feet. Therefore after execution of the sale deed dated 25.04.1984, the vendor of the plaintiff in Original Suit No.28 of 1988 and the plaintiff in Original Suit No.97 of 1988 has had no right in respect of T.S.No.100. The sale deed relied upon by the plaintiff in Original Suit No.97 of 1988 has come into existence on 30.04.1984 in respect of an extent of 4,906 square feet and also in respect of the house bearing Door No.11/A. Since the vendor of both parties has had only one-third share in T.S.No.100 and that too an extent of 5,759 square feet, both the sale deeds should be only in respect of one-third share of the vendor of both parties. Even though the sale deed dated 30.04.1984 has dealt with a separate portion of T.S.No.100, the same can be treated as one-third share of the vendor. Since one-third share of the vendor has already been dealt with under the registered sale deed dated 25.04.1984, the Court can very well come to a conclusion that both the sale deeds have dealt with only one-third share of the vendor and therefore Section 48 of the Transfer of Property Act, 1882 squarely applies to the facts and circumstances of the present case. Even assuming without conceding that Section 48 of the Transfer of Property Act, 1882 is not applicable to the facts and circumstances of the case, as pointed out in many places, after execution of the sale deed dated 25.04.1984 in favour of the plaintiff in Original Suit No.28 of 1988, the vendor of the plaintiff in Original Suit No.97 of 1988 has had no right to execute the sale deed dated 30.04.1984 and therefore the same is nothing but void. 12. The learned counsel appearing for the review applicants has contended that the deceased review applicant has obtained a sale agreement in the year 1982. It is a pristine principle of law that a sale agreement does not create any right in favour of the person, in whose favour it stands. Therefore viewing from any angle, there is no incertitude in coming to a conclusion that the sale deed dated 30.04.1984 is nothing but void and the same does not convey any right in favour of the deceased review applicant. 13. Now the Court has to look into the second point urged on the side of the review applicants. The deceased review applicant as plaintiff has instituted Original Suit No.97 of 1988 for the relief of permanent injunction. The trial Court has dismissed the same. Against the Judgment and decree passed by the trial Court, Appeal Suit No.56 of 1991 has been preferred on the file of the first appellate forum. The first appellate forum has also dismissed the same. Against the concurrent Judgments and decrees passed by the Courts below, Second Appeal No.1509 of 1993 has been preferred on the file of this Court and this Court has also dismissed the same. 14. The learned counsel appearing for the review applicants has contended that the Courts below have concurrently found that the plaintiff in Original Suit No.97 of 1988 is in possession and enjoyment of the suit property mentioned therein and therefore the reliefs sought for in Original Suit No.97 of 1988 can very well be granted and the Courts below have committed mistake and this Court has also erroneously dismissed Second Appeal No.1509 of 1993. 15. The learned counsel appearing for the third respondent in Review Application No.42 of 2011/second respondent in Review Application https://hcservices.ecourts.gov.in/hcservices/ 6 No.43 of 2011 has contended that the vendor of the plaintiff in Original Suit No.97 of 1988 has already filed a similar suit and the same has been dismissed and under the said circumstances in Original Suit No.97 of 1988, a plea of res judicata has been taken as a defence and the Courts below have concurrently accepted the same and therefore the contention urged on the side of the review applicants is not maintainable. 16. The learned counsel appearing for the review applicants has relied upon the decision in Rame Gowda (D) by Lrs. v. M.Varadappa Naidu (D) by Lrs. & Anr. reported in 2004-3-L.W.143, wherein the Hon'ble Apex Court has held as follows: "No one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land. In such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner". 17. In the instant case, the vendor of the plaintiff in Original Suit No.97 of 1988 has already filed a suit for similar relief and the same has been dismissed. Under the said circumstances, the contesting defendant has taken a defence to the effect that Original Suit No.97 of 1988 is barred by res judicata in view of the Judgment and decree passed in the earlier suit. Both the trial Court as well as the first appellate Court have concurrently found that Original Suit No.97 of 1988 is barred by res judicata in view of the Judgment and decree passed in the earlier suit. Since the Courts below after coming to the conclusion that Original Suit No.97 of 1988 is barred by res judicata, the subsequent finding to the effect that the plaintiff in Original Suit No.97 of 1988 is in possession and enjoyment of the suit property is nothing but superfluous and the same cannot be given effect to. Therefore the second contention putforth on the side of the review applicants also goes out without merit and altogether both the Review Applications are liable to be dismissed. 18. In fine, these Review Applications deserve dismissal and accordingly are dismissed without costs. Sd/- Assistant Registrar (Records) /True copy/ Sub Assistant Registrar To 1.The Subordinate Judge, Devakottai. 2.The District Munsif, Devakottai. +1CC TO M/S.K.S.MUTHU, ADVOCATE SR.43764 Smn : SR : 29.12.2011 : 6p/4c COMMON ORDER MADE IN REVIEW APPLICATION No.42 of 2011 in APPEAL SUIT No.995 of 1993 and REVIEW APPLICATION No.43 of 2011 in SECOND APPEAL No.1509 of 1993 14.12.2011 https://hcservices.ecourts.gov.in/hcservices/