In the High Court of Judicature at Madras Dated 25.02.2010 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.379 of 2010 and M.P.No.1 of 2010 1. J.Gowtham Chand 2. G.Vimala ..Appellants ..vs.. 1. J.M.S.Prabhu 2. J.Lazaru Michael Raj ..Respondents Civil Miscellaneous Appeal filed under Order 43 Rule 1(r) C.P.C., against the fair and decretal order dated 05.02.2010 made in I.A.No.25313 of 2009 in O.S.No.13284 of 2009 on the file of III Additional Judge, City Civil Court, Chennai. For Appellants : Mr.S.Parthasarathy, Senior Counsel for Mr.N.Damodaran For Respondents : Mr.V.Raghavachari JUDGMENT This appeal is filed against the order dated 05.02.2010 passed in I.A.No.25313 of 2009 in O.S.No.13284 of 2009 by the learned III Additional Judge, City Civil Court, Chennai, whereby the application filed under Order 39 Rule 1 and 2 of C.P.C.for interim injunction by the appellants was dismissed. 2. The facts which are necessary to decide the issue involved in the appeal are as follows: (a) The appellants are the plaintiffs and the respondents are the defendants in O.S.No.13284 of 2009. The plaintiffs filed the said suit for a declaration that the alleged sale deed dated 21.04.1982 said to have been executed by the 1st plaintiff in favour of S.N.Panneer Selvam and Thanaseeli Panneer Selvam and registered as Document No.1566 of 1982 in the office of the Sub-Registrar Joint II at Saidapet in respect of the suit property is a sham and nominal one and not binding on the plaintiffs and for a declaration that the 2nd plaintiff is the absolute owner of the suit property and also for a consequential permanent injunction restraining the defendants and their men from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property. (b) It is the case of the appellants/plaintiffs before the trial court that originally the 1st appellant/1st plaintiff had purchased the land measuring to an extent of 47 cents of vacant land out of a total extent of 2.97 acres in S.No.301 situated at No.137, Velacherry village from one Ettiyappan and 13 others by a sale deed dated 18.02.1982, which was registered in the office of the Sub Registrar Joint- II at Saidapet as Document No.594 of 1982. Subsequently, the 1st appellant along with the other adjacent owners have developed their lands and divided the same into plots. The extent of 47 cents of the 1st appellant was subsequently identified and given as plot Nos.9, 10, 11, 24, 27 and 28 and thereafter, the said area was named as 'Annai Indra Nagar'. Out of the six plots, plot Nos.9, 10 and 24 were conveyed to Padmanabhan and Anuradha, Radhakrishniyah and Vasudevan under three different sale deeds dated 20.03.1982, 05.05.1982 and 12.07.1982. It is the further case of the appellants that after conveying these three plots, the remaining three plots, namely, plot Nos. 11, 27 and 28 were in his possession and enjoyment. While so, on 13.04.2005, the 1st appellant executed a deed of settlement in favour of his wife, the 2nd appellant, and the same was registered as Document No.1673 of 2005 in the Office of the Sub Registrar, Velacherry. By virtue of the settlement deed, the 2nd appellant became the absolute owner of the said property including plot No.11 and the revenue records were transferred in her name. Thereafter, the 2nd appellant, with an intention to put up a construction in plot 11, the suit property, approached the Corporation of Chennai and after getting permission during the month of June, 2008, started the construction. When the construction was nearing the completion stage during the end of July, 2009, the respondents/defendants, who are the sons of late Panneer Selvam interfering with the same stating that the said property was purchased by their father and mother, viz., Panneer Selvam and Thanaseeli Panneer Selvam by a sale deed dated 21.04.1982 from the 1st appellant, registered as Document No.1566/1982 in the office of the Sub-Registrar, Joint II, Saidapet. Since the 1st appellant has not executed any sale deed in favour of the parents of the respondents, they were constrained to file the suit for the reliefs stated above. The appellants have also filed an application for interim injunction. The trial court, by order dated 22.12.2009 granted the interim injunction and ordered notice to the respondents. The respondents have contested the matter and filed a counter stating that their parents had purchased the property from the 1st appellant by a sale deed dated 21.04.1982 and since then, they are in possession of the suit property and in order to take away the property, the settlement deed alleged to have been executed by the 1st appellant in favour of his wife and hence, the appellants have not approached the Court with clean hands and the application is liable to be dismissed. (c) To prove the claim, the appellants have filed 11 documents marked as Exs.P-1 to P-11 and the respondents have filed 13 documents marked as Exs.R-1 to R-13. After hearing both sides and perusing the documents, the trial court has dismissed the application on a finding that the appellants have no prima facie case for granting interim injunction. Aggrieved over the same, the present appeal is filed by the appellants. 3. Learned Senior Counsel for the appellants contended that originally the appellants have purchased 47 cents of land and subsequently with other adjacent owners, plotted out the entire extent after developing the area and the appellants were given six plots in plot Nos.9, 10, 11, 24, 27 and 28, out of which, the 1st appellant sold plot Nos. 9,10 and 24 and the remaining plots were in his possession and thereafter, he executed the settlement deed in favour of his wife, the 2nd appellant for the remaining plots on 13.04.2005 and thereafter, the 2nd appellant started construction in plot No.11 after obtaining permission from the Corporation authorities. At this juncture only, the respondents/defendants had interfered in the construction claiming that there are owners of the property and the property was sold by the 1st appellant in favour of the parents of the respondents by a sale deed dated 21.04.1982. In this regard, the learned counsel for the appellants further contended that had the property been sold to the parents in the year 1982 itself, they would have utilised the same at this length of time. But, on the contrary, the evidence on record would show that all along the property was in the possession of the appellants. Under such circumstances, the court below ought to have granted the injunction in favour of the appellants by considering the possession and enjoyment of the property with the appellants. Moreover, it is the specific case of the appellants that the sale deed dated 21st April, 1982 said to have been executed by the 1st appellant in favour of the parents of the respondents is a created document. Hence, they filed the suit for a declaration that the sale deed dated 21.04.1982 is sham and nominal. Though the defendants have denied the case of the appellants, the entire issue can be decided only on completion of the trial. But the trial court in the interlocutory application stage, traversed beyond the limit and rendered a finding on the issue involved in the main suit stating that the signature of the 1st appellant found in the sale deed dated 21.04.1982 and the signature found in the document produced by the respondents from the Registrar's Office appear to be the same and on coming to such a conclusion, the trial court has dismissed the application on a finding that the appellants have not approached the court with clean hands. 4. In this regard, the learned senior counsel vehemently contended that at the interlocutory application stage, the trial court cannot go into the issues to be decided in the main suit and what the trial court ought to have seen is whether the appellants are in possession of the property. Had the trial court decided that question, it ought not to have dismissed the application. In support of his contention, the learned senior counsel also relied upon the judgments reported in (2004)1 SCC 769 (RAME GOWDA ..vs.. VARADAPPA NAIDU and (2005) 3 SCC 63 (DHARIWAL INDUSTRIES LTD ..vs.. M.S.S.FOOD PRODUCTS) and contended that there should be an injunction pending disposal of the suit. 5. Per contra, the learned counsel for the respondents contended that the sale deed dated 21.04.1982 is a genuine document. Though the 1st appellant had sold the property in favour of the parents of the respondents, since the plot was not utilised by the respondents for so many years, the 1st appellant with a fraudulent intention by taking advantage of the position of the land being vacant, executed the settlement deed in favour of his wife, the 2nd appellant dated 13.04.2005 and started the construction. In order to prove that the land was in possession of the respondents, the learned counsel for the respondents relied on the documents filed before the trial court. Inviting the attention of this Court to the Urban Land Tax payment receipt dated 31.08.2004 issued to the respondents, the learned counsel contended that even before the settlement deed was executed by the 1st appellant in favour of 2nd appellant, the property was in possession of the respondents. That apart, the learned counsel relied on the encumbrance certificate issued by the Office of the Revenue Sub-Registrar and contended that in the year 1982 totally 4 plots were sold by the 1st appellant, namely, firstly, in respect of the plot No.9 dated 20.03.1982 in favour of Padmanabhan and Anuradha, secondly, in respect of the plot No.11 dated 21.04.1982 in favour of Panneer selvam and Thanaseeli Panneer selvam, who are the parents of the respondents, thirdly in respect of the plot No.10 in favour of Radhakrishniyah and fourthly in respect of the plot No.24 in favour of Vasudevan. So far as the said four plots are concerned, except plot No.11, the persons, who purchased the plot Nos.9, 10 and 24 have started construction. Further, the learned counsel invited the attention of this Court to the signature of the 1st appellant in the said four sale deeds and contended that the signature of the 1st appellant appears to be the same and one Gandhilal Jain stood as a witness in all the four sale deeds. Thus, the learned counsel for the respondents contended that all the documents would show that the suit property had never been in the possession of the appellants after 21.04.1982, the date of sale in favour of the parents of the respondents and by taking advantage of the vacant possession of the suit property for a long time, the 1st appellant had executed the settlement deed in favour of his wife, the 2nd appellant in respect of the suit property and started the construction. Under such circumstances, the finding arrived at by the court below that the appellants have not approached the court with clean hands cannot be said to be incorrect. Further, the learned counsel relied upon the judgments reported in 1962-I-M.L.J.383 (ALAGI ALAMELU ACHI ..vs.. PONNIAH MUDALIAR), 1997 (III) CTC 567 (RENUKA DEVI ..vs.. D.MANOHARAN), AIR 2007 SC 1546 (A.V.PAPAYYA SASTRY ..vs.. GOVERNMENT OF A.P.) and 2009(14) SCALE 473 (DALIP SINGH ..vs.. STATE OF U.P.) in support of his contention. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. It is the case of the appellants that they were in possession of the suit property from 1982 onwards and by considering the continuous possession, the trial court ought to have granted an order of interim injunction in favour of them and the other issues in the main suit ought not to have been taken into consideration by the trial court at the time of deciding the interlocutory application. Per contra, the learned counsel for the respondents contended that by suppressing several facts, the appellants had approached the court with the following allegations that the appellants had never been in possession of the suit property; the said property was sold by the 1st appellants in favour of the parents of the respondents in 1982 and from the date of purchase the property was in their possession. Therefore, the order of dismissal has to be sustained. 8. In view of the rival submissions, now the question that arises in this appeal is, whether the appellants have a prima facie case for getting an order of interim injunction or whether the appellants have approached the court with clean hands ? 9. It is the specific case of the appellants that they are in possession of the property continuously and if an order of interim injunction is not granted, they would be put to irreparable loss and hardship and when the prima facie case is in their favour, the trial court ought to have granted injunction. It is necessary to see what are the documents filed on the side of the appellants to prove that they are in continuous possession and enjoyment. The sale deed dated 17.02.1992 was marked as Ex.P-1 on the side of the appellants and all other documents filed by the appellants are consequent to the settlement deed executed by the 1st appellant in favour of the 2nd appellant dated 13.04.2005. Absolutely, no document was filed by the appellants that they were in possession and enjoyment of the suit property between 1982 and 2005. On the contrary, it is the case of the respondents that the suit property was purchased by the parents of the respondents and that they were keeping the property vacant all along and that by taking advantage of the vacant position, the 1st appellant, in order to grab the property, executed the settlement deed in his wife's name in 2005. Moreover, on the side of the respondents, the encumbrance certificates and the urban land tax receipt were produced and marked as Exs.R-3,R-5 and R-6, which would reveal that there was a sale deed in favour of the parents of the respondents and the said sale deed was registered in the Sub- Registrar's office. A careful analysis of the encumbrance certificates and other documents would show that in the year 1982, totally four sale deeds were executed by the 1st appellant, which includes, plot No.11 in favour of the parents of the respondents on 21.04.1982. The sale deed in respect of plot No.9 was registered as Document No.1095/1982 in favour of Padmanaban and Anuradha, the sale deed in respect of plot No.11 was registered as Document No.1566/1982 in favour of Panneerselvam and Thanaseeli Panneerselvam, the sale deed in respect of plot No.10 was registered as Document No.1807/1982 in favour of Radhakrishniyah and the sale deed in respect of plot No.24 was registered as Document No.2845/1982 in favour of Vasudevan. All these sale deeds were executed between February, 1982 and July, 1982 and the name of the executant was mentioned as Gowtham Chand, the 1st appellant. Moreover, the urban land tax receipt dated 31.08.2004 produced on the side of the respondents would show that the tax has been paid by the parents of the respondents, even prior to the settlement executed by the 1st appellant in favour of the 2nd appellant. Further, in all the four sale deeds, one Gandhilal Jain stood as a guarantor. 10. A perusal of all those documents would show that the property is not in the hands of the appellant from 1982 to 2005, particularly in the circumstance when no document was produced by the appellants that they were in continuous possession of the suit property since 1982. Under such circumstances, I do not find any error in the finding rendered by the trial court by comparing the documents that the appellants have not approached the Court with clean hands. Though some decisions were relied upon by the learned senior counsel for the appellants to substantiate his contention that considering the possession and enjoyment, the trial court ought to have granted injunction and genuineness of the documents cannot be gone into at the stage of interlocutory application, I am of the opinion that those judgments could not be of any help to decide the issue involved in the appeal since the question whether the appellants have approached the court with clean hands or not would prevail over the other issues. Moreover, as found supra, no document was filed on the side of the appellants to prove their continuous possession since 1982. For that reason also, the judgment relied upon by the learned senior counsel for the appellants cannot be availed off. But, the documents filed on the side of the respondents would collectively go to show that the suit property is in their possession and enjoyment and by suppressing several factual aspects the appellants have approached this Court. In this regard, a reference could be made to the decision reported in 1962-I-M.L.J.383 (cited supra), wherein it has been stated as follows: "...Once the lower appellate Court found that the plaintiff's possession is wrongful, it immediately followed that such possession is not entitled to protection by an injunction, because such an order will be only assisting the plaintiffs in their wrongful possession. No Court can by its own order help a party who is found to be in wrongful possession as against the lawful owner. The fact that if the lawful owner were to institute a suit, he might possibly fail on the ground that he was in possession within twelve years of suit, could make no difference and that cannot, in my opinion, be a proper justification for the issue or an injunction virtually maintaining or advancing the wrongful act of the plaintiffs. I hold, therefore, that the lower appellate Court went wrong in granting an injunction against the first defendant". 11. In AIR 2007 SC 1546, it has been stated as follows: "25. It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent). 26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants". 12. In view of the above observations, I am of the opinion that the appellants were never in possession of the property since 1982 till 2005 and the subsequent possession from the year 2005 appears to be prima facie a wrongful possession by executing a settlement deed in favour of the 2nd appellant. Under such circumstances, I do not find any merit in the case of the appellants that had the property been owned by the respondents, they would have commenced the construction in the suit property. On the other hand, by putting up the construction through his wife by executing the settlement deed by the 1st appellant would show that the transaction was entertained only in order to defeat the legitimate right of the respondents. Hence, I am of the view that the appellants have no prima facie case and the balance of convenience is also not in their favour. In fine, I do not find any error in the order passed by the trial court. Accordingly, the civil miscellaneous appeal fails and it is dismissed. No costs. Consequently, connected M.P. is closed. gl To The Registrar, City Civil Court, Chennai