IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.10.2009 C O R A M THE HONOURABLE MR. JUSTICE M.JAICHANDREN S.A.NO.1512 OF 2000, S.A.NO.1647 OF 2000 AND S.A.NO.1651 OF 2000 Dhanapal .. Appellant in all the second appeals / Plaintiff Versus 1. Chandrasekharan (Deceased) 2. Mrs.Pattu (Respondent 2 is brought on record as L.Rs. of the deceased sole respondent vide order of this Court dated 23.8.2007 made in C.M.P.No.2252 of 2007 in S.A.No.1512 of 2000) (Respondent 2 is brought on record as L.Rs. of the deceased sole respondent vide order of this Court dated 9.10.2009 made in C.M.P.No.2232 of 2007 in S.A.No.1647 of 2000) (Respondent 2 is brought on record as L.Rs. of the deceased sole respondent vide order of this Court dated 23.8.2007 made in C.M.P.No.2230 of 2007 in S.A.No.1651 of 2000) .. Respondent in S.A.No.1512 of 2000 S.A.No.1651 of 2000 and S.A.No.1647 of 2000/Defendant - - - - - PRAYER IN S.A.No.1512 of 2000: This second appeal has been filed filed under section 100 of C.P.C., against the judgment and decree passed by the Sub Judge, Poonamallee, dated 28.4.2000, in the First appeal in A.S.No.53 of 1998, confirming the judgment and decree passed by the District Munsif Court, Poonamallee dated 31.8.1998, in O.S.No.272 of 1996. https://hcservices.ecourts.gov.in/hcservices/ PRAYER IN S.A.No.1647 of 2000: This second appeal has been filed against the judgment and decree passed by the Sub Judge, Poonamallee, dated 28.4.2000, in the First appeal in A.S.No.54 of 1998, confirming the judgment and decree passed by the District Munsif Court, Poonamallee, dated 31.8.1998, in O.S.No.338 of 1996. PRAYER IN S.A.No.1651 of 2000: This second appeal has been filed against the judgment and decree passed by the Sub Judge, Poonamallee, dated 28.4.2000, in the First appeal in A.S.No.55 of 1998, confirming the judgment and decree passed by the District Munsif Court, Poonamallee, dated 31.8.1998, in O.S.No.337 of 1996. For Appellant : Mr.G.K.R.Pandian For Respondents : Mr.S.Sridhar C O M M O N J U D G M E N T All the three second appeals have been taken up together for final hearing by the consent of the counsels, as they involve common issues. In view of the fact that the respondent had died, his legal heirs had been brought on record, as sole respondent by orders of this Court, dated 23.8.2009 and 9.10.2009. S.A.No.1512 of 2000: This second appeal has been filed against the judgment and decree, dated 28.4.2000, made in A.S.No.53 of 1998, on the file of the Sub Judge, Poonamallee, confirming the judgment and decree dated 31.8.1998, made in O.S.No.272 of 1996, on the file of the District Munsif Court, Poonamallee. 2. The defendant in the suit, in O.S.No.272 of 1996, is the appellant in the present second appeal. The respondent in the present second appeal was the plaintiff in the said suit. 3. The plaintiff had filed the suit, in O.S.No.272 of 1996, on the file of the District Munsif Court, Poonamallee, praying for a declaration to declare the plaintiff's title to the property prescribed in 'A' schedule, appended to the plaint, for recovery of vacant possession of the suit property, after removing the superstructure put up thereon; for mandatory injunction directing the defendants to demolish the wall and the superstructure put up by the defendant and for costs. 4. The plaintiff in the suit, who is the respondent in the present second appeal, had stated that the property described in 'A' schedule had originally belonged to one Hari Govindan, son of Narayan Nair. The defendant in the suit, who is the appellant in the present second appeal, had entered into an agreement of sale with the said https://hcservices.ecourts.gov.in/hcservices/ Hari Govindan, but he did not fulfil the contract, within the stipulated period. Instead, the defendant had trespassed into the 'A' schedule property, unlawfully, without having the sale deed executed in his favour from Hari Govindan. Therefore, Hari Govindan had filed a suit before the District Munsif Court, Poonamallee, in O.S.No.49 of 1977, against the defendant for recovery of possession of the property. The said suit was decreed, on 21.2.1977, giving the defendant one month time to vacate the property. Since, the defendant had not contested the suit, an ex-parte decree had been passed in the suit, by the District Munsif Court, Poonamallee. 5. While Hari Govindan was making arrangements to execute the decree, the defendant had been requesting for time to vacate the property, to avoid execution of the decree. While so, the defendant, who is related to the plaintiff, had persuaded the plaintiff to purchase the property in question from Hari Govindan. The defendant had also requested the plaintiff to permit him to continue his occupation of the property as a tenant under the plaintiff. On such persuasion, the plaintiff had purchased the property from Hari Govindan, under a registered sale deed, dated 12.8.1977. 6. Thus, the plaintiff had become the owner of the property mentioned in schedule 'A' of the plaint. The defendant had also attested the sale deed executed by Hari Govindan, in favour of the plaintiff. 7. The plaintiff had further stated that the defendant had executed the rent note for the 'B' schedule property, agreeing to pay a monthly rent of Rs.5/-. Thereafter, the defendant had continued to occupy the 'B' schedule property. Even though the rent note was for one year, the defendant had continued to occupy the property even thereafter. Therefore, the plaintiff had been requesting the defendant, orally, to vacate the property so that he could put up construction thereon. However, the defendant had not vacated from the property. 8. The plaintiff had further stated that the defendant is only a tenant under the plaintiff and that he had also executed a rent note, in respect of the property. In such circumstances, the defendant has filed a suit, in O.S.No.2315 of 1987, and had obtained an order of interim injunction. Since the defendant claims right to the entire 'A' schedule property, the plaintiff is to file a suit for declaration of his title to the suit 'A' schedule property and for recovery of possession of the same. Further, the defendant, having disputed the title of the plaintiff in the suit property, had lost his rights as a tenant, in accordance with Section 111(g) of the Transfer of Property Act, 1882. The notice, dated 20.12.1987, issued by the plaintiff in that regard had been received by the defendant, on 22.12.1987. However, he had not replied to the said notice. https://hcservices.ecourts.gov.in/hcservices/ 9. The plaintiff had further stated that even though the suit property bears S.No.195/2, of Korattur Village, the defendant had given a wrong survey number, in respect of the suit property, in O.S.No.2315 of 1987. The survey number given in the said suit is 155/2. Further, the defendant has been harassing the plaintiff by attempting to put up a wall in the suit property. In such circumstances, the plaintiff had filed the present suit, in O.S.No.272 of 1996. 10. In the written statement filed on behalf of the defendant, the averments made by the plaintiff, in his plaint, have been denied. It has been stated that the suit property had originally belonged to one Hari Govindan, of Perambur. The suit property had been lying vacant. Since the suit property is lying vacant, the defendant had trespassed into the said property during the year, 1972, and had put up a thatched hut in which the defendant and his family members were living. In the month of February, 1973, the owner of the suit property, namely, Hari Govindan, had attempted to evict the defendant from the suit property. However, the plaintiff was not successful in doing so. The defendant had also been paying the property tax. Thereafter, the defendant had put up a brick building for residential purpose in the year, 1974. While so, Hari Govindan, who was the owner of the suit land, had brought the plaintiff for inspecting the said property, in the month of July, 1977. Since the plaintiff is related to the defendant, he had full knowledge about the defendant's possession and enjoyment of the suit property and that the defendant had put up a construction therein. The defendant had also put up fencing around the suit land. In spite of knowing the said facts, the plaintiff had purchased the suit property from Hari Govindan, on 12.8.1977. In spite of having purchased the suit property in the year, 1977, by way of a sale deed, dated 12.8.1977, the plaintiff had not taken any legal action against the defendant till he had filed the suit, in O.S.No.2315 of 1987, for declaration, on the file of the District Munsif, Poonamallee. 11. The defendant had further stated that since he is in uninterrupted and peaceful possession and enjoyment of the suit property, for a long time, he had obtained title over the suit property by adverse possession. Further, the defendant had also dug a well in the suit property. While so, on 24.10.1987, the plaintiff had attempted to dispossess the defendant from the suit property. Thereafter, the defendant had filed a suit for declaration and for consequential injunction against the plaintiff, in O.S.No.2315 of 1987, on the file of the District Munsif Court, Poonamallee. 12. The defendant had further stated that the sale made by Hari Govindan, on 12.8.1977, in favour of the plaintiff, is sham and nominal and had not been acted upon. The alleged sale has been made only with an intention to defraud. The decree, made in O.S.No.49 of https://hcservices.ecourts.gov.in/hcservices/ 1977, on the file of the District Munsif Court, Ponnamallee, was not known to the defendant, as it was an ex-parte decree. It was revealed to the defendant only after the filing of the suit, in O.S.No.2315 of 1987. 13. The defendant had further stated that he had not requested for time to vacate the suit property. He had also denied the allegations of the plaintiff that he had agreed to pay the rent, in respect of the suit property. The defendant had not attested the sale deed, as alleged by the plaintiff, nor had he executed a rent note, as stated by him. The defendant continues to be in possession and enjoyment of the entire extent of the suit property. Since, the suit filed by the plaintiff is devoid of merits, it is liable to be dismissed. S.A.No.1647 of 2000: 14. This second appeal has been filed against the judgment and decree, dated 28.4.2000, made in A.S.No.54 of 1998, on the file of the Sub Judge, Poonamallee, confirming the judgment and decree, dated 31.8.1998, made in O.S.No.338 of 1996, on the file of the District Munsif Court, Poonamallee. 15. The plaintiff in the suit is the appellant in the present second appeal and the defendant in the suit is the respondent herein. 16. The plaintiff had filed the suit, in O.S.No.338 of 1996, praying for the relief of declaration to declare that the plaintiff had become the absolute owner of the suit property, by perfecting his title in the suit property, by adverse possession and for a consequential injunction restraining the defendant and others acting on his behalf, in any manner, interfering with the plaintiff's peaceful possession and enjoyment of the suit property. 17. The plaintiff in the suit in O.S.No.338 of 1996, has stated that the suit property had originally belonged to one Hari Govindan, of Perambur. The suit property had been lying vacant. Since the plaintiff was residing in the suit village for the past several years, he had trespassed into the suit property in or about the year, 1972 and he had put up a thatched hut in which the plaintiff and his family members were living. In the month of February, 1973, the owner of the suit property, namely, Hari Govindan, had attempted to evict the plaintiff from the suit property. However, the plaintiff had successfully prevented the same. The plaintiff had also been paying the property tax. Thereafter, the plaintiff had put up a brick building, for residential purpose, in the year, 1974. While so, Hari Govindan, who was the owner of the suit land, had brought the defendant for inspecting of the said property, in the month of July, 1977. Since, the defendant is related to the plaintiff, he had full knowledge about the plaintiff's possession and enjoyment of the suit https://hcservices.ecourts.gov.in/hcservices/ property and that the plaintiff had put up a construction therein. In spite of knowing the said facts, the defendant had purchased the suit property from Hari Govindan, on 12.8.1977. 18. The plaintiff had further stated that since he is in uninterrupted, continuous and peaceful possession and enjoyment of the suit property, for a long time, he had obtained title over the suit property, by adverse possession. Further, the plaintiff had also dug a well in the suit property. While so, on 24.10.1987, the defendant had attempted to dispossess the plaintiff from the suit property. Thereafter, the plaintiff had filed a suit for declaration and for consequential injunction against the defendant in O.S.No.338 of 1996, on the file of the District Munsif Court, Poonamallee. 19. In the written statement filed on behalf of the defendant, the averments made on behalf of the plaintiff, in his plaint, have been denied. It has been stated that the property described in the 'A' schedule had originally belonged to one Hari Govindan, son of Narayan Nair. The plaintiff in the suit, who is the appellant in the present second appeal, had entered into an agreement of sale with the said Hari Govindan, but he did not fulfil the contract, within the stipulated period. Instead, the plaintiff had trespassed into the 'A' schedule property, unlawfully, without having the sale deed executed in his favour. Therefore, Hari Govindan had filed a suit, before the District Munsif Court, Poonamallee, in O.S.No.49 of 1977, against the plaintiff for recovery of possession of the property. The said suit was decreed, on 21.2.1977, giving the plaintiff one month time to vacate the property. Since, the plaintiff had not contested the suit, an ex-parte decree had been passed in the suit, by the District Munsif Court, Poonamallee. 20. While Hari Govindan was making arrangements to execute the decree, the plaintiff had been requesting for time to vacate the property to avoid execution of the decree. While so, the plaintiff, who is related to the defendant had persuaded the defendant to purchase the property in question from Hari Govindan so that the plaintiff may continue in the property for some time, without any disturbance. On such persuasion, the defendant had purchased the property from Hari Govindan under a registered sale deed, dated 12.8.1977. The plaintiff had also attested the sale deed executed by Hari Govindan in favour of the defendant. The plaintiff had executed the rent note, for 2 cents, in favour of the defendant agreeing to pay a monthly rent of Rs.5/-. Although the plaintiff was regularly paying the rent for some years, he had failed to pay the rent, thereafter. 21. It has also been stated that the defendant has dug a well in the property, and he had also made arrangements to build a compound wall on all the sides. However, the plaintiff had prevented the defendant from putting up compound wall and he rushed to the Court to https://hcservices.ecourts.gov.in/hcservices/ file the suit. 22. It has also been stated that Hari Govindan had obtained a decree against the defendant for recovery of possession and later, when the defendant had purchased the property from Hari Govindan, the plaintiff has not only attested the said document before the concerned sub registrar but he has also executed the rent note in favour of the defendant. Further, being a tenant he is not entitled to question the title of the landlord. As such, the plaintiff cannot claim any right or title in the suit property by way of adverse possession. Further, the plaintiff cannot claim that the sale deed executed by Hari Govindan in favour of the defendant is sham and nominal. S.A.No.1651 of 2000: 23. This second appeal has been filed against the judgment and decree, dated 28.4.2000, made in A.S.No.55 of 1998, on the file of the Sub Judge, Poonamallee, confirming the judgment and decree, dated 31.8.1998, made in O.S.No.337 of 1996, on the file of the District Munsif Court, Poonamallee. 24. The plaintiff in the suit is the appellant in the present second appeal. The defendant in the suit is the respondent herein. The suit, in O.S.No.337 of 1996, had been filed praying for the relief of permanent injunction restraining the defendant and others representing him from putting up the roof of the hut in the suit property and to direct the defendant to pay the cost of the suit. 25. The plaintiff had stated that he is in possession and enjoyment of the land with an extent of 0.06 cents, situated in S.No.195/2 of Korattur village, from the year, 1972. He had also put up a hut in the suit property and he has been living therein, along with the other members of his family. On 6.8.1991, the defendant had filed a false complaint against the plaintiff before the Korattur police in an attempt to evict the plaintiff from the suit property. Due to heavy rains, the plaintiff was making arrangements to repair his hut, on 19.8.1991. However, the defendant, along with his men had prevented the plaintiff from doing so. Even though the plaintiff had lodged a complaint before the local police, no action had been taken against the defendant. If the plaintiff is prevented from renewing his hut, the plaintiff and his family members would be put to irreparable loss and hardship and they would not be able to use the hut to take shelter therein. In such circumstances, the plaintiff had filed the suit, in O.S.No.337 of 1996, on the file of the District Munsif Court, Poonamallee. 26. In the written statement filed on behalf of the defendant, it has been stated that the claims made by the plaintiff are false and frivolous and therefore, the suit filed by the plaintiff is https://hcservices.ecourts.gov.in/hcservices/ unsustainable, both in law, as well as on facts. The plaintiff had already filed the suit in O.S.No.2315 of 1987 (O.S.No.181 of 1992). The property in dispute, which is situated in S.No.195/2 of Korattur Village, had belonged to Hari Govindan, son of Narayan Nair, from whom the defendant had purchased the said property, under a registered sale deed, dated 12.8.1977. While Hari Govindan, was the owner of the suit property, the plaintiff had entered into an agreement of sale with him. However, he did not honour the contract, within the stipulated time. Instead, the plaintiff had trespassed into the property unlawfully. Therefore, Hari Govindan had filed a suit, in O.S.No.49 of 1977, in the District Munsif Court, Poonamallee, for recovery of possession. The said suit had been decreed, on 21.2.1977, whereby, the plaintiff had been given one month time to vacate. While so, the defendant had purchased the property from Hari Govindan, under the sale deed, dated 12.8.1977. The plaintiff had attested the said sale deed, as an identifying witness before the sub registrar concerned. On the same date, the plaintiff had executed a rent note for two cents, in favour of the defendant, agreeing to pay a monthly rent of Rs.5/-. Even though the plaintiff had been paying the rent for some time, he had failed to pay the rent, thereafter. Since, the plaintiff is only a tenant with the defendant, he has no right, whatsoever, to claim title in respect of the suit property, by adverse possession. In fact, the defendant had already filed a suit for declaration of his title and for recovery of possession, on the file of the Sub Court, Poonamallee, against the plaintiff, in O.S.No.411 of 1988, and it is still pending. In such circumstances, the suit filed by the plaintiff, praying for the relief of injunction is not maintainable in law. 27. In O.S.No.272 of 1996, the trial Court had framed the following issues for consideration: "(i) Whether the plaintiff had obtained his title in respect of the suit property? (ii) Whether the defendant had perfected his title in respect of the suit property? (iii) Whether the plaintiff is entitled to possession, as prayed for by him? (iv) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for by him? (v) To what relief the parties are entitled to?" 28. In O.S.No.337 of 1996, the trial Court had framed the following issues for consideration: "(i) Whether the plaintiff is entitled to permanent injunction, as prayed for? https://hcservices.ecourts.gov.in/hcservices/ (ii) To what reliefs, the plaintiff is entitled to?" 29. In O.S.No.338 of 1996, the trial Court had framed the following issues for consideration:: "(i). Whether the plaintiff is entitled to the relief of declaration of title, as prayed for? (ii). Whether the sale in favour of the defendant is only a nominal one and whether such a plea is open to the plaintiff? (iii). Whether the plaintiff is entitled to the relief of consequential injunction against the defendant?" 30. Since all the three suits were arising out of same facts and circumstances, the suits were tried together and a common judgment, dated 31.8.1998, was passed by the District Munsif, Poonamallee, by which, the suit filed by the respondent in the second appeals, namely, Chandrasekharan, in O.S.No.272 of 1996, had been allowed and the relief of declaration and recovery of possession, as prayed for therein had been granted. The suits filed by the appellant herein, namely, Dhanapal, in O.S.No.337 of 1996, and O.S.No.338 of 1996, had been dismissed. 31. The trial Court, based on Exhibit A1 to A6, had come to the conclusion that the respondent in the present second appeals had obtained a valid sale deed, dated 12.8.1977 (Exhibit A.1) in the presence of the appellant. The trial Court had held that the appellant continued to be in possession of the suit property, only as a tenant and therefore, he cannot claim title, in respect of the suit property, by way of adverse possession. 32. The trial Court had also found that the appellant had executed a tenancy agreement in favour of the respondent on the same date, on which the sale deed, dated 12.8.1977, had been registered. In the said tenancy agreement (Exhibit A.6), the appellant had accepted the ownership of the respondent, in respect of the suit property. The trial Court had found that the respondent had also paid the kists for the suit property and it had been marked as Exhibit A.10. The patta transferred in the name of the respondent had been marked as Exhibit A.7. 33. It had been further found that the appellant had agreed to pay the rent to the respondent in respect of the suit property and that the appellant had been residing in the said property, as a tenant. The appellant had been paying the rent to the respondent during the first few years of the tenancy, however he had stopped paying the rent, thereafter. Therefore, the respondent had been making demands to the appellant to pay the rental amounts, which were https://hcservices.ecourts.gov.in/hcservices/ due from the appellant. Since the appellant had not responded to the requests, the respondent had demanded that the appellant should vacate the suit property. While so, the appellant had filed the suit, on the file of the District Munsif Court, Poonamallee, claiming that he is the owner of the suit property, by way of adverse possession. He had also obtained an order of injunction restraining the respondent from interfering with his peaceful possession and enjoyment of the suit property. In such circumstances, the respondent had filed a suit for declaration of his title, in respect of the suit property and for recovery of possession of the said property and for a mandatory injunction to demolish the superstructure put up by the appellant therein. 34. It had also been found that the respondent had issued a notice, under section 111(g) of the Transfer of Property Act, 1882, on 20.12.1987, marked as Exhibit A.8. The acknowledgement of the said notice