IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.12.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA.No.442/2001 1.Appan M.Palanisamy (died) 2.C.Balusamy 3.P.Angathal 4.P.Manivannan 5.E.Tamilarasi Appellants Vs 1.Dravida Munnetra Kazhagam by its General Secretary Prof.K.Anbalagan Head Office Anna Ariyayalam, 268-269, Anna Salai, Chennai-18 2.Dr.S.Elango, B.D.S Respondents Prayer:- This Second Appeal is filed against the Judgement and Decree dated 21.11.2000 passed in AS.No.45/1999 by the learned II Additional District Judge, Erode, reversing the Judgement and Decree dated 14.9.1998 passed in OS.No.158/1995 by the learned Subordinate Judge, Dharapuram. For Appellants : Mr.A.K.Sridharan For Respondent : Mr.S.V.Jayaraman, SC for Mr.V.Ravi-R1 JUDGEMENT The 1st Respondent herein/plaintiff has filed the suit in OS.No.158/1995 for declaration that the sale deed dated 7.12.1994 is not maintainable in law and that the suit property belonged to the Plaintiff and to direct the Defendants to hand over possession of the same and for costs. 2. The case of the Plaintiff as set out in the plaint is as follows:- a. The Plaintiff, namely, Dravida Munnetra Kazhagam is the Political Party recognised by the Election Commission of India. After the demise of the leader Thiru.C.N.Annadurai in the year 1969, the members of the DMK Party of Vellakoil decided to build a Memorial House "epidt[ ,y;yk;", for which a Committee, namely, Anna Ninaivu Illa Committee, was formed, to which the 1st Defendant, namely, Appan M.Palanisamy who was the then District Secretary was elected as the President of the said Committee. In the first item of the suit properties, that is, in the Poramboke land, a building https://hcservices.ecourts.gov.in/hcservices/ was constructed and was named as "Anna Mandram". In order to have more space for the activities of the "Anna Mandram", the suit 2nd item was purchased in the name of the 1st Defendant herein, the President, Anna Ninaivu Illa Committee by a registered sale deed dated 13.5.1969. The sale consideration of Rs.1200/- was paid to the vendor by collecting the said amount from the public. b. In the year 1985, the 1st Defendant left the DMK Party and joined some other Political Party and hence, the 1st Defendant has no interest or right whatsoever in the suit properties, but, he has been in possession of the suit properties against law. Hence, it was decided to settle the matter amicably without resorting to court proceedings. In the mean time, some other members also left the Party. The 1st Defendant attempted to sell the suit properties to third parties. Hence, one Periasamy the then District Secretary issued a notice on 20.12.1994 published in a daily Newspaper, to which, the 1st Defendant issued a reply dated 22.12.1994 with false averments, but on 7.12.1994 itself the 1st Defendant sold the suit properties to the 2nd Defendant. The 1st Defendant permitted the 3rd Defendant to run a Hospital in the suit properties. The sale in favour of the 2nd Defendant is not valid and maintainable in law. Hence, the suit has been filed. 3. In the Written Statement filed by the 1st Defendant adopted by the 3rd Defendant, it is averred as follows:- a. The Plaintiff has no locus standi to file the suit. According to the Clause 27 of Bye-laws of DMK Party, all properties purchased by it must be in the name of DMK represented by its General Secretary. Since the suit properties stood in the name of the 1st Defendant, the Plaintiff has no right over the same. The 1st Defendant has been in possession and enjoyment of the suit properties for more than the statutory period. The second item of the suit properties is the individual property of the 2nd Defendant, as the 1st Defendant sold the same to the 2nd Defendant on 7.12.1994. The 1st Defendant is not a necessary party to the suit. The suit is also barred by limitation. In order grab money, the suit has been filed. The allegation that the suit properties were purchased by collecting amount from the public is false. The 1st Defendant has been in possession and enjoyment of the suit properties by letting out the same to others for rent. The Plaintiff has no right or interest in the suit properties. In such circumstances, the suit is not maintainable in law and liable to be dismissed. 4. In the Written Statement filed by the 2nd Defendant, it is averred as follows:- a. There is no document to show that the suit properties belonged to the Plaintiff. The suit properties were purchased in the name of the 1st Defendant. Ever since the purchase, the 1st Defendant has been in possession and enjoyment of the suit properties. In 1985, the 1st Defendant left the DMK Party. The 2nd Defendant purchased the suit properties on 7.12.1994 from the 1st https://hcservices.ecourts.gov.in/hcservices/ Defendant for a valid consideration. There is no cause of action to file the suit. In such circumstances, the suit is not maintainable in law and liable to be dismissed. 5. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A12 were marked and Pws.1 to 5 were examined. On behalf of the Defendants, Ex.B1 to B3 were marked and DW.1 and DW.2 were examined. 6. On consideration of the oral as well as the documentary evidence, the Trial Court dismissed the suit and the appeal filed as against the same filed by the Plaintiff was allowed, setting aside the Judgment and Decree of the Trial Court. As against the same, this Second Appeal has been filed. 7. This Second Appeal has been entertained on the following substantial questions of law:- (a)Is not the suit of the 1st Respondent barred by limitation? (b)Is not the suit hit under the Doctrine of "Law of Estoppel by conduct and law of Estoppel by deed"? (c)Does the 1st Respondent has got Locus standi to file suit against the Appellants herein after a lapse of 25 years? (d)Whether the 1st Appellant herein has perfected his title over the first item of the property by adverse possession as he enjoyed the suit property for more than the statutory period? 8. This court heard the submissions made by the learned counsel on either side and also pursed the material on record and the impugned judgements of the courts below. 9. The learned counsel for the Appellants put forth a main contention that the 1st Appellant (since deceased) was in possession of both the items of the suit properties right from the year 1969, viz. the first item a Poramboke land over which the building stands and the second item of the properties is a vacant land purchased by the first Appellant as per the registered sale deed dated 13.5.1969 and the first Respondent/Plaintiff, having not taken any steps to declare its title, is estopped from contending that the Plaintiff is the owner of the property. 10. Mr.A.K.Sridharan, the learned counsel for the Appellants would submit that though the 1st Respondent took up a plea that the building in the 1st item of the suit properties was put up out of the collections made by the 1st Respondent, no reliable documents were produced to show that the building was put up out of the collections so made and that on the contrary the Appellants enjoyed the properties for more than the statutory https://hcservices.ecourts.gov.in/hcservices/ period and the property tax was levied in favour of the 1st Appellant and he has been paying the electricity charges and the service connection also stands in his name. The learned counsel for the Appellants would strenuously contend that the 1st Respondent cannot claim any title on the basis of B-Memo in respect of the first item of the suit properties and the 2nd item being purchased by the 1st Appellant in his individual capacity, the 1st Respondent has no locus standi to file the suit against the Appellants after a lapse of 25 years. 11. In the course of arguments, the learned counsel for the Appellants put forward a contention that from the averments made in the plaint, it could easily be inferred that the Plaintiff was making a claim that the properties stood in the name of the 1st Appellant was held benami and as per Section 4(1) of the Benami Transaction (Prohibition) Act, 1988, no such suit could be filed to recover the possession of the property held benami by the 1st Defendant and further would submit that any suit to enforce such a right after coming into operation of Section 4(1) of the Act shall not lie. The learned counsel for the Appellants contended that no person can claim a property as being real owner even though the property stands in the name of some body else. 12. The learned counsel for the Appellants relied upon the observations of the Honourable Supreme Court rendered in the case of R.Rajagopal Reddy (Dead) by LRs and others Vs. Padmini Chandrasekran [1995-TLNJ-SC-1] which overruled the law laid down earlier by a Bench of Two Judges in the case of Mithilesh Kumari Vs. Prem Kumari Khare [1989-2-SCC-95]. The effect of prohibition contained in Section 4 of the Benami Act, was the subject matter of interpretation by the Honourable Supreme Court. In Mithilesh Kumari's case cited supra, the Honourable Supreme Court took the view that the prohibition in Section 4 would apply even to proceedings pending on the date on which the Act came into force. The said view was reconsidered by a larger Bench of Three Judges of the Honourable Supreme Court in R.Rajagopal Reddy's case cited supra and it was held that the view taken in Mithilesh Kumari's case cited supra was erroneous and there was no provision made in the Benami Act for giving retrospective effect to the prohibition contained in Section 4 expressly, nor could such retrospective operation of the statute be held to be effective by necessary implication. 13. The learned counsel for the Appellants would contend that whether the suit was hit by the Benami Act was not considered by the courts below and therefore, the findings of the courts below becomes unsustainable. 14. On the other hand, Mr.S.V.Jayaraman, the learned senior counsel appearing for the 1st Respondent would point out that the Respondents neither raised any such plea before the courts below nor any issues framed in that regard and therefore, the applicability of Benami Act cannot be allowed to be raised for the https://hcservices.ecourts.gov.in/hcservices/ first time in this second appeal, that too, during the course of arguments. The learned senior counsel would submit that it is permissible for the parties to raise a new plea which arises on a pure question of law which goes into the root of the case provided that it is based on undisputed or proven facts. The learned senior counsel contended that it will be beyond the jurisdiction of the High Court under Section 100 of CPC to deal with a question of law for which there is no basis either in the pleadings, issues framed or in the questions actually adjudicated upon by any of the lower courts. 15. The learned senior counsel for the 1st Respondent placed reliance on the decision of the Honourable Supreme Court reported in 2009-1-CTC-376 [U.R.Virupakshaiah Vs. Sarvamma and another] to countenance his argument that this court should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reasons therefor and without giving a reasonable opportunity of hearing to the Respondents. 16. Section 100 of CPC provides that the Second Appeal would lie to the High Court from a decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case "involves a substantial question of law". It further provides that the memorandum of appeal shall precisely state the substantial questions of law involved in the appeal and the High Court on being satisfied that the substantial question of law is involved. Proviso to sub section 5 states that the questions of law framed at the time of admission would not take away or abridge the power of the High Court to frame any other substantial question of law which was not formulated earlier, if the court is satisfied that the case involved such additional questions after recording reasons for doing so. It is abundantly clear from the analysis of Section 100 of Code of Civil Procedure that if the appeal is entertained without framing the substantial question of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. The existence of substantial questions of law is the sine qua non for the exercise of jurisdiction under Section 100 of the Code. 17. However, the High Court would be at liberty to hear the appeal on any other substantial question of law, not earlier formulated by it, if the court is satisfied of two conditions, namely, (i) High Court feels satisfied that the case involves such question and (ii) records reasons for such satisfaction. To be 'substantial', a question of law must be debatable not previously settled by law of the land or a binding precedent and must have a material bearing on the decision of the case, if answered either way, in so far as the right of the parties are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. But, an entirely new point raised for the first time before this court is not a question https://hcservices.ecourts.gov.in/hcservices/ involved in the case. At no point of time, the issue regarding Benami was raised by the parties and no foundational facts are laid in the pleadings. Further, the parties were not put on notice on this aspect and no opportunity had been given to the parties to meet out this new plea. In the face of absence of clear pleadings and evidence on record, the question of Benami, a new plea raised for the first time before this court cannot be entertained. 18. In the instant case, it is the categoric case of the 1st Respondent that after the demise of the leader Thiru.C.N.Annadurai, the members of the Dravida Munnetra Kazhagam Party of Vellakoil Division decided to build a Memorial House "epidt[ ,y;yk;" and a Committee was formed, to which the 1st Defendant, namely, Appan M.Palanisamy who was the then District Secretary, was elected as the President of the said Committee. In the first item, that is, in the Poramboke land, a building was constructed and was named as "Anna Mandram". It is their case that in order to have more space for the activities of Anna Mandram, the suit 2nd item was purchased in the name of the President, Anna Ninaivu Illa Committee by a registered sale deed dated 13.5.1969. The sale consideration of Rs.1200/- was paid to the vendor by collecting the said amount from the public. 19. So their categoric case is that the properties were acquired in the name of the President, Anna Ninaivu Illa Committee, as it is the practice prevailing at that point of time to purchase properties in the name of the President. According to the Plaintiff, the property was purchased for the benefit of Anna Ninaivu Illam and not in the individual capacity of the 1st Defendant. At this juncture, it is relevant to refer to the recitals made in Ex.A1 sale deed which clinches the issue in this case and reads as under:- "1969k; tUlk; nk khjk; 13k; njjp jhuhg[uk; jhYf;fh bts;sf;nfhtpy; fpuhkk; f!;gh bts;sf; nfhtpypypUf;Fk; mz;zh epidt[ ,y;yf; fkpl;of;fhf c& fkpl;oj;jiyth; cj;jkghisak; fpuhkk; ehfkehaf;fd; gl;oapypUf;Fk; Kj;Jrhkp ft [z;lh; kfd; K/gHdpr;rhkpf;F jhuhg[uk; jhYf;fh bts;sf; nfhtpy; fpuhkk; brk;khz;lk;ghisaj;jpypUf;Fk; fh';nfa ft[z;lh; kfd; tpahghu $Ptdk; Kj;Jr;rhkp Mfpa ehd; vGjpf;bfhLj;j fhypapl Rj;jf;fpiua rhrdk;/@ 20. Even in the preamble portion of sale deed it is clearly recited that the property was purchased by the Anna Ninaivu Illa Committee through its President M.Palanisamy, the 1st Defendant herein. Further, it is recited as found below:- "moapy; fz;l brhj;jpd; nghpy; ve;jtpjkhd tpy;y';fSk; ,y;iybad;W cWjp tH';Ffpnwd;/ moapy;fz;l fhypaplj;y; ePh; mz;zh epidt[ ,y;yk; rk;ge;jg;gl;l bghJf;fhhpa';fSf;Fk;. jpuhtpl Kd;ndw;w fHf rk;ge;jkhd fhhpa';fSf;Fk; cgnahfg;gLj;jpf; bfhs;s ntz;oaJ/ kw;w fhhpa';fSf;F cgnahfg;gLj;jf; TlhJ" 21. The above said recital clearly indicates that the suit https://hcservices.ecourts.gov.in/hcservices/ property was purchased by the said committee for the benefit of the Anna Ninaivu Illam and for carrying out the affairs of the said Ninaivu Illam and also for carrying out the affairs of Dravida Munnetra Kazhagam Party. There is no indication whatsoever in Ex.A1 sale deed that the property was purchased by the 1st Defendant in his individual capacity. 22. Admittedly, at the time of purchase, the 1st Defendant was the President of Anna Ninaivu Committee and was also the District Secretary of Dravida Munnetra Kazhagam Party of Vellakoil Division. The evidence of PW.1 to PW.5 who are the members of the Dravida Munnetra Kazhagam Party of Vellakoil is to the effect that the Anna Ninaivu Illa Committee still existed. There is no contra evidence to the above said evidence. DW.1 the wife of the 1st Defendant disclaims knowledge about the sale deed Ex.A1. She admitted in her evidence that the 1st Defendant was very much present in the court when DW.1 was examined, but he has not chosen to get into the witness box. Though it was stated that the 1st Defendant suffered paralytic attack, but there is no medical evidence to prove that he was not in a position to speak. 23. Merely because, in EX.A1 there is a recital that the purchaser should enjoy the property "g[j;jpu bgsj;jpu ghuk;ghpa", it will not lead to a presumption that the property was purchased by the 1st Defendant in his individual capacity. A careful scrutiny of Ex.A1 in its entirety would only show that the property was purchased by the Anna Ninaivu Illa Committee for the benefit of the said Committee in the name of the President, the 1st Defendant herein. 24. In the said circumstances, the burden shifts to the 1st Defendant to show that the same was purchased in his individual capacity. It will not be unreasonable to say rather it would be legitimate to say that it was for the 1st Appellant to establish that the property was his personal property and not that of Plaintiff. This the 1st Appellant has not proved. There is no evidence to show that the 1st Defendant had definite sources to purchase the property and the sale consideration was paid out of his own funds. There is no document worth of credence either to show the resources for his purchase or means to show that the sale consideration was paid by him. 25. One other important circumstance which weighed the first appellate court to hold that it was purchased by the Anna Ninaivu Illa Committee is that the original document Ex.A1 was only with the Head Quarters of the Main DMK Office and at no point of time, it was with the 1st Defendant . There is no explanation from the 1st Defendant as to how and why the custody of the document was with the Plaintiff. Admittedly, no steps were taken by the 1st Defendant even after he defied his party to get the original sale deed from the party Head Quarters. If really the property was his personal property, then there is no reason for the 1st Defendant to allow the Plaintiff to have the custody of the document. 26. There is one other crucial point to be noted in this https://hcservices.ecourts.gov.in/hcservices/ case is that in Ex.A1 sale deed, the boundary recitals in respect of Item 2 is mentioned as South of Anna Mandram. Like wise, in the later sale deed Ex.B1 by which the 1st Defendant has transferred the property by way of sale in favour of the 2nd Defendant, the northern boundary is shown only as Anna Mandram. If the 1st item belonged to the 1st Appellant/1st Defendant, in the boundary recitals, it must have been mentioned as that of property belonging to the 1st Defendant. This also supports the case of the Plaintiff that they are the owner of both the items of the properties. 27. It is contended by the learned counsel for the Appellants that the suit filed by the Plaintiff is barred by limitation. At the outset, it is to be pointed out that the Plaintiff had proved its title to the suit property. Under the Act 65 of the Limitation Act, there is no need for the Plaintiff to prove possession by him within 12 years prior to the suit, since the suit is based on title. It is for the Defendants setting up the defence of adverse possession to establish such possession for the statutory period. In the instant case, though the Appellants claimed to be in possession of the 1st item of the property, but there is no document to prove the same. As already discussed in both the documents, the suit 1st item is referred to as Anna Mandram. It cannot be said that the 1st Appellant was not conscious of such boundary recital as there is absolutely no material to infer such thing. It is not the case of the Appellants that the said boundary recitals is incorrect one. On the other hand, electricity connection to Anna Mandram has been given and Ex.A7 indicates that the deposits and other charges were paid only by Anna Mandram. The patta for the 2nd item is assigned in favour of Anna Ninaivu Illa Committee represented by its President, the 1st Defendant herein. 28. The evidence discloses that the 1st Defendant had shifted his loyalty to Anna Dravida Munnetra Kazhagam in the year 1984, but till such time he was the President of Anna Ninaivu Illa Committee and also the District Secretary of Dravida Munnetra Kazhagam, Vellakoil. Therefore, the inference that could be drawn is that he was holding the property in trust for the Plaintiff. According to the 1st Respondent/ Plaintiff, they were taking steps to recover the property from the 1st Defendant. In 1994, one N.K.K.Periasamy, Person In-charge of Periyar District Dravida Munnetra Kazhagam has given a public notice on 19.12.1994 published in a Daily Newspaper that the 1st Defendant has no connection to the suit property. The suit has been filed on 30.6.1995. 29. Under Act 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest thereon based on title can be constituted within a period of 12 years calculated from the date when the possession of the Defendant become adverse to the Plaintiff. A person who pleads adverse possession must show by clear and unequivocal evidence that the possession was hostile to the real owner. Admittedly, no documents have been filed by the Defendants and I am satisfied that the Appellants have not been https://hcservices.ecourts.gov.in/hcservices/ able to discharge the onus cast upon them in support of their claim of adverse possession. 30. In view of the reasons stated above, I am of the considered view that the lower Appellate Court has recorded the findings on proper appreciation of materials on record and the conclusion arrived thereunder cannot be said to be erroneous in any manner. The substantial questions of law are answered against the Appellants. 31. In the result, this Second Appeal is dismissed. However, in the circumstances of the case, there will be no order as to costs. -sd/- Asst. Registrar / TRUE COPY / Sub-Assistant Registrar ( Statistics / C.S. ) High Court, Madras - 600 104. Srcm To: 1.II Additional District Judge, Erode. 2.The Subordinate Judge, Dharapuram. 3.The Record Keeper, VR Section, High Court, Madras. +1 CC to MR.A.K.SRIDHARAN, ADVOCATE SR 89925 SA.No.442/2001 MDR (CO) ksv 14.03.2011 https://hcservices.ecourts.gov.in/hcservices/