IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21-07-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.Nos.487 and 488 of 2010 and M.P.No.1 of 2010 S.A.No.487 of 2010: 1.J.Mahendran 2.J.Viswanathan 3.J.Anabarasu 4.J.Sulochana 5.A.Anandan 6.A.Pattabhiraman .. Appellants/Defendant 1 to 6 Versus 1.K.Amudha Rep. By her Power of Attorney Holder Mr.E.Loganathan 2.V.Duraisamy .. Respondents/Plaintiff & 7th Defendant (R2 - has been set exparte in the Court below. Hence R2 is given up ) PRAYER: Appeal against the judgment and decree made in A.S.No.611 of 2006, dated 30.4.2009, on the file of the learned V Additional Judge, City Civil Court, Chennai, confirming the judgment and decree in O.S.No.3286 of 2003, dated 27.6.2006, on the file of the XIV Assistant Judge, City Civil Court, Chennai. For Appellants : Mr.T.R.Rajagopalan, Senior Advocate For Mr.G.Nagarajan For Respondents : Mr.S.Silambanan, Senior Advocate for Mr.P.Mahadevan S.A.No.488 of 2010: 1.A.Anandan 2.A.Pattabhiraman 3.J.Mahendran 4.J.Viswanathan https://hcservices.ecourts.gov.in/hcservices/ 5.J.Anabarasu 6.J.Sulochana .. Appellants/Plaintiffs 1 to 6 Versus 1.K.Amudha Rep. By her Power of Attorney Holder Mr.E.Loganathan .. Respondent/Defendant PRAYER: Appeal against the judgment and decree made in A.S.No.612 of 2006, dated 30.4.2009, on the file of the learned V Additional Judge, City Civil Court, Chennai, confirming the judgment and decree in O.S.No.3697 of 2003, dated 27.6.2006, on the file of the XIV Assistant Judge, City Civil Court, Chennai. For Appellants : Mr.T.R.Rajagopalan, Senior Advocate For Mr.G.Nagarajan For Respondent : Mr.S.Silambanan, Senior Advocate for Mr.P.Mahadevan COMMON JUDGMENT The second appeal, in S.A.No.487 of 2010, has been filed against the judgment and decree of the First Appellate Court, dated 30.4.2009, made in A.S.No.611 of 2006, on the file of the V Additional Judge, City Civil Court, Chennai, confirming the judgment and decree, dated 27.6.2006, made in O.S.No.3286 of 2003, on the file of the XIV Assistant Judge, City Civil Court, Chennai. 2. The second appeal, in S.A.No.488 of 2010, has been filed against the judgment and decree of the First Appellate Court, dated 30.4.2009, made in A.S.No.612 of 2006, on the file of the V Additional Judge, City Civil Court, Chennai, confirming the judgment and decree, dated 27.6.2006, made in O.S.No.3697 of 2003, on the file of the XIV Assistant Judge, City Civil Court, Chennai. 3. In the second appeal, in S.A.No.487 of 2010, the defendants 1 to 6 in the suit, in O.S.No.3286 of 2003, are the appellants. The first respondent in the second appeal was the plaintiff in the said suit. 4. The plaintiff had filed the suit, in O.S.No.3286 of 2003, on the file of the XIV Assistant Judge, City Civil Court, Chennai, praying for a decree of permanent injunction restraining the defendants 1 to 7 in the suit and their men from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property, and for a permanent injunction restraining the said https://hcservices.ecourts.gov.in/hcservices/ defendants from alienating the suit schedule property to any third party, pursuant to the agreement of sale, dated 6.3.2002, registered on the file of the Office of the Sub Registrar, VirugambakkaM, in Document No.2475/02. 5. In the second appeal, in S.A.No.488 of 2010, the appellants were the plaintiffs 1 to 6 in the suit, in O.S.No.3697 of 2003. The respondent was the defendant in the said suit. 6. The plaintiffs had filed the suit, in O.S.No.3697 of 2003, on the file of the XIV Assistant Judge, City Civil Court, Chennai, praying for a decree of declaration, declaring that the defendant has no right to interfere with the plaintiffs’ possession of the plaint schedule property, and for a permanent injunction restraining the defendant, her servants, men and agents from interfering with the plaintiffs’ possession of the plaint schedule property and for costs. 7. Since, the facts and circumstances of the case, in both the second appeals, are the same and common issues have been raised for consideration of this Court in the second appeals, a common judgment is passed. 8. The plaintiff in the suit, in O.S.No.3286 of 2003, namely, K.Amudha, who is the first respondent in the second appeal, in S.A.No.487 of 2010, was the defendant in the suit, in O.S.No.3697 of 2003. She had been shown as the respondent in the second appeal, in S.A.No.488 of 2010. 9. K.Amudha, the plaintiff in the suit, in O.S.No.3286 of 2003, had stated that she is the adopted daughter of late M.Somasundara Mudaliar. In the year 1941, late M.Somasundara Mudaliar had purchased the suit schedule property from one Arunachala Naicker. The suit property purchased by M.Somasundara Mudaliar is situated at No.103, Nesapakkam Village, in S.No.97, New T.S.No.44, Block No.3, with an extent of 72 cents, in Saidapet Taluk, Chengalpet District, within the Sub Registration District of Kodambakkam and the Registration District of South Madras. 10. The sale deed had been registered, as Document No.1170/1941, at the office of the Sub Registrar, Saidapet, Chennai. After the registration of the sale deed, M.Somasundara Mudaliar had taken possession of the land and he had developed the dry land, by planting guava and mango trees. M.Somasundara Mudaliar and his wife Kuppammal had three children. However, as none of them had survived, he had decided to adopt his nephew Kandasamy’s son Mohanasundaram @ Dakshinamurthy, on 7.2.1973. Later, he had also adopted his daughter, Amudha. After their adoption, both of them had started living with M.Somasundara Mudaliar. https://hcservices.ecourts.gov.in/hcservices/ 11. It had also been stated that M.Somasundara Mudaliar had purchased properties in many places. In the year, 1976, he had executed a Will and testament, dated 5.3.1976, at Chennai and had registered it, as Document No.10 of 1976, at the office of the Sub Registrar, T.Nagar, Chennai. In the Will, dated 5.3.1976, M.Somasundara Mudaliar had bequeathed all his properties to his brother-in-law’s son and his adopted son Mohanasundaram @ Dakshinamurthy, and his adopted daughter Amudha. By the said Will M.Somasundara Mudaliar had bequeathed Schedule–A land to Mohanasundaram @ Dakshinamurthy, and schedule-B land to Amudha. Kandsamy had been appointed as the executor of the Will. However, M.Somasundara Mudaliar had, specifically, wanted all his properties to be enjoyed by his wife Kuppammal, as life estate holder, without any right of alienation or mortgage. 12. The plaintiff had stated that by a Codicil, dated 4.3.1983, M.Somasundara Mudaliar had taken away some of the properties in schedule-B, without disturbing the disputed suit schedule property. Thereafter, Kandasamy, Administrator and Executor of the Will had moved the High Court of Judicature at Madras for the probation of the will, dated 5.3.1976 and the Codicil, dated 4.3.1983. By an order, dated 23.7.1986, the High Court had ordered the Will, as probated. Consequently, the plaintiff had got the property subject to the life estate given to Kuppammal. The plaintiff had further stated that Kuppammal, wife of late M.Somasundara Mudaliar, the testator had passed away, on 28.2.1994. Thereafter, the plaintiff has been in possession and enjoyment of the suit property, after the probation of the Will. Since, she was not in a position to maintain the property she had appointed one Loganathan, as the power agent to act on her behalf. 13. The plaintiff has further stated that the defendants 1 to 6, without showing the sale deed, date 14.7.1941, executed by Arunachala Naicker, in favour of M.Somasundara Mudaliar, and without mentioning about the probation of the Will, by an order of the High Court, dated 23.7.1986, had entered into an agreement to sell the property of the plaintiff, with one Duraisamy, Son of Vembuli Naicker, the 7th defendant. The said document, dated 6.5.2002, bearing Document No.2475/2002, had been registered at the office of the Sub Registrar, Virugambakkam, with the mala fide intention of grabbing the property in question. On coming to know about the said agreement, the plaintiff had instructed her power of attorney to issue a public notice in the newspaper, dated 23.6.2002, declaring that the plaintiff is the owner of the property and that the agreement entered into by the defendants is illegal and void. 14. In the written statement filed on behalf of the defendants, it had been stated that the averments and allegations made in the https://hcservices.ecourts.gov.in/hcservices/ plaint filed in the suit, in O.S.No.3286 of 2003, are false and incorrect. It had been submitted that it is correct to state that the suit property had been purchased by late M.Somasundara Mudaliar in the year, 1941. Further, the said sale is only a sham and nominal one, as it had not been intended to be acted upon. The said sale had been made, as there was some threat from third party purchasers and only with the intention of saving the property, the sale deed had been executed. The sale deed was never acted upon, and the possession of the property had not been handed over by late Arunachala Naicker. As such, the claims of the plaintiff that late M.Somasundara Mudaliar had taken possession of the suit land, and that he had developed the land by planting guava and mango trees are incorrect. In fact, the possession of the suit property continued to be with Arunachala Naicker, and after his death it has been with the defendants. The defendants have been in exclusive possession and enjoyment of the plaint schedule property, for a long time. 15. The agreement of sale entered into by the defendants 1 to 6, in favour of the 7th defendant, is a valid agreement. The said position is confirmed by the fact that the writ petition filed by the defendants, in the suit before the High Court of Judicature at Madras, in W.P.No.13982 of 1985, challenging the land acquisition proceedings for the Ramapuram Neighbourhood Scheme of the Tamil Nadu Housing Board, had been allowed by the High Court, by its order, dated 7.11.1991. Even otherwise, the defendants had acquired title in respect of the suit property, by adverse possession. Hence, the suit filed by the plaintiff is devoid of merits and therefore, it is liable to be dismissed. 16. Similar averments and allegations have been made by the parties in the plaint and in the written statement filed in the suit, in O.S.No.3697 of 2003, on the file of the XIV Assistant Judge, City Civil Court, Chennai, by the parties therein. 16. Based on the averments made on behalf of the opposing parties, the trial Court had framed the following points for consideration, with regard to the suit, in O.S.No.3286 of 2003: “1) Whether the suit property is in the enjoyment of the plaintiff? 2) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for by her? 3) What relief the plaintiff is entitled to?” 17. With regard to the suit, in O.S.No.3697 of 2003, the trial Court had framed the following issues for consideration: “1) Whether the plaintiffs are in possession and enjoyment of the suit property? https://hcservices.ecourts.gov.in/hcservices/ 2) Whether the suit is maintainable without a prayer for the relief of declaration of title. 3) Whether the plaintiffs are entitled to the relief of permanent injunction, as prayed for in the suit? 4) What relief the plaintiffs are entitled to?” 18. During the trial of both the suits taken up together by the trial Court, the power of attorney of the plaintiff, Amudha, in O.S.No.3286 of 2003, had been examined as P.W.1 and one Rajaram Pandiyan had been examined as P.W.2. Exhibits A-1 to A-23 had been marked on her side. 19. On the side of the defendants, in O.S.No.3286 of 2003, the 6th defendant Pattabiraman had been examined as D.W.1 and the adjacent land owners of the disputed suit property had been examined as D.W.2 to D.W.7. Exs.B-1 to B-25 had been marked on the side of the defendants. 20. In view of the submissions made on behalf of the parties concerned and on analyzing the evidence available, the trial Court had found that the defendants in the suit, in O.S.No.3286 of 2003, had not objected to the plaintiff in the said suit being represented by her power agent. The trial Court had further found that the property described in Ex.A-1, sale deed, dated 19.4.1938, and the suit property are one and the same. It was seen that the property had been purchased by Arunachala Naicker from one Sriramulu Reddiar, by way of a registered sale deed. 21. It was found from Ex.A-2, dated 4.6.1940, that it was a mortgage deed, which had been executed by Arunachala Naicker, in favour of Sivaram Naicker and Natesa Naicker. The trial Court had noted the recitals in Ex.A-2 and Ex.B-2, mortgage deed, dated 4.6.1940. It had also taken note of the fact that, by way of Ex.A-1 sale deed, Arunachala Naicker, had sold the property to M.Somasundara Mudaliar, by way of a registered sale deed, dated 14.7.1941, on the same day when the mortgage had been released. 22. From the recitals in the sale deed, dated 14.7.1941, the trial Court had found that the sale was not a sham and nominal one, as alleged by the defendants. It was found that the sale of the suit property was a valid transaction, for a valid consideration. The trial Court had found that no documents had been filed on behalf of the defendants to support their claim that the sale was a sham and nominal one. 23. The trial Court had also found that no steps had been taken to cancel the sale, dated 14.7.1941, either by Arunachala Naicker, or by his legal heirs, who are the defendants in the suit, even after the lapse of a number of years. Before the trial Court, Ex.A-4 will, https://hcservices.ecourts.gov.in/hcservices/ dated 5.3.1976, had been marked on behalf of the plaintiffs. The said Will had been executed by M.Somasundara Mudaliar in favour of the adopted daughter, the plaintiff in the suit, in O.S.No.3286 of 2003, and his adopted son Mohanasundaram @ Dakshinamurthy. Thereafter, on 4.3.1983, Ex.A-5 codicil had also been executed by M.Somasundara Mudaliar. Both the Will, dated 5.3.1976, as well as the Codicil, dated 4.3.1983, has been probated by an order of the High Court of Judicature at Madras, dated 23.4.1986, marked as Ex.A-7. 24. The trial Court had found that even after the execution of the Will and the Codicil by M.Somasundara Mudaliar, Arunachala Naicker, and his legal heirs had not raised any objection. In such circumstances, the trial Court had come to the conclusion that Ex.A-3 sale deed, dated 14.7.1941, is a valid document, as it was not a sham and nominal sale deed, as alleged by the defendants. 25. It had also been found that Pattabiraman, examined as D.W.1, had accepted that objections had not been raised, either by Arunachala Naicker, or by his legal heirs, who are the defendants in the suit, against the Ex.A-4 Will, dated 5.3.1976, and Ex.A-5 Codicil, dated 4.3.1983, executed by M.Somasundara Mudaliar. He had also accepted that the documents like tax receipts, patta, chitta and other revenue records had not been filed to substantiate their claims made on behalf of the defendants. 26. It had also been accepted that the persons, whose names were found in Exs.B-11 to B-14 were not connected with the suit. The trial Court had also found that, even though the defendants had claimed that they have been in possession and enjoyment of the suit properties, for a period of nearly 65 years, no documents had been filed to support their claims. Witnesses D.W.2 to D.W.5 and D.W.7 and D.W.8, examined on behalf of the defendants, had stated that they had not known about the sale deed in question, and that they had no knowledge about the possession of the suit property, by the defendants. 27. Further, the trial Court had found that the claims made on behalf of the plaintiff had been substantiated by sufficient evidence, both oral, as well as documentary. In such circumstances, the trial Court had decreed the suit, in O.S.No.3286 of 2003, in favour of the plaintiff in the said suit, by its judgment and decree, dated 27.6.2006, and dismissed the suit filed by the plaintiffs therein, who were the defendants in the suit, in O.S.No.3286 of 2003. 28. Aggrieved by the judgment and decree of the trial Court, dated 27.6.2006, the defendants in the suit, in O.S.No.3286 of 2003, had filed an appeal, on the file of the V Assistant Judge, City Civil Court, Chennai, in A.S.No.611 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 29. Aggrieved by the judgment and decree of the trial Court, dated 27.6.2006, the plaintiffs in the suit, in O.S.No.3697 of 2003, had filed an appeal, on the file of the V Assistant Judge, City Civil Court, Chennai, in A.S.No.612 of 2006. 30. The trial Court had passed a common judgment, dated 27.6.2006. However, two decrees, dated 27.6.2006, had been passed. By the decree, dated 27.6.2006, made in O.S.No.3286 of 2003, the suit had been allowed and by the decree, dated 27.6.2006, made in O.S.No.3697 of 2003, the suit had been dismissed. 31. During the hearing of the appeal, in A.S.No.611 of 2006, the appellants had filed a petition, under Order XLI Rule 27 of the Civil Procedure Code, 1908, in C.M.P.No.889 of 2008, to permit them to mark certain additional documents. The First Appellate Court had allowed the petition, based on which the appellants had marked Exs.B-26 to Ex.B-30, in support of their contentions. 32. The First Appellate Court had framed the following points for consideration: “1. Whether the appellants in both the appeals are entitled for the relief of injunction, as prayed for in O.S.No.3697 of 2003? 2. Whether the suit filed by the plaintiff in O.S.No.3286 of 2003 is liable to be dismissed? 3. Whether both the appeals are allowable or not?” 33. The First Appellate Court had noted that the appellants had claimed that the property of Arunachala Naicker was in their possession, as it had been mentioned, by the witnesses D.W.2 to D.W.7, that the property was located adjacent to their properties, and that Arunachala Naicker and his legal heirs, were in possession of the property in question. However, the First Appellate Court had found that the said claim had not been substantiated by sufficient evidence. It had also been noted that the appellants had claimed that, in view of Exs.B-10 to B-16, it was clear that Arunachala Naicker was in actual possession and enjoyment of the suit property, and after his death the appellants were continuing in possession and enjoyment of the said property. However, the First Appellate Court had come to the conclusion that the appellants had not been in a position to show that they are in actual possession and enjoyment of the suit property, after the death of Arunachala Naicker, in the year, 1980. 34. It had also been noted that the respondent in the first appeal had got the title to the suit property through her grand father, M.Somasundara Mudaliar, who had purchased the property from Arunachala Naicker, in the year, 1941 and subsequently, bequeathed https://hcservices.ecourts.gov.in/hcservices/ the said property, by way of a Will, marked as Ex.A-4 and the Codicil, marked as Ex.A-5, which had been duly probated, as seen from Ex.A-7. 35. The claim of the appellants that the sale deed, by which M.Somasundara Mudaliar had purchased the suit properties from Arunachala Naicker, had not been acted upon and that the possession and enjoyment of the property had always been with Arunachala Naicker, and after his death with the appellants had not been sufficiently substantiated, by acceptable evidence. 36. The First Appellate Court had also found, from the evidence available on record, that certain writ petitions had been filed before the High Court of Judicature at Madras, challenging the land acquisition proceedings and that the writ petitions had been allowed. However, due to the non-appearance of the land owners the title in respect of the lands in question, could not be determined. The First appellate Court had held that even though the appellants had claimed that the document executed by Aruanchala Naicker, in favour of M.Somasundara Mudaliar, was a sham and nominal document, it was clear that no steps had been taken, either by Aruanchala Naicker, or by the appellants in the first appeal, to set aside the said sale. It had also been noted that the documents, marked as Ex.A-1 to A-3, were more than 30 years old and that as per Section 90 of the Indian Evidence Act, 1872, the said documents were presumed to be genuine in nature. It had also been found that the appellants were not in a position to show that they were in possession and enjoyment of the suit property. 37. In such circumstances, the First Appellate Court had confirmed the findings of the trial Court, by its judgment and decrees, dated 30.4.2009, made in A.S.Nos.611 and 612 of 2006. Two separate decrees, dated 30.4.2009, had been passed, in A.S.Nos.611 of 2006 and A.S.No.612 of 2006, dismissing the appeals filed by the appellants. 38. Aggrieved by the judgment and decrees of the First Appellate Court, dated 30.4.2009, made in A.S.Nos.611 and 612 of 2006, two second appeals have been filed before this Court, in S.A.Nos.487 and 488 of 2010, raising the following questions, as substantial questions of law: 39. The appellants, in S.A.No.487 of 2010, had raised the following questions, as substantial questions of law: “1) Whether the Courts below are right in rejecting the claim of the appellant that Exhibit A1 Sale Deed is sham and nominal document and it was never acted upon. 2) Whether the Courts below are right in holding that the plaintiff is in possession in the suit property admittedly no oral and documentary evidences were filed https://hcservices.ecourts.gov.in/hcservices/ by the plaintiff to prove her possession? 3) Whether the Courts below are right in considering the Exhibit A12 is a valid document, while the NJ Stamp paper sold stands in the name of Sivakami, but in the stamp paper, the plaintiff’s name is mentioned as Purchaser of the stamp which obviously cooked up for the purpose of this case. 4) Whether the Courts below erred right in rejecting Exhibit B10 to B16 in all which the boundaries makes it very clear, the existence of Arunahcala Naicker’s land as one of the boundary. 5) Whether the Courts below are right in holding that the exhibits A20 and A21 the Corporation Tax Assessment is not a manipulated one while admittedly the cancellation was made after the 6th defendant Pattabiraman filed Writ Petition to cancel the document in question before this Hon’ble Court.” 40. The appellants, in S.A.No.488 of 2010, had raised the following questions, as substantial questions of law: “1) Whether the Courts below are right in rejecting the claim of the appellant that Exhibit A1 Sale Deed is sham and nominal document and it was never acted upon. 2) Whether the Courts below are right in holding that the defendant is in possession in the suit property admittedly no oral and documentary evidences were filed by the defendant to prove her possession? 3) Whether the Courts below are right in considering the Exhibit A12 is a valid document, while the NJ Stamp paper sold stands in the name of Sivakami, but in the stamp paper, the defendant’s name is mentioned as Purchaser of the stamp which obviously cooked up for the purpose of this case. 4) Whether the Courts below erred right in rejecting Exhibit B10 to B16 in all which the boundaries makes it very clear, the existence of Arunahcala Naicker’s land as one of the boundary. 5) Whether the Courts below are right in holding that the exhibits A20 and A21 the Corporation Tax Assessment is not a manipulated one while admittedly the cancellation was made after the 2nd plaintiff Pattabiraman filed Writ Petition to cancel the document in question before this Hon’ble Court.” 41. The learned counsel for the appellants had submitted that the judgment and decrees of the Courts below are contrary to law, weight of evidence and the probabilities of the case. The Courts below had failed to appreciate the oral, as well as the documentary evidence available on record, in its proper perspective. The learned https://hcservices.ecourts.gov.in/hcservices/ counsel had further submitted that the Courts below had erred in coming to the conclusion that no sufficient evidence had been shown to substantiate the claim of the appellants that