IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.04.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN S.A.No.937 of 2003 1. Kannan (died) 2. Sakthi @ Sathiamoorthy 3. Amsavalli 4. Chandrika 5. Minor Gayathri 6. Minor Karthiga (Minors by mother and natural guardian Chandrika) ..Appellants/Defendants Vs Prema ..Respondent/Plaintiff Prayer:- This Second Appeal is filed under Section 100 of CPC against the Judgement and Decree dated 28.2.2001 passed in AS.No.64/2000 by the learned Subordinate Judge, Thriuvarur, confirming the Judgement and Decree dated 27.7.1999 passed in OS.No.69/1997 by the learned District Munsif, Thiruthuraipoondi. For Appellant : Mr.K.Vijaya Raghavan For Respondent : Mr.S.Sathiamurthy JUDGEMENT The Defendants/appellants 1 to 3, who lost their case before both the courts below, have filed this Second Appeal. During the pendency of this Second Appeal, since the 1st Appellant died, his legal heirs are brought on records as the Appellants 4 to 6 herein. 2. The case of the Plaintiff/Respondent is as follows:- a. The suit property comprised in S.No.152/1 of Thiruthuraipoondi Town and the site of the suit property belonged to the Thiruthuraipoondi Arulmigu Bhavaoushadeeswarar Swami Tirukoil and the Plaintiff acquired the suit property under the sale deed dated 14.6.1991 and from that date, the Plaintiff has been in possession and enjoyment of the same and the husband of the Plaintiff died before four years and the 3rd Defendant is the first wife of the husband of the Plaintiff and the Defendants 2 and 3 are the sons https://hcservices.ecourts.gov.in/hcservices/ through 3rd Defendant and since the Defendants trespassed into the suit property on 15.10.1995, the present suit has been filed. 3. The case of the Defendants is as follows:- a. The sale deed dated 14.6.1991 as alleged by the Plaintiff is not true and the Plaintiff in no way connected with the suit property. The Plaintiff has not purchased any property and in the suit property, the husband of the Plaintiff was running a Sweet Stall for more than 30 years. A sale agreement dated 9.4.91 was executed by the Vendor Krishnamurthy in favour of Jayaraman, the husband of the Plaintiff and an advance amount of Rs.40,000/- was received from the husband of the Plaintiff and before the execution of the sale deed, he died on 20.5.1991 and the balance amount was paid by the 3rd Defendant. But, with the help of the 1st Defendant, the sale deed was executed in favour of the Plaintiff and it is a benami transaction and hence, the Plaintiff is not entitled to recover possession of the suit property and the Defendants are the owners of the suit property and they had no knowledge about OS.No.432/91 and hence, the Judgement and Decree if any made in the said suit will not bind the Defendants and the contention of the Plaintiff that he is the second wife Jayaraman is not true and after the demise of the husband of the Plaintiff, the Defendants have been running the shop and they are not trespassers and Hence, the suit is not maintainable in law and the same is liable to be dismissed. 4. On the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, the Plaintiff had marked Exs.A1 to A3 and examined herself as PW.1. The Defendants had marked Exs.B1 to B16 and examined the 3rd Defendant as DW.1 and one Sekar, Rajendran, Abdulwahab and Ganesan as DW.2 to DW.5. 5. The Trial Court, after considering both the oral and documentary evidence, decreed the suit and the appeal filed by the Defendants as against the Judgement and Decree of the Trial Court was also dismissed by the lower Appellate Court. Hence, this second appeal has been filed by the Defendants. 6. This court, while admitting this second appeal, had formulated the following substantial questions of law:- (a) On the facts and circumstances, when the Plaintiff has no right in the site, whether the decree and judgement of the lower Appellate Court granting the relief of recovery of possession of building with site to Plaintiff sustainable in law? (b)Whether the Judgement and Decree of the lower Appellate Court are liable to be set aside for not treating the https://hcservices.ecourts.gov.in/hcservices/ building purchased by the Plaintiff as movable property? (c)When the Plaintiff had purchased the building alone situated in the site, was it legal for the courts below to grant delivery of possession of building with site from the Appellants? 7. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 8. Mr.V.K.Vijaya Raghavan, the learned counsel for the Appellants mainly contended that admittedly when the Plaintiff had no right in the site which belonged to the temple, the decree granted by the Trial Court, affirmed by the first appellate court for recovery of possession with site is erroneous and unsustainable in law. 9. On the other hand, Mr.S.Sathiamurthy, the learned counsel for the Respondent supported the judgements of the courts below and argued that the courts below have considered various aspects and also the oral and documentary evidence and granted the decree which does not suffer from any legal infirmity or perversity warranting interference by this court in the second appeal. 10. There is no dispute that the site of the property belonged to Bhava Oushadeeswara Swami Thirukoil. In the suit filed by the temple in OS.No.432/1991 against the Plaintiff and her vendor and also against the Sub Registrar, Thiruthuraipoondi and the District Collector, the sale deed executed by the Plaintiff's vendor Krishnamurthy in favour of the Plaintiff in respect of superstructure was upheld and the registration of the said document was allowed in respect of superstructure alone, however a decree was granted for permanent injunction restraining the vendor Krishnamurthy in executing the sale deed in respect of the site. Ex.A1 is the sale deed dated 14.6.1991 executed by the said Krishnamurthy in favour of the Plaintiff. The registration of the sale deed pertains to the superstructure alone and the same is evident from the said document itself. The same is extracted below:- @jpUj;Jiwg;g{z;o tl;lk; i&a{hp ngU:uhl;rp kd;w vy;iyf;Fl;gl;l uapyoj;bjUtpYs;sJk;. RS.No.159/1y; uapyoj;bjUt[f;F bjw;F. Rpf;fe;jh; mDnghf nfhtpy; kidf;F tlf;F. fjt[ vz;/56 filf; fl;olj;jpw;F fpHf;F. gf;fphprhkp filf;fl;olj;jpw;F nkw;F. ,jw;Fl;gl;lJk; ePsk;.; 14X11=154 rJuo kid jpUj;Jiwg;g {z;o mUs;kpF gtxsc&jP!;tu !;thkp njt!;jhdj;jpw;F brhe;jkhd !;jyj;jpypUe;J jpUj;Jiwg;g{z;o khtl;l chpikapay; ePjpkd;w mry; tHf;F vz;/432/91 kPJ 23/1/1995 njjpapy; gpwg;gpf;fg;gl;l epue;ju c&uj;Jf; fl;lisf;fpz';f gFjpg;gjpt kWj;jspf;fg;gLfpwJ/ 1995k; Mz;L $^iyj;jp';fs; 19k; ehs; ,uh/rr;rpjhde;jk;. rhh;gjpthsh;/@ https://hcservices.ecourts.gov.in/hcservices/ 11. According to the Plaintiff, the Defendants forcibly dispossessed the Plaintiff from the suit property taking advantage of her helpless position she was placed after the death of her husband. The Defendants relied upon Ex.B1 sale agreement dated 9.4.91, an unregistered document said to have been executed by the Vendor Krishnamurthy in favour of Jayaraman, the husband of the Plaintiff. The Trial Court has found that the execution of Ex.B1 is doubtful and unbelieved the evidence of DW.2 to DW.4 examined on the side of the Defendants to prove Ex.B1 unregistered sale agreement. The Trial Court has specifically found that Ex.B2 to Ex.B6 house tax receipts are subsequent to the trespass by the Defendants. Though Ex.B7 to Ex.B16 show that the Defendants are in occupation, but as rightly held by the courts below, they are in possession without any right in law. 12. The learned counsel for the Appellants contended that the Judgement and Decree of the courts below is not sustainable, as the Plaintiff has been granted relief for recovery of possession inclusive of site which admittedly belonged to the temple. I am unable to find any merit in the said contention, as the relief prayed for by the Plaintiff pertains only to the superstructure i.e. thatched superstructure having Door NO.56 of an extent of 154 sq.ft. in S.No.159/1. It is relevant to extract the description of the property mentioned in the schedule of the plaint which is given below:- @ehfg;gl;ozk; gj;jpug;gjpt[ khtl;lk;. jpUj;Jiwg;g{z;o Jizg; gjpt[ khtl;lj;ijr; nrh;e;j. jpUj;Jiwg;g{z;o efuhl;rpp vy;iyf;Fl;gl;l uapyoj; bjUtpy; g[y vz; 159.1y; uapyoj; bjUtpw;F bjw;F. Rpf;fe;jh; mDnghf nfhtpy; kidf;F tlf;F. fjt[ vz;/56 filf; fl;olj;jpw;F fpHf;F. gf;fphprhkp filf;fl;olj;jpw;F nkw;F. ,jw;Fl;gl;l 14X11=154 rJuo kidapy; mike;Js;s fjt[ vz; 55 cs;s Tiu filf;fl;olk;@ 13. The Plaintiff has specifically averred in her plaint that the site belonged to the temple. Her ownership to the superstructure is declared in the earlier suit in OS.No.432/1991 between the Plaintiff and the temple authorities and it is evidenced by Ex.A2 and Ex.A3, copy of the Judgement and Decree in OS.No.432/1991. Both the courts below have analysed the said evidence and arrived at a just conclusion that the Appellants/Defendants have no right to be in possession of the suit property and consequently granted the decree for recovery possession in favour of the Plaintiff. The said findings are consistent with the facts and evidence adduced and there is no perversity warranting interference by this court in this Second Appeal. Accordingly, the substantial questions of law are answered against the Appellants. https://hcservices.ecourts.gov.in/hcservices/ 14. In the result, this Second Appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To 1. The Subordinate Judge, Thriuvarur. 2. The District Munsif, Thiruthuraipoondi. 3. The Record Keeper, VR Section, High Court, Madras. + 1 c.c. to Mr. V.K. Vijayaraghavan, Advocate. S.R.No.27824. + 1 c.c. to Mr. S. Sathiamurthi, Advocate. S.R.No.27788. SA.No.937/2003 KLT (CO) GSK 08.06.2010. https://hcservices.ecourts.gov.in/hcservices/