Kotteswari and Others vs Murugesa Chettiar and M. Sarvanakumar

P.R. Shivakumar, J.—The plaintiffs, who failed to get a decree as prayed for in their suit and also failed in their attempt to challenge the

dismissal of the suit before the lower appellate Court, have come forward with the present second appeal against the concurrent judgments of both

the courts below non-suiting the appellants/plaintiffs for the reliefs sought for in their suit. The suit was filed after getting the leave of the Court to file

the suit in forma pauperis for a declaration that the sale deed dated 23.04.1984 executed by Radhakrishnan, the father of the appellants herein, in

favour of the second respondent/second defendant, was null and void and for a permanent injunction restraining the respondents/defendants from

interfering with the peaceful possession and enjoyment of the property described in the plaint ""C"" schedule, on the basis of their contention that the

said sale deed was obtained by fraud. After contest, the suit was dismissed by the trial Court (Court of District Munsif, Vellore) by a judgment and

decree dated 04.08.2010. On appeal, the learned First Appellate Judge (Subordinate Judge, Vellore) by a judgment and decree made in A.S.

No. 23 of 2011 dismissed the appeal and confirmed the decree passed by the trial Court dismissing the suit. Hence, the appellants have come

forward with the present appeal on various grounds set out in the memorandum of grounds second appeal.

The arguments advanced by Mrs. AL. Ganthimathi, learned counsel for the appellants are heard. The grounds of second appeal, copies of the

pleadings of the parties, copies of the judgments and decree made by the courts below and copies of the other documents produced in the form of

typed-set of papers are also taken into consideration.

Though the appellants/plaintiffs have chosen to provide three schedules titled ''A'' ''B'' and ""C"" schedules in the plaint, the dispute between the

parties is confined to the property described in plaint ""C"" schedule. A perusal of the plaint schedules ''A'' ''B'' and ""C"" will give an impression that

''a'' schedule is a larger property and ''B'' schedule is a part of the same and in turn property described in ""C"" schedule is a part of the property

described in ''B'' schedule. Admittedly, the sale deed in question, namely the sale deed dated 23.04.1984, was executed by Radhakrishnan, who

was the absolute owner of the subject matter of the said sale deed, which alone has been shown as the plaint ""C"" schedule property. From the

pleadings and the evidence adduced on both sides it is quite obvious that he had been highly indebted. The certified copies of the sale deed dated

23.04.1984, which is sought to be declared null and void, have been produced on both sides, and marked as Exs. A5 and B4 respectively. The

recitals found in the said sale deed will make it obvious that due to heavy indebtedness, Radhakrishnan had to sell the property to the second

respondent/second defendant under the said sale deed.

The appellants herein along with their mother Kotteswari (who is no more) chose to file the suit in the year 1992 for the above said reliefs

contending that the said sale deed was obtained by playing fraud upon Radhakrishnan as if he was executing a mortgage deed, when a party to a

document, admittedly executed by him or anybody claiming through him, challenges the validity of the document on the ground that the same was

obtained by fraud, the burden solely upon such person to prove it by sufficient and reliable evidence, In this case, though the sale deed was

executed on 23.04.1984, till 17.07.1989, when second respondent/second defendant through his lawyer issued a notice to the said

Radhakrishnan, neither Radhakrishnan nor the plaintiffs took a stand that the sale deed obtained on 23.04.1984 was one brought into existence by

playing a fraud on Radhakrishnan. After issuance of the said notice, a copy of which has been produced as EX. B21, a reply came to be issued

only on 16.05.1992 on behalf of the said Radhakrishnan contending that the sale was vitiated by fraud. Even thereafter, neither the said

Radhakrishnan nor the plaintiffs, after his death, took steps to file the suit for cancellation of the sale deed within the period of limitation. However,

the appellants and their mother have come forward with an ingenious plea that only after the notice issued by the second respondent''s lawyer, they

came to know that a sale deed had been obtained under the pretext of getting a mortgage deed. The said contention raised by the appellants herein

and their mother was found to be one not substantiated by evidence by the trial Court. For arriving at such a conclusion, the learned trial Judge has

given a number of reasons.

First of all, the person, who had executed the sale deed dated 23.04.1984 in the Sub-Registrar''s Office, did not take steps within three years

thereafter to challenge the sale deed as one obtained by fraud and seek cancellation of the same. Secondly, soon after the execution of the sale

deed, a lease deed came to be executed by Radhakrishnan in favour of the second respondent, as a lessee under the second respondent. The

rental agreement (lease deed) dated 25.04.1984 has been produced as Ex. B5. Subsequently, contending that the tenant, namely Radhakrishnan

committed willful default in payment of rent and also was guilty of sub-letting the second respondent filed R.C.O.P. No. 35 of 1992 on the file of

the Rent controller, Vellore for eviction. During the pendency of the eviction petition, Radhakrishnan died and the appellant and their mother got

impleaded as respondents. The Rent Control O.P. was contested raising pleas similar to the pleas made in the plaint. At last R.C.O.P. was

allowed and an order of eviction came to be passed. Copy of the counter filed in the said R.C.O.P. has been produced as Ex. B4. Certified copy

of the order of the Rent Controller dated 26.02.1996 has been produced as EX. B27. The copy of the decreetal order is EX. B28. The said order

of eviction was confirmed by the rent control appellate authority in R.C.A. No. 16 of 1996. Copy of the judgment of the Rent Control Appellate

Authority dated 14.03.2003 has been produced as EX. B29. The same was challenged in a revision before the High Court in C.R.P. No. 920 of

2003. The High Court also confirmed the order of eviction by dismissing the said revision by its order dated 11.07.2008 and a copy of the same

has been produced as EX. B30.

The appellants and their mother waited till the death of Radhakrishnan and thereafter, they chose to file the present suit from which this second

appeal has arisen. The 4th plaintiff, who figured as the sole witness (PW1) on the side of the plaintiffs, admitted in her testimony that she was not

aware as to how the sale deed was fraudulent; that she was not along with her father at the time of execution of the sale deed in question and that

she could not say in what condition and under what circumstances the sale deed was executed by her father. The relevant portion of her testimony

has also been quoted in the judgment of the trial Court. They are as follows:

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When there is such an admission made by the sole witness examined on the side of the plaintiffs, they have made an attempt to show that the

consideration cited in the sale deed was not genuine and the sale deed was not supported by consideration. They had miserably failed to

substantiate the same. On the other hand, the respondents/defendants have chosen to produce a number of promissory notes executed not only by

Radhakrishnan but also by Kotteswari and Visalakshiammal, along with Radhakrishnan in favour of one Murugesan and Ragini Ammal which

debts were discharged by the second defendant. Again the appellants were able to produce only a single demand notice directing payment of

water tax issued to Radhakrishnan on 20.09.1984 as EX. A12 and a single receipt for payment of electricity charges as Ex. A10 along with

Electricity Meter Reading Card for meter reading as exs. a8 and A9 in the name of Radhakrishnan. It is pertinent to note that immediately after the

sale made under the sale deed dated 23.04.1984, the property was leased out to Radhakrishnan. Hence, the appellants/plaintiffs cannot rely on the

fact that the meter reading card continued to remain in the name of Radhakrishnan as a ground for contending that the sale deed was obtained by

fraud. The single receipt for payment of property tax in March 1985 produced as Ex. All also will not substantiate the case of the appellants that

the suit sale deed was obtained by fraud or that the assessment of property tax continued to be in the name of Radhakrishnan. On the other hand,

the respondents/defendants have produced Ex. B15 to B19 to show that the assessment of property tax has been changed to the name of the

second defendant, in fact the 4th plaintiff, while deposing as PW1, has candidly admitted that right from the date of sale, the second defendant is

making payment of the property tax for the suit property. The relevant portion of her testimony in vernacular reads as follows:

(***)

All the above said factors were taken into consideration by the learned trial Judge to arrive at a conclusion that the plaintiffs, who had filed the

suit for declaring the sale deed to be null and void, had not proved their case that the sale deed had been obtained by fraud as contended by them.

The learned lower appellate Judge also, on a reappreciation of evidence, concurred with the said finding of the trial Judge. The finding of the trial

Court and the lower appellate Judge cannot be termed either defective or infirm and at no stretch of imagination the said finding can be termed

perverse.

Even as per the admitted case of the appellants/plaintiffs, Radhakrishnan and the plaintiffs came to know that there was a sale deed executed by

Radhakrishnan on 23.04.1984. They had not chosen to file the suit for cancellation of /setting aside the sale deed within 3 years thereafter. Though

an averment came to be included in the plaint that the said Radhakrishnan, while he was alive, filed a suit on 10.08.1992 itself, there is no proof

that he had filed such a suit, If at all such a suit had been filed by him, then the subsequent suit filed by the present appellants and their mother

would attract the bar under Order II Rule 2 C.P.C. The fact remains that the present suit came to be filed in the form of a pauper O.P. only on

20.06.1997, even though the cause of action was said to have arisen on 23.04.1984 and 11.08.1989, namely the date of execution of the disputed

sale deed and the date of alleged knowledge of fraud. The same is found from the certified copy of the decree of the trial Court. Therefore, even

as per the admission, the suit had been filed long after the expiry of the period of limitation. Learned counsel for the appellant made a meek attempt

to contend that such an issue was not raised by the respondents in their written statement and no issue was framed. The said attempt shall not

succeed because factually a clear plea that the suit was barred by limitation had been taken by the respondents/defendants in their written

statement. Furthermore, Section 3 of the Limitation Act mandates that the suit shall be dismissed by the Court if the Court finds that the suit has

been filed beyond the period of limitation, irrespective of the fact such a plea of limitation was taken in the written statement or not. when it is

abundantly clear from the pleading of the plaint itself that the suit had not been filed within the period of limitation from the date of arisal of cause of

action as per the plaint averments, it needs no further evidence to decide the question of limitation. On that ground also the second appeal is bound

to fail. For all the reasons stated above, this Court comes to the conclusion that there is no defect or infirmity in the judgment and decree of the

lower appellate Court confirming the decree of the trial Court dismissing the suit filed by the appellants and their deceased mother. No substantial

question of law is proved to have involved in the second appeal and the second appeal deserves dismissal at the threshold. Accordingly, the

second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.

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