Lakshmi, Elango and Eswari vs Karuppathal @ Sadayammal and Nallammal

P.R. Shivakumar, J.—The submissions made by Mr. S. Anand Chandrasekar, learned Counsel for the Appellants were heard. The grounds of appeal, judgments of the courts below and other papers produced in the form of typed-set of papers were also perused.

The Defendants in the original suit O.S. No. 243 of 2007, on the file of the District Munsif Court, Oddanchatram are the Appellants herein. The Respondents herein filed the said suit as Plaintiffs for declaration of their alleged title in respect of the suit property, for recovery of possession and for costs.

The Respondents herein/Plaintiffs contended that their mother Kumarayee Ammal was the owner of the suit property and on her death, the same devolved upon them. The further case of the Respondents herein/Plaintiffs is that they entrusted the suit property to Arumugam, late husband of the first Appellant; that the said Arumugam who was thus put in permissive possession managed the suit property on behalf of the Respondents herein/Plaintiffs; that about six months prior to the issuance of pre-suit notice the said Arumugam started claiming adverse possession and chose to issue a reply to the notice issued by the Respondents/Plaintiffs claiming extinguishment of the title of Kumarayee Ammal; that he also falsely claimed to have been put in possession of the suit property pursuant to an alleged agreement for sale; that subsequently he died about four months prior to the filing of the suit leaving the Appellants/Defendants as his legal heirs and that hence, they were constrained to file the suit for the above said reliefs.

It is not disputed that the suit property belonged to the mother of the Respondents. On the other hand, the Appellants/Defendants took a stand that the mother of the Respondents executed a sale agreement agreeing to sell the suit property to Arumugam, late husband of the first Appellant, for a sum of Rs. 25,500/-; that Ex.B1 was the said agreement executed on 28.09.1992; that at the time of entering into the agreement itself, the parent deed under which Kumarayee Ammal had purchased the property in 1983 was also handed over to Arumugam besides putting him in possession of the suit property in part performance of the contract; that as such the said Arumugam and after his death, the Appellants were in continuous possession and enjoyment of the property in their own right without any hindrance from any source and that hence, they had perfected title by adverse possession. It was also contended by the Appellants/Defendants that since the said Arumugam was put in possession of the suit property in part performance of Ex.B2-Agreement, his possession was legally protected u/s 53-A of the Transfer of Property Act even against the legal heirs of Kumarayee Ammal, namely the Respondents herein, and that for that reasons also, the suit for recovery of possession must fail.

Based on the pleadings, the trial court framed four issues to the following effect:

Whether the claim of title by the Plaintiffs can be sustained?

Whether the claim of title by the Defendants can be sustained?

Whether the relief sought for by the Plaintiffs can be granted?

To what other reliefs, the Plaintiffs are entitled to?

The first Plaintiff figured as the sole witness(P.W.1) on the side of the Plaintiffs and seven documents were marked as Ex.A1 to Ex.A7. The second Defendant figured as D.W.1 and another Arumugam, the attestor of Ex.B2 was examined as D.W.2. Four documents were marked as Ex.B1 to Ex.B4 on the side of the Defendants.

The learned Trial Judge, after considering the evidence brought before it, came to the conclusion that the suit property belonged to the Respondents herein/Plaintiffs; that the claim of title by the Appellants/Defendants could not be sustained and that the Respondents/Plaintiffs would be entitled to the reliefs of declaration of title and recovery of possession. An appeal preferred against the above said judgment and decree of the learned Trial Judge was dismissed by the learned Appellate Judge, namely, learned Subordinate Judge, Palani, by judgment dated 27.09.2010. Upholding the decree passed by the trial court and confirming the judgment of the trial court in all respects, the lower appellate court has dismissed the appeal. Aggrieved by the same, the present second appeal has been filed.

Though for convenience sake, the brief facts have been narrated supra, this Second Appeal can be disposed of on a short point itself. The Respondents/Plaintiffs had filed the suit for declaration of their title and for the recovery of possession from the Appellants/Defendants. When such a claim is made based on alleged title, the suit can be resisted either by denying the title of the Respondents/Plaintiffs or by setting up a right in the Appellants/Defendants better than that of the Plaintiffs. In this case, it is an admitted fact that the suit property belonged to the mother of the Respondents herein/Plaintiffs. The Respondents/Plaintiffs contended that the husband of the first Appellant was put in permissive possession to manage the suit property on behalf of the Respondents/Plaintiffs and that revoking the said permission, they sought recovery of possession. As per the plaint averments, since the Appellants tried to deny the title of the Respondents herein/Plaintiffs, they had to seek the relief of declaration also. When the title of the Plaintiffs'' mother is admitted and the Plaintiffs are admitted to be the legal heirs of the original owner, then their plea for declaration can be defeated only if the Defendants are able to prove better title in themselves. In this regard, the plea of the Appellants/Defendants is that Arumugam, husband of the first Appellant/first Defendant entered into an agreement for the purchase of the suit property with Kumarayee Ammal, the mother of the Respondents herein under Ex.B2 and in part performance of the contract under the said agreement he was put in possession of the suit property and that after the death of the said Arumugam, the Appellants/Defendants are in possession and enjoyment of the same. When the Appellants/Defendants trace the title to an agreement for sale in favour of the husband of the first Appellant, then the same tantamounts to admitting their possession under the agreement to be a permissive one. Under such circumstances, if they want to establish perfection of title by adverse possession, they have to necessarily plead that they started either denying the title of the original owner with whom Arumugam entered into an agreement for purchasing the property or started asserting openly a title in them to the knowledge of that owner which will have the effect of denial of title of the original owner. Then only, they can succeed in their attempt to substantiate their plea of perfection of title by adverse possession. The Appellants/Defendants have taken a plea that under Ex.B2, the husband of the first Appellant got possession of the suit property in part performance of the contract in the year 1992. They have not stated from which date, they started denying the title of Kumarayee Ammal or that of the Respondents herein after the death of Kumarayee Ammal and from which date they claimed absolute title of the property to the knowledge of Kumarayee Ammal and to the knowledge of the Respondents herein, after the death of the Kumarayee Ammal.

The learned Counsel for the Appellants would state that Arumugam died in the year 2006 and only thereafter, the Respondents chose to file a suit suppressing the fact that their mother had executed a sale agreement in favour of Arumugam. The relief of declaration and recovery of possession based on title are not discretionary reliefs which can be denied on the ground of suppression of fact. When suppression of fact is pleaded, the court has to consider whether the same will clinch the issue in favour of the other side and if the said fact is brought to the notice of the Court. In this case, assuming that there is an agreement and Ex.B2 agreement is true and that possession was handed over to Arumugam in part performance of the said contract; that alone shall not be enough to non-suit the Respondents herein/Plaintiffs for the relief of recovery of possession based on title.

The Appellants/Defendants, as pointed out supra, by admitting that their possession of the suit property was in part performance of an agreement for sale, they have admitted their possession to be permissive. They have not made necessary pleading and have failed to adduce necessary evidence as to the date from which their possession became adverse possession. In fact, the learned Counsel for the Appellants, during his arguments, has also admitted his inability to make any submission on the said aspect. Therefore, this Court is of the considered view that the plea of perfection of title by adverse possession was not properly raised by giving necessary particulars and that such a plea was not substantiated by letting in reliable evidence.

The next ground on which the Appellants/Defendants can defeat the suit, not in full but in part, is by exposing their right u/s 53-A of the Transfer of Property Act. This Court is of the considered view that for sustaining a plea of protection u/s 53-A of the Transfer of Property Act, the person claiming such protection cannot deny the title of the vendor under the agreement and cannot succeed in resisting the plea of the vendor under the agreement or their legal heirs for the relief of declaration of title. The consequential relief of recovery of possession can be resisted based on Section 53-A of the Transfer of Property Act. In Order to get protection u/s 53-A of Transfer of Property Act, one should prove three aspects. They are as follows:

1) There is an agreement forsal of immovable property inhis/her favour;

2) He/she was put in possession in part performance of the agreement for sale; and

3) He/she has performed or is ready and willing to perform his/her part of the contract under the agreement.

A pleading of the above said aspects and proof of the same are sine qua non for the successful resistance of the plea for recovery of possession. In this case, though the first two conditions are pleaded, the third and most important aspect has been omitted to be pleaded. No evidence has been adduced to prove the existence of the third condition also. In fact, across the bar, it is brought to the notice of this Court that till date, the Appellants/Defendants have not chosen to file any suit seeking specific performance of the contract for sale under Ex.B2. The Appellants have not pleaded and proved that the Appellants have performed or are ready and willing to perform their obligations under Ex.B2-agreement. Hence, they are bound to fail in their attempt to resist the suit for the relief of recovery of possession also. Therefore this Court does not find any substance in the second appeal.

For all the reasons stated above, this Court comes to the conclusion that the Second Appeal deserves to be dismissed at the admission stage itself. Accordingly, the Second Appeal is dismissed. Consequently, connected Civil Miscellaneous Petition is also dismissed. No costs.