Periasamy Reddy-died and Others vs Kousalya

R. Karuppiah, J.—The sole defendant in the suit filed the second appeal challenging the judgment and decree passed by the Sub Court, Ranipet made in AS. No. 36 of 2002 dated 03.05.2002 confirming the judgment and decree made in O.S. No. 117 of 2000 dated 03.05.2002 on the file of District Munsif Court, Ranipet. During the pendency of the second appeal, the sole appellant died and other appellants 2 to 6 are impleaded as LRs of the deceased sole appellant/defendant. For the sake of convenience the plaintiff in the suit referred as respondent and the deceased defendant in the suit referred as first appellant and his LRs are referred as appellants 2 to 6.

The respondent/plaintiff filed the suit for permanent injunction and the case of the respondent is that the suit property was originally belonged to respondent''s husband one Munusamy and patta was also granted in his name. The above said Munusamy has been paying tax and cultivating the crops over the suit property till his death on 30.03.2000. Thereafter the respondent came into possession and enjoying the suit property as LRs of the deceased Munusamy. The deceased first appellant was stranger and no interest over the suit property but he attempted to trespass the suit property illegally on 13.10.2000 onwards. Hence the suit.

The deceased first appellant filed the written statement in which it is stated that the suit property was originally owned by two brothers viz., Munusamy and Subramani. The above said Subramani died and after his death, the Munusamy and son of deceased Subramani viz., Balaraman were in joint possession and enjoyment of the suit property as absolute owners. According to the deceased first appellant, the said Munusamy and Balaraman entered into a contract of sale with the deceased first appellant and executed an agreement of sale on 31.07.1988 by receiving an advance amount of Rs. 12,300/- agreeing thereby to sell the suit property and handed over possession of the same to the deceased first appellant. Accordingly, the deceased first appellant was in possession and enjoyment of the suit schedule property. The deceased Munusamy prior to his death, on 25.01.2000 received the balance sale consideration of Rs. 2,000/- from the first appellant on behalf of Balaraman and promised to execute the sale deed when Balaraman comes to village and subsequently, the said Munusamy died. When the deceased first appellant demanded to execute the sale deed, the said Balaraman and the LRs of the deceased Munusamy viz., Natarajan, Narayanan and Gundu refused to execute the sale deed. The deceased first appellant issued legal notices to them, but the said legal notices were returned as absent. In the meanwhile, the deceased first appellant had improved the land after the agreement of sale and laid pipelines for irrigation by spending more than Rs. 10,000/- and cultivating sugarcane and groundnuts. The deceased first appellant was always ready and willing to perform his part of contract of sale. But the respondent and the other LRs of deceased Munusamy evaded to perform their part of contract and hence, the respondent is not entitled to any relief. Further, the respondent has no locus standi to file the suit and the suit is also hit by non-joinder of necessary parties, since the Balaraman and other LRs of the deceased Munusamy are not added as party to the proceedings. The suit for permanent injunction alone without declaration prayer is not maintainable.

The Trial Court has framed four issues for consideration. In support of their respective claim, on the side of respondent/plaintiff examined one witness as PW1 and marked nine documents as Exs. A1 to A9 and on the side of deceased first appellant/defendant examined four witnesses as DW1 to DW4 and marked two documents as Exs. B1 and B2.

The trial Court discussed the above said oral and documentary evidence adduced on both sides and finally held that the respondent is entitled to the relief of permanent injunction as prayed for in the plaint and decreed the suit accordingly. Aggrieved over the above said findings of the trial Court, the deceased first appellant preferred the first appeal in AS. No. 36 of 2002. The first Appellate Court considered the oral and documentary evidence adduced on either side and finally confirmed the judgment and decree passed by the trial Court and dismissed the first appeal. Aggrieved over the concurrent findings of both the Courts below the sole defendant in the suit preferred the present second appeal before this Court. During the pendency of the second appeal, the first appellant who was sole defendant in the suit died and other appellants 2 to 6 were impleaded as LRs of the deceased first appellant.

The Second Appeal is admitted on the following substantial questions of law:-

(i) Whether the courts below have not erred in failing come to the conclusion that the possession should have been handed over to the defendant/deceased first appellant after huge amount of sale consideration had been received by the plaintiff/respondent?

(ii) Whether the Courts below, after having found that the plaintiff/respondent had not let in reliable oral evidence had not erred in not dismissing the suit? and

(iii) Whether the Courts below had not erred in not dismissing the suit on the ground that the plaintiff/respondent had created documents after the suit?

Heard the learned counsels appearing for the appellants and respondent and perused the materials available on records.

The learned counsel appearing for the appellants mainly contended that as per the agreement of sale relied on by the appellants, the deceased first appellant was in possession in the suit property and therefore the suit for bare injunction filed by the respondent is not maintainable. The learned counsel would further submit that the deceased first appellant was in possession in terms of Ex. B1/agreement of sale and the deceased appellant paid a sum of Rs. 12,300/- as part consideration on the date of sale agreement and on 25.01.2000 balance sum of Rs. 2,000/- was paid to the respondent husband and thus the deceased appellant had paid the entire sale consideration and he was always ready and willing to perform his part of the contract and hence, as per Section 53 of the Transfer of Property Act, the appellants are entitled to possession over the suit property.

Per contra, the learned counsel for the respondent would submit that the suit property was originally belonged to the respondent''s husband Munusamy and after his death, the respondent is in possession over the suit property. It is further submitted that the deceased first appellant or his LRs are not entitled to any right in the suit property and they are not in possession of the suit property. The learned counsel pointed out that the above said alleged Ex. B1/agreement for sale is not true and valid document and the appellants have not proved the same as genuine document. The learned counsel further contended that in the pleadings it is not stated as the deceased first appellant was in possession as a lessee in the suit property, but at the time of evidence, the deceased first appellant has deposed as if he was tenant in the suit, even prior to the agreement of sale. Therefore, the above said contention is also not true, since the suit property was in possession of the respondent''s husband/Munusamy and after his death the respondent is in possession and enjoyment over the suit property as LRs of the deceased Munusamy.

Admittedly, the appellants have not claimed any title over the suit property, but claimed only possession over the suit property as per Ex. B1/agreement of sale allegedly to have executed by respondent husband viz., Munusamy and his brother son Balaraman.

The learned counsel for the respondent would submit that the suit property was originally belonged to Munusamy and after his death as his wife, the respondent is in possession and enjoyment of the suit property and also denied the alleged agreement of sale. The appellants have admitted that the respondent husband having = share in the suit property, but by contending that the remaining = share belongs to Balaraman. Except the oral testimony of appellant, no other documentary evidence to prove that the suit property was originally belonged to Munusamy and his brother or his brother''s son Balaraman.

On the side of the respondent produced Ex. A1-Patta issued in the name of respondent husband viz., Kannan @ Munusamy, Ex.. A2-Chitta for Fasili year 1399-1408, Ex. A3-Adangal and Ex. A4-Kist receipts. The above said documents would prove that the property lies in the name of Munusamy alone. Further the respondent has produced the documents issued in the name of respondent/Kousalya viz., Ex. A8-Patta pass book and Ex. A9-Kist receipts paid by respondent revealed that after the death of Munusamy, in the revenue records transferred in the name of respondent. On perusal of all the above said documents would reveal that the patta was originally issued in the name of the respondent husband/Kannan@Munusamy and after his death patta was transferred in the name of the respondent and she alone paying tax in her name. It is also revealed that the suit property was originally in possession of the respondent husband and after his death the respondent is in possession over the suit property.

As rightly pointed out by the learned counsel for the respondent the appellants have failed to produce any documentary evidence to prove that the suit property originally belonged to the deceased Munusamy and his brother. Further the above said alleged Ex. B1/agreement for sale executed by the deceased Munusamy and Balaraman was denied by the respondent side. But, even after filing the present suit, the deceased first appellant has not filed any suit for specific performance to execute the sale deed in terms of the above said alleged Ex. B1/agreement of sale. No reason has been stated for not taking any steps to execute the sale deed in terms of the alleged agreement of sale. Further as rightly pointed out by the learned counsel for the respondent except oral evidence, there is no other documentary evidence to prove that the deceased first appellant has paid the balance sale consideration of Rs. 2,000/- on 25.01.2000 and no such endorsement has also been made in the Ex. B1/agreement for sale. Therefore, the above said alleged Ex. B1/agreement of sale has not been proved as genuine document.

Admittedly both the Courts below have held that the appellants have not proved that the suit property was originally belonged to the deceased Munusamy and his brother/Subramani, after the death of Subramani, both deceased Munusamy and Balaraman s/o. Subramani are entitled to the suit property. It is further held that the appellants have miserably failed to prove the genuineness of the alleged Ex. B1/agreement of sale. Both the Courts below have further discussed and held that the appellants have not proved the alleged part balance consideration of Rs. 2,000/- by adducing any documentary evidence or reliable oral evidence. As already discussed in the earlier paras both the Courts below have correctly discussed the above said facts and findings of both the courts below are not perverse findings.

The learned counsel for the appellants submitted that even prior to Ex. B1/agreement of sale, the suit property was given to the deceased first appellant by way of lease and on the basis of lease agreement the deceased first appellant was in possession. Even if the agreement of sale is not proved, the appellants are entitled to the possession as per lease agreement. As rightly pointed out by the learned counsel for the respondent, the appellants have not pleaded the above said contention in the written statement and deposed only at the time of oral evidence. Further no documentary evidence (or) oral evidence except the interested oral testimony of DW1 and therefore the above said contention cannot be accepted.

The next contention of the learned counsel for the appellants is that since the appellants have paid the entire sale consideration as per Ex. B1/agreement of sale, the appellants are entitled to possession as per Section 53(A) of the Transfer of Property Act. The learned counsel for the respondent submitted that the said alleged Ex. B1/agreement of sale has not been proved as genuine document. Even assuming that it is a genuine document, the appellants have not filed any suit for specific performance seeking the relief of execution of the sale deed as per Ex. B1/agreement of sale and also not proved their readiness and willingness to perform their part of contract. It is also pointed out that the appellants have not proved the payment of balance sale consideration of Rs. 2,000/-. In the said circumstances, the appellants are not entitled to claim right over the suit property u/s 53(A) of the Transfer of Property Act.

The learned counsel for the respondent in support of his contention relied on the decision of the Bombay High Court reported in AIR 1995 Bombay 113 Smt. Kamalabai Laxman Pathak and others V. Onkar Parsharam Patil and others wherein in paras 7 and 9, it is held as follows:

7...In this context, I need to emphasise that it is a necessary ingredient of Section 53A of the Transfer of Property Act that the terms of the written contract must be ascertainable with reasonable certainty. The emphasis on the words "reasonable certainty" presupposes that the Court should be in a position to judge the exact nature of the transaction that is the subject-matter of the document. This is the foundational basis for Section 53A of the Transfer of Property Act and in the absence of a document (and in the absence of secondary evidence) from which the Court can ascertain the terms of that document with reasonable certainty, it would be difficult to hold that the defence based solely on the doctrine of part-performance would assist the defendants.

As indicated earlier, Section 53A of the Transfer of Property Act will apply only in such cases where all the ingredients are satisfied and not merely where some of them are satisfied....

In the instant case, the appellants have not proved the Ex. B1/agreement of sale as a genuine document and not proved their readiness and willingness to perform their part of contract. Further, the appellants have not filed any separate suit for specific performance of the contract. Further, the appellants have not proved the alleged balance sale consideration of Rs. 2,000/- by oral and documentary evidence. Therefore, the appellants are not entitled to seek any relief u/s 53A of the Transfer of Property Act, since the above said conditions are not complied with by the appellants.

The next contention as stated by the appellants in the written statement that the suit property originally belonged to the deceased Munusamy and his brother deceased Subramani and after the death of Subramani, both Munusamy and Balaraman s/o. Subramani entered into an agreement of sale with the deceased first appellant. As per the agreement of sale, possession of the suit property was hand over to the deceased first appellant and in the said circumstances, suit for permanent injunction alone filed by the respondent is not maintainable on the ground of non-joinder of necessary parties viz., Balaraman and other LRs of Munusamy. As already stated supra, the appellants have miserably failed to prove the alleged Ex. B1/agreement for sale. Further, in the said agreement also it is not stated that the possession was handed over to the deceased first appellant by the Munusamy and Balaraman. As against the pleadings and written statement, the deceased first appellant deposed that even prior to the agreement of sale he was in possession as lessee and the above said fact also not proved. Therefore, the contention of the appellant is not correct.

The learned counsel for the respondent submitted that even assuming that the Balaraman also entitled to the suit property as co-owner, the present suit filed for permanent injunction by one of the co-owner viz., by the respondent as against the alleged trespassers and hence, the suit is maintainable as against the appellants who are trespassers. To substantiate his contention, the learned counsel relied on the decisions of this Court reported in

(i) Nachal and Another Vs. C. Arjunan and Another, (and)

(ii) S.A. Mohammed Sheriff, Dr. S.M. Abdul Kader and Maschmeijer Aromatics Pvt. Ltd. Vs. C.D. Meyyappan .

(iii) Nachal and Another Vs. C. Arjunan and Another, wherein in para 4 of the decision this Court held as follows:

The view expressed by the appellate Court is not correct in view of the fact that the plaintiffs have admitted the rights of the other co-owners in the suit properties. Insofar as the defendant is concerned according to the case of the plaintiffs, they are trespassers and they have no right in the properties. In such a situation, any one co-owner can file a suit as against the alleged trespassers and claim reliefs. This proposition has been laid down by a Division Bench of this Court in P. Thimmayya Vs. P. Siddappa,

(ii) S.A. Mohammed Sheriff, Dr. S.M. Abdul Kader and Maschmeijer Aromatics Pvt. Ltd. Vs. C.D. Meyyappan this Court held as follows:

The object of Order 1, Rule 8 is only to prevent multiplicity of litigations. Because when persons seek to represent a particular community or Association, the right and interest of others have to be taken into account and that is why publication is ordered and permission is also sought for to represent others. In such cases, there is a chance for multiplicity of litigation by persons who want to sue others, instead of the persons who seek to represent others. In a case of this nature, where the co-owners are family members, and when there is no dispute among themselves as to their equal shares, there is no necessity to file a petition to get permission to obtain leave of the Court to file the suit in a representative capacity....

A careful reading of the above said decisions would reveal that the present suit filed by the respondent seeking a relief of permanent injunction is maintainable. As rightly pointed out by the learned counsel for the respondent, that both the Courts below have fairly considered the evidence and had reached to a correct conclusion that the respondent is in possession of the suit property and entitled for permanent injunction. This court does not find any reason much less valid reason to interfere with the well considered findings rendered by both the Courts below.

The learned counsel appearing for the respondent submitted that the findings of both the courts below are not perverse findings and hence, no need to re-appreciation of the evidence in this regard by applying Section 100 Code of Civil Procedure. The learned counsel for the respondent in support of his above said contention relied on the following decisions of the Hon''ble Apex Court:

(i) In Maniar Ismail Sab and Others Vs. Maniar Fakruddin and Others, it is held as follows:

2...What the High Court had done is to reverse the findings of fact upon considerations which proceed entirely upon facts. This the High Court was not competent to do in a Second Appeal u/s 100 of the Code of Civil Procedure.

(ii) The Hon''ble Supreme Court in the decision reported in Ramaswamy Kalingaryar Vs. Mathayan Padayachi, observed as follows:

2...The High Court had thus no jurisdiction either to-assess the evidence or without re-assessing as such find any infirmity n it. The measure of proof is within the domain of the two courts of fact in the hierarchy. Sufficiency of proof can be no ground for the High Court to interfere in a finding of fact.

(iii) In para 21 of the authority reported in Navaneethammal Vs. Arjuna Chetty, it is held as follows:

In our considered view the lower appellate Court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by limitation. Even assuming that another view is possible on a re-appreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate Court was based on no material.

(iv) The Hon''ble Apex Court in the judgment reported in Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah,

It is obvious that u/s 100 CPC in Second appeal it was not open to the second appellate Court to re-appreciate the evidence and reject the evidence accepted by the Courts below on the question of possession.

(v) Para 11 of the judgment in Smt. Leela Soni and Others Vs. Rajesh Goyal and Others reads as follows

There can be no doubt that the jurisdiction of the High Court u/s 100 of the CPC (CPC) is confined to the framing of substantial questions of law involved in the second appeal and to decide the same. Section 101 CPC provides that no second appeal shall lie except on the grounds mentioned in Section 100 CPC. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the High Court to take a different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are erroneous it will be apt to refer to Section 103 CPC which enables the High Court to determine the issues of fact:

Power of High Court to determine issue of fact. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100.

From the above said settled principles of law laid down by Hon''ble Apex Court, Bombay High Court and Our High Court as relied on by the learned counsel for the respondent, it is clear that if the findings of both the courts below are correct findings and not perverse findings regarding the facts, the High Court should not interfere with the above said findings by applying Section 100 CPC.

In the instant case, the appellants have not proved the possession was handed over to the deceased first appellant, in the above said circumstances, the contention of the appellants is that the possession should have been handed over to the deceased first appellant, since he has paid huge amount of sale consideration cannot be accepted. Further, as rightly held by both the Courts below and as discussed in earlier paras, the respondent has proved the possession by reliable oral and documentary evidence and the above said documents are not created documents as contended by the appellants. This Court does not find any reason much less valid reason to interfere with the well considered finding rendered by the Courts below and the substantial questions of law are accordingly answered against the appellants. Therefore, the findings of both the Courts are to be confirmed and the second appeal is liable to be dismissed and the suit filed by the plaintiff is to be decreed as prayed for in the suit. In the result, the second appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.