Ramalinga Reddy v. Subbammal (deceased)

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 31.8.2009Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.1367 of 19941. Ramalinga Reddy2. Subba Reddy3. Krishna Reddy .. Appellantsvs.1. Subbammal (deceased)2. Mrs.Vatsala 3. Mrs.Ranganayagi4. Mrs.Kandamma 5. Mrs.Govindamma6. Mrs.Easwari7. Munibushanam (RR2 to 7 are brought on record as Legal representatives of the deceased sole respondent vide order of this Court dated 26.2.2007 made in C.M.P.Nos.10521 to 10523 of 1996) .. Respondents The Second Appeal has been filed against the judgment anddecree, dated 11.10.1993, in A.S.No.16 of 1990, on the file of theSubordinate Judge of Tiruvallur, confirming the judgment and decree,dated 6.2.1990, in O.S.No.346 of 1983, on the file of the DistrictMunsif, Tiruvallur. For Appellants : M/s.Suganya Devi Duraisamy For Respondents : Mr.M.R.Khapali for R2 to R7 J U D G E M E N TThis second appeal has been filed against the judgment anddecree, dated 11.10.1993, made in A.S.No.16 of 1990, on the file ofthe Subordinate Court, Tiruvallur, confirming the judgment anddecree, dated 6.2.1990, made in O.S.No.346 of 1983, on the file ofthe District Munsif Court, Tiruvallur. 2. The defendants in the suit, in O.S.No.346 of 1983, are theappellants in the present second appeal. The suit had been filedpraying for the reliefs of declaration of the plaintiff's title in https://hcservices.ecourts.gov.in/hcservices/ the suit properties and for a permanent injunction restraining thedefendants and their men and agents from, in any manner, interferingwith the plaintiff's possession and enjoyment of the plaintiff'sproperties. 3. The plaintiff had stated that she is the owner of the suitproperties and that she has been in possession and enjoyment of thesaid properties subsequent to the purchase of the suit propertiesfrom one Bajjammal, by a sale deed, dated 14.8.1951, for a saleconsideration of Rs.200/-. The suit properties are comprised in pattaNo.395, which is in the name of the plaintiff. The original surveynumber for item No.1 of the suit properties was 151/5B andsubsequently, it was given the survey number 151/9. The kist for thesuit items of the properties were being paid by the plaintiff. Shehad also exercised the right of ownership over the suit propertiesafter the purchase of the said lands. She had raised certain loans inrespect of the suit properties and certain other properties. On5.6.1965, the plaintiff's husband had mortgaged the suit propertiesand other properties to one Narappa. The mortgage had been dischargedin the year, 1968. Later, the properties had been mortgaged to oneGopi Ramanujam, in the year, 1968, and it was discharged, in theyear, 1973. Thereafter, the plaintiff had been in possession andenjoyment of the properties and she has been carrying on cultivationtherein. 4. The plaintiff had stated that the defendants have no right inthe suit properties. However, they are threatening to dispossess theproperties from the plaintiff, by making false claims over the suitproperties, from 1.6.1983. They had also caused obstructions, whenthe plaintiff was trying to store manure in the suit properties.Further, the defendants are attempting to forcibly enter in the suitproperties, disturbing the plaintiff's peaceful possession andoccupation of the said properties. In such circumstances, theplaintiff had preferred the suit, in O.S.No.346 of 1983, on the fileof the District Munsif Court, Tiruvallur. 5. The written statement filed by the second defendant, underOrder VIII Rule 1 of the Civil Procedure Code, 1908, has been adoptedby the first defendant. In the written statement filed by the seconddefendant, the claim of the plaintiff that she is the owner of thesuit properties and that she is in possession of the said propertieshad been denied. 6. It has been further stated that the plaintiff had purchasedthe suit properties, under the sale deed, dated 14.8.1951. Theplaintiff had been in possession and enjoyment of the properties tillthe month of February, 1965. However, she had put in the first andsecond defendants in the possession of the suit properties, under anoral agreement of sale, in the month of February, 1965, for a sum ofRs.2,300/-. Pursuant to the said sale, the first and second https://hcservices.ecourts.gov.in/hcservices/ defendants have been in continuous possession and enjoyment of thesuit properties. They have also perfected their title, in respect ofthe suit properties, by adverse possession. Their rights in the suitproperties should also be recognised, under Section 53(A) of theTransfer of Property Act, 1882. 7. It has also been stated that the first and the seconddefendants are very poor and they have purchased the suit propertiesfor a sum of Rs.2,300/- from their harden money. The first defendantis dumb and the second defendant is deaf. The plaintiff is a closerelative of the first and second defendants. Therefore, the saiddefendants had not thought of registering a sale deed in respect ofthe suit properties. Since the value of the suit properties hadincreased, the plaintiff, who has the custody of the sale deed, dated14.8.1951, and other connected documents, had filed the present suitagainst the defendants, vexatiously, with the intention of grabbingthe properties. The counter statement filed by the plaintiff, beforethe Tahsildar, Uthukottai, falsifies her claims that she is inpossession of the suit properties. The inclusion of the suitproperties in the alleged mortgaged deed, dated 5.6.1965 and9.8.1968, have been done with a mischievous motive. The adangal copyfor fasli 1392 does not reflect the correct position, with regard tothe enjoyment of the suit properties. 8. It has also been stated that the sale deed filed as ExhibitsB.8 and B.9, in I.A.No.1166 of 1983, clearly proves the ownership ofthe first and second defendants, in respect of the suit propertiesand that they are in possession of the same. Further, in view of thejudgment, in C.M.A.No.31 of 1983, on the file of Subordinate Court,Tiruvallur, the claim of the plaintiff for an order of injunctioncannot be sustained. 9. The third defendant had filed the written statement statingthat he is not a necessary party in the suit. However, he has beenadded, since he is personally aware of the oral agreement of saleentered into between the plaintiff and the first and the seconddefendants in the month of February, 1965, for a sum of Rs.2,300/-. 10. Based on the averments made in the plaint, as well as thewritten statements, the trial Court had framed the following issuesfor consideration:"1. Whether the oral agreement of sale, alleged by thefirst defendant, is true and valid?2. Whether the claim of the defendants to the benefitof Section 53 of the Transfer of Property Act is true andvalid?3. Whether the defendants' claim of adverse possessionis true and valid?4. Whether the 3rd defendant is a necessary party tothe suit? https://hcservices.ecourts.gov.in/hcservices/

5. To what relief the plaintiff is entitled to?"11. The plaintiff had marked Exhibits A.1 to A.14 in support ofher claims. The defendants had marked Exhibits B.1 to B.9. Theplaintiff had examined herself as P.W.1 and the defendants hadexamined D.W.1 to D.W.6, as witnesses, on their behalf. 12. Based on the evidence available, the trial Court had decreedthe suit in favour of the plaintiff. The trial Court had found thatthe claim of the defendants that they had paid Rs.2,300/-, as saleconsideration for the purchase of the suit properties in the month ofFebruary, 1965, has not been substantiated by sufficient evidence.The defendants had said that they did not insist on a written or aregistered sale deed for the purchase of the suit properties from theplaintiff, since the plaintiff is related to them. Further, thedefendants had not been in a position to prove that they have been incontinuous and uninterrupted possession of the properties in questionto claim title by adverse possession. On the contrary, the trialCourt had found that the claims of the plaintiff had beensufficiently proved by reliable evidence to decree the suit in herfavour. 13. The trial Court had also found that the claim of thedefendants that the suit properties had been purchased by them by anoral sale deed, cannot be accepted, in view of Section 54 of theTransfer of Property Act, 1882. According to which a transfer of atangible immovable property of the value of one hundred rupees andupwards can be made only by a registered instrument. Therefore, anoral sale deed cannot be said to be legal and no title will pass, inaccordance with the oral sale deed. 14. The trial Court had also found that the defendants had notbeen in a position to state the date and the year when they had takenpossession of the suit properties. The witnesses examined on behalfof the defendants are not in position to state the exact detailsabout the transaction alleged to have been made between the plaintiffand the defendants. Even though D.W.1, namely, Subba Reddy, hadstated in his oral evidence that the suit properties had beenpurchased by the defendants with the money obtained by the sale ofthe properties in Paduvoor, no such sale deed had been filed in thesuit. Further, no receipts had been obtained from the plaintiff forhaving paid the amount of Rs.2,300/-, as sale consideration, for thesuit properties. The defendants had not initiated any proceedingsagainst the plaintiff for not having registered a sale deed in favourof the defendants, even after the payment of the sale consideration. 15. With regard to the claim of the defendants that they hadperfected the title in respect of the suit properties by adversepossession cannot be accepted, since they have not been in a positionto show that they have been in uninterrupted possession of the suit https://hcservices.ecourts.gov.in/hcservices/ properties for more than 12 years. From the kist receipts filed bythe defendants, as Exhibits B.1 to B.4, it is clear that they are inthe name of one Subba Reddy and they are only for three years. Theplaintiff had stated that Subba Reddy is her uncle and that he hasbeen cultivating the lands for three years, on lease. Further, thedefendants had not been in a position to explain as to why the kistreceipts were not available for the other years. On the other hand,the plaintiff had marked Exhibits A.1 to A.3, which are kist receiptsand she had also marked U.D.R. patta to support her contention thatthe suit properties belong to her. Further, the Exhibits B.6 and B.7,marked by the defendants, are relating to third parties and theycannot bind the plaintiff. Further, Exhibit B.8, which is relating tocertain proceedings before the Tahsildar, Oothukkottai, cannot betaken as a substantial proof of the claims made by the defendants. Insuch circumstances, the trial Court had come to the conclusion thatthe suit properties belong to the plaintiff and that the plaintiff isentitled to the reliefs sought for by her in the suit, in O.S.No.346of 1983. 16. Aggrieved by the judgment and decree of the trial Court,dated 6.2.1990, made in O.S.No.346 of 1983, the defendants in thesuit had filed the first appeal before the Subordinate Court,Tiruvallur, in A.S.No.16 of 1990. The first appellate Court hadframed the following points for consideration:"1. Whether the plaintiff has any right in thesuit properties?2. Whether the first defendant has got a right inthe suit properties by way of the oral sale agreement?3. Whether the first and second defendants haveany right in the suit properties?4. Whether the third defendant is a necessaryparty to the suit?5. Whether the appeal is liable to be allowed?6. What are the reliefs the appellants areentitled to?"17. On analysing the contentions raised on behalf of the partiesconcerned and based on the evidence available on record, the firstappellate Court had confirmed the findings of the trial Court. By itsjudgment and decree, dated 11.10.1993, it had dismissed the firstappeal confirming the judgment and decree of the trial Court, made inO.S.No.346 of 1983. The first appellate Court had also come to theconclusion that an unregistered oral sale agreement cannot vest anyright or title in the defendants, in respect of the suit properties.Further, the first appellate Court had confirmed the findings of thetrial Court, with regard to the claim of the defendants, regardingadverse possession. The first appellate Court had come to theconclusion that the defendants have not shown sufficient proof tosubstantiate their claims that they had purchased the properties fromthe plaintiff for a valid consideration of Rs.2,300/- and that they https://hcservices.ecourts.gov.in/hcservices/ have been in possession and enjoyment of the suit properties, sincethen. In such circumstances, the first appellate Court had dismissedthe appeal, confirming the judgment and decree of the trial Court, byits judgment and decree, dated 11.10.1993, made in A.S.No.16 of 1990.18. Aggrieved by the concurrent findings of the Courts below,the defendants in the suit had filed the present second appeal. ThisCourt had admitted the second appeal on the following substantialquestions of law:"1. Whether the claim of adverse possession can be madeon the basis of an oral sale?2. Whether the provisions of the Transfer of PropertyAct, in Sections 9 and 54 would, in any way, prohibit aclaim for adverse possession, based on an oral sale?"19. The learned counsel appearing for the defendants in the suitand the appellants in the present second appeal had submitted thatthe Courts below had erred in decreeing the suit for declaration andfor permanent injunction, when the defendants were in the possessionof the suit properties, pursuant to the oral sale agreement enteredinto with the plaintiff. In fact, the defendants had purchased thesuit properties for a valid consideration of Rs.2,300/-. Further, theCourts below had failed to take into consideration the fact that theplaintiff and the defendants were close relatives and therefore,there was no sale deed, written or registered, in respect of the suitproperties. 20. The learned counsel appearing for the appellants had furthersubmitted that the Courts below had failed to take note of theExhibits marked in favour of the defendants, especially, Exhibit B.8,in which the plaintiff had admitted that the possession of the suitproperties was with the defendants. When there was sufficientevidence to show that there was an oral sale agreement between theplaintiff and the defendants, the Courts below had erred in notappreciating such evidence to dismiss the suit filed by theplaintiff. 21. The learned counsel appearing for the appellants had alsosubmitted that the Courts below had failed to properly apply theprinciples enunciated in Sections 9 and 54 of the Transfer ofProperty Act, 1882. 22. Per contra, the learned counsel appearing for therespondents had submitted that both the Courts below had concurrentlyfound that the claims made by the plaintiff, with regard to herrights in the suit properties, were sufficiently proved by availableevidence. Further, the defendants, who are the appellants in thepresent second appeal, had not proved their title in respect of thesuit properties, either by oral or documentary evidence. The claim https://hcservices.ecourts.gov.in/hcservices/ made by the defendants that they have obtained the title, in respectof the suit properties, by way of an oral sale agreement, for a validconsideration of Rs.2,300/-, could not be proved. 23. The learned counsel appearing for the respondents hadfurther submitted that the attempt made by the defendants to provethe title, with regard to the suit properties, by adverse possession,had also failed. In such circumstances, the Courts below had come tothe right conclusion in granting the reliefs sought for by theplaintiff in her suit, in O.S.No.346 of 1983.24. In view of the rival contentions raised on behalf of theappellants, as well as the defendants and on analysing the evidenceavailable and on a perusal of the records, this Court is of theconsidered view that the appellants have not shown sufficient causeor reason for this Court to interfere with the findings of the Courtsbelow. The trial Court, as well as the first appellate Court, hadcome to their conclusions based on the evidence adduced on behalf ofthe parties concerned. 25. The Courts below had found that the claim of the defendantsthat they had purchased the suit properties by way of an oral saleagreement, for a valid consideration of Rs.2,300/-, had not beenproved. Even though it was stated that the suit properties had beenpurchased from the money, which the defendants had got by selling theproperties at Paduvoor, it could not be proved, since the allegedcopy of the sale deed had not been filed by the defendants. Further,the kist receipts marked on behalf of the defendants could not betaken to prove the continuous possession of the suit properties bythe defendants, either to show that they have been in possession ofthe suit properties from the date of the alleged purchase of the saidproperties or to show that they have been in adverse possession forover twelve years, to prove their title in respect of the suitproperties. On the other hand, the Courts below had found that theplaintiff had the title to the suit properties, as seen from theU.D.R. Patta issued in her favour. 26. From the evidence available, the plaintiff had shown thatshe was in possession and enjoyment of the suit properties, asclaimed by her. In such circumstances, the Courts below hadconcurrently found that the claims made by the plaintiff had beensufficiently proved. Hence, the Courts below had granted the reliefs,as sought for by the plaintiff in her suit, in O.S.No.346 of 1983. Insuch circumstances, the second appeal is devoid of merits. Hence, itstands dismissed. No costs. Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ lanTo:1. The Subordinate Judge of Tiruvallur2. The District Munsif, TiruvallurS.A.No.1367 of 1994MBS(CO)EM/12.10