Thiagarajan(died) & Ors. v. D.Meenakshi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.11.2009CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULS.A.No.108 of 19981.Thiagarajan(died)2.Saravanan ... Appellants/Appellants/ Defendantsvs.1.D.Meenakshi2.Kaliyamurthy3.Bakiyavathi4.T.Sasidevi5.K.Dhanalakshmi6.K.Thiagaprabhakaran ... Respondents/Respondents/(R4 to R6 are brought on record 2 to 4 Plaintiffsas Legal representatives of the deceased 1st Appellant vide order of court dated 08.02.2007 made in CMP 20378, 20380 of 2004.) Appeal filed under Section 100 of Civil Procedure Code againstthe judgment and decree of the learned Additional District andSessions Judge of South Arcot Vallalar District at Cuddalore dated22.08.1997 made in A.S.No.302 of 1993 confirming the judgment anddecree of the trial Court dated 11.11.1993 made in O.S.No.404 of 1992on the file of the Principal District Munsif Court of Cuddalore. For appellants: Mr.R.Subramaniam For respondents : Mr.S.K.RakunathanJUDGMENT The defendants who suffered a decree for permanent injunctionat the hands o the plaintiff throughout prefers the present secondappeal.2.The plaintiff would contend that he got the suit propertiesunder the oral partition that took place in his family on 08.07.1960.He has been in the possession and enjoyment of the suit propertydoing agricultural operation therein. The defendants who areadjacent owners of the suit property who have no right or interesttherein attempted to trespass upon the suit property. Having thuscontended the plaintiff sought for permanent injunction as against https://hcservices.ecourts.gov.in/hcservices/ the defendants. The defendants resisted the contentions of theplaintiff on the ground that the suit properties were purchased bythe defendants from the legal heirs of Jeevarathinam Ammal andJanakiraman Chettiyar who purchased the suit properties in the courtauction sale brought by one Pakkiri Chettiyar having obtained adecree in the cases in Small Causes no.144 of 1960 and 114 of 1960 onthe file of the Subordinate Judges Court, Cuddalore. JanakiramanChettiyar and Jeevarathinam Ammal having purchased the suitproperties under court auction sale got delivery of these propertiesthrough court and they have been in possession of the same. Thedefendants having purchased the suit properties from the legal heirsof the purchasers through court auction sale have been in possessionand enjoyment of the suit property. They have also set up a pleathat they have prescribed title by adverse possession as they havebeen in possession and enjoyment of the property for more than 12years. 3.Both the courts below having relied upon the kist receiptsExhibit A1 to A3, the adangal extracts Exhibit A4 to A6, Chittaextract A6 and the mortgage deed Exhibit A10 executed by theplaintiff in favour of one Padmavathy arrived at a conclusion thatthe plaintiffs have established their possession and enjoyment of thesuit property. It has also been observed by the courts below thatthe kist receipts Exhibit B6 to B9 do not relate to the suitproperties in as much as the patta number does not relate to the suitproperties. Both the courts below have observed that based on thesale certificate and the delivery receipt it cannot be concluded thatJanakiraman Chettiyar and Jeevarathinam Ammal having taken actualdelivery of the suit properties have been in possession and enjoymentof the same. Having thus observed the plaintiff was granted with adecree for permanent injunction.4.The following substantial questions of law were framed at thetime of admission of the second appeal."1.Whether the lower appellate court wasright in holding that no actual delivery waseffected under Ex.B.4 and Ex.B.5 deliveryreceipts moreso when this Hon'ble Court has timeand again reiterated that a party to a suitcannot claim that the delivery effected throughprocess of Court is not actual delivery.2.Is not the deceased first plaintiff boundby Ex.B.4 and B.5 he having suffered a decree andhaving attested one of them.3.Whether the lower appellate court wasright in not framing points for determination inthe appeal, thereby violating the mandatory https://hcservices.ecourts.gov.in/hcservices/ provisions of Order 41 Rule 31 CPC.4.Whether the lower appellate court wasright in granting the equitable relief ofinjunction in favour of a person who has come tocourt supressing the prior proceedings to whichhe was a party."5.The learned counsel appearing for the defendants would submitthat there was no pleadings that fraud was played upon in theexecution proceedings which culminated in the issuance of deliveryreceipt. Exhibit A10 does not relate to the suit property in as muchas the boundaries of the properties referred to in Exhibit A10 arefound to be totally different from the boundaries of the suitproperties. The sale certificates and the delivery receipts markedas Exhibit B2 to B5 have got more probative value than the kistreceipts and the adangal extract filed by the plaintiff. At any ratean order of injunction cannot be issued as against the real owner ofthe suit properties.6.The learned counsel appearing for the plaintiff would submitthat the plaintiff has established by filing kist receipts andadangal extracts that he has been in possession and enjoyment of thesuit property. The revenue records filed on the side of theplaintiff belie the version of the defendants that the auctionpurchasers were infact given actual possession of the suitproperties. Though there is some variation in the description of theboundaries under Exhibit A10, the survey number and the extent of twoof the suit properties and some of the boundaries referred to thereindo tally with the descriptions of the suit properties. Therefore,the plaintiff also have established that some of the suit propertieswere dealt with by the plaintiff even after the alleged delivery ofpossession by the court through amina to Janakiraman Chettiyar andJeevarathinam Ammal, it is further contended.7.There is no dispute to the fact that Pakkiri Chettiyar got amoney decree as against the plaintiff Palani Padayatchi. Theplaintiff disputes the allegation made by the defendant that theplaintiff was aware of the execution proceedings initiated by PakkiriChettiyar. But the sale receipts Exhibit B2 dated 05.01.1970 andExhibit B3 dated 14.08.1969 would go to establish that JeevarathinamAmmal and Janakiraman Chettiyar who participated in the court auctionsale brought by Pakkiri Chettiyar were declared as successful biddersand they were issued with sale certificates. Exhibit B4 dated27.11.1970 and Exhibit B5 dated 20.08.1969 were produced to show thatJeevarathinam Ammal and Janakiraman Chettiyar were put in possessionof the suit properties through court amina. It is found that inExhibit B5, the plaintiff has figured as one of the witnesses to thedelivery receipt issued in favour of Janakiraman Chettiyar.Therefore, the plaintiff's contention that he was not aware of the https://hcservices.ecourts.gov.in/hcservices/ execution proceedings is found to be false. The plaintiff cannot benon suited on such ground.8.The question that arises for consideration is whether therewas actual physical delivery of possession of the suit propertiesthrough court amina to Janakiraman Chettiyar and Jeevarathinam Ammal.As rightly pointed out by the courts below, the kist receipts ExhibitA1 to A3 would go to establish that the plaintiff had paid kist forthe suit properties bearing patta numbers 76 and 80 as referred underExhibit A8 for the faslis 1388, 1395, 1396, 1399, 1400 and 1401.That apart the adangal extracts Exhibit A4 to A6 would also establishthat the plaintiff was shown as the person who actually cultivatedthe suit properties during faslis 1380, 1381, 1382, 1395, 1397, 1398,1400 and 1401. The patta issued for the period from faslis 1389 to1401 under Exhibit A7 would also show that the name of the plaintifffound a place in the chitta prepared in the village settlementjamabandhi. 9.The suit was filed in the year 1992 immediately after thedefendants purchased the suit properties from the legal heirs ofJeevarathinam Ammal and Janakiraman Chettiyar by the plaintiffsseeking permanent injunction. The voluminous documents referred toabove produced and marked on the side of the plaintiff wouldestablish that despite the fact that the court executed sale receiptin favour of the predecessors in title of the defendants namelyJeevarathinam Ammal and Janakiraman Chettiyar and delivery receiptsExhibit B4 and B5 also were issued in their name, the plaintiffcontinued to be in possession of the suit properties paying landrevenue to the Government. The revenue authorities also recognisedthe plaintiff as the actual cultivator of the suit properties for along period of time prior to the institution of the suit by theplaintiff.10.Exhibit B8 has come into existence after the institution ofthe suit. Further Exhibit B6 to B9 do ot reflect the admitted pattanumbers 76 and 80. Therefore, the fact remains that the defendantscould not produce any documents to show that their predecessors intitle were in possession of the suit properties.11.Exhibit A10 is a mortgage deed executed by the plaintiff infavour of Padmavathy Ammal on 10.02.1983. It is true that some ofthe boundaries referred to therein with respect to the suitproperties is found to be different. But the survey number, theextent of property and some description of the boundaries of twoitems of suit properties are found referred in Exhibit A10.Therefore, exhibit A10 cannot be rejected in toto. It is establishedby the plaintiff through Exhibit A10 had in-fact dealt with a part ofthe subject property in the year 1983 long after the alleged salecertificates and delivery receipts issued in favour of thepredecessors in title of the defendants. If at all there was actual https://hcservices.ecourts.gov.in/hcservices/ physical delivery of possession of the suit properties by the courtthrough its amina to Jeevarathinam Ammal and Janakiraman Chettiyarand the latter and their successors in interest have been inpossession and enjoyment of the suit properties, the name of theplaintiff would not have figured in the adangal extract, chitta andkist receipt produced by the plaintiff. The plaintiff also would nothave had an occasion to deal with a part of the suit properties bymortgaging under Exhibit A10 dated 10.02.1983.12.The learned counsel appearing for the appellant referred tothe decision of this court in G.Ramasami Vs. Kuruva Boyan and others1991-1-L.W. 244 wherein it has been held as follows:"It is not possible for a court to ignore theevidence afforded by the court officials to theeffect that delivery has been effected, on themere allegation that there was no actualdelivery. In order to reject the officialrecords such as the bailiff's endorsements, theremust be a definite and specific plea of fraud.In the absence of a plea of fraud with fullparticulars as are necessary to support the same,the court shall not direct an enquiry as towhether there is actual delivery. In every casethe judgment debtor is interested in stating thatthere is no physical delivery in order that hemay obtain an order of stay in the appellateCourt. A bare allegation that the delivery is apaper delivery and the appellant continues inpossession is hardly sufficient to direct anenquiry whethe there is physical delivery. Thepresumption under section 114 of the Evidence Actthat official acts are performed regularly willundoubtedly apply." 13.The aforesaid decision of this court was followed in thelater judgment in Komiah Vs. Subbulakshmiammal and another (2002)-I-MLJ-647. That was a case where there was a mere allegation that thedelivery of possession was only a paper delivery without anyproduction of hard evidence. In such circumstances this court heldthat a bald allegation that the delivery is a paper delivery is notsufficient. There must be a definite and specific plea of fraud. 14.In the instant case, there is no specific plea that thedelivery of possession by the court was tainted with fraud. But theplaintiff could produce voluminous documents to establish that hecontinues to be in possession of the suit properties even after thesale certificates and delivery receipts were issued by the court.Of-course a presumption arises under section 114 of the Evidence Actas to the official act performed by the court amina in the matter of https://hcservices.ecourts.gov.in/hcservices/ delivery of possession as per Exhibit A4 and A5. But such apresumption has been satisfactorily rebutted by the plaintiff byproducing the revenue records to establish that he has been inpossession and enjoyment of the suit property. Therefore lack ofplea of fraud in the above circumstances does not non-suit theplaintiff in this case.15.The fact that he has subscribed his signature to Exhibit A5as one of the attestors to the delivery receipt loses itssignificance in view of the fact that he continued to be inpossession of the suit property even after such a delivery receiptcame into existence in favour of one of the predecessors in title ofthe suit properties.16.It is found that the courts below have rightly held on properappreciation and evacuation of the evidence on record that theplaintiff established that he has been in possession and enjoyment ofthe suit property despite the fact the issuance of delivery receiptsvouchsafing the delivery of possession by the court through courtamina to the predecessors in title of the defendants. As theplaintiffs have established that they have been in continuouspossession and enjoyment of the suit property they are entitled toprotect their possession even from the real owner. The courts belowhave rightly returned the verdict that the plaintiffs are entitled topermanent injunction as against the defendants.17.In view of the above, the appeal stands dismissed. There isno order as to cost.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarpriTo1. The Additional District and Sessions Judge of South Arcot Vallalar District at Cuddalore.2. The Principal District Munsif Court of Cuddalore.3. The Section Officer, V.R.Section, High Court, Madras.+ 1 cc to Mr.R.Subramaniam,Advocate,SR.59448+ 1 cc to Mr.S.K.Rakunathan,Advocate,SR.58883S.A.No.108 of 1998MS(CO)EM/14.12.09