Pattammal (deceased) v. Arulmighu Sarntharaikatha Samy Koil represented by its Executive Officer, Thillayadi, Tharangambadi, Sirkali & Ors.

In the High Court of Judicature at MadrasDated: 21.01.2009Coram:The Honourable Mr.Justice K. MOHAN RAMSecond Appeal No.267 of 20001.Pattammal (deceased)2.Muthukumarasamy...Appellants/Plaintiff(Second appellant brought on recordas legal representative of the deceasedsole appellant, vide order dated 14.04.2006made in C.M.P.No.4433 to 4435 of 2006) Versus1.Arulmighu Sarntharaikatha Samy Koilrepresented by its Executive Officer,Thillayadi, Tharangambadi,Sirkali.2.R. Rajagopalan...Respondents/DefendantsSecond Appeal filed under Section 100 of Civil Procedure Codeagainst the Judgment and Decree dated 01.04.1999 made in A.S.No.70 of1998 on the file of the Additional Subordinate Judges Court,Mayiladuthurai, reversing the judgment and decree dated 24.02.1998made in O.S.No. 345 of 1992 on the file of the District Munsif Court,Sirkali.For Appellant..Mr.A. Abdul RavoofFor Respondent-1..Mr.S. SountherJUDGMENTThe plaintiff in O.S.No.345 of 1992 on the file of DistrictMunsif, Sirkali who succeeded in the suit, but since the decreeobtained by him was reversed by the learned Additional SubordinateJudge, Mayiladuthurai by his judgment and decree passed in A.S.No. 70of 1998 and being aggrieved by that has preferred the above SecondAppeal.2.For sake of convenience, the parties are referred to as per https://hcservices.ecourts.gov.in/hcservices/ their ranking in the suit.3.The case of the plaintiff in brief is set out below:The suit properties which are nanja lands were purchased by theplaintiff from the first defendant under a registered sale deed dated07.07.1976. Pursuant to the said sale, the plaintiff was put inpossession of the suit properties and he is in possession andenjoyment of the same for more than 16 years to the knowledge of allincluding the defendants. Thus the title of the suit property hasvested on the plaintiff both under sale deed as well as byuninterrupted possession. While so the plaintiff came to know thatthe second defendant temple has purchased the suit property in aCourt auction sale. When the second defendant, a public trust isnot competent to purchase or acquire wet lands, the alleged courtauction sale is not valid. The execution levied pursuant to thefinal decree passed in O.S.No.45 of 1959 on the file of theSubordinate Court, Mayiladuthurai, is barred by limitation as theExecution petition had been filed after the expiry of 12 years fromthe date of passing of final decree. The plaintiff is a bonafidepurchaser for value and she was not put on notice of any of theproceedings taken in respect of the suit property. The defendantswere aware of the purchase made by the plaintiff and as such theyshould have given notice to the plaintiff and the Court auction whichhas taken place without notice to the plaintiff is not binding onher. Since the second defendant is giving out that he will takeforcible possession of the suit lands from the plaintiff and it hasbecome necessary to file the suit for declaration of her title to thesuit properties and for a consequential permanent injunctionrestraining the second defendant from interfering with theplaintiff's possession and enjoyment of the suit land.4.The first defendant remained exparte and did not contestthe suit. However, the second defendant contested the suit by filingwritten statement interalia contending as follows:The allegation that the plaintiff purchased the suit propertyfrom the first defendant for valid consideration under sale deeddated 07.07.1996 is denied. The second defendant denied the truth,validity and binding nature of the sale deed. The alleged possessionof the plaintiff for 16 years is also denied. The second defendantobtained a decree in O.S.No.45 of 1959 on the file of the SubordinateCourt, Mayiladuthurai, against the first defendant and filedE.P.No.134 of 1981 for attachment and sale of the suit properties andthe said Execution Proceeding was filed within 12 years from the dateof decree and as such it is not barred by limitation. Aftercomplying with all the formalities, the property was brought forcourt auction sale after attachment and the second defendant gotpermission to bid in the court auction and he was the successful https://hcservices.ecourts.gov.in/hcservices/ bidder in the auction held on 29.07.1991 and the sale was confirmedon 11.11.1991 . The sale certificate was also issued in favour ofthe defendant under Order 21 Rule 94 CPC. Thereafter, this defendantfiled E.A.No.485 of 1992 in O.S.No.45 of 1959 for delivery as persale certificate issued by the Court and accordingly, delivery wasordered and the senior bailiff effected delivery of possession on23.11.1992 along with standing ADT 38 crops. Thus, the defendant hastaken possession of suit property along with standing ADT 38 crops on23.11.1992 and delivery was recorded on 15.12.1992. On and from23.11.1992, this defendant had been in possession of the suitproperties and was cultivating the land and was maintaining thecrops. Therefore, the claim of the plaintiff that she was inpossession of the suit property is not correct.5.It is further contended that after filing the present suiton false ground, the plaintiff had cut and carried away the crops inthe third week of February 1993. The sporadic act of the pliantiffwill not confer any possession and right to the plaintiff. Now theland is lying fallow. The plaintiff is not in possession of thesuit properties. The plaintiff is not a bonafide purchaser and hehas no right to question the court auction sale. This defendant didnot attempt to take forcible possession on 12.12.1992 as alleged inthe plaint. On the aforesaid pleadings, the second defendant soughtfor dismissal of the suit.6.The trial Court framed the following issues, namely,1)Whether the sale deed dated 07.07.1976 standing inthe name of the plaintiff is true .2)Whether the possession of the suit property wasentrusted to the plaintiff under the sale deeddated 07.07.1976.3)Whether the plaintiff was in possession of the suitproperty on the date of the suit.4)Is it true that the possession of the suit propertywas taken as per the order dated 23.11.1992 passedin E.A.No.488 of 1992 in O.S.No. 45 of 1959.5)Whether the contention of the plaintiff that theparticipation of the second defendant in the courtauction sale and the second defendant's purchase ofthe suit property in the auction held in O.S.No.45of 1959 is legally valid.6)To what relief the plaintiff is entitled?7.During the trial on the side of the plaintiff, oneMuthukumarasamy has been examined as PW.1 and Exs. A1 to A3 have beenmarked. On the side of the second defendant, two witnesses have beenexamined and Ex.B1 has been marked.8.The trial Court on the consideration of the oral and https://hcservices.ecourts.gov.in/hcservices/ documentary evidence adduced in the case, decreed the suit and beingaggrieved by that the second defendant preferred an appeal inA.S.No.70 of 1998 before the learned Subordinate Judge,Mayiladuthurai and along with the appeal, the second defendant filedC.M.P.No.247 of 1998 under Order 41 Rule 27 CPC to produce additionalevidence and the same was allowed and Ex.B2 dated 14.03.1961, thesuit register extract in O.S.No.45 of 1959 was marked. LearnedSubordinate Judge, on independent consideration of the oral anddocumentary evidence adduced in the case and findings and reasoningsof the trial Court, disagreed with the reasonings and findings of thetrial court and reversed the judgment and decree of the trial courtand allowed the appeal. Being aggrieved by that, the plaintiff hasfiled the above said second appeal.9.While admitting the above second appeal, the followingsubstantial questions of law have been framed:-1.Whether the purchase of land by the temple viz.,first respondent on 11.10.1991 is sustainable inlaw in view of the statutory prohibition foundunder Section 2 of the Act 58/61?2.Whether the decree and judgment granted by thelower appellate Court is tenable when theappellant was a bonafide purchaser of propertyfor value without notice of the charge created inrespect of the suit property?3.Whether the plaintiff is bound by the courtauction sale in favour of first respondent whenthe plaintiff was not a party to the suit andother proceedings ?10.Heard both. Mr.A.Abdul Ravoof, learned counsel for theappellant submitted that admittedly decree had been passed inO.S.No.45 of 1959 on the file of Subordinate Court, Mayiladuthurai on14.03.1961, the Execution Proceeding has been filed by the seconddefendant beyond the period of 12 years prescribed under theLimitation Act and therefore, submitted that when the executionproceedings are barred, any court auction sale that had taken placein the Execution Proceedings is also invalid and consequently, thepurchase said to have been made by the second defendant in the courtauction sale is also invalid. The learned counsel submitted that theplaintiff came to know about the court auction sale and the purchaseby the second defendant of the suit property only in the year 1991and immediately the suit has been filed by the plaintiff seekingdeclaration of title and permanent injunction. Learned counselsubmitted that immediately after his purchase in 1976, the patta forthe suit property has been transferred to the name of the plaintiff.Learned counsel submitted that the plaintiff was not aware of the https://hcservices.ecourts.gov.in/hcservices/ pendency of O.S.No.45 of 1959 or the charge said to have been createdover the suit property in the year 1959 in O.S.No.45 of 1959, whichwas filed by the second defendant for recovery of rental arrears fromthe first defendant. Learned counsel further submitted that theentire execution proceedings is vitiated as the procedurecontemplated under Order 21 Rule 66 and 72 has not been followed andthere was no proper proclamation of the sale.11.The learned counsel further contended that section 2(2) ofthe Tamil Nadu Land Reforms (Fixation of ceiling on land) Act, 1961(hereinafter called as 'Act') prohibits any religious institution orreligious trust of public nature from acquiring by any meanswhatsoever any land after the date of the commencement of the Act andas such the purchase of the suit property by the second defendant inthe court auction sale is hit by the aforesaid prohibition containedin Section 2(2) of the Act and therefore, the same is not valid.Learned counsel further submitted that right from the date ofpurchase on 07.07.1976, the plaintiff continuously in possession ofthe suit property. DW.1 himself has admitted in cross examinationthat patta has been issued in favour of the plaintiff and kist hasbeen paid by the plaintiff as evidenced by Ex.A2 and Ex.A3 for fasli1394 and 1401 and therefore according to the learned counsel for theappellant, the finding of the lower appellant court that theplaintiff was not in possession of the suit property is erroneous.Learned counsel submitted that when the plaintiff had no knowledgeabout the pendency of the suit in O.S.No.45 of 1959 or the chargecreated over the suit property and when he has not been issued withany notice during the execution proceedings levied in O.S.No.45 of1959, it should be construed that the plaintiff was a bonafidepurchaser for value without notice of the charge created over thesuit property and therefore, the lower appellate court ought to haveconfirmed the judgment and decree granted by the trial court holdingthat the plaintiff has got title over the suit property.12.Countering the said submission, Mr. S.Sounther, learnedcounsel for the second defendant submitted that the trial court hasnot understood properly the legal principles applicable to the factsof this case and the same has been pointed out by the lower appellatecourt and the lower appellate court has independently considered boththe oral and documentary evidence and it has also considered thefindings and reasonings of the trial court and has pointed out thatthe findings and reasonings of the trial court are fallacious anderroneous. Learned counsel submitted that though the final decree inO.S.No.45 of 1959 on the file of the Subordinate Court,Mayiladuthurai was passed on 14.03.1971 as evidenced from Ex.B2, suitregister extract, E.P.No.113 of 1973 filed on 14.01.1973 ie. within aperiod of 12 years and thereafter it was transferred and renumberedas E.P.134 of 1981 on the file of District Munsif Court, Sirkali andtherefore, the learned counsel submitted that the contention of the https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the appellant that execution was levied inO.S.No.45 of 1959 after the expiry of the period of limitation cannotbe countenanced. Learned counsel submitted that the plaintiff hasnot pleaded in the plaint as to whether he made any preliminaryenquiry regarding any existing encumbrance over the suit propertybefore he purchased the property in the year 1976. Learned counselfurther submitted that none connected with the purchase of the suitproperty has been examined. The plaintiff has not gone into thewitness box and whereas PW.1, who is unconnected with the purchase,has been examined as witness and his evidence is of no help or use toestablish the claim of the plaintiff that she was a bonafidepurchaser for value without notice of the charge created over thesuit property. The learned counsel submitted that entire evidence ofPW.1 has been carefully considered by the lower appellate court andhas pointed out that his evidence is of no use. The learned counselalso pointed out that lower appellate court has observed that thereis absolutely no evidence to prove the claim of the plaintiff thatthe plaintiff is a bonafide purchaser for value without notice. Thelearned counsel submited that the finding of the lower appellatecourt that the execution sale had been conducted after observing allthe necessary legal formalities and the presumption arising undersection 114 of the Evidence Act has also been rightly raised namelythat all the official acts are presumed to have been done in lawfulmanner. Learned counsel submitted that in a case of this nature,when admittedly the plaintiff had purchased the suit property, whichwas subject matter of the charge, the burden heavily lies on theplaintiff, who claims to be a bonafide purchaser for value withoutnotice, to show the actual bonafide purchase and such purchase wasmade without notice of the existing charge over the suit property andthe plaintiff miserably failed to either prove or establish theaforesaid plea. Learned counsel further submitted that when thetrial court has not applied the correct legal principles applicableto the facts of this case, it is the bounden duty of the lowerappellate court to apply the correct principles of law to the factsof the case and consider the evidence independently and record itsfinding and that is what is done by the lower appellate court andtherefore stated that the findings of the lower appellate court doesnot suffer from any infirmity. 13.The learned counsel further submitted that in a suit fordeclaration of title and for permanent injunction unless and untilthe plaintiff establishes his title over the suit property, theplaintiff is not entitled to get a decree. The plaintiff cannot takeadvantage of the weakness in the defendant's case and succeed in thesuit. The plaintiff has to either succeed or fail on the strength ofhis own case. Learned counsel further submitted that when theplaintiff has not establish his case viz. he was a bonafide purchaserfor value without notice of the charge created over the suitproperty, he is bound to fail in the suit. According to the learned https://hcservices.ecourts.gov.in/hcservices/ counsel even assuming that the purchase by the second defendant ishit by the provisions contained in section 2(2) of the Act, the samecannot be questioned by the plaintiff and it is for the Authoritiesunder the Act to question the sale in favour of the second defendant.Learned counsel further submitted even assuming that the sale made infavour of the second defendant in the court auction sale is contraryto the provisions contained in Section 2(2) of the Act and isconsidered to be void even then a decree for declaration of titlecannot be granted in favour of the plaintiff. Learned counselfurther submitted that simply because the plaintiff was not a partyto O.S.No.45 of 1959, it does not meant that the court action salethat has taken place pursuant to the decree passed in O.S.No.45 of1959 will not bind the plaintiff.14.I have carefully considered the submissions made by thecounsel on either side and perused the materials available on recordand the judgments of the courts below.15.For deciding first substantial question of law, it isnecessary to refer to the provisions contained in Section 2(2) of theAct, which reads as follows:"(2)Act not to apply to lands held by existingreligious institution or religious trust of publicnature:-It extends to the whole of the State of TamilNadu.2(1) Subject to the provisions of sub-sections (2) and (3) and of section 6, nothingcontained in this Act shall apply to lands held-(i) by an religious institution, or(ii)by any religious trust of a publicnature, which is in existence on the date of thecommencement of this Act.(2)Notwithstanding anything contained insub-section (1) no such religious institution orreligious trust of a public nature as is referredto in sub-section (1) shall acquire by any meanswhatsoever any land after the date of commencementof this Act.16.A reading of the aforesaid provision makes it clear thatany religious institution or any religious trust of a public natureis prohibited from acquiring by any means whatsoever any land afterthe commencement of the Act. It is not in dispute that the seconddefendant is a religious trust of a public nature and therefore the https://hcservices.ecourts.gov.in/hcservices/ aforesaid provision contained under section 2(2) of the Act appliesto the second defendant. Admittedly, the court auction sale hastaken place in the year 1991 i.e., after coming into force of section2(2) of the Act and therefore, the sale is hit by the said provision.But the question to be decided is as to whether the civil court inthe present suit could have gone into the validity of the sale infavour of the second defendant. Admittedly, competent authoritieshave been constituted under the Act to decide the question that arisefor consideration under the Act and the question as to whether thepurchase made by a religious trust of a public nature is contrary tothe provisions contained in section 2(2) of the Act is valid or notis a matter which could be decided by the competent authorities underthe Act and that cannot be gone into by the Civil Court. When thatbeing the position, this Court is of the considered view that thetrial court ought not have recorded a finding that the sale in favourof the second defendant is invalid. Accordingly, aforesaid firstsubstantial question of law is answered against the appellant and infavour of the first respondent.17.The second and third substantial question of law can beconsidered together as they are interrelated. Before considering theissue, as to whether the plaintiff is a bonafide purchaser for valuewithout notice of the charge created over the suit in O.S.No.45 of1959 on the file of Subordinate Court, Mayiladuthurai, it will beuseful to refer to the pleadings contained in the plaint. Inparagraph 6 of the plaint, the plaintiff has stated that she is abonafide purchaser and she was not put on notice of any of theproceedings taken in respect of the property. It is further statedthat the plaintiff is a bonfide purchaser for value without notice ofany defect in the title to the suit property. Except the aforesaidpleadings, it is not stated anywhere in the plaint that the plaintiffmade preliminary enquiries regarding the encumbrance if anysubsisting over the suit property. Likewise, it is not deposed byPW.1 that either he or the purchaser under Ex.B1, namely, theplaintiff herein made any preliminary enquiry regarding the existingencumbrance over the suit property. In the light of these vitalfacts, the claim of the plaintiff that she is a bonafide purchaserfor value without notice has to be considered. In this context, itwill be useful to refer the decision of the Full Bench of this Courtreported in "2006(4) MLJ 850 (B. Suresh Chand vs. State of TamilNadu)". In the said decision in paragraphs 25 to 29, the full Benchhas observed as under:"25.A reading of Section 3 of the Transfer ofProperty Act, 1882 leads to the conclusion that, notonly a wilful abstention from an enquiry which aperson ought to have made, but the gross negligenceto make enquiry also would amount to notice of afact to him. When the prudence of a person requireshim to make an enquiry, but due to his own https://hcservices.ecourts.gov.in/hcservices/ negligence he failed to make enquiry, he falls inthe category of a person, with notice. A purchaserof the property who claims the transaction to bebonafide without notice, the yardstick to be appliedfor the "notice" is given in Section 3 of theTransfer of Property Act, 1882 and only by theapplication of this provision, a purchaser who seeksprotection is to be identified, whether he is apurchaser for value without notice. The necessityof the purchase, the intention of the transfer, therelationship between the vendee and vendor are allvital factors to find out the reasonableness of theperson in purchasing the property. Sometimes,unexplained secrecy or the haste in the transactionsmay also throw some light on the bonafides ormalafides. To decide whether a transaction wasgenuine or bona fide or mala fide, all factsrelating to the conduct of the parties to thetransaction have to be weighed as a whole.26.The plaintiffs in this case have notdisputed the liability of their vendors to pay thesales tax, even at the time of the sales, but claimprotection under the exception clause, for which theparameters of Section 3 of the Transfer of PropertyAct 1882 have to be applied. Every purchaser fromthe assessee is naturally interested to protect theproperty and will claim to be a bona fide purchaser.For the sake of their claim, the Court cannotapprove the transaction as a bona fide sale.27.Under Section 101 of the Evidence Act,1872, whoever desireis any Court to give judgment asto any legal right or liability depending on theexistence of facts which he asserts, must prove,that those facts existed. Therefore, it is for himto establish that there was no wilful abstention ofenquiry or search of the facts, on his part aboutthe vendor before the sale transaction wascompleted.28.In this context, it will be useful to refer to Order 6 Rule2 of C.P.C which reads as follows:-"Order 6 Rule 2: Pleading to state materialfacts and not evidence :- (1) Every pleading shallcontain, and contain only, a statement in a conciseform of the material facts on which the partypleading relies for his claim or defence as the case https://hcservices.ecourts.gov.in/hcservices/ may be, but not the evidence by which they are to beproved".29.A reading of the above provisions showthat the party must plead all material facts onwhich he means to rely at the trial. If any one ofthe material fact is omitted, the statement of claimis bad and it would mean no pleading and no cause ofaction for the suit. If material facts are notpleaded, a Court cannot permit evidence to be led.In Udhav Singh Vs. Madhav Rao Scindia 1977 (1) SCC511 the Supreme Court has defined the expression"material facts" in the following words:"All the primary facts which must be proved atthe trial by a party to establish the existence of acause of action or his defence are material facts."18.If the aforesaid legal principles are applied to the factsof this case, it has to be pointed out that all the primary factswhich must by proved by the plaintiff at the trial to establish hiscase that he is a bonafide purchaser for value without notice of thecharge created over the suit property have not been stated in theplaint. No where in the plaint, it is stated that the plaintiffeither enquired with her vendor or verified with the registrationauthorities as to whether there was any existing encumbrance over thesuit property or whether the suit property was subjected to anycharge. Under Section 101 of the Evidence Act, 1872, whoever desiresany Court to give judgment as to any legal right or liabilitydepending on the existence of facts which he asserts, must prove,that those facts existed. Therefore, it is for the plaintiff toestablish that there was no wilful abstention of enquiry or search ofthe facts, on her part about the vendor before the sale transactionwas completed. As pointed out above, it is not the case of theplaintiff in the plaint that such preliminary enquiry was ever madeand therefore the parameters prescribed under section 3 of theTransfer of Property Act are applied, it should be held that theabstention on the part of the plaintiff in not making suchpreliminary enquiry will itself amount to notice of the charge, asfar as the plaintiff is concerned.19.The lower appellate court has elaborately considered theevidence of PW.1, in its judgment. In paragraph 12, the lowerappellate court has pointed out that the plaintiff has not beenexamined as a witness and a reading of the evidence of PW.1 showsthat he was not aware of anything connected with Ex.A1 sale deed.PW.1 has categorically stated that he is not aware that how the firstdefendant is entitled to the suit property and he has not seen anydocument of title pertaining to the suit property and he is not aware https://hcservices.ecourts.gov.in/hcservices/ as to whether his father verified the same and he has also statedthat before purchasing the suit property it was not verified as towhether there was any encumbrance over the suit property But thelower appellate court by inadvertance has stated as if PW.1 hadadmitted in his cross. examination that even prior to 1976, theplaintiff was aware of the charge created over the suit property. Ithas to be pointed out that a suggestion had been put to PW.1, whichhas been denied by him, but by inadvertance the lower appellate courthas taken it as an admission. But the said mistake committed bylower appellate court has not affected the finding of the lowerappellate court, because there is other evidence as pointed out abovewhich shows that PW.1 was totally unconnected with Ex.A1 sale deedand he was not aware of anything about the transaction.20.When admittedly, there is absolute lack of pleadings andthere is no evidence to show that the plaintiff was a bonafidepurchaser for value without notice of the charge created over thesuit property and the same has been properly considered by the lowerappellate court and the trial court has miserably failed to apply thecorrect legal principles to the facts of this case, this court findsno reason to interfere with the findings recorded by the lowerappellate court. The contention of the learned counsel for theappellant that since the plaintiff was not a party to the suit inO.S.No.45 of 1959, the auction sale in favour of the first respondentis not binding on him cannot be accepted. When admittedly, duringthe pendency of the said suit, the suit property had been attachedand the charge has been created legally and that has been establishedas a matter of fact and when it has been found that the appellant isnot a bonafide purchaser for value without notice of the chargecreated over the suit property the mere fact that he is not a partyto O.S.No.45 of 1959 will not in any way advance the case of theappellant. Hence, for the reasons stated above, the second andthird substantial questions of law are answered against the appellantand in favour of the first respondent. 21.The second Appeal fails and the same is dismissed.However, there will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarmra https://hcservices.ecourts.gov.in/hcservices/ To1.The Additional Subordinate Judge, Mayiladuthurai. 2.The District Munsif Court, Sirkali.3.The Section Officer,VR Section, High Court, Madras.+1cc to Mr.S.Sounthar,Advocate Sr 2819GV (CO)km/11.2.S.A.No.267 of 2000