High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.04.2009C O R A MTHE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.Nos.266 and 267 of 2008andM.P.Nos.1 and 1 of 2008Kumutha.. Appellant in S.A.266/20081. Kumutha2. Sivalingam.. Appellants in S.A.267/2008Vs. 1. Kandasamy2. Kunammal3. Mottaikkannu @ Jegan .. Respondents in S.A.266/2008Kandasamy .. Respondent in S.A.267/2008Second Appeal Nos.266 and 267 of 2008 filed against the judgmentand decree of the Subordinate Judge's Court at Dharmapuri, dated29.09.2006 in A.S.Nos.68 and 67 of 2004 respectively confirming thejudgment and decree of the District Munsif Court at Harur, dated06.08.2004 in O.S.No.552 of 1995 and O.S.No.92 of 1996 respectively.For Appellants: Mr.S.Parthasarathy,S.C. for Mr.P.ValliappanFor Respondents : Mr.S.KanniahC O M M O N J U D G M E N TThe second appeal No.266 of 2008 is focussed by Kumutha, theplaintiff in O.S.No.552 of 1995 and Second Appeal No.267 of 2007 isfocussed by the same Kumutha along with her husband Sivalingam, thedefendants in O.S.No.92 of 1996, animadverting upon the judgementsand decrees dated 29.09.2006 passed in A.S.Nos.68 and 67 of 2004 bythe Subordinate Judge, Dharmapuri, confirming the judgements anddecrees dated 06.08.2004 passed by the District Munsif Court atHarur, in O.S.No.552 of 1995 and O.S.No.92 of 1996 respectively. https://hcservices.ecourts.gov.in/hcservices/

2. In the S.A.No.266 of 2008 Kumutha alone is the appellant,whereas in S.A.No.267 of 2008 Kumutha and her husband Sivalingam arethe appellants (hereinafter referred to as appellant for conveniencesake) and Kandasamy is the first respondent in S.A.No.266 of 2008 andonly respondent in S.A.No.267 of 2008 (herein after referred to asrespondent).3. A summation and summarisation of the relevant facts, whichare absolutely necessary and germane for the disposal of these secondappeals, would run thus:(i) The appellant/plaintiff, Kumutha filed the suit O.S.No.552of 1995, seeking declaration and permanent injunction; the defendantsentered appearance and D1/Kandasamy filed the written statementresisting the suit.(ii)The respondent/defendant, Kandasamy filed the suitO.S.No.92 of 1996 for declaration and possession of the suitproperty; the defendants therein entered appearance and filed thewritten statement resisting the suit.4. The trial Court framed the relevant issues. During jointtrial of both the sides, on Kumutha's side, P.Ws.1 to 3 were examinedand Exs.A1 to A19 were marked (in O.S.No.552 of 1995). On theKandasamy's side, D.Ws.1 to 3 were examined and Exs.B1 to B12 weremarked. Exs.C1 and C2 were marked as Court documents.5. Ultimately the trial Court dismissed the suit O.S.No.552 of1995 filed by the appellant/plaintiff - Kumutha and allowed the suitO.S.No.92 of 1996 filed by the respondent/Kandasamy, as againstwhich First Appeals were filed by the appellant/Kumutha along withher husband, for nothing but to be dismissed by the appellate Court,confirming the judgment and decrees of the trial Court. Beingdisconcerted and aggrieved by the judgment and decrees of both theCourts below, these Second Appeals are focussed on various groundsand also setting out some substantial questions of law. 6. Heard both sides.7. A plain poring over and perusal of the relevant recordsincluding the typed set of papers and copies of the judgment anddecrees of both the Courts below would display and demonstrate thatKumutha, the second appellant/plaintiff filed O.S.No.552 of 1995 fordeclaration and permanent injunction on the strength of Ex.A1, thesale deed dated 07.12.1994 relating to the following suit property: https://hcservices.ecourts.gov.in/hcservices/ brhj;J tptuk;@jh;kg[hp hpo. bkhug;g{h; rg;hpo. mU:h; jhYf;fh rpd;dhft[z;lk;gl;ofpuhkj;jpy; gl;lh be 25. r/be 127-1 g[";ir bcwf;nlh; 0/58/5 jPh;itU:/0/90 (,jw;F Vy rhd;wpjH; go giHa rh;nt vz; 127-1 g[";ir Vf;fh;1/44f;F jPh;it U:/0/89) ,jpy; g[";ir bcwf;nlh; 0/29/0 (mjw;F rhpahdVf;fh; 0/72 brd;l;) ,jw;F brf;Fge;jp tpguk; ? Vhpf;F bjw;Fk;.fpHf;Fk;. fe;jrhkp epyj;jpw;F nkw;F. ckJ kPjp epyj;jpw;Fk; fe;jrhkpepyj;jpw;Fk; tlf;F ,jd; kj;jpapy; cs;s 0/72 brd;l; jPh;it U: 0/45 //@Whereas, Kandasamy, R1/D1 in S.A.No.766 of 2008 filed the suitO.S.No.92 of 1996 as against the said Kumutha and one other personvirtually based on Exs.B1 and B8 seeking declaration of title forrecovery of possession in respect of the following extent of property:@brhj;J tptuk;jh;kg[hp hp/o/ bkhug;g{h; rh; hp/o mU:h; tl;lk; rpd;dhft[z;ld;gl;oapy; fpuhk gl;lh vz; 253 g[y vz; 127-1 g[ Vf;fh; 1/44jPh;it 0/89 ic& rh;nt vz;zpy; nkw;Fg[wk; g[ Vf;fh; 0/51 brz;l; ,jw;F brf;Fge;jp ? Vhpf;F bjw;Fk;. fpHf;Fk; ? thjpapd; ,nj rh;ntvz;zpy; cs;s epyj;jpw;F nkw;Fk; thjp gpujpthjpfs; epyj;jpw;Ftlf;Fk; ,jd; kj;jpapy; cs;sJjhd;/@8. The learned Senior Counsel for the appellant would advancehis argument to the effect that both the Courts below committedserious error in simply ignoring the proceedings in REP No.20 of 1985and the related auction proceedings as per which Natesa Gounder, thevendor in Exs.A1 and B8 acquired title in respect of the entireextent of 1 acre 44 cents of land in S.No.127/1 in ChinnaKoundampatti Village. He sold on 07.12.1994 an extent of 72 cents onthe western portion of the said larger extent of land as per Ex.A1 infavour of Kumutha/appellant herein and on the same day, the saidNatesa Gounder sold in favour of Kandasamy/respondent as per Ex.B8the remaining extent of 72 cents and in such a case, therespondent/Kandasamy had no right to claim any portion of theproperty covered by Ex.A1 and in fact, the area claimed in O.S.No.92of 1996 filed by the plaintiff is covered by Ex.A1 and both theCourts below failed to take into account the very admission ofKandasamy about the proceedings in R.E.P. and also the fact that theclaim petition filed by him, based on Ex.B1 the sale deed in hisfavour, in respect of half portion in the larger extent of 1 acre 44cents having been dismissed. https://hcservices.ecourts.gov.in/hcservices/

9. Whereas, the learned counsel for the respondent/ Kandasamywould develop his argument that both the Courts below correctly heldthat Natesa Gounder had only 72 cents of land in S.No.127/1, whichwas sold as per Ex.B8 the registered sale deed dated 07.12.1994.Whereas, Ex.A1 alleged to have emerged on 07.12.1994, was registeredbelatedly, so to say, later than Ex.B8. The remaining extent of 72cents in S.No.127/1 was already purchased by Kandasamy as per Ex.B1dated 17.07.1972 and accordingly he prayed for dismissal of both theSecond Appeals.10. After hearing both sides for some time, the followingsubstantial questions of law have been framed:(i) Whether both the Courts below were justified inplacing reliance on Ex.B1 dated 17.07.1972 and Ex.B8 dated07.12.1994 in deciding the matter in favour of thedefendants? Or (ii) Whether both the Courts below committed error inignoring the REP No.20 of 1985 proceedings and the claimpetition filed by the defendants and dismissed as admittedby them before the trial Court.11. The available unassailable and indubitable facts andcircumstances ex facie and prima facie, would make it clear that therespondent/ Kandasamy has tried his level best to create a cloud inthe title of Kumutha/appellant as though already Kandasamy purchasedas per Ex.B1, half of the said entire extent of 1 acre 44 cents ofland and what remained was only 72 cents in the larger extent of 1acre 44 cents of land and that extent only was acquired by NatesaGounder, who in turn sold that also in favour of Kandasamy Gounder asper Ex.B8. Put simply, the contention of Kandasamy Gounder ignoresin toto the factum of the proceedings in REP, despite he havingadmitted during trial supinely and categorically the auctionproceedings.12. The learned Senior Counsel for the plaintiff wouldappropriately and appositely, correctly and convincingly draw theattention of this Court to the deposition of D.W.1 during crossexamination and hence it is extracted hereunder for ready reference.@1972y; gpujpthjpaplk; 8 Vf;fh; epyk; th';fpndd;/ me;jr; brhj;Jf;fs;vd;dplk; jhd; ,Uf;fpwJ/ ehd; fpiuak; bgw;w brhj;J ed;dpaft[z;lUf;F ghj;jpag;gl;l brhj;Jk; Vyj;jpw;F te;jJ/ enlrft[z;lhplk;th';fpa fdFf;fhf Vyj;jpw;F te;jJ/ vy;yh brhj;Jf;fisa[k; https://hcservices.ecourts.gov.in/hcservices/ Vyj;jpy; vLj;Jtpl;lhh;/ 1972y; th';fpa brhj;jpd; fpiuag;gj;jpuj;ijePjpkd;wj;jpy; xg;gilj;Js;nshk;/ 1994f;F gpwF jhd; xg;gilj;njd;/enlrft[z;lh; Vyj;jpw;F bfhz;L te;jnghJ ,J vd; jdpg;gl;lbrhj;J/ ,ij Vyj;jpw;F bfhz;L tuf;TlhJ vd;W ehd; tHf;Felj;jpndd;/ me;j tHf;fpy; vd; fpiuag;gj;jpuj;jpd; mry;jhf;fy;bra;jpUe;njd;/ Vyj;jpw;F gpd;dpl;L vy;yhk; enlrft[z;lh;brhj;jhfptpl;lJ/ ehd; nghl;l tHf;F js;Sgo Mfptpl;lJ/ 1972y;ehd; epyk; th';Fk;nghJ rf;Fgw;wp nghl;L th';ftpy;iy/ bghJtpy;ghjpjhd; vd;W fpiuak; th';fpndd;/ bghJ brhj;jpy; ve;j ghjp vdf;FtHf;F nghl;L eh';fs; gphpj;Jf; bfhs;stpy;iy/@13. A bare perusal of the above excerpt from the deposition ofKandasamy would unambiguously and unequivocally highlight the factthat Natesa Gounder in the Court auction sale purchased the entireextent of 1 acre 44 cents in S.No.127/1. As against the same, thesaid Kandasamy/respondent herein preferred claim petition based onEx.B1 and it was also dismissed and in such a case, absolutely thereis no rhyme or reason on the part of the Kandasamy/the respondent incontending that as per Ex.B1 already in the said larger extent of 1acre 44 cents, he had acquired 72 cents and there was only remaining72 cents which he purchased under Ex.B8 and thereby he became theowner of the entire extent of 1 acre 44 cents of land. The admissionabout the previous proceedings and the relevant facts are admissiblein evidence and there could be no doubt about it. The decision ofthis Court reported in 1999(I) CTC 36 [Subbammal vs. MasanamuthuThevar and other] has been cited on the appellant's side. An excerptfrom it would run thus: "34. It is to be pointed out that Section 31 of theEvidence Act provides that admission is not conclusiveproof of the matter admitted but they may operate asestopped. It is well accepted that admissions is the bestevidence. Admission in the pleadings by a party inevidence conclusive. It is to be pointed out that thedefendants 1 and 2 or that matter D.W.1 had not admittedthe title to the suit property but what they have admittedis the execution of a sale agreement to sell and affixingof their signatures and the concluded contact as well asthe stipulations therein. Even before the filing of thesuit and in the reply notice also the defendants 1 and 2have admitted the concluded sale agreement. The decisionsrelied upon by the learned counsel for the appellant, in myconsidered view will have no application to the facts ofthe case as the admission is not with respect to theidentity or interest which they have already conveyed infavour of the third defendant as they ceased to be the https://hcservices.ecourts.gov.in/hcservices/ owner thereof. But the admission is with respect to theconclusion of the sale agreement, which the defendants 1and 2 being parties to the agreement Ex.A.1 have admitted.An admission of a party to an attested document of itsexecution is sufficient to prove its execution as againstthe executant. The admission in the present case relatesto the person who actually executed the sale agreement andit is in the pleadings as well as in the evidence in thepresent case. The admission of execution by defendants 1and 2 is sufficient to prove against the said executant.In the circumstances, this Court holds on the admission ofdefendants 1 and 2 Ex.A.1 could be very much be relied uponand the plaintiff is entitled to enforce the agreement.38. Mr.K.Srinivasan relied upon the passage in the textbook on Treaties of Specific Performance of Contracts byFRY (Sixth Edition). In the said book at page 247 it hasbeen held thus:-510.... "As seen as the fact is established of the finalmutual assent of the parties to certain terms, and thoseterms are evidenced by any writing signed by the party tobe charged or his agent lawfully authorised, there existall the materials, which this Court requires, to make alegally binding contract.515....The statute requiring that the agreement, or thememorandum or note thereof, shall be signed by the party tobe charged therewith, or his agent, and not requiring thatit shall be signed by both parties to the contract, it hasbeen held, both in courts of Equity and also in Common LawCourts, that a signature by the party against whom thecontract is sought to be enforced is sufficient."But both the Courts below without going the whole log in readingmeticulously the depositions of the parties concerned, misdirectedthemselves by resorting to perverse reasoning as though for NatesaGounder only 72 cents were available and it was purchased byKandasamy from him. 14. The learned counsel for the Kandasamy/respondent wouldinvite the attention of this Court to the Kumutha/the appellant'splaint in O.S.No.552 of 1995 and develop his argument that there isadmission in the plaint by the appellant herself in favour ofKandasamy, which runs as under: @1k; vjph;thjp thjpapd; gf;fj;J epyj;Jf;fhuh;/ 2k; vjph;thjp 1k;vjph;thjpapd; kidtpa[k;. 3k; vjph;thjp 1. 2 vjph;thjpfspd; FkhuUk; MFk;/ https://hcservices.ecourts.gov.in/hcservices/ 1k; vjph;thjp jhth brhj;ija[k; ,ju brhj;Jf;fisa[k; thjpfs; Kd;ghj;a!;jhplkpUe;J fpuak; bgw nghl;o nghl;L jhth r be 127-1 g[/vz;1/44y; 0./72 brd;l; kl;Lnk fpuak; bgw Koe;jJ/ kPjp 0/72 brd;l; ,e;jthjp fpuak; bgw;whh;/ thjp fpuak; bgw;w gpd;Dk; 1k; vjph;thjp jhthbrhj;ij thjpaplkpUe;J fpuak; bgw Kaw;rpfs; bra;J njhy;tpa[w;wjhy;Fnuhjk;/ ,nj rh;nt bek;ghpy; thjpf;F bjw;fpYk; epy';fs; cs;sd/@ No way the said excerpt would indicate any admission by Kumutha infavour of Kandasamy, as the above narration would clearly indicatethat Kandasamy tried to purchase the property covered under Ex.A1,but he failed to get it and thereby he developed enmity.15. At this juncture, it is just and necessary to refer to therecitals in Ex.A1 and Ex.B8. In Ex.B8, the sale deed dated07.12.1994, there is clear narration detailing and delineating thefact that Natesa Gounder in R.E.P. No.20 of 1985 in O.S.No.157 of1977 purchased the suit property. An excerpt from it would run thus:@,g;gt[k; vdf;F mU:h; o/K/nfhh;l; buFy; vf;rpf;a{rd;bgl;ord; vz; 20-1985,d; X/vz; 157-1977 ehs; 23/3/1989y; Vw;gl;lfha cj;jputpd;go ghj;jpag;gl;L vdJ bgahpy; gl;lhtfp cs;s fPnHbrhj;Jtpguj;jpy; tpthpf;fg;gl;Ls;sJkhd ///// @The description of the suit property in Ex.B8 also is reproducedhereunder for ready reference:@jUkg[hp hpo bkhug;g{h; rg;hpo mU:h; jhYf;fh rpd;dhft[z;lk;gl;o fpuhkj;jpd; vdf;F nkw;o Vy cj;jputpd;go Rahh;$pjha;g;ghj;jpag;gl;L Vw;fdnt cd;dpl mDgt RthjPdj;jpy; ,UJ te;J ,d;Wcd;dpl RthjPdj;jpy; ,Ue;JtUk; g[";ir rh;nt vz; 121-gp bcwf;nlh;0/66/0f;Frhpahd g[";ir Vf;fh; 1/64f;F jPh;it 0/51 bgw;w epyk; ,jw;F Vyrhd;dpjH;go giHa rh;nt vz; 121-3 g[";ir Vf;fh; 1/64 jPh;it 0/51(,jw;F rhpahd g[";ir Vf;fh; 1/64) cs;s epyk; g{uht[k; ,Jt[k;. rh;ntvz; 121-6gp g[";ir bcwf;nlh; 0/12/0 jPh;it 0/07 (,jw;F Vy rhd;wpjH;gorhpahd giHa rh;nt vz; 121-6 g[";ir Vf;fh; 0/04 brd;l;Lf;F jPh;it0/21) cs;s epyk; g{uht[k; (,jw;F rhpahd Vf;fh; 0/30 brd;l;) ,Jt[k;rh;nt vz; 127-1 g[";ir bcwf;nlh; 0/58/5 jPh;it 0/90 ,jpy; g[";irbcwf;nlh; 0/29/0 (,jw;F Vy rhd;wpjH;go rhpahd giHa rh;nt vz; 127-1 g[";ir Vf;fh; 1/44 jPh;it 0/89) cs;s epyk; ,jpYs;s bkhl;il fpzh;xd;Wk; ,jw;F brf;Fge;jp tpguk;. Vhpf;F bjw;F rpd;dhf;fs; epyj;jpw;Fnkw;F ck;Kila kPjp epyj;jpw;F tlf;F FKjht[f;F fpiuak; bra;a[k;epyj;jpw;F fpHf;F ,jd; kj;jpapy; g[";ir bcw;fnlh; 0/29/0 epyk; jhd; https://hcservices.ecourts.gov.in/hcservices/ (,jw;F rhpahd Vf;fh; 0/72 brd;l;) kl;Lk; ,Jt[k; rh;nt vz; 122-6 g[";ir bcw;fnlh; 0/35/0 jPh;it 0/22 (,jw;F Vy rhd;wpjH;go giHa rh;ntvz; 122-6 g[";ir Vf;fh; 0/86 jPh;it 0/22) ,jpy; g[";ir ////@16. A plain reading of the above excerpt from Ex.B8 includingthe entire Ex.B8 would clearly indicate and convey that Kandasamy isthe purchaser of the said property referred in Ex.A8 measuring 72cents of land, out of the entire extent of 1 acre 44 cents of landafter the other 72 cents which was sold by Natesa Gounder in favourof Kumadha as per Ex.A1. Kandasamy clearly admitted that NatesaGounder happened to be the absolute owner of the extent of 1.44 acresand out of that Kandasamy purchased the eastern half measuring 72cents. No purchaser having head over shoulder would ever venture toaccept the sale deed Ex.B8 with such recitals referred to supra if hehappened to be the owner of the remaining extent of 72 cents alreadyin the said larger extent.17. By way of adding fuel to the fire and by way of worseningthe case of Kandasamy, in Ex.B8, it is also found recited that thearea purchased under Ex.B8, is situated to the east ofKumutha/appellant's land. In Ex.A1 also the said Natesa Gounderwhile executing the sale in favour of Kumutha/appellant recited aboutthe said REP proceedings and also stated that he was selling 72 centsof land, viz., the western half of said extent of 1.44 acres inS.No.127/1.18. It is therefore pellucidly and palpably clear that both theCourts below wrongly analysed the evidence and their understanding ofthe case was nothing short of perversity warranting interference bythis Court.19. The contention on the side of Kandasamy/respondent thatEx.A1 dated 07.12.1994 was registered belatedly, was considered as animportant fact by the First Appellate Court and simply misdirecteditself. Here there is no contradiction between Ex.A1 and Ex.B8, asEx.A1 is relating to the western half and Ex.B8 to the eastern halfof the said entire extent of 1.44 acres. As such, mere belatedregistration of Ex.A1 is having no adverse effect at all to the caseof the appellant. Further more the Ex.A1 is anterior to Ex.B8 as therecitals and the description of the property in Ex.B8 would revealthe same.20. The learned Senior Counsel cited the following decision ofthe Hon'ble Apex Court:2009-1-L.W.1 [State Bank of India and others v. S.N.Goyal],and developed his argument that when there is perversity in thefindings of both the Courts below, the High Court could interfere in https://hcservices.ecourts.gov.in/hcservices/ the Second Appeal as per Section 100 CPC. I would also like to referto the other decisions of the Hon'ble Apex Court:(i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL.(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER.A perusal of all these decisions would clearly indicate and conveythat when there is perversity in appreciating the evidence on thepart of the Courts below, Section 100 CPC would be attracted and theHigh Court is bound to interfere with the judgments of both theCourts below.21. Accordingly, the substantial question of law No.1 is decidedto the effect that both the Courts below committed serious error ingiving weightage to Ex.B1 in favour of Kandasamy and misconstruedEx.B8 and correspondingly Ex.A1 also.22. In view of the my discussion supra, the substantial questionof law No.2 is decided to the effect that by ignoring to consider theadmission made by Kandasamy in his deposition, both the Courts belowignored the significance of the REP proceedings and also failed totake note of the importance of the recitals in Ex.A1 and Ex.B8;wherefore, the findings of both the Courts below were nothing, butperverse, warranting interference by this Court. 23. The net result is that the judgments and decrees of both theCourts below are set aside and the O.S.No.92 of 1996 filed byKandasamy shall stand dismissed and the O.S.No.552 of 1995 filed byKumutha shall stand decreed as prayed for. Accordingly, the decreeshall follow. In the result the Second Appeals are allowed. Nocosts. Consequently, connected miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrargms https://hcservices.ecourts.gov.in/hcservices/ To1. Subordinate Judge at Dharmapuri,2. District Munsif Court at Harur.2 cc To Mr.P.Valliappan, Advocate, SR.12229S.A.Nos.266 and 267 of 2008pur(co)pmk.16.6.2009