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2011 Supreme(Mad) 1963
2011 (3) LW 309, 2011 (2) MWN(Civil) 472, 2011 (5) MLJ 871
G. RAJASURIA
High Court of Judicature at Madras
Sekar
Versus
Sivakumaran & Others
S.A.No.195 of 2011
Decided on : 07-04-2011
For the Appellant:P. Jayaraman, Senior counsel for K. Srinivasan, Advocate.
For the Respondents:R1 to R3, Mrs. Hema Sampath Senior counsel for R. Meenal, Advocate, R4, No appearance.
The main legal point established in the judgment is that the suit was not barred by limitation as the sale deed was not executed by the mother of the plaintiffs as their guardian, and the principle that 'possession follows title' was clarified.
Headnote:
The Limitation Act - Suit for declaration and permanent injunction - Ex.A4 sale deed executed by mother of plaintiffs - Whether suit barred by limitation - Possession follows title - No substantial question of law involved - Second appeal dismissed
Fact of the Case:
The plaintiffs filed a suit seeking declaration and permanent injunction concerning a land. The trial court dismissed the suit, but the appellate court reversed the finding and decreed the suit. The first defendant appealed, arguing that the suit was time-barred and that the sale deed should have been set aside.
Finding of the Court:
The court found that the suit was not barred by limitation as the sale deed was not executed by the mother of the plaintiffs as their guardian. The court also clarified the principle that 'possession follows title' and held that no substantial question of law was involved. The second appeal was dismissed.
Issues: The issues involved whether the suit was time-barred and whether the sale deed should have been set aside.
Ratio Decidendi: The court held that the suit was not barred by limitation as the sale deed was not executed by the mother of the plaintiffs as their guardian. The court also clarified the principle that 'possession follows title' and held that no substantial question of law was involved.
Final Decision: The second appeal was dismissed, and there was no order as to costs.
1. This second appeal is focussed by the first defendant inveighing the judgment and decree dated 28.09.2010 passed by the learned I Additional Subordinate Judge, Villupuram in A.S.No.41 of 2010 in reversing the judgment and decree dated 17.02.2010 passed by the Principal District Munsif, Ulundurpet in O.S.No.146 of 2008.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. A recapitulation and resume of the relevant facts, absolutely necessary and germane for the disposal of this second appeal would run thus:
a. The plaintiffs filed the suit seeking declaration and permanent injunction concerning the land as found described in the plaint as against the defendants.
b. The defendants filed the written statement resisting the suit.
c. Whereupon issues were framed. During trial, on the side of the plaintiffs, the second plaintiff Sakthimurugan, examined himself as PW1 along with PW2 and marked Exs.A1 to A10. On the defendants' side, D1 and D2 examined themselves as D.Ws.1 and 2 along with DW3 and DW4 and marked Exs.B1 to B5.
d. Ultimately, the trial court dismissed the suit. As against which, appeal was filed by the plaintiffs, whereupon, the appellate court reversed the finding of the trial court and decreed the suit as prayed for granting declaratory relief as well as permanent injunction.
e. Challenging and impugning the judgment and decree of the first appellate court, D1 has preferred this second appeal on various grounds and also suggesting the following substantial questions of law:
1. Whether the first appellate court is correct in passing decree and judgment in favour of the appellant in a time barred suit?
2. Whether the first appellate court is correct in passing the decree and judgment of title for declaration and permanent injunction without setting aside the registered sale made by the guardian?
(extracted as such)
4. Heard both sides.
5. The gist and kernel of the arguments of the learned senior counsel for D1/appellant would run thus:
i) The trial court correctly appreciated the facts and arrived at the conclusion that the suit was not filed within the three years even though admittedly, the first plaintiff became major long prior to the three years' period anterior to the filing of the suit.
ii) The mother of the plaintiffs sold the suit property and in such a case, they should have necessarily asked for setting aside the sale deed Ex.A4 dated 17.02.1999, which emerged in favour of D2, the guardian of his minor children and the subsequent sale deed Ex.B2 dated 05.05.2008, which emerged in favour of D1.
iii) The first appellate court wrongly held as though "title follows possession" and that the first appellate court also miserably failed to consider that patta was changed in favour of D1 after cancelling the patta in the name of the plaintiffs.
iv) Ex.A4 emerged among close relatives. It is not as though the purchaser of the property, Siva under Ex.A4 sale deed is an utter stranger to the family of the plaintiffs.
Accordingly, the learned senior counsel for the appellant/first defendant prays for setting aside the judgment and decree of the first appellate court and for restoring the judgment and decree passed by the trial court in dismissing the original suit.
6. Per contra, in a bid to torpedo and pulverise and to take the edge off the argument as put forth on the side of the appellant/first defendant, the learned senior counsel for the respondents 1 to 3 /plaintiffs would advance her argument, the pith and marrow of them would run thus:
a] In Ex.A4 the sale deed dated 17.02.1999 the mother of the plaintiffs did not project herself as the guardian for the then minors, viz., the plaintiffs. She executed Ex.A4 in her own capacity as though she happened to be the absolute owner of the suit property and in such a case, the plaintiffs were not under any legal necessity to seek for getting set aside the sale deed Ex,.A
