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Before the Madurai Bench of Madras High Court
P. DEVADASS, J.
K. Paul Raj
Versus
Raju & Others
Second Appeal (MD) Nos. 483 & 484 of 2009
Decided on : 10-11-2014
Evidence Act - Section 41 - Recovery of possession - Purchased suit property - Legal issues and common arguments - Plaintiffs/spouses have instituted suit seeking injunction mainly as against 3rd defendant and his vendor - In suit schedule property comprised in Survey situate in Village in District has been shown as suit property - Principal pleadings in plaint in is on following lines - About suit property has been enjoyed by first plaintiff under an oral other/lease - During at southern portion a brick roofed house was put up - Utilizing electricity belonging to plaintiffs water has been taken through PVC pipes to suit property - Kist is being paid to suit property in name of first plaintiff - To avoid complication first plaintiff had purchased suit property from son under a sale deed Ex.A1 – Thus 1st plaintiff is having title to suit property - Possession is also with them – Held, Instead of deciding case of parties based on their evidence oral and documentary 1st appellate Court had gone into inconsequential matters such as haste in execution of Ex.B.1 sale agreement few days delay in registering Ex.B.2 - They will not militate against undeniable title of 3rd defendant emanating from documentary evidence and admissions of P.W.1 himself in his cross-examination - No doubt in his plaint plaintiff alternatively claimed recovery of possession - It may be by way of abundant caution - On evidence trial Court has found that 3rd defendant is in possession of property and granted recovery of possession also - That will not demolish case of 3rd defendant which is completely backed by evidence - This inconsequential matter has been unnecessarily magnified by first appellate Court - Admitted case of both namely plaintiffs and 3rd defendant is that 3rd defendants suit property - Trial Court having found that 3rd defendant is having title and possession to acres has granted him relief for same - Trial Court having not given any relief in favor of plaintiffs with reference to balance property would not make throwing away of entire case of 3rd defendant – Further plaintiffs have pleaded - They had stated that they are in possession in said capacity and sought for injunction - They had failed to establish their title to said and also legal possession - They have not established that they are in legal possession - In such circumstances first appellate court granting relief to plaintiffs on mere conjectures surmises and guessing is unsustainable – Thus dismissal of suit by 1st appellate Court is flawed - Appeals are allowed
As these two second appeals are connected on factual matrix and legal issues and common arguments have been advanced, we propose to render this common Judgment.
2. The 3rd defendant, namely, Paul Raj, in O.S.No.259 of 1996, in the Court of District Munsif, Usilampatti, who is also plaintiff in O.S.No.252 of 1996, in the same Court, is the appellant herein.
3. Plaintiffs/spouses in O.S.No.259 of 1996 (O.S.No.471 of 1992, District Munsif's Court, Thirumangalam) namely, Raju and Chandra, have instituted the suit seeking injunction mainly as against the 3rd defendant (appellant herein) and his vendor Radhakrishnan (first defendant).
4. In the suit schedule, property measuring 2.1 acres, comprised in Survey No.152/3, situate, in Panamoopanpatti Village, in Usilamatti Taluk, in Madurai District has been shown as suit property.
5. The principal pleadings in the plaint in O.S.No.259 of 1996 is on the following lines.
6. About 25 years, the suit property has been enjoyed by the first plaintiff under an oral othi/lease. During 1979, at the southern portion, a brick roofed house was put up. Utilizing the electricity from S.C.No.122, in Survey No.153/1, belonging to the plaintiffs, water has been taken through PVC pipes to the suit property. Kist is being paid to the suit property in the name of first plaintiff. To avoid complication, first plaintiff had purchased the suit property from Raj, son of Mayandi Thevar, under a sale deed, dated 01.06.1992 (Ex.A1). Thus, 1st plaintiff is having title to the suit property. Possession is also with them.
7. In the circumstances, in 1996, 3rd defendant, who is inimical to the plaintiffs, with the connivance of defendants 1 and 2, namely, Radhakrishnan and Santhanam, tried to interfere with plaintiffs' possession. It came to light that the first defendant had influenced the revenue authorities and obtained patta in his name for a portion of the suit property under updating registration scheme. First plaintiff objected to this to the revenue authorities. Enquiry has been initiated. Thus, defendants 4 and 5, namely, District Collector, Madurai and Tahsildhar, Usilampatti, have also been impleaded in the suit.
8. The suit has been resisted by 3rd defendant by filing a written statement, which has been adopted to by defendants 1 and 2.
9. The 3rd defendant's plea in his written statement proceeds on the following lines.
10. On 07.10.1991, under a sale agreement, the third defendant had agreed to purchase three items of properties from first defendant, namely, Radhakrishnan, son of Subramania Thevar @ Jayaraman. 2nd item is the suit property. It is western 1.39 acres, comprised in Survey No.152/3A, out of 2.1 acres. Rs.2,000/-as advance was paid (Ex.B1 sale agreement). On 03.06.1992, on receipt of the balance sale consideration, first defendant executed the sale deed in favour of the third defendant (Ex.B2 sale deed). In the said property, the third defendant raised coconut trees and also cultivates the lands. Patta has been changed in his name. Kist is being paid by him. While so, 1st plaintiff got a fictitious sale deed from a person, who has no title at all.
11. Subsequently, the said Paul Raj filed the suit in O.S.No.1260 of 1993, in the III Additional Sub Court, Madurai. After transfer, it has become O.S.No.252 of 1996, in the Court of District Munsif, Usilampatti.
12. In the said suit, Paul Raj sought for declaration as to his title to 1.39 acres, comprised in Survey No.152/3A, consequential injunction and alternatively, recovery of possession. The defendants are plaintiffs in O.S.No.259 of 1996. The allegations in the written statement of the third defendant in O.S.No.259 of 1996 is the plaint pleadings in O.S.No.252 of 1996.
13. Defendants have resisted the suit filing a joint written statement. The plaint pleadings in O.S.No.259 of 1996 is the allegations in their written statement in O.S.No.252 of 1996.
14. In both the suits, separate issues were framed by the Trial Court. The su
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