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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. SESHASAYEE, J.
Francis – Appellant
Versus
K. Madhavan Nair and Another – Respondents
S.A. (MD) No. 32 of 2016
Decided On : 20-11-2017
Transfer of Property Act – Sections 53, 51, 54, 105 – Code of Civil Procedure, 1908 – Sections 100, 103 – Suit for declaration of title – Possession – Appeal is preferred by the unsuccessful Plaintiff, who lost his Suit for declaration of title and for possession of the Suit property successively before the Courts below – Whether the Courts below are right in denying a Decree for possession and declaration, especially when the Sale Deeds under Ex.A1 & A2 are valid and genuine one and executed for proper consideration without applying the purport of Section 54 of the Transfer of Property Act – Whether the Courts below are right in dismissing the Suit against the Appellant without adverting to the purport of Section 51(8) & 51(9) of the Transfer of Property Act, which clearly applies to the case of the Appellant – Whether the Lower Courts below are right for non-application of mind that Section 53-A of Transfer of Property Act applicable to the 1st Respondent – Held, With no subsisting right, title or interest in the property, the Second Defendant cannot grant any lease of the Suit properties to its very title holder, the Plaintiff. – An admission cannot divest one of his right over an immovable property and confer it on another, and hence the pleading such as the one the Plaintiff has made cannot be considered as conferring any right in the Second Defendant. – Otherwise, it would lead to an anomaly in law, if a person, with no encumbrance on his property, were to become a Lessee of his own property. – It appears from the attending circumstances that the Plaintiffs pleadings on lease appears to be a plea made in desperation, aimed solely to retain possession. – It cannot affect Plaintiffs title. – Section 100 of C.P.C. does not bar an interference in situations such as these. On the other hand, it casts a duty on this Court to interfere to set right the findings that the Courts below have arrived at. Section 103 C.P.C. empowers this Court to determine any issue sufficient for the disposal of the Appeal, (a) which has not been determined by the Court of first instance and the Lower Appellate Court and (b) which has been wrongly determined by such Courts by a reason of a decision on a question of law as referred to in Section 100 of C.P.C. – If the vision is to slim down the docket pendency, and to provide prompt justice in a just cause, then right Rules must be in place for weeding out those, who gamble on the system unjustly and hinder the course of speedy justice to the deserving. – Their menace must be struck hard before it turns malignant. – Hence, there is an urgency to convert the concern expressed by the Supreme Court in Sanjeev Kumar Jain case for a realistic revision of Exemplary Costs into a strategic legislative action. – Court imposes Rs. 3,000 as Compensatory Costs on the First Defendant. – A paltry sum it is, but adequate enough to injure his conscience and offend his dignity. – Appeal Allowed
1. This Appeal is preferred by the unsuccessful Plaintiff, who lost his Suit for declaration of title and for possession of the Suit property successively before the Courts below.
I. Prelude:
2. The Suit properties herein exhibit an unabated propensity for litigation since 1981 and the present litigation is an offspring of this propensity. A preludial narrative of the facts, therefore, may enable easy appreciation of the cause that led to the current action. They are:
(i) There are two items of Suit properties. The first item of property is the Eastern 47 cents in Old No. 1708/A2 and A3 and correlated to R.S. No. 657/10 of Ponmanai Village, Kalkulam Taluk, Kanyakumari District. The second item of property is the Western 47 cents site comprised in the same Survey Number with 50 rubber trees
(ii) These properties originality belonged to one Harihara Iyer. They were outstanding on a Mortgage. The redeem the same, Harihara Iyer filed O.S. No. 65 of 1981 before the Principal District Munsiff Court, Padmanabapuram. On 1.4.1982, a Preliminary Decree was passed, and on 22.08.1984, a Final Decree for redemption too was passed. This was challenged by the Mortgagee in A.S. No. 24 of 1985.
(iii) During the pendency of A.S. No. 24 of 1985, Harihara Iyer and his sons entered into a Sale Agreement for the sale of the Suit properties with one Madhavan Nair, the First Respondent/First Defendant herein. Towards the sale price Madhavan Nair had paid an Advance amount of Rs. 8,000 under the said Agreement. Time too was stipulated for completing the sale, which was no more than a couple of months.
(iv) Pursuant to the Sale Agreement Madhavan Nair filed E.P. No. 220 of 1989 for delivery. On 15.12.1989, he took delivery of the Suit properties. The delivery list in this E.P. is marked as Ex.B1 in the present Suit. Harihara Iyer and his sons offered some resistance to Madhavan Nair taking delivery, but were unsuccessful. However, that issue is not relevant here.
(v) Thereafter, Harihara Iyer had filed O.S. No. 243 of 1996 before the District Munsiff Court, Padmanabhapuram, which was subsequently transferred to the Sub-Court, Padmanabhaharpuram and was numbered as O.S. No. 40 of 1997. This Suit was laid against Madhavan Nair, for a Decree of Prohibitory Injunction to restrain the latter from disturbing former’s possession. Madhavan Nair, for his part had filed O.S. No. 415 of 1996 before the District Munsiff Court, Padmanabhapuram, against Harihara Iyer and his sons for injunction that his possession of the Suit properties was not disturbed.
(vi) During the pendency of these Suits Harihara Iyer sold the Suit properties under two Sale Deeds, dated 3.7.1996 and 12.8.1998 to a certain Francis. He is the Plaintiff here. His two Sale Deeds are Exts. A1 and A2.
(vii) Subsequently, on 7.6.2001, O.S. No. 40/1997 that Harihara Iyer had filed was dismissed for default. The copy of the Plaint, Judgment and the Decree in O.S. No. 40 of 1997 are Exts.B2 to B4.
(viii) On 30.7.1998, O.S. No. 415/1996 that Madhavan Nair had filed was dismissed on merit. Challenging the said Decree, he preferred A.S. No. 111/1998 before the Sub-Court, Padmanabhapuram. This Appeal was later not pressed and accordingly dismissed. This copies of the Judgment and Decree in O.S. No. 415 of 1996 are Exts.A19 & A20 and those in A.S. No. 111 of 1998 are Exts.A21 & A22.
(ix) In the meantime, Madhavan Nair had filed another Suit in O.S. No. 60 of 1998 against the present Plaintiff Francis, who, to repeat, was a purchaser of the Suit property from Harihara Iyer, alleging that Francis had forcibly dispossessed him and sought recovery of possession of the Suit properties. This Suit was dismissed by the Trial Court on 11.6.2002. The copy of the Judgment of the Trial Court is Ext.B5.
(x) The Decree in O.S. No. 60/1998 was challenged by Madhavan Nair in A.S. No. 87 of 2002 before the District Court, Nagercoil, and the same was allowed. Ext.B6 is the copy of the Judgment in A.S. No. 87 of 2002. Its prima
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