Back
2019 Supreme(Mad) 90
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. Jayachandran, J.
Krishnamoorthy – Appellant
Versus
Veerabadra Gramini (deceased) and ors. – Respondents
Second Appeal No.1205 of 2004
Decided On : 11-01-2019
For the Appellant : Mrs. V. Srimathi
For the Respondent: Mr. J.Hariharan for M/s V.Nicholas
Headnote:
Stamp Act, 1899 - Section 35 - Registration Act, 1908 - Transfer of Property Act, 1882 - Section 53 A - Indian Registration Act, 1908 - Indian Registration Act 1866 - Indian Registration Act 1871 - Indian Registration Act 1877 - Agriculturists Loans Act 1884 - Land Improvement Act 1871 - Land Improvement Loans Act 1883 - Agriculturists Loans Act 1884 - Charitable Endowments Act 1890 - Property - Suit For Recovery Of Possession - Plaintiff purchased suit property under a registered sale deed for valuable consideration - Since his purchase, he is in possession and enjoyment - Plaintiff is cultivating suit property and paying kists - In 0.28 cents of land, he has raised gingely crop and has ploughed 0.32 cents land for raising paddy – While so, defendant, who is inimical and hostile towards plaintiff, attempted to trespass into suit property by casting cloud upon plaintiffs title - Attempt was prevented - To avoid such attempts in future, he prayed for declaration and for permanent injunction – Held, When suit for recovery of possession has been filed by plaintiff, he has to establish entitlement of his possession - When predecessor himself has lost entitlement of possession by permitting defendant enjoying property over period prescribed under law, vendor cannot convey a better right to plaintiff - More so, when plaintiff has come before this Court with unclean hands, suppression of facts are fatal - However, legal position is clear law that a document like sale deed in present case, even though not admissible in evidence, can be looked into for collateral purposes - In present case collteral purpose to be seen is nature of possession of plaintiffs over suit land - Sale deed in question at least shows that initial possession of plaintiffs over suit land was not illegal or unauthorized - Court finds that there is no merits in appeal to interfere with Substantial Questions of law held against appellant - Judgment and decree of lower appellate Court are confirmed and suit filed for recovery of possession is dismissed with costs – Appeal Dismissed.
The plaintiff in O.S.No.461 of 1990 is the appellant in the second appeal. Initially, the said suit was laid on 06.11.1990 for declaration and permanent injunction in respect of the suit schedule property. Later, the relief was amended for recovery of possession alleging that pending suit, the defendant with the help of his henchmen on 01.07.2000 illegally and high handedly trespassed into the suit property and forcibly taken possession of the suit property. The trial Court has allowed the suit as prayed. Hence, the present second appeal.
2. Gist of the plaint averments :
The plaintiff purchased the suit property under a registered sale deed dated 29.05.1990 for valuable consideration from one Elumalai Gramani. Since his purchase, he is in possession and enjoyment. The plaintiff is cultivating the suit property and paying kists. In 0.28 cents of land, he has raised gingely crop and has ploughed 0.32 cents land for raising paddy. Whileso, the defendant, who is inimical and hostile towards the plaintiff, attempted to trespass into the suit property by casting cloud upon the plaintiff's title. The attempt was prevented on 03.07.1990. To avoid such attempts in future, he prayed for declaration and for permanent injunction.
3. The cause of action for the suit has been shown as 29.05.1990, the date on which the suit property was purchased by the plaintiff and on 03.07.1990, the date of the alleged attempt of trespass by the defendant. Later, Interlocutory application in I.A.No.574 of 2000 was ordered on 16.10.2000 and the plaint has been amended. As per the amended plaint, it is averred that on 01.07.2000, pending suit, the defendant with the help of his henchmen had illegally trespassed into the suit property and forcibly taken possession of the suit property together with casuarina tree of 3 years old in item No.2. Therefore, as a lawful owner of the property, he is entitled for possession of the suit property. Hence, the prayer for permanent injunction has been substituted with the relief of directing the defendant to deliver possession of the suit property to the plaintiff.
4. The defendant has filed a written statement on 10.07.1990. The defendant has denied the plaint averments as false, frivolous, vexatious and unsustainable in law. According to the defendant, the suit land was originally owned by Elumalai gramani. He executed a sale agreement in respect of the suit land to the defendant on 01.06.1974 for valuable sale consideration of Rs.1500/-. On receiving Rs.1000/- towards part payment, the suit land was delivered to the defendant agreeing to receive Rs.500/- within a period of 6 months from the date of the agreement. Later, the balance consideration of Rs.500/- was paid to Elumalai Gramani and duly endorsed by Elumalai Gramani on the back of the sale agreement. Though the defendants were ready to register the sale deed, since Elumali Gramani broke his leg and fell ill, the sale deed could not be registered. Later, Elumalai Gramani left the village and migrated to Madras. Having delivered the possession of the entire suit land to the defendant and received the entire sale consideration, the defendant did not think it seriously to obtain the sale deed from Elumalai Gramani since from the date of agreement, he is in exclusive possession of the suit land, cultivating the same and paying kists.
5. The sale deed of conveyance has not been registered in the revenue records. So, the name of Elumalai Gramani was not altered. However, the kist for the land was paid only by the defendant. On 21.12.1984, there was a partition between the family members of the defendant. The suit land was allotted to Nallathambi the second son of the defendant Veerabadira gramani. The UDR patta in respect of the suit land was issued to Nallathambi and Nallathambi alone is in possession of the suit land. He is cultivating the suit land by raising crops and paying the necessary kists. Being in possession from the date of agreement (01.06.1974) for
