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2020 Supreme(Mad) 981
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. SATHISH KUMAR, J.
Kasturi Rengan – Appellant
Versus
Kaayambu (died) and Others – Respondents
Second Appeal No. 731 of 1995, C.M.P. No. 9964 of 1995
Decided On : 13-01-2020
Advocate Appeared:
For the Appellant : V.K. Vijayaraghavan.
For the Respondent: K. Vaithialingam.
Headnote:
Civil Procedure Code, 1908 - Section 100 - Registration Act - Section 17 - Payment of kits - Deal with property - Suit property originally belonged to Hariyal Field Laborers Co operative Society - Item suit property was allotted in favors of father of plaintiff one Morgan Koothan who was member in Society - Similarly Item of suit property were allotted in favors plaintiff - Society also executed deed of conveyance in favors of respective parties - Plaintiff was originally born in Ceylon when his father was working there as Estate Laborer – Held, Contended by counsel appearing for appellant second defendant that when plaintiff was minor conveyance in his favors is highly improbable - It is relevant to note that transfer of property in favors of minor or assignment is not prohibited law - Therefore even assuming that as plaintiff was minor that will not invalidate conveyance executed by Government authorities – Therefore same itself cannot be ground to doubt rights of plaintiff - Further unregistered conveyance deeds executed by Co operative Society - Same do not require any registration as per Section Registration Act in respect of grant by Government – Therefore both Courts on analysis of factual aspects have found that plaintiff is entitled to declaration and permanent injunction - This Court is also on perusal of records as discussed above found that second defendant has not proved his title and adverse possession is also not proved - Judgment cited by counsel for appellant second defendant in Pillars case cited supra when carefully seen this Court in Paragraph that mere grant of patter and payment of kits will not prove possession for more than years prior to suit - In above case this Court has found that factually plaintiff is not in possession – Appeal dismissed
JUDGMENT :
N. SATHISH KUMAR, J.
Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree made in A.S. No. 138 of 1992 on the file of the District Court, Thanjavur, dated 24.08.1993, confirming the judgment and decree of the Sub Court, Thanjavur, passed in O.S. No. 165 of 1988, dated 28.01.1992.
1. Aggrieved over the concurrent finding of the Courts below, decreeing the suit for declaration and permanent injunction, the present Second Appeal came to be filed.
2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court.
3. The brief facts of the plaintiff's case are as follows:
The suit property originally belonged to Hariyal Field Labourers Co-operative Society. Item No. 1 of the suit property was allotted in favour of the father of the plaintiff one Murugan S/o Koothan, who was a member in the Society. Similarly, Item Nos. 2 and 3 of the suit property were allotted in favour of the plaintiff. The Society also executed a deed of conveyance in favour of the respective parties. The plaintiff was originally born in Ceylon, when his father was working there as Estate Labourer. The plaintiff and his father returned to India in and around 1933 and they were in India upto 1940. Only at that time, assignment was given to the plaintiff and his father. After staying here for sometime, the plaintiff and his father went to Ceylon for eking out their livelihood. In Ceylon itself, the father of the plaintiff died leaving behind his two sons, namely the plaintiff and one Sannasi. During the absence of the plaintiff and his father, the suit property was looking after by his paternal uncle one Periannan till his life time and after him by one Thangavelu S/o Appavoo. During the absence of the plaintiff and his father, one Rakkappan @ Rajappa S/o Sundaram and Abimanyu S/o Arjunan, who are close relatives of the plaintiff, have created a document in favour of the defendants 1 and 2 as if they have sold the suit properties. The said Rakkappan @ Rajappa and Abimanyu, have no right whatsoever to deal with the property. The plaintiff was working as Estate Labourer in Ceylon till 1983 and subsequently, due to ethnic problem in Ceylon, the plaintiff could not continue his living in Ceylon. Hence, he and his family members returned to India in the month of November, 1983. Only on coming to India, he came to know that the documents were created in favour of the defendants 1 and 2. Immediately, he applied encumbrance certificate and came to know that Rakkappan @ Rajappa and Abimanyu have sold the suit property and some other properties to the first defendant, vide a registered sale deed dated 24.01.1971. The first defendant, in turn, sold some of the suit properties to the second defendant on 13.09.1972. Those documents did not convey any title to the defendants. In fact, even after the dates of document, revenue patta still stands in the name of the plaintiff. Even, during re-survey, patta has been granted to the plaintiff. Possession was all along with the plaintiff. In his absence, one Thangavelu was looking after the property. Hence, the suit for declaration and injunction.
4. The second defendant filed a written statement contending that he is a bona fide purchaser and he has purchased the property in Survey No. 47/3 having an extent of 23 cents in the year 1972. From the date of purchase, he is in possession and enjoyment of the property. The ownership of the plaintiff is also denied. Even assuming that the plaintiff has a right, the same is lost, because of the open continuous and hostile right or title of this defendant. This defendant has prescribed right or title to the item purchased by him by adverse possession and he has also obtained a legal opinion in respect of the property and got the property. The plaintiff has nothing to do with the property. It appears that the plaintiff is making impersonation or misrepresentation. This defendant also de
