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2025 Supreme(Online)(Mad) 35174
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Vijayakumar, J
Velliammal (died) – Appellant
Versus
Chinnammal (died) – Respondent
Second Appeal | S.A.No.1509 of 2002
For the Appellants/Petitioners: Mr.P.Vinoth For Mr.R.Subramanian
For the Respondents: No appearance
Failure to establish non est factum; lack of evidence for misrepresentation and possession claims led to dismissal of the second appeal.
Headnote:(A) Civil Procedure Code - Section 100 - The plaintiffs in a suit for injunction contended they executed a sale deed believing it to be a mortgage deed due to defendant’s misrepresentation. The Trial Court decreed the suit, but the First Appellate Court dismissed it. Key legal principle of non est factum was applied to argue their intent at execution was flawed. The plaintiffs claimed continued possession and payment of interest on a sum of Rs.3500, which the court found unproven. (Paras 3, 24)
(B) The First Appellate Court's determination being that the plaintiffs were aware of the sale leads to the conclusion that they did not meet the burden of proof regarding their misrepresentation claim nor did they establish entitlement under non est factum. (Para 25)
Facts of the case:
The plaintiffs executed a document under the impression it was a mortgage deed, later realizing it was a sale deed. They claimed no intention to execute a sale deed, and sought to recover possession from defendants claiming they had been in uninterrupted possession. The defendants argued they were rightful owners, resulting in litigation over property use and transaction nature.
Findings of Court:
The appeal was dismissed as plaintiffs failed to prove that the document was void under non est factum principles, affirmed by contradictory evidence regarding their knowledge and continued possession.
Issues: The court addressed whether the lower appellate court erred regarding the application of the principle of non est factum and the impact of the plaintiffs' continuous possession on the ownership claim under the Limitation Act.
Ratio Decidendi: The court established that evidence did not support the non est factum principle claim due to the plaintiffs' awareness of the sale deed’s existence and lack of timely action to claim rights or provide proof of payments.
Result: Second appeal stands dismissed.
| Table of Content |
|---|
| 1. basis of plaintiffs' suit and interpretation issues. (Para 2 , 3 , 4 , 6 , 9) |
| 2. discussion on transaction nature and misrepresentation. (Para 12 , 13 , 17 , 18 , 19 , 20 , 21) |
| 3. conclusion reached on legal standing and appeal dismissal. (Para 22 , 23 , 24 , 25) |
JUDGMENT
The plaintiffs in a suit for bare injunction or in the alternative for recovery of possession are the appellants herein.
(A) Factual matrix:
2.The trial Court had decreed the suit as prayed for. On an appeal filed by the defendants, the First Appellate Court has allowed the appeal and dismissed the suit. Challenging the same, the plaintiffs have preferred the present second appeal.
3.The suit schedule properties are the ancestral properties of the plaintiffs. According to the plaintiffs, they approached the first defendant for loan for a sum of Rs.3500/- for which the first defendant had required them to execute a mortgage deed. Believing it to be mortgage deed, the plaintiffs are said to have executed a document on 09.10.1979 under Exhibit B1 in favour of the first defendant. According to the plaintiffs, it later turned out to be a sale deed and an agreement for reconveyance. They have never intended to execute any sale deed. The plaintiffs have further submitted that they have believed the representation of the first defendant and under the belief, they executed a mortgage deed. The plaintiffs had further contended that the possession was retained on them and they are regularly paying the interest to the first defendant. After payment of mortgage amount of Rs.3500/- in June 1991, when they requested the first defendant to return the mortgage deed, they came to know that it was not a mortgage deed but a sale deed. Hence, suit for injunction restraining the defendants from interfering with the plaintiffs' possession.
4.Pending suit, the plaintiffs have filed an application in I.A.No.387 of 1992 on 14.10.1992 alleging that the defendants have trespassed into the property on 16.04.1992. Therefore, a prayer was sought for recovery of possession and the amendment application was allowed on 15.10.1993. 5.The defendants have filed a written statement contending that the plaintiffs have executed Exhibit B1 sale deed knowing fully well that it is a sale deed after receiving full consideration. The possession was handed over to the first defendant on the date of sale deed. They are enjoying the suit schedule properties by cultivating millets and oleander flower. Therefore, the allegation that they have trespassed into the suit schedule properties on 16.04.1992 is false.
6.The first defendant had further contended that for irrigating the suit schedule properties, the water is drawn from their adjacent properties. Since patta was not transferred in the name of the first defendant, taking advantage of the same, the plaintiffs have filed the present suit. However, pending suit, patta has been transferred in the name of the first defendant. Hence, they prayed for dismissal of the suit.
7.Pending suit, an Advocate Commissioner was appointed to note down the physical features of the property and he has filed his report on 09.01.1992 along with rough sketch.
8.The trial Court proceeded to decree the suit believing the case of the plaintiffs that they were under the misconception that they are executing a mortgage deed. However, it later turned out to the sale deed. The trial Court further found that the plaintiffs have established their possession over the suit schedule properties by relying upon the kist receipts.
9.The First Appellate Court after re-appreciating the oral and documentary evidence, arrived at a finding that the plaintiffs had believed Exhibit B1 to be a mortgage deed is not believable. Relying upon the oral evidence of PW1, the First Appellate Court held that even as per the case of the plaintiffs, they were aware of the sale deed in the year 1982 and therefore, it is not believable that they had paid interest for the mortgage money till 1991. In fact,
