Advocates:
['M/S P MANI', '', 'M MAHALAKSHMI', 'M/S T M HARIHARAN']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11.03.2020

CORAM:

THE HON'BLE MR.JUSTICE R.SUBRAMANIAN

S.A.No.578 of 2014

and M.P.No.1 of 2014

S.Mani

..Appellant/Respondent/

defendant

Vs.

1. K.Mani

2. Indumathi

3. Sindhumathi

.. Respondents/Appellants/

Plaintiffs

PRAYER: Second Appeal filed under Section 100 of C.P.C., to set

aside the judgment and decree of the Subordinate Judge, Vellore,

dated 08.04.2014 in A.S.No.12 of 2013, reversing the judgment

and decree of the District Munsif, Katpadi, Vellore District,

dated 27.04.2011 in O.S.No.13 of 2010 (V.D.M.C.O.S.No.525 of

2004).

For Appellant : Mr.P.Mani

For Respondents: Mr.K.Sivasubramaniam

J U D G M E N T

The sole defendant in O.S.No.525 of 2004 who was able to

convince the trial Court to dismiss the suit for declaration of

title and recovery of possession filed by the respondents

herein, upon its reversal by the lower appellate Court in

A.S.No.12 of 2013 has come up with this second appeal.

2. The suit was laid by the plaintiffs seeking declaration

of title and recovery of possession. According to the

plaintiffs, the suit property originally belonged to the

defendant and he had entered into an agreement of sale in

respect of the suit property agreeing to sell the same to the 1^st

plaintiff for a consideration of Rs.80,000/- on 20.12.1995. On

the date of the agreement, the defendant received a sum of

Rs.70,000/- as advance leaving a balance of Rs.10,000/-. Two

years time was fixed for performance of the agreement. On the

same day i.e., on 20.12.1995, the defendant also executed a

Power of Attorney in favour of the 2^nd plaintiff, the husband of

the first plaintiff empowering him to deal with the property.

Pursuant to the said power, the 2^nd plaintiff received the

balance sale consideration from the 1^st plaintiff and executed a

https://hcservices.ecourts.gov.in/hcservices/

Sale Deed in her favour on 11.06.1997. Since the defendant

failed to deliver possession, the plaintiffs had originally

filed the suit for recovery of possession simpliciter on

11.02.1998.

Subsequently, after filing of the written

statement, the plaintiffs sought for amendment of the plaint to

include the relief of declaration and the same was granted,

thereby the prayer for declaration was included in the suit.

3. The suit was resisted by the defendant contending that

the sale agreement dated 20.12.1995 was not intended to be acted

upon, it was executed only as security for a Chit transaction in

which the defendant owed monies to the plaintiffs. The Power of

Attorney was also executed only as a security for the Chit

transaction. Thus, the sum and substance of the defence is that

both the sale agreement as well as the Power of Attorney were

not intended to be acted upon and were executed only as security

for the Chit Transaction.

4. At trial, the 1^st plaintiff was examined as PW1 and two

other witnesses were examined as PW 2 and PW 3. Exs A1 to A14

were marked. On the side of the defendant, the defendant was

examined as DW1 and one Munisamy was examined as DW2. Ex.B1 was

marked.

5. The trial Court upon a consideration of the evidence on

record, concluded that the defendant cannot resist the suit

without seeking a declaration that the Sale Deed dated

11.06.1997 is invalid or for cancellation of the Sale Deed on

the ground that it is vitiated by fraud. The trial Court

however concluded that the suit is barred by Limitation on the

ground that the prayer for declaration was sought for later.

Having held that the suit is barred by Limitation, the trial

Court dismissed the suit. Aggrieved, the plaintiffs preferred

an appeal in A.S.No.12 of 2013.

6. The appellate Court upon reconsideration of the evidence

on record and on law relating to the Limitation concluded that

since the suit was filed for recovery of possession, within t