Madras High Court
Thukkaram vs Shanthi Varadharajan on 17 December, 2014
Author: R.Mahadevan
Bench: R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 17.12.2014. CORAM THE HON'BLE MR.JUSTICE R.MAHADEVAN S.A.No.324 of 2006 Thukkaram ...Appellant vs. 1. Shanthi Varadharajan 2. Kasthuri Bai ...Respondents Second Appeal against the judgment and decree dated 07.12.2004 made in A.S.No.109 of 2002 on the file of the VI Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 30.04.2001 in O.S.No.7760 of 1988 on the file of the XIII Assistant City Civil Court, Chennai. For appellant : Mr.A.R.Nixon For respondent-1 : Mr.V.Ragavachari For respondent-2 : Mr.P.Ayyasamy JUDGMENT RESERVED ON : 30.10.2014 JUDGMENT
Plaintiff has preferred the second appeal, aggrieved against the concurrent finding of the courts below in dismissing the suit filed by him for declaration of title and permanent injunction.
2. The case of the plaintiff before the Trial Court was that he is the absolute owner of the 'A' schedule property including the common pathway measuring 2= feet in width and 42= feet in length, having purchased the same by a registered sale deed dated 24.03.1983. The first defendant is the owner of the 'B' schedule property, including the pathway measuring 2= feet in width and 42= feet in length, having purchased the same by a registered sale deed dated 23.05.1985. The plaintiff, his tenants and the first defendant are using the said common pathway to reach their respective portions. The plaintiff has a Press in the front side of 'A' schedule property, which got direct entry from the street. Except the common pathway, there is no other pathway for the plaintiff to reach the rear portion (behind the Press) of 'A' schedule property and the first floor. The first defendant is attempting to interfere with the plaintiff's right to use the common pathway and issued a notice on 21.04.1988 claiming the pathway as his absolute property, for which the plaintiff caused a suitable reply dated 02.05.1988. Hence, the suit.
3. The suit was resisted by the first defendant, by filing written statement and reply statement, contending that she is the purchaser of the rear portion of the 'A' schedule property along with pathway from the second defendant, who is the wife of the plaintiff; and that with the knowledge of the plaintiff, the entire right of using the suit pathway was sold away to the first defendant and the plaintiff, who is aware of the alieantion of the pathway by his wife to the first defendant, has now come forward with the relief of declaration of title and permanent injunction. The first defendant allowed the plaintiff and his tenants to use the pathway only on licence basis and the first defendant had terminated the licence granted to the plaintiff by issuing a legal notice dated 21.04.1988. Hence, the plaintiff has no right in the pathway, which had been exclusively purchased by the first defendant. Therefore, the first defendant prayed for dismissal of the suit.
4. The second defendant, who is none oher than the wife of the plaintiff, virtually supported the case of the plaintiff by contending that what was conveyed was only 'B' schedule property with the common pathway measuring 42= feet x 2= feet from Singanna Chetty Street and that both the plaintiff and first defendant are entitled to use the common passage.
5. The Trial Judge framed the following issues:-
1.Whether the plaintiff is having any right over the common pathway ?
2.Whether the defendant No.1 is the owner of the common passage and revoked the permission granted to the plaintiff?
3.Whether the plaintiff is entitled for declaration prayer ?
4.Wheher the plaintiff is entitled for injunction prayer?
5.For what relief ?
6. Before the Trial Court, the plaintiff examined himself as PW1 and examined one more witness as PW2 and marked five documents. On the side of the defendants, three witnesses have been examined and fifteen documents were marked. The Trial Court, on analysis of the oral and documentary evidence adduced on both sides, dismissed the suit. Aggrieved against the same, the plaintiff preferred the appeal before the first appellate Court. The first appellate court confirmed the finding of the Trial Court and dismissed the appeal. Aggrieved against the concurrent judgment and decree of both the courts below, the present second appeal has been filed.
7. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal:
a) "Whether the courts below were correct in dismissing the suit when the suit passage was mentioned as common passage under Exs.A1 and A2 and in holding that the appellant did not prove that the suit passage as common passage.
b) Whether the courts below were correct in holding that the appellant had the knowledge about the sale of the suit common passage as absolute passage of the first respondent by the second respondent since the appellant attested the sale deed under Ex.A5."
8. The arguments advanced by Mr.A.R.Nixon, learned counsel for the appellant and by Mr.V.Raghavachari, learned counsel appearing on behalf of the respondents are heard in detail. The materials available on record are also perused.
9. Mr.A.R.Nixon, learned counsel for the appellant has submitted that the Courts below have not taken into consideration that in Ex.A1 sale deed, dated 24.03.1983, executed in favour of the appellant and Ex.A2 sale deed, dated 18.04.1983, executed in favour of the second respondent, the pathway was described as common pathway, however, in Ex.A5 sale deed, dated 23.5.1985 executed in favour of the first respondent, the common pathway was mentioned as absolute pathway by the second respondent, which cannot be done as per the decision in C. Rameswaran and 4 others vs. N. Sambandam and 8 others (2009 (2) CTC 119) and in A. Chandran and another vs. Periyammal (2011 (1) CTC 663).
10. On the other hand, Mr.V. Ragavachari, learned counsel appearing for the respondents has submitted that what was conveyed to the first respondent was not the common pathway, which was the absolute passage of the second respondent and therefore, it was conveyed to the first respondent as the absolute passage. Further, it was not proved by the appellant that the suit pathway was the common pathway by both oral and documentary evidence.
11. At this juncture, it is pertinent to refer to the property details found in Ex.A1, dated 24.03.1983, Ex.A2, dated 18.04.1983 and Ex.A5, dated 23.05.1985 sale deeds.
12. Property details found in Ex.A.1 sale deed, dated 24.03.1983 read thus:-
brhj;jpd; tptuk;
kjuh!; hpo. bghpabkl;L hPrg;o. brd;id. Rpe;jhjphpg;ngl;il. Rp';fz;z brl;o bjU. nkyz;il thilapy;. tlf;fpy;. lhf;lh; b$fd;nkhfd; tPL. bjw;fpy; v';fSf;F brhe;jkhd nlhh; be.123 bfhz;l tPL kida[k;. ,ijr; nrh;e;j gpd; ghfj;Jf;F nghFk; 2/6 mo re;Jk; fpHf;fpy; rp';fz;z brl;o bjU. nkw;fpy; gpd;ghfk; tPL kid. ,jd; kj;jpapy; fpH nky; tlg[uk; 52/6 mo. bjd;g[uk; 36/9. 15/9 mo. bjd;tly; fPH;g[uk; 30/9 mo nky;g[uk; 24/9 mo. ,jw;F Toa 1516 rJuo bfhz;;l kida[k; ,jpy; cs;s Xl;L tPLk; bjd; tly; 2/6 mo mfy re;jpd; tHp ghj;jpaij cs;go vbyf;ohpf; gpl;o';!;. rh;tP!; cl;gl. ,j;Jld; nrh;e;Js;s gpnsdpy; rpfg;g[ fyh; bfhLj;jpUg;gJ fpuak; bra;a[k; Kd;ghfk; ,jd; nlhh; be/124. ghh;l. Kd; nlhh; be/105. giHa be/ 2-81. ,jd; hPrh;nt be/614-1 ghh;l;/
13. The details of the property mentioned in Ex.A2, dated 18.04.1983 are as under:-
brhj;jpd; tptuk;
kjuh!; hpo. bghpabkl;L hPrg;o. brd;id. Rpe;jhjphpg;ngl;il. Rp';fz;z brl;o bjU. nkyz;il thilapy;. 2/6 mo mfy re;jpy;. tlf;fpy;. b$fd;nkhfd; tPL kida[k;. Vw;fdnt fpuak; bra;j Kd; ghfk; tPLk;. bjw;fpy; v';fSf;F brhe;jkhd nlhh; be.123 rp';fz;z brl;o bjU tPL kid. nkw;fpy; uj;jpd Kjypahh; tPL kid. fpHf;fpy; Vw;fdnt Jf;fhuhk; mth;fSf;F fpuak; bra;j Kd; fl;Lk;. Rp';fz;z brl;o bjUt[f;F nghFk; 2/6 mo mfy bghJ re;Jk;. ,jd; kj;jpapy; bjd;g[uk; Rth; c;sgl 1012 rJuo bfhz;l kida[k; ,jpy; cs;s Xl;L tPLk;. ,jd; nlhh; be/124. ghh;l. Kd; nlhh; be/105. giHa nlhh; be/ 2-81. ,jd; rh;nt be/614-1 ghh;l;/
14. The schedule of the property found in Ex.A5, dated 23.05.1985 is as under:-
SCHEDULE House, land and premises No.124/1, Singanna Chetty Street, Chinthadripet, Madras bounded on the North by Dr. Jaganmohan's house and the Door No.124/1. Belongs to Vendor's husband; South by : Kandaswamy and Mankayar Karase Ammal's House, West by : Rathna Mudaliar's house: East by : Thukkaram's house and Singanna Chetty Street with 3' Pathway runs East to West 42' 6' to the extent of 1072 sq.ft., situate in the Sub Registration District of Periamet and Registration District of West Madras bearing Re-Survey No.614/1 part. The Yellow Colour portion sold shown in the sketch annexed herein.
15. In Ex.A1 sale deed, dated 24.03.1983 executed in favour of the appellant, it is clearly stated that including the right to use the passage. In other words, the appellant is permitted to use the common passage measuring 2.6'.
16. In Ex.A2, sale deed, dated 18.04.1983 executed in favour of the second respondent, it is categorically stated that, including the common passage measuring 2.6' leads to Singanna Chetty Street. It means that including the right to use the common passage.
17. Apart from that in Ex.A2 sale deed, dated 18.04.1983, it is stated as under:-
Mf nkw;go mapl;lk; MWf;Fk; fpuaj; Jif U:gha; Kg;gj;jp Ie;jhapuKk; Fiwtpd;wp g{uhtha; jh';fs; j';fsplkpUe;J bgw;Wf; bfhz;Ltpl;lgoapdhy;. moapy; bc&oa{ypy; fz;oUf;Fk; goahd re;jpd; tHp ghj;jpaj;ij cs;go gpd;ghfk; Xl;L tPL kidia ,d;nw j';fSf;F Rj;j tpf;fpuak; bra;J bfhLj;J brhj;ija[k; ,d;iwa njjpapy; j';fspd; RthjPdKk; bra;J bfhLj;Jtpl;nlhk;/
18. From the above, it is clear that the passage mentioned in both the documents as common passage and it is not the absolute passage of anybody. If it is so, then it would have been mentioned in Ex.A2 as the absolute passage instead of common passage. Even in Ex.A1 also, it is mentioned that the appellant was permitted only to use the passage as it was the common passage. Otherwise, it would not have been shown as passage, but it would have been included in the area of the property sold.
19. On the contrary, in Ex.A5 sale deed, dated 23.05.1985 executed in favour of the first respondent, it is stated that, with 3' Pathway runs East to West 42' 6' to the extent of 1072 sq.ft."
20. Now, the first question is, how the pathway measuring 2.6' was extended to 3' pathway. The second question is, how and when the common pathway became the absolute pathway. For these two questions, there is no answer from the respondents side. There is no oral and documentary evidence to prove the answers to the said questions.
21. A plain reading of Section 146 C.P.C., shows that it is an enabling provision. All that it says is that what can be done by a person, can always be done by another claiming under him. As a corollary, what cannot be done by a person, cannot also be done by someone claiming under him. This is on account of the fundamental principle, no one can confer a better title than what he himself has (Nemo dat qui non habet). This is the observation of the learned Single Judge of this Court in C. Rameswaran and 4 others vs. N. Sambandam and 8 others (2009 (2) CTC 119).
22. As rightly observed by the learned Single Judge of this Court in A.Chandran and another vs. Periyammal (2011 (1) CTC 663) that No vendor could have sold in excess of what he had, the second respondent could not have sold the passage measuring 3' to the first respondent under Ex.A5 as she had purchased only the common pathway measuring only 2.6' . To clarify, how the common passage has become the absolute passage of the first respondent and how the area of the passage has been extended to 3', absolutely, there is no evidence on the part of the respondents. When the vendor of the second respondent had sold only the common passage of 2.6', how she could have sold the common passage as absolute passage of 3'. The second respondent cannot confer a better title to the first respondent than what she herself has (Nemo dat qui non habet), or otherwise, the second respondent should have proved by both oral and documentary evidence, how she conferred a better title to the first respondent than what she had. This is totally absent in the case on hand.
23. Further, in the rejoinder of the learned counsel for the appellant, dated 04.07.1988, to the reply notice of the first respondent, dated 21.06.1988, it is stated as under:-
Further, the sale deed, dated 18.4.1983 registered as document No.440/83, the sale deed in favour of my client, dated 24.3.1983 registered as document No.317/83, are all very much clear about the common pathway. It was clearly described in the schedule of the above said documents, that it is only a common pathway. ................. Till this date, your client has not issued any notice or letter to your client's vendor about your client's grievance, will itself show that your client claim itself is false and motivated.
24. The above rejoinder also clearly shows that what was conveyed to the first respondent by the second respondent was only a right to use the common passage. To prove the case of the first respondent, he should have examined the second respondent as witness on his side. The non examination of the second respondent, who is the vendor of the first respondent, is really a fatal to the case of the first respondent. Therefore, the contention of the learned counsel for the appellant has to be accepted.
25. Mr.V.Ragavachari, learned counsel for the respondents vehemently contended that the appellant has signed as a witness in Ex.A5, dated 23.05.1985 and therefore, he knew the contents of the said document and only with the consent of the appellant, Ex.A5 has been executed and therefore, now the appellant should not claim any right in the absolute passage of the first respondent.
26. Per contra, Mr.A.R.Nixon, learned counsel for the appellant has submitted that at the request of his wife/the second respondent, the appellant had signed in Ex.A5 as witness and therefore, the contention of the learned counsel for the first respondents that since the appellant had singed in Ex.A5 as witness knowing very well the contents of Ex.A5, now the appellant cannot be allowed to claim any right in the absolute passage, cannot be accepted.
27. The learned counsel for the appellant has submitted that in the evidence of P.W.1, he has clearly deposed that he did not read the contents of Ex.A5. Further, he deposed that since his wife asked him to sign as witness, otherwise, the party would not buy the property and therefore, he had signed as witness in Ex.A5.
28. In support of his contention, he relied upon the following decision in Ella Ammal vs. Kothambu Ammal (2011-3-L.W.884). In this case, the learned Single Judge of this Court has observed that by attesting the document, it cannot be stated that the attesting witness have accepted the title of the owner of the adjacent property. Section (3) of the Transfer of Property Act, deals with meaning attested which is as follows:-
the word attested in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the present and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.
29. The learned Single Judge while expressing his opinion that the attestation of an instrument does not by itself fix the witness with a knowledge of its contents, has referred to the decision in Pandurang Krishnaji vs. Markandey Tukaram, wherein the Judicial Committee has observed that, attestation of a deed by itself estops man from denying nothing whatever excepting that he has witnessed the execution of the deed. It conveys, neither directly nor by implication, any knowledge of the contents of the document and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction which the document effects. It is, of course, possible that an attestation may take place in circumstances which would show that the witness did, in fact, know of the contents of the documents but no such knowledge ought to be inferred from the mere fact of the attestation.
30. The learned Single Judge has further observed that mere attestation is not enough to involve the witness with knowledge of the contents of the deed, and that is equally true of the witnesses, who identify the executant before the Registrar.
31. In the light of the above cited decision, since the appellant singed as witness in Ex.A5, no one can come to a conclusion that the attesting witness should know all the contents of Ex.A5. The very purpose of having the signature of attesting witnesses is to prove whether the executant has signed the document in the presence of the attesting witness or any other witness signed in the document in the event of denial of the executant or any other party to that document either denying their presence or their signature.
32. In view of the above, the contention of the learned counsel for the respondents that since the appellant has singed in Ex.A5, he has consented that the suit passage is not a common passage and that it is an absolute passage of the first respondent, cannot be accepted.
33. Further, the learned counsel for the appellant vehemently contended that when the first respondent had purchased the suit property along with the passage, she should have known the nature of the passage by perusing Ex.A1 sale deed, which was executed earlier relating to the adjacent property. As per the settled maxim that, Let the purchaser beware, the first respondent should have been diligent while purchasing the suit property.
34. In support of his submission, the learned counsel for the appellant relied on the decision in Commissioner of Customs (Preventive) vs. M/s. Aafloat Textiles (I) Pvt. Ltd., and others (2009) STPL (LE) 41711 SC), wherein, the Division Bench of the Hon'ble Apex Court has observed as under:-
The maxim caveat emptor is clearly applicable to a case of this nature. As per Advanced Law Lexicon by P. Ramanatha Iyer, 3rd Edn. 2005 at page 721: Caveat emptor means Let the purchaser beware. It is one of the settled maxims, applying to a purchaser who is bound by actual as well as constructive knowledge of any defect in the thing purchased, which is obvious, or which might have been known by proper diligence. Caveat emptor does not mean either in law or in Latin that the buyer must take chances. It means that the buyer must take care. "
35. Their Lordships have further held that caveat emptor is the ordinary rule in contract. A vendor is under no duty to communicate the existence even of latent defects in his wares unless by act or implication he represents such defects not exist. Applying the maxim, it was held that it is the bounden duty of the purchaser to make all such necessary enquiries and to ascertain all the facts relating to the property to be purchased prior to committing in any manner. Caveat emptor, qui ignorare non debuit quod jus alienum omit. A maxim meaning Let a purchaser beware; who ought not to be ignorant that he is purchasing the rights of another, which had happened in the case on hand.
36. As laid down in the above said decision, the first respondent does not have any right to purchase the right of the appellant.
37. Normally, this Court in the second appeal would not interfere with the concurrent findings of the courts below. In the judgment reported in 2002(2) MLJ 659 (Ponnaiyan v. Karuppakkal), it is held that even though the findings of the Court below are concurrent, the High Court is empowered to interfere under Section 100 C.P.C., if the finding is recorded without any legal evidence on record or suffers from legal infirmity which materially prejudice the case of one of the parties or the finding is perverse. Apart from that the judgment of the of the Honourable Apex Court reported in AIR 2003 SC 1905 (Bondar Singh vs. Nihal Singh) has laid down as follows:
"4. .......An appeal under S.100, C.P.C. can be entertained by the High Court only on a substantial question of law. There can be no quarrel with this legal proposition. The scope of powers of High Court under S.100 C.P.C. is a matter of settled law. The learned counsel for the appellant cited several judgments in support of his contention. We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts under S.100 C.P.C. is concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under S.100 C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below. In the present case, the findings of fact arrived at by the lower appellate Court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed."
38. A perusal of the judgments of the courts below would show that the courts below have miserably failed to analyse the oral and documentary evidence and that they have come to a wrong finding and conclusion. Therefore, it is inevitable for this Court to interfere with the findings and conclusions of the courts below. Accordingly, they are set aside.
39. In view of the foregoing discussions, the substantial questions of law are answered in favour of the appellant/plaintiff.
40. In the result, the second appeal is allowed setting aside the judgments and decrees of the courts below and the suit is decreed as prayed for. However, there will be no order as to costs.
17.12.2014.
Index : Yes/No. Internet : Yes/No. mra To
1.VI Additional Judge, City Civil Court, Chennai.
2. XIII Assistant Judge City Civil Court, Chennai.
3. The Section Officer, V.R. Section, High Court, Madras.
R.MAHADEVAN, J.
mra JUDGMENT IN S.A.No.324 of 2006 Delivered on 17.12.2014.