Madras High Court
R.Muniswamy vs M.Shivanna on 4 April, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
In the High Court of Judicature at Madras Dated: 04.04.2012 Coram: The Honourable Mr.Justice V.PERIYA KARUPPIAH Second Appeal No.1934 of 1999 1. R.Muniswamy 2. Gowramma 3. Venkatesh 4, Ramakka 5. Krishnappa 6. R.Muniappa 7. Venkatamma 8. Kenchappa 9. Chinnamma ... Appellants Versus M.Shivanna ... Respondent Second Appeal filed under Section 100 of C.P.C. against the Judgment and Decree dated 27.08.1998 made in A.S.No.168 of 1996 by the learned Subordinate Judge, Hosur, confirming the Judgment and Decree dated 23.06.1995 made in O.S.No.372 of 1986 by the learned District Munsif Court, Hosur. For Appellants .. Mr.V.Sekar for M/s.C.R.Muralidharan For Respondent .. Mr.Sanjay Baba for Mr.V.Nicholas JUDGMENT
This appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.168 of 1996 dated 27.08.1998 in confirming the judgment and decree passed by the trial court made in O.S.No.372 of 1986 dated 23.06.1995 in decreeing the suit.
2. The appellants were the defendants and the respondent was the plaintiff before the trial court. For convenience, the rank of parties before the trial court is maintained, infra.
3. The case of the plaintiff as stated in the plaint before the trial court would be as follows:-
The suit property originally belonged to R.Muniswamy, the first defendant and his brother Picha Abbiah alias Pedha Muniswamy and they sold the same in favour of one Rojappa and K.C.Jayaram under a registered sale deed dated 19.06.1968 for a valuable and binding consideration of Rs.5000/- and they were in possession and enjoyment of the same till they sold the same to the plaintiff. The said Rojappa and K.C.Jayaram mortgaged the suit property to one Venkatagiri Setty for Rs.3,000/-under a registered mortgage deed dated 05.07.1968. The plaintiff purchased the suit property from the said Rojappa and Lakshamamma, widow of K.C.Jayaram for herself and on behalf of her minor sons, under a registered sale deed dated 19.10.1972 and ever since the date of sale deed, the plaintiff is in possession and enjoyment of the same as absolute owner raising crops and paying kist. Patta is also granted in favour of the plaintiff for the suit property. The first defendant also attested the sale deed in favour of the plaintiff as one of the attestors. The defendants have no right to the suit property much less possession ever since the date of sale deed i.e., 19.06.1968. The first defendant wanted to purchase the suit property from the said Rojappa and Lakshamamma and having failed, he developed grouse against the plaintiff, who purchased the same. The defendants 1 to 9 are also owning properties adjacent to the suit property. The defendants demanded the plaintiff to sell the suit property, but the plaintiff refused. Hence they started denying the title of the plaintiff to the suit property since one month and in fact, they tried to trespass upon the same on 20.08.1986, but the plaintiff prevented them with great difficulty. The defendants went away by stating that they will come again and dispossess the plaintiff from the suit property by force, brute and strength. It would be very difficult for the plaintiff to protect his rights over the suit property without orders from this Court. Hence, the suit for declaration and permanent injunction.
4. The contentions raised by the defendants before the trial court in their written statement would be as follows:-
The plaintiff has no title to the suit property whatever. He has no possession of the suit property either. He has no legal possession or physical possession at any time from 19.06.1968 till date. Neither the plaintiff nor his predecessors in title and interest have any manner of title or interest much less possession. The sale deed dated 19.06.1968 for Rs.5000/- is not a proper sale deed at all. It has created only a 'mortgage by conditional sale'. On the same date, time, place and in the presence of the same witnesses, as part of the same transaction, an agreement to reconvey the same suit property has been executed by the alleged buyers under the alleged sale deed in favour of the vendors. Both the sale deed and the agreement to reconvey is for the same amount and the possession was never parted at all. Even today, the physical possession and enjoyment of the suit property is with the first defendant and his family. He is residing in the same ancestral house, situated in the suit property, built by the father. About five years back, the first defendant has put up a verandah. The mother of first defendant is elder and the mother of Rojappa is younger. Since Rojappa and Jayamma did not have any money to give the first defendant under the alleged sale deed, which in fact is a 'mortgage by conditional sale', Rojappa executed a mortgage in favour of Venkatagiri Setty and borrowed some amount and paid a sum of Rs.5,000/- to the first defendant. The first defendant wanted another sum of Rs.5,000/- from Rojappa as debt and since Rojappa had no money, the said Rojappa executed a sale deed in favour of Sivanna and receiving a sum of Rs.10,000/- from him and out of the sale consideration, a sum of Rs.2,732/- was paid for the discharge of a loan due to the Shulagiri Block Office and the sum of Rs.2,732/- was paid by Sivanna's father directly to the Loan Tahsildar and receipt taken in his favour. A bucket machine for Rs.700/- was purchased by Sivanna and given to the first defendant and the registration expenses was Rs.1,380/-. Thus, the sale deed in favour of Sivanna came into being but subject to the reconveyance. In lieu of cash interest, the first defendant has been paying 1/3rd income from the land towards his share of interest. The said Sivanna is fully aware of the agreement to reconvey and also that the document in favour of Rojappa is only a mortgage. The sale to plaintiff by Rojappa and Laxmamma for herself and on behalf of her minor two sons is illegal and defective in law and cannot create any rights which can be enforced, since the permission from the District Judge to convey is not obtained and it is hit by the Hindu Minority and Guardianship Act, 32/1956 under Section 8(2)(a) of the Act. Hence, the sale deed in favour of the plaintiff is not legal, valid or enforceable in law. The plaintiff has obtained patta by misleading the authorities. But patta alone cannot create title and when the suit is dismissed and the defendants succeed, the first defendant will take steps for including his name in the patta. The signature of the first defendant in the sale in favour of plaintiff was put because the first defendant wanted the second loan of Rs.5,000/- to make up the total of Rs.10,000/-. The first defendant is entitled to get reconveyance as per the agreement to reconvey, since the original transaction itself is a mortgage. The value mentioned in the sale deed dated 19.06.1968 is not the market value of the property, but it was only the value of the debt created. By playing a fraud, the plaintiff has obtained order from the Tahsildar for tenancy matters. The plaintiff is not entitled to any declaration nor any injunction, either. The suit is liable to be dismissed with costs.
5. On the above pleadings, the trial court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the trial court had come to the conclusion of decreeing the suit as prayed for with costs. Aggrieved against the judgment and decree passed by the trial court, the defendants preferred an appeal before the first appellate court in A.S.No.168 of 1996 along with an application in I.A.No.124 of 1997. The first appellate court heard both parties and dismissed the appeal filed by the defendants and thereby, confirmed the judgment and decree passed by the trial court.
6. Aggrieved against the judgment and decree passed by the first appellate court, the defendants preferred the present appeal in this case.
7. On admission, this Court had formulated the following substantial questions of law for being considered in this appeal:-
1) Whether the courts below are correct in construing Ex.A1 to be an absolute deed of sale, rather than a 'mortgage by conditional sale', particularly without reference to Ex.B2, agreement to reconvey, which was executed in the presence of the same witnesses and was deemed to be part of the same transaction as Ex.A1 ?
2) Whether the courts below are correct in upholding the title of the plaintiff to the suit property under Ex.A3, particularly when his vendors' right and title are subject to the earlier transaction under Ex.A1, which should be deemed to be a 'mortgage by conditional sale', and Ex.A3 was executed even prior to the expiry of the time stipulated for discharge of the mortgage ?
3) Whether the findings of the courts below with regard to possession of the suit property by the plaintiff are perverse and unsubstantiated, particularly without reference to the categorical evidence adduced by the defendants to the contrary that they are in uninterrupted possession of the suit property and that they had never parted with possession even at the time of execution of Ex.A1?
4) Whether the judgments of the courts below are vitiated for failure to consider the evidence adduced in the proper perspective, resulting in perverse findings rendered thereon?
8. Heard Mr.V.Sekar, learned counsel appearing on behalf of M/s.C.R.Muralidharan, learned counsel for the appellants / defendants and Mr.Sanjay Baba, learned counsel appearing on behalf of Mr.V.Nicholas, learned counsel for the respondent / plaintiff.
9. The learned counsel for the appellants / defendants would submit in his argument that the courts below have concurrently but wrongly found that the plaintiff was entitled to the suit property, which was not based upon any evidence. He would also submit that the possession is always with the defendants and they never parted with their possession and the transaction in favour of the plaintiff's vendor was only a 'mortgage by conditional sale' and it was subjected to an agreement of reconveyance. He would also submit that the tenure of Ex.B2 was not considered by both the courts below in its proper perspective and in the light of the said agreement Ex.B2, the plaintiff's vendor to re-convey the suit property to the first defendant and his brother and therefore, the sale in favour of the plaintiff under Ex.A3 was invalid and never meant to convey any right or title in the suit property. He would further submit in his arguments that the defendants were in continuous and uninterrupted possession and enjoyment of the suit property notwithstanding Ex.A1 from the year 1968 onwards and the said fact was not considered by the courts below. He would further submit in his arguments that the agreement Ex.B2 would disclose the right of reconveyance, which was established through the evidence of the defendants and therefore, the alleged sale deed in Ex.A1 is nothing but a 'mortgage by conditional sale'. He would also submit in his argument that Ex.A1 was entered only for raising immediate funds for the discharge of certain sundry debts payable by the first defendant and it was not intended for an outright sale deed. He would also submit that the alleged execution of sale deed in Ex.A3 was at the instance of the first defendant, for the purpose of raising funds and the attestation of first defendant in Ex.A3 as a witness would not in any way invalidate the said sale since a sum of Rs.2,732/- was paid directly to Shulagiri Block Office out of the sale consideration of Rs.10,000/- towards the loan due of the first defendant. He would also submit that if the document in Ex.A1 was deemed to be a 'mortgage by conditional sale' in the light of Ex.B1, there would be a time limit for repayment of the consideration in favour of the first defendant and therefore, the plaintiff would not get any absolute title in the suit property. He would further submit that the alleged sale deed was also defective for want of permission of the court, since executed on behalf of the minor under the provisions of Hindu Minority and Guardianship Act. He would also submit that the judgment of the courts below were rendered without any proper perception of the evidence and therefore, the concurrent findings of the first appellate court can be interfered by this Court. He would further submit that the judgment of the first appellate court is perverse, since it has decided already to confirm the judgment in the earlier paragraph of its judgment and had consequently, confirmed the judgment of the trial court. Therefore, he would request the court to interfere and set aside the judgment of the first appellate court and to reverse the finding of both the courts below and thus, the Second Appeal be allowed.
10. The learned counsel for the respondent / plaintiff would submit in his argument that the first appellate court had correctly confirmed the judgment and decree passed by the trial court, which was based upon the evidence adduced by the plaintiff. He would further submit in his arguments that the first appellate court had also framed necessary points and discussed the evidence in respect of those points and had come to the conclusion of confirming the judgment and decree passed by the trial court. He would further submit that there is no perversity or bias seen in the judgment of the first appellate court. He would further submit that the sale deed dated 19.06.1968 would convey title to Rojappa and Jayaram; and the plaintiff had purchased the suit property from the said Rojappa and the legal representatives of Jayaram on 19.10.1972 and was in possession and enjoyment of the suit property by paying kist and other revenues. He would also submit that both the courts below have found that the plaintiff was in possession and enjoyment of the suit property and therefore, there cannot be any title or possession available with the defendants. He would further submit that the defence raised by the defendants that the sale deed dated 19.06.1968 was only a 'conditional sale with mortgage' and there was a reconveyance agreement between the vendors of the plaintiff and the previous owners of the property cannot be sustained. He would also submit that if really there was an agreement of reconveyance, the first defendant would not have attested the sale deed executed by Rojappa and the legal representatives of Jayaram produced in Ex.A3, (equivalent to Ex.B3). He would further submit that the claim that the defendants had got right in the suit property by virtue of reconveyance agreement and the sale deed Ex.A1 was mortgage with conditional sale is true, the defendants ought to have taken steps to specifically enforcing reconveyance agreement within the limitation period and it was not done so. He would therefore, submit that the claim that the concurrent finding reached by the first appellate court was based upon sound reasons and the facts already decided by the first appellate court need not be interfered, since there was no perversity or bias in the findings and those findings were reached purely on the basis of the evidence. He would therefore, request the Court to dismiss the Second Appeal and thereby, to confirm the concurrent finding of the first appellate court.
11. I have given anxious thoughts to the arguments advanced on either side.
12. The plaintiff filed the suit against the defendants for declaration and for injunction in respect of the suit property. The suit property was admittedly belonged to one Muniswamy (first defendant) and Picha Abbiah alias Pedha Muniswamy. The said owners of the suit property sold the said property on 19.06.1968 for a sale consideration of Rs.5,000/- to one Rojappa and Jayaram. The said sale deed has been produced as Ex.A1. The plaintiff is said to have purchased the said suit property on 19.10.1972 through Ex.A3 (equivalent to Ex.B3) for a valuable consideration and obtained title to the suit property.
13. However, the defendants had disputed the title of the plaintiff to the suit property. The defendants are none other than the one of the vendors of the plaintiff's vendor i.e., first defendant and the legal representatives of the Picha Abbiah alias Pedha Muniswamy. Their case is that Picha Abbiah alias Pedha Muniswamy and the first defendant executed a mortgage with a condition of sale on 19.06.1968 to Rojappa and Jayaram with an agreement to reconvey the said properties viz., Ex.B3 and the said agreement was in force and therefore, the said Rojappa and Jayaram or Jayaram's legal representatives had no right to convey the suit property in favour of the plaintiff through Ex.A3 (equivalent to Ex.B3). The said reconveyance agreement has been produced as Ex.B2.
14. On a careful perusal of Ex.B2, I could see that it is an unregistered document dated 26.06.1968, in which the said transaction dated 19.06.1968 was referred to and it was agreed to reconvey the said property on payment of Rs.5,000/- plus the expenditure for deepening the well and for putting up constructions and other expenditure for putting bore. The sale deed said to have been executed by the said purchasers of Ex.A1 would execute reconveyance of the said property. This document was executed on 26.06.1968 and within a period of six years from the date of the sale deed, the property has been sold by the said Rojappa and the legal representatives of Jayaram through Ex.A2. It is curious to note that the first defendant had also signed as an attestor in the said sale deed Ex.A3 (equivalent to Ex.B3). Moreover, the first defendant as well as Picha Abbiah alias Pedha Muniswamy's legal representatives, viz., the defendants 2 to 9 did not take any action for the execution of reconveyance deed on the foot of Ex.B2. There is no dispute that the reconveyance ought to have obtained within a period of six years from the date of Ex.B2 i.e., on or before 26.06.1974. Admittedly, there was no suit filed by the defendants against the said Rojappa and the legal representatives of Jayaram. Therefore, the sale deed executed by the said Rojappa and legal representatives of Jayaram in Ex.A3 on the basis of the title conveyed to them had become perfect and the title conveyed to the plaintiff through Ex.A3 (equivalent to Ex.B3) became an enforceable document.
15. It was argued that the defendants are in possession and enjoyment of the suit property despite the sale deeds and therefore, there cannot be any injunction against them. The learned counsel for the appellants/defendants would rely upon the house tax receipts paid in Ex.B4 for that purpose. The said documents produced by the defendants would go to show their possession in respect of house are after the suit. Therefore, there could not be any reliance to be placed on those documents.
16. The trial court had discussed every points and had come to the conclusion that the plaintiff had proved his title to the suit property and was also entitled for permanent injunction. The first appellate court had also framed necessary points and discussed with relevance to the evidence and came to a similar conclusion on the basis of the evidence in respect of the points. I could, therefore, find that there was no perversity or bias in the judgment and decree passed by the first appellate court.
17. It is a settled law that this Court in Second Appeal need not interfere with the concurrent judgment and decree passed by the first appellate court when there is no grave departure in appreciation of evidence or from the wrong perception and the application of evidence in reaching the findings. The judgment of this Court reported in 2002(2) MLJ 659 (Ponnaiyan v. Karuppakkal) is applicable to the present case and the relevant passage would run thus:
"25. No doubt, interference with the concurrent findings of the Courts below by the High Court under Sec.100, C.P.C. must be avoided unless warranted by compelling reasons. In a case where the finding is recorded without any legal evidence on record or misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse the High Court can set aside the findings and take a different view."
18. Apart form that, the judgment 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."
19. In the aforesaid judgments, it has been categorically mentioned that only if any perversity or biased attitude have been found in the decision of the first appellate court or in the concurrent finding of the first appellate court, it could be interfered. In the light of the aforesaid judgments, I could see that the first appellate court had elaborately discussed and had come to the conclusion of confirming the judgment and decree passed by the trial court and it was also in order and the findings were reached on the basis of the evidence adduced and therefore, the Judgment and Decree passed by the first appellate court cannot be interfered. In the circumstances, I have no hesitation to uphold the concurrent judgment given by the first appellate court, which ended in favour of the plaintiff, which was on the correct perception of the evidence. Accordingly, the Second Appeal is liable to be dismissed.
20. In fine, I am of the considered view that the appeal filed by the defendants questioning the concurrent judgment and decree passed by the first appellate court deserves dismissal and accordingly, the Second Appeal is dismissed. The judgment and decree passed by the first appellate court confirming the judgment and decree of the trial court is hereby confirmed. No costs.
04.04.2012 Index :Yes/No Internet :Yes/No mra V.PERIYA KARUPPIAH,J.
mra To
1. The Subordinate Judge, Hosur.
2. The District Munsif Court, Hosur Second Appeal No.1934 of 1999 04.04.2012