Madras High Court
Pattammal (Deceased) vs Arulmighu Sarntharaikatha Samy Koil on 21 January, 2009
Author: K. Mohan Ram
Bench: K. Mohan Ram
In the High Court of Judicature at Madras Dated: 21.01.2009 Coram: The Honourable Mr.Justice K. MOHAN RAM Second Appeal No.267 of 2000 1. Pattammal (deceased) 2. Muthukumarasamy ... Appellants (Second appellant brought on record as legal representative of the deceased sole appellant, vide order dated 14.04.2006 made in C.M.P.No.4433 to 4435 of 2006) Versus 1. Arulmighu Sarntharaikatha Samy Koil represented by its Executive Officer, Thillayadi, Tharangambadi, Sirkali. 2. R. Rajagopalan ... Respondents Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 01.04.1999 made in A.S.No.70 of 1998 on the file of the Additional Subordinate Judges Court, Mayiladuthurai, reversing the judgment and decree dated 24.02.1998 made in O.S.No. 345 of 1992 on the file of the District Munsif Court, Sirkali. For Appellant .. Mr.A. Abdul Ravoof For Respondent-1 .. Mr.S. Sounther JUDGMENT
The plaintiff in O.S.No.345 of 1992 on the file of District Munsif, Sirkali who succeeded in the suit, but since the decree obtained by him was reversed by the learned Additional Subordinate Judge, Mayiladuthurai by his judgment and decree passed in A.S.No. 70 of 1998 and being aggrieved by that has preferred the above Second Appeal.
2. For sake of convenience, the parties are referred to as per their ranking in the suit.
3. The case of the plaintiff in brief is set out below:
The suit properties which are nanja lands were purchased by the plaintiff from the first defendant under a registered sale deed dated 07.07.1976. Pursuant to the said sale, the plaintiff was put in possession of the suit properties and he is in possession and enjoyment of the same for more than 16 years to the knowledge of all including the defendants. Thus the title of the suit property has vested on the plaintiff both under sale deed as well as by uninterrupted possession. While so the plaintiff came to know that the second defendant temple has purchased the suit property in a Court auction sale. When the second defendant, a public trust is not competent to purchase or acquire wet lands, the alleged court auction sale is not valid. The execution levied pursuant to the final decree passed in O.S.No.45 of 1959 on the file of the Subordinate Court, Mayiladuthurai, is barred by limitation as the Execution petition had been filed after the expiry of 12 years from the date of passing of final decree. The plaintiff is a bonafide purchaser for value and she was not put on notice of any of the proceedings taken in respect of the suit property. The defendants were aware of the purchase made by the plaintiff and as such they should have given notice to the plaintiff and the Court auction which has taken place without notice to the plaintiff is not binding on her. Since the second defendant is giving out that he will take forcible possession of the suit lands from the plaintiff and it has become necessary to file the suit for declaration of her title to the suit properties and for a consequential permanent injunction restraining the second defendant from interfering with the plaintiff's possession and enjoyment of the suit land.
4. The first defendant remained exparte and did not contest the suit. However, the second defendant contested the suit by filing written statement interalia contending as follows:
The allegation that the plaintiff purchased the suit property from the first defendant for valid consideration under sale deed dated 07.07.1996 is denied. The second defendant denied the truth, validity and binding nature of the sale deed. The alleged possession of the plaintiff for 16 years is also denied. The second defendant obtained a decree in O.S.No.45 of 1959 on the file of the Subordinate Court, Mayiladuthurai, against the first defendant and filed E.P.No.134 of 1981 for attachment and sale of the suit properties and the said Execution Proceeding was filed within 12 years from the date of decree and as such it is not barred by limitation. After complying with all the formalities, the property was brought for court auction sale after attachment and the second defendant got permission to bid in the court auction and he was the successful bidder in the auction held on 29.07.1991 and the sale was confirmed on 11.11.1991 . The sale certificate was also issued in favour of the defendant under Order 21 Rule 94 CPC. Thereafter, this defendant filed E.A.No.485 of 1992 in O.S.No.45 of 1959 for delivery as per sale certificate issued by the Court and accordingly, delivery was ordered and the senior bailiff effected delivery of possession on 23.11.1992 along with standing ADT 38 crops. Thus, the defendant has taken possession of suit property along with standing ADT 38 crops on 23.11.1992 and delivery was recorded on 15.12.1992. On and from 23.11.1992, this defendant had been in possession of the suit properties and was cultivating the land and was maintaining the crops. Therefore, the claim of the plaintiff that she was in possession of the suit property is not correct.
5. It is further contended that after filing the present suit on false ground, the plaintiff had cut and carried away the crops in the third week of February 1993. The sporadic act of the pliantiff will not confer any possession and right to the plaintiff. Now the land is lying fallow. The plaintiff is not in possession of the suit properties. The plaintiff is not a bonafide purchaser and he has no right to question the court auction sale. This defendant did not attempt to take forcible possession on 12.12.1992 as alleged in the plaint. On the aforesaid pleadings, the second defendant sought for dismissal of the suit.
6. The trial Court framed the following issues, namely,
1) Whether the sale deed dated 07.07.1976 standing in the name of the plaintiff is true .
2) Whether the possession of the suit property was entrusted to the plaintiff under the sale deed dated 07.07.1976.
3) Whether the plaintiff was in possession of the suit property on the date of the suit.
4) Is it true that the possession of the suit property was taken as per the order dated 23.11.1992 passed in E.A.No.488 of 1992 in O.S.No. 45 of 1959.
5) Whether the contention of the plaintiff that the participation of the second defendant in the court auction sale and the second defendant's purchase of the suit property in the auction held in O.S.No.45 of 1959 is legally valid.
6) To what relief the plaintiff is entitled?
7. During the trial on the side of the plaintiff, one Muthukumarasamy has been examined as PW.1 and Exs. A1 to A3 have been marked. On the side of the second defendant, two witnesses have been examined and Ex.B1 has been marked.
8. The trial Court on the consideration of the oral and documentary evidence adduced in the case, decreed the suit and being aggrieved by that the second defendant preferred an appeal in A.S.No.70 of 1998 before the learned Subordinate Judge, Mayiladuthurai and along with the appeal, the second defendant filed C.M.P.No.247 of 1998 under Order 41 Rule 27 CPC to produce additional evidence and the same was allowed and Ex.B2 dated 14.03.1961, the suit register extract in O.S.No.45 of 1959 was marked. Learned Subordinate Judge, on independent consideration of the oral and documentary evidence adduced in the case and findings and reasonings of the trial Court, disagreed with the reasonings and findings of the trial court and reversed the judgment and decree of the trial court and allowed the appeal. Being aggrieved by that, the plaintiff has filed the above said second appeal.
9. While admitting the above second appeal, the following substantial questions of law have been framed:-
1. Whether the purchase of land by the temple viz., first respondent on 11.10.1991 is sustainable in law in view of the statutory prohibition found under Section 2 of the Act 58/61?
2. Whether the decree and judgment granted by the lower appellate Court is tenable when the appellant was a bonafide purchaser of property for value without notice of the charge created in respect of the suit property?
3. Whether the plaintiff is bound by the court auction sale in favour of first respondent when the plaintiff was not a party to the suit and other proceedings ?
10. Heard both. Mr.A.Abdul Ravoof, learned counsel for the appellant submitted that admittedly decree had been passed in O.S.No.45 of 1959 on the file of Subordinate Court, Mayiladuthurai on 14.03.1961, the Execution Proceeding has been filed by the second defendant beyond the period of 12 years prescribed under the Limitation Act and therefore, submitted that when the execution proceedings are barred, any court auction sale that had taken place in the Execution Proceedings is also invalid and consequently, the purchase said to have been made by the second defendant in the court auction sale is also invalid. The learned counsel submitted that the plaintiff came to know about the court auction sale and the purchase by the second defendant of the suit property only in the year 1991 and immediately the suit has been filed by the plaintiff seeking declaration of title and permanent injunction. Learned counsel submitted that immediately after his purchase in 1976, the patta for the suit property has been transferred to the name of the plaintiff. Learned counsel submitted that the plaintiff was not aware of the pendency of O.S.No.45 of 1959 or the charge said to have been created over the suit property in the year 1959 in O.S.No.45 of 1959, which was filed by the second defendant for recovery of rental arrears from the first defendant. Learned counsel further submitted that the entire execution proceedings is vitiated as the procedure contemplated under Order 21 Rule 66 and 72 has not been followed and there was no proper proclamation of the sale.
11. The learned counsel further contended that section 2(2) of the Tamil Nadu Land Reforms (Fixation of ceiling on land) Act, 1961 (hereinafter called as 'Act') prohibits any religious institution or religious trust of public nature from acquiring by any means whatsoever any land after the date of the commencement of the Act and as such the purchase of the suit property by the second defendant in the court auction sale is hit by the aforesaid prohibition contained in Section 2(2) of the Act and therefore, the same is not valid. Learned counsel further submitted that right from the date of purchase on 07.07.1976, the plaintiff continuously in possession of the suit property. DW.1 himself has admitted in cross examination that patta has been issued in favour of the plaintiff and kist has been paid by the plaintiff as evidenced by Ex.A2 and Ex.A3 for fasli 1394 and 1401 and therefore according to the learned counsel for the appellant, the finding of the lower appellant court that the plaintiff was not in possession of the suit property is erroneous. Learned counsel submitted that when the plaintiff had no knowledge about the pendency of the suit in O.S.No.45 of 1959 or the charge created over the suit property and when he has not been issued with any notice during the execution proceedings levied in O.S.No.45 of 1959, it should be construed that the plaintiff was a bonafide purchaser for value without notice of the charge created over the suit property and therefore, the lower appellate court ought to have confirmed the judgment and decree granted by the trial court holding that the plaintiff has got title over the suit property.
12. Countering the said submission, Mr. S.Sounther, learned counsel for the second defendant submitted that the trial court has not understood properly the legal principles applicable to the facts of this case and the same has been pointed out by the lower appellate court and the lower appellate court has independently considered both the oral and documentary evidence and it has also considered the findings and reasonings of the trial court and has pointed out that the findings and reasonings of the trial court are fallacious and erroneous. Learned counsel submitted that though the final decree in O.S.No.45 of 1959 on the file of the Subordinate Court, Mayiladuthurai was passed on 14.03.1971 as evidenced from Ex.B2, suit register extract, E.P.No.113 of 1973 filed on 14.01.1973 ie. within a period of 12 years and thereafter it was transferred and renumbered as E.P.134 of 1981 on the file of District Munsif Court, Sirkali and therefore, the learned counsel submitted that the contention of the learned counsel for the appellant that execution was levied in O.S.No.45 of 1959 after the expiry of the period of limitation cannot be countenanced. Learned counsel submitted that the plaintiff has not pleaded in the plaint as to whether he made any preliminary enquiry regarding any existing encumbrance over the suit property before he purchased the property in the year 1976. Learned counsel further submitted that none connected with the purchase of the suit property has been examined. The plaintiff has not gone into the witness box and whereas PW.1, who is unconnected with the purchase, has been examined as witness and his evidence is of no help or use to establish the claim of the plaintiff that she was a bonafide purchaser for value without notice of the charge created over the suit property. The learned counsel submitted that entire evidence of PW.1 has been carefully considered by the lower appellate court and has pointed out that his evidence is of no use. The learned counsel also pointed out that lower appellate court has observed that there is absolutely no evidence to prove the claim of the plaintiff that the plaintiff is a bonafide purchaser for value without notice. The learned counsel submited that the finding of the lower appellate court that the execution sale had been conducted after observing all the necessary legal formalities and the presumption arising under section 114 of the Evidence Act has also been rightly raised namely that all the official acts are presumed to have been done in lawful manner. Learned counsel submitted that in a case of this nature, when admittedly the plaintiff had purchased the suit property, which was subject matter of the charge, the burden heavily lies on the plaintiff, who claims to be a bonafide purchaser for value without notice, to show the actual bonafide purchase and such purchase was made without notice of the existing charge over the suit property and the plaintiff miserably failed to either prove or establish the aforesaid plea. Learned counsel further submitted that when the trial court has not applied the correct legal principles applicable to the facts of this case, it is the bounden duty of the lower appellate court to apply the correct principles of law to the facts of the case and consider the evidence independently and record its finding and that is what is done by the lower appellate court and therefore stated that the findings of the lower appellate court does not suffer from any infirmity.
13. The learned counsel further submitted that in a suit for declaration of title and for permanent injunction unless and until the plaintiff establishes his title over the suit property, the plaintiff is not entitled to get a decree. The plaintiff cannot take advantage of the weakness in the defendant's case and succeed in the suit. The plaintiff has to either succeed or fail on the strength of his own case. Learned counsel further submitted that when the plaintiff has not establish his case viz. he was a bonafide purchaser for value without notice of the charge created over the suit property, he is bound to fail in the suit. According to the learned counsel even assuming that the purchase by the second defendant is hit by the provisions contained in section 2(2) of the Act, the same cannot be questioned by the plaintiff and it is for the Authorities under the Act to question the sale in favour of the second defendant. Learned counsel further submitted even assuming that the sale made in favour of the second defendant in the court auction sale is contrary to the provisions contained in Section 2(2) of the Act and is considered to be void even then a decree for declaration of title cannot be granted in favour of the plaintiff. Learned counsel further submitted that simply because the plaintiff was not a party to O.S.No.45 of 1959, it does not meant that the court action sale that has taken place pursuant to the decree passed in O.S.No.45 of 1959 will not bind the plaintiff.
14. I have carefully considered the submissions made by the counsel on either side and perused the materials available on record and the judgments of the courts below.
15. For deciding first substantial question of law, it is necessary to refer to the provisions contained in Section 2(2) of the Act, which reads as follows:
"(2) Act not to apply to lands held by existing religious institution or religious trust of public nature:-
It extends to the whole of the State of Tamil Nadu.
2(1) Subject to the provisions of sub-sections (2) and (3) and of section 6, nothing contained in this Act shall apply to lands held-
(i) by an religious institution, or
(ii) by any religious trust of a public nature, which is in existence on the date of the commencement of this Act.
(2) Notwithstanding anything contained in sub-section (1) no such religious institution or religious trust of a public nature as is referred to in sub-section (1) shall acquire by any means whatsoever any land after the date of commencement of this Act.
16. A reading of the aforesaid provision makes it clear that any religious institution or any religious trust of a public nature is prohibited from acquiring by any means whatsoever any land after the commencement of the Act. It is not in dispute that the second defendant is a religious trust of a public nature and therefore the aforesaid provision contained under section 2(2) of the Act applies to the second defendant. Admittedly, the court auction sale has taken place in the year 1991 i.e., after coming into force of section 2(2) of the Act and therefore, the sale is hit by the said provision. But the question to be decided is as to whether the civil court in the present suit could have gone into the validity of the sale in favour of the second defendant. Admittedly, competent authorities have been constituted under the Act to decide the question that arise for consideration under the Act and the question as to whether the purchase made by a religious trust of a public nature is contrary to the provisions contained in section 2(2) of the Act is valid or not is a matter which could be decided by the competent authorities under the Act and that cannot be gone into by the Civil Court. When that being the position, this Court is of the considered view that the trial court ought not have recorded a finding that the sale in favour of the second defendant is invalid. Accordingly, aforesaid first substantial question of law is answered against the appellant and in favour of the first respondent.
17. The second and third substantial question of law can be considered together as they are interrelated. Before considering the issue, as to whether the plaintiff is a bonafide purchaser for value without notice of the charge created over the suit in O.S.No.45 of 1959 on the file of Subordinate Court, Mayiladuthurai, it will be useful to refer to the pleadings contained in the plaint. In paragraph 6 of the plaint, the plaintiff has stated that she is a bonafide purchaser and she was not put on notice of any of the proceedings taken in respect of the property. It is further stated that the plaintiff is a bonfide purchaser for value without notice of any defect in the title to the suit property. Except the aforesaid pleadings, it is not stated anywhere in the plaint that the plaintiff made preliminary enquiries regarding the encumbrance if any subsisting over the suit property. Likewise, it is not deposed by PW.1 that either he or the purchaser under Ex.B1, namely, the plaintiff herein made any preliminary enquiry regarding the existing encumbrance over the suit property. In the light of these vital facts, the claim of the plaintiff that she is a bonafide purchaser for value without notice has to be considered. In this context, it will be useful to refer the decision of the Full Bench of this Court reported in "2006(4) MLJ 850 (B. Suresh Chand vs. State of Tamil Nadu)". In the said decision in paragraphs 25 to 29, the full Bench has observed as under:
"25. A reading of Section 3 of the Transfer of Property Act, 1882 leads to the conclusion that, not only a wilful abstention from an enquiry which a person ought to have made, but the gross negligence to make enquiry also would amount to notice of a fact to him. When the prudence of a person requires him to make an enquiry, but due to his own negligence he failed to make enquiry, he falls in the category of a person, with notice. A purchaser of the property who claims the transaction to be bonafide without notice, the yardstick to be applied for the "notice" is given in Section 3 of the Transfer of Property Act, 1882 and only by the application of this provision, a purchaser who seeks protection is to be identified, whether he is a purchaser for value without notice. The necessity of the purchase, the intention of the transfer, the relationship between the vendee and vendor are all vital factors to find out the reasonableness of the person in purchasing the property. Sometimes, unexplained secrecy or the haste in the transactions may also throw some light on the bonafides or malafides. To decide whether a transaction was genuine or bona fide or mala fide, all facts relating to the conduct of the parties to the transaction have to be weighed as a whole.
26. The plaintiffs in this case have not disputed the liability of their vendors to pay the sales tax, even at the time of the sales, but claim protection under the exception clause, for which the parameters of Section 3 of the Transfer of Property Act 1882 have to be applied. Every purchaser from the assessee is naturally interested to protect the property and will claim to be a bona fide purchaser. For the sake of their claim, the Court cannot approve the transaction as a bona fide sale.
27. Under Section 101 of the Evidence Act, 1872, whoever desireis any Court to give judgment as to any legal right or liability depending on the existence of facts which he asserts, must prove, that those facts existed. Therefore, it is for him to establish that there was no wilful abstention of enquiry or search of the facts, on his part about the vendor before the sale transaction was completed.
28. In this context, it will be useful to refer to Order 6 Rule 2 of C.P.C which reads as follows:-
"Order 6 Rule 2: Pleading to state material facts and not evidence :- (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved".
29. A reading of the above provisions show that the party must plead all material facts on which he means to rely at the trial. If any one of the material fact is omitted, the statement of claim is bad and it would mean no pleading and no cause of action for the suit. If material facts are not pleaded, a Court cannot permit evidence to be led. In Udhav Singh Vs. Madhav Rao Scindia 1977 (1) SCC 511 the Supreme Court has defined the expression "material facts" in the following words:
"All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts."
18. If the aforesaid legal principles are applied to the facts of this case, it has to be pointed out that all the primary facts which must by proved by the plaintiff at the trial to establish his case that he is a bonafide purchaser for value without notice of the charge created over the suit property have not been stated in the plaint. No where in the plaint, it is stated that the plaintiff either enquired with her vendor or verified with the registration authorities as to whether there was any existing encumbrance over the suit property or whether the suit property was subjected to any charge. Under Section 101 of the Evidence Act, 1872, whoever desires any Court to give judgment as to any legal right or liability depending on the existence of facts which he asserts, must prove, that those facts existed. Therefore, it is for the plaintiff to establish that there was no wilful abstention of enquiry or search of the facts, on her part about the vendor before the sale transaction was completed. As pointed out above, it is not the case of the plaintiff in the plaint that such preliminary enquiry was ever made and therefore the parameters prescribed under section 3 of the Transfer of Property Act are applied, it should be held that the abstention on the part of the plaintiff in not making such preliminary enquiry will itself amount to notice of the charge, as far as the plaintiff is concerned.
19. The lower appellate court has elaborately considered the evidence of PW.1, in its judgment. In paragraph 12, the lower appellate court has pointed out that the plaintiff has not been examined as a witness and a reading of the evidence of PW.1 shows that he was not aware of anything connected with Ex.A1 sale deed. PW.1 has categorically stated that he is not aware that how the first defendant is entitled to the suit property and he has not seen any document of title pertaining to the suit property and he is not aware as to whether his father verified the same and he has also stated that before purchasing the suit property it was not verified as to whether there was any encumbrance over the suit property But the lower appellate court by inadvertance has stated as if PW.1 had admitted in his cross. examination that even prior to 1976, the plaintiff was aware of the charge created over the suit property. It has to be pointed out that a suggestion had been put to PW.1, which has been denied by him, but by inadvertance the lower appellate court has taken it as an admission. But the said mistake committed by lower appellate court has not affected the finding of the lower appellate court, because there was other evidence as pointed out above which shows that PW.1 was totally unconnected with Ex.A1 sale deed and he was not aware of anything about the transaction.
20. When admittedly, there is absolute lack of pleadings and there is no evidence to show that the plaintiff was a bonafide purchaser for value without notice of the charge created over the suit property and the same has been properly considered by the lower appellate court and the trial court has miserably failed to apply the correct legal principles to the facts of this case, this court finds no reason to interfere with the findings recorded by the lower appellate court. The contention of the learned counsel for the appellant that since the plaintiff was not a party to the suit in O.S.No.45 of 1959, the auction sale in favour of the first respondent is not binding on him cannot be accepted. When admittedly, during the pendency of the said suit, the suit property had been attached and the charge has been created legally and that has been established as a matter of fact and when it has been found that the appellant is not a bonafide purchaser for value without notice of the charge created over the suit property the mere fact that he is not a party to O.S.No.45 of 1959 will not in any way advance the case of the appellant. Hence, for the reasons stated above, the second and third substantial questions of law are answered against the appellant and in favour of the first respondent.
K. MOHAN RAM,J.
mra
21. The second Appeal fails and the same is dismissed. However, there will be no order as to costs.
21.01.2009 Index:Yes/No Internet:Yes/No mra To
1. Additional Subordinate Judges Court, Mayiladuthurai,
2. District Munsif Court, Sirkali.
S.A.No.267 of 2000