Madras High Court
Somasundara Nadar vs Ramadoss (Died) on 20 February, 2024
Second Appeal No.379 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.02.2024
CORAM :
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
Second Appeal No.379 of 2013
and M.P.Nos.1 and 2 of 2013
1.Somasundara Nadar
2.Amithakani
3.Dhanalakshmi
4.Geetha
5.Swarnalatha
6.Uma
7.Balamurugan
8.Shanmuga Venkatesan …. Appellants
-Vs-
1.Ramadoss (Died)
2.Rani
3.Ravi
4.R.Chandra
5.R.Gomathi
6.G.Akila
7.P.Vijayalakshmi
(R1 died. R4 to R7 brought on record as
LR's of the deceased R1 vide court order
dated 11.01.2024 made in S.A.No.379 of
2013 by VLNJ) ... Respondents
Prayer : Second Appeal under Section 100 of C.P.C., against the judgment and
decree dated 31.01.2011 made in A.S.No.12 of 2010 on the file of the learned
Subordinate Judge, Ponneri confirming the judgment and decree dated
1/8
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Second Appeal No.379 of 2013
15.07.2009 made in O.S.No.220 of 2000 on the file of the learned District Munsif,
Ponneri.
For Appellants : Mr.K.Bharathi
For Respondents : Mr.R.Krishnasamy
JUDGMENT
The plaintiffs are the appellants. For the sake of convenience the parties are referred to as per their rank in the suit.
2. The plaintiff originally filed the suit for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the property. The case of the plaintiff is that, he purchased the property under Ex.A1 from one Lalitha, the owner of the property on 29.06.1998 for a valuable consideration of Rs.10,000/-. According to him, he took possession of the property and was enjoying the same by digging bore well and taking care of the land. Pending the suit, the sole paintiff died and his legal representatives were impleaded as plaintiffs 2 to 9.
3. The defendants entered appearance and filed a written statement that a decade prior to the purchase by the plaintiff, they had purchased the property from one Anbazhagan, who was the power of attorney of Lalitha, the original 2/8 https://www.mhc.tn.gov.in/judis Second Appeal No.379 of 2013 owner. According to them, after having obtained power from Lalitha, Anbazhagan plotted out the entire extent of 2.47 acres and sold an extent of 1800 sq.ft in their favour. They claim to be in possession of the property by digging bore wells.
4. On the basis of these pleadings, the trial Court framed the following issues.
1/thjp jhth brhj;jpd; KGikahd rl;lg;go chpikahsuh > 2/tHf;fpw;fhd fhuzk; cs;sjh > 3/thjp nfhhpa[s;sgo tpsk;g[if ghpfhuk; bgw chpika[ilauh > 4/ ntW vd;d ghpfhuk; >
5. The legal heirs of the original plaintiff examined themselves as P.W.1 and another witness as P.W.2. Exs.A1 and A2 were marked. On the side of the defendants, the first defendant examined himself as D.W.1 and another witness as D.W.2. Only one document was marked ie., sale deed executed by Anbazhagan in their favour dated 01.07.1987.
6. The plaintiffs took out an application for appointment of Advocate Commissioner and Commissioner having been appointed, the report of the Advocate Commissioner was filed as Ex.C1. The learned trial Judge came to the conclusion that the plaintiffs have proved the title to the property and decreed 3/8 https://www.mhc.tn.gov.in/judis Second Appeal No.379 of 2013 the suit.
7. On appeal, the learned Subordinate Judge in A.S.No.12 of 2010 analysed the evidence and came to the conclusion that the purchase made by the defendants being prior in point of time, the purchase made by the plaintiff in 1998 ie., 11 years after the purchase is of no avail. Consequently, on this finding the appeal was allowed on 31.01.2011.
8. Against this reversing finding, the present Second Appeal has come up before this Court. On 16.12.2013 the Second Appeal was admitted and the following substantial questions of law were framed for consideration:
i. When the trial court has cogently analysed to facts and circumstances of the case and evidence and decreed the suit in favour of the purchaser (Plaintiffs) who bought the immovable property from the title holder, can the lower appellate court on the mere surmises reverse the decree of the trial Court?
ii. When the defendants did not let in evidence and establish that he has acted upon the sale deed (Ex.B1) by getting patta, mutation of names in the public records, can claim the paramount title against the plaintiffs who are in possession of the suit property having purchased the same from the title holder when all the public records standing the name of the plaintiffs?4/8
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9. Mr.R.Krishnasamy entered appearance for the respondents.
10. Heard Mr.K.Bharathi for the appellant and Mr.R.Krishnasamy for the respondents.
11. I have carefully gone through the records and in particular, Exs.A1 and B1. The entire case of the plaintiff is based on Ex.A1, the sale deed executed by one Lalitha in their favour. There is no dispute that Lalitha is the owner of the property. She had owned a large extent of 2.47 acres. Of this 2.47 acres, the issue before me is only with respect of Plot No.30 with an extent of 1800 Sq.ft. A perusal of Ex.B1 would show that Lalitha had appointed a power of attorney in order to develop the property. The power of attorney, in exercise of the power granted, had alienated the property in favour of the defendants under Ex.B1. Ex.B1 is prior in point of time, ie., by nearly 11 years. Once in exercise of the power the agent has sold the property in favour of a third party, the said property is no more available to the original owner to alienate the same.
12. Therefore, whatever was purchased by the plaintiff in the year 1998 is of absolutely no value. This is because, Lalitha through her power agent Anbazhagan had already alienated the property. There is no right, title or interest to alienate the same property in favour of the plaintiff. Unfortunately, 5/8 https://www.mhc.tn.gov.in/judis Second Appeal No.379 of 2013 she has done so, which has resulted in this litigation. The property having been purchased by the second defendant Rani in the year 1987, the purchase made by the plaintiff thereafter is of no use.
13. Lalitha having alienated the property when she had no right over the same, it is always open to the plaintiff to proceed against her legal representatives who had inherited her property for damages or any other appropriate remedy as is open to them.
14. I do not find any error, irregularity or perversity in the judgment and decree of the lower appellate Court. I agree with the view of the dismissal of the suit. Consequently, the substantial questions of law is answered against the appellants and in favour of the respondents.
15. In fine, the Second Appeal stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
20.02.2024 Index : Yes/No Neutral Citation : Yes/No 6/8 https://www.mhc.tn.gov.in/judis Second Appeal No.379 of 2013 Speaking Order / Non-speaking order KST To
1.Subordinate Judge, Ponneri.
2.District Munsif, Ponneri.
7/8 https://www.mhc.tn.gov.in/judis Second Appeal No.379 of 2013 V.LAKSHMINARAYANAN, J.
KST S.A.No.379 of 2013 20.02.2024 8/8 https://www.mhc.tn.gov.in/judis