Madras High Court
Mrs.Suseela vs P.M.Veeraragavan on 31 March, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:31.03.2011
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.Nos.896 to 899 of 2007
and
M.P.No.1 of 2007 (in all the SAs)
1.Mrs.Suseela
2.Mrs.Thirupurasundari
3.Somasundaram
4.Narayanasamy @ Sankar
5.Prabakaran
6.Mrs.Vijayalakshmi
7.Mrs.Mohanambal
8.T.B.Balasundaram
9.Mrs.Devaki
10.Mrs.R.Banumathi
11.Mrs.Thangam ... Appellants 1 to 11 in S.A.Nos.896 and
897 of 2007
12.Mr.Anbu ... 12th appellant in S.A.No.897 of 2007
....Sole appellant in S.A.No.898 of 2007
vs.
1.P.M.Veeraragavan
2.Sridharan
3.Mrs.Grace Daniel
4.Ponnudurai
5.Joseph
6.K.Oomen
7.Sampath Arokiasamy
8.Mrs.N.Nagarathinam
9.Mrs.P.Suguna
10.Mrs.Rathinakumri
11.Mrs.D.Vanaja
12.Mrs.Allce Grace
13.Mrs.D.Kamala
14.K.Kalaiselvi ... Respondents 1 to 14 in S.A.No.897 of 2007
15.Namachivayam
16.Ramesh Chawdry,
rep.by his Power Agent
S.Ramachandran ... Respondents
1 to 16 in S.A.No.896 of 2007
... 15th respondent in S.A.No.897 of 2007
17.Mrs.Mobly Oomen
18.Thomas Oomen
19.Mrs.Elizabath Mathew
20.Suresh Nainar ... RR16 to 19 in S.A.No.897 of 2007
Ramesh Chawdry (R.15 in
S.A.No.897 of 2007) impleaded as
party respondent vide order of
Court dated 30.11.2010
made in M.P.No.1 of 2010 in
897 of 2007
RR16 to 19 brought on record as
LRs of the deceased R6 vide
order of Court dated 21.3.2011
made in M.P.No.1 to 3 of 2011
1.Ponnudurai
2.Joseph
3.Mrs.N.Nagarathinam
4.Mrs.Rathinakumari
5.Mrs.D.Kamala
6.K.Kalaiselvi
7.Ramesh Chawdry,
rep.by his Power Agent
S.Ramachandran ... Respondents in S.A.No.898 of 2007
R7 impleaded as
party respondent vide order of
Court dated 30.11.2010
made in M.P.No.1 of 2010 in
S.A.Nos.896, 897 and 898 of 2007
These second appeals are filed against the common judgement and decrees dated 15.9.2006 passed by the Principal District Judge, Chengalpattu, in A.S.Nos.96, 97 and 98 of 2004 confirming the judgment and decree dated 20.1.2004 passed by the Subordinate Judge, Poonamallee, in O.S.Nos.547 of 1993, 485 of 1995 and O.S.No.486 of 1995, respectively.
For Appellants : M/s.V.Raghupathi,
G.Devi and V.Venkatesan
For Respondents : Mr.G.Masilamani,Sr.counsel for
K.Surendranath
for RR 1 to 5, 7, 8, 12, 14 and 15
and for defendants 16 and 17
in S.A.No.896 of 2007
for RR1 to 5, 7, 8, 12, 14 and 15
and for defendants 15 and 16
in S.A.No.897 of 2007
for RR1 to 3 and 6 in S.A.No.898 of 2007
Mr.M.S.Krishnan,Sr,counsel for
M/s.Sarvabhauman Associates and
Mohammed Fayazali
for 16th respondent in S.A.896/07
for 15th respondent in S.A.No.897/07
for 7th respondent in S.A.No.898/07
COMMON JUDGMENT
S.A.No.896 of 2007 and S.A.No.898 of 2007 were filed by the plaintiffs in O.S.No.547 of 1993 and O.S.No.486 of 1995, respectively, and S.A.No.897 of 2007 was filed by the defendants in O.S.No.485 of 1995, inveighing the common judgement and decrees dated 15.9.2006 passed by the Principal District Judge, Chengalpattu, in A.S.Nos.96, 98 and 97 of 2004 confirming the common judgment and decrees dated 20.1.2004 passed by the Subordinate Judge, Poonamallee, in O.S.Nos.547 of 1993, 486 and 485 of 1995, respectively, which were filed for declaration and for recovery of possession.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these second appeals would run thus:
(a) The following three suits emerged seeking various reliefs, which are extracted hereunder:
O.S.No.547 of 1993 (S.A.No.896 of 2007):
"a. To declare that the plaintiffs are the absolute owners of the suit property;
b. to direct the defendants to quit and deliver vacant possession of the suit property after removing the superstructure if any, put up by them; and c. for cost of the suit." (extracted as such) O.S.No.485 of 1995 (S.A.No.897 of 2007):
"a. to grant permanent injunction restraining the defendants, their men, agents, servants, relatives and any person claiming or acting under them from interfering with the plaintiffs peaceful possession and enjoyment of their respective plots comprised in S.No.147/2 instead of 147/1 described in the schedule hereunder;
b. to grant permanent injunction restraining the defendants from transferring, alienating, encumbering in any other manner bringing any cloud on the plaintiffs respective title in respect of the suit plots comprised in S.No.147/2 instead of 147/1 under the guise of difference in Survey Number; and c. for cost of the suit."
O.S.No.486 of 1993 (S.A.No.898 of 2007):
"a. to grant a permanent injunction restraining the defendants, their men, agents, servants, relatives or anybody claiming under them not to interfere with the peaceful possession and enjoyment of the suit property; and b. for cost of the suit." (extracted as such)
(b) Written statements were filed by the respective defendants resisting the suits.
(c) Whereupon issues were framed. Joint trial was conducted in respect of the three suits. On the plaintiffs' side the plaintiff in O.S.No.486 of 1995 examined himself as P.W.2 along with one M.Krishnan-the husband of P4-Suseela in O.S.No.547 of 1993 as P.W.1 and Exs.A1 to A17 were marked. On the defendants' side, the first and fourth defendants in O.S.No.547 of 1993 examined themselves as D.W.1 and D.W.2 along with one Venkatesan-the Revenue Inspector of Tamil Nadu Housing Board as D.W.3 and Exs.B1 to B28 were marked. Exs.C1 to C4 were marked as Court documents. Ex.X1 was marked as 3rd party document.
(d) Ultimately, by a common judgement, the trial Court decreed the suit O.S.No.485 of 1985 and dismissed the suits O.S.Nos.547 of 1993 and 486 of 1995.
(e) Aggrieved by the common judgement and decree of the trial Court in O.S.485 of 1985, granting the reliefs in favour of the plaintiffs therein, the defendants filed the A.S.No.96 of 2004 and as against the dismissal decrees in O.S.Nos.547 of 1993 and 486 of 1995, the plaintiffs therein filed the A.S.Nos.98 and 99 of 2004.
(f) By a common judgement, the first appellate Court dismissed all the appeals, confirming the common judgement and decrees of the trial Court.
4. Inveighing the judgements and decrees of the Courts below, these three second appeals have been filed more or less on the same grounds and also suggesting the following substantial questions of law:
"A.Whether the Courts below are justified in not considering that Power of Attorney made in favour of Mr.Umapathi was invalid and not in force, since even before the date of sale of the suit property by the owner of the property principal expired as admitted by witness namely Dr.Ponnudurai who is also defendant in O.S.No.547 of 1993?
B. Whether the Courts below have correctly interpreted the various documents particularly Ex.A2 registered Sale Deed date 15.10.1978 (Doc.No.2802/1978, S.R.O.Ambattur) as per which only after the acquisition S.No.147/1 were sold out by Sivakami and three daughters of Sornambal?
C. Whether the courts below are justified in relying upon the registered Sale Deed dated 15.10.1978 as Ex.A2?
D. Whether the courts below are justified in not presuming that Gopal Naicker colluding with the staff of Tamil Nadu Housing Board changed the survey number deliberately on the basis of their contradictory pleading and documents?
E. Whether the courts below are justified in not considering that the Tamil Nadu Housing Board refused to give No objections certificate for the land of 1.19 cents in S.No.147/1 in view of Acquisition of land?
F. Whether the courts below are justified in not considering the failure on the part of the defendants in O.S.No.547 of 1993 in not producing the true copies of the 4(1) Notification and Section 6 declaration which may prove the actual survey Numbers covering the lands occupied by the then owners of the property?
G. Whether the Courts below are justified in not considering that the Survey Number in 4(1) Notification is only the S.No.147/2 as noted in which Sornambal, is given as the present owner interested in respect of 10.03 acres but in Section 6 declaration, the survey Number as shown as 147/1 and name of N.Gopal Naicker is shown as owner and interested person in respect of 1.19 acres?
H. Whether the Courts below have properly and correctly appreciated both oral and documentary evidence?
I. Whether the Lower appellate Court is justified in not reversing the judgement and decree of the Trial Court which is perverse based on unreasonable, inferences and presumption?"
(extracted as such)
5. My learned predecessor based on the materials available on record framed the following substantial questions of law.
"1. Whether the Courts below have committed an error of law in overlooking the evidence of D.W.1, Dr.Ponnudurai admitting that Swarnammal, the original owner of the suit property who is said to have appointed Mr.Umapathi, as power of attorney agent, had died even prior to the death of Mr.Umapathy and in not considering the validity of the sale deed said to have been executed by the power of attorney agent, Mr.Umapathy? And,
2. Whether the Courts below are justified in not holding that Gopal Naicker colluding with the staff of Tamil Nadu Housing Board changed the survey Number deliberately on the basis of their contradictory pleadings and documents? (extracted as such)
6. The following additional questions of law also have been submitted by the appellants in S.A.No.896 of 2007.
"1. Whether the Courts below are justified in decreeing the suit in O.S.No.547/1993 (sic O.S.No.485 of 1995) for injunction filed by the respondents herein who have failed to file suit for declaration of their title since their title has been challenged by the appellants herein as per Ex.A4 Reply notice dated 7.5.1993 issued prior to the filing of suits by both parties?
2) Whether the courts below are justified in not inferring and presuming that the respondents have not proved their title and lawful possession of the suit properties since they deliberately avoided to file and mark the relevant documents namely deed of power of attorney said to be executed by earlier owner Mrs.Sornambal appointing Mr.Umapathy certified copy of Sale deed said to be executed by the said power agent Umapathy in the year 1994 and the Encumbrance Certificate for the relevant period?
3) Whether the lower appellate Court is justified in applying the earlier decisions of this Honourable Court reported in ILR 30 Madras 397 and ILR 39 Mad 792 while dealing with Sec.26 of the Specific Relief Act since facts of those cases or not similar to the acts of the present cases?
4) Whether the burden of proof ought to have been shifted on the respondents who pleaded title inspite of denial by the appellants herein? (extracted as such)
7. I inclined to treat the above as additional substantial questions of law because they are to be decided by this Court, in the interest of justice.
8. Heard both sides.
9. M.P.No.1 of 2007 was filed for reception of the following documents:
S.No. Date Description Nature of Documents 1 122965 Certified copy of 4(1) Notification under the land acquisition Act extent 1 acre 3 cents in S.No.147/2 Certified copy 2 52566 Certified copy of 4(1) Notification under the land acquisition Act extent 1 acre 12 cents in S.No.147/1 Certified copy 3 11869 Certified copy of 6 Declaration under the Land Acquisition Act Certified copy 4 71007 Original Nil Encumbrance Certificate No.16132/2007 for S.No.147/1 Original 5 71007 Original Nil encumbrance certificate No.16133/07 for S.No.147/2 Original 6 7507 Original Nil encumbrance Certificate No.16131/07 for S.No.147/2 Original
10. Counter also was filed.
11. Taking into consideration the fact that all those documents are public documents, they could be taken on record and given marking as Exs.A18 to A23.
12. All the substantial questions of law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another.
13. Placing reliance on the grounds of second appeals and the evidence on record, the learned counsel for the appellants would advance his arguments, which could tersely and briefly be set out thus:
(i) The Courts below, without taking into consideration the germane facts and the evidence available on record decided the suits as though there occurred a mere mistake in specifying the Survey Number as 147/1 instead of 147/2 in Ex.A2.
(ii) No Rectification Deed was got executed in favour of the purchasers under Ex.A2. Section 26 of the Specific Relief Act even though contemplates such a measure in genuine cases, they have not chosen to do so and that would speak volumes that the purchasers under Ex.A2 were fully aware of the fact as to what was sold was only the land in Survey No.147/1 and not in S.No.147/2.
iii) The Power of Attorney alleged to have been executed by Sornambal in favour of Umapathi, was not at all filed by any one of the purchasers of the plots from Umapathi in S.No.147/2.
(iv) In the subsequent document Ex.A2, there is no rectified Survey Number specified, but S.No.147/1 alone was found mentioned and that is indicative of the fact that what was sold was only the land in S.No.147/1.
(v) Even though it is contended that the Government acquired the land in S.No.147/1, in fact, under Ex.A2 what was sold was only the land in S.No.147/1 and not the land in S.No.147/2.
(vi) The vendors under Ex.A2, being ladies, were not aware of the alleged discrepancies and they understood correctly that they were the owners of the land in S.No.147/2 and therefore, they entered into an agreement to sell with the said Anbu and only when they came to know that the buildings were erected in S.No.147/2, they have chosen to file the suit.
(vii) As such, drawing the attention of this Court to various aspects of the evidence, the learned counsel for the appellants would try to canvass the case that the matter deserves to be remitted back to the lower Court for deciding afresh.
14. Per contra, in a bid to take the edge off and torpedo and pulverise the arguments as put forth and set forth on the side of the appellants, the learned Senior counsel for some of the respondents in these second appeals(who are the plaintiffs in O.S.No.485 of 1995), would set forth and put forth their arguments, the warp and woof of them would run thus:
(i) In Ex.A2 an error apparent crept in, so to say, instead of specifying the Survey number as 147/2, the Survey No.147/1 was mentioned erroneously. It is not as though the identity of the suit property cannot be made out from the document-Ex.A2 itself.
(ii) The patta number is found referred to along with the extent. Over and above that, the fact remains that the land bearing No.147/1 could not have been the subject matter of Ex.A2 at all for the reason that long prior to the emergence of Ex.A2, the Government acquired the entire land in Survey No.147/1 under the Land Acquisition Act for the purpose of plotting out the said land into various plots and raising constructions.
(iii) Adding fuel to the fire, in one and the same Land Acquisition Notification, the names of Gopal Naicker and Gopal Chettiar's legal heirs, namely, Sivagamiammal and others names are found set out in respect of different survey numbers.
(iv) In fact, S.No.147/1 was acquired by the Government, for which compensation was paid to Gopal Naicker and not to Gopal Chettiar-the propositus of Sivagamiammal and his three daughters, namely, Mangaiyarkarasi, Janakiammal and Jayalakshmiammal and his grant daughter Suseela. As such, Sivagamiammal and her daughters and grand daughter cannot plead ignorance of the said fact also.
(v) No rectification deed is required for the reason that it has become a fait accompli and consequent upon the description of property as found set out under Ex.A2, various transactions subsequently took place, which would show that the land in Survey No.147/2 alone was sold under Ex.A2 and the said area was subsequently sold to various persons, who are the plaintiffs in O.S.No.485 of 1995.
(vi) The subsequent execution of the agreement to sell by the legal heirs of Gopal Chettiar in favour of Anbu is not even worth the paper on which it was found written for the reason that it does not bear the date of agreement and there is nothing to indicate that Anbu, who claims to be the agreement holder ever filed any suit for specific performance of the agreement to sell. As such, it was only a make believe document brought up so as to create a cloud in respect of the title concerning the land in Survey No.147/2.
(vii) It is a fact that the legal heirs of Gopal Chettiar, namely, Sivagamiammal and others filed the suit O.S.No.547 of 1993 without disclosing anything about the said agreement to sell.
Accordingly, the learned Senior counsel for the respondents (defendants in O.S.No.547 of 1993) highlighting various defects in the case of the plaintiffs in O.S.Nos.547 of 1993 and 486 of 1995) would pray for the dismissal of all the second appeals. According to him, the Courts below appropriately and appositely, correctly and convincingly and that too, legally, dealt with all the relevant points concerned and decided the lis, warranting no interference in Second appeals.
15. A recapitulation and 'resume' of facts, which are indubitable and indisputable or at least undeniable, absolutely necessary and germane for the disposal of these second appeals would run thus:
(i) One Gopal Chettiar owned the land bearing S.No.147/2; deceased Sivagamiammal was the wife of Gopal Chettiar and the couple had three daughters, namely, Mangaiyarkarasi, Janakiammal and Jeyalakshmiammal, (the plaintiffs 1 to 3 in O.S.No.547 of 1993). P4 is the daughter of the said Janakiammal. As per Ex.A2-the Sale deed dated 15.10.1978 the legal heirs of Gopal Chettiar sold the property described in the schedule as under:
"brhj;J tptuk;
tlbrd;id hp$p!;nuc&d; o!;of;l; mk;gj;Jhh; rg;o!;of;ilr; nrh;e;j 81 be/Kfg;ngh; fpuhkj;jpy; 143 gl;lhtpy; jhf;fyhfp tUk; e";if rh;nt 147-1 V/g.br/90 / / / / / / / @
(ii) It is the case of the plaintiffs in O.S.No.485/95 that Sivagamiammal and her legal heirs intended to sell only the land in S.No.147/2 and not 147/1 as per Ex.A2.
(iii) Whereas, the contention on the side of the legal heirs of Gopal Chettiar and Sivagamiammal, namely, the plaintiffs 1 to 4 in O.S.No.547 of 1993 and the said Anbu-the alleged agreement holder and the plaintiff in O.S.No.486 of 1994, is that what was sold was only the land in S.No.147/1, even though it was earlier acquired by the Government.
16. I would like to fumigate my mind with the following principles "(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
as found enshrined in the decision reported in ((2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL) and the the following other decisions of the Honourable Apex Court.
(i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
"19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
.............
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:
17. It is therefore just and necessary to see as to whether there is any perversity or illegality or misreading of evidence or wrong application of law in deciding the lis by the Courts below.
18. From the perusal of the records what I could understand is that there is no consistency in the plea of the legal heirs of deceased Sivagamiammal, and Gopal Chettiar. As revealed by the additional documents filed before this Court, namely, Exs.A18 to 23 and other documents exhibited, it is clear that the Government acquired the land by initiating proceedings in the year 1966 and concluding it in the year 1969. As such, the land in S.No.147/1 got vested with the Government once and for all irrevocably in the year 1969 itself, wherefore I am at a loss to understand as to how the legal heirs of Gopal Chettiar could ever venture to put forth the plea to the effect that such acquired land in S.No.147/1 was sold by them under Ex.A2 in the year 1978.
19. The learned Senior counsel for the respondents (the defendants in O.S.No.547 of 1993 and plaintiffs in O.S.No.485 of 1995) would appropriately and appositely point out that the legal heirs of Sivagamiammal and Gopal Chettiar, and the said Anbu cannot come before the Court and contend that they want the assistance of the Court to play fraud as against the plaintiffs in O.S.No.485 of 1995.
20. I hark back to the following maxims:
(i) Ex dolo malo non oritur actio Out of fraud no action arises; fraud never gives a right of action.
(ii) Ex nudo pacto non oritur actio-Out of a nude or naked pack that is, a bare parol agreement without consideration, no action arises. Out of a promise neither attended with particular solemnity such as belongs to a specialty nor with any consideration no legal liability can arise.
(iii)Ex turpi causa non oritur actio: Out of a base illegal, or immoral consideration, an action does not arise.
(iv) Ex maleficio non oritur contractus : A contract cannot arise from misconduct.
21. All these sister maxims would convey that If any agreement whether oral or written is not in accordance with law, then such an agreement either oral or written cannot be got enforced in a Court of law.
22. A person cannot come before the Court and try to place reliance on ones own fraud and get support from the Court. Virtually the contentions on the side of the legal heirs of Gopal Chettiar and the said Anbu is precisely to the effect that even though the land in S.No.147/1 was acquired by the Government even well before 1969, they had the right to sell away that land in favour of Sornamal and others, who are the legal heirs of Gopal Naicker.
23. This not a case, wherein the plea of any one is to the effect that under Ex.A2 merely a wrong Survey Number has been mentioned and that has to be simply treated as a different survey number. But this is a singularly singular case, in which, except for the wrong specification of the sub division of the Survey Number as 147/1 instead of S.No.147/2, the other particulars are unambiguously and unequivocally pointing towards the fact that the property intended to be sold was only the land in S.No.147/2.
24. The learned Senior counsel for the respondents would cite the following precedents:
(i) AIR 1944 Mad 50 T.B.S.Seela Bodi Naicker v. T.V.K.Kama Raja Pandiya Naicker, Zamindar of Bondinaickanur (died) and Ors, certain excerpts from it would run thus:
"8. It will be seen from these extracts that the intention of the parties was that Dombucheri village should pass to Sundarapandiya Naicker and the rest of the Bodinaickanur Zamin should continue to be enjoyed by Kamalu Ammal. The subject-matter of the gift is referred to in paragraph I which contains the operative words of the instrument, as "Dombucheri village which is described in column 2 of the schedule herein together with all the incomes therefrom." and if the boundaries mentioned in the second column of the schedule correctly delineated Dombucheri village, there would be no difficulty whatever as the disputed property would have clearly passed to the grantee. But the lower Courts have found by reference to Survey Maps, plans and Registers prepared in the year 1875 and 1876 that Mallingaswami Hill did not form part of Dombucheri village and had been included in the village of Rasingapuram lying to the south of Dombucheri. This finding was not attacked before me by the learned Advocate-General who appeared for the appellants. It has to be explained how this finding gives rise to the problem which has been keenly debated upon in this case. From the plan, Ex.C2, it will be seen that the description in the second column of the schedule that Dombucheri Village lies to the north of the boundary of Kuchanur which lies much father to the south. The proper description of the boundary of Dombucheri would then have to be " to the north of the boundary of Rasingapuram.". . . .
11. The case,; in my opinion, is therefore one where, in the light of the finding of the Courts below, the two parts of the description, namely, the name arid the boundaries do not apply accurately to the same property,; though the language used is plain in itself. In other words, we have here an instrument with a latent ambigulty in the description of the subject-matter of the grant and the Court has to arrive at the true meaning and intention of the parties, aided by such established rules of construction as are properly applicable to the case and such extrinsic evidence of surrounding circumstances as may throw light on the issue (see Section 95 of the Evidence Act.)
12. The learned Advocate-General for the appellant complained that the lower Courts regarded the geographical, connotation of "Dombucheri" according to their finding, as conclusive on the question of the intention of the parties and rejected the description by boundaries as a mistake "by wrongly applying the maxim 'falsa demonstratio non nocet' without properly considering the conduct of the parties to see how they themselves understood and acted upon the instrument, according to the well known rule of construction contemporaea expositio. This complaint appears to me to be well founded. For, I cannot help observing that the principle of falsa demons-tratio has been resorted to by the Courts below all too readily for rejecting the description by boundaries in the schedule as a false description. It has to be borne in mine, in applying this rule that it is not, strictly speaking, a rule of construction though it is sometimes referred to as such. For, it is a rule that enables a Court to disregard part of a description as false and inadvertently inserted only after it has reached the conclusion that the property conveyed was that indicated by the other parts of the description. As observed by Lord Parker of Waddington in Eastwood v. Ashton,L.R.(1915) A.C.900."
(ii) AIR 1963 SUPREME COURT 1879 - sheodhyan Singh v. Sanichara Kuer,certain excerpts from it would run thus:
"4. The contention on behalf of the appellants with respect to this plot is that it was neither included in the final decree for sale in favour of the respondents predecessors-in-interest nor in the sale certificate. Therefore, it was not open to the courts below to grant a decree in favour of the respondents with respect to this plot. The final decree contains ten plots. It gives the Tauzi Number, the Khasra Number, the Thana Number, the Survey Number, the area and the boundaries of each plot. Among the ten plots mentioned in the final decree, there is a Plot No. 160, but no plot bearing No. 1060. In the sale certificate also the same ten plots are mentioned. The sale certificate contains the khata number, the plot number, the area and the boundaries of each plot. There also we find No. 160 but no No. 1060. The High Court has held that No. 160 in the final decree and in the sale certificate is a mistake for 1060. It has further held that this is a case of misdescription and not a case of disputed identity, for in this case the identity of the plot included in the final decree and sold through the sale certificate is not uncertain. It has pointed out that the khata number, the area and the boundaries that are given in the final decree and in the sale certificate correspond with the khata number, the area and the boundaries of plot No. 1060. It has also pointed out that in the writ of delivery of possession to the respondents predecessors as well as in the sale deed in favour of the respondents the correct plot (namely, No. 1060) has been mentioned. Further the High Court has also pointed out that there is no plot bearing No. 160 in khata No. 97. Therefore, as the khata number, the area and the boundaries given in the final decree and in the sale certificate tally with No. 1060, the identity is clearly established and there has only been a misdescription of the plot in the final decree as well as in the sale certificate by the omission of one zero from the plot number.
6. In the present appeal, the learned counsel for the respondents does not ask us to go beyond the sale certificate and the final decree for sale; his contention is that there is a mere misdescription of the plot number in the two documents and that the identity of the plot sold is clear from the circumstances which we have already set out above. He relies on Thakur Barmha v. Jiban Ram Marwari 2. In that case what had happened was that the judgment-debtor owned a mahal in which ten annas share was mortgaged while the remainder was free from encumbrances. A creditor of his attached and put up for sale six annas share out of the mortgaged share. The property attached was sold. When the auction purchasers applied for the sale certificate they alleged that a mistake had been made in the schedule of the property to be sold in that the word not had been omitted from the description of the six annas share and that the property should have been described as being six annas not mortgaged. This prayer of theirs was allowed by the executing court and the appeal to the High Court failed. On appeal to the Privy Council, it was held that in a judicial sale only the property attached can be sold and that property is conclusively described in and by the schedule to which the attachment refers, namely, the six annas share subject to an existing mortgage. The Privy Council therefore allowed the appeal and observed that a case of misdescription could be treated as a mere irregularity; but the case before them was a case of identity and not of misdescription. It was pointed out that a property fully identified in the schedule may be in some respects misdescribed, which would be a different case. Thus the effect of this decision is that where there is no doubt as to the identity and there is only misdescription that could be treated as a mere irregularity. Another case on which reliance has been placed on behalf of the respondents is Gossain Das Kundu v. Mrittunjoy Agnan Sardar 3. In that case the land sold was described by boundaries and area; but the area seems to have been incorrect. It was held to be a case of misdescription of the area and the boundaries were held to prevail.
7. We are of opinion that the present case is analogous to a case of misdescription. As already pointed out the area, the khata number and the boundaries all refer to Plot No. 1060 and what has happened is that in writing the plot number, one zero has been missed and 1060 has become 160. It is also important to remember that there is no plot bearing No. 160 in Khata No. 97. In these circumstances we are of opinion that the High Court was right in holding that this is a case of misdescription only and that the identity of the property sold is well established, namely, that it is Plot No. 1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention of the appellants therefore with respect to this plot must fail."
Absolutely those precedents have to be adhered to in deciding the lis.
25.At this juncture, I recollect and call up the following maxims:
(i) Id Certum est quod certum reddi potest That is certain which can be rendered certain.
(ii) 'Animus hominis est anima scripti' The intention of the party is the soul of the instrument. In order to give life or effect to an instrument, it is essential to look to the intention of the individual who executed it.
(iii) 'Falsa demonstratio non nocet, cum de corpore (persona) constat False description does not injure or vitiate, provided the thing or person intended has once been sufficiently described. Mere false description does not make an instrument inoperative.
(iv) 'Utile per inutile non vitiatur The useful is not vitiated by the useless. Surplusage does not spoil the remaining part if that is good in itself.
(v) Surplusagium non nocet' Surplusage does no harm.
The sum and substance of those sister maxims are to the effect that if there is any wrong description or mis-description that would not vitiate the entire document. Ignoring the false description the document should be interpreted and true meaning should be understood.
26. My mind is reminiscent of the following maxims:
(i) 'Verba ita sunt intelligenda, ut res magis valeat quam pereat The words (of an instrument) are to be so understood, that the subject matter may rather be of force than perish [rather be preserved than destroyed; or, in other words, that the instrument may have effect, if possible]
(ii) 'Verba generalia generaliter sunt intelligenda General words are to be generally understood.
27. The above maxims also support the view that a document has to be interpreted so as to make it meaningful and it should not be thwarted by mis-interpreting the same.
28.It is a trite proposition of law that the witnesses might lie but the circumstances would not lie.
29. Here the contention on the side of the plaintiffs in O.S.No.547 of 1993, so to say, the legal heirs of Gopal-Chettiar, if accepted, it would amount to encouraging them in capitalising their own mistake.
30. I recollect the maxims:
(i) Nul prendra advantage de son tort demesne No one shall take advantage of his own wrong.
(ii) Nemo allegans suam turpitudinem audiendus est No one alleging his own turpitude is to be heard as a witness.
(iii) Nullus commodum capere potest de injuria sua propria No one can obtain an advantage by his own wrong.
The sum and substance of the above maxims is that no one can be allowed to capatalise his own fraud or mistake.
31. As such, the plaintiffs in O.S.No.547 of 1993, so to say, the legal heirs of Gopal-Chettiar are the executants of Ex.A2 and they committed the mistake and they cannot capitalise their own mistake to the disadvantage of the vendees, namely, the legal heirs of Gopal Naicker. Furthermore, it is ex facie and prima facie clear that incontrovertibly and ungainsayably the land in S.No.147/1 was already acquired by the Government and for which, compensation was paid to Gopal Naicker and not to Gopal Chettiar. Even though a faint attempt was made to project as though the name of Gopal Naicker was wrongly specified instead of Gopal Chettiar in the Land Acquisition Notification relation to S.No.147/1, but that point was not subsequently argued before me and it was left as such even on the side of the plaintiffs in O.S.No.547 of 1993.
32. No one can be heard to contend that a particular individual sold the property acquired by the Government and that too, which was acquired from a different person. A mere perusal of the S.4(1) Land Acquisition Notification as well as Sec.6 of the Land Acquisition Act declaration and Ex.X1 would indicate and display that in respect of S.No.147/1, Gopal Naicker was mentioned as the owner and he only got the compensation amount and not the legal heirs of Gopal Chettiar.
33. The fact also remains that in the same Sec.4(1) Notification a part of the land in S.No.147/2, i.e. an extent of 13 cents of land is found mentioned, for which, the name of the owners were specified as the legal heirs of Gopal Chettiar. As such, Sivagamiammal and others, who are the legal heirs of Gopal Chettiar, had full knowledge about the said Notification. As such, the land in S.No.147/1 was acquired by citing the owner of that land as Gopal Naicker and not Gopal Chettiar. No man having head over shoulder would ever venture to purchase the land which belonged to oneself and after getting compensation from the Government, purchase the same land from a third party.
34. As such, it is palpably and pellucidly clear that the pleas of the plaintiffs in O.S.No.547 of 1993 is fraught with falsities and inconsistencies in addition to they being incoherent, which cannot be digested by the Court and the Courts below correctly appreciated the relevant facts and dismissed such pleas and contentions of the legal heirs of Sivagamiammal and Gopal Chettiar.
35. The plea that no steps were taken to get a Rectification deed executed from the plaintiffs in O.S.No.547/93 in favour of the vendees in Ex.A2, is neither here nor there. No doubt, Section 26 of the Specific Relief Act contemplates such a measure. But Ex.A2 was understood properly by the parties concerned and acted upon. The non emergence of Rectification Deed, in the facts and circumstances of this case cannot be taken as fatal to the case of the plaintiffs in O.S.No.485 of 1995, who are the purchasers of various moieties in the form of plots from the vendees under Ex.A2.
36. The plaintiffs in O.S.No.485/95, after purchasing various plots in the land in S.No.147/2 raised the construction after obtaining plan approval even during the year 1984; whereas, the plaintiffs in O.S.No.547 of 1993 issued their lawyer's notice as per Ex.A3 virtually admitting that the plaintiffs in O.S.No.485 of 1995 are in possession of various plots in the land in S.No.147/2.
37. The very narration as found contained in Ex.A3-the lawyer's notice, and also in the plaint in O.S.No.547 of 1993; would fail to pass muster and carry conviction with this Court. The plaintiffs in O.S.No.547 of 1993 would come forward with the case as though for about a decade, they simply kept quiet without visiting the land in S.No.147/2 and only after a decade when they visited the suit property, to their shock and surprise, they came across a large number of buildings having emerged there, so to say, according to them, the plaintiffs in O.S.No.485 of 1995 barged into the said land in S.No.147/2 and raised constructions illegally to the detriment of the plaintiffs in O.S.No.547 of 1993 and that they came to know about it after a decade. Their plea is too a big pill to swallow.
38. The distance between the place of residence of the plaintiffs in O.S.No.547 of 1993 and the suit properties was not much. At the most, it could be around 12 K.Ms, which even the Court could take judicial notice of it.
39. The learned counsel for the appellants would submit that the plaintiffs in O.S.No.485 of 1995 did not take steps to get specified the correct Survey Number as 147/2 in their respective sale deeds, but they did choose to specify only the Survey No. as 147/1 and that is indicative of the fact that they had mala fide intention in grabbing the land of the plaintiffs in O.S.No.547 of 1993; the Power of Attorney deed purported to have been executed by Sornambal in favour of Umapathi was not produced, because it is Umapathi who allegedly sold the plots in the land in S.No.147/2 in favour of the plaintiffs in O.S.No.485 of 1995; none of the plaintiffs or the legal heirs of Gopal Naicker did choose to produce the Power Deed, obviously because, had they produced it, the truth would have come to lime light that even as per the Power Deed, the Power of Attorney, namely, Umapathi was authorised to sell only the land in S.No.147/1.
40. Accordingly, the learned counsel for the appellants would submit that the plaintiffs in O.S.No.485 of 1995 did not approach the Court with clean hands and they suppressed material facts. According to him 'Suppressio Veri, suggestio falsi' Suppression of the truth is equivalent to expression of what is false, No credence, as per him, should be given to the case of the plaintiffs in O.S.No.485 of 1995.
41. The precedents as cited by the learned Senior counsel for the Respondents could fruitfully be cited:
"(i) (1999) 3 SCC 161, at page 165- Ashwinkumar K. Patel v. Upendra J. Patel, certain excerpts from it would run thus:
"8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.
9. We have also considered whether, on that account, we should send back the matter to the High Court for consideration of the appeal. We are of the view that on the facts of this case, this Court can decide whether the temporary injunction granted by the trial court should be confirmed or not. We are, therefore, not remitting the matter to the High Court because a further remand would lead to delay and perhaps one more special leave petition to this Court."
(ii) 1995 Supp (4) SCC 100, at page 100- Union of India v. M. Bhaskaran, certain excerpts from it would run thus:
"6. It is not necessary for us to express any opinion on the applicability of Rule 3(1)(i) and (iii) on the facts of the present cases for the simple reason that in our view the railway employees concerned, respondents herein, have admittedly snatched employment in railway service, maybe of a casual nature, by relying upon forged or bogus casual labourer service cards. The unauthenticity of the service cards on the basis of which they got employment is clearly established on record of the departmental enquiry held against the employees concerned. Consequently, it has to be held that the respondents were guilty of misrepresentation and fraud perpetrated on the appellant-employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards. Learned counsel for the respondents submitted that for getting service in railway as casual labourers, it was strictly not necessary for the respondents to rely upon such casual service cards. If that was so there was no occasion for them to produce such bogus certificates/service cards for getting employed in railway service. Therefore, it is too late in the day for the respondents to submit that production of such bogus or forged service cards had not played its role in getting employed in railway service. It was clearly a case of fraud on the appellant-employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what has happened in the present case. Once the fraud of the respondents in getting such employment was detected, the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service. Such orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. Therefore, even independently of Rule 3(1)(i) and (iii) of the Rules, such fraudulently obtained appointment orders could be legitimately treated as voidable at the option of the employer and could be recalled by the employer and in such cases merely because the respondent-employees have continued in service for a number of years on the basis of such fraudulently obtained employment orders cannot create any equity in their favour or any estoppel against the employer. In this connection we may usefully refer to a decision of this Court in Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi1. In that case Sawant, J. speaking for this Court held that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the concerned appointee. The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. It is of course true as noted by the Tribunal that the facts of the case in the aforesaid decision were different from the facts of the present case.And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the candidate concerned acquired the requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here nor there. As laid down in the aforesaid decision, if by committing fraud any employment is obtained, such a fraudulent practice cannot be permitted to be countenanced by a court of law. Consequently, it must be held that the Tribunal had committed a patent error of law in directing reinstatement of the respondent-workmen with all consequential benefits. The removal orders could not have been faulted by the Tribunal as they were the result of a sharp and fraudulent practice on the part of the respondents. Learned counsel for the respondents, however, submitted that these illiterate respondents were employed as casual labourers years back in 1983 and subsequently they have been given temporary status and, therefore, after passage of such a long time they should not be thrown out of employment. It is difficult to agree with this contention. By mere passage of time a fraudulent practice would not get any sanctity. The appellant authorities having come to know about the fraud of the respondents in obtaining employment as casual labourers, started departmental proceedings years back in 1987 and these proceedings have dragged on for a number of years. Earlier, removal orders of the respondents were set aside by the Central Administrative Tribunal, Madras Bench and proceedings were remanded and after remand, fresh removal orders were passed by the appellant which have been set aside by the Central Administrative Tribunal, Ernakulam Bench and which are the subject-matter of the present proceedings. Therefore, it cannot be said that the appellants are estopped from recalling such fraudulently obtained employment orders of the respondents subject of course to following due procedure of law and in due compliance with the principles of natural justice, on which aspect there is no dispute between the parties. If any lenient view is taken on the facts of the present case in favour of the respondents, then it would amount to putting premium on dishonesty and sharp practice which on the facts of the present cases cannot be permitted."
(iii) (1994) 2 SCC 647, at page 663- A.P. State Financial Corpn. v. Gar Re-Rolling Mills, certain excerpts from it would run thus:
"18. There is no equity in favour of a defaulting party which may justify interference by the courts in exercise of its equitable extraordinary jurisdiction under Article 226 of the Constitution of India to assist it in not repaying its debts. The aim of equity is to promote honesty and not to frustrate the legitimate rights of the Corporation which after advancing the loan takes steps to recover its dues from the defaulting party. Thus, the intention of the Legislature in using the expression without prejudice to the provisions of Section 29 of the Act clearly appears to be that recourse to the provisions of Section 29 of the Act is not prohibited, where an order or decree under Section 31 of the Act obtained by the Corporation has not been complied with or honoured by the defaulting concern or is otherwise insufficient to satisfy the dues of the Corporation and the Corporation withdraws and abandons to pursue further proceedings under Section 31 of the Act. Passing a money decree for recovery of the outstanding dues, not being within the jurisdiction of the court under Section 31 of the Act, the Corporation retains its right to recover its dues by invoking the provisions of Section 29 of the Act in the manner prescribed therein notwithstanding any order, final or interim, obtained by it under Section 31 of the Act by withdrawing from and abandoning those provisions at any stage of the proceedings. A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law. Since, the Legislature enacted Sections 29 and 31 with a view to aid the Corporation to recover its legitimate dues etc. from the defaulting party, the saving clause in Section 31 of the Act, preserving the rights under Section 29 of the Act by giving up the pursuit under Section 31 at any stage of the proceedings is available to the Corporation. The two provisions must be so harmonised as to facilitate the Corporation to recover its dues from the defaulting party. The Act was enacted by Parliament with a view to promote industrialisation and offer assistance by giving financial assistance in the shape of loans and advances etc. repayable in easy instalments. The Corporation has to recover the loans and advances, so as to be able to give financial assistance to other industries and unless it recovers its dues, the money will not remain in circulation for long. It is with this end in view that Parliament gave the Corporation the right to proceed under Section 31 of the Act, preserving at the same time its rights and remedy under Section 29 of the Act, so that the Corporations are not choked by the defaulting debtors by adopting frustrating or dilatory tactics in the proceedings in the court initiated under Section 31 of the Act."
These precedents are spotlighting and cautioning the Courts to have proper approach and in this case the appellants, it is quite obvious and axiomatic that they with their untenable pleas should not have set the law in motion.
42. I would like to incidentally point out that even the sub-registrar, at the time of registering Ex.A2, should have objected to the specification of the Survey Number as 147/1, because, long before the land in S.No.147/1 was acquired by the Government. Any land which happened to be the subject matter of land acquisition, cannot be the subject matter of any sale by private individuals subsequently. But out of oversight, it seems, such objection was not raised by the sub-registrar concerned also.
43. Reverting back to the discussion on the intrinsic evidence available in the document Ex.A2 itself, I would like to refer to the patta also. The patta number has been mentioned in Ex.A2 as 143, which refers to only one Survey Number, namely, the land in S.No.147/2. As such, the patta number was correctly referred to in Ex.A2.The extent also is only 90 cents and that also was found mentioned correctly.
44. In the grounds of appeal in A.S.No.97/04 (O.S.No.547/93) it was found stated thus by the appellants herein, who were the plaintiffs in O.S.No.547 of 1993:
"27. Mentioning of patta number in the sale deed will not give any right to the respondents. In the said patta number there are also other lands. If patta No.143 relates to only one property then it is a different matter. Therefore, the respondents cannot allege that because patta number is 143 they cannot claim title over S.No.147/2 which is not covered under the sale deed."
(emphasis supplied)
45. It is not as though as contended by the plaintiffs in O.S.No.547 of 1993 in the patta bearing No.143 several Survey numbers were found mentioned, but only one Survey number is found mentioned i.e. S.No.147/2, and as such, even as per the logic of the plaintiffs in O.S.No.547 of 1993, Ex.A2 stands the scrutiny and it could reasonably be interpreted to the effect that under Ex.A2 the property intended to be sold was only the land in S.No.147/2 and not the land in S.No.147/1.
46. At one point of time, it seems, vainly it was thought of being canvassed before this Court as though it was the prevailing practice in Madras and other places that some were in the habit of selling even the lands acquired under the Land Acquisition, in favour of third parties.
47. My discussion supra would spotlight and clarify that even such an argument is not tenable for the reason that Gopal Naicker happened to be the owner of S.No.147/1 and he received the compensation and in such a case, I am at a loss to understand as to how Gopal Naicker's legal heirs would pay hard cash to purchase the property of Gopal Naicker himself, which was already acquired by the Government, for which Gopal Naicker himself got compensation.
48. To the risk of repetition and pleonasm, but without being tautalogous, I would like to point out that the arguments as put forth on the side of the appellants are having no legs to stand and such arguments and pleas have to be discarded.
49. Placing reliance on Ex.A8-the proceedings of the Assistant Commissioner of ULT, Ambattur, the learned counsel for the appellants would try to canvass the pleas of the plaintiffs in O.S.No.547 of 1993 and 486 of 1995, for which, the learned Senior counsel for the respondents(plaintiffs in O.S.No.485 of 1995) would convincingly argue that the said proceeding is dated 10.11.1983 and that would reveal that Sivagamiammal, so to say, the wife of Gopal Chettiar submitted her return under the Urban Ceiling Act on 20.12.1976 i.e. anterior to the emergence of Ex.A2 dated 15.10.1978 and in such a case, no support could be taken by the appellants(plaintiffs in O.S.No.547 of 1993 and 486 of 1995) from such submission of return to the effect that S.No.147/2 belonged to the legal heirs of Gopal Chettiar.
50. It was also argued before me that Sivagamiammal executed a 'Will' Ex.A5 in favour of the plaintiffs 1 to 4 in O.S.No.547 of 1993, bequeathing the land in S.No.147/2.
51. A mere perusal of which would show that the said 'will' was executed within Madras City, even though the land in S.No.147/2 was situated outside the City limits and as per Section 213 of the Indian Succession Act, the said Will should have been got probated and then only any reliance can be placed on that Will. No doubt, no one raised this point, but this is only a law point which this Court also could visualise. Unprobated 'Will' is having no probative force of its own and as such, the appellants cannot find any support from such 'Will' also. The basic fact is that Sivagamiammal had no right to execute the Will in respect of S.No.147/2 after selling the same under Ex.A2.
52. So far this case is concerned, it is quite discernible that in Ex.A2 boundaries are not found specified. As such, ushering in the principle boundaries will prevail over extent or extent will prevail over boundaries, cannot be pressed into service.
53. As correctly pointed out by the learned Senior counsel for the plaintiffs in O.S.No.485 of 1995, if intrinsic evidence could be found in Ex.A2 itself then reliance could be placed on that.
54. My discussion supra would show that the intrinsic evidence is available in the document itself and in such a case, the question of treating Ex.A2 as non-est in the eye of law or it should be interpreted in the manner that under Ex.A2 only the land in S.No.147/1 alone was sought to be sold by the vendors in favour of the vendees does not arise at all.
55. The learned Senior counsel for the plaintiffs in O.S.No.485/05 would submit that the vendees, namely, Mangaiyarkarasi, Janakiammal, Jayalakshmiammal were very much alive, as plaintiffs 1 to 3 in O.S.No.547 of 1993, but none of them were examined invoking the method 'Examination Bene esse', which is available in C.P.C.
56. It is a fact that before the suit O.S.No.547 of 1993 got ripened for trial, P1 to P3 died and only P4 was alive and for that matter P4 is still alive, but she was not examined. It is only P4-Suseela's husband Krishnan was examined as P.W.1
57. The core question arises as to whether the evidence of P.W.1-Krishnan could be taken as sufficient evidence on the side of the plaintiffs 1 to 4 in O.S.No.547 of 1993.
58. In this connection, the learned Senior counsel for the respondents, would cite the following decisions:
(i) (1999) 3 SUPREME COURT CASES 573 VIDHYADHAR V. MANIKRAO AND ANOTHER, certain excerpts from it would run thus:
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh1. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh2 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat4 also followed the Privy Council decision in Sardar Gurbakhsh Singh case1. The Allahabad High Court in Arjun Singh v. Virendra Nath5 held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.
18. Defendant 1 himself was not a party to the transaction of sale between Defendant 2 and the plaintiff. He himself had no personal knowledge of the terms settled between Defendant 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, Defendant 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by Defendant 2 in his favour. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have been claimed by Defendant 2 against Defendant 1 including redemption of the mortgaged property.
21. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as a defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram7 in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.
22. In the instant case, the property which was mortgaged in favour of Defendant 1 was transferred by Defendant 2, who was the owner of the property, to the plaintiff. This transfer does not, in any way, affect the rights of Defendant 1 who was the mortgagee and the mortgage in his favour, in spite of the transfer, subsisted. When the present suit for redemption was filed by the plaintiff, Defendant 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered the witness-box, Defendant 2 did not cross-examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him. Defendant 1 alone raised the question of validity of the sale deed in favour of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to Defendant 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the sale deed on the ground that the amount of consideration had not been paid, Defendant 2 (sic 1) did not, in support of his case, enter the witness-box. Instead, he deputed his brother to appear as a witness in the case. He did enter the witness-box but could not prove that the sale consideration had not been paid to Defendant 2. On a consideration of
23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion."
(ii) (2010) 10 SUPREME COURT CASES 512 MAN KAUR (DEAD) BY LRS V. HARTAR SINGH SANGHA, certain excerpts from it would run thus:
"14. In Vidhyadhar v. Manikrao4 this Court reiterated the following well-recognised legal position: (SCC pp. 583-84, para 17) 17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.
15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd.5 held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21) 13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to act on behalf of the principal. In our view the word acts employed in Order 3 Rules 1 and 2 CPC confines only to in respect of acts done by the power-of-attorney holder in exercise of power granted by the instrument. The term acts would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some acts in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
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17. In Shambhu Dutt Shastri v. State of Rajasthan6 it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
18. The aforesaid judgment was quoted with approval in Ram Prasad v. Hari Narain7. It was held that the word acts used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.
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21. We hold that the view taken by the Rajasthan High Court in Shambhu Dutt Shastri6 followed and reiterated in Ram Prasad7 is the correct view. (emphasis supplied)
18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
. . . . .
. . . . .
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his state of mind or conduct, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his bona fide need and a purchaser seeking specific performance who has to show his readiness and willingness fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or readiness and willingness. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
59. The learned counsel for the appellants(plaintiffs in O.S.No.547 of 1993 and 486 of 1995) would try to explain and expound by pointing out that in Family Court matters certain facts would be within the exclusive knowledge of the parties to the lis and if any of them has not been examined, then adverse inference could be drawn, but this case is not of that nature and only documentary evidence will prevail over all other evidence and in such a case non examination of P1 to P3 in O.S.No.547 of 1993 is not fatal.
60. I would like to point out that normally the argument as put forth by the learned counsel for the appellants could be accepted; however, this is a different case. The plaintiffs in O.S.547 of 1993 including P4-Suseela would submit that the land in S.No.147/1 alone was intended to be sold and not the land in S.No.147/2, even though the land in S.No.147/1 was acquired by the Government. In such a case, it cannot be countenanced that P.W.1-Krishnan was competent to speak about such intention.
61. At this juncture I recollect the following maxims:
(i) Affirmatis est probare He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.
62. The matter would have been entirely different if there are no land acquisition proceedings. In such a case, it is for the plaintiffs in O.S.No.485/95 to shoulder the burden of proving what they pleaded. But the plaintiffs in O.S.No.547 of 1993 would try to persuade this Court to believe that despite land acquisition proceedings relating to the land in S.No.147/1, the said land was sought to be sold under Ex.A2 and that was the animus and that was the concensus ad idem between the parties as per P4-Suseela in O.S.No.547 of 1993. In such a case, P4-Suseela was the competent person to speak about it and not the husband of P4-Krishnan, who was not even an attestor to Ex.A2 and not a party to any of the documents also relating to this case.
63. I would also like to recollect the following principle 'Examination Bene Esse' which concept is found embodied in CPC. If at all the plaintiffs in O.S.No.547 of 1993 were so particular in getting the evidence of P1 to P4 recorded, then they could have got it done before the commencement of the trial. P4 in O.S.No.547 of 1993 should have examined herself as P.W.1 before examining her husband Krishnan, but that was not done so. P.W.1-Krishnan was not the Power of Attorney of P1 to P4 in O.S.No.547 of 1993 to speak on behalf of them. Even the Power of Attorney will not be competent to speak about the certain facts, which could only be spoken to by the parties to the lis.
64. Regarding Ex.A12-the Sale Agreement dated 14.5.1993, I would like to point out that such a document could only be construed as a dubious document, because it is an undated once. The Court cannot be called upon to assume and presume as though the date of purchase of the stamp paper should be taken as the date of the document. Axiomatic and obvious as it is that stamp paper could be purchased on one day and document could be scribed on some other day and there is no hard and fast Rule that a stamp paper purchased on a particular date could be used only on the same date. Furthermore, the said agreement to sell-Ex.A12 was not signed by Anbu-the person who claims to be the holder of it. It is an unilateral document signed by P1 to P4 in O.S.No.547 of 1993.
65. In this connection, the learned Senior counsel for the plaintiffs in O.S.No.485 of 1995 would appropriately and appositely cite the decision of this Court reported in AIR 1998 Mad 169 S.M.Gopal Chetty vs. Raman @ Natesan and 7 others, certain excerpts from it would run thus:
"7. From the two documents we are not able to find anything signifying the assent of the plaintiff. Therefore there is no contract between the plaintiff and the defendants. At the most they may be termed as undertakings by the defendants 1 and 2. As per Section 10 of the Indian Contract Act,1872, all agreements are contracts, if they are made by free consent of the parties competent to the contract. As we have seen above, there is no agreement at all in the present case by the plaintiff.
8. If there is no contract at all, then the question of specific performance does not arise. As per Section 15 of the Specific Relief Act, 1963, the contract can be enforced only by a party on contract. The plaintiff is not a party at all to the contract. Therefore he is not entitled to obtain a decree from Court for specific performance. Hence, the suit has to be dismissed on this ground alone."
As such, the said agreement also fails to satisfy the requirement of an agreement.
66. It is also clear that Ex.A12-the alleged agreement to sell was not acted upon, because Anbu has not even raised his little finger to file any suit for specific performance. There is no consistency between the versions in the plaints in O.S.No.547 of 1993 and O.S.No.486 of 1995. In the plaint in O.S.No.547 of 1993 there is no whisper about the agreement to sell referred to in Anbu's suit O.S.N.486 of 1995.
67. It is also quite discernible from Ex.A3-the copy of lawyer's notice, that the plaintiffs in O.S.No.547 of 1993, without mincing words, unambiguously and unequivocally, clearly and pellucidly pointed out that they were not in possession and only the plaintiffs in O.S.No.485 of 1995 were in possession and in such a case, I am at a loss to understand as to how Anbu, in the plaint in O.S.No.486 of 1995 could claim to be in possession of the land in S.No.147/2. As such, the averments in O.S.No.486 of 1995 militates as against the averments in O.S.No.547 of 1993 and also Ex.A3. The Courts below correctly adverted to those facts and discarded the plea of the appellants.
68. After the emergence of Ex.A2 during the year 1978, various sale deeds emerged in favour of the plaintiffs in O.S.No.485 of 1995 and they also, after obtaining approval from the authority concerned, raised constructions and till then, the plaintiffs in O.S.No.547 of 1993 kept quiet. As has been already pointed out by me supra, nearly a decade thereafter, the plaintiffs in O.S.No.547 of 1993 did choose to issue Ex.A3 by coming forward with different set of pleas, which are found to be not true.
69. I recollect the maxim 'The witnesses might lie, but the circumstances would not lie'. Accordingly, if viewed, here the circumstances unambiguously and unequivocally point out that the case of the plaintiffs in O.S.No.485 of 1995 is true, whereas, the case of the plaintiffs in O.S.No.547 of 1993 and 486 of 1995 is untrue and the Courts below correctly au fait with law and au courant facts decided the lis, warranting no interference in second appeals.
70. The learned counsel for the appellants would try to canvass the point that the suit O.S.No.485 of 1995 is bad for want of prayer for declaration of title, since the title of the plaintiffs in that suit was disputed.
71. In support of his point, the learned counsel has chosen to cite the following decisions of this Court:
(i) CDJ 2009 MHC 2512 K.Subramani & Others v. P.Rajesh Khanna and another;
(ii) S.A.No.238 of 2006 Rahimunnisabi v. 1.Subhan Sahib, 2. Sahen, 3.Pyara alias Aziz
(iii) 2011 (2) CTC 77 K.JIJI BAI @ pUSHPAMMAL V. SURESHKUMAR kANKARIYA;
In view of the reasons to be cited infra, those three precedents, in my considered opinion, were cited out of context.
72. I would like to point out that this is a singularly singular case in which there are three suits filed as stated supra, including O.S.No.547 of 1993. Joint trial was conducted, in that the plaintiffs in O.S.No.547 of 1993 sought for even declaration of title over the suit property and there was an issue also dealt with by the Courts below and they held legally and correctly, justly and properly that the title was not with the plaintiffs in O.S.No.547 of 1993 and the validity of the sale deed Ex.A2 was upheld by them and in such a case, I do not think that the claim of the plaintiffs in O.S.No.485 of 1995 should be discarded on the ground that it was bad for want of prayer for declaration of title. Even by Phantasmegorical thoughts, it cannot be visualized that the matter on hand requires to be remanded back to the lower Court for any purpose.
73. In view of the discussion supra, the substantial questions of law are answered in favour of the plaintiffs in O.S.No.485 of 1995 and as against the defendants (plaintiffs in O.S.Nos.547 of 1993 and 486 of 1995) as under :
Substantial Question of Law (i) is answered to the effect that the perusal of the entire evidence, including the evidence of D.W.1, would show that there is nothing to indicate that the power agent-Umapathi, while executing the Sale deeds, the principal-Sornammal died, and a stray sentence in the deposition of D.W.1 should not be read in isolation.
Substantial question of Law (ii) is answered to the effect that absolutely there is nothing to indicate that Gopal Naicker colluded with the staff of Tamil Nadu Housing Board and got changed the Survey Number etc., in the process of land acquisition proceedings.
Additional Substantial Question of law (i) is answered to the effect that the Courts below were justified in decreeing the suit O.S.No.485 of 1995 in granting injunction, despite there is no prayer for declaration of title.
Additional Substantial Question of Law (ii) is answered to the effect that the suit of the plaintiffs in O.S.No.485 of 1995 was not bad for non production of the original Power of Attorney Deed in favour of Umapathy, executed by Sornambal.
Additional Substantial Questions of law (iii) and (iv) are decided to the effect that the Courts below correctly applied the proposition of law and also applied the concept 'burden of proof' and decided the lis, warranting no interference in second appeal.
73. In the result, I could see no merit in the second appeals and all the second appeals are dismissed. However, there is no order as to costs. Connected miscellaneous petitions are closed.
msk To
1. The Principal District Judge, Chengalpattu.
2. The Subordinate Judge, Poonamallee