Madras High Court
P.Arul vs U.Maruthamuthu on 2 September, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 02.09.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.No.2170 of 2014 and M.P.No.1 of 2014 P.Arul ....Appellant ..vs.. 1.U.Maruthamuthu 2.U.Ayyavu ..Respondents Civil Miscellaneous Appeal is filed under Order 43 Rule 1(r) of the Civil Procedure Code, as against the order dated 07.07.2014 in I.A.No.125/2014 in O.S.No.122/2014 passed by the learned II Additional District Judge, Thiruvallur at Poonamallee. For Appellant : Mr.R.Prabhakaran For Respondents : Mr.P.Valliappan (For R1 & R2) JUDGMENT
The present appeal has been filed against the order dated 07.07.2014 in I.A.No.125/2014 in O.S.No.122/2014 passed by the learned II Additional District Judge, Thiruvallur at Poonamallee, whereby the application filed by the appellant herein for ad-interim injunction restraining the respondents from putting up construction in the suit property was dismissed.
2.The appellant herein is the plaintiff and the respondents are the defendants 2 & 3 respectively, in the suit in O.S.No.122 of 2014. One M/s.G.R.Real Estates, represented by its Proprietor Mr.G.Ramachandran, is the 1st defendant in the said suit. For the sake of convenience, the parties are referred as per their rankings in the suit.
3.The brief facts of case of the plaintiff before the Trial Court is as follows:-
3(a)The suit property and adjacent property ie., Survey No.1, measuring an extent of 1.31 acres situated at No.51, Agraharam (vadkku) Village, Poonamallee Taluk were jointly purchased by one Kanakasabai and Ganesa Naicker from one M.V.Rathinavelu Mudaliar, under a sale deed dated 29.09.1955, registered as document No.1553/1955, S.R.O, Poonamallee. The said Kanakasabai and Ganesa Naicker are the brothers and they have purchased other properties also jointly in their names. Hence, they are entitled half share each in all the properties purchased by them. While so, one of the purchasers viz., Mr.Kanakasabai died leaving behind his wife Mrs.Angammal and daughters Mrs.Balamani and Mrs.Ranjitham. Hence, Kanakasabai's half share was devolved on his wife and two daughters. Subseqently, the said Mr.Ganesa Naicker and the legal heirs of the deceased Mr.Kanakasabai viz., Mrs.Angammal, Mrs.Balamani and Mrs.Ranjitham partitioned their properties under a partition deed dated 30.11.1998, registered as Document No.1319/1998, S.R.O., Poonamallee. In the said partition, the suit property and adjacent property i.e, an extent of 1.28 acres in Survey No.1 was allotted to the share of the legal heirs of Mr.Kanagasabai viz., Mrs.Angammal, Mrs.Balamani and Mrs.Ranjitham, in A schedule in that partition deed. The said land was latter plotted out as house sites.
3(b)Thereafter, there was a family arrangement between Mrs.Angammal and her two daughters viz., Mrs.Balamani and Mrs.Ranjitham in respect of the suit property and other properties. As per the family arrangement, Plot Nos.1 to 6, 20 to 24 and 28 to 34, measuring 25465 sq. ft comprised in S.No.1, ie., suit property and some other properties, were allotted to Mrs.Balamani and Plot Nos.7 to 19 measuring 16798 sq.ft comprised in S.No.1 were allotted to Ranjitham. Based on the said family arrangement, the said Mrs.Angammal has executed a settlement deed dated 05.03.2003 registered as Document No.318/2003, S.R.O., Poonamallee, in favour of her daughter Mrs.Balamani in respect of Plot Nos.1 to 6, 20 to 24 and 28 to 34, measuring 25465 sq. ft comprised in S.No.1, ie., in respect of suit property and other property. Similarly, the said Mrs.Angammal has executed another settlement deed dated 05.03.2003 registered as Document No.317/2003, S.R.O., Poonamallee, in favour of her another daughter Mrs.Ranjitham, in respect of Plot Nos.7 to 19 measuring 16798 sq.ft comprised in S.No.1.
3(c)Thereafter, the said Mrs.Balamani has executed a power of attorney deed dated 24.03.2003 appointing one Mr.Sivakumar @ Kumaran, as her power agent, registered as Document No.133/2003 on 30.05.2003, S.R.O., Poonamallee and delivered possession to him, in respect of the property settled on her by her mother Mrs.Angammal. Subsequently, the said Power Agent Mr.Sivakumar @ Kumaran has entered into an agreement of sale with the plaintiff/appellant herein, in respect of the suit property for a sum of Rs.5 lakhs on 07.10.2005, after receipt of Rs.2 lakhs as advance and he agreed to receive the balance amount and to execute and register the sale deed. Pursuant to the sale agreement dated 07.10.2005, the possession was also delivered to the plaintiff/appellant herein. The balance sale consideration of Rs.3 lakhs was also paid by the plaintiff on 30.09.2006. Subsequently, the said Power Agent Mr.Sivakumar @ Kumaran has executed a sale deed dated 25.03.2014 in favour of the plaintiff, registered as Document No.1082 of 2014, S.R.O., Poonamallee. Thus, the plaintiff is the absolute and exclusive owner of the suit property and he is in possession and enjoyment of the same.
3(d)While So, during the first week of April, 2014, the defendants' men trespassed into the suit property and started to put up illegal and unauthorized construction. On enquiry, the plaintiff came to know that the defendants have claimed themselves title to the suit property based on a sale deed dated 19.01.2012 executed by the Sub-Court, Poonamallee, on behalf of the 1st defendant, in favour of the 2nd defendant, which was registered as Document No.146 of 2012, S.R.O., Poonamallee and a settlement deed dated 30.03.2012 executed by the 2nd defendant in favour of his brother, 3rd defendant herein, which was registered as Document No.1087 of 2012, S.R.O., Poonamallee. On perusal of the sale deed dated 19.01.2012, the plaintiff came to know that the 2nd defendant had filed a suit in O.S.No.128 of 2007 on the file of the Sub-Judge, Poonamallee, for specific performance as against the 1st defendant and the same was decreed on 07.09.2010 and in pursuance of the said decree, the sale deed was executed by the Sub-Court, Poonamallee, on behalf of the 1st defendant, in favour of the 2nd defendant.
3(d)It is the case of the plaintiff that the 1st defendant viz., M/s.G.R.Real Estates is not the owner of the suit property and the 1st defendant has no right to execute any sale deed in respect of the suit property. A collusive decree was obtained by them from the Sub-Court, Poonamallee in O.S.No.128 of 2007 by playing fraud. Under such circumstances, according to the plaintiff, the sale deed dated 19.01.2012 executed by the Sub-Court, Poonamallee in favour of the 2nd defendant and the settlement deed dated 30.03.2012 executed by the 2nd defendant in favour of the 3rd defendant are not valid and not binding on the plaintiff. Since the defendants 2 & 3 trespassed into the suit property and started to put up illegal construction, the plaintiff has lodged a police complaint on 14.04.2014 before the Inspect of Police (Land Grabbing Cell), Thiruvallur. Thereafter, the plaintiff has filed the present suit in O.S.No.122 of 2014 for the following reliefs_
1)for declaration declaring the plaintiff's title to the suit property and for consequential relief of recovery of possession of the suit property, after demolishing the illegal construction;
2)to declare the decree and judgment dated 07.09.2010 passed in O.S.No.128 of 2007 on the file of the Sub-Court, Poonamallee, as null and void;
3)to declare the sale deed dated 19.01.2012 executed by the Sub-Court, Poonamallee on behalf of the 1st defendant in favour of the 2nd defendant, registered as Document No.146 of 2012, S.R.O., Poonamallee, as null and ovid;
4)to declare that the settlement deed dated 30.03.2012 executed by the 2nd defendant in favour of the 3rd defendant registered as Document No.1087 of 2012, S.R.O., Poonamallee as null and void;
5)to direct the defendants 2 and 3 to pay a sum of Rs.5,000/- per month from the date of the suit till the date of delivery of vacant possession of the suit property to the plaintiff.
3(e)Pending the suit, the plaintiff has filed an interlocutory application in I.A.No.125 of 2014 against the defendants 2 & 3, seeking for grant of interim injunction restraining them from putting up further construction in the suit property.
3(f)Opposing the said interlocutory application filed by the plaintiff, the defendants 2 & 3 have filed a counter affidavit contending that the plaintiff has filed the suit with ulterior motive and the suit is not maintainable. In fact, the dispute in respect of the suit property was already decided in O.S.No.128 of 2007 and a sale deed has also been executed by the Sub-Court, Poonamallee, on behalf of the 1st defendant, in favour of the 2nd defendant. After obtaining the sale deed from the Sub-Court, Poonamallee, the 2nd defendant has executed a settlement deed in favour of the 3rd defendant and ever since, the sale deed executed by the Sub-Court, Poonamallee, the defendants 2 & 3 are in possession and enjoyment of the suit property. Actually, the vendor of the plaintiff viz Mrs.Balamani had already handed over the possession to her power agent viz., Sivakumar @ Kumaran and she received the entire sale consideration of Rs.17,34,750/-. The 3rd defendant obtained patta on the basis of the settlement deed and obtained plan approval and after availing home loan in a private bank, by hypothecating the suit property with the bank, he is constructing the house in the suit property. Hence, there is no justification on the part of the plaintiff in stopping the construction of the 3rd defendant and the 3rd defendant has got all right over the suit property. The plaintiff is abusing the process of Court. Thus, the defendants 2 & 3 / respondents herein sought for the dismissal of the interlocutory application filed by the plaintiff.
3(g)The Court below, by considering the submissions of the learned counsel and the documents produced on either side ie, Ex.P.1 to Ex.P.18 filed on the side of the plaintiff and Ex.R.1 to Ex.R.14 filed on the side of the defendants, has dismissed the said interlocutory application. Aggrieved over the same, the present civil miscellaneous appeal has been filed by the plaintiff before this Court.
4.It is the main contention of the learned counsel for the plaintiff/appellant herein that the plaintiff had purchased the suit property from one Sivakumar @ Kumaran, who is the power agent of the original owner Mrs.Balamani. Further, originally the suit property and other properties were jointly purchased by one Kanakasabai and Ganesa Naicker from one M.V.Rathinavelu Mudaliar, under a sale deed dated 29.09.1955, registered as document No.1553/1955, S.R.O, Poonamallee and as such, they are entitled to half share each in all the properties purchased by them. After the demise of one of the purchasers viz., Mr.Kanakasabai, his legal heirs viz, his wife Mrs.Angammal and daughters Mrs.Balamani and Mrs.Ranjitham are entitled to his share in the properties. Thereafter, the said Ganesa Naicker and the legal heirs of the deceased Kanakasabai viz, his wife Mrs.Angammal and daughters Mrs.Balamani and Mrs.Ranjitham partitioned their properties under a partition deed dated 30.11.1998, registered as Document No.1319/1998, S.R.O., Poonamallee. In the said partition, the suit property and adjacent property i.e, an extent of 1.28 acres in Survey No.1 was allotted to the share of the said Mrs.Angammal, Mrs.Balamani and Mrs.Ranjitham, in A schedule in that partition deed. Subsequently, there was a family arrangement between Mrs.Angammal and her two daughters viz., Mrs.Balamani and Mrs.Ranjitham in respect of the suit property and other properties. Based on the said family arrangement, the said Mrs.Angammal has executed two settlement deeds dated 05.03.2003 registered as Document No.317 & 318/2003, S.R.O., Poonamallee, in favour of her daughters Mrs.Ranjitham and Mrs.Balamani. In the said family arrangement, the suit property and certain other properties wre alloted to the said Mrs.Balamani. Subsequently, the said Mrs.Balamani has executed a power of attorney deed dated 24.03.2003 appointing one Mr.Sivakumar @ Kumaran, as her power agent, registered as Document No.133/2003 on 30.05.2003, S.R.O., Poonamallee and delivered possession to him in respect of the property settled on her by her mother Mrs.Angammal. From the Power Agent Mr.Sivakumar @ Kumaran, the plaintiff herein has purchased the suit property.
5.It is further contention of the learned counsel for the plaintiff/appellant herein that in fact, before the Trial Court all the parental documents were filed on the side of the plaintiff. On the side of the defendants, no parental documents were produced to show as to how the 1st defendant got the right to sell the suit property to the 2nd defendant. While so, without impleading the plaintiff herein as well as the original owner of the property viz, Mrs.Balamani, the 2nd defendant had filed a suit in O.S.No.128 of 2007 before the Sub-Court, Poonamallee as against the 1st defendant in the present suit for specific performance and obtained a collusive decree and the 2nd defendant got the sale deed executed by the Sub-Court, Poonamallee in his favour. Hence, the said sale deed dated 19.01.2012 obtained by the 2nd defendant will not bind on the plaintiff herein, since the plaintiff has purchased the suit property from the Power Agent of the original owner Mrs.Balamani. Now, the 2nd defendant has executed a settlement deed dated 30.03.2012 in favour of the 3rd defendant and on the basis of the settlement deed dated 30.03.2012, the 3rd defendant is proceeding with the construction in the suit property. If the construction being put up by the 2nd defendant in the suit property is allowed to be completed, the plaintiff would be put to irrepairable loss and hardship. There is a prima facie case in favour of the plaintiff and the balance of convenience is also in favour of the plaintiff. Therefore, the plaintiff is entitled to the interim injunction restraining the defendants 2 & 3 from putting up the constitution in the suit property.
6.In support of his contentions, the learned counsel for the plaintiff/appellant herein has relied upon the judgment reported in (1992) 1 SCC 719 [Kalpatkumar and another Vs. Prahlad Singh and others) and submitted that the Court has to grant ad-interim injunction, when the party seeks to set aside the decree passed in the other suit on the ground of fraud. In the instant case, the plaintiff herein has filed the suit to declare the decree passed in O.S.No.128 of 2007 on the file of the Sub-Court, Poonamallee, as void, on the allegation of collusive decree, and therefore, pending the suit, interim injunction ought to have been granted in favour of the plaintiff.
7.For the same proposition of law, the learned counsel for the plaintiff/appellant herein also relied upon the judgment reported in AIR 2004 CALCUTTA 310 [Sachi Prasad Mukherjee Vs. Pampa Kumar and others], wherein it has been held that a judgment or decree obtained by playing fraud on the Court is a nullity, non-est in the eyes of law and such a judgment/decree by the first Court or by the higher Court, has to be treated as a nullity by every Court.
8.The learned counsel for the plaintiff/appellant herein further submitted that in the instant case, the Trial Court has declined to grant interim injunction mainly on the ground that the defendants 2 & 3 have completely raised the building and any order of injunction would economically be disadvantage to the defendants 2 & 3 and in the event that the plaintiff is winning the suit and also winning in the appeal as against the judgment and decree in O.S.No.128 of 2007, the defendants 2 & 3 will have to vacate the premises, after demolition, and hand over the suit property to the plaintiff. In this regard, the learned counsel for the plaintiff/appellant herein, by relying upon the judgment reported in (2007) 14 SCC 721 [Shridevi and another Vs. Muralidhar and another], submitted that in the said case, it has been held that balance of convenience is not always in favour of the person who has made substantial constructions. In the instant case, since the defendants 2 & 3 have made substantial construction in the suit property, it does not mean that the balance of convenience is in their favour. Thus, according to the learned counsel for the plaintiff/appellant, the construction made by the defendants 2 & 3 in the suit property will not serve as a ground to reject the prayer of the plaintiff for grant of interim injunction. Thus, the learned counsel for the plaintiff/appellant sought for setting aside the impugned order of the Court below and to grant interim injunction in favour of the plaintiff.
9.Per contra, the learned counsel the respondents herein/defendants 2 & 3 submitted that on 01.12.1999, the 2nd defendant had entered into an sale agreement with the Proprietor of M/s.G.R.Real Estates, viz., on Mr.G.Ramachandran, for the purpose of purchasing the suit property. The said Sivakumar @ Kumaran, who is the Power Agent of the plaintiff's vendor Mrs.Balamani, is none other than the son of the Proprietor of M/s.G.R.Real Estates viz., Mr.G.Ramachandran and both the son & father are jointly running the real estate business. The said G.Ramachandran and his son Sivakumar @ Kumaran are partners of M/s.G.R.Real Estates. Hence, pursuant to the Power of Attorney deed executed by the original owner of the suit property viz., Mrs.Balamani, a sale agreement was entered into with the 2nd defendant by M/s.G.R.Real Estates for selling the suit property. Since M/s.G.R.Real Estates subsequently failed to execute the sale deed, the 2nd defendant herein filed a suit in O.S.No.128 of 2007 and obtained the sale deed dated 19.01.2012 executed by the Sub-Court, Poonamallee in his favour. Thereafter, the 2nd defendant settled the suit property in favour of the 3rd defendant by way of settlement deed dated 30.03.2012. On the basis the said settlement deed, the 3rd defendant obtained patta and plan approval from the authorities concerned, thereafter, he started to put up the construction in the suit property and now, the constitution is almost in the completion stage. Therefore, the balance of convenience is in favour of the defendants 2 & 3 and if the interim injunction is granted as prayed for by the plaintiff, the defendants 2 3 would be put to irrepairable loss and hardship. Further, it is the submission of the learned counsel for the defendants 2 & 3/respondents herein that though the plaintiff claimed that he had entered into a sale agreement with the Power Agent Sivakumar @ Kumaran as early as on 07.10.2005, only after the 2nd defendant obtained the sale deed dated 19.01.2012 executed by the Court in respect of the suit property and after the 3rd defendant started to construct the house in the suit property, the plaintiff has got the sale deed executed by the Power Agent Sivakumar @ Kumaran on 25.03.2014 and thereafter, only the plaintiff has filed the present suit.
10.The learned counsel for the defendants 2 & 3/respondents herein further submitted that in fact, the original owner Mrs.Balamani had filed a suit, through her power agent, as against the defendants herein in O.S.No.204 of 2012 before the Additional District Court, Poonamallee for injunction as against the the defendants and she had also filed another suit in O.S.No.111 of 2014 seeking to declare the sale deed dated 19.01.2012 executed in favour of the 2nd defendant herein, as null and void. In both the said suits, the defendants 2 & 3 herein had taken out applications to reject the plaints and the said applications were allowed and both the said suits were rejected by the Court below. Now, on the instigation of the original vendor Mrs.Balamani, the plaintiff/appellant herein has filed the present suit for the same reliefs. Thus, the learned counsel for the respondents herein/defendants 2 & 3 submitted that there is a clear collusion between the original owner Mrs.Balamani and the present plaintiff to prevent the defendants 2 & 3 from putting up the construction in the suit property. Considering all these aspect, the Court below has correctly rejected the interlocutory application filed by the plaintiff.
11.The learned counsel for the respondents/defendants 2 & 3 has further submitted that before the Court below, it was agreed by the defendants 2 & 3 that in the event of the defendants 2 & 3 losing their case in the appeal filed by M/s.G.R.Real Estates as against the judgment and decree in O.S.No.128 of 2007, dated 07.09.2010, they would vacate and handover the suit property to the plaintiff/appellant herein. Hence, only by recording the said undertaking given by the defendants 2 & 3, the injunction application filed by the plaintiff/appellant herein was dismissed by the Court below. Thus, the learned counsel for the res pondents/defendants 2 & 3 prayed for dismissal of the appeal.
12.Keeping the submissions made on either side, I have carefully perused the materials available on record and I find that as on date, there is a valid sale deed 19.01.2012 executed by the Court in favour of the 2nd defendant, who had executed a settlement deed in favour of the 3rd defendant. Unless the said sale deed dated 19.01.2012 is set aside by the Court of Law, the plaintiff/appellant herein cannot prevent the defendants 2 & 3 from putting up the construction in the suit property. Further more, I find that the suits in O.S.No.204 of 2012 and O.S.No.111 of 2014 filed by the original owner Mrs.Balamani, through her Power Agent, were rejected by the Courts below. Thereafter only, the present suit has been filed by the plaintiff/appellant herein, who is the subsequent purchaser of the suit property, for the same reliefs which were asked for in O.S.No.204 of 2012 and O.S.No.111 of 2014 by the original owner. Further, the plaintiff/appellant herein got the sale deed executed by the Power Agent Sivakumar @ Kumaran only on 25.03.2014, whereas the 2nd defendant got the sale deed executed by the Court as early as on 19.01.2012 and the settlement deed was executed in favour of the 3rd defendant by the 2nd defendant on 30.03.2012 and he started to put up construction in the suit property. At this stage, if interim injunction is granted, the defendants 2 & 3 would be put to irrepairable loss and hardship. In fact, the defendants 2 & 3 has given undertaking before the Court below that in the event of lossing their case in the appeal filed by M/s.G.R.Real Estates as against the judgment and decree in O.S.No.128 of 2007, they would vacate the premises and handover the vacant possession of the suit property to the plaintiff/appellant. Hence, only by recording the said undertaking given by the defendants 2 & 3 and also taking note of the fact that the construction of the defendants 2 & 3 in the suit property is almost in completion stage, the Trial Court has dismissed the injunction application filed by the plaintiff/appellant herein. Under such circumstances, I do not find any infirmity in the impugned order passed by the Court below. Though the learned counsel for the plaintiff/appellant relied on the judgments of various Courts (stated supra), the said judgments are not applicable to the present facts of the case.
For the fore going reasons, the Civil Miscellaneous Appeal is liable to the dismissed and accordingly, the same is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs. The Trial Court is directed to dispose of the suit in O.S.No.122 of 2014, as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order.
02.09.2014 Internet : Yes / No Index : Yes / No ssv To The II Additional District Judge, Thiruvallur at Poonamallee.
R.SUBBIAH, J., ssv Pre-delivery Judgmnet in C.M.A.No.2170 of 2014 and M.P.No.1 of 2014 02.09.2014