Madras High Court
R.Vijaya vs A.Vijayal on 18 March, 2019
S.A.No.798 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date of Reserving Judgment Date of Pronouncing Judgment
23.12.2021 11.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.798 of 2019
R.Vijaya ... Appellant
.Vs.
A.Vijayal ... Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the Judgment and decree dated 18.03.2019 made in
A.S.No.45 of 2018 on the file of learned Additional Subordinate Judge,
Puducherry confirming the Decree and Judgment dated 14.03.2018 made in
O.S.No.425 of 2012 on the file of learned I Additional District Munsif,
Puducherry.
For Appellant : Mr.Dinesh Kumar
For Respondent : Mr.S.Sudarshan
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https://www.mhc.tn.gov.in/judis
S.A.No.798 of 2019
JUDGMENT
This Second Appeal is directed against the judgments of the Courts below in dismissing the suit filed by the appellant/plaintiff.
2. Appellant/plaintiff filed the suit in O.S.No.425 of 2012 seeking the relief of;
i) Declaring that the sale deed dated 16.10.1995 vide document No.3431/1995 of registered at Sub Registrar of Oulgaret, Puducherry which stands in the name of A.Vijayal (i.e.Defendant herein) is null and void abinitio and not binding and enforceable against the plaintiff,
ii) Restraining the defendant not to enter the schedule mentioned property till the disposal of the suit by way of permanent injunction,
iii) Directing the defendant to pay the cost of the suit,
iv) And grant such other reliefs as this Honourable Court may deem fit and proper under the circumstances of this case and thus render justice. 2/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019
3. The case of the appellant is that the suit property originally belonged one Ragupathy. He purchased the property with an extent of 77-Kuzhi from one Rajammal @ Muniayammal on 29.10.1987. Ragupathy sold the suit property to an extent of 03-Kuzhies 02-Veesams to Seetharaman counder on 31.05.1988. Seetharaman counder executed a settlement deed in favour of his son Parthiban on 19.08.1988. Parthiban was born on 29.10.1960 at Pondicherry. Parthiban died on 20.11.1992, leaving his wife and five children as his legalheirs. His wife Saroja and his three daughters namely Sangeetha, Eswari, Kalapana and son Sasikumar were living in Ahmadabad at the time of the death of Parthiban. They lived in Pondicherry from 1992 to 1995 and left to Ahmedabad. Before leaving Pondicherry, Parthiban's wife and children handed over the suit property in the custody of Parthiban's sister. Seetharaman counder without the knowledge of the legal heirs of the Parthiban, cancelled the settlement (Donation) deed executed in favour of Parthiban on 16.10.1995 and sold it to the respondent Vijayal. The sale deed in favour of Vijayal is null and void. After the death of Parthiban, his legal heirs inherited the suit property and they became the absolute owners of the suit property. Appellant purchased the suit property on 26.07.2011 from the legal heirs of Parthiban and she is in 3/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 possession of the suit property from the date of purchase. Before purchasing the suit property she verified encumbrance from 01.08.1988 to 23.06.2011 and found that there is no entry regarding the sale deed dated 16.10.1995 in favour the respondent. The verification of encumbrance from 01.01.1981 to 22.11.2011 does not reflect the registration of aforesaid sale. Therefore, the sale in favour of the respondent executed by Seetharaman counder is fraudulent sale. When the appellant went to the suit property on 15.02.2012 to raise compound wall, she was obstructed by the respondent's husband and his henchmen. Therefore, the suit.
4. The case of the respondent, in brief, is as follows:
It is true that on 16.10.1995, the suit property was sold to the respondent. It is denied that Parthiban died leaving behind his wife and children and handed over the suit property in the custody of Parthiban's sister. The averment that Seetharaman counder cancelled donation deed in favour of Parthiban and sold the property without the knowledge of legal heirs of Parthiban is denied. Seetharaman counder, in his capacity as the absolute owner and in exclusive possession of the suit property, sold it for consideration of 4/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 Rs.54,000/- to the respondent. Respondent is in possession and enjoyment of the suit property from the date of her purchase. She demarcated boundaries, filled and levelled the site and erected cement poles in front and rear borders. A thatched hut is put up with the door and lock. Respondent and her family members are in possession and enjoyment of the suit property from 1995, till now. Respondent came to know that from real estate broker that suit property is offered for sale. Then, she found that sale deed dated 26.07.2011 had been registered and she lodged a complaint with the authorities. The suit is not maintainable for non joinder of Seetharaman counder. The suit is improperly framed and the relief cannot be maintained against the true owner. Suit should have been filed for declaration of title and recovery of possession. The knowledge of sale deed has to be construed from the date of registration of sale deed on 16.10.1995. Therefore, the suit is barred by limitation. When the appellant claims that respondent's husband and his henchmen were not permitting the appellant to enter into the property, it is apparent that appellant is not in possession and enjoyment of the suit property, but the respondent is. Suppressing to real facts, suit has been filed. Therefore, the suit is liable to be dismissed.
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5. The trial Court framed the following issues and additional issues.
ISSUES:
i) Whether the gift deed dated 19.08.1988 vide Doc.No.2718/1988 registered at SRO, Oulgaret, Puducherry, executed by Seetharaman Counder in favour of Parthiban is acted upon and valid in law?
ii) Whether the plaintiff's vendors inherited the suit property after the demise of Parthiban?
iii) Whether the cancellation of gift deed executed by Seetharaman counder dated 16.10.1995 vide doc.No.3430/1995 is valid in law?
iv) Whether the sale ded dated 26.07.2011 executed by legal heirs of Parthiban to and in favour of plaintiff is acted upon?
v) Whether the plaintiff properly valued the suit for the purpose of Court fees and jurisdiction?
vi) Whether the plaintiff is entitled for the relief of declaration that the sale deed dated 16.10.1995 vide doc.No.3431/1995 at SRO, Oulgaret stands in favour of defendant is null and void abinitio and not binding the plaintiff?
vii) Whether the plaintiff is entitled for permanent injunction?
viii) What other relieves the plaintiff is entitled for? 6/28
https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 Additional Issues:
i) Whether the suit is bad for non-joinder of necessary parties?
ii) Whether the suit is barred by limitation?
6. During the trial before the trial the Court PW1 was examined and Exhibits A1 to A11 were marked on the side of the appellant/plaintiff. DW1 was examined and Exhibits B1 to B8 were marked on the side of the respondent/defendant.
7. The learned trial Judge on considering the oral and documentary evidence though found that settlement deed in favour of Parthiban and sale deed in favour of appellant are valid, in the absence of declaration relief of title and proof of possession found that the appellant is not entitled for any of the reliefs claimed in the suit and dismissed the suit. Appellant filed appeal in A.S.No.45 of 2018 challenging the judgment of the trial Court. The first Appellate Judge also found that the trial Court judgment requires no interference and dismissed the appeal. Challenging the dismissal of the appeal, the appellant has filed this Second Appeal.
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8. At the time of admission of Second Appeal, following substantial questions of law were framed for consideration:
i) When the sale in favour of the defendant is not binding upon plaintiff, still is there are legal requirement to seek for title?
ii) When it is settled in law that the evidence let in has to be read on whole, still are the Courts below right in dismissing the relief by picking one line with respect to possession?
9. The learned counsel for the appellant submitted that the finding reached by the Appellate Court that there is no evidence to show that the settlement deed in favour of Parthiban was not acted upon, is not based on any valid and cogent reason. Once settlement deed is executed and accepted, there is no possibility of cancelling the settlement deed unilaterally without giving notice to the settlee. There is no material filed to show that the settlee or the legal heirs of settlee were informed about the cancellation of the settlement in favour of deceased Parthiban. The legal heirs of Parthiban, leaving the suit property in the custody of Parthiban's sister, moved to Ahmedabad. Till then, they were in possession and enjoyment of the suit property. The finding of the Courts below 8/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 that the appellant should have filed the suit for declaration of title and for cancelling the cancellation deed, is not based on correct principles of law. Appellant has title to the suit property. There is no necessity to seek for the relief of declaration for title. Respondent's possession was decided on the basis of Exhibits B6 to B8 electronic records. Exhibit B6 to B8 were not supported by a certificate required under Section 65 B of Indian Evidence Act. Therefore, these documents cannot be relied to record a finding with regard to possession. Appellant has better title in respect of the suit property. Suit property is a vacant site. So far as vacant sites are concerned possession follows title. However, without considering all these aspects, both the Courts below have wrongly dismissed the suit. Therefore, he prayed for setting aside the judgment of the Courts below and for decreeing the suit. In support of his submission, he pressed into the judgment of Hon'ble Supreme Court reported in (2008) 4 SCC 594 (Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LR's and Others), for the proposition that where there are necessary pleadings regarding title, appropriate issue relating to title on which parties lead evidence, and if the matter involves a simple and straightforward issue, the Court may decide upon the issue regarding title, even in the suit for injunction. It is not required to seek 9/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 the costlier and cumbersome relief of declaration.
“When there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the Court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
10. In response, the learned counsel for the respondent submitted that, Seetharaman counder cancelled the settlement deed executed by him in favour of his son on 16.10.1995 and on the same date he sold the suit property to the respondent. However, this suit was filed only for the relief of declaring the sale deed dated 16.10.1995 in favour of the respondent to be 10/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 declared as null and void, not binding and enforceable against the appellant. There is no specific relief asked for the relief of declaration that the cancellation of settlement executed by Seetharaman counder on 16.10.1995 as null and void, not binding and enforceable against the appellant. Respondent has produced evidence to show that respondent is in possession and enjoyment of the suit property. Respondent also makes claim for title in respect of suit property supported by valid title deed. When that be the case, the suit should have been filed for the relief of declaration of title and for consequential relief of injunction with other ancillary reliefs. Mere suit for declaration that sale deed dated 16.10.1995 is null and void cannot be maintained in the eye of law. Just to avoid paying correct Court fee, suit is improperly framed and a meagre amount is paid as Court fee. The suit as framed is not maintainable in law. The suit is also barred by limitation. Mere execution of registration of a settlement deed is not enough. The settlee should accept the settlement. If the settlement is cancelled before accepting the settlement, that is permissible in law. In support of this proposition, he relied on the judgment in C.S.No.475 of 2009 (P.Venkata Raja Rao Vs. R.N.Krishnaveni and others), wherein it is held as follows, 11/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 “22.It is clear from the law laid down in the above said decisions that if any person claims title on the basis of settlement deed, he should prove not only the settlement was duly executed and registered, but also prove that the said settlement deed was accepted by the settlee. If settlee not pleaded or not proved the above said fact of acceptance of gift, then the settlee is not entitled to claim any right under the settlement deed.” He relied on the judgment reported in 2008 0 Supreme(SC) 1421 (Bachhaj Nahar Vs. Nilima Mandal and another) for the proposition that a Civil Court can grant only the relief prayed and not the relief which was not asked. The para 16 in the judgment, it is observed that, “16. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for aparticular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what 12/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot grant a decree for Rs. Ten lakhs. In a suit for recovery possession of property `A', court cannot grant possession of property `B'. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.” Judgment reported in 1995 0 Supreme(SC) 1251 (Md.Noorul Hoda Vs. Bibi Raifunnisa and Others) is relied for the proposition that when an instrument stands as an insurmountable obstacle to claim the relief, though not a party, the plaintiff has to seek for declaration that the instrument and contract be cancelled 13/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 or set aside or rescinded . It is observed in this judgment in para 6 as follows, “When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Reliefs Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. It would thus be clear that the word 'person' in Section 31 of the Specific Relief Act is wide enough to encompass person seeking derivative title from his seller. It would therefore, be clear that if he seeks avoidance of the instrument, decree or contract and seeks a declaration to have the decrees set aside or cancelled he is necessarily bound to lay the suit within three years from the date when the facts entitling the plaintiff to have the decree set aside, first become 14/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 known to him.”
11. Considered the rival submissions and perused the records.
12. From the pleadings set out, there is no dispute with regard to the fact that the suit property was originally purchased by Seetharaman counder father of the deceased Parthiban, on 31.05.1988. He executed a gift deed in favour of his son deceased Parthiban on 19.08.1988. After the death of Parthiban, on 20.11.1992, Seetharaman counder had cancelled the gift executed in favour of the deceased Parthiban on 16.10.1995 and on the same date, he sold the suit property to the respondent Vijayal. The appellant is the purchaser of the suit property from the legal heirs of the deceased Parthiban namely his wife and children by a registered sale deed on 26.07.2011.
13. It is the contention of the appellant that the cancellation deed executed for canceling the gift deed in favour of Parthiban dated 19.08.1988 and the sale deed executed by Seetharaman counder in favour of the respondent on 16.10.1995, had not been reflected in the Encumbrance Certificate obtained by the appellant. The appellant is the bonafide purchaser, without the notice of cancellation of gift deed dated 19.08.1988 on 16.10.1995 15/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 and the execution of sale deed in favour of the respondent on 16.10.1995. The appellant's contention is that the gift deed executed by Seetharaman counder in favour of Parthiban is irrevocable gift deed. It was accepted by the deceased Parthiban and Parthiban was put in possession of the suit property and therefore, the gift had come into effect. To prove that the gift had come into effect, the original gift deed was produced by the appellant before the trial Court. Therefore, it is not open to the Seetharaman counder to unilaterally cancel the gift deed.
14. On the other hand, the case of the respondent is that mere execution and registration of the gift deed not mean that the gift deed had come into effect. The gift has to be accepted by the settlee or donee. In the case before hand, absolutely there is no material to show that the donee had accepted the gift and taken possession of the suit property, made arrangements to change the name of Parthiban in the revenue records. On the other hand, it is proved by evidence that the respondent is alone in possession of the suit property. It is clearly made out from the evidence of the respondent that the respondent has denied the claim of title and possession in the suit property by the appellant. 16/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 However, the suit was filed without seeking the prayer for declaration of title and recovery of possession. Therefore, the suit cannot be maintained in law.
15. In the judgment in P.Venkata Raja Rao Vs. R.N.Krishnaveni and others, it is observed that "It is clear from the law laid down in the above said decisions that if any person claims title on the basis of settlement deed, he should prove not only the settlement was duly executed and registered, but also prove that the said settlement deed was accepted by the settlee. If settlee not pleaded or not proved the above said fact of acceptance of gift, then the settlee is not entitled to claim any right under the settlement deed."
16. When a person claims title on the basis of gift/settlement deed, he has to prove not only the settlement was executed and registered, but also prove that the settlement deed was accepted by the settlee. If the settlee has not pleaded or not proved the above said fact of acceptance of gift, the said settlee is not entitled to claim any right under the settlement deed.
17. In the case before hand, on a careful reading of the 17/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 pleading, this Court finds that there is absolutely no pleadings with regard to acceptance of gift by donee Parthiban. The pleadings referred only about execution of gift deed, death of Parthiban, his heirs living at Ahmadabad, Gujarat, leaving the property in the custody of Parthiban's sister etc. Not even the name of Parthiban's sister is mentioned in the plaint. The gift deed was executed on 19.08.1988 and Parthiban died on 20.11.1992. During this 4 years period, no effort was taken by Parthiban to change the ownership of the suit property, from the name of Seetharaman counder to his name. The appellant has not filed any single document to show that the Parthiban accepted the gift deed and came to possess the suit property, the property was in his enjoyment or in a possession or enjoyment of legal heirs, when she purchased the suit property from legal heirs of the deceased Parthiban. From the recitals of Ex.A6 cancellation of gift deed, it can be gathered that the suit property was in possession of Seetharaman counder even after execution of gift deed in favour of Parthiban. Seetharaman counder continued to possess the suit property, therefore, it is said that he cancelled the gift deed executed in favour of Parthiban. Not only that, as stated above, there is no step taken by Parthiban to effect name change in the revenue records to show that he accepted the 18/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 settlement deed and became the owner of the suit property.
18. Both the Courts have concurrently found from the evidence, especially, the own admission of P.W.1 that she is not aware of physical features of the suit property. It is her evidence that before purchase, she had not taken steps to measure the suit property with the help of surveyor. It is her claim that she had filed the suit for declaration of title and recovery of possession of the suit property from the respondent. On the other hand, the suit was filed only for seeking declaration that the sale deed dated 16.10.1995 in favour of the respondent to be declared as null and void ab initio, not binding on the appellant and for the consequential relief of permanent injunction. No relief for declaration of title and recovery of possession was asked. It can be gathered from her evidence that she is not in possession and enjoyment of the suit property. Thus, the analysis of oral and documentary evidence in this case shows that the appellant has failed to prove that gift deed executed by Seetharaman Counder in favour of Parthiban was accepted by him and Parthiban and his legal heirs are in possession and enjoyment of the suit property.
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19. Section 122 of Transfer of Property Act, deals with Gift. Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
This Section makes it clear that gift has to be accepted by or on behalf of the donee and such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. As already stated there is absolutely no evidence to show that the gift was accepted by Parthiban before his death. This Court concurs with the finding of the first appellate Court that the gift had not come into force. When Exhibit A3 gift deed had not come into force, it is open to Seetharaman Counder to cancel the gift deed and execute a sale deed in favour of the respondent. 20/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019
20. It is really unfortunate that the cancellation of gift deed dated 16.10.1995 and the sale deed in favour of the respondent on the same day had not been reflected in the encumbrance certificate obtained by the appellant. Had it been reflected in the encumbrance certificate, she would not have purchased the suit property. There is absolutely no evidence produced with regard to the fact that why these transactions had not been reflected in the encumbrance certificates Exs.A9 and A10. The appellant should have taken efforts to examine the officials from registration department to bring out the reasons for omission of the entries of these documents in Exs.A9 and A10. That was not done.
21. Be that as it may. There are two documents, on the face of the appellant, challenging the claim of title in the suit property. One is the cancellation of gift deed dated 19.08.1988 on 16.10.1995 and the sale deed in favour of respondent on the same date. However, the appellant has chosen to file the suit for claiming the relief of declaration that the sale deed dated 16.10.1995, alone to be declared as null and void, not binding, and not 21/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 enforceable against the appellant. Even, if such decree is granted, still, there will be the cancellation of gift deed dated 19.08.1988 on 16.10.1995, in force and on record. It is not known why the appellant has failed to seek the relief of declaration that the cancellation of settlement deed dated 19.08.1988 on 16.10.1995, also be declared as null and void and not binding.
22. It is relevant here to refer to the judgment reported in 1995 0 Supreme (SC) 1251, wherein it is clearly observed that when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Unfortunately, the appellant has not prayed for relief of declaration that the cancellation of gift deed dated 19.08.1988 on 16.10.1995 as null and void, not binding and enforceable against the appellant.
23. One more aspect is that it is clearly and categorically, 22/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 pleaded in the written statement of the respondent that respondent is denying title and possession of the suit property and set up independent title in respect of the suit property through Ex.B3 sale deed. It is also claimed that Exs.B6 to B8 photographs, shows that respondent in possession of the suit property. These documents are opposed by the appellant on the ground that without a certificate under Section 65 of Indian Evidence Act, they cannot be looked into and rightly so.
24. The learned counsel for the appellant relied on the judgment reported in (2008) 4 SCC 594 (Anathula Sudhakar Vs. P.Buchi Reddy (dead) by Lrs. and others) for the proposition that "where there are necessary pleadings regarding title and and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the Court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will no be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely, because some meddler vexatiously or 23/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 wrongfully makes a claim or tires to encroach upon the property." However, in the case before hand the respondent cannot be considered to be a meddler for the reason that she claim title to the suit property by the registered sale deed executed by original owner Seetharaman counder. There is no evidence produced to show that settlement deed executed by Seetharaman counder in favour of his son Parthiban was accepted and came into force. Therefore, a serious cloud has arisen over the title of the appellant in the suit property. The appellant ought to have filed the suit for declaration of title and for recovery of possession. That is not done. It is a serious defect in the frame of the suit for not seeking the prayer for declaration of title and recovery of possession. Therefore, this Court finds from the same judgment that where a genuine cloud is raised regarding the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is the remedy. This proposition squarely applies in all fours to the fact of the case. Unfortunately, the appellant has not filed the suit for declaration of title and recovery of possession. Therefore, this Court finds that the appellant is not entitled for any of the reliefs claimed in the suit.
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25. For the reasons aforesaid, this Court finds that the sale deed in favour of the respondent is binding upon the appellant and therefore, it is necessary to seek the relief for declaration of title and recovery of possession and in the absence of these prayers, appellant is not entitled for reliefs claimed in the suit for substantial question of law no.1. No doubt, that the evidence has to be read as a whole and we cannot pick one or two lines for recording a finding. The Courts below have not decided the suit on the basis of one or two lines from the evidence of witnesses. Entire evidence was considered and decision taken. Some part of the evidence is highlighted in the judgment to support the reason. This cannot be construed that Court has decided the case on the basis of one or two lines. Thus, the second substantial question of law is answered. Thus, this Court confirms the judgment of the first appellate Court which confirmed the judgment of the trial Court and dismisses the second appeal.
26. In fine, this Court confirms the judgment of the first appellate Court dated 18.03.2019 made in A.S.No.45 of 2018 by the learned 25/28 https://www.mhc.tn.gov.in/judis S.A.No.798 of 2019 Additional Subordinate Judge, Puducherry, confirming the Decree and Judgment dated 14.03.2018 made in O.S.No.425 of 2012 by the learned I Additional District Munsif, Puducherry.
27. In the result, the second appeal stands dismissed. Considering the facts and circumstances of the case, the parties are directed to bear their costs.
At/Ep 11.01.2022
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
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S.A.No.798 of 2019
To
1. The Additional Subordinate Judge,
Puducherry
2. I Additional District Munsif,
Puducherry.
3. The Section Officer,
VR Section,
High Court of Madras.
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S.A.No.798 of 2019
G.CHANDRASEKHARAN.J,
At/Ep
(Pre-Delivery Judgment in)
S.A.No.798 of 2019
11.01.2022
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