Madras High Court
P.Balasubramanian vs Kaliammal on 13 October, 2017
Author: G.Jayachandran
Bench: G.Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 20.09.2017 PRONOUNCED ON : 13.10.2017 CORAM THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN A.S.No.57 of 2013 and CRP (NPD) No.2676 of 2011 A.S.No.57 of 2013:- P.Balasubramanian ...Appellant Vs 1.Kaliammal 2.S.A.Kalimuthu 3.S.A.Veluchamy ... Respondents Prayer:- Appeal suit filed under Order 41 Rule 1 and Section 96 of the Code of Civil Procedure read with Order 21 Rule 97 and 101 of Civil Procedure Code against the judgment and decree in E.A.No.215 of 2009 dated 22.03.2010 passed by the learned Subordinate Judge, Udumalpet. For Appellant : Mr.K.Selvaraj For R.1 : Mrs.Hema Sampath, Senior Counsel, Mr.Gunalan. For RR.2 & 3 : Mr.P.Valliappan CRP (NPD) No.2676 of 2011:- P.Balasubramanian ...Petitioner Vs 1.S.A.Kalimuthu 2.S.A.Veluchamy ... Respondents Prayer:- Civil Revision Petition filed under Section 115 of the Civil Procedure Code against the fair and decreetal order dated 22.03.2010 in E.A.No.215 of 2009 in E.P.No.36 of 2008 in O.S.No.66 of 2007, on the file of the learned Subordinate Judge, Udumalpet. For Petitioner : Mr.K.Selvaraj For RR.1 & 2 : Mr.P.Valliappan COMMON JUDGMENT
The above said appeal and revision arising out of common facts and order passed by the trial Court. Hence, the common judgment.
2.The brief facts of the case is that, one Mr.Appia Gounder died on 10.02.1986 leaving behind two sons, one daughter and some immovable properties for them to litigate. On 14.10.1988, his two sons Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy effected partition among themselves excluding their sister Ms.Kaliammal. On 22.02.2001, Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy have also entered into an agreement with one Mr.Balasubramanian, the appellant in A.S.No.57 of 2013 and petitioner in CRP No.2676 of 2011 to sell 13.86 acres in S.No.299/2, Miwadi Village, Udumalpet Taluk, which is the subject matter of the present Appeal and Revision. The value of the property was fixed at Rs.4,95,495/- and a sum of Rs.50,495/- was given as advance by the appellant/petitioner. The time to complete the contract was earlier fixed as three months which was likely to explore on 21.05.2001. Before expiry, the time for completion of contract was extended upto 20.10.2007.
3.In the mean while, Ms.Kaliammal, daughter of Mr.Appia Gounder has filed a suit for partition against her brothers Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy in O.S.No.137/2001 on the file of learned District Munsif, Udumalpet. The suit was filed on 26.04.2001. This partition suit was contested for merely 5 years and subsequently, a compromise decree was passed on 05.01.2006, by consent of the parties. Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy who were defendants in the said suit had not considered their agreement with Mr.Balasubramanian but, conveniently, conceded their right to Ms.Kaliammal in respect of the property which they have also entered into agreement for sale with Mr.Balasubramanian.
4.On 25.10.2007, Mr.Balasubramanian has instituted a suit for specific performance based on the agreement with Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy, dated 22.02.2001, in respect of 13.86 acres of land at Miwadi village at S.No.299/2, which has already been conceded by them to their sister Ms.Kaliammal, in the partition suit.
5.In the said suit, both Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy, remained exparte. Hence, an exparte decree was passed on 22.02.2008 by the learned Subordinate Judge, Udumalpet, in O.S.No.66 of 2007. Pursuant to the exparte decree of specific performance, the learned Subordinate Judge, Udumalpet has executed the sale deed in favour of Mr.Balasubramanian, decree holder in O.S.No.66 of 2007 on 16.12.2008. Pursuant to the exparte decree, execution petition in E.P.No.36/2008 was filed by Mr.Balasubramanian and the Subordinate Court, Udumalpet has executed a sale deed pursuant to the specific performance suit on 16.12.2008.
6.In the mean while, Ms.Kaliammal who had been allotted the very same land through the compromise decree in her partition suit has filed O.S.No.436 of 2006 for declaration against her brothers Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy for declaration that she is in title holder and in enjoyment of the property. On 06.11.2007, a decree to that effect was also passed. As stated earlier, in the specific performance suit, Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy had failed to contest the suit and they have not brought to the notice of the Court about the compromise decree passed in the partition suit or the exparte decree passed in the declaration suit.
7.Under these circumstances, Mr.Balasubramanian, the decree holder in O.S.No.66/2007, has filed E.A.No.215 of 2009 under Order 21 Rule 95 praying for delivery of possession of the suit property. In the said application, Ms.Kaliammal has filed an Obstruction Petition under Section 47 of the Code of Civil Procedure. This application filed under Order 21 Rule 97, was taken together for consideration by the trial Court.
8.After examining the witnesses as well as the exhibits marked on behalf of the parties, the Execution Court has allowed the application filed by Ms.Kaliammal and dismissed the application filed by Mr.Balasubramanian.
9.Aggrieved by the dismissal of his application in E.A.No.215/2009 filed for delivery of possession, Mr.Balasubramanian has preferred revision in CRP (NPD) No.216 of 2011 and aggrieved by the order allowing E.A.No.289/2009 filed by the Obstructor/Ms.Kaliammal, Mr.Balasubramanian has preferred A.S.No.57 of 2013.
10.The trial Court has based its reasoning for the said judgment on appreciating the fact that on the date of filing the suit for specific performance suit in O.S.No.66/2007, the vendors had no title in view of the compromise decree passed on 05.01.2006. Further, the un-usual extension of time for 6 years and five months, for the performance of contract entered on 22.02.2001 is the suspicious circumstance and the vendors allowing the suit to go exparte indicate it is a collusion between Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy on one side and Mr.Balasubramanian on other side to defeat the right of Ms.Kaliammal. After obtaining the right through partition suit and confirming title by way of a declaration suit, Ms.Kaliammal has become a bona fide Obstructor and the exparte decree passed in the specific performance suit has become unenforceable.
11.The learned counsel appearing for the appellant/petitioner contended that his vendors after receiving advance and agreed to sell the property had colluded with their sister Ms.Kaliammal to defeat the right of the purchaser (Mr.Balasubramanian) and that is the reason why when Mr.Appiya Gounder has left two items of property, 13.86 acres in S.No.299 of Miwadi Village and 7.90 acres in Chothampatti Village and their sister, Ms.Kaliammal has claimed only 1/9th share in the said properties, they have conceded the entire 13.86 acres of land in S.No.299 at Miwadi Village by way of compromise decree in favour of Ms.Kaliammal.
12.Knowing fully well that Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy/vendors have entered into an agreement with Mr.Balasubramanian, the appellant/petitioner herein and the agreement is in force, the very fact of conceding more than 50% of the entire property to their sister and remaining 50% of the property among themselves suffice to infer their ill-motive to defeat the right of Mr.Balasubramanian/appellant/petitioner. If at all, they had any objection in enforcing the contract, they should have contested the suit. Having allowed the suit to go exparte and decree for specific performance been passed, it cannot be set at naught at the instance of an mala fide obstructor clothed with a collusive compromise decree.
13.Per contra, the learned Senior Counsel appearing for Ms.Kaliammal, contended that the unusual way of extension for performing contract by six years and five months while the initial period for performance was restricted to three months is singularly enough to prove who colludes with whom.
14.Ms.Kaliammal, being the daughter of Mr.Appia Gounder had sought her legitimate right of 1/9th share in the properties left by her father which consist of cultivable land at two villages viz., Miwadi Village and Chothampatti Village and the residential house at Miwadi Village. After long litigation for 6 years, her brothers have agreed to allot 13.86 acres of land situated in S.No.299 at Miwadi Village to Ms.Kaliammal and retained 7.90 acres of land at Chothampatti Village and the residential house at Miwadi Village. At the same time, they have also instigated Mr.Balasubramanian to file suit for specific performance after the decree passed in the partition suit so as to prevent Ms.Kaliammal from enjoying the fruits of partition suit. The inordinate delay in filing the specific performance suit and the manner in which the vendors remained exparte clearly reveals the fraudulent intention of the appellant/petitioner and Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy, the Execution Court has rightly considered the facts and law and has passed appropriate orders which requires no interference.
15.The point for consideration:-
'Whether the Execution Court was right in dismissing the application filed for delivery of possession and allowing the Obstruction Petition filed by Ms.Kaliammal'.
16.The dates and events as narrated above clearly indicates that on the date of filing the specific performance suit, O.S.No.66 of 2007, on the file of the Subordinate Court, Udumalpet, the vendors to the agreement dated 22.02.2001 had no title over the suit property. Unfortunately, this fact was not brought to the Court which has passed the decree since, the defendants have conveniently remained exparte. Pursuant to the exparte decree, Execution Petition in E.P.No.36/2008, has been filed and the sale deed has also been executed by the Court on behalf of the vendors.
17.This Court wonder while executing the sale deed, the Court should have ensured 'Whether there is any encumbrance to the property'. Nothing available on record to show that encumbrance was perused before executing sale deed. However, the typed set of papers filed by the appellant, the encumbrance certificate dated 29.12.2014 in respect of the property bearing S.No.299 of Miwadi Village indicates agreement of sale by Ms.Kaliammal on 21.04.2006 i.e., three months after the decree in O.S.No.137 of 2001, the partition suit filed by Ms.Kaliammal.
18.Section 54 of the Transfer of Property Act, defines sale and contract for sale and clearly indicate a contract for sale of immovable property itself will not create any interest in or party of such property. For the sake of reference, Section 54 of the Act is extracted below:-
54.Sale defined.Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.3Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. 1In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. (Emphasis applied)
19.In other words, the contract dated 22.02.2001 entered into between Mr.Balasubramanian (Purchaser) and Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy (vendors) will not per se create any interest or charge on the said property. Therefore, the relief of specific performance which is an equitable relief ought to be sought for within the reasonable time and the ready and willingness of the parties at all time should have been established. Unfortunately, while passing the exparte decree, neither the title of the vendors nor the ready and willingness of the party nor the unusual extension of time prescribed for performance of contract were taken note by the trial Court.
20.Now, as an Obstructor, Ms.Kaliammal has brought to the notice of the Court about the partition decree passed in O.S.No.137/2001 and the declaration decree passed in O.S.No.436/2006. In such circumstances, when the vendors had lost the title by the force of decree passed by competent Court, though, subsequently decree for specific performance has been passed and also sale deed has been executed, delivery of possession cannot be effected since, it will go against the spirit of the decree passed in the partition suit.
21.In Nooruddin v. Dr.K.L.Anand (1995 (1) SCC 242), while dealing with the power of the execution Court, the Hon'ble Supreme Court has laid the following dicta:-
8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under order 21, rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under order 21, rule 103 of 1908 code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.
9. Adjudication before execution is an efficacious remedy to prevent fraud, oppression, abuse of the process of the court or miscarriage of justice. The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like (sic) in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almameter (sic) for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice. The court has, therefore, to wisely evolve its process to aid expeditious adjudication and would preserve the possession of the property in the interregnum based on factual situation. Adjudication under order 21, rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution.
22.In this case, the trial Court has considered the entire facts in respect of two sets of litigation unmindful of each other with Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy as parties in common to both set of litigation, he has deposed of the case hold Ms.Kaliammal as bona fide Obstructor and the specific performance decree in O.S.No.66 of 2007 is unenforceable.
23.From the facts, it is very clear that Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy who are the vendors of the appellant/petitioner have played fraud for non disclosure of fact before the Court. But, that will not enure any right to the appellant/petitioner. Further, for that reason, the appellant/petitioner cannot be gifted with the equitable relief at the cost of Ms.Kaliammal who even otherwise have right in the suit property since, her father Mr.Appiya Gounder has died intestate.
24.In the said circumstances, it could be a just relief for the appellant/petitioner to be compensated by his vendors viz., Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy. In view of the fact that the contract which he has entered with his vendors have become unenforceable on the date of filing of the suit and decree. Hence, this Court modify the relief by invoking its power under Order 41 Rule 33 C.P.C., award compensation of Rs.2,50,000/- (Rupees two lakhs and fifty thousand only), to the vendors payable by Mr.S.A.Kalimuthu and Mr.S.A.Veluchamy within a period of four weeks from today, which will be just and equitable relief for the appellant/petitioner. On payment of this money, the sale deed executed by the Court pursuant to the decree passed in O.S.No.66 of 2007 shall stand cancelled.
25.With the above directions, the Appeal Suit and the Civil Revision Petition are disposed of.
13.10.2017 jbm Index: Yes Speaking order/non speaking order To The Subordinate Judge, Udumalpet Dr.G.JAYACHANDRAN.J., jbm A.S.No.57 of 2013 and CRP (NPD) No.2676 of 2011 13.10.2017