Madras High Court
Ashiya Bi vs Vittobai on 3 February, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 03 - 02 2014 Coram The Hon'ble TMT. JUSTICE PUSHPA SATHYANARAYANA Second Appeal No. 597 of 2006 Ashiya Bi .. Appellants vs. 1. Vittobai 2. H. Suresh 3. Babu 4. Jothibai 5. Vigneshwari 6. Sujatha .. Respondents Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23.3.2005 in A.S. No. 14 of 2005 on the file of the Additional Subordinate Judge, Salem confirming the judgment and decree dated 01.11.2004 made in O.S. No. 1999 of 1996 on the file of the Principal District Munsif, Salem. For Appellant : Mr. P. Jagadeesan For Respondents : Mr. R. Singaravelan for Mr. T.P. Prabhakaran JUDGMENT
The unsuccessful plaintiff before the Courts below is the appellant in this Second Appeal.
2. The case of the plaintiff is that the defendants 1 and 2, on the basis of the Varthamana letter executed by them on 10.9.1974, allowed her to reside in suit property for a sum of Rs.1500/-. Thereafter, on receiving a sum of Rs.3000/-, the defendants 1 to 3 agreed to sell the property within a period of three years by executed a deed on 16.11.1978 and also handed over possession of the property to the plaintiff. While so, during the end of 1979, the defendants received a sum of Rs.1500/- agreeing to get the sale deed and that they had not claimed the sum of Rs.950/-. The defendants also agreed to receive only a sum of Rs.550/- further agreeing to return back the amount and also executed a blank pronote. It is stated that since the entire sale amount was given by the defendants for the above said transactions, they are liable to pay the amount and that she is in exclusive possession and enjoyment of the property for more than a statutory period and prescribed title by adverse possession. As such, according to the plaintiff, she is entitled to the benefits under Section 53(A) of the Transfer of Property Act. Hence, she filed the suit for the relief of specific performance and for directing the defendants to execute the sale deed or alternative relief of declaration of title by way of prescription by adverse possession and also for the relief of permanent injunction not to alienate the suit property.
3. Resisting the suit, the defendants filed written statement stating that there is no cause of action for the suit. The defendants also took a defence that the suit is barred by limitation. It is stated that the suit property originally belonged to one Bahirathiammal, who settled the same in favour of her daughter first defendant, giving life estate. According to the defendants, since the plaintiff refused to receive repayment of loan obtained by them on the basis of Varthamana letter executed on 10.9.1974, she is bound to vacate the premises. Also, the defendants denied the execution of sale agreements dated 05.05.1976 and 16.11.1978 and also the pronote as averred by the plaintiff further stating that the plaintiff is in possession and enjoyment of the property only for the loan amount borrowed by them. On these grounds, the defendants sought for dismissal of the suit.
4. Trial Court / learned Principal District Munsif, Salem, on consideration of the evidence adduced and the materials available thereon, finding that the plaintiff failed to prove Exs. A.1 and A.2 unregistered deeds of sale agreement, dismissed O.S. No. 1999 of 1996 holding as time barred by judgment dated 01.11.2004. On appeal, the First Appellate Court / learned Additional Sub-Judge, Salem, after careful consideration of the facts and law, dismissed the appeal confirming the finding of the trial Court. Aggrieved by the concurrent finding, the plaintiff has come up with this Appeal.
5. At the time of admission of this Second Appeal, the following substantial questions of law were framed for consideration:-
(i) Even assuming that Exs. A.1 and A.2 are unenforceable, having allowed the plaintiff to be in possession of the property as a usufructuory mortgagee, have not the defendants lost their right to redeem due to law of limitation coming into operation?
(ii) Whether the findings of the courts below that Exs. A.1 and A.2 are fabricated are opposed to legal evidence on record?
6. Heard Mr. P. Jagadeesan, learned counsel appearing for the appellant and Mr. R. Singaravelan, learned counsel for the respondents and perused the records.
7. The case of the plaintiff is that the deceased first defendant and the second defendant Vittobai agreed to sell the suit property to the plaintiff for a sum of Rs.4000/- and the same was reduced to writing under Ex. A.1 dated 05.5.1976. The plaintiff also paid a sum of Rs.2300/- as advance and took possession of the property. On 16.11.1978, the plaintiff further paid a sum of Rs.750/- and the defendants 1 to 3 had executed another sale agreement under Ex. A.2 in respect of the suit property fixing the time as three years. The second agreement superseded the first agreement. The further case of the plaintiff was that the defendant had received another sum of Rs.1500/- and executed a blank promissory note under Ex. A.3. As the plaintiff had paid more than the sale consideration agreed for and was in continuous possession and enjoyment of the suit property, has sought for the relief of specific performance claiming right to the property by way of adverse possession. The respondent had contended that during the year 1974, the plaintiff paid a sum of Rs.1500/- and to that effect, a varthamana letter was executed and the plaintiff was allowed to reside in the suit property in lieu of payment of interest. When the amount was tendered by the defendants in 1996, the plaintiff refused to receive the same. The execution of any kind of sale agreement under Exs. A.1 or A.2 is denied by the respondent.
8. From the pleadings, it can be seen that the plaintiff has come to Court without knowing to what relief he is entitled. Ex. A.1 is the agreement of sale entered into between the plaintiff and defendants on 05.05.1976 and the period fixed was two years. Ex. A.2 is another sale agreement under which it is stated that defendants 1 to 3 received a sum Rs.750/- and agreed to sell the properties for Rs.4000/- and the period fixed was three years. Admittedly, the plaintiff is put in possession of the suit property pursuant to the varthamana letter in lieu of payment of interest. In Ex. A.2, it is clearly stated that the plaintiff need not pay any rent till such time the sale deed is executed. Ex. A.1 signed by the defendants 1 and 2, the name of the third defendant, who is the son of the defendants 1 and 2 is inserted after the execution of the sale agreement. Therefore, it is incumbent upon the plaintiff to prove the execution of the sale agreements under Exs. A.1 and A.2. A perusal of Exs. A.1 and A.2 read with the deposition of P.Ws.1 and 2 is contrary to the case of the plaintiff with regard to the signatures particularly, signature of the third defendant, which is an insertion, which may amount to material alteration. When the plaintiff comes to Court for the relief of specific performance, which is an equitable relief, she should come with clean hands. Though the cause of action arose for the suit on 10.9.1974, the date on which varthamana letter was executed and the plaintiff was put in possession, and again on 05.5.1976 and 16.11.1978, the dates of execution Exs. A.1 and A.2 respectively, the suit was filed by the plaintiff only on 27.9.1996. Though as per Ex. A.2, the time fixed was three years, after 1981, there is no communication or acknowledgment between the parties. Only a notice under Ex. A.20 dated 26.4.1996 was sent after a period of 15 years and there is no explanation on the side of the plaintiff for the delay. Therefore, the suit is hopelessly bared by limitation.
9. When admittedly, under Ex. A.2, the plaintiff was put in possession in lieu of rent, it can be said to be an usufructuary mortgage or at least the possession of the plaintiff can be taken as permissive one. While so, the claim of the title to the suit property by the plaintiff on the basis of adverse possession cannot be sustained. The plaintiff having missed out on time seeking relief of specific performance, has sought for the relief of title by adverse possession. The relief of specific performance and adverse possession are mutually exclusive. Therefore, Exs. A.1 and A.2 are invalid and not binding upon the defendants. The plaintiff has not established her case and the Courts below have rightly come to the conclusion that the plaintiff is not entitled to the relief asked for. Therefore, this Court finds no reason to interfere with the finding of the Courts below.
In the result, the Second Appeal fails and the same is dismissed confirming the judgment and decree of the trial Court in O.S. No.1999 of 1996 as affirmed by the First Appellate Court in A.S. No. 14 of 2005. However, there shall be no order as to costs.
03 02 2014 Index : Yes / No Internet : Yes / No To
1. Additional Subordinate Judge Salem
2. Principal District Munsif Salem
3. The Record Keeper V.R. Section High Court Madras.
PUSHPA SATHYANARAYANA, J.
gri Pre-Delivery Judgment in S.A. No. 597 of 2006 Delivered on 03 02 2014