SEETHAKATHI TRUST MADRAS versus KRISHNAVENI on 17 January 2022

1. Land measuring 0.08 cents (100 cents = 1 acre) has seen adispute spanning almost half a century.

2. One C.D. Veeraraghavan Mudaliar was the original owner of120 acres of land comprising S.No.44 and 45 at No.18, OthivakkamVillage, Chengalpattu Taluk. He entered into an agreement in October,1959 to sell the Land in favour of Janab Sathak Abdul Khadar Sahibwho intended to purchase the same on behalf of the appellant Trust fora sale consideration of Rs.18,000. The appellant Trust was registeredunder the Societies Registration Act, 1860 originally and now regulatedunder the Tamil Nadu Societies Registration Act, 1975. The other storyis what is set up by the Respondent who claimed that C.D.Veeraraghavan Mudaliar entered into an agreement of sale with her on10.04.1961 for sale of 50 acres in patta No.61 and paimash No.987/1 ofthe Land.

3. It is the claim of the Appellant that C.D. Veeraraghavan Mudaliarhad sold 50 acres out of 120 acres of land to one Niraja Devi on 16.11.1963vide registered sale deed, who took possession of the said land and enjoyedthe same. These 50 acres were bounded by a hillock in the east, landbelonging to C.D. Veeraraghavan Mudaliar in the west, GovernmentReserve Forest in the north and Hasanapuram grazing ground and lakein the south. Niraja Devi sold the 50 acres of land to one Perumal Mudaliarvide registered sale deed dated 19.04.1964, who also took possession ofthe said land and enjoyed the same. As per the Appellant, PerumalMudaliar sold the 50 acres of land to the Appellant Trust on 19.03.1968vide a registered sale deed.

4. Insofar as the remaining 70 acres of land is concerned, C.D.Veeraraghavan Mudaliar and his son sold the same to the Appellant videregistered sale deed dated 19.3.1968. The said property is bounded bythe land of Niraja Devi on the east, Kumuli Forest Line on the north,boundary line of Kannivakam Village on the west, and boundary line ofHasanapuram Village on the south. In respect of this 70 acres there isno dispute.

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326SUPREME COURT REPORTS

AHistory of the land dispute:

5. The Respondent filed a suit as O.S. No.31 of 1964 before thePrincipal Sub-Court, Chengalpattu for specific performance of theagreement dated 10.04.1964 against C.D. Veeraraghavan Mudaliar andhis son, which was dismissed on 13.08.1964. The Respondent preferredBan appeal against the said order, as A.S. No.366/65 before the DistrictJudge, Changalpattu and the said appeal was also dismissed on 08.03.1966.However, the fate of the Respondent brightened in the second appeal,being S.A. No.1673 of 1966, before the High Court of Judicature atMadras, when they succeeded in terms of the judgment dated 07.07.1970whereby specific performance of the agreement dated 10.04.1961 wasCdecreed. The High Court inter alia held that time was not the essenceof the contract and the land could be identified. In pursuance of thedecree so passed in the second appeal, the Respondent filed for execution,being E.P. No.17 of 1976, before the Sub Court, Chengalpattu. The Sub-Court appointed the Taluk head surveyor as Commissioner forDdemarcation of 50 acres of land, who subsequently filed his interim andfinal reports. The Sub-Court purportedly executed the sale deed on09.04.1981 through the officer of the Court and a delivery receipt dated26.09.1981 was issued to Respondent.

6. The controversy insofar as the present case is concerned aroseEfrom a suit filed by the Respondent, being O.S. No.14 of 1984 beforethe Court of District Munsif, Chengalpattu against the Appellant prayingfor declaration of title and delivery in her favour to the extent of 0.08cents of the land and delivery of the same. The suit was predicatedinter alia on a rationale that the Respondent had taken possession of 50acres by way of the execution proceedings, and that the Appellant hadFtrespassed over 0.08 cents of the same. The suit was, however, dismissedon 07.09.1988 as the trial court formed an opinion that the Respondentcannot be said to have taken possession of 50 acres of land as the deliveryreceipt read that the delivery was effected by the Vetti. The crucialaspect is that the Respondent, who was the best person to speak aboutGthe delivery of 50 acres of land chose not to appear in the witness box.This proved fatal to her case as the manager of the Respondent who didappear in the witness box deposed that he was not authorised by therespondent to conduct the case. Thus, the case fell on the evidence ledby the Respondent themselves. The testimony of the manager alsobecame material as he admitted to possessing knowledge of the saleH

deed effected by C.D. Veeraraghavan Mudaliar in favour of Niraja Devi.The manager acknowledged that he was aware of the same through thecorresponding encumbrance certificate before the filing of the suit in1964, and also knew that Niraja Devi had sold 50 acres of land to PerumalMudaliar. The subsequent purchaser, to the knowledge of the Respondent,was never impleaded as party in the suit nor did she seek to get the saledeeds cancelled. It is in view thereof it was opined that the Respondentwas estopped from questioning the appellant’s purchase. The plea ofsale being hit by lis pendens was rejected and the appellant was held tohave adverse possession of the land as confirmed by the PanchayatBoard President, who appeared as a witness and deposed that theAppellant had been enjoying the land for more than 30 years. TheAppellant had no knowledge of the earlier proceedings in respect of thesuit for specific performance filed by the Respondent.

7. The Respondent preferred an appeal, being A.S. No.101 of1998, before the Principal Sub Court, Chengalpet, which was dismissedon 28.03.2002. The dismissal was predicated on a dual finding, i.e., thatthe appellant was in adverse possession of the land, and as per Section114(3) of the Indian Evidence Act, 1872 (hereinafter referred to as the‘Evidence Act’) the expression “may be presumed” showed that thecourt can infer the reality from available evidence and documents. Thedelivery receipt was found to be not a real document of delivery ofpossession, but of mere paper delivery.

8. The aggrieved Respondent filed a second appeal before theHigh Court of Judicature at Madras in S.A. No.1552 of 2003 claimingshe was the absolute owner of land to the extent of 50 acres pursuant tothe clear demarcation by the surveyor as well as the sale deed betweenher and C.D. Veeraraghava Mudaliar, which was executed on 09.04.1981through the court process. The grievance against the Appellant was oftrespass upon 0.08 cents of land, as a barbed wire fence and a gate hadbeen put up on the same. It was Respondent’s case that possession ofthe land had been taken over on 26.09.1981, and that the Appellant couldnot contend that he had title over the land by adverse possession. Sheprofessed ignorance of the sale in favour of Niraja Devi and PerumalMudaliar as rationale for not impleading the Appellant, even though hermanager had deposed to the contrary while she had not entered thewitness box during the trial.

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A9. The Appellant claimed title to 50 acres including 0.08 cents andpointed out that Respondent’s grievance was made only with respect to0.08 cents. The Appellant Trust, in fact, claimed the ownership of entire120 acres of land. It was contended that no proper delivery had everbeen made as admitted by the amin and the possession was only a paperdelivery without actual physical possession. No question of law was leftBto be determined as urged by the Appellant.

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10. The High Court vide impugned judgment dated 06.01.2012,however, allowed the second appeal and set aside the judgments passedby the courts below on the ground that they did not properly appreciatethe evidence particularly with respect to the execution proceedings. TheCdelivery of 50 acres of land by the amin in accordance with the surveyor’splans was found to be proof of possession by the Respondent. Further,as per the surveyor’s report, persons belonging to the appellant trust didendeavour to obstruct the possession proceedings but did not challengethe vires of the delivery proceedings. The plea of adverse possessionDwas also rejected.

Pleas of the Appellant before this Court:

11. Learned senior counsel for the appellant contended that nosubstantial question of law was framed by the High Court, which itself isa sine qua non of exercising jurisdiction under Section 100 of the CodeEof Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’).The manner in which the High Court proceeded, it was urged, amountedto re-appreciating the evidence and disturbing the concurrent findings ofthe courts below. The High Court had proceeded into a fact-findingexercise, which was not within its jurisdiction under Section 100 of thesaid Code.F

12. An aspect emphasised by learned counsel for the Appellantwas that the Respondent chose not to depose in support of her owncase, and the manager who deposed admitted that he had no power orauthority to do so. The Respondent alone had knowledge of the allegedGfacts as appeared from the deposition of the manager and, thus, anadverse inference must be drawn against the Respondent in view of thejudicial pronouncements in Vidyadhar v. Manikrao and Anr.[1]and ManKaur (Dead) by LRs v. Hartar Singh Sangha[2]. It has been held in 1 (1999) 3 SCC 573H2 (2010) 10 SCC 512

1 (1999) 3 SCC 573H2 (2010) 10 SCC 512

these judicial pronouncements that if a party to a suit does not appear inthe witness box to state their own case and does not offer themselves tobe cross-examined by the other side, a presumption would arise that thecase set up is not correct. The latter of the two judgments has discussedthe earlier judgments and catena of other judicial views to the sameeffect and opined that a plaintiff cannot examine his attorney holder inhis place, who did not have personal knowledge either of the transactionor of his readiness and willingness in a suit for specific performance.Thus, a third party who had no personal knowledge cannot give evidenceabout such readiness and willingness, even if he is an attorney holder ofthe person concerned.

13. The admission of the manager of the Respondent whoappeared in the witness box acknowledging that the sale to Niraja Deviby a registered conveyance deed dated 16.11.1963 prior to the filing ofthe suit shows that the Respondent was aware of the further sale byNiraja Devi to Perumal Mudaliar by another registered sale deed andthereafter in favour of the Appellant. In such an eventuality, it was urgedthat the purchasers were necessary parties to the suit and a decree forspecific performance obtained behind their back would be a nullity. Thisproposition was sought to be supported by a judgment of this Court inLachhman Dass v. Jagat Ram and Ors.[3]. In para 16 of the judgment,it has been opined that a party’s right to own and possess a suit landcould not have been taken away without impleading the affected partytherein and giving an opportunity of hearing in the matter, as the right tohold property is a constitutional right in terms of Article 300-A of theConstitution of India. Thus, if a superior right to hold a property is claimed,procedure therefore must be complied with. In this context, it was urgedthat as per Section 3 of the Transfer of Property Act, 1882, a registeredtransaction operates as a notice to all concerned. In the present case,the first sale deed was already registered prior to the institution of thesuit by the Respondent for specific performance. Thus, that decree couldnot be binding on the Appellant.

14. In the alternative, it was pleaded that the decree of specificperformance was vitiated by a fraud with the purchaser of the propertybeing deliberately not impleaded in the suit. A reference was made toSection 19(b) of the Specific Relief Act, 1963 (hereinafter referred to asthe ‘Specific Relief Act’), which reads as under:

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A“19. Relief against parties and persons claiming under themby subsequent title.—Except as otherwise provided by thisChapter, specific performance of a contract may be enforcedagainst—

xxxx xxxx xxxx xxxxB(b) any other person claiming under him by a title arisingsubsequently to the contract, except a transferee for value whohas paid his money in good faith and without notice of the originalcontract;”

15. Since Niraja Devi was a bona fide purchaser long prior to theCinstitution of the suit for specific performance by the Respondent, specificperformance could not be enforced against her or her transferees asthey would fall within the exception of transferee for value who hadpaid money in good faith and without notice of the original contract.

16. Lastly it was sought to be urged that Section 114 of the EvidenceDAct in the factual context has not been correctly appreciated. Theprovision reads as under:

“114 Court may presume existence of certain facts. —TheCourt may presume the existence of any fact which it thinks likelyto have happened, regard being had to the common course ofEnatural events, human conduct and public and private business, intheir relation to the facts of the particular case.”

17. The aforesaid was in the context that the delivery effectedwas only a paper delivery and any infraction in effecting the deliverywas not curable. The amin had not followed the prescribed procedure inFdelivering possession and the appellant had continued in possession forover 30 years. Moreover, the suit was only filed for 0.08 cents of land.

Pleas of the Respondent before this Court:

18. On the other hand learned senior counsel for the respondentclaimed that the Respondent and her daughter are quite old and do notGhave the wherewithal to pursue litigation. The litigation has been pendingsince 1961. It was urged that the appellant had title only to 70 acres ofland and has trespassed into 0.08 cents of the land, which blocked theentrance to respondent’s land. Thus, though the suit pertains only to asmaller extent of land it affected the enjoyment by the respondent ofHtheir possession over larger extent of the land.

19. Learned counsel urged that the trial court and the lower courthad overlooked crucial and vital evidence and, thus, the High Court rightlyexercised jurisdiction under Section 100 of the said Act. There was noquestion of impleading the appellant or the prior purchasers as parties asno issue had been framed in the suit in respect thereof. The presumptionunder Section 114(e) of the Evidence Act must arise and the appellantTrust was aware of the execution proceedings as some of the personsbelonging to the appellant Trust are stated to have obstructed theSurveyor’s entry when he went to demarcate the land as well as by theinterim and final reports of the surveyor. The Trust never questioned thesame at the time and cannot question it now.

Conclusion:

20. We have given our thought to the aforesaid aspect.

21. We find that there are more than one infirmities which makeit impossible for us to uphold the view taken by the High Court upsettingthe concurrent findings of the courts below.

22. The first aspect to be taken note of is that the question of lawought to have been framed under Section 100 of the said Code. Even ifthe question of law had not been framed at the stage of admission, atleast before the deciding the case the said question of law ought to havebeen framed. We may refer usefully to the judicial view in this behalf inSurat Singh (Dead) v. Siri Bhagwan and Ors.[4], wherein this Courthas held that:

“29. The scheme of Section 100 is that once the High Court issatisfied that the appeal involves a substantial question of law,such question shall have to be framed under sub-section (4) ofSection 100. It is the framing of the question which empowers theHigh Court to finally decide the appeal in accordance with theprocedure prescribed under sub-section (5). Both the requirementsprescribed in sub-sections (4) and (5) are, therefore, mandatoryand have to be followed in the manner prescribed therein. Indeed,as mentioned supra, the jurisdiction to decide the second appealfinally arises only after the substantial question of law is framedunder sub-section (4). There may be a case and indeed there arecases where even after framing a substantial question of law, thesame can be answered against the appellant. It is, however, doneonly after hearing the respondents under sub-section (5).”

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A23. There is undoubtedly an element of dispute with respect topossession raised by the two parties qua their respective 50 acres. Insofaras 70 acres of land is concerned that undisputedly vests with theAppellant. The dispute sought to be raised by the Respondent does notpertain to 50 acres but only to 0.08 cents, a fraction of an acre (0.08 percent of an acre). It may, however, be noticed that according to theBRespondent the small area is important for the enjoyment purposes.

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24. In our view, it is not necessary to go into the issue of adversepossession as both parties are claiming title. The crucial aspect is thedecree obtained for specific performance by the Respondent and themanner of obtaining the decree. The Respondent was fully aware of theCprior registered transaction in respect of the same property originally infavour of Niraja Devi. This is as per the deposition of her manager. Insuch a scenario it is not possible for us to accept that a decree couldhave been obtained behind the back of a bona fide purchaser, more sowhen the transaction had taken place prior to the institution of the suitDfor specific performance. Suffice to say that this view would find supportfrom the judgments in Vidyadhar v. Manikrao[5]and Man Kaur v. HartarSingh Sangha[6].

25. The second vital aspect insofar as the case of the Respondentis concerned is that the Respondent did not even step into the witnessEbox to depose to the facts. It is the manager who stepped into the witnessbox that too without producing any proper authorisation. What he deposedin a way ran contrary to the interest of the Respondent as it was acceptedthat there was knowledge of the transaction with respect to the sameland between third parties and yet the Respondent chose not to impleadthe purchasers as parties to the suit. Thus, the endeavour was to obtainFa decree at the back of the real owners and that is the reason, at least, inthe execution proceedings that the original vendor did not even comeforward and the sale deed had to be executed through the process of theCourt. The case of Niraja Devi and the subsequent purchasers includingthe Appellant would fall within the exception set out in Section 19(b) ofGthe Specific Relief Act, being transferees who had paid money in goodfaith and without notice of the original contract. There are also somequestion marks over the manner in which the possession is alleged to 5 (supra)H6 (supra)

have been transferred although we are not required to go into that aspect,as we are concerned with only 0.08 cents of land.

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26. We are, thus, unequivocally of the view that for all the aforesaidreasons, the High Court ought not to have interfered with the concurrentfindings of the trial court and the first appellate court.

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27. The suit of the Respondent stands dismissed in terms of thejudgment of the trial court and affirmed by the first appellate court andthe impugned judgment of the High Court dated 06.01.2012 isconsequently set aside.

28. The appeals are accordingly allowed leaving the parties toCbear their own costs.

Devika Gujral

Appeals allowed.

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