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Judgment
K. Sampath, J.—The plaintiff is the appellant. It filed suit O.S. No. 696/81 before the District Munsifs Court, Uthamapalayam, for possession after removing the superstructure put up by the respondent in the suit property, alleging as follows: The suit property originally belonged to Kamatchipuram Nadar Uravinmurai and the same was given to the appellant school under a settlement deed under the original of Ex. A-1, and from the date of me deed the property had been under the management of the appellant school. There were rival groups in the Nadar Uravinmurai at Kamatchipuram. One Ratnam and Thangiah Nadar along with one Pachayappa Nadar belonged to one of the groups and they were acting against the interest of Uravinmurai and suits in O.S. Nos. 292/72 and 158/79 were filed in the Subordinate Judge''s Court, Dindigul, and they ended in favour of the Uravinmurai. During the pendency of the said suits mere was encroachment in the property belonging to the appellant school. The appellant filed O.S. No. 313/76 before the District Munsif''s Court, Periyakulam, against the said Ratnam and that suit also ended in favour of the appellant. Out of spite, Ratnam sold the suit property under Ex. B-9 on 22.6.1978 in favour of the respondent. Ratnam had described himself as the President of Nadar Uravinmurai and described Thangiah Nadar as treasurer when both of them were not office bearers. They did not obtain any permission from the Nadar Uravinmurai to sell the suit property to the respondent. The respondent took possession of the property pursuant to the said sale deed and the appellant caused a notice under the original of Ex. A-4 dated 7.9.1979 to be issued to the respondent calling upon him to vacate the premises after removing the superstructure. Under Ex. A-6 dated 14.9.1979 the respondent sent a reply through his Counsel with false allegations. The suit was therefore necessitated. There was also a prayer for payment of rent at the rate of Rs. 30/- per month and also for payment of Rs. 540/- towards past mesne profits.
The respondent resisted the suit contending inter alia that the suit property belonged to Nadar Uravinmurai and his vendors were respectively the President, the Treasurer and the said Nadar Uravinmurai. He was also put in possession pursuant to the sale. The appellant had also not taken steps to set aside the sales in favour of other persons. He was a bona fide purchaser for value without notice and the sale deed in his favour was binding on the appellant. Since he had denied the title of the appellant, the suit without a prayer for declaration of title was not maintainable. He had also effected improvements spending over Rs. 20,000/- and those improvement had been made with the knowledge of the appellant and the appellant was therefore estopped from filing the suit
The trial Court framed the necessary issues and found that the appellant had title to the suit property by virtue of the settlement deed under the original of Ex. A-1, that the suit was maintainable and that the sale deed Ex. B-9 in favour of the respondent would not convey any title in his favour and decreed the suit by its judgment and decree dated 9.9.1982, however refusing the relief of mesne profits and costs.
Aggrieved, the respondent filed appeal A.S. No. 60/83 and the appellant filed its cross objections. The learned Subordinate Judge by his judgment and decree dated 30.9.1983 reversed the decision of the trial Court holding that the suit as framed was not maintainable, that the appellant was not entitled to possession after removal of the superstructure and mat the appellant was not entitled to mesne profits and costs, allowed the appeal and dismissed the suit. Aggrieved the present Second Appeal has been filed.
At the time of admission the following substantial questions of law were framed for decision in the Second Appeal:
Whether the lower Appellate Court is right in holding mat me plaintiff has no title to the suit property contrary to the documentary evidence in Ex. A-1 in the case?
Whether the lower Appellate Court is right in holding that the suit is not maintainable in the face of the admission by the defendant mat the suit property originally belonged to the trust which has settled this property in the name of the plaintiff under Ex. A-1? and
Whether the defendants are barred by res judicata from claiming any right to the suit property under his vendor against whom the Court has provisionally held mat they had no right to deal with the suit property?
Mr. R.N. Kothandaraman, learned counsel for the appellant, contended that the original of Ex. A-1 was a valid document and conferred right, title and interest in respect of the suit property on the appellant and the finding contrary by the lower Appellate Court would not be sustainable in law. When once it was found that the original of Ex. A-1 was a valid document, then Nadar Uravinmurai would not have any right whatsoever to deal with the property as if the property belonged to them.
Per contra, Mr. S. Krishnasamy, learned counsel for the respondent, contended that Ex. A-1 had not come into effect and it was given the go by by the execution of Exs. B-2 and B-5 and Nadar Uravinmurai had been dealing with the properties covered by the original of Ex. A-1 and this itself would clearly show that the appellant school did Hot have any right to the suit property nor did they exercise any right in respect of the same. The learned counsel further contended that the respondent had denied the title of the appellant and the suit without a prayer for declaration was not maintainable.
Mr. R.N. Kothandaraman, on the maintainability of the suit without a prayer for declaration of title, submitted that there was no denial of title by the respondent. He claimed title under the sale deed Ex. B-9 executed by one Ratnam and another and Ratnam and another had no right to represent Nadar Uravinmurai and in any event, Nadar Uravinmurai had no right to deal with the property after the execution of the original of Ex. A.1. If Nadar Uravinmurai was not the owner of the property, the appellant would have title. If Nadar Uravinmurai was the owner of the property, the sale deed in favour of Ex. B-9 would be valid. On account of rancour Ratnam had brought about Ex. B-9 sale deed and the respondent was not claiming title from any rival title holder because Ratnam had no right to execute any sale deed.
The execution of the original of Ex. A-1 is not disputed. The only contention raised on behalf of the respondent regarding Ex. A-1 is that it was given a go by, that it was not acted upon and the same would be evident from the execution of Exs. B-2 and B-5 in respect of other properties covered by Ex. A-1. This contention cannot be accepted. Ex. A-1 clearly shows that the suit property had been settled in favour of the appellant school and the appellant school and Nadar Uravinmurai were separate legal entities and when once the original of Ex. A-1 had been executed and no power of revocation had been reserved in Ex. A-1, there was no question of Nadar Uravinmurai giving a go by to Ex. A-1. It is also in evidence that there were rival factions and it was not difficult to find that Ratnam had some score to settle with his rivals in Nadar Uravinmurai and that promoted him to execute Ex. B-9 in favour of the respondent. The sale deed by Ratnam and another in favour of the respondent cannot convey any title to the respondent. The respondent cannot be held to be a bona fide purchaser for value without notice. In fact, that question does not at all arise. The respondent had purchased the property from somebody who had no title to the property at all. Ex. B-9 is not a valid document.
On the question of maintainability, the decision of the lower Appellate Court cannot stand. As rightly contended by the learned counsel for the appellant that there was no denial of title and if Nadar Uravinmurai was not the owner of the property, the settlement deed in favour of the appellant would be a perfectly valid document and claiming to have purchased the property from somebody who had no title over the property, it was not open to the respondent to dispute the title of the appellant. The question of maintainability of the suit without a prayer for declaration does not therefore arise. As already stated, Ratnam was not competent to execute any sale deed even assuming that Uravimurai had any right in the suit property after the execution of the original of Ex. A-1. The trial Court rightly found that the respondent had not established that Ratnam was the President of Nadar Uravinmurai on the dated he executed Ex. B-9 and that he had a right to execute a sale deed binding the appellant school also. This aspect has been clearly lost sight of by the lower Appellate Court. The decision of the lower Appellate Court is not based on evidence in the case, but merely on ipse dixit and on conjectures and surmises and the same cannot stand. All the relevant facts had not been taken into consideration by the lower Appellate Court in disturbing the decision of the trial Court. The decision of the lower Appellate Court that the appellant had no title to the suit property is clearly contrary to the documentary evidence in the shape of Ex. A-1 in the case. The first substantial question of law is therefore answered in favour of the appellant. So far as the sale deed in favour of the respondent is concerned, he had purchased it from a person who had no title to the property and it is clearly invalid. The refusal of relief of mesne profits and costs by the trial Court and confirmed by the lower Appellate Court is not seriously challenged in the Second Appeal. Consequently, the substantial questions 1 and 2 are answered in favour of the appellant and it is not necessary to enter a finding regarding the third substantial question of law. The Second Appeal will stand allowed. The judgment and the decree of the lower Appellate Court will stand set aside and those of the trial Court will stand restored. There will, however, be no order as to costs.