S.Rajendran vs Kalaivani And Others Vs

V.Bhavani Subbaroyan, J

The appellant has filed the present Civil Miscellaneous Appeal under Order XLIII Rule 1 of Civil Procedure Code to set aside the fair and decreetal order dated 29.04.2019 passed in I.A.No.2 of 2019 in O.S.No.37 of 2019 passed by the learned Principal District Judge, Cuddalore by allowing the appeal.

The appellant is the plaintiff and the respondents are defendants in the suit in O.S.No.37 of 2019 on the file of learned Principal District Judge, Cuddalore. According to the appellant, the suit property originally belonged to one Govindasamy Padayachi and one M.Ethirajalu purchased the same from the said Govindasamy under a sale deed dated 30.11.1960. The said Ethirajalu had two wives, namely, Adilakshmi and Govindammal and Adilakshmi had no issues and two daughters, namely, Saroja and Kalaivani/1st respondent were born to Ethirajalu and Govindammal. The said Saroja died on 28.04.1994 and the 2nd respondent, viz., Ramasamy is the husband of the said Saroja and the respondents 3 to 5 are son and daughters of the said Saroja respectively. Besides that, Ethirajalu's First wife Adilakshmi was employed as a head nurse in Government Headquarters Hospital, Cuddalore and her sister, viz., Lakshmi was employed as a teacher in Government Girls High School, Thirupapuliyur. Both the sisters were also in possession of the suit property.

Further, the case of the appellant is that the said Lakshmi mortgaged the suit property to one Gulab singh Gulecha for Rs.10,000/-and both the sisters executed a mortgage deed in favour of said Gulecha on 16.08.1972 and said Gulecha had assigned the bogiam deed infavour of Chandra by a deed dated 26.04.1973. Again, the said Lakshmi borrowed Rs.10,000/- from Chandra and executed second bogiam deed over the suit property on 13.02.1976. Further, the said Adilakshmi Ammal and her sister Lakshmi had entered into an agreement of sale on 16.08.1980 and her sister Lakshmi had entered into an agreement of sale on 16.08.1980 with Pakkirisamy Mudaliar. It was an unregistered document.

Also, the case of the appellant is that since Pakkirisamy Mudaliar was not interested in purchasing the suit property the said sisters entered into an agreement of sale on 02.07.1983 with the plaintiff in respect of the suit property agreeing to sell for Rs.85,000/-. In consequence, Adilakshmi and Lakshmi received a sum of Rs.50,000/- from the plaintiff on 02.07.1983 as advance amount under the agreement of sale promising to discharge the bogiam debts and also pay back the advance amount paid by Pakkirisamy Mudaliar and got the sale agreement cancelled. The amount due under mortgage debts payable to Pakkirisamy Mudaliar was also discharged. Thereafter, the appellant was in possession and enjoyment of the suit property since 02.07.1983.

Apart from the above, the case of the appellant is that the suit filed by Govindammal, who was the second wife of Ethirajalu for partition and separate possession of her 1/3 share in O.S.No.205 of 1981 on the file of learned Subordinate Judge, Cuddalore was decreed on 28.12.1984 and the said Govindammal died intestate on 21.07.2017. The said Govindammal and her daughters had full knowledge that the appellant is in actual possession and enjoyment of the suit property since 02.07.1983. The appellant herein was not a party to the said O.S.No.205 of 1981 [O.S.No.165 of 2004]. The appellant has been paying the property tax to Cuddalore Municipality in the name of Lakshmi Ammal and he had constructed a building in August, 1983. The Commissioner of Cuddalore Municipality had issued a show cause notice dated 20.11.1983 stating as to why the unauthorised construction should not be demolished. But the said construction was known to the said Govindammal and her relatives and they have not raised any objection.

Moreover, it is the case of the appellant that the 3rd respondent, who is the son of Govindammal had threatened the appellant to vacate the property and the respondents have not filed any suit, till date, against the appellant. The said Govindammal along with her daughters would often visit her relatives at Thirupapuliyur, particularly one Jayapal, who was running a laundry at Sannadhi Street under the name and style of 'Sun Power Laundry' therefore, they had full knowledge of appellant's exclusive possession and enjoyment of the suit property. Hence the appellant had filed a suit on the basis of adverse possession of the suit property and also for permanent injunction restraining the respondents, their agents, servants or men from in any manner of interfering with the peaceful possession and enjoyment of the suit property.

Per contra, written statement was filed by the respondents, wherein it is stated that the only true averment in the plaint is that the suit property belonged to Govindasami Padayachi and that Ethirajulu purchased the same from him, however, the survey number contains a larger extent and was entirely purchased by him along with several other items. It is false to allege that Ethirajulu had two wives. He married only one once and his wife is Govindammal. Ethirajulu had two daughters, namely, Saroja and Kalaivani/1st respondent herein. Saroja died on 28.04.1994 and Saroja's husband/2nd respondent had married the 1st respondent also. The suit property is a storeyed building. Adilakshmi was not the wife of Ethirajulu, however, both Adilakshmi and her sister Lakshmi had lived in the ground floor, as concubines and the said Govindammal with her two daughters and son-in-law lived in the first floor. Soon after Ethirajulu died, the said Govindammal filed a suit for partition before the Sub-Court, Cuddalore, informa pauperis and was later numbered as O.S.No.205 of 1981. Though Adilakshmi and Lakshmi engaged a counsel, they did not even file their written statement and they remained ex-parte. On 28.12.1984, a preliminary decree was passed granting a share in respect of several items including the suit property which was item no.1 in O.S.No.205 of 1981. Since the jurisdiction of District Munsif Courts were enhanced, the final decree was filed and the same is numbered as O.S.No.165 of 2004 and I.A.No.650 of 2004 is the application for passing final decree and the same is still pending.

It is further stated in the written statement that the suit property is the Item No.1 in O.S.No.205 of 1981 or O.S.No.165 of 2004, which was filed as early as 26.10.1979. Therefore, any transaction subsequent thereto would be hit by lis pendens. However, the said Adilakshmi or Lakshmi had no title whatsoever, but they have played mischief actively encouraged by the appellant, who is a advocate's clerk, hence the usufructuary mortgage dated 16.08.1972 in favour of Gulab Singh Gulecha is void. The assignment to Chandra under an assignment deed dated 26.04.1973, the second usufructuary mortgage dated 13.02.1976 by Lakshmi in favour of Chandra and the re-assignment deed dated 16.07.1980 by Chandra in favour of Ghulab Singh Gulecha are all made to believe transactions. The transactions are of a result of deep-rooted plan. The mortgagees never took possession and Adilakshmi and Lakshmi continued to live there till they died. The usufructurary mortgages were voluntarily made. The subsequent agreement of sale with Pakkirisamy on 16.08.1980 and the later registered agreement of sale dated 17.10.1980 are all invalid. Apart from that, Adilakshmi and Lakshmi filed separate applications to set aside the exparte decree, but the applications, appeals and revision petitions filed thereupon in CRP Nos.975 of 2005 and 327 of 2006 were dismissed on 21.08.2017. For all the said reasons, the respondents sought to dismiss the suit filed by the plaintiff.

Pending the suit in O.S.No.37 of 2019, the appellant / plaintiff has filed I.A.No.2 of 2019 before the District Judge, Cuddalore to grant an order of injunction restraining the respondents, their agents, servants, men or assigns from in any manner of interfering with his peaceful possession and enjoyment of the suit property on the strength of decree passed in Sub Court, Cuddalore in O.S.No.205 of 1993 and O.S.No.165 of 2004 on the file of learned District Munsif, Cuddalore. In consequence, a detailed counter has also been filed by the respondents. The learned Principal District Judge, Cuddalore, after taking note of the pleadings, arguments, documents and the citations made on either side and Exhibits Exs.P.1 to P.87 marked on the side of the appellant, had dismissed the said petition. Aggrieved against the same, the appellant is before this Court by way of present Civil Miscellaneous Appeal.

The learned counsel for the appellant submits that the court below ought to have allowed the petition for interim injunction by considering the fact that the appellant had proved his possession for several years over the suit properties by producing Ex.Ps.1 to 87. The court below failed to consider that the suit in O.S.No.205 of 1981 on the file of Sub Judge, Cuddalore and re-numbered as O.S.No.165 of 2004 on the file of Munsif Court, Cuddalore is pending and therefore, the respondents cannot claim possession by mer ely relying upon the preliminary decree in O.S.No.205 of 1981.

It is the further submission of the learned counsel for the appellant that the court below ought to have only gone into the issue whether the appellant is in possession of the suit property or not in a petition for interim injunction. However, the reasons assigned by the court below are liable to be set aside and hence he pleaded to set aside the order passed by the court below.

Heard the learned counsel for the appellant and the learned counsel for the respondents and perused the documents placed on record.

In the present case, according to the appellant, he is in possession of the property from the year 1983 onwards, i.e., for the past 35 years. Further, the appellant had put up a construction that too with the knowledge of the respondents and he was not a party to the suit in O.S.no.205 of 1980 [165/2004]. Moreover, Govindammal, wife of Ethirajulu filed a suit before the Sub Court, Cuddalore in O.S.No.205 of 1981 on 26.10.1989 and Adilakshmi and Lakshmi, who are sisters and said to be concubine, according to the respondents, remained exparte in the said suit. On 28.12.1984, a preliminary decree was passed granting a share in respect of several items including the suit property, which was Item No.1 in O.S.No.205 of 1981. In consequence, an application for passing final decree was filed and due to enhancement of pecuniary jurisdiction the above final decree was transferred to the file of District Munsif's court, Cuddalore and the suit was renumbered as O.S.No.165 of 2004 and the I.A for final decree was numbered as 650 of 2004 and no appeal is preferred against the said decree and judgment in O.S.No.205 of 1981. It is pertinent to note that the alleged transaction between the appellant and the said Adilakshmi and Lakshmi was during the pendency of the suit and by virtue of the same, the counsel alleged that the said Adilakshmi and Lakshmi had no title whatsoever in the suit property.

Be that as it may, considering the facts and circumstances of the case and without expressing any opinion on the merits of the case, this Court hereby directs the learned Principal District Judge, Cuddalore to consider the matter afresh [without being influenced by any of the observations made by this Court cited supra, as well as the earlier order passed in I.A.No.2 of 2019] and pass orders in O.S.No.37 of 2019 on or before 30.04.2020, in accordance with law. It is needless to state that the parties are directed to extend their utmost co-operation before the court below for speedy disposal and not to seek adjournment unnecessarily. Till then, the status quo, as on today, shall be maintained.

With the aforesaid observations and directions, the present Civil Miscellaneous Appeal is disposed of. Consequently, connected miscellaneous petition is closed. No costs.