The second appeal arises out of the suit for declaration and injunction. The subject matter of the suit is 0.27 cents of land bearing S.No.602/6 of Ayyur Village, Villupuram District.
2. For the sake of convenience, the parties are described as per their rank and status shown in the original suit.
3. The litigative history of the suit property is as follows:-
The suit property originally owned by one Natesa Gounder and his five sons. Venu Gounder, who is one of the sons of Natesa Gounder, filed a partition suit in O.S.No.153 of 1964 and got the suit property along with other properties for his share through final decree, dated 19.6.1969 and also took delivery of properties on 10.10.1969 and 24.02.1970. While so, where one Valliammal and other brothers of Venu Gounder tried to trespass into the properties of Venu Gounder, he filed a suit for declaration and possession in O.S.No.3 of 1971. That suit was also decreed by the trial Court and confirmed by the first Appellate Court in A.S.No.115 of 1975. Thereafter, through E.P.No.365 of 1976, Chinnaponnu ammal the wife of Venu Gounder, who is the plaintiff in the suit O.S.No.1671 of 1985, which is under appeal before this Court, had taken delivery of property on 04.01.1977. In the delivery receipt, the first defendant Subbaraya Gounder has signed as witness. The patta for suit property was transferred in the name of Chinnaponnu ammal. The survey number of the suit property is renumbered as 550.
4. Ignoring the partition decree passed in O.S.No.153 of 1964, a fresh partition suit in O.S.No.414 of 1981 was filed by one Rajendran, S/o Rajagopal Gounder, S/o Natesa Gounder. In that suit, both the plaintiff and the first defendant were arrayed as defendants 10 and 12 respectively. The subsequent suit O.S.No.414 of 1981 filed by Rajendran ended with A.S.No.165 of 1983, wherein the properties alloted to Venu Gounder in the earlier partition suit were deleted and only rest of the properties was subject to decree of partition.
5. While so, Rangammal the second defendant filed the suit O.S.No.93 of 1978 against defendants 3 to 7 for recovery of money. Rangammal brought the suit property in the court auction, pursuant to the decree passed in her favour in O.S.No.93 of 1978. The first defendant Subbaraya Gounder was the Court auction purchaser in the auction held on 15.03.1982 and after confirmation of sale, he proceeded to take delivery of properties, but, it was obstructed by the plaintiff. Supressing the Court auction of the suit property and her obstruction of delivery of possession, the present suit in O.S.No.1671 of 1985 was laid by the plaintiff.
6. The first defendant pointed out the suppression of fact by the plaintiff and he being the bona fide court auction purchaser sought leave of the Court to order refund of the auction money and poundage charge with interest. He also paid the necessary court fee for his counter claim. The second defendant, Rangammal, who was impleaded subsequently at the instance of the first defendant also contested the suit with the following pleadings.
7. From one Hariraman, the second defendant Rangammal purchased certain properties on 12.04.1972, in view of pending partition suit in O.S.No.153 of 1964, the suit property was given as surety. The suit in O.S.No.153 of 1964 was allowed with cost. The properties, which are purchased from Hariraman by the second defendant, were put to the court auction, pursuant to the decree passed in O.S.No.153 of 1964. Therefore, in the terms of agreement, she sought for charge over the suit property in O.S.No.93 of 1978. Charge was created upon the suit property pursuant to the decree passed in O.S.No.93 of 1978 for Rs.2971.12 againt Rajagopal and others.
8. The suit property was sold to one Korathee Krishna Gounder by Natesa Gounder and his sons, as early as 16.10.1964 to discharge their family necessity. Later, Korathee Krishna Gounder settled the property in favour of Hariraman on 10.05.1968 and from that day, it was in possession and enjoyment of Hariraman, which he gave as sureity under the sale deed dated 19.04.1972. When preliminary decree was passed in O.S.No.153 of 1964, the suit property was not with the family of Natesa Gounder, since Natesa Gounder has already sold away the property as early as 1964 as Kartha of the family. To defeat the lawful claim of the second defendant, the plaintiff in collusion with defendants 1 and 3 to 7 has filed this suit.
9. The trial Court, after considering chain of pleadings such as plaint, written statements, additional written statements and reply statement, has framed the following issues:-
“(1)Whether the plaintiff has title to the suit property?
(2) Whether the plaintiff is entitled to the relief of permanent injunction?
(3) Whether the 1st defendant is estopped from disputing the title of the plaintiff?
(4) Whether the 1st defendant is entitled to the refund of purchase money, which he deposited in O.S.No.93 of 1078 on the file of D.M.C., Villupuram?
(5) Whether in any event the 1st defendant is entitled to interest of the purchase money?
(6) Whether the 1st defendant is entitled to refund of poundage?
(7) Whether the 1st defendant's claim of refund of purchase money is barred by time?
(8) Whether the 1st defendant's claim of refund of purchase money is barred by Section 47 of C.P.C.?
(9) Whether the claim of the 1st defendant is barred by res judicata?
(10) Whether the defendant is barred by res judicata in contention that the plaintiff has no title?
(11) Whether the plaintiff is barred by res judicata as contended by the defendants 1 and 2?
(12) Whether the suit is bad for non joinder of necessary parties?
(13) Whether the suit as framed is not maintainable? (14)Whether the plaintiff is estopped from setting up title?
(15)To what relief is the plaintiff entitled to?”
The trial Court allowed the suit by declaring the title in favour of the plaintiff and granted permanent injunction.
10. Aggrieved by the trial Court judgment, the first defendant preferred appeal in A.S.No.72 of 1989 and the first appellate Court has formulated the following points for determination:
“Whether the first defendant is entitled for the relief of the auction money deposited in O.S.No.93 of 1978. On re- appreciation of evidence, the first appellate Court modified the trial Court decree to the effect that the appellant/first defendant is entitled for refund of purchase money deposited in Court from the decree holder?”
11. On re-appreciation, the first appellate Court held that the first defendant plea of refund the purchase money is well within Order 21, Rule 92(4)and (5) of the Civil Procedure Code and it is not hit by Section 47 of the Civil Procedure Code or barred by limitation. To that effect modified the judgment of the trial Court and declared the first defendant is entitled to get back the money, he deposited, purusant to the auction purchase held in decree passed in O.S.No.93 of 1978.
12. Aggrieved by the modified judgment of the first appellate Court, the second defendant has preferred this second apepal and this Court, at the time of admission, has formulated the following Substantial Questions of Law for consideration:
(1) Whether the lower appellate Court was right in holding that there is no period of limitation for invoking Order 21, Rule 92(4) and (5) of the Civil Procedure Code?
(2) Does not the title vest with the auction purchaser once the sale is made absolute and sale certificate issued in his favour thereby barring institution of suit questioning auction sale?
(3) Whether the lower appellate Court was right in invoking Order 21, Rule 92(5) of the Civil Procedure Code when the suit was one for declaration of title and injunction and not one invoking Order 21, Rule 92(4) of the Code of Civil Procedure?
(4) Whether the lower appellate Court was right granting the relief as prayed for overlooking the restrictions placed under Order 21 Rule 93 of C.P.C.?
13. The learned counsel for the appellant/2nd defendant submitted that the first appellate Court failed to note that when the property was brought to sale in the court auction, pursuant to the decree in O.S.No.93 of 1978, no objection was raised by the parties interested in the property or disputed the ownership of respondents 3 to 12 herein. When there was no rival claim from any quarters till the completion of auction sale and the deposit of auction money, the Court ought not to have entertained the suit by certain parties with a design to defeat the lawful claim of the decree-holder in the earlier suit as well as the third party purchaser, who has bonafidely participated in the Court auction sale and parted away his money towards the auction price. The first appellate Court, instead of desuiting the plaintiff, has ordered refund of auction money invoking Order 21, Rule 92(4) and (5) of the Civil Procedure Code, which cannot be applied at all in the facts and circumstances of this case. If at all the auction purchaser is aggrieved by the subsequent claim or disputed title over the property he purchased through Court auction, the only remedy open to him is to resort under Section 47 of the Civil Procedure Code, whcih the first respondent failed to exercise. Since the auction sale was completed and confirmed in favour of the first respondent/first defendant, he cannot turn around to seek for refund of purchase money. Furthermore, the prayer of the first defendant seeking refund of purchase money being barred by the limitation, a relief which he could not attain directly, cannot be achieved indirectly in a suit filed by the third party.
14. Per contra, the learned counsel appearing for the first respondent submitted that having paid the purchase money and being the bona fide purchaser, after confirmation of sale, he took all measures to take delivery of the property, but the plaintiff, who is the second respondent herein, obstructed the execution of the decree and pending the execution petition, she has filed the present suit and forced him to resort to the the alternate plea of refund of purchase money. He has paid necessary court fee for the said counter claim and in view of the order passed by the first appellate court, though he is entitled for the possession of the property he purchased through court auction, atleast he will be redressed partially by virtue of the first appellate court order which will enable him to get the refund of purchase money, which lay in the court deposit.
15. On perusal of the judgment of the Courts below and the evidence let in by the respective parties and in the light of the provisions of law governing the dispute in hand, this Court is of the opinion that both the courts below have not properly addressed the issue before them. The prayer in the suit, which is the subject matter of the second appeal, is for declaration of title and injunction. The plaintiff namely Chinnaponnu ammal, all along been relying upon the earlier proceedings between herself and other shareholders.
The trial Court has framed as many as 15 issues and the 14th issue is, whether the plaintiff is estopped from claiming title over the suit property? While deciding the issue, the trial Court has relied upon the earlier partition suit between Venu gounder and others in O.S.No.153 of 1964 and purusant to the said decree, the trial Court has come to the conclusion that the plaintiff was allotted the suit property in the final decree proceedings of O.S.No.153 of 1964. The trial court has further gone to an extent of saying that in the subsequent suit which the plaintiff preferred in O.S.No.3 of 1971 for declaration and possession in respect of the suit property, she got the possession on 04.01.1977 and the suit property had been delivered to the plaintiff and others, pursuant to the decree passed in O.S.No.3 of 1971 against Valliammal and others. The Exhibits, such as Ex.A1-delivery receipts, Ex.A11- final decree in O.S.No.153 of 1964 and Ex.A14-decree in O.S.No.414 of 1981. The plaintiff Chinnaponnu ammal was not only the party but along with her others were party to the proceedings. More particularly, Ex.A1 if analysised, it is a delivery receipt, wherein the plaintiff Chinnaponnu ammal and others are shown as decree-holders.
16. While so, the trial court has miserably failed to look into the real party, who has taken possession of the present suit property. Under Ex.A1, when there are multiple litigants on either side and several properties are subject matter of the subject, without co-relating the decree-holder vis-a-vis the property just based on the common unspecified decree or document, it is erroneous to conclude that the plaintiff has been allotted or delivered the present suit property and she had been enjoyment of it. For instance, the plaintiff claims that as per the final decree passed in the earlier partition suit in O.S.No.153 of 1964, the suit property and other properties were allotted to her husband Venu gounder. If it is so, there is no reaason to file another suit for declaration and possession against Valliammal and others. There is no evidence directly confirming that the suit property was in fact allotted to Venu Gounder. Further, this assertion gets murky, in view of the subsequent suit filed by the plaintiff in O.S.No.3 of 1971 for declaration and delivery of possession.
17. It is again very unfortunate that the courts below, without proper scrutiny of Ex.A1, has jumped to the conclusion of the suit property was taken delivery by the plaintiff Chinnaponnu ammal. When there is no indication that out of several decree-holders and several properties to which decree-holder, the present suit was delivered.
18. The defendants have specifically pleaded that the said suit property was sold by Natesa gounder and his son as early as 16.10.1964 vide Ex.B15, to Korathee Krishna gounder. The said Korathee Krishna gounder has settled the property in favour of Hariraman, S/o Natesa gounder, vide Ex.B17. The said Hariraman has shown this property as surety for the sale agreement entered with Rangammal and for the breach of the sale agreement with Rangammal, the suit property has been brought on sale by Rangammal. In purusant to the said decree, the suit property was sold in the court auction and the same was purchased by the first defendant Subbaraya gounder. While the trial Court has discussed about all these documents, while dealing issues 1 and 2 has miserably failed to give due credence to Ex.15 and Ex.17 and Ex.20 wherein, the suit property was sold by Natesa gounder himself much before the partition decree through which the plaintiff claims right. The partition suit filed by the plaintiff and decree passed in it are long after the alienation of the suit property by Natesa gounder thorugh whom the plaintiff trace her right over the suit property. This factual aspect has been totally overlooked by the Courts below rendering their finding perverse.
19. On reading the judgments of the Courts below, what there were suppose to decide was whether the plaintiff really have any title or right over the property, while Natesa gounder himself has alienated the property vide Ex.B15 as early as 16.10.1964, unfortunately, the Courts below have failed to look into it. Alternatively, the Courts below have been erroneously mis-directed towards the right of subsequent auction purchaser to get refund under Order 21, Rule 92(4) and (5) of the Civil Procedure Code.
20. The Courts below have miscerably failed to see that the plaintiff has come to the Court with unclean hands, suppressing vital fact of prior alienation of the suit property by Natesa Gounder and also suppressed the fact of filing the obstruction petition in the execution petition filed for deliver of possession by the first defendant, purusant to the court auction sale. The plaintiff has conveniently suppressed the vital facts, the Courts below also have got misdirected itself on the collateral issue on the right of auction purchaser to seek refund of purchase money under Order 21 of the Civil Procedure Code.
21. In fact, it is the plaintiff, who should have resorted the Section 47 of the Civil Procedure Code, if at all she was aggrieved by the decree of auction sale in purusant to the decree passed in O.S.No.93 of 1971 which the plaintiff has failed. But, suppressing the fact that her predecessor in title has already sold away the property under Ex.B15 and suppressing the fact she had knowledge of court auction sale of the suit property has come to court with unclean hands.
22. The Hon'ble Supreme Court in the judgment of S.P Chengalvaraya Naidu vs Jagannath[1994 scc (1) 1], in a case of similar nature of suppression of fact by the plaintiff and obtained a decree, held that:
“A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non- mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.”
23. For the said reasons, the second appeal is allowed and the judgments of the Courts below are set aside. The suit in O.S.No.1671 of 1985, dated 17.04.1989 is dismissed with cost throughout. Consequently, connected Miscellaneous Petitions are closed.
03.02.2017 Index:Yes/No Internet:Yes/No ari To The Subordinate Judge, Villupuram The District Munsif, Villupuram.
Dr.G.Jayachandran,J.
ari
Judgment made in Second Appeal No.1679 of 1995 and C.M.P.Nos.18743 of 1995 and 10265 of 2006
03.02.2017
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