(Prayer: This appeal suit has been filed under Section 96 of the Civil Procedure Code, 1908 against the judgment and decree dated 30.11.2021 passed in O.S.No.2329 of 2018 on the file of the XVI Additional City Civil Court, Chennai.)
N. Sathish Kumar, J.
1. Challenging the judgment and decree of the trial court made in O.S.No.2329 of 2018, dated 30.11.2021 dismissing the suit filed for declaration to declare the settlement deed dated 04.01.2018 executed by the first defendant in favour of the second defendant as null and void and to declare the plaintiff is the real owner of the plaint schedule property under adverse possession or in alternative to pay a sum of Rs.24,29,575/- with interest, the unsuccessful plaintiff has preferred the present appeal.
2. The parties in this appeal are hereinafter referred to as per their rankings before the trial court.
3. Before delving into the facts of the case, the following admitted facts can be captured:
3.1.The appellant is the brother of the first respondent and he has field a suit in O.S.No.2329 of 2018 for the reliefs as stated above. Whereas the second respondent who is the wife of the first respondent has also filed a suit in O.S.No.6567 of 2019 for recovery of possession from the appellant herein. Both the suits were tried together and evidence was recorded in O.S.No.2329 of 2018. The suit filed by the appellant in O.S.No.2329 of 2018 was dismissed, whereas the suit filed by the second respondent for recovery of possession was allowed. As against both the judgments, both appeals, namely present appeal in A.S.No.511 of 2022 and another appeal in A.S.No.512 of 2022 were filed before this Court. The appellant before this court had agreed to vacate the suit property within a period of six months and filed an affidavit in this regard. Pursuant to the same, his appeal against the judgment and decree for recovery of possession was disposed of by granting six months time to the appellant to vacate the suit property.
3.2.The present appeal, though was filed against the findings of the trial court negativing the relief of declaration, now the counsel for the appellant herein submitted that the appellant is confining his appeal only in respect of the dismissal relating to recovery of money sought by him. Therefore, the present appeal though was filed challenging various findings of the trial court, now the appellant’s counsel restricted this appeal only for recovery of money as sought in the suit.
3.3.It is in this backdrop, the following facts are necessary for disposal of the present appeal.
3.4.The plaintiff, namely the appellant is the younger brother of the first defendant and the second defendant is the concubine of the first defendant and they are residing together against the wishes of the family. The plaintiff and the first defendant have maintained very good relationship with each other. The owner of the building who was very close to the first defendant, insisted the first defendant to purchase the suit property. However, the first defendant did not have any interest in investing any of his money and therefore, he informed the plaintiff to purchase the same by investing his hard earned money. Therefore, the plaintiff has arranged for a sum of Rs.2,75,000/- as initial payment by way of cash to the first defendant and further, a loan of Rs.7,00,000/- was obtained in the name of the first defendant from Hongkong Shangai Banking Corporation Ltd. The said loan obtained from HSBC Ltd. was being paid through EMIs by the plaintiff from June, 2002 to June, 2004. Since the interest rate in HSBC Ltd was on higher side, the loan was shifted to IDBI Bank. Further, the loan of Rs.8,20,000/- was obtained by mortgaging the plaint schedule property. The loan obtained from the HSBC Ltd. was cleared and the excess amount obtained from the IDBI Bank was given to the first defendant for utilizing the same to his business improvement. According to the plaintiff, he has paid monthly installments of Rs.8000/- till December, 2013.
3.5.It is the further case of the plaintiff that the first defendant did not make any payment, the plaintiff requested the first defendant to execute the deed of sale. Further, the first defendant requested the plaintiff to pay Rs.12 lakhs considering the loss in his business. The plaintiff had agreed to pay Rs.12 lakhs, as a result, an agreement came into existence between the plaintiff and the first defendant, which resulted in filing O.S.No.10848 of 2010. It is the case of the plaintiff that he has made payment from June 2002 to December, 2013 and continued to be in possession and enjoyment of the plaint schedule property with the knowledge of the first defendant for a period, more than 12 years. Therefore, he has perfected his title by adverse possession. Further, though he has paid installments till December 2013, even thereafter, he deposited some amounts to the first defendant’s Canara Bank account on 30.08.2005, 05.09.2005 and 23.08.2005. That apart, the SARFAESI proceedings were also initiated. However, during the pendency of the SARFAESI proceedings, the first defendant in collusion with the IDBI Bank, cleared the entire loan of Rs.6,27,000/- and received all the original documents. Later, the first defendant has fradulently executed the settlement deed dated 04.01.2018 in favour of the second defendant. Hence, the plaintiff has claimed the following amounts from the first defendant :
| Initial payment made for buying the plaint schedule property | Rs.2,75,000. |
| Personal obtained from GE Country Wide, inclusive of interest | Rs.3,25,000. |
| Election expense (Araglur Panchayat Ward member) | Rs.1,20,000. |
| EMI paid to HSBC (22 receipts are available against 24 EMI) | Rs.1,91,350. |
| EMI paid to IDBI for 90 months each at Rs.8000/- per month | Rs.7,20,000. |
| Amount paid in S A No.23/2015 before DRT-1, Chennai | Rs.1,50,000. |
| Amount paid in DRAT, Chennai RA (S A)No.10/2018 | Rs.1,25,000. |
| Amount paid in bulk (6 receipts) | Rs.2,28,225. |
| Amount deposited in the account of the 1st defendant (3 receipts) | Rs.85,000. |
| DRT Court fee and counsels Fee for litigation | Rs.20,000. |
| DRAT Court fee and counsels Fee for litigation | Rs.20,000. |
| Civil Suit in O S No.10848/2010, including advocate fee | Rs.1,20,000. |
| Civil Suit in O S No.3464/2015 | Rs.15,000. |
| Civil Suit in O S No.4441/2015 | Rs.15,000. |
| RCOP No.1538/2011 and RCOP No.1513/2015 | Rs.20,000. |
| Rs.24,29,575. |
3.6.Admitting the relationship between the plaintiff and the first defendant, it is denied by the first defendant that he is residing with the concubine, whereas it is asserted that he married the second defendant with the consent of his first wife and out of this wedlock, two children were also born to them. It is also denied by the first defendant that the plaintiff has paid Rs.2,75,000/- at any point of time. The first defendant is the elder brother of the plaintiff and he was doing business in Tiruppur and Salem and therefore, the defendant entrusted the suit property with the plaintiff for letting it out to any prospective tenant and to collect the rent and remit the same towards the loan account maintained in the name of the first defendant. The plaintiff took advantage of the same and collected the lease amount but remitted it for the amount payable to the bank towards EMI on behalf of the first defendant. Therefore, the remittance of such payment cannot be the source to claim title to the property.
3.7.Further, it is his case that the plaintiff is in occupation and possession of the suit property from the date of its purchase till date. He has admitted that he has shifted the loan account from HSBC Ltd., to the IDBI Bank. It is his contention that the plaintiff had never paid any amount for closing the HSBC Bank loan account and it is the IDBI Bank which has paid the amount to HSBC Bank and got the loan cleared before taking over the loan. It is also denied by the first defendant that the plaintiff paid the EMIs for 90 months. It is also denied that the plaintiff has entered into an agreement for sale for Rs.12 lakhs. Further, the plaintiff cannot claim any adverse possession as he was only maintaining the property on behalf of the first defendant. The suit filed by the plaintiff seeking for specific performance on the basis of the alleged agreement of sale was dismissed. Therefore, the claim of ownership on the ground of adverse possession is unsustainable in law. Hence, the first defendant opposed the suit.
3.8.Based on the abovesaid pleadings, the followings issues were framed by the trial court in the suit filed by the plaintiff / appellant herein:
(i)Whether the plaintiff is the absolute owner in respect of the suit schedule property?
(ii)Whether the plaintiff has been in possession and enjoyment over the suit property?
(iii)Whether the plaintiff is entitled for the relief of declaration on the strength of adverse possession?
(iv)Whether the plaintiff is entitled to recover a sum of Rs.24,29,575/- along with subsequent interest from the defendants?
(v)Whether the defendants claim is barred by the plea of estoppel, in view of the judgment passed in OS No.10848 of 2010?
(vi)Whether the suit for declaration on the strength of adverse possession is maintainable?
(vii)To what other relief and for costs?
3.9.The other suit filed by the second defendant in O.S.No.6567 of 2019 was also tried together and joint trial was conducted and evidence was recorded in the suit filed by the plaintiff, namely the appellant herein. On the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.22 were marked. On the side of the defendants, D.Ws.1 and 2 were examined and Exs.B.1 to B.13 were marked.
3.10.The trial court on appreciation of the oral and documentary evidence dismissed the suit filed by the plaintiff / appellant herein, however decreed the suit filed by the second defendant for recovery of possession. As against the dismissal of the suit filed by the plaintiff / appellant herein and decree for recovery of possession, two appeals came to be filed. A.S.No.511 of 2022 has been filed against the dismissal of the suit filed by the plaintiff in O.S.No.2329 of 2018. Another appeal in A.S.No.512 of 2022 has been filed as against the decree for recovery of possession.
4. When both appeals came up for hearing on 14.07.2026, the learned counsel appearing for the appellants filed a common affidavit dated 14.07.2026 in A.S.No.512 of 2022 stating that the appellants therein have decided not to press the relief for recovery of possession and to pursue only the alternate prayer made in respect of damage claimed in the other Appeal, viz., A.S.No.511 of 2022 and thus sought time to vacate and handover possession of the suit property till 31.01.2027. The learned counsel for the respondent therein had also stated that they have no objection for disposing the appeal suit no.512 of 2022 on the basis of the affidavit of undertaking filed by the appellants. Therefore, this Court has disposed of the said appeal, namely A.S.No.512 of 2022 vide judgment dated 14.07.2026 and paragraph no.8 is relevant and the same reads as follows:
‘8.Accordingly, the Appeal Suit is disposed of in terms of the affidavit dated 14.07.2026. The said Affidavit shall form part of the decree. As pleaded by the learned counsel appearing for the appellants before us, the appellants are granted time till 31.01.2027 to vacate the suit property and handover vacant possession of the same to the respondent on or before 31.01.2017. It is made clear that, if the appellants commit any breach of undertaking given before us by way of an affidavit, the same would entitle the respondent to proceed against the appellants for committing contempt of Court. No costs. Consequently, connected miscellaneous Petitions are closed.’
5. Now, the learned counsel for the appellant herein / plaintiff in the present appeal would submit that the appellant is confining his appeal only in respect of the dismissal of the suit relating to recovery of money. According to him, admittedly, certain payments have been made by the plaintiff towards loan borrowed by the first defendant. Further, the first defendant has also not disputed about the payments of EMI by the plaintiff in his written statement. When there is a positive admission in the written statement with regard to the payments of EMI, the trial court ought to have at least decreed the suit for recovery of money. Though the appellant herein / plaintiff has given up the other reliefs in the suit, the trial court has not appreciated the documents, namely Exs.A.4 and A.6 which clinchingly established the payments made by the plaintiff. Further, it is admitted case that the appellant has also filed SARFAESI proceedings, moved DRT and DRAT, wherein also he has deposited some amounts. Though the amounts deposited by him before the DRAT has been repaid to him, the amount spent in DRT proceedings ought to have been returned to the plaintiff. The trial court has not properly appreciated the evidence.
6. The learned counsel appearing for the respondents/defendants would submit that the plaintiff being the brother was all along in occupation of the property without paying any rent and he had taken undue advantage of the relationship and tried to grab the property by filing various suits. Earlier, he had filed a suit in O.S.No.10848 of 2010 for enforcing the alleged agreement of sale said to have been executed by the first defendant. In the other suit also, similar plea has been raised with regard to the alleged payment. After full contest, the said suit was dismissed by the trial court holding that the plaintiff’s contention about the payment is not true. Further, the judgment and decree of the trial court became final and reached finality. Therefore, once again, in the present suit, the similar contention cannot be raised. The issue in the present suit is directly and substantially the issue in the former suit which has already been decided. Therefore, in the present suit, the same cannot be agitated. At any event, it is the contention that the plaintiff being the brother of the first defendant, he was collecting rents and has paid the same towards EMI payment to the bank. Therefore, that cannot be a ground to hold that the suit property is purchased out of the consideration paid by the plaintiff/ appellant herein. Therefore, the contention of the plaintiff cannot be countenanced. In fact, the plaintiff has to pay huge amount towards damages, whereas to avoid damages and also for recovery of possession, the present suit came to be filed. The trial court has rightly dismissed the same.
7. In the light of the above submissions, the points that arise for consideration in the present appeal are as follows:
(i)Whether the plaintiff has paid the consideration for the purchase of the property, if so whether the plaintiff is entitled to recovery of the said amount?
(ii)To what other reliefs, the parties are entitled to?
8. It is not in dispute that the suit property was originally purchased in the name of the first respondent/ first defendant who is the elder brother of the plaintiff. It is the case of the plaintiff/appellant herein that though the first defendant was close to the original owner, since the original owner was insisting to purchase the property in the name of the first defendant, only the plaintiff has paid the amount of Rs.2,75,000/- by cash earlier and later, he has also arranged for a loan from the bank and the plaintiff has paid the entire monthly installments and later, the loan has been changed to the IDBI Bank from HSBC Ltd. and that the loan was cleared by him. Therefore, according to the plaintiff, he is the real owner of the property. That apart, he has also sought the relief on the ground of adverse possession, besides claiming for recovery of amount of Rs.24,29,575/- on various heads.
9. Insofar as the relief of recovery of possession sought for in O.S.No.6567 of 2019, the same was given up in another appeal in A.S.No.512 of 2022, wherein the appellant herein/ plaintiff has agreed to vacate the premises within a period of six months. Therefore, the plea raised by the plaintiff with regard to the title has also reached finality and cannot be reopened. Now the appeal is argued only for the recovery of money. According to the plaintiff, he has paid amount in various installments to the bank and that apart, he has also paid cash at the very beginning at the time of purchase of the property.
10. When the evidence of P.W.1 is perused, it shows that there is no evidence that the plaintiff has parted with Rs.2,75,000/- earlier. Further, absolutely there is no evidence to show that he has availed loan for a sum of R.3,25,000/-. Further, we are unable to comprehend as to how the election expenses said to have been incurred by the plaintiff will be considered as the consideration for the property. The plaintiff has mainly relied upon Ex.A.2 series bank receipts for alleged payments. The bank receipts are for monthly installments from 2002 to 2004, whereas it is the contention on the side of the defendants that the plaintiff being the brother of the first defendant, he was incharge of the building and he was collecting rents from various third parties. Out of the rents collected, the plaintiff had been paying that amount to the bank. It is also pleaded that since the plaintiff had paid the amount, the first defendant had also agreed to execute the sale deed and had entered into a contract to sell the suit property which resulted in filing a suit in O.S.No.10848 of 2010. It is relevant to note that the certified copy of the judgment and decree passed in O.S.No.10848 of 2010 was also filed. A perusal of the said judgment and decree shows that similar contention was already raised in the said suit by the present appellant. In the earlier suit, the present contentions were also raised. Though there was no specific issue with regard to the payment, but the trial court in the said judgment has clearly discussed the contentions of the parties and pleadings and in fact had disbelieved the case of the plaintiff. Therefore, the findings recorded based on the pleadings of the parties and the trial court disbelieving the contention of the plaintiff that the plaintiff has paid the entire amount towards the sale consideration, is binding on the appellant/plaintiff and it would amount to estoppel. Therefore, the plaintiff, once again, cannot urge the same plea in a different suit. The very pleadings of the parties makes it clear that the plaintiff, who is in possession of the property from the year 2009 and some how or the other, tried to protect his possession by filing various suits. In fact, he had also filed one suit for permanent injunction not only against the defendants but also against the bank in O.S.No.3464 of 2015, that suit was rejected.
11. Even in the present suit, having admitted in his evidence that he has come into possession of the property only in the year 2009, the plaintiff has set up a plea of adverse possession in a suit filed in the year 2018. In the earlier suit filed for the relief of specific performance, the issue with regard to the alleged payment towards sale consideration was also discussed elaborately and in fact, the trial court has disbelieved the contention of the plaintiff, be that as it may. Now, as stated above, the plaintiff has claimed amounts under various heads. Except Exs.A.2, A.4 and A6, there are no other documents to show that the plaintiff has also paid such amount, whereas the specific contention of the defendants that the plaintiff was in possession and he was collecting rents on behalf of the defendant and out of the rental income, the plaintiff was paying some installments. It is relevant to note that the very plaint itself clearly shows that even assuming that the plaintiff has made some payment and it is in the nature of recovery of the amount, Ex.A.2 shows that some installments have been paid from the year 2002 to 2004.
12. It is admitted case of the plaintiff in his pleadings that he has paid EMIs from 2002 to June, 2004 for HSBC Bank. In such a case, we are of the view that the suit for recovery of that amount ought to have been filed within a period of three years. Further, it is the specific pleading in paragraph 16 of the plaint that he has paid EMIs from July 2004 to December 2013. Even assuming that he has made some EMI payments, such amount ought to have been recovered within a period of three years. Whereas the suit has been filed only in the year 2018 but the same should have been filed within December, 2016. The suit has been filed on 03.04.2018. Further, though Ex.A.6 shows that some amount had been deposited in the name of the first defendant in Canara Bank, absolutely there is no mention in the receipts who has deposited the amount. It is not the case of the plaintiff that he has paid any installment to Canara Bank, whereas the Canara Bank account is a different account of the first defendant and absolutely there is no pleadings and evidence as to under what circumstance, such amount has been paid. Therefore, merely because the plaintiff has filed some proceedings before the DRT and DRAT to protect his possession in SARFAESI proceedings, now he cannot claim that amount as damages.
13. It is also relevant to note that the loan has been changed from the HSBC Ltd. by the first defendant to the IDBI Bank and the entire amount has been settled by the first defendant with the IDBI Bank which was also established on record and the documents were also handed over to the first defendant. Such being the position, when the plaintiff having set up the title to the property and set up the plea of benami initially, later claimed adverse possession and also filed a suit for specific performance to enforce the so-called alleged contract by his brother, now he tried to recover Rs.24,29,575/- without any substance. It is the admitted case that the plaintiff was in possession from 2009 and no amount whatsoever has been paid towards the rental also by himself. The plaintiff, in fact, by filing suit one after the other, is trying to take undue advantage based on his possession in respect of the property owned by his brother, namely the first defendant. Hence, as already stated, even any payment said to have been made under Exs.A.2, A.4 and A.6, is clearly barred by limitation and the same cannot be enforced. As far as Ex.A.6 is concerned, the same is not established as to under what circumstance, the amounts have been deposited in the Canara Bank. Accordingly, the points are answered.
14. In the light of the above findings and reasonings, we do not find any merit in this appeal. This appeal suit is dismissed confirming the judgment and decree passed by the trial court in O.S.No.2329 of 2018, dated 30.11.2021. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.