Vikramarajan P v. Asok Kumar, Malini S., Sudhikumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942** ## **RFA.No.536 OF 2013** **AGAINST THE JUDGMENT AND DECREE IN OS 1285/2010 OF II ADDITIONAL SUB COURT,TRIVANDRUM, DTD 7.6.2013** **APPELLANT/PLAINTIFF: VIKRAMARAJAN P AGED 60 YEARS S/O.PADMANABHAN, T.C.30/895, V.R.HOUSE, KANNAVILA ROAD, PETTAH, THIRUVANANTHAPURAM. BY ADVS. SRI.P.B.SAHASRANAMAN SRI.V.FRANCIS SRI.T.S.HARIKUMAR** ## **RESPONDENTS/DEFENDANTS:** |**1**|**ASOK KUMAR**| |---|---| ||**AGED 58 YEARS**| ||**S/O.PADMANABHAN, PADMAVILASOM KAVARADI ROAD,**| ||**PETTAH, THIRUVANANTHAPURAM, PIN-695001.**| |**2**|**MALINI S.**| ||**AGED 33 YEARS**| ||**PADMAVILASOM,KAVARADI ROAD, PETTAH,**| ||**THIRUVANANTHAPURAM, PIN-695001.**| |**3**|**SUDHIKUMAR**| ||**AGED 49 YEARS**| ||**S/O.SIVADASAN, T.C.36/303, DAS COTTAGE, PETTAH,**| ||**THIRUVANANTHAPURAM, PIN-695001.**| ||**R3 BY ADV. SRI.P.B.KRISHNAN**| ||**R3 BY ADV. SRI.P.M.NEELAKANDAN**| ||**R3 BY ADV. SRI.P.B.SUBRAMANYAN**| ||**R3 BY ADV. SRI.SABU GEORGE**| ||**R3 BY ADV. SRI.MANU VYASAN PETER**| |**THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON**|| |**18.09.2020,**|**THE COURT ON 22.09.2020 DELIVERED THE FOLLOWING:**| **R.F.A.No.536 of 2013** ## **:-2-:** **Dated this the 22[nd] day of September, 2020** ## **J U D G M E N T** Suit for pre-emption of plaint B schedule property in O.S.No.1285/2010 was dismissed by the learned Second Additional Sub Judge, Thiruvananthapuram. Consequential reliefs in respect of plaint B schedule, claiming declaration of Ext.A4 settlement deed and Ext.A5 sale deed and permanent injunction as regards plaint A schedule property were also dismissed. Being aggrieved by the dismissal, the plaintiff has filed this appeal. 2. Plaintiff is the owner of plaint A schedule 1.35 cents and a part of the common building therein which is D schedule to Ext.A1 Will dated 21.5.1990 executed by his mother. Plaint B schedule is the E schedule situated to the immediate east of D schedule measuring 1.35 cents and the remaining ## **R.F.A.No.536 of 2013** ## **:-3-:** part of the building was allotted to the first defendant who is plaintiff's brother under the same Will. The D schedule was gifted by first defendant in favour of his daughter/second defendant as per Ext.A4 settlement deed dated 22.11.2004. It is from the second defendant, the contesting third defendant purchased plaint B schedule under Ext.A5 settlement deed dated 22.1.2005. 3. There is a clause in Ext.A1 Will which restrained the holders of D and E schedule from selling the properties to third parties. It was provided that if sale of these items was needed, it shall be limited only to the respective holders alone and in any event, sale to any third party was necessary, it could be effected only with the mutual consent of both schedule holders. 4. According to the plaintiff, Exts.A4 and A5 were executed in breach of the aforesaid clause of ## **R.F.A.No.536 of 2013** ## **:-4-:** pre-emption and therefore are null and void. It is stated that plaintiff was ready and willing to purchase plaint B schedule from first and second defendants but it was sold to third defendant behind his back and therefore he seeks to enforce the right of pre-emption and declare the transfers as void, invoking the clause in respect of plaint B schedule. It is stated that on 2.6.2007, he noticed third defendant coming to the property and trying to pull down the common roof of the building in a manner affecting the safety of the building in the plaint A schedule and immediately thereafter he filed the suit for pre-emption and declaring the transfers as void and also for prohibitory injunction against the third defendant from interfering with his enjoyment of plaint A schedule. 5. Defendants 1 and 2 did not contest the suit ## **R.F.A.No.536 of 2013** ## **:-5-:** presumably because they did not have any subsisting interests in plaint B schedule property. 6. The third defendant filed original and additional written statements contending that the suit was collusive between the plaintiff and defendants 1 and 2. He questioned the validity of the clause in the Will and contended that it offended Section 10 of the Transfer of Property Act, 1882. According to him, he took Ext.A5 sale deed from second defendant with the knowledge of the plaintiff and therefore the latter was estopped from questioning the validity of transfer. He also stated that as the absolute owner of the plaint B schedule property, he had every right to repair the roof of the building in his occupation and the plaintiff did not have any right to prevent his activities. It was also stated that the building portion in plaint B schedule is having independent ## **R.F.A.No.536 of 2013** ## **:-6-:** roof partitioned by a common wall. It was also strenuously contended that suit not having been brought within one year as provided by Art. 97 of the Indian Limitation Act, 1963, (for short, 'the Act, 1963'), the suit is hopelessly barred by limitation. 7. The trial court framed necessary issues and dealt with various contentions raised by parties based on facts, evidence and law and passed an elaborate judgment. 8. On the side of the plaintiff, Exts.A1 to A17 were tendered in evidence and PWs.1 to 3 were examined. PW1 is the appellant. On the side of the third defendant, Exts.B1 to B4 were tendered in evidence. DW1 is the third respondent in this appeal. Besides these items of evidence, Exts.X1 to X5 and C1 to C4 were also received in evidence. 9. The trial court accepted the plea of the ## **R.F.A.No.536 of 2013** ## **:-7-:** third respondent that suit was barred as it was not brought within the stipulated period of one year from the date on which the physical possession was taken by the vendee. The lower court considered the right of pre-emption as being a weak remedy and upheld Exts.A4 and A5 transfers as valid. Refusing all the reliefs claimed by the appellant, it was held that third respondent being the absolute owner of plaint B schedule taken under a valid sale deed, he has every right to go ahead with constructions of roof of the building portion. 10. The learned counsel for the appellant assailed the findings of the court below and contended that the entire judgment is vitiated by wrong understanding facts, evidence and law. He contended that the suit was brought within one year from the date on which third respondent entered into physical possession and the evidence tendered ## **R.F.A.No.536 of 2013** ## **:-8-:** by the appellant in this respect was not considered in proper perspective. It was contended that the court below misread the evidence of PW1, the appellant, and taking some of the answers as admissions made by him, came to a wrong conclusion on the question of limitation. 11. On the other hand, the learned counsel for the third respondent drawing my attention to the pleadings in the plaint as well as the testimonies of PW1 and DW1 contended that the court below came to right conclusion as to the question of limitation and the impugned judgment and decree did not warrant any interference in the above matter. With regard to the need for making averments necessary for invoking Article 97, the learned counsel for the third respondent relied on _**George v. Koshy**_ [2001(3) KLT 122] and _**Ramesh Chand Gupta and Others v. Kanwar Sen and Another**_ [AIR 1985 ## **R.F.A.No.536 of 2013** ## **:-9-:** Delhi 307]. 12. The contention taken by the third respondent in the written statement that preemption clause in Ext.A1 Will is void and hit by Section 10 of the TP Act does not appear to be sound on facts and law. Section 10 deals only with partial restraint on power of alienation vested in a property owner. What is rendered void by law is a clause in a deed which absolutely prohibits transfer of property. The prohibition made as per the clause in the Will was limited only to sale to third parties. The clause, however, relaxed the prohibition and permitted sale to third parties with mutual consensus of the plaint D and E schedule holders provided sale between them was rendered impossible. Therefore the contention that the clause is hit by Section 10 of the TP Act cannot succeed at all. ## **:-10-:** 13. Ext.A4 gift deed in favour of second defendant is not a sale and therefore, the transfer cannot be said to be hit by the pre-emption clause. For this reason itself, the validity of Ext.A4 is unassailable and finding rendered by the court below in this respect is not liable to be interfered with. 14. Right of pre-emption is a legal obligation annexed to ownership of the land and must therefore be deemed to run with the land. That means the third respondent could not have taken Ext.A5 sale deed in his name disregarding the pre-emption clause which is binding on E schedule to the Will. Therefore once it is found that the suit brought by the appellant is within the time stipulated by Art. 97 of the Act, 1963, he could succeed in his suit claim. The proposition of law adverted to by the learned trial Judge in the impugned judgment that ## **R.F.A.No.536 of 2013** ## **:-11-:** pre-emption is a weak remedy, in my opinion, is no reason to dismiss the suit if the court is otherwise satisfied that the suit claim was brought within time and no laches occurred on the part of the appellant in pursuit of the claim for preemption. 15. The primary as well as the material issue that requires to be addressed in the appeal is whether the suit is barred by limitation as contended by the third respondent. Under Art. 97 of the Act, 1963, the period of limitation prescribed for the suit is one year from the date on which the purchaser takes physical possession of whole or part of the property conveyed under the impugned sale deed. The commencement of one year may differ and operate from the date of registration of the impugned sale deed if the subject matter of sale is one which does not admit physical possession of the ## **R.F.A.No.536 of 2013** ## **:-12-:** property conveyed. In the case on hand, none of the parties has a case that plaint B schedule conveyed as per Ext.A5 is not capable admitting of physical possession. Therefore what is relevant is the date on which the purchaser under Ext.A5 entered into physical possession as stipulated by Art. 97. None of the Articles in the Act, 1963, other than Art.97 has any bearing on the facts of this case. 16. Ext.A5 was executed on 22.1.2005. The suit was filed on 6.6.2007. According to the appellant third respondent took physical possession of the property only on 2.6.2007 despite the deed having been executed on an early date and registered on 22.1.2005. This is very seriously disputed by the third respondent and according to him, he entered into physical possession on the date of the deed itself. 17. The learned counsel for the third ## **R.F.A.No.536 of 2013** ## **:-13-:** respondent submitted that there is no pleading in the plaint either to the effect that third respondent took possession of the property only 02.06.2007 or that any circumstances existed which prevented the vendee from taking possession on the same day itself. The submission made by the learned counsel appears to be correct. In paragraph 13 of the plaint which deals with the averment as to the cause of action for the suit, there is no mention as to the specific date on which the third respondent came into physical possession. The general statement made in paragraph 8 of the plaint that on 2.6.2007 the third respondent attempted to pull down the common roof of the building is too insufficient to constitute material pleading as to the date of taking of physical possession. The testimony given by the appellant also is in line with the plaint allegations and nothing has been ## **R.F.A.No.536 of 2013** ## **:-14-:** brought out through him also to substantiate that the third respondent entered into physical possession of the property only on 2.6.2007. In this context, the learned counsel for the appellant submitted that the written statement filed by the third respondent is also silent as to the definite date on which he came into physical possession and therefore requested the court to decide the issue on evidence otherwise than on the pleadings of the parties. 18. It is trite law that a person who claims to have brought a suit within time needs to make necessary and definite averment as to the foundational facts which constitute the cause of action and adduce evidence in proof of those facts. In the absence of definite pleading in the plaint as to the date on which the third respondent entered into physical possession, the contention ## **R.F.A.No.536 of 2013** ## **:-15-:** that the suit was brought within the period of limitation cannot be accepted. 19. The third respondent falls back upon the recitals in Ext.A5 as to delivery of physical possession of B schedule property to him and contends that nothing prevented him from taking physical possession from 22.01.2005. There is also nothing in the impugned sale deed showing that the possession of the vendee was postponed or rather withheld for any tangible reason. Therefore applying the normal presumption based on recitals in the deed, it must by all means be assumed that third respondent entered into physical possession of B schedule property on 22.01.2005 itself. The appellant does not have any case either in the plaint or in his oral evidence that there were any reasons which could have prevented the purchaser from taking physical possession on the date of the ## **R.F.A.No.536 of 2013** ## **:-16-:** deed itself against the normal presumption of transfer of physical possession. 20. It is an admitted fact that third respondent was conducting business in a bit of land closely adjacent to plaint B schedule. It has come out in evidence that he was looking for an opportunity to purchase the plaint B schedule property from the owners. The appellant has got a case that though he offered to purchase plaint B schedule as a person interested in the land, defendants 1 and 2 were not willing to sell for their own reasons. When these facts are taken due note of, it is presumably clear that there was nothing which could have prevented the third respondent from taking physical possession of the property purchased by him on 22.01.2005 itself. Added to this, there is oral evidence from DW1 asserting that he got direct possession of the ## **R.F.A.No.536 of 2013** ## **:-17-:** property on the date of Ext.A5 itself. 21. The lower court relied on Ext.A14 caveat dated 28.09.2006 lodged by the third respondent before court and also Ext.X5 complaint dated 15.10.2005 lodged by himself before S.I. of Police, Petta, as circumstances in support of the view that appellant got knowledge of third respondent's possession much before the date of the suit. The learned counsel for the appellant very much disputed that these documents were not capable of arousing any such circumstances against the appellant or in favour of the third respondent. In my opinion, even without going to Ext.A14 and Ext.X5, this appears to be a clear case where appellant failed to plead and prove that the third respondent got physical possession of property only on 2.6.2007 as against the normal presumption that the vendee got possession of B schedule property on ## **R.F.A.No.536 of 2013** ## **:-18-:** the date of the deed itself. 22. On going through the testimony of appellant, slight indications in his evidence suggest that he had sufficient knowledge about Ext.A5 sale deed within an year of the date of execution. Giving due regard to the fact that third respondent is an adjacent land owner, who was keeping an eye on plaint B schedule as a person interested to purchase the property since quite a long time, the normal presumption as to delivery of physical possession on 21.02.2005 enures to him with all force. This presumption could not be successfully rebutted by the appellant. I am satisfied on re-appreciating the entire facts, evidence and circumstances that the appellant failed in bringing the suit in time and the finding entered into by the court below dismissing the suit on the ground of limitation is therefore not worth ## **R.F.A.No.536 of 2013** **:-19-:** interfering. The impugned judgment is confirmed. In the result, appeal fails and it is dismissed. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR** **JUDGE** ami/