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TMI Blog2012 (7) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... property belonged to the defendants' trust and one Thirunavukkarasu, who is none else than the brother of Samikannu, was given permanent lease for 99 years in respect of 3 and 4-1/2 cents in S. No. 86L/2 by two registered lease deeds, dated 13.07.1978 and 02.02.1981, respectively, executed by the then trustee of the defendants trust and since then, Thirunavukkarasu has been in possession and enjoyment of the entire suit extent as lessee of the defendants trust and in the family partition, effected on 27.01.1992, between the plaintiff Samikannu and his brother Thirunavukkarasu, the suit property was allotted to the plaintiff and the plaintiff has been using the same as backyard for his multi-storied commercial complex and lodge situated on the east and north of the suit property by raising coconut trees and the same is sought to be interfered with by the defendants. 2. The suit relief is seriously opposed by the defendant trust, who is admittedly the owner of the property, by denying the genuineness and valid execution of Exs.A1 and A2, lease deeds and Ex.A3 family arrangement and the plaintiffs possession and enjoyment of the property in pursuance of the family arrangemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in O.S. No. 274 of 1995 in deciding the question of enjoyment of the suit property and decreed the suit as prayed for. Hence, this second appeal before this Court by the defendants. 7. This second appeal is admitted on the following substantial questions of law: (1) Whether the judgment and decree of the Court below is perverse on account of its misconstruction of documents Exs.A1 and A2? (2) Whether the findings of the Court below is erroneous on account of its failure to consider Exs.Al and A2 and in the light of Section 36 of Indian Trust Act and Section 23 of Indian Contract Act disabling the respondent from enforcing a lease agreement which is illegal? 8. At the time of argument, this Court framed the following additional substantial questions of law for the determination of the second appeal: (1) Whether the lower appellate Court is right in granting the equitable relief of permanent injunction on the basis of invalid transactions under Exhibits A1 and A2 and inadmissible document Exhibit A3? (2) Whether the lower appellate Court is right in relying upon the judgment in O.S. No. 274 of 1995 to decide the question of enjoyment even though the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arasu and the defence raised therein by the lessee and the total extent in respect of which the suit relief is sought for and the nature of interim injunction granted in favour of the defendant trust, appointment of Advocate Commissioner and his visit to the suit property and about report and plan filed by the Advocate Commissioner and the final outcome of the suit, which was subsequently dismissed and produced the documents relating to the proceedings as Exs.B2 to B5 and B8. 12. Both the courts below have also referred to the pleadings raised in the earlier suit O.S. No. 274 of 1995 and the documents relied upon by the parties and their identity in both the suits. Both the courts below thereafter, by relying upon the admission made by the defendants regarding outcome of the earlier suit and the findings based on which the earlier suit is disposed of, accepted the plaintiffs claim regarding original lease deeds executed in favour of Thirunavukkarasu and possession and enjoyment of Thirunavakkarasu on the strength of such lease deeds. The contesting defendants, having made specific admission about all material aspects in respect of earlier proceedings in O.S. 274 of 1995, are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special permission of the Reserve Bank, acquire or hold or transfer or dispose of by sale, mortgage, lease for a period not exceeding 5 years, gift, settlement or otherwise any immovable property situate in India. However, our High court in the judgment reported in (2011) 1 MLJ 674 (Sivaprakasam v, Ilangovan), following the judgment reported in (2001) 1 LW 161 (R. Sambasivam v. Thangavelu Dhanabagyam) has laid down that the transfer in contravention of provisions of Section 31 attracts only the penal provisions of Sections 50 and 56 of FERA Act and it will not have the effect of nullifying the transfer. It is categorically observed therein that even if there is a violation of provisions of FERA Act, it is for the concerned authorities to take action against the person concerned under the relevant provisions of the Act and it will not invalidate the transfer. Applying the same view to the facts of the present case, this court is inclined to hold that the permanent lease deeds executed in favour of Thirunavukkarasu by the defendant trust without the permission of Reserve Bank of India does not in any manner affect the validity of lease. 16. Regarding sanction of the lease by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for is objected to by the learned counsel for the plaintiff on the ground that the same can be looked into for collateral purpose to ascertain the nature of the plaintiffs possession and enjoyment of the suit property. It is also sought to be argued on the side of the plaintiff that even assuming it to be true that the plaintiff is in unlawful possession of the suit property and has no right to remain on the property, he cannot be dispossessed by the owner of the property, except by recourse to law. 19. The following authorities are relied upon by the learned counsel for the appellants/defendants and the plaintiff/respondent, in support of their respective contentions: On the side of the appellants/defendants : (i) 1996 (1) CTC 541 (Justice Ratnam, High court of Madras) (Rajamanickam and three others v. Elangovan and 4 others) (ii) AIR 1990 SC 1153 (Dina Ji and others v. Daddi and others) (iii) 2001 1 LW 257 (DB of High Court of Madras) (A.C. Lakshmipathy v. A.M. Chakrapani Reddiar and 5 others) and (iv) 2005 1 LW 343 (DB of our High Court) (R. Deivanai Ammal (Died) v. G. Meenakshi Ammal and others) On the side of the respondent/plaintiff: ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiffs possession and enjoyment of the suit property, based on which is the suit claim. Though the trial court has rightly found that the plaintiff failed to prove his possession, the lower appellate court has totally on an erroneous approach to the facts of the present case and on erroneous finding that the trial court recognises the plaintiff's possession and enjoyment of the suit property, but wrongly dismissed the suit, reversing the final verdict of the trial court. The finding of the lower appellate court that the plaintiff's possession and enjoyment of the property on the basis of the earlier suit in OS. No. 274 of 1995 is totally perverse, as the plaintiff's claim is based on no evidence and is by overlooking material factors. When the plaintiff failed to prove his possession, the ratio laid down in AIR 1989 SC 2097 (Krishna Ram Mahale (dead) by his LRs v. Shobha Venkat Rao) that he can be dispossessed only by recourse to law is not applicable to the facts of the present case. Viewing from any angle, the lower appellate Court has grossly erred in disagreeing with the finding of the trial court and in reversing the same in respect of the plaintiffs possession and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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