Madras HC will not demand a 1928 sale certificate, and upholds title to 11 cents after 22 years

Justice V. Lakshminarayanan dismissed a second appeal over land near Sirkali, holding that a title claim added in 2016 relates back to the 2004 suit, that Section 105 of the CPC could not rescue an unpleaded objection, and that the defendants’ papers did not add up.

A suit filed in October 2004 to stop interference with 11 cents of land at Allivillagam, near Sirkali, was decided on 11 November 2026. The Madras High Court dismissed the defendants’ second appeal and refused to treat the missing sale certificate of a 1928 court auction as a hole in the plaintiff’s title.

Justice V. Lakshminarayanan said it would be unfair to expect a party to produce, in 2026, a document from nearly a century earlier. He confirmed the decrees of both courts below.

From an injunction to a title suit

Chandrasekaran sued in O.S. No. 321 of 2004 before the District Munsif, Sirkali, for a permanent injunction. He said he bought the land on 6 June 2000 from Kalimuthu Ammal and her son Nagarajan, and that a rectification deed of 16 September 2004 fixed a boundary error.

The defendants, who include Shanmugam, denied his title and set up a partition of 1947 and a later partition of 1976. The trial court decreed the suit in 2008 and the first appeal failed.

In S.A. No. 678 of 2009, decided on 2 November 2015, the High Court held that because the defendants disputed title to four cents, an injunction alone would not do. It sent the case back and let the plaintiff amend the plaint to seek a declaration of title as well.

The trial court allowed the amendment on 13 June 2016. After trial, with the plaintiff marking Exhibits A1 to A16 and the defendants B1 to B16, it decreed the suit on 4 February 2017, and the Additional Subordinate Judge, Mayiladuthurai, dismissed the appeal on 7 October 2017.

Five questions of law

The High Court admitted the second appeal on 19 February 2018 on five substantial questions of law. The first read:

“Whether the cause of action for the relief of declaration arose when the defendants denied the plaintiff’s title and set up title in them in their written statement filed in 2004, whether the relief of declaration sought for after 12 years is not barred by limitation?” (para 13)

The others turned on the plaintiff’s parent deed of 1928 and whether title passes without a sale certificate.

What each side argued

Mr A. Muthukumar, for the defendants, said the plaintiff relied on a sale certificate that was never produced, so possession could not be shown to have passed. He added that no revenue record stood in the plaintiff’s name and that the defendants’ partition deed and patta (Exhibit B12) showed possession.

On limitation, he said the defendants denied title in a written statement of December 2004, so an amendment in 2016 was hopelessly late. Section 105 of the CPC, he argued, let him attack the amendment order in an appeal against the decree.

He also argued, citing Corporation of Madras v. M. Parthasarathy, that the first appellate court should have remanded after allowing an Order XLI Rule 27 application.

Mr B. Jawahar, for Chandrasekaran, said title was proved from 1928 and that the defendants’ documents gave inconsistent extents. He added that no ground in either appeal attacked the amendment order, and that the declaration related back to the plaint of October 2004.

Section 105 is not a hide-and-seek provision

The court held that Section 105(1) lets a party challenge an interlocutory order such as an amendment after the decree, but only by setting out the error as a ground of objection in the memorandum of appeal. The defendants did not do so in A.S. No. 20 of 2017 or in the second appeal.

Respondents receive the grounds with the summons, the court noted, and may take an unchallenged order as accepted. Section 105(1), it said, is not a “hide and seek” provision, and the plea was rejected.

It added that the 2015 judgment had expressly given the plaintiff liberty to amend, and that the defendants had not taken that order to the Supreme Court. The trial judge was bound by it.

The amendment relates back to 2004

An amendment, once allowed, is treated as made when the plaint was presented. The court cited Sampath Kumar v. Ayyakannu for the point that a court may order otherwise, though only in appropriate cases.

The trial court had allowed the amendment without any such limit. So the claim for declaration dated from 4 October 2004, not 13 June 2016.

Nor was the 2004 suit itself late. The plaintiff bought in 2000, the defendants allegedly interfered on 17 August 2004, and he sued soon afterwards, well inside the 12-year period.

A 1928 deed and no certificate

The plaintiff’s earliest title is Exhibit A14, a registered sale deed of 26 October 1928 by Sabapathy Pillai, who had bought the land in a court auction in S.C. 1296/1926. The defendants said no sale certificate had been issued to him.

The court called this unfair, since no one in 1928 could have expected a stranger to ask for the certificate 98 years later. It also read the deed’s wording as showing that a certificate existed and that a copy would be obtained at the purchaser’s cost.

The court found an unbroken chain of documents over more than 75 years: a release deed of 1951 (A15), a settlement of 1953 (A2) and the sale deed to the plaintiff (A1). The 1928 deed was subject to a mortgage of 28 April 1918, which the defendants themselves proved as Exhibit B14.

Why the defendants’ documents failed

The defendants’ partition deed (B1) showed six cents in the survey number, the 1976 deed (B13) four, and a document filed in the first appeal three. They never explained how the share grew and shrank, and produced no title deed for the grandfather’s purchase.

The court also found that the schedule in B13 did not tally with the defendants’ own rough sketch. By contrast, the plaintiff’s deeds A14, A15, A2 and A1 all showed 11 cents.

The patta, a joint one for the whole 11 cents in the names of the first and third defendants, had no link to any registered document of theirs. Mutation, the court noted from Prahlad Pradhan v. Sonu Kumhar, neither gives nor takes away title.

Precedents the appellants cited

In Pattam Khader Khan v. Pattam Sardar Khan, the Supreme Court treated a sale certificate as a ministerial act that evidences a title already perfected. Using it to argue that a missing certificate defeats the buyer, the court said, misreads the case.

Parthasarathy protects a party from being taken by surprise by fresh appellate evidence. Here the defendants themselves filed the Order XLI Rule 27 application and obtained the order, so any grievance was the respondent’s. The appellate court should have followed Order XLI Rule 28, the court said, but the 1929 document covered only three cents and made no difference.

Order

The substantial questions of law were answered against the appellants and the second appeal was dismissed. The judgment and decree in A.S. No. 20 of 2017 and in O.S. No. 321 of 2004 were confirmed.

The respondent is entitled to costs in the appeal, and the connected miscellaneous petition, CMP No. 2784 of 2018, was closed.