Madras High Court
Subbiah Thevar vs Esakki Ammal on 9 February, 2011
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/02/2011 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.838 of 2010 and M.P(MD)No.1 of 2010 Subbiah Thevar .. Appellants/Plaintiff vs 1.Esakki Ammal 2.Valliammal .. Respondents/Defendants PRAYER Second Appeal filed under Section 100 of Civil Procedure Code to set aside the judgement and decree dated 27.11.2009, made in A.S.No.43 of 1999, on the file of the Sub Court, Ambasamudram confirming the judgment and decree dated 31.07.1991 made in O.S.No.546 of 1987, on the file of the Additional District Munsif Court, Ambasamudram. !For Appellant ... Mr.S.Meenakshi Sundaram ^For Respondents... Mr.M.Vallinayagam :JUDGMENT
The plaintiff, who filed a suit for bare injunction before the trial Court and proved to be unsuccessful in his attempt both before the trial Court and before the lower appellate Court, has come forward with the present Second Appeal against the concurrent judgments of the Courts below.
2. The suit was filed by the appellant herein against the respondents herein contending that the suit property originally belonged to one Arunachalathammal, who was examined as P.W.2 on the side of the appellant herein/plaintiff and she executed a registered gift settlement deed on 12.06.1985 under Ex.A.1 in favour of her daughter Piramuraj Ammal, who was examined as P.W.3 and within two months thereafter, that is on 12.08.1985, P.W.3 Piramuraj Ammal executed a registered sale deed under Ex.A.2 in favour of the appellant herein/plaintiff; that from the said date, the plaintiff was in possession and enjoyment of the suit property; that the respondents/defendants wanted the appellant/plaintiff to sell the property to them, which was declined; that enraged by the same, the respondents /defendants attempted to interfere with the possession and enjoyment of the appellant/plaintiff in respect of the suit property and that the same drove the appellant /plaintiff to approach the Court for a decree of permanent injunction against the respondents/ defendants.
3. The suit was resisted by the respondents contending that neither the appellant/plaintiff nor their alleged predecessors in title were ever in possession and enjoyment of the suit property; that the documents Exs.A1 and A2 were brought into existence only for the purpose of staking claim to the suit property, since the said property was abutting the property of the appellant/plaintiff and that the said documents were brought into existence for the purpose of filing the suit. It was also contended by the respondents/defendants that the suit property originally belonged to the family of one Seeni Thevar and in a partition that took place between Seeni Thevar and his brother, the same went to the share of Seeni Thevar; that Seeni Thevar sold it under an unregistered sale deed dated 30.07.2009 in favour of Muthiah Tehvar S/o. Subbiah Thevar; that from the date of Ex.B.1, the said Muthiah Thevar was in possession and enjoyment of the suit property; that after the death of Muthiah Thevar, who was the paternal grant father of the second defendant and father-in-law of the first defendant, by way of succession they got the suit property and are enjoying the same to the knowledge of every body including the appellant/plaintiff; that meanwhile the appellant/plaintiff made an attempt to interfere with their possession and enjoyment and hence, the first defendant's husband issued notice to the appellant/ plaintiff for which no reply was received; that since the attempt of the plaintiff continued even thereafter, a complaint was lodged with Kallidaikurichi Police, based on which the appellant/plaintiff was warned by the police and that under such circumstances alone the appellant/plaintiff has come forward with the frivolous suit for the relief of permanent injunction.
4.The trial Court framed necessary issues as to:
1.Whether the plaintiff is in possession and enjoyment of the suit property?
2.Whether the plaintiff is entitled to the relief of permanent injunction? and
3.To what other reliefs the plaintiff was entitled?
and tried the suit.
5. In the trial, the appellant/plaintiff was examined as P.W.1. The above said Arunachalathammal was examined as P.W.2. Her daughter Piramurajammal, who is the vendor under Ex.A.2 - sale deed in favour of the plaintiff was examined as P.W.3 and one Chellappa Thevar was examined as P.W.4. Exs.A.1 and A.2 referred to above were the two documents produced on the side of the appellant/plaintiff. Besides examining the first respondent/first defendant as D.W.1 and producing the unregistered sale deed dated 30.07.2009 as Ex.B.1, the respondents/defendants have also examined the scribe of Ex.B.1 as D.W.2.
6. After the recording of evidence on both sides was over, the learned trial judge heard the arguments advanced on both sides, considered the pleadings and evidence adduced on both sides and upon such consideration, came to the conclusion that the plaint averment that the appellant/plaintiff was in possession and enjoyment of the suit property was not proved and that on the other hand the respondents herein/ defendants were in possession and enjoyment of the suit property. Based on the said finding, the learned trial Judge non suited the appellant/plaintiff for the reliefs of declaration and permanent injunction and accordingly dismissed the suit with costs by the judgment and decree of the trial Court dated 31.07.1991. As against the judgment and decree made by the trial Court, the appellant/plaintiff preferred an appeal on the file of the lower appellate Court, namely the Sub Court, Ambasamuthiram in A.S.No.43 of 1999. The learned Subordinate Judge, after hearing the appeal concurred with the findings of the trial Court and dismissed the appeal without costs by judgment and decree dated 27.11.2009.
7. As against the concurrent findings of the Courts below, the appellant herein/plaintiff has come forward with the present Second Appeal on various grounds set out in the memorandum of Second Appeal.
8. The arguments advanced by Mr.S.Meenakshi Sundaram, learned counsel for the appellant were heard. The copies of the judgments of the Courts below and the decrees drawn there from and other documents produced in the form of typed set of papers were perused.
9. Upon such a perusal, this Court comes to the conclusion that there is no ground made out for interference with the concurrent judgments of the Courts below. There is no substantial question of law involved in this Second Appeal. The finding regarding possession of the suit property was rendered by the trial Court based on appreciation of evidence. The learned first appellate Judge also gave a concurrent finding regarding possession after reconsidering and reappreciating the evidence as he is supposed to do. The said finding of fact rendered by the first appellate Court, concurring with the view of the trial Court, being one on factual issue cannot be interfered with in the Second Appeal as the power of the High Court to entertain an appeal against the appellate decree is limited to cases wherein substantial questions of law are involved. However, finding of fact in exceptional cases may assume the character of a substantial question of law, if the same is claimed to be perverse.
10. "Whether the findings of the Courts below that the appellant/plaintiff was not able to prove his possession and on the other hand the probabilities of the case will show the respondents/defendants are in possession could be termed perverse?" is the question to be considered now.
11. The learned counsel for the appellant, pointing the fact that the appellant herein/plaintiff, besides examining himself as P.W.1, has chosen to examine three other persons as P.Ws.2 to 4, who are independent and disinterested witnesses, whereas excepting the interesting testimony of D.W.1, there is no other evidence adduced through an independent witness on the side of the respondents herein/ defendant. In this regard it is pertinent to note that P.Ws.2 and 3 cannot be termed independent and disinterested witnesses. P.W.2 is projected to be original owner of the suit property. P.W.3, who is none other than daughter of P.W.2, is said to have got the property by way of a gift under Ex.A.1 and conveyed the same to the appellant/plaintiff under Ex.A.2. The contention of the respondents/defendants is to the effect that those two documents were created only for the purpose of staking claim for the suit property. When that is so, the testimonies of P.Ws.2 and 3 should be approached with caution. Apart from that, there is an admission made by P.W.2 herself that since the plaintiff was the owner of the adjacent land, the plaintiff wanted a document to be executed by P.W.2 and that since there was no previous parent deed, they adopted the device of executing Ex.A.1 gift settlement deed in favour of P.W.3 and then getting the sale deed -Ex.A.2 executed in favour of the appellant/plaintiff. It is quite obvious that excepting those two documents, no other document was filed by the appellant/plaintiff to prove the possession and enjoyment of the suit property by P.W.2-Arunachalathammal prior to 12.06.1985. No doubt it is also true that the respondents/defendants have also not produced any other document except Ex.B.1 to prove their possession. The above said admission made by P.W.2 assumes importance in such circumstances. Sensing trouble because of the admission made by P.W.2, the appellant/plaintiff wanted to nullify such an admission by examining P.W.3, who tried to show that her mother, namely P.W.1 had loss of memory and she would faint at any time, besides having loss of hearing and that the same were the reasons for making such admission. When such an evidence of P.W.3 was sought to be projected to nullify the admission made by P.W.2, the trial Judge recollected what happened when P.W.2 was in box in categorical terms. The learned trial Judge has stated that, realising P.W.2 was making admissions, the Court wanted to verify whether she had understood the implications of the question and after getting answers for that questions the Court was satisfied that she gave the answers after fully understanding the implications of the questions. The trial Court itself has found that the attempt made by the appellant/plaintiff to nullify the said admission made by P.W.2 was not fruitful. The learned first appellate Judge also considered the very same aspect in a proper perspective and arrived at the very same conclusion. The said finding cannot be termed either defective or infirm.
12. The next contention raised by the learned counsel for the appellant is that the respondents/ defendants have produced only one document Ex.B.1 and that the same is also an unregistered sale deed, which could have been created at any time antedating the same. Ex.B.1 is dated 30.07.1939. It has been written in two Annas stamp papers. The same was purchased on 27.07.1939. The document was written on 30.07.1939. The seal of the stamp department contains the date 14.05.1938. The scribe of Ex.B.1, who was 80 years as on the date on which he was examined as D.W.2. He has spoken in clear voice, that the said document was executed on 30.07.1939. He has also stated that the document did not need compulsory registration because, at that point of time sale of immovable property to the value not more that Rs.50/- need not be registered. The sale consideration and the value of the property quoted therein is only Rs.40/-. Therefore, the document is very much valid and admissible as a piece of evidence. We cannot now assume two stamp papers of the year 1938 would have been procured after 1985 to create a document to defeat the claim of the appellant/ plaintiff. The Courts below have approached the issue on proper lines and found that the said document was a genuine one and that in the light of the said document it should be held that the case of the respondents/ defendant would be more probable than the case of the appellant/plaintiff.
13. The Courts below have also concurrently held that Ex.A.1 was brought into existence as a preparation for staking claim to the suit property by getting Ex.A.2 executed in favour of the appellant/plaintiff. The Courts below have also referred to various admissions and arrived at a conclusion that neither P.W.2 nor P.W.3 could have been in possession and enjoyment of the suit property prior to the execution of the Exs.A.1 and A.2 respectively.
14. The learned counsel for the appellant made a feeble attempt to contend that the plaintiff, admittedly being the owner of the adjacent property, could have been in possession and enjoyment of the suit property also. If at all such an inference can be made, that shall be possible only after the date of Ex.A.2. There is no tangible evidence to show that prior to Ex.A.2 and subsequent to Ex.A.1, P.W.3 was in possession and enjoyment of the suit property. Similarly, there is no tangible evidence to show that P.W.2 was in possession and enjoyment of the suit property prior to the date of execution of Ex.A.1. All these aspects were taken into consideration by the Courts below and the Courts below have arrived at a correct conclusion that the appellant/plaintiff had miserably failed to prove his possession in respect of the suit property and on the other hand claim of possession and enjoyment made by the respondents/ defendants was more probable and that hence, the appellant/plaintiff was not entitled to the relief of permanent injunction sought for in the plaint. There is no defect or infirmity, much less perversity in the finding of the Courts below warranting interference by this Court in exercise of its power under Section 100 of C.P.C. to entertain an appeal against first appellate Court's decree and the appeal deserves to be dismissed.
15. Accordingly, the Second Appeal is dismissed. Consequently, connected M.P.(MD) No. 1 of 2010 is also dismissed. There shall no order as to costs.
sj To
1. The Subordinate Judge, Ambasamudram.
2. The District Munsif, Ambasamudram.