Madras High Court
Ariya Kshtriya Raja Kulavamsa vs A.Shanmugam on 20 April, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:20.04.2011
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.Nos.1973 of 2002
and
S.A.No.869 of 2009
and
M.P.No.1 of 2009
Ariya Kshtriya Raja Kulavamsa
Madalaya Nandavana Paripalana
Sangam represented by its
President :K.Kumar Raja ... Appellant in
S.A.No.1973 of 2002
C.T. Accepted vide as per order
of court dated 15.11.2002 made
in C.M.P.No.16468 of 2002 (KGPJ)
Tiruvannamalai Ariya Kshtriya Raja Kula
Nandavana Madalaya Paripalana
Sangam represented by its
President :Radhakrishnan ... Appellant in
S.A.No.869 of 2009
C.T. Accepted vide as per order
of court dated 06.08.2009 made
in M.P.No.1 of 2009 in
S.A.Sr.No.56553 of 2009
vs.
A.Shanmugam ... Respondent in both the
second appeals
S.A.No.1973 of 2002:
This second appeal has been filed against the judgement and decree dated 31.05.2002 passed by the learned Additional District Judge, Tiruvannamalai in A.S.No.94 of 2001 reversing the judgment and decree dated 17.08.2001 passed by the learned II Additional District Munsif, Tiruvannamalai in O.S.No.1143 of 1994.
S.A.No.869 of 2009:
This second appeal has been filed against the judgement and decree dated 03.04.2009 passed by the learned District Judge, Tiruvannamalai in A.S.No.19 of 2008 reversing the judgment and decree dated 18.09.2008 passed by the learned II Additional Subordinate Judge, Tiruvannamalai in O.S.No.239 of 2003.
For Appellant : Mr.R.Rajarajan
in both the S.As.
For Respondent : Mr.S.Parthasarathy, Senior counsel
in both the S.As. for Mr.J.Ramakrishnan
COMMON JUDGMENT
These two second appeals have been focussed by Ariya Kshtriya Raja Kulavamsa, Madalaya Nandavana Paripalana Sangam (hereinafter referred to as "Sangam" for short) against the occupant A.Shanmugam (hereinafter referred to as "occupant" for short) inveighing the judgement and decree dated 31.05.2002 passed by the learned Additional District Judge, Tiruvannamalai in A.S.No.94 of 2001 reversing the judgment and decree dated 17.08.2001 passed by the learned II Additional District Munsif, Tiruvannamalai in O.S.No.1143 of 1994 and the judgment and decree dated 03.04.2009 passed by the learned District Judge, Tiruvannamalai in A.S.No.19 of 2008 reversing the judgment and decree dated 18.09.2008 passed by the learned II Additional Subordinate Judge, Tiruvannamalai in O.S.No.239 of 2003 respectively.
2. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of these two second appeals would run thus:
A] The plaintiff/ occupant filed the suit O.S.No.1143 of 1994 seeking the following reliefs:
- to pass a decree and judgment declaring the title of the plaintiff to the suit property and to direct the defendant to deliver vacant possession of the same free of any obstruction and in default directing delivery through court and
- to direct the defendant to pay the plaintiff the costs of the suit.
(extracted as such)
(ii) Written statement was filed by the Sangam resisting the suit.
(iii) Whereupon issues were framed by the trial Court. During trial, the plaintiff examined himself as P.W.1 along with P.Ws.2 and 3 and marked Exs.A1 to A36. On the defendants' side, D1 examined himself as DW1 along with D.Ws.2 and 3 and marked Exs.B1 to B23.
(iv) Ultimately, the trial Court dismissed the suit. As against which appeal was filed by the plaintiff/occupant; whereupon the appellate court reversed the judgment and decree of the trial court and decreed the original suit.
(v) Being aggrieved by and dissatisfied with the same, the Sangam preferred Second Appeal No.1973 of 2002.
B] The plaintiff/ Sangam filed a separate suit in O.S.No.239 of 2003 seeking the following reliefs:
- to declare the title of the plaintiff to the suit property and to direct the defendant to deliver vacant peaceful possession of the same free of any obstruction and in default directing delivery through court and for costs.
(extracted as such)
(ii) Written statement was filed by the defendant/occupant resisting the suit.
(iii) Whereupon issues were framed by the trial Court. During trial, on behalf of the Sangam, P.Ws.1 to 4 were examined and Exs.A1 to Ex.A33 were marked. On the side of the defendant/occupant, he examined himself as DW1 and marked Exs.B1 to B42.
(iv) Ultimately, the trial Court decreed the suit. As against which appeal was filed by the defendant/occupant; whereupon the appellate court reversed the judgment and decree of the trial court and dismissed the original suit filed by the Sangam.
(v) Being aggrieved by and dissatisfied with the same, the Sangam preferred Second Appeal No.869 of 2003, suggesting the following substantial questions of law:
1. Is not the appellate court wrong in law by dismissing the suit without considering the continuous and consistent ownership exercised by the plaintiff community over the suit property which is borne out by Exs.A5, A6, A7, A16 to A18, A19, A24 and A25?
2. Whether the appellate court is correct in law by stating that the plaintiffs are not entitled for declaration in absence of production of original title deeds when the plaintiffs have discharged the burden of the proof on the basis of all the preponderances of probabilities of the case?
3. Is not the appellate court wrong in law in dismissing the suit for declaration and recovery of possession in view of the documentary evidence adduced on the side of the plaintiff to show the continuous exercise of ownership by the community ex facie and in absence of any evidence on the side of the defendant to show he is the owner of the property?
4. Is not the appellate court wrong in law by holding that the admitted fact of existence of the Silasana Stone is not proved though admitted by defendnt in Ex.A33?
5. Is not the appellate court wrong in holding the plaintiff society which is a registered society and a jurisdictional entity is not entitled to sue on behalf of the community?
(extracted as such) C] Whereas my learned predecessor, while admitting the second appeal, framed the following substantial question of law in S.A.No.1973 of 2002.
"Whether the lower appellate court is correct in arriving at the conclusion that the plaintiff is entitled to be in possession and he cannot be evicted except by due process of law"?
D] After hearing both sides, I am of the considered view that the following substantial questions of law should be framed relating to second appeal No.869 of 2009:
1. Whether the first appellate court was justified in reversing the judgment and decree of the trial court on the ground that the marking of Ex.A3, the certified registration copy of the conditional deed given to the Sangam by one Krishnasamy dated 20.11.1899 without producing the original was untenable?
2. Whether the first appellate court was justified in holding that the Sangam did not prove its title over the suit property ignoring the revenue records and the other oral and documentary evidence available on the side of the Sangam and without furnishing sufficient reasons for disagreeing with the trial court's finding?
3. Whether the first appellate court was justified in ignoring the evidence relating to the title adduced by the plaintiff on the ground that such evidence are not authentic?
4. Whether there is any perversity or illegality in the judgements and decrees passed by the first appellate court?
4. All these points are taken together for discussion as they are inter-linked and inter-woven with one another.
5. The learned counsel for the Sangam would put forth and set forth his arguments, which could briefly and succinctly be set out thus:
i) The first appellate court failed to take into account the documentary evidence, so to say, Ex.A3, Ex.A5, Ex.A6, Ex.A16 to Ex.A18, Ex.A19, Ex.A24 and Ex.A25 and also the oral evidence properly in deciding the lis.
ii) The present occupant's father was in occupation of the suit property as a permissive occupier under the Sangam as he was engaged as a watchman and after his death, his son, the present occupant continues to be in possession and because of that he cannot claim any exclusive right in himself and he cannot also challenge the title of the plaintiff under whom the occupant's father entered possession.
Accordingly he would pray for setting aside the judgments and decrees of the first appellate in A.S.No.19 of 2008 and A.S.No.94 of 2001.
6. In a bid to torpedo and pulverise and to take the edge off the arguments of the learned counsel for the Sangam, the learned Senior counsel for the occupant would put forth and set forth his arguments, which could tersely and briefly be set out thus:
a] The onus of proof is on the plaintiff Sangam to establish that it is the absolute owner of the suit property. The prayer in the suit filed by the Sangam is for declaration of title and for obtaining delivery of possession of the suit property and in such a case, the Sangam was expected to establish its title over it strictly in accordance with the law and mere preponderance of probabilities cannot be ushered in by the plaintiff so as to get such a declaration and recovery of possession of the suit property in its favour and as against the defendant/occupant.
b] The present Sangam even though claims to be a society registered under Tamil Nadu Societies Registration Act, 1975 (Act No.27/75) there is nothing to indicate that the suit property was acquired by it through any legal means.
C] The revenue records produced are all cooked up documents, which emerged subsequent to the filing of the earlier suit in O.S.No.1143 of 1994 by the occupant and those documents are having no probative force of their own; but the first appellate court, being the last court of facts decided the lis as against the Sangam and it is a settled proposition that if two views are possible, the High Court in Second Appeal would not interfere with the view of the lower appellate court.
D] There is no perversity or illegality in the decision rendered by the first appellate court, warranting any interference by this court.
Accordingly, he would pray for the dismissal of both the appeals.
7. I would like to fumigate my mind with the following principles as found enunciated and enshrined in the following decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL "24. . . .
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
The other decisions emerged in this regard are as under:
(i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
"19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread."
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL It is therefore crystal clear from the mere poring over and perusal of the aforesaid precedents that unless there is any perversity or illegality in the rendering of the finding of facts by both the courts below, the question of interfering by the High Court under Section 100 of the Code of Civil Procedure would not arise. Hence, it is just and necessary to see as to whether there is any perversity or illegality in the judgments rendered by the first appellate court in A.S.No.19 of 2008, which arose from the judgment and decree in O.S.No.239 of 2003 filed by the Sangam.
8. Ex.A3 is the certified registration copy of the conditional agreement dated 20.11.1899. At the time of marking the said document, there was no objection forthcoming from the side of the occupant/ defendant in the said suit. In this connection, my mind is reminiscent and redolent of the following decision of the Hon'ble Apex Court:
(2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus:
10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original).
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
Had at the time of marking Ex.A3, any objection been raised by the occupant, so to say, the defendant, then the plaintiff Sangam might have had the opportunity of satisfying the court about the dilapidated/worn out condition of the original document.
9. In connection with this point, the learned senior counsel for the occupant would submit that the method and manner in which the deposition was recorded in this case was far from satisfactory and not in compliance with the law. He would draw the attention of this court to the chief examination affidavits filed on the Sangam's side before the trial court and try to point out that the chief examination affidavits were as such taken as chief examinations without properly getting them verified from the deponents that they were their respective chief examination affidavits and the documents also were marked not in accordance with law.
10. I would like to point out that all these contentions were not raised before both the courts below and for the first time while putting forth the argument before this court, the learned senior counsel for the occupant has raised this point, which is not purely a question of law. Even now, no cross-appeal also was filed on that basis by the occupant. Fruitfully the decision of the Hon'ble Apex Court reported in 2010(7) SCC 717 [ Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak] could be referred to and an excerpt from it would run thus:
"24. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. ..........................."
Even then, in the interest of justice, I proceed to discuss the said point raised by the occupant.
11. Had this point been raised before the trial court itself, the trial court could have clarified the position as to what had actually happened before the trial court or would have to the satisfaction of the defendant also resorted to some remedial measures. Accepting the deposition of the witnesses as evidence in this matter, the occupant cross-examined those witnesses and proceeded with the case and submitted the arguments also. Whereupon, judgments were passed on merits; as against which, the aggrieved party preferred appeal and even in the appeal grounds, there was no whisper at all about the present contentions relating to the improper admission of chief examination affidavits as the depositions, etc.
12. I would like to call up and recollect that the procedures are hand-maids of justice. The punctilious of court procedures, should not come in the way of rendering justice. There are certain procedures and non-adherence to them would cut at the root of the genuineness or validity of the proceedings for which, it has to be seen as to whether, the relevant procedures are mandatory or directory. No doubt, the filng of the chief examination affidavits before the court is contemplated under Chapter XVIII of the Code of Civil Procedure. There might be some error on the part of the some of the members of the lower judiciary in entertaining such chief examination affidavits as chief examination depositions. The normal procedure should be that on the filing of the chief examination affidavit, the deponent should appear before the court and it should be read out to him by taking a cue from Order XIX Rules 1 and 2 of the Code of Civil Procedure, which run thus:
1. Power to order any point to be proved by affidavit Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
(emphasis supplied)
2. Power to order attendance of depondent for cross-examination
1. Upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent.
2. Such attendance shall be in court, unless the deponent is exempted from personal appearance inc ourt, or the court otherwise directs.
Whereupon, if he accepts all the versions therein as true, then it should be taken as such as the deposition in chief examination of that witness. Then the court has to give markings to the documents one after another. At that time, the party who is having any objection for marking should raise it. The court keeping in mind the dictum of the Hon'ble Apex Court reported in (2010) 8 SCC 423 cited supra should deal with the situation either by passing immediately or reserving the adjudication on the document to be made while passing the ultimate judgment to be passed. Some of the Judges are having the practice of giving exhibit number itself to the chief examination affidavit and thereafter proceed to give markings to the documents.
13. I am of the view that no separate markings need be given to the chief examination affidavit, but in all fairness, it should be read out and on the deponent accepting the contents, the same could be treated as deposition in chief examination.
14. In this case, unless it is shown that any prejudice has been caused because of the alleged non adherence to the procedures in entertaining the chief examination affidavit as deposition in chief by the trial court, the question of simply ignoring it at the second appellate stage would not arise at all.
15. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that if at the second appellate stage, any attack is levelled as against the procedure adopted by the trial court, then that impugned procedure should be a mandaotry one capable of cutting at the root of the very genuineness of the procedure. But, in this case, it is not so. Even before the trial court during argument stage or before the appellate court when the occupant preferred two appeals, he had not raised any such contentions; but, on the other hand, he had placed reliance on those chief examination affidavits and cross examined the witnesses in extenso and thereby he signified his assent to the chief examination affidavits as depositions in chief examination. In such a case, I am of the view that this court cannot be called upon to ignore such depositions, which are already available on record.
16. In view of the ratiocination adhered to by me above, the following decisions cited on the side of the occupant are not relevant to the facts and circumstances of this case.
1. AIR 2008 Bombay 81 [ Bank of India vs. M/s.Allibhoy Mohammed and others]
2. AIR 2003 Bom 371 [F.D.C.Ltd. vs. Federation of Medical Representatives Association India (FMRAI) and others]
3. 2004(1) SC 702 [ Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd.] Certain excerpts from it would run thus:
"31. .................. In other words, in the appealable cases though the examination in chief of a witness is permissible to be produced in the form of affidavit such affidavit cannot be ordered to form part of the evidence unless the deponent thereof enters the witness box and confirms that the contents of the affidavit are as per his say and the affidavit is under his signature and this statement being made on oath is to be recorded by following the procedure prescribed under Rule 5. In non-appealable cases, however, the affidavit in relation to examination-in-chief of a witness can be taken of record as forming part of the evidence by recording memorandum of production of such affidavit by taking resort to Rule 13 of Order 18. The cross examination of such deponent in case of appealable cases will have to be recorded by complying with the provisions of Rule 5, whereas in case of non-appealable cases the court would be empowered to exercise its power under Rule 13."
32. We agree with the view of the Bombay High Court.
33. The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross-examining him. The defendant would not be prejudiced in any manner whatsoever if the examination-in-cheif is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open court. There may be cases where a party may not feel the necessity of cross-examining a witness, examined or behalf of the other side. The time of the court would not be wasted in examining such witness in open court."
In the first cited Bombay decision, even before delivering the judgment, the Judge cautioned the plaintiff about the defect. In the two other precedents, even before the completion of the trial proceedings, the matters were taken to the higher forum. As such, there is nothing to discard the depositions in this matter at the second appellate stage in view of the ratiocination adhered to by me.
17. Ex.A3, is the certified registration copy of the conditional deed and as such it cannot be discarded on the reasons found set out in the first appellate court as though sufficient reasons were not given for the non-production of the original. The deposition of PW1 itself would amply make the point clear that the original document was of the year 1899 and the trial court proceedings went on during 2004 and in such a case, there is nothing to doubt the version of PW1 relating to the damaged condition of the original document, which itself was not available. However, the first appellate court misread and misunderstood the deposition of PW1 as though despite the availability of the damaged original document it was not produced. P.W1 clearly deposed that the damaged original document was not available. The first appellate court was not justified in dilating on the point that there was no proof to show that the original document was in damaged condition. It is ex facie and prima facie clear that such an old document could not be in decipherable shape after about 110 years and even that is not available. Lex non cogit ad impossibilia - The law does not compel the doing of impossibilities.
18. Ex.A3, is the certified copy of the registered document and such certified copy in the facts and circumstances of this case, is an authentic one and there is nothing to doubt about its authenticity. Certain excerpts from it would run thus:
@///////////// jhdpg;gho bghj;J uh$% Fkhuh;fshfpa fpc&zrhkp uh$% Kj;jpahY uh$%. FUta uh$%. ///////////////////////////////////////////////jpUtz;zhkiy fphpgpujc&dk; ngha; tUfpw nuhl;Lf;F fpHf;F brd;da eha;f;fd; tPjpf;F bjw;F tisay; fhu ehuhazrhkp ehaf;fd; tPl;Lf;F nkw;F fhj;jho uhkrhkp cla vd; tPl;Lf;Fk; /////////////////////////// fpHf;F nkw;F tltz;il gf;fk; mo 110 bjw;F tlf;F nkyz;il gf;fk; mo 56 fPHz;il gf;fk; bjw;F tlf;F mo 56 ,e;j mst[ gof;F ,Uf;Fk; goahd epyk; v';fspy; nky; fz;l jp/ KDrhkp uh$% jp/jpahfuha uh$%tpd; bghpa jfg;gdhwhfpa[k; ,we;J nghd Mhpa T&j;jphpa Fyk; rptkjk; bfsjk kfhpc&p nfhj;jpu!;jh;fshfpa Kj;jp ehaf;fUila brhe;j tPL kidahdJ mth; mDgtpj;J te;J mtUf;F gpd; ek;kpy; fpUc&;zrhkp uh$% Kj;jpahW uh$% tifawh mDgtj;jpy; te;jpUe;j tPLkidia v';fs; Kd;ndhh;fshfpa Kj;jp ehaf;fh; rhjhuz tU itahrp kP 31 c tPL kid epyj;ij jh;k rj;jpuk; fl;o ghpghydk; bra;J tUk; go xU cld;gof;if vGjp itj;jpUf;fpwhh;/ ////////////////// ic& cld;gof;ifapy; fz;l epykhdJ Rkhh; 43 tUc& fhykha; epyk; fhypahapUe;jgoahYk; mjw;F ntz;oa gzk; bryt[ bra;J jf;f Kaw;rp vLj;Jf; bfhz;L fl;Ltjw;F ek;kpl gj;J nghpy; fhhpa!;jh;fsha; ,Jtiuapy; Vw;glhjpjdhny nky;fz;l bgj;Juh$% Fkhuh; Kj;jpahY uh$% tifawht[k; jpUtz;zhkiy fpc&zrhkp uh$% Fkhuh; jpahfuha uh$% tifawht[k; ,th;fs; ,UtUk; ,e;j jh;k rj;jpuj;Jf;F gpof;fg;gl;l gzk; bryt[ bra;J ,e;jf; fl;llj;ij g{h;j;jpaha; fl;o ,jw;Fz;lhd rpyhrd //// tifawhf;fs; c';fs; ,Uth; nghpy; nghl;L Vw;ghL bra;J tpl;lhy; tugl;l gpui$fSf;F ek;kpl jh;krj;jpubkd;W tH';fp tUkhjyhy; mg;gof;fp eP';fs; ,UtUk; bra;J itf;Fk;goahd jh;kj;ij eh';fSk; rk;kjpj;J xg;g[f; bfhz;l goahy; ,J tpc&aj;jpy; ehkhtJ /////////////////////////////////////////// Vnfhgpj;J vGjpf; bfhz;l fz;oc&d; cld;gof;if ////////////////////////////@
19. The learned counsel for the Sangam placing reliance on the aforesaid excerpts would convincingly and that too with reference to the oral evidence available on record submit that the property originally belonged to one Muthu Naicker who dedicated that property for charitable purpose, so to say, for running choultry and to that effect, there is reference in Ex.A3. Even though the very document executed by Muthu Naicker was not produced, yet there is reference to it in Ex.A3, which itself is a very old document of 19th Century. The first appellate court misled itself by pondering over the point as to whether all the heirs of Muthu Naicker consented for such dedication etc.
20. In my considered opinion, such an approach on the part of the first appellate court in dwelling on all those points was totally untenable. Here the litigation is between the occupant and the Sangam and not between any of the legal heirs of Muthu Naicker and the Sangam,
21. My mind is reminiscent of the well settled proposition that preponderance of probabilities would govern the adjudication in civil cases. Whatever judgment that would be passed in this matter would be a judgment in personam and not a judgment in rem. This is not a case between the legal heirs of the said Muthu Naicker and the Sangam. On the one hand, the Sangam would contend that the property came into the hands of the Sangam, which alone is running the choultry and the occupant is only occupying a part of the choultry building and the remaining part of the choultry building is under the control of the Sangam. As such, preponderance of probabilities ought to have been considered as correctly considered by the trial court by the appellate court which misdirected itself without adhering to correct and legal approach in deciding the appeal.
22. The learned counsel for the Sangam also by inviting the attention of this court to Ex.A1, the certified copy of registration of the plaintiff Sangam as society under the Tamil Nadu Societies Registration Act, 1975 and Ex.A2 the bye-laws of the said society would submit that even in the bye-laws there is reference to the choultry, viz., the suit property herein and in such a case, the defendant cannot be heard to contend that he is having independent right and independently he is occupying the part of the choultry building while even as per his evidence the Sangam is having control over the rest of the choultry building.
23. I could understand, if there is a vast track of land and in a portion of that land, the occupant is cultivating certain crops etc. But this is a peculiar case, in which the choultry is run by the Sangam and in part of the choultry building alone, the occupant is residing. In such a case, the appellate court should have seen as to when the defendant had independently started occupying that portion. I would also like to refer to the relevant portion of the deposition of DW1, the occupant @ ////////////////////////////jhthr; brhj;jpy; tlfpHf;F gFjpapy; Fg;g[rhkp Kjypahh; thliff;F cs;shh; vd;why; ,Uf;fpwhh;////////////////////////////// jw;nghJk; Fg;g[rhkp jhthr;brhj;jpy; xU gFjpapy; cs;shh;/ mth; thjpfs; nghpy; jd;id gyhj;fhukhf btspnaw;wf;TlhJ jhd; thlifjhuh; vd;W khtl;l chpikapay; ePjpkd;wj; m/t/vz; 519-07 y; jhf;fy; bra;Js;shh;/ Fg;g[rhkp 30 tUl';fshf thlifjhuuhf ,Uf;fpwhh; vd;Wk;. 1994 y; gpuntrpj;jjhf bgha;ahf brhy;fpnwd; vd;why; rhpay;y/ jhth fl;olj;jpy; xU fy;btl;L ,Ue;jJ vd;why; fpilahJ/ ehd; jhf;fy; bra;j 1143-94 y; ehd; rhl;rpak; mspj;Js;nsd;/ mt;thW rhl;rpak; mspj;j nghJ rhrd fy; ,Ue;j tptuj;ij xg;g[f;bfhz;Ls;nsd; vd;why; rhpjhd;/ me;j rhl;rpa thf;FK:yj;jpd; rhd;wpl;l efy; jhd; fhz;gpf;fg;gl;lJ/ rk;ge;jg;gl;l gFjp th/rh/M.33 Mf Fwpaplg;gLfpwJ/ vd; jfg;gdhUf;F brhe;j Ch; jpUtz;zhkiy jhd;/ ehd; Vw;fdnt nghl;l tHf;fpy; vd; jfg;gdhh; ve;j mog;gilapy; jhth brhj;jpy; Fo ,Uf;fpwhh; vd;W brhy;ytpy;iy/ jhthr;brhj;jpy; xU miwia jw;nghJk; KDrhkp uh$h vd;gth; gl;o rhtp itj;Js;shh; vd;why; rhpay;y/ jhth fl;olk; vg;nghJ fl;lg;gl;lJ vd;W bjhpahJ/ Rkhh; 100 tUlj;jpw;F Kd;g[ fl;lg;gl;ljhf vd; jfg;gdhh; brhy;thh;/ jhth brhj;jpw;F efuhl;rp thptpjpg;g[ cz;L/ efuhl;rp thp tpjpg;g[ vd; jfg;gdhh; bgahpy; ,Ue;Js;sJ/ vd; bgahpy; ,y;iy/ vd; jfg;gdhh; bgahpy; ,Ue;j thp urPJfis ehd; ghh;j;Js;nsd;/ jhf;fy; bra;atpy;iy/ /////////////////////@ (emphasis supplied) As such, there is clear admission on the part of the occupant himself that there exists a choultry building and there are other tenants under the Sangam and in fact, one Kuppusamy, a tenant in a portion of the choultry building filed a suit as against the Sangam claiming that he was a tenant under the said Sangam and that he should not be dispossessed otherwise than in accordance with law and that itself is indicative of the fact that the choultry building is under the control of the society only. The trial court in its elaborate and reasoned judgment dealt with those aspects but the first appellate court without adhering to Order 41 Rule 31 of the Code of Civil Procedure simply reversed the findings of the trial court for no good reasons. It is also an admitted case by the occupant himself that his father was in occupation of the said property for a pretty long time and following his father's death, he had been in possession of the said property and his claim based on adverse possession was negatived concurrently by both the courts below.
24. The learned senior counsel for the occupant would contend that the occupant need not establish his right to occupy the suit property but he could resist the Sangam's attempt to evict him by filing this suit and in that process only, the occupant has challenged the title of the Sangam, which the Sangam is expected to establish clinchingly as per law. In this connection, he would cite the following decisions:
i) 1996 TLNJ 378 (SSSJ) of this court [K.M.A. Mohamed Ali Tharanganar vs Velu]. An excerpt from it would run thus:
"Learned counsel for the respondent also relied on the decision reported in A.I.R. 1962 Madras 149 (Alagi Alamelu v Ponniah Mudaliar) where this Court held that 'a person in wrongful possession of property is not entitled to be protected against the lawful owner by an order of injunction'. The legal presumption is correct and I accept the same. But, on facts that are proved in this case, plaintiff cannot be said to be a person in wrongful possession. As against the defendant, the plaintiff has got a better title and that is sufficient to discard his contention.
(emphasis supplied) This decision is not applicable to this case as it is not as though the plaintiff could not prove its title in this case.
ii) AIR 1968 SC 1165 [ Nair Service Society Ltd. vs. K.C.Alexander and others]. Certain excerpts from it would run thus:
"15. Mr. Nambiar also relies in this connection upon Section 110 of the Indian Evidence Act and claims that in the case of the Society there is a presumption of title. In other words, he relies upon the principle that possession follows title and that after expiry of 6 months, the plaintiff must prove title. That possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides. In this case Section 110 of the Evidence Act is immaterial because neither party had title. It is for this reason that Mr. Nambiar places a greater emphasis on the plea that a suit on bare possession cannot be maintained after the expiry of 6 months and that the Society has a right to plead jus tertii. The first must be held to be unsubstantial and the second is equally unfounded.
16. The proposition of law on the subject has been summed up by Salmond on Torts (13th Edn.) at page 172 in the following words:
"The mere de facto and wrongful possession of land is a valid title of right against all persons who cannot show a better title in themselves and is therefore sufficient to support an action of trespass against such persons. Just as a legal title to land without the possession of it is insufficient for this purpose, so conversely the possession of it without legal title is enough. In other words, no defendant in an action of trespass can plead to jus tertii-the right of possession outstanding in some third person-as against the fact of possession in the plaintiff." The maxim of law is adverses extraneous vitiose possession prodesse solet,* and if the plaintiff is in possession the jus tertii does not afford a defence. Salmond, however, goes on to say:
*Prior possession is a good title of ownership against all who cannot show a better.
But usually the plaintiff in an action of ejectment is not in possession: he relies upon his right to possession, unaccompanied by actual possession. In such a case he must recover by the strength of his own title, without any regard to the weakness of the defendants. The result, therefore, is that in action of ejectment the jus tertii is in practice a good defend. This is sometimes spoken of as the doctrine of Doe d. Carter v Barnard. (1849) 13 QB 945."
Salmond, however, makes two exceptions to this statement and the second he states thus:
"Probably, if the defendant's possession is wrongful as against the plaintiff, the plaintiff may succeed though he cannot show a good title: Doe d. Hughes v Dyball, (1829) 3 C. and P. 610 Davison v Gent., (1857) 1 H and N 744. But possession is prima facie evidence is not displaced by proof of title. If such prima facie evidence is not displaced by proof of title in a third person the plaintiff with prior possession will recover. So in (1865) 1 QB 1 where a man in closed waste land and died without having had 20 years' possession, the heir of his devisee was held entitled to recover it against a person who entered upon it without any title. This decision, although long, doubtful, may now be regarded as authoritative in consequence of its express recognition of the Judicial Committee in Perry v Clissold, 1907 AC 73."
Mr. Nambiar strongly relies upon the above exposition of the law and upon institutional comments by Wiren The Plea of jus tertii in ejectment" (1925) 41 LQR 139 Hargreaves "Terminology and Title in Ejectment" (1940) 56 LQR 376 and Holdsworth's article in (1940) 56 LQR 479. "
(emphasis supplied)
iii) AIR 2004 SC 4609 [ Rame Gowda (D) by L.Rs. vs. M.Varadappa Naidu (D) by L.Rs and another] "8. It is thus clear that so far as the Indian Law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation). If the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character or recurring, intermittent, stray or casual in nature or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. .........."
The aforesaid two decisions, in fact, supports the case of the plaintiff who proved its better title as against the defendant.
25. A mere perusal of those precedents would exemplify and demonstrate that no doubt the onus of proof is on the plaintiff to prove his case. I recollect and call up the maxims-
Affirmantis est probare [He who affirms must prove]
(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.
26. The aforesaid decisions would also highlight as to what amount of evidence is required to prove the title of the plaintiff in a particular case and that it differs from case to case. There is no hard and fast rule that a specific quantum of evidence is necessary to prove the title as against the defendant. As has been held supra by me, if the dispute is between the legal heirs of Muthu Naicker and the Sangam, then the approach would be different. But here the litigation is between the Sangam who claims to be having the right to administer the choultry and the occupant is not claiming any independent right also and it is quite evident from his deposition itself. In para No.12 of the written statement, the occupant expected the Sangam to prove better title only.
27. In such a case, it has to be seen as to whether, the plaintiff is having a better title. In the decision cited by the learned senior counsel for the occupant, the approach of the courts were consistently to the effect that if the courts find that the plaintiff is having better title than the defendant, the plaintiff's title could be declared and consequently delivery of possession of the suit property could be ordered in favour of the plaintiff and as against the defendant.
28. The learned counsel for the Sangam placing reliance on Exs.A3 dated 20.11.1899 -the certified registration copy of the conditional agreement between Krishnasamy Raju and others, A5 - the photopcopy of the Silasa Sanam, A6 dated 14.05.1929- the copy of the application by the President of plaintiff sangam to the Tiruvannamalai Municipal Chairman A7 dated 24.02.1932- the copy of the application by the President of plaintiff-Sangam to the Tiruvannamalai Municipal Chairman A13- the Certified copy of Field map book plane, A14 the Certified copy of Town Survey Field Register Extract, A23- the Notice dated 13.11.1987 issued by Health Officer, A24- 1988-1989 the Notice of Demand for property tax, A25- the Demand Notice of property tax 1988-1989, A28 the Savings Bank Pass Book dated 12.10.1979 and A33 the Certified copy of deposition of the occupant in O.S.No.1143 of 1994 on the file of District Munsif Court, Tiruvannamalai, would submit that the choultry belongs to the Sangam. Ex.A13 the copy of the Field Map book plane dated 17.04.1998, no doubt is a document of recent origin, but it reflects the true picture only, for the reason that even Ex.A30, in O.S.No.1143 of 1994 filed by the occupant would evince and evidence that the said choultry was nomenclatured as "Natham Private". No doubt, in Ex.A30, there is no reference to the Sangam concerned but in Ex.A13, there is reference to the Sangam as evidenced by Ex.A1 the registaration certificate and Ex.A2, the bye-laws of the society, which emerged only during the year 1973 and before that the community people without any registration was administering the choultry and to that efect the proceedings of the society would amply make the point clear. The occupant's father died in the year 1993, but he did not raise his little finger as against the Sangam for its exercising control over the entire choultry. The deposition of PW1 who was the president of the society at the time of filing of the suit and PW4, the successor President Radhakrishnan would in unison detail and delineate, express and expatiate that the properties have been under the control of the Sangam only and before the constitution of the society, it was under the control of the the people belonging to Arya Shatriya Raja Kula community people and it is they who constituted the society.
29. The learned counsel for the Sangam also would submit that previously there was some dispute between the community people and that got settled. Now no rival group of the said community is claiming any right and even if there is anything, that would only be an inter se or internicin dispute with which, the defendant is not concerned. The society, which is a registered one is trying to evict the occupant and it has to be seen as to whether there was any connection between the occupant's father and the Sangam.
30. Ex.A10, Exs.A30 and A31 would all refer to the Account Books maintained by the Sangam during the year 1973 which would demonstrate and display that the occupant's father was engaged by the Sangam as a watchman and they also paid him remuneration. It is an admitted fact that the defendant's father died only during the year 1993 and that the Sangam have been exercising the right of the administration over the suit property and for that matter, the entire choultry building.
31. The burden of proof is ambulatory and not static. Once the plaintiff has adduced oral and documentary evidence establishing that the Sangam has been exercising control over the said choultry building and administering the same, the burden should be treated as one which got shifted to the defendant to show as to when and in what capacity he and his father started occupying the suit property and what are their rights. But, absolutely there is no evidence in this regard. In fact, during cross examination DW1, the occupant would make a supine submission that he does not know anything about the title relating to the suit property and he would only call upon the plaintiff to prove its case. Common or garden principle or proposition as it is, a person who enters into a part of a choultry building and occupy it, cannot call upon the choultry administration to prove its title to the occupant's expectation and remain there ad infinitum.
32. My discussion supra would show that the preponderance of probabilities are in favour of the plaintiff and the defendant who is in occupation of a part of the choultry building cannot by raising various untenable pleas, resist the suit filed by the Sangam. The first appellate court, went to the extent of trying to trace out the descendants and the legal heirs of Muthu Naicker the original owner and held that there was dearth of evidence. In brief, the first appellate court in para Nos.13 to 23 of its judgment went on discussing the facts by adhering to a wrong approach and by misreading the documents and depositions and thereby misinterpreting the same.
33. In my considered opinion, such an approach is totally untenable. Here, none of the alleged heirs of Muthu Naicker is claiming any right or resisting the suit of the Sangam. If there is any such thing, the matter would be entirely different and the approach also would be different. The first appelalte court ignoring the versions in Ex.A3, the oldest document doubted as to whether Muthu Naicker was the original owner of the property at all. The occupant would contend, it is poramboke area and if so, Government itself would not have issued patta in the name of the Sangam and Ex.A13 in O.S.No.239 of 2003 and Ex.A30 in O.S.No.1143 of 1994 should be read cumulatively with reference to Exs.A1 and A2. But, here the court is expected to see as to whether the plaintiff or the defendant is having better right.
34. My discussion supra based on the documentary as well as oral evidence would unambiguously and unequivocally highlight that the plaintiff is having better title over the choultry and in such a case, the first appellate court was not justified in reversing the judgment and decree of the trial court and in dismissing the original suit, which was filed by the Sangam. In the bye-laws of the society, in the year 1973, there is reference to the choultry as the property of the society. The bye-laws themselves would refer to the factum of the community people viz., Arya shatriya Kula Raja Vamsam was earlier administering the choultry and that the community people alone constituted that society and in such a case, the court in a matter of this nature is not expected to probe into further details relating to the title of the Sangam. Exs.A1 and A2 emerged long before the litigation and even during the life time of the occupant's father. These are all anti-litem motem documents and not cooked up documents purely for the purpose of winning the litigative battle by hook or by crook. No doubt, Ex.A13 emerged after the institution of the injunction suit by the occupant. But it refers to the realities only. Exs.A1 and A2 would show that even in the year 1985 while getting the society registered with the Registrar of Firms, the choultry is shown as the property of the society and in such a case, even by phantasmagorical thoughts, it cannot be stated that for the first time as an after thought, the society got incorporated in Ex.A13, as though it is the owner of the choultry. No doubt, Ex.A13 might have emerged after the insitution of the injunction suit by the occupant but the materials contained there in are having the back up of earlier doucments. In such a case, it cannot be belittled or slighted as documents hit by lis pendens or documents concocted purely for the purpose of this case. In para No.13 of the writen statement of the occupant,he pleaded as though his fatehr started occupying the suit property from 1935 in his own right and the present occupant was born during the year 1952. There is no iota or shred, shard or molecular extent of evidence in support of his contention that evince in 1935 his father started occupying the suit property in his own right.
35. Both the courts below held that the occupant's plea of adverse possession was untenable and in such a case, the first appellate court in view of findings of the trial court based on oral and documentary evidence inf vour of the Sangam should have dismissed the first appeal.
36. In the grounds of appeal filed by the occupant in A.S.No.19 of 2008 (O.S.No.239 of 2003) he has stated thus :
............... that the defendant has prescribed his title to the suit property by adverse possession"
It is therefore crystal clear that the occupant took prevaricative stands relating to his possession.
37. The learned senior counsel for the occupant would invite the attention of this court to the deposition of PW4 and submit that the revenue records were obtained in favour of the society with the help of one Selvaraju, who is one of the said community members.
38. To the risk of repetition, I would like to point that what is contained in Ex.A13 is even found reflected in the defendant/occupant's document Ex.A30 in O.S.No.1143 of 1994 and only in addition to that the name of the society is found mentioned in Ex.A13, which is having the back up of Exs.A1 and A2 and other tax receipts. As such, by viewing this matter in an overall manner, it is crystal clear that the defendant's father came to occupy the suit property only under the society and during the life time of the defendant's father, the defendant also was occupying along with him and after his death, he continued to occupy the same. Now the society wants him to be evicted. Wherefore, taking a cue from Section 116 of the Indian Evidence Act, it could be held that the occupant is not entitled to challenge the right and title including locus standi of the Sangam to get is title declared in respect fo the suit property and to obtain possession of the same.
39. D.W.1 (the occupant) himself admits in his deposition that in the earlier suit (O.S.No.1143 of 1994 filed by the occupant) he admitted about the existence of Silasana stone and the trial Court also made reference to it placing reliance on the deposition of the witnesses on the Sangam side and also Exs.A5 and A6. However, the first appellate Court without properly reading the entire evidence and by misreading and misinterpreting the evidence doubted about the existence of silasana stone.
40. The first appellate Court by virtue of Order 41 Rule 31 of CPC, should have given cogent reasons for disagreeing with each and every finding of the trial Court, but such a procedure was not resorted to by it.
41. The trial Court framed an issue relating to adverse possession as claimed by the occupant and the said issue was decided as against him, whereupon in the grounds of appeal filed by the occupant, he contended that he was entitled to be an occupant of the suit property by virtue of adverse possession.
42. The appellate Court also negatived the claim of adverse possession by the occupant and as against which no cross appeal was filed by the occupant before this Court, after receipt of notice in the Second Appeal. Without filing any cross appeal, the occupant is not entitled to press for the relief of adverse possession in his favour, in view of the decision of the Hon'ble Apex Court reported in 2010 (7) SCC 717 cited supra.
43. It is therefore clear that the findings of both the Courts below as against the claim of adverse possession by the occupant has become final.
44. I would like to refer to the decision of this court reported in AIR 2005 Madras 431 [ Pappayammal vs. Palanisamy and others] relating to the plea of adverse possession. An excerpt from it would run thus:
"33. .....................In this case, it is not the case of the second defendant that the plaintiff or plaintiff's husband was the co-owner of the suit property. As stated above, the second defendant can lead adverse possession only when she admits that the plaintiff has got title. In fact, the title of the plaintiff has not been admitted. On the other hand, it is the case of the second defendant that the suit properties were purchased by Kuppanna Gounder, who is her husband, as separate properties, and, immediately after the purchase, her husband entrusted the suit properties to her, being the second wife, for maintenance, by way of family arrangement. A specific stand is taken by the second defendant through the written statement, denying the title of the plaintiff. She claimed that she alone is the title holder of the properties, since the purchaser of the properties, who had his separate properties, entrusted them to her by way of family arrangement. Therefore, the question of adverse possession would not arise. Consequently, the findings given by both the courts below, with reference to adverse possession in favour of the second defendant, as correctly pointed out by the learned Senior counsel for the appellant, are not correct. .............................."
The very fact that the occupant has chosen to plead adverse possession would tantamount to the occupant impliedly admitting the title of the Sangam.
45. The conduct of the occupant with reference to his own deposition as D.W.1, would amply make the point clear that in one breath he would claim that he was in possession and enjoyment of the entire choultry and that one Kuppusamy trespassed into the suit property, but he had not taken any legal action against him and according to him he did not pay tax also. However, in another breath the same occupant would admit that Kuppusamy filed a suit as against the Sangam, claiming that he was the tenant under the Sangam. As such, there is no consistency or cogency in the contention of the tenant.
46. Once the finding by the trial Court is that as per Ex.B1, the internal dispute in the Sangam got resolved, then the appellate Court should have given valuable reasons for disagreeing with such a finding. The evidence on record shows that the plaintiff's father was only a permissive occupier under the Sangam and in such a case, the occupant being the son of such permissive occupier cannot raise anything about the internal dispute in the Sangam.
47. The first appellate court went to the extent of doubting the renewal of registration. In the facts and circumstances of this case, the occupant has no locus standi to put forth such a plea and that too in view of Section 10 of the Tamil Nadu Societies Registration Act, 1975 [ Act No.27/75], which is extracted here under:
"10. Certificate of Registration (1) The Registrar, on being satisfied that a society has complied with the provisions of this Act, and the rules made thereunder as to registration, shall issue to that society a certificate of registration and such certificate shall be conclusive evidence that the society therein mentioned is duly registered, unless it is proved that the registration of the society has been cancelled.
(2) The Registrar shall, after the issue of a certificate of registration to a society, enter in a register prescribed in that behalf such particulars as may be prescribed."
(emphasis supplied) The evidence on the plaintiff's side is to the effect that the Registration of the Sangam is in vogue and the evidence relating to registration also was produced. In such a case, it was for the defendant to produce the cancellation certificate from the Registrar to prove the contrary.
48. The first appellate court doubted the contents of Ex.A5 the photocopy of Silasa Sanam dated 02.02.1900, which is relied on by the Sangam to prove the inscription on the Silasana stone. The first appellate court also referred to the admission made by the occupant as DW1 about the existence of Silasana Stone. In Ex.A6- the copy of the application by the President of Plaintiff Sangam to the Tiruvannamalai Municipal Chairman dated 14.05.1929 also there is reference to Silasana stone. If really the said Silasana stone was not referring to the title of the Sangam over the choultry, then the occupant should have in his deposition stated that the said Silasana stone was referring to something else. The evidence of a witness should be interpreted properly. DW1, the occupant in his deposition would totally deny the existence of Silasana stone at the first instance. Even in his written statement, he would deny the existence of silasana stone. However, during cross examination, the plaintiff struggled hard to cull out from his mouth about the existence of Silasana stone, which he admitted in the earlier litigation so to say in O.S.No.1143/1994 as against which S.A.No.1973 of 2002, is presently pending before this court. In such a case, the conduct of DW1 the occupant in suppressing material facts should have been noted by the first appellate court.
49. It is common knowledge that such silasana stones are meant for asserting certain facts, relating to the building and in such a case, DW1, the occupant deliberately wanted to suppress the material facts.
50. I call up and harp back to the following maxims suppressio veri, expressio falsi suppression of the truth (is equivalent to) the expression of what is false.
suppressio veri, suggestio falsi suppression of the truth (is equivalent to) the suggestion of what is false.
51. In such a case, he cannot resist the suit filed by the society and the trial court was right in decreeing the suit and the first appellate court was wrong in dismissing the original suit after setting aside the reasoned trial court's judgment and decree.
52. Relating to the injunction suit filed by the defendant/occupant is concerned, I would like to point out that since at the relevant time, he felt that he might be dispossessed because his father had already died, I could see that there was genuine apprehension in his mind. Now then, the present suit for eviction is being ordered and only through the process of court, he could be evicted by filing E.P. by the Sangam and there is no necessity also for such injunction. Even then the mere relief of granting of injunction in favour of the occupant to the effect that he should not be evicted by the Sangam otherwise than in accordance with law, shall stand to such limited extent subject to the fact that the Sangam is entitled to evict him by filing E.P, in the process of executing the judgment and decree in O.S.No.239 of 2003.
53. Accordingly, the substantial question of law in S.A.No.1973 of 2002 is decided to the effect that the lower appellate court is correct in arriving at the conclusion in A.S.No.94 of 2001 that the plaintiff in O.S.No.1143 of 1994/occupant cannot be evicted except by due process of law.
54. Accordingly, the substantial question of law No.1 is decided to the effect that the first appellate court was not justified in reversing the judgment and decree of the trial court on the ground that Ex.A3 the certified registration copy of the conditional agreement was marked without producing its original.
55. The substantial question of law No.2 is decided to the effect that the first appellate court was not justified in holding that the Sangam did not prove its title over the suit property ignoring the revenue records and the other oral and documentary evidence produced on the side of the Sangam.
56. The substantial question of law No.3 is decided to the effect the first appellate court was not justified in ignoring the evidence relating to the title adduced by the plaintiff.
57. The substantial question of law No.4 is decided to the effect that since the first appellate court failed to take into consideration the aforesaid points discussed supra, interference in second appeal is warranted.
58. In the result, the judgments and decrees passed by the first appellate court are set aside and both the second appeals are allowed. However, there shall be no order as to costs.
20.04.2011 vj2 Index: yes Internet: Yes To
1. The Additional District Judge, Tiruvannamalai
2. The II Additional District Munsif, Tiruvannamalai
3. The District Judge, Tiruvannamalai
4. The II Additional Subordinate Judge, Tiruvannamalai G.RAJASURIA,J., vj2 S.A.No.869 of 2009 and S.A.No.1973 of 2002 20.04.2011