Madras High Court
Ramanujam vs Kamalanathan (Deceased) on 9 November, 2016
Author: M.Duraiswamy
Bench: M.Duraiswamy
Reserved on : 02.11.2016 Delivered on : 09.11.2016 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09.11.2016 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.839 of 1999 and C.M.P.No.501 of 2013 Ramanujam ... Appellant Vs. 1.Kamalanathan (Deceased) 2.Kasinathan (Deceased) 3.Rajaram 4.Rajakannu 5.Purushothaman (Deceased) 6.Annammal 7.Lakshmi 8.K.Sundaramoorthy 9.Sundaravalli (Deceased) 10.Sarasu 11.Murugavel ... Respondents (R7 to R10 brought on record as LRs of the deceased R1 & R11 brought on record as LRs of the deceased R2 vide order dated 05.03.2014 made in C.M.P.Nos.506 & 507 of 2012; Name of R11 amended vide order dated 19.08.2014 made in Memo dated 12.08.2014 in S.A.No.839 of 1999; Name of R7 amended and death of R5 & R9 recorded vide order dated 30.01.2015 made in S.A.No.839 of 1999; R5 & R9 are deceased vide order dated 02.11.2016 made in Memo USR No.773 & 856 of 2015 in S.A.No.839 of 1999) Second Appeal filed under Section 100 of the Code of Civil Procedure decree and judgment dated 24.08.1998 in A.S.No.45 of 1994 on the file of the Subordinate Judge, Tindivanam reversing the well considered judgment and decree dated 20.04.1998 in O.S.No.1127 of 1987 on the file of the District Munsif, Tindivanam. Appellant : Mr.Ramanujam, Party-in-person For Respondents : Mr.R.Venu (R3, R7, R8, R10 & R11) Mr.S.Ilango (R4) R1, R2, R5 & R9 Died steps taken R6 no appearance J U D G M E N T
The above Second Appeal arises against the judgment and decree passed in A.S.No.45 of 1994 on the file of the Subordinate Court, Tindivanam, reversing the judgment and decree passed in O.S.No.1127 of 1987 on the file of the Principal District Munsif Court, Tindivanam.
2.The 2nd plaintiff is the appellant. The 1st plaintiff had died during the pendency of the suit and his legal representative viz., the 2nd plaintiff was brought on record. The respondents 7 to 10 are the legal representatives of the deceased 2nd respondent, who is the 3rd defendant in the suit. The 11th respondent is the legal representatives of the deceased 2nd respondent, who is the 4th respondent in the suit. The 5th respondent, who is the 1st defendant in the suit had died during the pendency of the Second Appeal, leaving no legal representatives. Similarly, the 9th respondent had also died during the pendency of the Second Appeal, leaving no legal representatives.
3.The plaintiff filed the suit in O.S.No.1127 of 1987 for recovery of possession and for mesne profits.
4.The brief case of the plaintiff is as follows:
(i)According to the plaintiff, the suit property originally belonged to the 1st defendant and the 1st plaintiff purchased the same in the year 1955 for a sum of Rs.300/-. The 1st defendant also handed over possession of the property to the 1st plaintiff. The plaintiff and the 1st defendant are relatives. Since they are related to each other, Sale Deed was not executed in favour of the 1st plaintiff. After the oral purchase, the 1st plaintiff was paying the taxes to the Government in respect of the suit property. He also developed and made improvements in the suit property. On 05.09.1960, the 1st plaintiff mortgaged the suit property in favour of one Muthanda Mudaliar. The plaintiff planted Palmyra tree about 30 years prior to the filing of the suit. The plaintiff also planted other trees in the suit land.
(ii)The 1st plaintiff was enjoying the property right from the date of purchase in the year 1955. About three years prior to the filing of the suit, the 1st plaintiff fell ill and therefore, he stayed in old age home. During that period, the defendants 2 & 3 encroached into the 'B' Schedule property, alleging that they have purchased the property from the 1st defendant. When the plaintiff asked the defendants 2 & 3 to vacate the 'B' Schedule property, they threatened the 1st plaintiff. After the purchase made by the 1st plaintiff, the 1st defendant did not have any right or title over the suit property. The purchase made by the defendants 2 & 3 are not legally valid. The defendants have fabricated the document to defraud the 1st plaintiff. Since the 1st plaintiff was in possession of the 'B' Schedule property for more than 12 years, he had prescribed title by adverse possession. The defendant 2 & 3 are trespassers. The 1st plaintiff died on 23.09.1990 and he executed a Will in favour of the 2nd plaintiff on 06.09.1990. The 2nd plaintiff derived title over the suit property by virtue of the Will dated 06.09.1990. In these circumstances, the plaintiff filed the suit.
5.The brief case of the defendants 2, 3, 4 to 7 is as follows:
(i)According to the defendants, the alleged oral purchase set up by the 1st plaintiff is not true. The 1st plaintiff did not make any improvements in the suit property. The mortgage made by the 1st plaintiff in favour of one Muthanda Mudaliar is not legally valid. The plaintiff did not plant any trees in the suit property. The plaintiff did not prescribe title by adverse possession. The plaintiff has no right or title over the suit properties. The defendants 2 & 3 have paid the taxes and are cultivating the suit lands. On 12.06.1978, the 2nd defendant purchased the property from the 1st defendant under a registered Sale Deed. After the purchase, the 2nd defendant dug a Well and also installed an electric motor. From the date of purchase (i.e.) 12.06.1978, the 2nd defendant has been paying the taxes to the Government and is in possession and enjoyment of the same. From the Well in the suit property, the 2nd defendant is taking water to his adjoining lands. Since the value of the suit property is more than Rs.100/- even in the year 1955, the oral purchase made by the 1st plaintiff is not valid under law.
(ii)The defendants also disputed the genuineness of the Will dated 06.09.1990. The defendants did not encroach the property and they are in possession of the same as true owners of the same. The electricity connection was obtained in the name of the 3rd defendant on 29.03.1988. In the family partition, the suit property was allotted to the 3rd defendant and the 3rd defendant is in possession and enjoyment of the same. The defendants 2 & 3 and their predecessors in title are in possession and enjoyment of the suit property for more than 12 years. The 3rd defendant prescribed title by adverse possession. In these circumstances, the defendants prayed for dismissal of the suit.
6.Before the trial Court on the side of the plaintiff, 6 witnesses were examined and 33 documents, Exs.A1 to A33 were marked and on the side of the defendants, 4 witnesses were examined and 13 documents, Exs.B1 to B13 were marked.
7.The trial Court, taking into consideration the oral and documentary evidences of both sides, decreed the suit. Aggrieved over the same, the defendants 3, 4, 6 & 7 filed an appeal in A.S.No.45 of 1994 on the file of the Subordinate Court, Tindivanam and the Lower Appellate Court reversed the judgment and decree of the trial Court and allowed the appeal. Aggrieved over the judgment and decree of the Lower Appellate Court, the 2nd plaintiff has filed the above Second Appeal.
8.Heard the appellant in person and Mr.R.Venu, learned counsel appearing for the respondents 3, 7, 8, 10 & 11 and Mr.S.Ilango, the learned counsel appearing for the 4th respondent.
9.At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration:
Whether the Lower Appellate Court is in error in its failure to hold that the 1st defendant is bound by the principles of estoppel in view of the attestation of Ex.A1 executed by the plaintiff in favour of a 3rd party and thus disabled from attacking the sale in favour of the plaintiff?
10.Though the appellant has filed his written submissions dated 02.11.2016, on a reading of the written submissions, it could be seen that he has not made any submissions with regard to the question of law or on merits of the matter. He has only pointed out that the Second Appeal is pending for more than 17 years. In the oral submissions, the appellant contended that the Lower Appellate Court erroneously disbelieved the oral purchase made by his father in the year 1955. Further, the appellant contended that the Lower Appellate Court should have taken into consideration Ex.A1 Mortgage Deed dated 05.09.1960 executed by the appellant's father and decreed the suit. That apart, the appellant contended that since himself and his father have been in possession of the suit property for more than 12 years, they have prescribed title by adverse possession.
11.Countering the submissions made by the appellant in person, Mr.R.Venu, the learned counsel for the respondents 3, 7, 8, 10 & 11 making his submissions in Tamil and thus enabling the appellant to understand his submissions, contended that the Lower Appellate Court has rightly reversed the judgment and decree of the trial Court taking into consideration the oral and documentary evidences let in by the parties. Further, the learned counsel submitted that the trial Court had erroneously decreed the suit finding that the plaintiff has prescribed title by adverse possession. The learned counsel submitted that the plaintiff cannot seek for declaration that he has prescribed title by adverse possession and the plea of adverse possession can be sought only by the defendant in the suit and not by the plaintiff. The learned counsel also submitted that the 2nd defendant had purchased the property under Ex.B1 dated 12.06.1978, which is a registered Sale Deed executed by the 1st defendant in his favour. Further, the learned counsel submitted that the defendants have established the title and possession over the property by oral and documentary evidences. The learned counsel also submitted that the plaintiff has not proved the oral purchase made by him in the year 1955, therefore, the Lower Appellate Court has rightly dismissed the suit filed by the plaintiff.
12.In support of his contention, the learned counsel for the respondents relied upon a judgment reported in 2014 (3) CTC 146 [R.Riyaz Ahmed and others Vs. J.G.Glass Industries Pvt. Ltd., No.105/A, Old GST Road, Pallavaram, Chennai 600 043 and others] wherein following the ratio laid down by the Hon'ble Supreme Court of India in the judgment reported in (2014) 1 Supreme Court Cases 669 [Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another], I had an occasion to hold that the plea of adverse possession can be raised only as a defence and that the plea of adverse possession can be used only as a shield and not as a sword. Further, I held that no declaration can be sought on the basis of adverse possession. The relevant portion of the judgment reads as follows:
15.It is settled position that the plea of adverse possession can be raised only as a defence. In other words, the plea of adverse possession can be used only as a shield and not as a sword. In the judgment reported in (2014) 1 Supreme Court Cases 669 [Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another], the Hon'ble Supreme Court held as follows:
"5.Insofar as Issue 4 pertaining to relief of injunction is concerned, the learned Civil Judge held that as long as uninterrupted possession of the appellant was established, the appellant was entitled to the decree of injunction and the respondents were restrained from dispossessing the appellant forcibly and illegally from the suit land and also restrained from damaging the building of Gurdwara Sahib. Issue 5 was decided against the respondent on the ground that no evidence was led to show how the suit was not maintainable in the present form. While granting relief, the learned Civil Judge partly decreed the suit holding as under:
It is held that the plaintiff is in adverse possession over the suit property since 13-4-1952 and the defendants are restrained from dispossessing the plaintiff forcibly and illegally from the suit property and further restrained from damaging the building of Gurdwara Sahib except according to due process of law. As discussed above, the remaining relief as sought by the plaintiff is dismissed. Decree-sheet be prepared. File be consigned to the record room.
6.It is pertinent to note that the respondents accepted the judgment and decree pertaining to prohibiting injunction. It is the appellant who filed the first appeal. Obviously, the confines of the said appeals related to the issue pertaining to declaration of ownership of adverse possession. The first appellate court while dismissing the appeal observed as under:
The respondents have not challenged the judgment and decree dated 6-1-2009 passed by the learned Civil Judge (Junior Division), Khanna, which means that they have accepted that the appellant was in adverse possession of the suit land since 13-4-1952. The issue whether adverse possession of the appellant-plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration of title can be sought on the basis of adverse possession. The learned trial court has rightly relied upon the case titled Gurdwara Sahib Sannauli v. State of Punjab [(2009) 154 PLR 756] wherein it is held that no declaration can be sought by the plaintiff with regard to adverse possession because such a plea is available only to the defendant. Since the appellant was not the lawful owner of the property in dispute, therefore, Respondent 1 was within its rights to auction a part of the same on 19-12-2003 in favour of Respondent 2. Respondent 1 has proved that land measuring 13B-12B was auctioned on 19-12-2003 in the presence of BDPO, Doraha and Ranjit Singh was declared as the last bidder and the auction was struck in his name for a consideration of Rs 1,11,000 and the land measuring 6B on which the building of Gurdwara Sahib had been constructed, was not auctioned.
In view of my above discussion, I find no material illegality or irregularity in the judgment and decree dated 6-11-2009 passed by learned trial court and therefore the appeal is dismissed and the findings of the learned trial court are affirmed. Decree-sheet be prepared. File of the lower court be returned forthwith. File be consigned to the record room.
7.In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable.
8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
From the judgment of the Apex Court, it is clear that the issue whether adverse possession of the plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration can be sought on the basis of adverse possession. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession had matured into ownership. Only if proceedings are filed against the plaintiff and the plaintiff is arrayed as defendant that it can use the adverse possession as a shield/defence.
13.On a careful consideration of the materials available on record and the submissions made by the appellant in person and also the learned counsel for the respondents, it could be seen that the trial Court had decreed the suit finding that the plaintiff had prescribed title by adverse possession. Further, the trial Court held that on the date of Ex.B1 Sale Deed dated 12.06.1978, the 1st defendant did not have title over the suit property, therefore, the 2nd defendant cannot claim any right under Ex.B1 Sale Deed.
14.So far as the alleged oral purchase is concerned, the trial Court found that the father of the appellant had purchased the property in the year 1955, orally, for a sum of Rs.300/- from the 1st defendant and thereafter, he continued to be in possession of the property for more than 12 years, hence, the plaintiffs have prescribed title by adverse possession. On an appeal filed by the defendants, the Lower Appellate Court disbelieved the case of the plaintiff and reversed the judgment and decree of the trial Court and dismissed the suit. According to the plaintiff, the property was orally purchased for a sum of Rs.300/- in the year 1955. Under Section 17 of the Registration Act, if the value of the immovable property is more than Rs.100/-, the Sale Deed must be registered. The appellant contended that under Ex.A1 Mortgage Deed dated 05.09.1960, his father had mortgaged the suit property in favour of one Muthanda Mudaliar, which was also attested by the 1st defendant. Therefore, the Lower Appellate Court should have decreed the suit as prayed for. The appellant also contended that Ex.A3 Mortgage Deed executed by his father in favour of one Munusamy Mudaliar was again mortgaged, therefore, these two Mortgage Deeds would establish the title of the plaintiff.
15.On a perusal of Exs.A1 & A3 Mortgage Deeds, it could be seen that the appellant's father has not stated that he purchased the property from the 1st defendant under a oral sale. That apart, mere execution of Mortgage Deed shall not confer title on a party. When the value of the immovable property is more than Rs.100/-, under Section 17 of the Registration Act, the document is compulsorily registrable. Under Section 54 of the Transfer of Property Act, the purchase made by the appellant's father should be supported by a registered Sale Deed. Admittedly, the appellant's father and the 1st defendant are close relatives. The Lower Appellate Court has rightly come to the conclusion that in order to help the appellant's father, the 1st defendant could have given his property for raising loan. Subsequently, on 12.06.1978, the 2nd defendant purchased the property under Ex.B1 Sale Deed from the 1st defendant for a valuable consideration. When the 1st defendant had sold the property to the 2nd defendant under Ex.B1 registered Sale Deed, the said sale is valid under law.
16.Since according to the plaintiff, the value of the property was Rs.300/- in the year 1955, under Section 17 of the Registration Act, the document is compulsorily registrable. Under Section 54 of the Transfer of Property Act, the transfer in case of tangible immovable property of value of Rs.100/- and upwards or in the case of a reversion or other intangible thing, can be made only by a registered instrument. Therefore, a sale in respect of immovable property having value of Rs.100/- or upward can only be through a registered Sale Deed and title in the property will pass on to the purchaser only on the registration of the Sale Deed, even though the Sale Deed has been executed earlier, the possession delivered and full consideration paid. The sale can be effected only by ways of registered document and when no registration of Sale Deed has taken place between the transferor and the transferee, the transferee cannot be said to have acquired legal title and no legal title vests in the transferee. A transfer of immovable property can be effected by executing a registered document as provided under Section 54 of the Transfer of Property Act read with Section 17 of the Registration Act. Mere exhibiting the Mortgage Deed would not transfer the title or ownership of the vendor if the value of the immovable property is Rs.100/- or more in the absence of a registered instrument. Under Section 49 of the Registration Act, no document required by Section 17 or by any provision of the Transfer of Property Act affect any immovable property comprised therein, unless it has been registered. The oral sale of property of value exceeding Rs.100/- is invalid. Therefore, the alleged oral purchase made by the appellant's father in the year 1955 for a sum of Rs.300/- can only be an invalid purchase.
17.So far as the payment of taxes by the plaintiff for different Faslis are concerned, the appellant's father should have paid the taxes on behalf of the 1st defendant, who is the original owner of the property. If the appellant and his father were in possession of the property and cultivated the suit lands, they could have produced Adangal before the trial Court, but no Adangal was produced before the trial Court by the plaintiff to establish that the suit lands were cultivated by the plaintiffs. Kist was paid by the plaintiff upto 1974. Though the suit was filed in the year 1987, the plaintiff has not produced any Kist receipts after 1974. On the contrary, the 2nd defendant has marked Ex.B1 Sale Deed dated 12.06.1978 and Ex.B2 Electricity receipt. That apart, the defendants have also produced the Kist receipts marked as Exs.B3 to B13 from 1979 to 1994. The Lower Appellate Court has rightly disbelieved the oral purchase made by the appellant's father in the year 1955.
18.The next contention raised by the appellant is that they prescribed title by adverse possession. On a reading of the plaint, it could be seen that the plaintiffs had averred that they were in possession of the property for more than 12 years, therefore, they prescribed title by adverse possession. The trial Court erroneously came to the conclusion that the plaintiff had prescribed title by adverse possession.
19.It is settled position that the plea of adverse possession can be raised only as a defence by the defendant and no declaration can be sought on the basis of adverse possession. In other words, the plea of adverse possession can be used only as a shield and not as a sword. The Hon'ble Supreme Court in the judgment reported in (2014) 1 Supreme Court Cases 669 [Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and another], held as follows:
"5.Insofar as Issue 4 pertaining to relief of injunction is concerned, the learned Civil Judge held that as long as uninterrupted possession of the appellant was established, the appellant was entitled to the decree of injunction and the respondents were restrained from dispossessing the appellant forcibly and illegally from the suit land and also restrained from damaging the building of Gurdwara Sahib. Issue 5 was decided against the respondent on the ground that no evidence was led to show how the suit was not maintainable in the present form. While granting relief, the learned Civil Judge partly decreed the suit holding as under:
It is held that the plaintiff is in adverse possession over the suit property since 13-4-1952 and the defendants are restrained from dispossessing the plaintiff forcibly and illegally from the suit property and further restrained from damaging the building of Gurdwara Sahib except according to due process of law. As discussed above, the remaining relief as sought by the plaintiff is dismissed. Decree-sheet be prepared. File be consigned to the record room.
6.It is pertinent to note that the respondents accepted the judgment and decree pertaining to prohibiting injunction. It is the appellant who filed the first appeal. Obviously, the confines of the said appeals related to the issue pertaining to declaration of ownership of adverse possession. The first appellate court while dismissing the appeal observed as under:
The respondents have not challenged the judgment and decree dated 6-1-2009 passed by the learned Civil Judge (Junior Division), Khanna, which means that they have accepted that the appellant was in adverse possession of the suit land since 13-4-1952. The issue whether adverse possession of the appellant-plaintiff had matured into his ownership is purely a question of law and it is a settled position that no declaration of title can be sought on the basis of adverse possession. The learned trial court has rightly relied upon the case titled Gurdwara Sahib Sannauli v. State of Punjab [(2009) 154 PLR 756] wherein it is held that no declaration can be sought by the plaintiff with regard to adverse possession because such a plea is available only to the defendant. Since the appellant was not the lawful owner of the property in dispute, therefore, Respondent 1 was within its rights to auction a part of the same on 19-12-2003 in favour of Respondent 2. Respondent 1 has proved that land measuring 13B-12B was auctioned on 19-12-2003 in the presence of BDPO, Doraha and Ranjit Singh was declared as the last bidder and the auction was struck in his name for a consideration of Rs 1,11,000 and the land measuring 6B on which the building of Gurdwara Sahib had been constructed, was not auctioned.
In view of my above discussion, I find no material illegality or irregularity in the judgment and decree dated 6-11-2009 passed by learned trial court and therefore the appeal is dismissed and the findings of the learned trial court are affirmed. Decree-sheet be prepared. File of the lower court be returned forthwith. File be consigned to the record room.
7.In the second appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable.
8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
Following the judgment of the Apex Court, I also held in the judgment reported in 2014 (3) CTC 146 [R.Riyaz Ahmed and others Vs. J.G.Glass Industries Pvt. Ltd., No.105/A, Old GST Road, Pallavaram, Chennai 600 043 and others] that the plea of adverse possession can be raised only as a defence by the defendants and the same cannot be used as a sword by the plaintiff.
20.The ratio laid down in the above referred judgments squarely applies to the facts and circumstances of the present case. Therefore, the plaintiff cannot be granted declaration on the basis of adverse possession. When the 2nd defendant had purchased the suit property from the 1st defendant under Ex.B1 Sale Deed, the case of the appellant that his father had orally purchased the property in the year 1955 was rightly disbelieved by the Lower Appellate Court. Mere execution of the Mortgage Deed by the appellant's father shall not confer any title over the suit property.
21.That apart, the 1st defendant had attested only the signature of the appellant's father and there is no necessity for him to know about the contents of the document. In the case of Will, the attestor should know the contents of he document, whereas in the case of Mortgage Deed, the attestor need not know the contents of the document and the attestor is only attesting the signature of the parties. Mere production of the Mortgage Deed and Kist receipts upto 1974 shall not give any right to the appellant to claim title over the property. The appellant has not produced any documents after 1974 till 1987 to establish his right. By virtue of Ex.B1 Sale Deed dated 12.06.1978 executed in favour of the 2nd defendant, the plaintiff cannot claim possession from the defendants. Even on a reading of Ex.B1 Sale Deed dated 12.06.1978, it could be seen that the property was sold by the 1st defendant in favour of the 2nd defendant stating that the property belongs to him absolutely and that he is the absolute owner of the property as on the date of execution of the said Sale Deed. The recitals found in Ex.B1 itself would falsify the case of the plaintiff. Therefore, the 1st defendant was not estopped from executing Ex.B1 Sale Deed in favour of the 2nd defendant.
22.The plaintiff should have taken steps to examine the 1st defendant, the alleged vendor, to prove that the property was sold by him orally in the year 1955. In the absence of any acceptable evidence produced by the plaintiff, the Lower Appellate Court has rightly disbelieved the case of the oral purchase.
23.It is also settled position that the plea of adverse possession can be raised only against the true owner. Though the plaintiff is not entitled to raise the plea of adverse possession, he has raised the same in the plaint, which means, the plaintiff is admitting the title of the defendants. In these circumstances, the Lower Appellate Court has rightly reversed the judgment and decree of the trial Court and dismissed the suit.
24.The appellant also filed a petition in C.M.P.No.501 of 2013 under Order 41 Rule 27 of the Civil Procedure Code to permit him to file nine additional documents. The appellant seeks to produce the following nine documents as additional documents in the Second Appeal:
1.Order of the Hon'ble High Court dated 06.07.2012 in S.A.No.839 of 1999 - C.M.P.No.232 of 2011.
2.Document No.1344 of 2004.
3.Memo of grounds of Second Appeal in S.A.No.839 of 1999.
4.Printed judgment copy in A.S.No.45 of 1994.
5.Printed copy of the judgment in A.S.No.1127 of 1987.
6.Copy of the affidavit in C.M.P.No.506 of 2012 in S.A.No.839 of 1999.
7.Notice copy issued by the appellant to Raj Kumar not to purchase the suit property.
8.Batta paid by the appellant to all the above respondents dated 21.02.2013.
9.Statement of the petitioner/party in person (appellant herein) in the above S.A.No.839 of 1999.
25.In the affidavit filed in support of the petition, the appellant has stated that his counsel has not taken keen interest to mark the above said documents, therefore, it is just and necessary to permit him to produce the said documents as additional documents.
26.On a perusal of the documents sought to be marked by the appellant, it could be seen that except Document No.2 (i.e.) Sale Deed dated 28.07.2004, all the other documents already form part of the record in the Second Appeal. Therefore, there is no necessity for marking those documents.
27.So far as the Sale Deed dated 28.07.2004 is concerned, the same has been executed subsequent to the filing of the suit and in fact, the same was executed during the pendency of the Second Appeal. Since the document has been executed during the pendency of the Second Appeal, the same cannot be marked as additional document in the Second Appeal. Therefore, the petition filed by the appellant seeking for producing additional documents cannot be entertained. The same is liable to be dismissed.
28.In these circumstances, I do not find any ground much less any substantial question of law to interfere with the judgment and decree on the Lower Appellate Court. The Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. No costs. The Civil Miscellaneous Petition in C.M.P.No.501 of 2013 is also dismissed.
Index : No 09.11.2016
Internet : Yes
va
To
1.The Subordinate Judge,
Tindivanam.
2.The Principal District Munsif,
Tindivanam.
M.DURAISWAMY, J.
va
Judgment in
S.A.No.839 of 1999 and
C.M.P.No.501 of 2013
09.11.2016