Madras High Court
M.Kanagaraj vs M.Siriram on 3 August, 2016
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.08.2016
CORAM
THE HONOURABLE Ms.JUSTICE R.MALA
Second Appeal (MD) No.386 of 2006
1.M.Kanagaraj
2.K.Pushparani
3.Florence Jesintha
4.Jebakkani Rajadurai
5.Noorjahan Beevi ....
Appellants
versus
M.Siriram ...
Respondent
Prayer: Second Appeal is filed under Section 100 of CPC., to set aside
the judgment and decree dated 14.10.2005 passed in A.S.No.162 of 2005 on the
file of the 2nd Additional Subordinate Judge, Tirunelveli confirming the
judgment and decree dated 21.03.2005 passed in O.S.No.666 of 2004 on the file
of the 1st Additional District Munsif Court, Tirunelveli.
!For Appellants : Mr.S.Balasubramanian
^For Respondent : Mr.R.Bharanidharan for
Mr.R.Devaraj
:JUDGMENT
The defendants, who lost the legal battle in both the Court below has filed the second appeal to set aside the judgment and decree dated 14.10.2005 passed in A.S.No.162 of 2005 on the file of the 2nd Additional Subordinate Judge, Tirunelveli confirming the judgment and decree dated 21.03.2005 passed in O.S.No.666 of 2004 on the file of the 1st Additional District Munsif Court, Tirunelveli.
2.The respondent as plaintiff filed a suit for declaration and injunction stating that the 1st plaint schedule property is originally belonged to one V.M.Mohamed Mohideen Sahim. Later, it was sold to the father of the plaintiff viz., Muthaiah Mudhaliar under a registered sale deed dated 07.09.1952. He gifted the same to the plaintiff through the registered settlement deed dated 17.11.1983. The second schedule property is originally belonged to one M.P.M.Mohamed YusuF Rowther and the same has been sold to the father of the plaintiff through a sale deed dated 13.04.1953 and subsequently, it was given to the plaintiff vide settlement deed on 18.11.1983. The plaintiff was in possession of the property and he paid kist in the name of his father. The defendants have no right, title or possession over the suit property. In 1998, the defendant filed a caveat stating that they have purchase some portion of the schedule properties. The sons of V.M.Mohamed Mohideen in collusion with the 5th defendant, filed a suit in O.S.No.822 of 1990 for specific performance, creating some records behind the back of the plaintiff. The plaintiff is not a party to the suit. The created documents are all shame, nominal and fraudulent transactions and the same would not bind upon the plaintiff. The plaintiff came to know the bogus transactions in October 1998 and since, the defendants are attempting to trespass and cut and carry away the thorny trees, the plaintiff constrained to file the suit for declaration and injunction.
3.Resisting the same, the 4th and 5th defendants filed a detailed written statement stating that one W.Christhudoss filed a suit to the very same plaint schedule property in O.S.No.9 of 1999 stating that he is the lessee of the property. In the said suit, exparte injunction was granted in I.A.No.27 of 1999 and was made absolute. Hence, the defendants 1 to 4 preferred an appeal in C.M.A.70 of 1999. During the pendency of I.A.No.27 of 1999, the plaintiff filed this suit. The defendants denied the plaintiff's title over the suit properties. O.S.No.822 of 1990 is not a collusive suit. The defendants 1 to 4 purchased the portion of the suit properties on 24.09.1998 through separate sale deed and they are in possession and enjoyment. 5th defendant entered into a sale agreement on 16.07.1982 with one V.M.Syed Ibrahim and his brother V.M.Kather Mohideen with respect of the suit properties and since, they failed to execute the sale deed, 5th defendant filed O.S.No.822 of 1990 and the suit was decreed exparte. Sale deed was executed in favour of the 5th defendant on 22.06.1992 by the learned District Munsif and the suit properties was sub divided on 27.12.1998. Originally, the suit property was Inam property and Syed Ibrahim and Kather Mohideen obtained favourable order in R..I.T.No.42 of 1971 and hence, he prayed for the dismissal of the suit.
4.The trial Court, after considering the plaint and written statement, framed necessary issues and considering the oral and documentary evidence, decreed the suit. Against which, the defendants preferred an appeal in A.S.No.162 of 2005, which was also dismissed after marking Ex.B36, suit extract of O.S.No.57 of 1949. Against the said judgment and decree, the present second appeal has been filed by the defendants/appellants herein.
5.At the time of admission, the following substantial questions of law have been framed for consideration of the second appeal:
1.Whether the order of the settlement officer confer title upon the party?
2.Whether the plaintiff/respondent is entitled to succeed on the weakness of the defendants' case?
Substantial Questions of Law 1 and 2:
6.The learned counsel for the appellants/defendants would submit that even though the plaintiff filed a suit for declaration and injunction, he has not proved his case stating that he claiming right under the documents Exs.A15, A2 and A4 in respect of western portion of the property viz., second schedule of the suit property and Exs.A16, A1 and A3 in respect of Eastern portion of the property viz., first schedule of the suit property. But, the suit property is owned by Thaika. D.W.2 entered into a sale agreement under Ex.B35 with Kaja Amirudeen Kurukkal and D.W.2 purchased the same under Ex.B24. Thereafter, 5th defendant has entered into a sale agreement with D.W.2 and his brother V.M.Kather Mohideen and since, they have not executed the sale deed, the 5th defendant filed a suit in O.S.No.82 of 1990 for specific performance and obtained a decree and judgment, which are marked as Exs.B18 and B19. In turn, the same was sold to D1 to D4 under Exs.B20 to and 23. D.W.2 has a right over the property in pursuant to the purchase under Ex.B24. The Suit register extract in O.S.No.57 of 1948 has been marked as Ex.B36, during the pendency of the first appeal stage and that factum was not considered by the first appellate Court.
7.The learned counsel further submitted that the property mentioned in Ex.B36 is the subject matter of the present suit, which is situated in T.S.2009, whereas, in Ex.A15, it is mentioned as it is a sale certificate and the property is belong to V.M.Mohamed Mohideen. The property was brought to the auction, in which, one Mohammed Yusuf Rowther purchased the second schedule property under Ex.A15. He sold the same to the plaintiff's father under Ex.A2, in turn, he settled the same under Ex.A4. But, Mohammed Mohideen is not the owner of the property and as such, Ex.B36 falsified the case of the plaintiff. So, they are not derived any right under Ex.A15, 2 and 4 in respect of the second schedule of the suit property. In respect of the first schedule of the suit property is concerned, under Ex.A16, V.M.Mohammed Mohideen sold the same to one Muthukumarasamiyapillai on 22.05.1951 under Ex.A16, in turn, he sold the same to the plaintiff's father under Ex.A1 and he settled the same to his son viz., the plaintiff under Ex.A3. He would further submit that V.M.Mohammed Mohideen is not the owner of the property. Even though, so many sale deeds filed, since V.M.Mohammed Mohideen is not the owner of the property, neither the plaintiff nor his predecessor in title derived any title.
8.He has further stated that Ex.A3 and A4 settlement deeds have not been proved in accordance with law viz., under Section 63 of Hindu Succession Act. Hence, the plaintiff is not entitled to file the suit. Plaintiff's father is having another heirs and hence, the suit is not maintainable. Evidence of P.W.1 is not trustworthy. No independent witnesses were examined to prove that they are in possession and hence, he prayed for setting aside the judgment and decree of both the Courts below.
9.He relied on the decision reported in 2014(4) CTC 653 ? Kuruvamani and others Vs. A.Muthu and others and submitted that revenue records are not conferred title.
10.He has further relied on the decisions reported in 2010(2) CTC 860 ? B.Jayachandran Vs. V.Vasanthamani and 1998 (2) MLJ 722 ? Srinivasan V. Sri Madhyarjuneswaraswami, Pattavaithalai and submitted that Civil Court has jurisdiction to decide the matter, even settlement officer has granted patta.
11.He has also relied on the decision reported in 2014(4) CTC 471 ? Union of India V. Vasavi Co-op. Housing Society Ltd., wherein, it was held that the plaintiff must prove the case.
12.He has further submitted that the appellants are in possession and he relied on the decision reported in (2011) 5 MLJ 278 ? Rahimunnisabi V. Subhan Sahib and submitted that the appellants prescribed title by adverse possession.
13.He has further submitted that the admission in evidence is not a conclusive proof. Admission in evidence can be looked into with other factors also and admission statement must be clear and collusive. For the reason, he relied on the decisions reported in AIR 1971 Supreme Court 1542 ? Koteswara Rao V. C.Subbarao and 2002 SAR (Civil) 913 ? Epoch Enterrepots . M.V.Won Fu and submitted that merely because D.W.2 has deposed that his father is the owner of the land, it will not be helpful to the plaintiff/respondent, when the property is not belonging to V.M.Mohammed Mohideen. Ex.B36, suit register extract shows that the property is belonging to Thaika. Hence, he prayed for setting aside the concurrent finding of both the Courts below.
14.He has further submitted that in Exs.B12, 13 and 27 survey number has been mentioned and the letters have been sent in the year 1967 ? 1969 and the same has been proved that the appellants are in possession and enjoyment of the properties and hence, he prayed for setting aside the judgment and decree of both the Courts below.
15.Resisting the same, the learned counsel appearing for the respondent would submit that the respondent has proved his case on own documents. The property is originally belonging to one Mohammed Mohideen and he is indebted and the property was brought for Court auction, in which, one Mohammed Esuf Rawther purchased the second item of suit property under Ex.A15 on 31.08.1943. He sold the same to Muthukumarasamy Pillai under Ex.A2 dated 13.04.1951 and thereafter, Muthukumarasami Pillai sold the same to the father of the respondent under Ex.A1, in turn, he executed the settlement deed Ex.A3 in favour of his son, the respondent herein. To prove the attestation, P.W.2 was examined. In pursuance of the same, patta has been given and paid kist receipt Ex.A5 to A7, which were proved his possession. Ex.A34 has also not been proved. He relied upon the portion of Ex.A9, which is in a form part of order in R AI T.No.15 of 1971 in paras 6 and 7 and submits that even though the Settlement Officer has issued patta in favour of Thaika, that has been set aside. The appellants have not filed fair order and only they filed decretal order. He has further submitted that the 5th defendant, even though obtained a decree and judgment under Ex.B30 and 31, it is a collusive decree and she has not filed any document to show as to when the Court has executed the sale deed and when she has taken possession of the suit properties. The 5th defendant has not get into the box and only her vendor Syed Ibrahim alone was examined as D.W.2. She has not filed the plaint and written statement in O.S.No.9 of 1999. However, there is no evidence to show that in pursuance of the decree of specific performance, when the sale deed has been executed and when she took possession of the property? In such circumstances, the defendants' documents are created only to grab the property and that factum was rightly considered by both the Courts below and hence, he prayed for the dismissal of the appeal.
16.He has further submitted that in respect of the first item of the property, the father of the plaintiff purchased the same under Ex.A1 from Muthukumarasamiya Pillai, who purchased the same under Ex.A16 from V.M.Mohammed Mohideen and settled the same in favour of his son under Ex.A3 and hence, the plaintiff has proved his case on the basis of oral and documentary evidence and that has been correctly considered by both the Courts below and once concurrent findings has been given, in the second appeal, the concurrent finding shall not be interfered. For the reason, he relied on the decision reported in 1999-2-L.W.614 ? Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others and prayed for the dismissal of the second appeal.
17.Heard the submissions made on either side and perused the materials available on record.
18.As per the decision reported by the learned counsel for the appellants reported in 2014(4) CTC 471 ? Union of India V. Vasavi Co-op. Housing Society Ltd., and submitted that the plaintiff must succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. It is appropriate to extract para 15 of the above decision:
?15.The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even in the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited.?
There is no quarrel over the proposition laid down in the above said decision.
19.At this juncture, it is appropriate to consider the decision relied on by the respondent reported in 1999-2-L.W.614 ? Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others, wherein, it is stated that the second appeal cannot be decided merely on equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under Section 100 of C.P.C. The substantial question of law has to be distinguished from a substantial question of fact. It is appropriate to incorporate paras 4 and 5 of the said decision:
?4. It has been noticed time and again that without insisting for the statement of such substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100, Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section the findings of fact of the 1st appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section, The substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. (AIR1962SC1314) held that:-
The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absorbed the question would not be a substantial question of law.
5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.?
As per the above said decision, this Court has to decide as to whether this Court shall interfere with the concurrent findings of the Court below. Unless the findings of both the Courts below are perverse without basis of evidence, then only, the Court can interfere with the same. The findings of the first appellate Court cannot be termed to be either perverse or based upon no evidence. Such findings are based upon appreciation of evidence and being the finding of the last Court on facts were binding upon the parties with different angle and setting aside the concurrent finding.
20.Now, this Court has to decide as to whether the plaintiff/respondent has proved his case or not?
21.The respondent claiming title of the second item of plaint second schedule item under Ex.A15. Ex.A15 is dated 31.08.1943. In that, it has been specifically mentioned that V.M.Mohammed Mohideen is a defaulter, who is none other than the father of D.W.2. The property has been sold on public auction in execution of Award No.1053/41 dated 21.06.1941 on the file of the Deputy Registrar and has paid full amount of the purchase money viz., Rs.52/- and that has been confirmed on 26.10.1943. Ex.B36 is the suit register extract. It is appropriate to incorporate the description of property mentioned in the suit in O.S.No.57 of 1948, where a compromise decree has been passed. The description of property is as follows:
?Tirunelveli Taluk Gandiaperi Gramam Nabi Sahib Gurukkal Thaika Re survey 479 T.S.W. 8 B12 ? T.S.1962 1 Letter Nanja A.2 95 cents. 483 T.S.W. 8 B11 T.S.1945 Punja 1 ? 1 482 T.S.W. 8 B12 T.S.1963 1 ? 99 483 & 484 T.S.W.8 B.12 T.S.1963 ? do ? 3-3 407 T.S.W. 8 B.13 T.S.2007 ? do ? 0.30 485 T.S.W. 8 B.13 T.S.2009 ? do ? 32 486 T.S.W.8 B.13 T.S.2010 ? do- 0.31?
In that it is stated the suit property is situated in T.S.No.2009 to an extent of 32 cents. Perusal of Ex.B36 would show that there was compromise decree and no one has given power to alienate the property. But, that has been happened after Ex.A15 came into existence. The suit is of the year 1948 and the plaint was presented on 26.01.1948 and it was taken on file on 19.02.1948 and compromise has been recorded on 31.03.1949. It is appropriate to consider the order passed in Ex.A9. Since the properties are inam properties, the enquiry has been conducted by settlement officer. Against the said order, appeal has been preferred. In paras 6 and 7 of the order, it was specifically mentioned no such Thaika is available and patta has not been given to Thaika. Finding has been given only after considering Ex.A15 and Ex.B36. Even though, patta granted by the settlement officer is not confirmed any title, if any dispute arose, Civil Court has a jurisdiction. For the reason, he relied on the decision reported in 2010(2) CTC 860 ? B.Jayachandran Vs. V.Vasanthamani and 1998 (2) MLJ 722 ? Srinivasan V. Sri Madhyarjuneswaraswami, Pattavaithalai . There is no quarrel over the proposition laid down in the above said decision. Therefore, the Civil Court has to consider the aspect as to whether, the plaintiff/respondent has proved title to the property.
22.Admittedly, as per Ex.A15 dated 31.08.1943, it was specifically mentioned that V.M.Mohammed Mohaideen is a defaulter, who is none other than the father of D.W.2. The property has been sold in public auction, in which, Mohammed Esuf Raowther has purchased the same. Hence, it is clearly proved that the properties are originally mentioned by V.M.Mohammed Mohaideen and that has been purchased in public auction by Mohammed Esuf, from whom, the plaintiff father purchased the same under Ex.A1. The other portion, directly, he sold the same to the plaintiff/respondent's father under Ex.A16 on 22.05.1951. From that date onwards, he is in possession and enjoyment of the same. In view of the Inam abolition Act came into effect, enquiry has been conducted and patta has been given in the name of Thaika. Immediately, the respondent's father preferred an appeal in RAIT 15/1971, in which, order has been passed in Ex.A9 and decreetal order has been passed in Ex.A10. But, the respondent herein has filed the decreetal order in Ex.B9 and he has not filed the fair order. They are claiming title under Ex.B36, the suit register extract, in which, a compromise decree has been passed. But, in Ex.A9, it was specifically held that no such Thaika is available. Hence, Exs.A9 and A10 were passed and patta has been granted and immediately, there was mutation of records and tax has been paid.
23.It is pertinent to note that the learned counsel appearing for the appellant would submit that Exs.B12, 13 and 27, T.S. Number has been mentioned. Ex.B12 is an inland letter, created with an intention to claim title. Ex.B13, T.S.number is given. Inam Abolition Act came into effect in the year 1963. Exs.B12, 13 and 27 came into existence in the year 1967 and 1969, which shows that to obtain a patta from the settlement officer, those documents viz., Exs.B12, 13 and 27 have been created. Therefore, no reliance has been placed. Admittedly, no Thaika has been available.
24.Per contra, the plaintiff/respondent has proved that his father has purchased the property and then, he executed the settlement deed under Ex.A3 and A4 and that has been proved by examining P.W.2, who is the attestor of the document. But, the learned counsel would submit that as per Section 63 of Indian Succession Act, attestation has not been proved. The above argument does not hold good. It is appropriate to incorporation Section 63 of Indian Succession Act:
?63.Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules.-
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c)The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary?
Section 63 of Indian Succession Act is in respect of unprivileged Will. It is also appropriate to consider Section 68 of Indian Evidence Act.
?68.Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908(16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.?
25.In the present case, attestor, P.W.2 has been examined. Therefore, the plaintiff has proved A3 and A4. So the attestation has been proved in accordance with Section 68 of Indian Evidence Act and not under Section 63 of Indian Succession Act. Further, the defendants are not competent to question the settlement deed. But, here, the respondents have proved the due execution, valid attestation and acceptance and acted upon and filed the document to prove the mutation of records and tax receipts. In such circumstances, I am of the view that the appellant/respondent has proved that he has title to the property and he is in possession.
26.As per the dictum of the Apex Court in 2014(4) CTC 471 ? Union of India V. Vasavi Co-op. Housing Society Ltd., the plaintiff has to succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. But, here, the plaintiff has proved his case by way of filing documents and letting oral evidence. Per contra, the appellants has not proved their case. Because, Ex.35 came into effect after Ex.A15, the sale certificate issued. But, in Ex.B36, compromise decree, no power for alienation has been given. Further, as per Ex.A9, it was held that there was no such Thaika available, But, Exx.B35 and 25 has proved that they are concocted and Exs.B6, 18 and 19 are collusive decree and there is no document to show that 5th defendant obtained sale deed from the Court of law and taken possession through the Court of law. Non examination of the 5th defendant is fatal and hence, I am of the view that the defendants have not proved their case and that factum was rightly considered by both the Court below. Therefore, the appellants are not entitled any relief in the second appeal and the substantial questions of law 1 and 2 are answered accordingly.
27.In view of the above discussions, I am of the view that the plaintiff/respondent has proved his title and possession on his own document and oral evidence and it is a concurrent findings. The findings of both the Court below are not suffered any perversity and hence, the judgment and decree of both the Courts below are hereby confirmed and subsequently, the second appeal deserves to be dismissed and the same is hereby dismissed with cost.
To
1.The 2nd Additional Subordinate Judge, Tirunelveli
2.The 1st Additional District Munsif, Tirunelveli.
R.MALA, J.
Arul Pre-delivery order in Second Appeal (MD) No.386 of 2006 03.08.2016 .