Madras High Court
S.K.S.Siva Kumar vs The Executive Officer on 28 March, 2012
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/03/2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)Nos.10004 of 2005 W.P.(MD)No.8435 of 2007 and W.P.(MD)No.8507 of 2007 and Second Appeal (MD)Nos.557 to 559 of 2010 and W.P.M.P.(MD)No.10705 of 2005, M.P.(MD)Nos.1 and 1 of 2007 and 1 and 1 of 2010 S.K.S.Siva Kumar ... Petitioner in all three writ petitions and appellant in all second appeals Vs. 1.The Executive Officer, Inam Karur Municipality, Kulathupalayam,Vengamedu, Karur-1. 2.D.Murugesan 3.K.S.Palanis @ K.S.Palanichamy ...Respondents in WP(MD)No.10004/2005 1.The Superintending Engineer, Tamil Nadu Electricity Board, Kovai Road, Karur. 2.The Executive Engineer, Tamil Nadu Electricity Board, Karur. 3.The Assistant Electrical Engineer, Operations & Maintenance, Tamil Nadu Electricity Board, Karur. 4.The Assistant Accounts Officer, Revenue Branch, Tamil Nadu Electricity Board, Kovai Road, Karur. 5.K.S.Palanis @ K.S.Palanichamy 6.D.Murugesan ...Respondents in WP(MD)No.8435 of 2007 1.The District Collector, Karur District, Karur. 2.The Tahsildar, Taluk Office, Karur Taluk, Karur. 3.The Deputy Tahsildar, Head Quarters of Taluk office, Karur Taluk, Karur. 4.The Village Administrative Officer, L.N.S. Village,Karur Taluk, Karur. 5.K.S.Palanis @ K.S.Palanichamy 6.D.Murugesan ...Respondents in WP(MD)No.8507 of 2007 1.D.Murugesh 2.Thiyagarajan ...Respondents in S.A.(MD)No.557 of 2010 1.K.S.Paulanes @ K.S.Palanisamy 2.D.Murugesh ...Respondents in S.A.(MD)Nos.558 and 559 of 2010 W.P.(MD)No.10004 of 2005 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent in Na.Ka.No.43 of 2004 dated 24.06.2005 and quash the same and to further direct the first respondent to re- transfer the assessment No.4992 in respect of Door No.16/124 Kovai Road, L.N.S. Village, Inam Karur Municipality, Karur District from the name of the second respondent to the name of the petitioner and thereby restoring the status quo ante. W.P.(MD)No.8435 of 2007 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to forbear the respondents 1 to 4 from changing the service connection Nos.4 and 5 of Ramanujam Nagar Distribution, Karur Taluk, Karur which stands in the name of the petitioner to the name of 6th respondent. W.P.(MD)No.8507 of 2007 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the third respondent dated 18.09.2007 in respect of patta No.435 and quash the same and to further direct the third respondent to change the name for the patta No.435 with respect to Survey No.161 of L.N.S.Village, Karur Taluk in the name of the petitioner. S.A.(MD)No.557 of 2010 has been preferred under Section 100 of CPC against the judgment and decree made in A.S.No.26 of 2009, dated 26.3.2010 on the file of the District Court, Karur reversing the judgment and decree made in O.S.No.39 of 2007, dated 29.11.2008 on the file of the Subordinate Judge, Kulithalai. S.A.(MD)No.558 of 2010 has been preferred under Section 100 of CPC against the judgment and decree made in A.S.No.9 of 2009, dated 26.3.2010 on the file of the District Judge, Karur reversing the judgment and decree made in O.S.No.9 of 2006, dated 29.11.2008 on the file of the Subordinate Court, Kulithalai. S.A.(MD)No.559 of 2010 has been preferred under Section 100 of CPC against the judgment and decree made in A.S.No.10 of 2009, dated 26.3.2010 on the file of the District Judge, Karur reversing the judgment and decree made in O.S.No.38 of 2007, dated 29.11.2008 on the file of the Subordinate Court, Kulithalai. !For Petitioner and appellant ... Mr.R.Yasodh Vardhan, SC for Mr.K.Govindarajan in W.P.Nos.10004/2005,8435 and 8507/2007 Mr.R.Yashod Vardhan, SC for Mr.R.Karthikeyan in S.A.No.557 and 558/2010 Mr.S.Parthasarathy,SC for Mr.R.Karthikeyan in S.A.No.559/2010 ^For Respondents ... Mr.D.Rajendiran for R1 Mr.R.Nandakumar for R2 in W.P.No.10004/2005 Mr.S.M.S.Johnny Basha for R1 to R4 Mr.S.Packiaraj for R6 in W.P.No.8435/2007 Mr.T.S.Md.Mohideen, AGP for R1 to R4 Mr.R.Nandakumar for R6 in W.P.No.8507/2007 Ms.Chitra Sampath for E.K.Kumaresan for R1 Mr.T.V.Sivakumar for R2 in S.A.Nos.557/2010 Mr.T.V.Ramanujam, SC for K.Balasundharam for R1 in S.A.Nos.558 and 559/2010 Mr.K.Suresh for R2 in S.A.No.559/2010 :COMMON ORDER
The three writ petitions along with the three second appeals came to be posted before this Court on being specially ordered by the Administrative Judge Incharge of Madurai Bench vide order dated 14.11.2011.
2. The petitioner in the three writ petitions as well as the appellant in the three second appeals is one and the same person by name S.K.S.Sivakumar, a resident of Tiruppur.
3. In the first writ petition, the writ petition challenges the order of the Executive Officer, Inam Karur Municipality dated 24.06.2005. The said order came to be passed pursuant to an order being passed by this Court in W.P.No.2981 of 2004 dated 31.01.2005. The said writ petition challenged an order passed by the Municipality effecting transfer of assessment order made by the Municipality in the name of the second respondent D.Murugesh in respect of the property in D.No.16/124 situated at Kovai Road, L.N.S.Village, Inam Karur Municipality. The said writ petition came to be allowed on the short ground no notice was given to the petitioner, who was an aggrieved person and the Municipality was directed to pass an order afresh. It was pursuant to the said direction, after hearing the petitioner and the second respondent D.Murugesh, the impugned order dated 24.06.2005 came to be passed. The petitioner was informed that the second respondent D.Murugesh has submitted documents which are legally valid and on that basis the assessment was earlier transferred and there was no case for altering the same. If subsequently, any orders of the Courts are obtained, it is subject to the result of such proceedings and the said Murugesh will have to bear the responsibility for the subsequent orders. The said writ petition was admitted on 28.11.2005. Pending the writ petition, in the application for interim injunction, only notice was ordered.
4. Even while the said writ petition was pending, the same petitioner filed W.P.No.8435 of 2007, seeking for a direction to the Tamil Nadu Electricity Board and their Subordinate officers for changing the Service Connection Nos.4 and 5 of Ramanujam Nagar Distribution, Karur Taluk which was standing in the name of the petitioner to that of the 6th respondent in the writ petition viz., D.Murugesh. That writ petition was admitted on 12.10.2007. Pending the writ petition, this Court granted an interim injunction and that is remaining in force till date.
5. The petitioner also filed a third writ petition, being W.P.No.8507 of 2007, challenging an order of the Head Quarters, Deputy Tahsildar, Karur Taluk, dated 18.09.2007 in respect of patta No.435 and after setting aside the same seeks for a further direction to the said respondent to change the name in respect of the said patta covering Survey No.161 of L.N.S.Village, Karur Taluk in the name of the petitioner. That writ petition was admitted on 12.10.2007. Pending the writ petition, an interim injunction was granted on the same date and that is in force till date.
6. During the pendency of these three writ petitions, three second appeals were filed by the same writ petitioner being S.A.Nos.557, 558 and 559 of 2010. These second appeals were admitted by this Court on 02.07.2010. The substantial questions of law which were framed at the time of admission of the three second appeals were as follows:-
"1.Whether the first appellate court's finding in respect of the valid and due execution of the sale deeds in favour of the first defendant, in reversed of that of the trial court suffer the vice and infirmity of rejection of evidence or flimsy grounds, misconstruction and disregard of relevant and legally admissible on record and relying upon irrelevant and inadmissible evidence?
2.Whether the lower appellate court has referred to or relied upon for any purpose the materials in the proof affidavit filed by the first defendant despite the fact that he deliberately and with defiance avoided appearing in court for cross-examination?
3.Whether the lower appellate court was right in rejecting the evidence of the hand writing expert (PW4) and the evidence of the finger print expert (PW3) in adjudging the question of impersonation and fraudulent execution of the sale deeds, dated 17.09.1992?
4.Whether the judgment and decree of the lower appellate court in decreeing the suit in O.S.No.39 of 2006 is liable to be set aside on the ground that the lower appellate court has reversed the judgment and decree of the trial court without rendering any findings or reasonings while reversing the judgment of the trial court and granted a decree for permanent injunction without rendering any finding as to the possession of the second respondent herein?"
7. The same writ petitioner filed two suits in O.S.No.384 of 1994 and O.S.No.1164 of 2004 before the Sub-Court, Karur and they were subsequently transferred to the Court of Sub-Judge, Kulithalai and were re-numbered as O.S.No.9 of 2006 and O.S.No.38 of 2007. One of the defendant D.Murugesh filed O.S.No.745 of 2005 before the District Munsif Court at Karur and that was also transferred to the Sub-Court Kulithaali and re-numbered as O.S.No.39 of 2007. The two suits filed by the writ petitioner and the suit filed by D.Murugesh, the defendant were jointly tried. Evidence and documents were marked in O.S.No.9 of 2006 and a common judgment and decree was passed on 29.11.2008.
8. During the trial, on the side of the plaintiff, P.W.1 to P.W.4 were examined and 57 documents were filed which were marked as Exs.A1 to A57. P.W.1 was the plaintiff S.K.S.Sivakumar, P.W.2 was P.S.Eswaramoorthy, P.W.3 was Thulasi, Fingerprint Expert and P.W.4 was T.George, Assistant working in the document research section of the Tamil Nadu Forensic Science Department. On the side of the defendants, K.S.Palanis @ Palanisamy was examined as D.W.1 and one Senthilkumar was examined as D.W.2.
9. The first suit filed by the plaintiff, which was re-numbered as O.S.No.9 of 2006, as per the amended plaint, a relief of declaration that the plaintiff was the exclusive and absolute owner of the suit properties was sought for and for a consequential relief of permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties, in respect of S.F.No.161 to the extent of 1.28 acres in Lakshminarayana Samudram Village in respect of Item No.1 and in respect of Item No.2, a portion of the land covering open latrine, vacant site, total extent of 74 cents covered both Item Nos. 1 and 2.
10. In the second suit filed in O.S.No.38 of 2007, (arose out of O.S.No.1164 of 2004), the same plaintiff claimed relief of permanent injunction, restraining the second defendant in that suit viz., D.Murugesh from in any manner interfering with his peaceful possession and enjoyment of the suit properties. The suit properties are the same as that was set out in the earlier plaint.
11. The said D.Murugesh, who is the defendant i the second suit claimed to have purchased the property of the plaintiff sold by the first defendant. During the pendency of the two suits, the defendant Murugesh filed O.S.No.39 of 2007 (arose out of O.S.No.745 of 2005) against the appellant and one Thiyagarjan, seeking for the same relief of interim injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the same properties. The Trial Court after recording the evidence and marking documents, by judgment and decree dated 29.11.2008 granted the relief of declaration and injunction in favour of the plaintiff in O.S.No.9 of 2006. In O.S.No.38 of 2007 also the suit was decreed and decreetal order was merged with the decree in O.S.No.9 of 2006. In respect of the suit filed by D.Murugesh in O.S.No.39 of 2007, the suit was dismissed with costs.
12. Aggrieved by the common judgment and decree, 3 appeals were filed before the lower appellate Court, viz., District Court, Karur in A.S.Nos.10 of 2009, 26 of 2009 and 9 of 2009.
13. In A.S.No.9 of 2009, the appellant is K.S.Palanis @ K.S.Palanisamy, challenging the judgment and decree in O.S.No.9 of 2006. In A.S.No.10 of 2009, the appellant is K.S.Palanis @ K.S.Palanisamy, challenging the judgment and decree in O.S.No.38 of 2007. In A.S.No.26 of 2009, the appellant is D.Murugesh, challenging the judgment and decree in O.S.No.39 of 2007. All the three appeals were tried by the lower appellate court jointly and disposed of by a common judgment and decree dated 26.03.2010. All the three appeals were allowed and in A.S.Nos.9 of 2009 and 10 of 2009, the suit filed by the appellant in O.S.No.9 of 2006 and O.S.No.38 of 2007 dated 29.11.2008 was set aside and the appeal filed by D.Murugesh in A.S.No.26 of 2009 was allowed and the judgment and decree passed in O.S.No.39 of 2007 dated 29.11.2008 was set aside.
14. Aggrieved by the common judgment, the appellant filed three second appeals under Section 100 of the Code of Civil Procedure as noted already. In M.P.No.1 of 2010 in S.A.No.558 of 2010, by an order dated 02.07.2010, an order of interim injunction was granted till 26.07.2010. Subsequently, by an order dated 05.08.2010, both parties were directed to maintain status quo till 08.09.2010. Subsequently, it was extended by orders dated 30.09.2010 and 28.01.2011 and 17.02.2011. The respondent D.Murugesh was already represented through counsel as he had already filed caveat.
15. Subsequently, the learned counsel for the appellant circulated a letter seeking for the consolidation of the writ petitions and second appeals for being heard at an early date. Thereafter, by an order dated 26.07.2010, they were posted before A.Selvam,J by the Administrative Judge. Thereafter, it came to be posted before R.Subbiah,J., vide order dated 18.01.2011. Subsequently, by an order dated 30.03.2011, it came to be posted before A.Arumughaswamy,J. and again by an order dated 27.07.2011, it came to be posted before Aruna Jagadeesan,J. Finally, it was posted before this Court on 14.11.2011.
16. Heard the arguments of Mr.R.Yashod Vardhan, learned Senior Counsel leading Mr.R.Karthikeyan for appellants in S.A.(MD)Nos.557 and 558 of 2010 and Mr.S.Parthasarathy, learned Senior Counsel for the appellant in S.A.(MD)No.559 of 2010 and Mr.T.V.Ramanujam, learned Senior Counsel and Ms.Chitra Sampath, learned counsel appearing for the respondents.
17. It was agreed by both sides that the disposal of the second appeals will also dispose of the writ petitions and hence, the matters were heard at length in the second appeals and orders were reserved on 24.11.2011. Subsequently, on 08.03.2012, the learned counsel for the appellant filed a memo after serving notice on the respondents stating that the criminal case tried before the Chief Judicial Magistrate, Coimbatore in C.C.53 of 2010 (initially filed before the Judicial Magistrate - I, Tiruppur in C.C.No.113 of 2001) for offence under Section 120B, 467, 468, 471, 419, 420 and 109 of IPC against M/s.K.S.Palanis @ K.S.Palanisamy (respondent), Senthilkumar and Seethalakshmi and two others were finally resulted in conviction. They were convicted for 3 years Rigorous Imprisonment. Exhibits relied on by them viz., Exs.A5 and A6 regarding claiming title to the property was found to be bogus and forged document. A copy of the judgment passed by the Chief Judicial Magistrate, Coimbatore, dated 28.02.2012 was also produced. A perusal of the said judgment showed that the document registered in Sub-Registrar's Office Agali, Palakhad District, Kerala State was based upon forged documents.
18. The facts leading to the filing of the cases were as follows:-
The appellant filed O.S.No.381 of 1994 before the Sub-Court, Karur against K.S.Palanis @ K.S.Palanisamy and a paper publication was also inserted by him regarding filing of the suit and warning anybody else from dealing with the property on the same date. The said K.S.Palanis filed written statement on 17.03.1995. In the written statement, he claimed that the appellant had executed a sale deed in favour of the defendant. On coming to know that the existence of certain other documents, the genuineness of which was doubted by the appellant, filed a criminal complaint on 10.04.1995 under Section 200 of the Code of Criminal Procedure before Judicial Magistrate Court No.1, Tirupur. On direction, a first information report was lodged against the defendant K.S.Palanis @ K.S.Palanisamy, his wife P.Seethalakshmi and his son K.P.Senthilkumar and two others on 05.04.1996. The documents were referred for the opinion of the Handwriting Expert attached to the Forensic Science Department. They gave their opinion on 14.07.2000. In the meanwhile, the suit was decreed ex parte on 17.07.2000. On the basis of the opinion given by the Thumb Impression Expert of the Forensic Science Department, dated 19.12.2000, charges were filed against the respondents on 31.01.2001, which was taken on file as C.C.No.113 of 2001 as noted already. The case was transferred to the court of Chief Judicial Magistrate, Coimbatore and was tried as C.C.Case No.53 of 2010 and the respondent K.S.Palanis @ K.S.Palanisamy, his wife Seethalakshmi and his son Senthil Kumar were convicted by judgment dated 28.02.2012 as noted already.
19. Even during the pendency of these proceedings, both Civil and criminal, the respondent K.S.Palanis @ K.S.Palanisamy sold the property under two sale deeds to D.Murugesh on 23.04.2004. Once again, the appellant filed O.S.No.1164 of 2004 on 12.07.2004. Subsequently, on an application being filed, an ex parte decree in O.S.No.384 of 1994 was set aside on 29.11.2004. Thereafter, the person, who allegedly purchased the property D.Murugesh, filed O.S.No.745 of 2005 before the District Munsif Court, Karur for injunction not only against the appellant but against one Thiyagarajan, who is the Cashier of the appellant and secured an interim order against them. When a suit filed by D.Murugesh in O.S.No.249 of 2005 claiming mandatory injunction was dismissed as not pressed and Status Quo ante prior to the grant of interim mandatory injunction was passed, a Civil Revision Petition was filed before this Court in C.R.P.(PD)856 of 2005 against I.A.No.400 of 2005. That CRP was allowed and the assurance given by the learned counsel appearing for D.Murugesh was recorded that he will not repeat such action in future and hence, the Court refrained from issuing any contempt notice. The said CRP was allowed with a direction to pay Rs.5,000/- to the appellant.
20. After restoration of the suit, the case on being transferred to the Additional District Munsif, Karur, the injunction application was dismissed on 28.04.2006. As against the dismissal, the said Murugesh filed CMA.No.8 of 2006 before the District Judge, Karur. He also filed I.A.No.58 of 2006 for grant of police protection for peaceful possession and enjoyment of his property. Without notice to the appellant, the same was allowed on 06.06.2006. In the mean while, in the suit, evidence of the appellant was closed on 02.11.2006. Thereafter, the respondent filed I.A.No.154 of 2006 for examination of his son K.P.Senthilkumar before the evidence of the defendant was recorded. That IA was dismissed on 16.11.2006. As against the order in I.A.No.58 of 2006 in CMA No.8 of 2006, CRP was filed by the appellant before this Court in CRP(NPD)(MD)No.649 of 2006. The said CRP was disposed of by a consent order dated 03.11.2006. CMA pending before the Sub-Court, Karur was transferred to Sub-Court, Kulithalai and the Sub-Court, Kulithalai was directed to dispose of the CMA within a time frame. Till then, the order passed in I.A.No.58 of 2006 granting police protection was kept in abeyance. Upon the transfer of suit to the Sub-Court, Kulithalai, the CMA was renumbered as CMA No.21 of 2006. At that stage, the said K.S.Palanis @ K.S.Palanisamy filed I.A.No.162 of 2006 for appointing a Court Commissioner for recording his cross examination at his residence and that was allowed. The CMA was dismissed by the Sub-Court vide judgment dated 20.11.2006.
21. As against the order in CMA, the respondent Murugesh filed CRP (PD)No.339 of 2007. The said CRP was dismissed on 16.07.2007 and the order passed in I.A.No.171 of 2006 in O.S.No.745 of 2005 filed by Murugesh was confirmed by this Court. A direction was given to the trial Court to expedite the suit. Notwithstanding the direction, the said K.S.Palanis @ K.S.Palanisamy, the respondent herein and the defendant in the suit was dragging the proceedings by filing various applications in I.A.
22. I.A.No.133 of 2007 filed K.P.Senthilkumar to conduct the case on behalf of K.S.Palanis, was dismissed on 25.07.2007. Thereafter, the said K.P.Senthilkumar preferred C.R.P.(PD)1320 of 2007 and that was also dismissed by this Court on 12.10.2007. Since the first defendant K.S.Palanis, has not chosen to let in evidence, his side of the evidence was closed and it was posted for evidence on the side of the second defendant. Once again, K.S.Palanis filed I.A.No.246 of 2007 to dispense with his evidence till he returned from abroad, that application was also dismissed on 13.11.2007. As against the order passed in I.A.No.246 of 2007, the said K.S.Palanis filed CRP(PD)1706 of 2007, which was also dismissed by this Court on 28.01.2008. The second defendant filed an application for sending the photo enlargement of the documents which was impounded by the Judicial Magistrate I, Tirupur. That application was allowed. The Finger Print Expert, P.W.3 was once again re-called in the cross examination.
23. D.Murugesh, at this juncture filed a memo before the Trial Court seeking permission to bring a private handwriting expert to the Court and to take photograph of the disputed document and to submit a report further. That application was allowed by the Trial Court vide order dated 10.06.2008. As against the said order passed by the Trial Court on the memo filed by D.Murugesh, second defendant, the appellant filed CRP(PD)1060 of 2008. That CRP came to be allowed by an order dated 30.09.2008. This Court found that the said D.Murugesh was only purchaser of the property after ex parte decree was passed against the first defendant. In Paragraph 15, the Court observed as follow:-
"15. In the above background of facts, the memo filed by the second respondent, who is a pendente lite purchaser and who purchased the property when an ex parte decree was in force and when a charge sheet for an offence of forgery was pending against the first respondent, cannot be taken to be either maintainable in law or justified on facts. The suit is already 14 years old and the first respondent has employed all his skills in preventing the suit from coming to an end. There is a total lack of bona fides on the part of the respondents in seeking such a relief."
The CRP was allowed. The order permitting the second defendant in the suit from bringing an expert was set aside.
24. Before the Trial Court, proof affidavit of K.S.Palanis @ K.S.Palanisamy remained without his getting into the box for cross examination. His Son Senthil Kumar was examined as D.W.2. The Trial Court found that the defendant who claims to have originally registered the sale deed, did not produce it the theory put up was that those documents were lost in transit when he was going from Agali to Kottakara in Kerala State and only Sub-Registrar Office copies were filed as Exs.A5 and A6. Since the defendant Murugesh came with the theory that he purchased the suit properties from the first respondent namely K.S.Palanis @ K.S.Palanisamy, the onus was on him to prove that his vendor K.S.Palanis @ K.S.Palanisamy had title to the property. The original title of the appellant was not disputed. Unless the defendant in the suit proves that their purchase was legal, valid and bonafide by leading evidence, their stand cannot be believed. The further defence set up that there was an arbitration or panchayat before the Ottapalam Court and a compromise talks between the parties including the mother of the appellant, issues were sought out and the appellant had agreed to give the suit property to the K.S.Palanis @ K.S.Palanisamy also was not proved and deliberately K.S.Palanis did not offer himself for cross examination. Hence, the theory of consent being granted by the appellant was not proved. With reference to the issue that the documents were not genuine, the Trial Court held that the documents relied on by the defendant were not executed by the appellant. The Trial Court in paragraphs 63,64,65,66 and 67, held as follows:-
63. On behalf of the plaintiff for the purpose of proving non execution of the disputed sale deeds, the plaintiff relies upon the evidence of experts. PW3 is the thump impression expert who compared the disputed signature of the thump impression of the plaintiff, 1st defendant, DW2 and some other persons. PW4 is the hand writing expert who compared the disputed signatures, the admitted signatures of the parties and other persons. Now let us take the evidence of PW3. According to the evidence of PW3, thump impression which is available in the register which was sent for from the Sub Registrar Office, Agali did not tally with that of the plaintiff, the thump impression tallies with that of the DW2.
64. When the original documents are not before the Court, signature and thump impressions of the vendor are available only in the register maintained by the Sub Registrar. So that register was send for from Agali Sub Registrar Office by Judicial Magistrate No.1, Tiruppur, in the criminal case which is pending before the Court between the plaintiff and 1st defendant through Police it was sent to the Forensic lab for the purpose of their opinion. PW3 examined the documents.
65. So according to her evidence the disputed thump impressions were marked by her as Q2 and Q7. The admitted thump impression was marked as S2. DW2'2 admitted thump impression was marked as S7. On comparisons he came to the conclusion that the disputed thump impressions marked as Q2 and Q7 tallied only with that of S7.
It did not ally with that of the admitted thump impressions of the plaintiff.
66.So according to the evidence the inference that can be drawn as per argument of the plaintiff is that only DW2 not only impersonated plaintiff but fabricated his signature in the disputed sale deeds, as well as in the thump impression Register send for. So according to the plaintiff, the onus on his part has been discharged.
67. PW4 is the hand writing expert. He would also deposed that the disputed signature of the plaintiff were marked by him as Q1 and Q6. The admitted signature were marked as S1 to S10. The sample signatures were marked as S11 - S23. On comparison he found that the admitted signature of the plaintiff did not tally with that of the disputed signatures marked as Q1 to Q6. So according to plaintiff form the evidence of PW4 the inference that can be drawn is that the plaintiff has not executed sale deeds.
25. The story put forth by the defendant that the originals were lost during transit was not believed by the Trial Court and it held that it was put up for the first time when production of documents were sought for and no averments were made in the written statement. It specifically rendered a finding that Exs.A5 and A6 were tainted with forgery but also with illegality. It also rendered a finding that K.S.Palanis @ K.S.Palanisamy, who volunteered to examine as D.W.1 after filing proof affidavit did not turn up for cross examination and this is a strong factor to disbelieve the evidence of the defendant in the suit. The Trial Court found that the appellant is the owner of the property and there was no transfer of ownership and therefore, it granted declaration and a permanent injunction and dismissed the suit filed by D.Murugesh who claimed to have purchased the property from his vendor.
26. The lower appellate Court in its common judgment dated 26.03.2010 reversed the judgment of the Trial Court on the ground that it was appellant being the plaintiff failed to establish that Exs.A5 and A6 are fraudulent documents. The findings and materials relied on by the appellant was insufficient to establish Exs.A5 and A6 are fraudulent documents. There cannot be a presumption that those two documents are fraudulent. The Appellate Court took exception in the trial Court relying upon evidence of PW3 the Thumb impression report marked as Ex.A17 as it was not admissible document. The Thumb Impression compared by the PW3 was also not produced. The Appellate Court also found Ex.A30 was a photocopy and not a certified true copy and the fate of original was not not explained. Similarly, it also found that the evidence of PW4 was also not helpful. The appellant when he produced the documents in Exs.A5 and A6 and claimed that it was obtained from the office of Tahsildar was not believable and he must have had copies of the documents even before 1994. That he obtained the copies of sale deed only only after the purchase made by the second defendant was also false since the second defendant purchased the suit properly only on 23.04.2004 whereas the suit was filed on 31.08.1994 along with Exs.A5 and A6. Hence he did not come to this Court with clean hands. Since there was several litigations between plaintiff and the K.S.Palanis, matters were attempted to be resolved by mediators and as per Ex.B1 the appellant withdrew the arbitration OP filed before the Sub-Court, Ottapalam. While the Trial Court found loop holes in the story of the defendant, it did not examine the evidence of the appellant/plaintiff before the Trial Court.
27. Thereafter, curiously, though D.W.1 had only filed a proof affidavit and did not make himself available for cross examination, yet it looked into the proof affidavit and found that K.S.Palanis was 82 years old at that time and he should have been cross examined by appointing an Advocate Commissioner. The explanation offered by defendant that he was not doing well and weak and infirm due to old age was not accepted. The Trial Court failed to eschew the evidence of D.W.1 instead the Trial Court had caused aspersions on the conduct and character of the first defendant. Since the appellant did not raise objections to the evidence of D.W.1 available on records and also did not file any petition to reject the evidence of D.W.1., it cannot be presumed that the failure of first defendant to appear before the Trial Court has weakened the case of D.W.1. He had appeared before the Court and filed proof affidavit. He should have been cross examined on the same day. Since the appellant did not follow the procedure, he cannot take advantage of the fact that the failure of the first defendant to get into the box has weakened the case of the defendant.
28. The Appellate Court after collectively reading the pleadings, evidence and documents is of the view that it was the plaintiff had failed to prove the case that Exs.A5 and A6 are created fraudulently. Therefore, it dismissed the suits filed by the appellant and allowed the suit filed D.Murugesh, the contesting respondent. It found that in O.S.No.9 of 2006 and 38 of 2007, there was no reference about the lease executed in favour of PW4. Even the application filed in I.A.No.196 of 2009 for examining fingerprint expert was also not necessary and that the Murugesh was entitled to the relief of injunction as he had purchased the properties.
29. Taking the last finding, viz.,that there was no attempt to eschew the evidence of D.W.1 and that D.W.1 should have been cross examined on the same day of his appearance and also the Court should have allowed him to be examined with an Advocate Commissioner, it was argued by Mr.R.Yashod Vardhan, learned Senior Counsel that such a finding by the lower appellate Court was unwarranted as the issue between the parties were already settled and there were three attempts made by the first defendant to avoid getting into the box. First time he sought for giving substituted evidence by his son K.P.Senthilkumar in I.A.No.154 of 2006 and that was dismissed on 16.11.2006. I.A.No.162 of 2006 for recording his cross examination at his residence by appointment of the Advocate Commissioner, was also dismissed on 05.12.2006.
30. As against I.A.No.162 of 2006 in O.S.No.9 of 2006 in refusal to permit Advocate Commissioner for recording the cross examination, CRP (PD) 1047 of 2006 was filed before this Court and that CRP was dismissed on 21.06.2007. This Court in Paragraphs 8 to 10 observed as follows:-
"8. No doubt examination by the commissioner under Order 10 rule 4 gives an opportunity to really sick and people who are unable to move out. But that cannot be utilised for persons who are able to come to the Court.
9.Admittedly, in the present case, the respondent is able to attend the court Tirupur. When he is able to attend the Court at Tirupur, it cannot be stated that he cannot come to the court at distance. Therefore this Court finds that the order passed by the lower court is based upon materials not relevant and there is a failure to consider the pleadings putforth by the petitioner before the lower court. Therefore, the lower court's order is set aside and the Civil Revision Petition is allowed.
10.The learned counsel for the respondent submitted that the cross examination of the respondent may be completed in a day considering his age. This Court finds that such a gesture can be shown to an old person and therefore, the lower court is directed to expedite the case and try to complete the cross examination as quick as possible."
(Emphasis added)
31. It was rather unfortunate the lower appellate court found fault with the trial court for not looking into the case properly itself has failed to take note of the order passed by this Court on the very same issue and had reached the conclusion contrary to the direction issued by this Court and granted a finding which in essence casting doubts on the merits of the order passed by this Court. In the name of attacking the Trial Court, in essence, the lower Appellate Court is attacking the order passed by this Court in the CRP. Even after this Court directed the parties to complete the evidence, yet another attempt was made by the defendant to file I.A.No.133 of 2007, seeking for permitting his son K.P.Senthilkumar to appear as power agent and that IA was dismissed on 25.07.2007 and once again the said defendant was before this Court with CRP(PD)1320 of 2007. That CRP came to be dismissed by this Court on 12.10.2007.
32. In paragraphs 10,11 and 12 of the order, it was observed as follows:-
"10. As rightly pointed out by the learned counsel appearing for the first respondent in Civil Revision Petition No.1047 of 2006, this Court has given a clear finding that the first respondent is able to attend the Court situates at Tirupur. Therefore, it is quite clear that even though the first respondent has attained senility, he is able to attend the Court, so as to give evidence.
11. The defence taken by the first defendant in the original suit No.9 of 2006 is that the plaintiff has executed the sale deed in question after receiving due consideration. Therefore, the first defendant alone is the competent person to speak about the due execution and also passing of consideration of the sale deed which is in dispute. Of course, it is true that the present power agent of the first defendant has attested the sale deed in question. The power agent of the first defendant can at the most speak about the role of attestation and not passing of consideration of the sale deed in dispute. Therefore, the first defendant is bound to give evidence with regard to due execution and also passing of consideration of the sale deed in dispute. On that ground also, the present petition cannot be allowed.
12. The Court below after having threadbore discussion has rightly dismissed the petition. In view of the foregoing elucidation of factual premise this Court has not found valid force in the argument advanced by the learned counsel appearing for the revision petitioner and whereas the argument advanced by the learned counsel appearing for the first respondent is really having subsisting force."
33. When this Court has found no fault the Trial Court's rejection of the first defendant (D.W.1) from getting into the box for cross examination, the lower appellate court, for reasons best known has cast aspersions on the Trial Court's order, which is highly unwarranted. Thereafter, yet another attempt made by the first defendant K.S.Palanis to file I.A.No.246 of 2007 to postpone cross examination till he returns from foreign country was also dismissed by the Trial Court on 13.11.2007, which became a subject matter in CRP(PD)No.1706 of 2007. After giving a direction to the Trial Court to give one more opportunity on or before 18.02.2008 before the Trial Court, this Court held that the first defendant should not file any further petition on this aspect either before the Trial Court or before this Court. In paragraph 9, it was observed as follows:-
9. ...Since, the matter is a very old one of the year 1994, the petitioner is given one last opportunity of examining himself on or before 18.02.2008 before the trial Court as otherwise once and for all he would be loosing his right to examine himself before the trial court and no more opportunity will be given to file any petition on this aspect either before the lower court or before this court. The trial Court is directed to dispose of the entire matter itself as per law within a period of two months from the date of receipt of a copy of this order and report compliance."
34. Even after the date was fixed for his evidence, the first defendant avoided coming to the Court. Therefore, the Trial Court was correct in making strong observation against the defendant's conduct especially in the context that he has filed several CRPs and attempted to drag on the proceedings and finally never got into the witness box.
35. Mr.R.Yashod Vardhan, learned Senior Counsel appearing for the appellant, in this context referred to the judgment of the Nagpur High Court reported in AIR (33) 1946 Nagpur 173 [Maganlal Radhakishan v. Emperor] and referred to the following passages found in Page 180 and contended that without the cross examination of the witness, mere filing of proof affidavit cannot be taken note of:
"The learned Advocate-General's argument would have great force if the admissibility of evidence were solely dependent on the competency of the witnesses. That is however not so. A witness may be competent in view of S.118, Evidence Act, yet his evidence may be inadmissible if it does not speak to facts but to opinions, inferences and beliefs (S.45) or if it refers to what the witness had not seen and heard (S.60), i.e., hearsay, or when the witness happens to be a police officer and he seeks to prove a confession made to him (S.25). Coming to the particular question before us, SS.137 and 138, Evidence Act, clearly show that cross examination is as essential as examination-in-chief for eliciting from a witness material which is to constitute evidence. In 9 W.R.587 at page 588 [Gorachand Sircar v. Ram Narain] it was observed:
"Now it is certainly the right of every litigant, unless he waives it, to have the opportunity of cross-examining witnesses whose testimony is to be used against him....It follows that evidence given when the party never had the opportunity either to examine or to cross-examine, as the case may be, or to rebut by fresh evidence, is not legally admissible as evidence for or against him, unless he consents that it should be so used".
In 24 Cr.L.J.595 at Page 597 [Moti Singh v. Dhanukdhari Singh] it was observed:
"Now, it is an elementary principle of law that an examination-in-chief of a witness, without an opportunity being offered to the opposite party to cross- examine, is not legally acceptable. Therefore the evidence of the witness in the present case was not such as upon which the Magistrate could act."
The rule in England is in no way different as will appear from S.831 at page 756 of Vol.XIII of Halsbury's Laws of England (Hailsham Edition). There it is said:
"Any party is entitled to cross-examine any other party or his witnesses, in the same litigation, and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross examination".
This aspect of the importance of cross-examination comes into bold relief in S.33, Evidence Act. In A.I.R. 1930 P.C.79 at p.81 their Lordships of the Judicial Committee of the Privy Council rejected as not admissible a previous deposition of a witness had been examined, the party sought to be affected by his previous deposition had not the opportunity or right to cross-examine him."
36. The learned Senior Counsel also referred to the judgment of the Supreme Court reported in (1999) 3 SCC 573 [Vidhyadhar v. Mankikrao and another] and stated that if party to the suit does not appear into the witness box and state his own case on oath and does not offer himself for cross examination by the other side, the presumption will arise with the case set up by him is not correct. Reliance was placed on the following passage found in Paragraph 17:
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box."
37. The learned Senior Counsel thereafter referred to the exhibits filed before the Trial Court in order to prove that there could not have been a sale as alleged by the defendant. He referred to the sale deed executed, by his wife and mother dated 13.07.1979 marked as Ex.A19, wherein he had purchased the property from them being Directors of Karur Transport Company and owner of the property on a sale consideration of Rs.1 lakh.
38. In the written statement filed by the first defendant, he had made several statements which is within his own knowledge including the so called compromise between the parties pending in O.S.No.364 of 1994 which re-numbered as O.S.No.9 of 2006. Hence, he did not contest the suit and allowed it to go it for an ex parte. There was no attempt to prove recording of any compromise. The Finger Print expert who was examined gave his expert opinion and that evidence cannot be disbelieved. Whereas D.W.2 son of first defendant K.S.Palanis has given contrary to the stand taken by D.W.1. In his evidence, he has stated the sale deeds were obtained from Sub Registrar Office and while they were returning in the bus, it was lost unexpectedly. In the written statement filed, there was no reference to any document being lost by the defendant. But in chief examination, he had stated that he went to the registrar office to collect the document only after one month and at that time appellant sent some one along with D.W.2 as his representative and that person, in the bus stealthily took those original documents and acted as if it was found missing and gave a paper advertisement in Malayalayam Paper and he gave those documents to the appellant who was his paternal uncle.
39. In this context, the learned Senior Counsel referred to a judgment on the question of the evidence of finger print expert, which was disbelieved by the lower appellate court referred to the judgment of the Supreme Court reported in AIR 1979 SC 1708 [Jaspal Singh v. State of Punjab] for contending that identifying the thumb impression is an exact science and does not admit any mistake or doubt. Therefore, the opinion given by the fingerprint expert cannot be eschewed from the evidence.
40. The learned Senior Counsel also doubted the registration of the property situated in Karur to be registered at Agali, Palakhad in Kerala State. For the purpose of registration at Kerala another property was included so as to show that there were two properties being sold and for the purpose of proving the registration, there must be evidence to show that the property in Kerala including the sale deed really exists and the vendor had title or right over the said property. Inclusion of fictitious property in Kerala for the purpose of document registered in Kerala is a fraudulent act and it should be held to be void.
41. In this Context, he placed reliance on the judgment of a Division Bench of this Court reported in 1988 (1) MLJ 477 [M.Mohammed Kassim and others v. C.Rajaram and others} and made a reference to the following passage found in Paragraph 28:
"28. ...Therefore, the registration law is positive that a document should be registered only before the Sub Registrar within whose jurisdiction the property is situate with certain exceptions. It is also seen from the above provisions that a document not registered in accordance with the said provisions of Act has no effect on immovable property comprised therein. In order to show that the sale deeds have been validly registered, there must be evidence to show that the properties of Kerala included in the sale deeds really exist and that the vendors had any semblance of title or right over the same. It is the case of the plaintiff that the inclusion of a fictitious property in Kerala in the sale deeds just for the purpose of getting the documents registered in Kerala, is a fraudulent act, therefore, the documents should be held to be void. Reliance was placed on the decision of the privy Council in HARENDRA LAL RAY v. HARIDASI DEBI, 27 M.L.J>80 : 23 I.C. 637: A.I.R.1914 P.C. 67. In that case, the properties comprised in a deed of mortgage were all situated outside the limit of Calcutta except for a portion which did not belong to the mortgagor and which neither the mortgagor nor the mortgagee intended to be included in the mortgage. In those circumstances, the Privy Council held as follows:-
"Their Lordships hold that this parcel is in fact a fictitious entry, and represents no property that the mortgagor possessed or intended to mortgage, or that the mortgagee intended to form part of his security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to be charged in fact exists, is a fraud on the Registration Law, and no registration obtained by means thereof is valid".
The said decision was followed in BISWANATH PRASAD v. CHANDRA NARAYAN CHOWDHURY, I.L.R. 48 Cal.509. Again, the said question was considered by the Privy Council in COLLECTOR, GORAKHPUR v. RAM SUNDAR, 67 M.L.J. 274: 159 I.C. 545: A.I.R. 1934 P.C.157. In that case, an insignificant item of property included in the sale deed was of no value, both in respect of the interest taken in it and in respect of its complete inaccessibility. It was incapable either of being utilised or enjoyed by the purchaser, the vendor refused to include in the sale any property to which these disadvantages did not attach in the place where registration was effected. On those facts, the Privy Council held as follows:-
"One of two inferences alone was possible, either that it was never intended by either party that the item should, for any purpose other than that of registration, be subject of sale at all, or that the vendor only included it, because he knew that it never could become an effective subject of enjoyment or occupation by the purchaser. The so-called sale was a mere device to evade Registration Act."
Again, the Privy Council had an occasion to go into the question in VENKATARAMA RAO v. APPA RAO, 59 M.L.J.53: A.I.R. 1930 P.C. 91, wherein it was held as follows:-
"Where the property sought to be transferred by a deed is situated in one district but a small strip of land situated in another district is included in the deed, without any intention on the part of the parties that it should pass under the deed but solely with a view to obtain registration in the latter district, it amounts to fraud on the law of registration, being a device to evade the Registration Act, and the registration obtained in such a way is not valid. There being no effective registration, a suit for possession of basis of the deed does not lie".
The Privy Council further held as follows:-
"The criterion by which the question as to validity or otherwise of the registration is to be decided is whether upon the facts established by evidence, the small strip of land was really intended to pass under the deed. The motive may be immaterial if the requirements of law have been complied but of this the intention is critical".
These Privy Council decisions followed the principles laid down by them in HARENDRA LAL v. HARI DASI DEBI, 27 M.L.J.80: A.I.R. 1914 P.C.67, referred to above. The preponderance of legal opinion in respect of such a document where fictitious properties were included in a sale deed or where an insignificant property over which the vendor has no title or where over such property the vendor has no attention of conveying any title, is that it is a fraudulent document and as such it is void. It is needless to say that when there is a specific provision in the Registration Act that a document should be registered in a particular manner and in a particular place, it should be dealt with according to law. The authority to register arises from the existence of some property within the jurisdiction of the registering officer and if the property is property as the term is understood in law and is capable of ownership and enjoyment and if title is intended to pass,then whatever may be the object with which it is included in the document, the registration would be valid. But where no property exists or on the property the vendor has no semblance of right and the parties never intend that the title should pass under the property, then it must be held that such an inclusion is a document amounts to fraud on the Registration Law and no registration obtained by means thereof is valid. No such fictitious item, inserted to give a colourable appearance to the deed relating to the property in Kerala, when in reality such was not the case, could bring the deed within the jurisdiction of the registering authorities of Kerala. It has been clearly established in this case that none of the parties to these documents know about the existence of the Kerala property mentioned in the documents."
42. EX.B1 said to be an affidavit sworn to by the appellant on 10.04.1993, was clearly a forged document as can be seen from the signature of the appellant and the signatures in all the three pages very much differed from each other. No person was examined for proving the signature found in the said document.
43. Mr.T.V.Ramanujam, learned Senior Counsel appearing for the defendant states that Exs.A5 and A6 cannot be said to be forged documents and there was no independent evidence examined to prove that it was forged. P.W.3. is not competent to speak as he was only an fingerprint expert. That the appellant in his evidence, P.W.1 has admitted that he was law graduate but he is not a practicing lawyer and he knows significance of filing an affidavit. He produced copies of sale deeds and gave contradictory evidence regarding the production of the copies.
44. The learned Senior Counsel referred to the judgment of the Supreme Court reported in 2010 1 SCC 83 [Grasim Industries Limited v. Agarwal Steel] to submit that when a person signs a document presumption is that he would read the document properly and understood it and only then affixed his signatures thereon, unless there is proof of force or fraud. Reliance was made to paragraph 6, which is as follows:-
"6. In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case. There is no allegation of force or fraud in this case."
45. Thereafter the learned Senior counsel referred to the judgment of this Court in 2011 (1) CTC 694 [Gopi and others v. H.David and others] for contending mere inclusion of property without any intention to commit fraud on Registration will not render the registration void. There should be strong evidence to prove commission and fraud in invoking Section 28 and the burden of proof lies on the person who attacks the validity of registration.
46. He also referred to the judgment of the Division Bench of this Court reported in 2004-2-L.W.(Crl.)814 [Suresh @ Sureshkumar @ Thennarasu v. State, by Inspector of Police] for contending that in the absence of evidence to show that finger prints were lifted by the authorities by following the procedure, they cannot be taken to be a conclusive proof of evidence.
47. He further referred to a judgment of this Court reported in 1993 L.W.(Crl.)502 [Rajendran v. State by Ramanayakenpalayam Police Station] for contending that in case of Fingerprint expert's opinion under Section 45 of the Evidence Act is attracted, the duty of the Court is to find out by comparison of the ridge, characteristics, core and delta whether the two impressions are identical.
48. The learned Senior Counsel also submitted that the suit is barred by limitation under Section 34 of the Specific Relief Act.
49. Mrs.Chitra Sampath, learned counsel appearing for the respondent after supporting the stand of T.V.Ramanujam referred to Ex.A35, which was an advertisement given in the Malayalam newspaper that document Exs.A5 and A6 were lost. There is discrepancy in the special complaint in the FIR given marked as Exs.A22 and A23. Evidence of P.W.2 Fingerprint expert was also contradictory and it is not safe to rely upon their evidence, but discredited the evidence of Exs.A5 and A6.
50. In reply, Mr.Yashod Vardhan, learned Senior Counsel submitted that D.W.2 was the son of D.W.1 (K.S.Palanis) itself will speak volume about the conduct of D.W.1. The Trial Court had taken note of all relevant facts and the Appellate court had unjustly interfered with the same.
51. With reference to the limitation pleaded by the respondents, the learned Senior counsel referred to the judgment of the Delhi High Court reported in AIR 1992 Delhi 118 [Sanjay Kaushish v. D.C.Kaushish and others] for contending in case of void document, a person affected can file a suit seeking substantive relief and it is unnecessary to seek for declaration that the document is void or any consequential relief of cancellation of the same. Reference was made to the following passages found in paragraphs 43 and 44 which is as follows:-
"43. Be that as it may, in my view, the well settled principle of law is that if a particular document or decree is void the person affected by the said document or decree can very well ignore the same and file a suit seeking substantive relief which may be available to him without seeking any declaration that the said decree or document is void or any consequential relief of cancellation of the same.
44.The next question is of limitation. It is evident that it averments in the plaint are to be taken into consideration, then the decree and the other transactions are to be treated as void, sham and fictitious documents. Therefore, it was not necessary for the plaintiff to have sought any declaration for avoiding the said document and the decree and plaintiff could file a suit claiming substantive relief which is a relief of partition and other ancillary reliefs flowing from the same. The limitation for filing the suit for partition start from the date the right to sue accrues."
52. In the light of the rival contentions, it has to be seen whether the second appeals are liable to be allowed. As already noted, the defendant has set up special defence with reference to various factors to deny the title of the appellant has never got into the box for cross examination. Therefore, in respect of those facts the onus on him is to prove the same. The lower appellate Court has made a special plea on his behalf disregarding the findings rendered by this Court in more than one CRP and hence, this Court do not find any justification in the lower appellate Court in trying to hold the case of the defendant. Once there is no evidence on the side of the defendant, merely finding fault with the case of the plaintiff, the defendant cannot establish their alternative theory pleaded before both Trial Court and the lower Appellate Court. The contention raised by the appellant that the first defendant has avoided coming to the box and had not faced cross examination only because his defence was so weak and that any statement given by him in the cross examination will also weaken his case in the criminal trial and perhaps for that reason he would have avoided getting into the witness stand. But that cannot be a ground to deny the claim made by the appellant.
53. As correctly pleaded by the appellant, he has set up cogent case which has been proved to the extent possible. The story put up by the respondent that the documents were lost was not convincing and even the evidence of D.W.2 has many holes which is not satisfactorily explained. Family panchayat and arbitration is also not believable and the only attempt by the respondents herein is to somehow grab the property of his own brother's son by hook or crook. In fact his subsequent conviction as pointed out by the appellant is a clear proof that he will go to any extent in creating and forging documents to covet the valuable property and despite orders of the Court refused to appear before the trial Court for cross examination. Lastly, D.Murugesh, the other respondent claimed that he was bonafide purchaser also cannot be accepted. He had purchased the property from a vendor who already suffered an ex parte decree and any sale made during the relevant period is clearly invalid. Finally, as held by the Trial Court that the appellant is the true owner and therefore, purchasing property from some other personsis also found out to be a fraud and who has no scruples, he cannot claim any title deriving from such a sale.
54. Under the said circumstances, no relief can be given to the said so called subsequent purchaser. In view of the above, all the three second appeals are allowed and the judgment and decree passed by the lower appellate Court namely the District Court, Karur in A.S.Nos.10 of 2009, 26 of 2009 and 9 of 2009 dated 26.03.2010 will stand set aside and the judgment and decree passed by the Trial Court namely Sub-Court, Karur in O.S.No.9 of 2006, O.S.No.38 and 39 of 2007 dated 29.11.2008 will stand restored. The three second appeals will stand allowed.
55. In view of the fact that the appellant has succeeded in the three second appeals, all the three writ petitions filed by him earlier to the second appeals will also stand allowed as prayed for. Parties are allowed to bear their own costs. Connected miscellaneous petitions are closed.
svki To
1.The Executive Officer, Inam Karur Municipality, Kulathupalayam, Vengamedu,Karur-1.
2.The Superintending Engineer, Tamil Nadu Electricity Board, Kovai Road, Karur.
3.The Executive Engineer, Tamil Nadu Electricity Board, Karur.
4.The Assistant Electrical Engineer, Operations & Maintenance, Tamil Nadu Electricity Board, Karur.
5.The Assistant Accounts Officer, Revenue Branch, Tamil Nadu Electricity Board, Kovai Road, Karur.
6.The District Collector, Karur District, Karur.
7.The Tahsildar, Taluk Office, Karur Taluk, Karur.
8.The Deputy Tahsildar, Head Quarters of Taluk office, Karur Taluk, Karur.
9.The Village Administrative Officer, L.N.S. Village, Karur Taluk, Karur.
10.The District Court, Karur.
11.The Subordinate Court, Kulithalai.