Madras High Court
Vellai Gounder Alias Rajamanicka ... vs Ponnan on 21 July, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.07.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.1288 of 2003
1.Vellai Gounder alias Rajamanicka Gounder (Died)
2.Babu alias Elumalai ...Plaintiffs
[Legal heirs not impleaded owing to endorsement
on C.M.P.No.13917/2021 dated 21.07.2022]
Vs.
Ponnan ... Defendant
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.6 of 2002 dated 07.10.2002 on
the file of the Sub Judge, Maduranthakam, Chengalpet District, by
confirming the decree and judgment dated 28.09.2001 passed in
O.S.No.263 of 1996 by the learned District Munsiff, Maduranthakam,
Chengalpet District.
For appellantss : Mr.Nagu Sah
For Respondent : Mr.M.S.Subramanian
JUDGMENT
The defendants in O.S.No.263 of 1996 on the file of the District Munsif Court, Maduranthakam are the appellantss herein. https://www.mhc.tn.gov.in/judis 2
2. The said suit has been filed by the respondent / Ponnan against present appellants Vellai Gounder alias Rajamanicka Gounder and Babu alias Elumalai seeking declaration of title and permanent injunction to protect possession with respect to the suit schedule property.
3. The suit schedule property was said to be situated in Acharapakkam Firka, Maduranthakam Taluk, Madura Porpanankaranak Village in Sy.No.188/4, Old Sy.No.91/3 (Part) and is a vacant site measuring 0350 Sq.metres which is about 0.09 cents with patta No.289.
4. The said suit came up for consideration before the District Munsif, Maduranthakam on 28.09.2001 and the suit, after examining the evidence produced, was decreed. Thereafter, the present appellants/defendants filed A.S.No.6 of 2002 before the Sub Court at Mayiladuthurai. Along with the Appeal Suit, three Applications had also been filed under Order 41 Rule 27 of CPC. Judgment was delivered in not only the Appeal Suit but also in the Interlocutory Applications on 07.10.2002. The documents which were sought to be produced as additional evidence were taken on record and marked as additional https://www.mhc.tn.gov.in/judis 3 documents. On consideration of the totality of the evidence, the First Appellate Court allowed the Interlocutory Applications, but dismissed the appeal suit. Aggrieved by such judgment, the defendants have filed the present Second Appeal.
5. The Second Appeal had been admitted on the following substantial questions of law;
"1.Whether the Courts below are correct in declaring the suit for declaration on the basis of the patta? and
2.Whether the plaintiff has established his title to the suit property and entitled to the relief of declaration and to the relief of permanent injunction?"
6. Pending the Second Appeal, the first appellant / father of the second appellant had died and C.M.P.No.13917/2021 had been filed to bring on record his legal heirs not as further appellants but as respondents. Notice had been directed through Court but notice could not be effected. However, it is fairly admitted by the learned counsels that it was the second appellant who laid a claim of title to the property and the first appellant was therefore not required but was only impleaded by the respondent as a defendant in the suit and does https://www.mhc.tn.gov.in/judis 4 not have any right title over the property. In view of that said particular statement, in the said Civil Miscellaneous Petition following endorsement had been made by the learned counsel for the appellants;
"The above C.M.P.No.13917/2021 is not pressed."
7. In view of the said endorsement, the CMP stands dismissed but however the Registry may note that the first appellant has died and also indicate that legal heirs are not recorded owing to the endorsement dated 21.07.2022.
8. Heard arguments advanced by Mr.Nagu Sah learned counsel for the appellants and Mr.M.S.Subramanian, learned counsel for the defendant.
O.S.No.263/1996 (District Munsif Court, Maduranthakam):
9. The plaintiff - Ponnan had filed the suit, as aforesaid, for declaration of title, permanent injunction and to protect possession. He claimed to be the exclusive and absolute owner of the suit property which is a vacant land and further claimed that the Government had recognized his possession and had also granted him patta and also https://www.mhc.tn.gov.in/judis 5 paid Kist for the said occupation of the land. Along with the plaint, the original patta in his name bearing No.289 and the Kist receipt for the said patta were also produced as Documents. He stated that the defendants were interfering with his possession and they were strangers and they have no right or title over the property and therefore to establish title and to protect possession, the suit was filed.
10. The defendants had entered appearance on receipt of suit summons and also filed a written statement. In the written statement, they disputed and denied the title of the plaintiffs and particularly pointed out that the title of the plaintiff is based on the patta and doubted whether such document would grant title to the plaintiff.
11. It was also stated that the second defendant Babu @ Elumalai, who is contesting the present Second Appeal had earlier filed O.S.No.225/1996 with respect to the same property but wrongly mentioning that it was situated in Sy.No.188/6 and Old Sy.No.91/4. It had been stated that the said suit had been dismissed on merits. The defendants had claimed title over the property by way of a series of sale deeds. The 2nd defendant claimed that he had purchased the property from one Murali S/o. Gopalchetty on 27.03.1996 and further https://www.mhc.tn.gov.in/judis 6 claimed that the said Gopal Chetty had purchased the property in the year 1981 from one Murugesan, who in turn had purchased the property in the year 1972 from Beema Chetty and others. It was therefore stated that the documents give a clear line of title to the 2nd defendant and therefore the 2nd defendant contested the claim of the plaintiff and urged that the Court should dismiss the suit.
12. On the basis of the aforementioned pleadings, the learned Trial Judge had framed the following issues for trial;
1) Whether the plaintiff was entitled to seek declaration of title of the suit schedule property?
2) Whether the plaintiff was entitled to seek permanent injunction for the suit schedule property and
3) to what other reliefs the plaintiff was entitled to?
13. During the course of the trial, the plaintiff examined himself as P.W.1 and also examined two other witnesses as P.W.2 and P.W.3. The 2nd defendant examined himself as D.W.1 and examined one more witness as D.W.2.
14. The plaintiff marked A.1 and A.2, namely, the patta granted https://www.mhc.tn.gov.in/judis 7 and the Kist receipt paid prior to the institution of the suit. The defendant marked the sale deed dated 27.03.1996 in his favour as Ex.B.1 and marked the previous sale deed dated 19.09.1981 as Ex.B.2, the sale deed prior to that dated 27.11.1972 as Ex.B.3 and an agreement of sale dated 23.03.1996 as Ex.B.4. As Court Exhibits, Exs.X1 and X2, were another patta and kist receipt in the name of Pachyappan were also marked.
15. On the basis of the aforementioned evidence produced, the District Munsif proceeded to examine whether the reliefs namely declaration of title and injunction could be granted or not. The learned District Munsif first relied on Ex.B.4, agreement produced which was in the name of Murugan @ Murali S/o. Gopal. It had been stated that the sale consideration was for total Rs.7,000/- and an advance of Rs.2,000/- was given. The said document had been entered into on 23.03.1996 on stamp papers purchased on a later date on 25.03.1996. Therefore the District Munsif expressed a reasonable doubt over the genuinity of the said document. It must be mentioned that the said document was also not registered. This created a further doubt in the mind of the District Munsif even with respect to the name of the son of Gopalchetty, whether it was Murali or Murugan. https://www.mhc.tn.gov.in/judis 8
16. It was therefore stated that though the 2nd defendant relied on series of sale deeds, the same could not be taken on their face value. It was also observed that the earlier suit filed for declaration of title in respect of same property in O.S.No.255/1996 had been dismissed. In view of all these facts, and comparing these documents with the patta produced by the plaintiff, the learned District Munsif, owing to the grant of patta in the name of the plaintiff who was also in possession, decreed the suit. The relief of declaration of title was granted and possession was recognized and therefore injunction was also granted.
A.S.No.6 of 2002 (The Sub Court, Maduranthakam)
17. Before the First Appellate Court, a series of applications under 41 Rule 27 of Code of Civil Procedure had been filed seeking to produce further documents particularly revenue records.
18. The First Appellate Court, by judgment dated 07.10.2002 took up for consideration the Appeal suit and also the Interlocutory Applications. It was found that the Interlocutory Applications referred to documents which were official records and therefore, the documents https://www.mhc.tn.gov.in/judis 9 produced under I.A.No.84 of 2002 were marked as Exs.B.6 and B.7 and documents produced under I.A.Nos.91 of 2002 were marked Ex.B.8 and B.9 and the documents produced under I.A.No.107/2002 were marked as Ex.A.3.
19. During the course of hearing of the Second Appeal, this Court had repeatedly asked Mr.Nagu Sah, learned counsel for the plaintiff about the procedure which had been adopted by the First Appellate Court in marking the documents.
20. Under Order 41 Rule 27 CPC an examination is required with respect to relevancy of the documents. The procedure to take such documents on record have been provided in Order 41 Rule 28 CPC. They stipulate that the documents can be admitted to evience either by the same Court or by the trial Court and if required oral evidence has to be adduced. Neither the appellants, nor the respondent before the First Appellate Court had sought permission to lead oral evidence. The documents were therefore marked. It was stated that the documents could be marked because they were official documents and therefore presumption under illustration (e) of Section 114 of the Indian Evidence Act could be drawn. I would go with the arguments https://www.mhc.tn.gov.in/judis 10 presented that the documents had been taken on record by the First Appellate Court. The documents which have been taken on record as Court Documents, the certified copy of the Chitta had been compared with the chitta produced by the respondent / plaintiff.
21. Even though additional documents had come into play, the First Appellate Court once again affirmed the findings of the District Munsif Judge / Trial Court with respect to the sale deeds produced by the appellants and comparing chitta produced with the chitta produced by the respondent, a cloud of suspicion arose over the documents additionally produced. Concurrent findings on the fact was referred in respect of the issues and the First Appellate Court dismissed the appeal suit and confirmed the decree granted by the trial Court. S.A.No.1288 of 2003:
22. Contesting such findings given by both the Courts below, the present Second Appeal had been filed by the defendants.
23. Mr.Nagu Sah, learned counsel for the appellants made a fervent attempt to impress upon this Court that the appellants, particularly the second appellant had produced title deeds in his favour https://www.mhc.tn.gov.in/judis 11 and when such title deeds are produced, which would indicate transfer and conveyance of property in manner known to law as enunciated under Section 54 of the Transfer of Property Act, it must be considered that valid title had flowed to the 2nd appellant.
24. However, Mr.M.S.Subramanian, learned counsel for the respondent pointed out Ex.B.4 which was the agreement of sale prior to execution of Ex.B.1 and raised doubts over the name of the Executor of Ex.B.1 itself whether he was actually the son of Gopal Chetty or whether Gopal Chetty had a son, Murali or Murugan.
25. I have given my careful consideration to the arguments advanced and to the materials placed on record.
26. Ex.B.4, the Agreement of sale dated 23.03.1996, is written on Rs.5/- stamp paper bearing number 8052 dated 25.03.1996. The document is however dated 23.03.1996. I am not able to visualize, how an agreement can be drawn when the stamp paper itself had not been purchased and not available with the parties. They had purchased the stamp paper on a later date.
https://www.mhc.tn.gov.in/judis 12
27. A further perusal of the said document shows that the parties had agreed to sell the property in favour of the second party Murugan @ Murali S/o Gopal Chetty and a minor Baghyalaxmi, who is a daughter of Gopal Chetty. In the second page of the said document, the signature of the second party called Murugan / Murali is found. It signifies the name of Murali and not as Murugan.
28. Exhibit B.1 is the sale deed in favour of the second appellant. This has been executed by Murali S/o. Gopal Chetty.
29. These aspects raise a doubt in the mind of the Court with respect to the flow of title.
30. Ex.B.2 is the earlier sale deed of the year 1981 executed by which Gopal Chetty who had purchased the property from Murugesan S/o. Appavu and Ex.B.3, is the sale document of the year 1972, whereby Murugesan purchased the property from Beema Chetty and others.
31. Pertinently, during the course of the trial, the documents https://www.mhc.tn.gov.in/judis 13 relating to O.S.No.259/2006 had not been produced by the appellants herein. That was a suit for declaration of title and injunction with respect to the very same property. The appellants had filed various documents in the suit on the basis of which title should be declared.
32. That suit in O.S.No.259 of 2006 has been dismissed on merits. It is only appropriate that the documents relating to the said suit, though it has been dismissed, should have been produced. If a reasoning had been given in such suit, on the basis of the documents produced therein, then it would have a direct bearing on the issues in the present suit. The appellants herein have put up different claims on the basis of very same documents which have been rejected.
33. Illustration (g) of Section 114 of Evidence Act states that if evidence or documents available had not been produced, then a reasonable presumption can be drawn that such document or evidence had not been produced only because, they would speak adverse to the party. A reasonable inference can there for be taken that the documents which had been produced by the appellants in O.S.No.263/1996, negative the contentions with respect to the title of the second appellant. The Court records relating to O.S.No.263/1996 https://www.mhc.tn.gov.in/judis 14 have not been produced.
34. Even otherwise, once two Courts have found as a fact that patta is to be considered as a reliable document atleast of possession, and the documents of title produced by the appellants herein are suspect, then this Court cannot sit as a further Court of facts to once again reappraise the facts unless such findings are found to be perverse and against the records. No such argument have been advanced by the appellants herein.
35. I would therefore refrain myself from interfering with the judgments and the reasonings of the Court below. The Second appeal therefore stands dismissed.
36. After the judgment was dictated, Mr.Nagu Sah, learned counsel for the appellants pointed out that one of the documents i.e., Ex.A.3 which has been marked before the First Appellate Court contains the date 26.01.2002, and wondered how a document had been signed on a Republic day. The said document had been marked as an additional document in the First Appellate Court. As pointed out in the earlier part of this judgment, the learned counsel was https://www.mhc.tn.gov.in/judis 15 specifically asked about the procedure followed for the marking of documents, and whether the procedure under Order 41 Rule 28 was insisted upon and evidence sought. It had been informed that no objections were raised before the First Appellate Court.
37. The remonstrations of the learned counsel are out of frustration that the Second appeal has been dismissed. I am not prepared to examine the document any further which has been already adjudicated by the First Appellate Court.
38. In the result, the Second Appeal is dismissed with costs.
21.07.2022 Index:Yes/No Internet:Yes/No mrm To
1. The Sub Judge, Maduranthakam, Chengalpet District
2. The District Munsiff, Maduranthakam, Chengalpet District.
3. The Section Officer, VR Section, Madras High Court. https://www.mhc.tn.gov.in/judis 16 C.V.KARTHIKEYAN,J.
mrm S.A.No.1288 of 2003 21.07.2022 https://www.mhc.tn.gov.in/judis