Madras High Court
Baskaran Issac(Died) vs Ranganathan on 14 September, 2015
Author: M.Duraiswamy
Bench: M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.09.2015
CORAM
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
S.A.(MD)No.636 of 2011
and
M.P.(MD)Nos.1 and 3 of 2011
1.Baskaran Issac(died). .. Appellant/Appellant/Defendant
2.B.Rajeswari
3.B.Keerthipandiaraj
4.B.Amulraj
5.B.Selvaraj
6.B.Anthory Raj
7.B.Annaraj
8.B.Rani
9.B.Edward raj
10.B.Mary
(Appellants 2 to 10 are brought on record
as L.Rs of the deceased sole appellant vide
order dated 08.11.2011 made in
M.P.(MD)No.2 of 2011)
Vs.
Ranganathan ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code
against the judgment and decree dated 21.01.2011 made in A.S. No.23 of 2007
on the file of the Subordinate Judge, Thoothukudi confirming the judgment and
decree dated 31.10.2005 made in O.S.No.145 of 2005 on the file of the
Principal District Munsif cum Judicial Magistrate, Tiruchendur.
!For Appellants : Mr.M.V.Venkataseshan
^For Respondent : Mr.J.Barathan
:JUDGMENT
The above Second Appeal arises against the judgment and decree passed in A.S.No.23 of 2007, on the file of the Subordinate Court, Thoothukudi, confirming the judgment and decree passed in O.S.No.145 of 2005(O.S.No.4 of 1997, Subordinate Court, Thoothukudi), on the file of the Principal District Munsif cum Judicial Magistrate, Tiruchendur.
2.The first appellant who was the defendant in the suit had died during the pendency of the Second Appeal and his legal representatives were brought on record as the appellants 2 to 10. The respondent was the plaintiff in the suit. The plaintiff filed the suit in O.S.No.4 of 1997 for declaration, recovery of possession and for mesne profits.
3.The brief case of the plaintiff is as follows:
According to the plaintiff, the suit property originally belonged to one Murugesan, who had purchased the property on 24.02.1902. After his demise, his only legal heir, Saminathan, was enjoying the property. The said Saminathan died on 25.12.1992 and after his death, his legal heir Somasundaram succeeded to the property. Since the said Murugesan was staying in Yalpanam, he was called Yalpanam Murugesan. After his death, when Saminathan was enjoying the properties, one Ganapathia Pillai was looking after his properties as his Agent. Even after the death of Saminathan, when his son Somasundaram was enjoying the properties, the said Ganapathia Pillai continued to manage the properties. The said Somasundaram executed a Power of Attorney deed in favour of the plaintiff's father Velu Konar to sell the suit properties.
(ii)Pursuant to the Power of Attorney deed, the said Velu Konar sold the property to the plaintiff on 18.01.1996. Since the date of purchase, the plaintiff has been paying the tax to the Panchayat. There was also mutation of records in the Panchayat records. The plaintiff has been paying the property tax to the Panchayat. When the plaintiff demanded the monthly rent from the defendant in respect of Door No.61, the defendant, not only refused to give the rent, but also disputed the title of the plaintiff. On 25.04.1996, the plaintiff issued notice to the defendant and the tenant in respect of Door NO.62 viz., Shankar to vacate the houses and the said Shankar sent a reply dated 02.05.1996 denying the title of the plaintiff. The agent of the predecessors in title viz., Ganapathia Pillai did not have any independent title or right over the suit properties. The alleged Othi deed alleged to have been executed by the said Ganapathia Pillai is a fraud document. Since the defendant disputed the title of the plaintiff, the plaintiff has filed the suit for declaration, recovery of possession and for mesne profits.
4.The brief case of the defendant is as follows:
According to the defendant, the averments stated in the plaint by the plaintiff are false. Further according to the defendant, the suit properties originally belonged to Ganapathia Pillai ancestrally. The patta was issued in favour of Ganapathia Pillai. The said Ganapathia Pillai's ancestor was Murugesan Pillai. The suit properties were called as ?Yalpanathu Madam?. The defendant denied the averments that Murugesan, his legal heir Saminathan and his legal heir Somasundaram had right in the suit properties. Further according to the defendant, on 19.08.1977, the said Ganapathia Pillai executed othi deed in favour Manickam Pillai. The water connection and the electricity connection stood in the name of Ganapathiapillai. The tax receipts in respect of Door No.61 stands in the name of madam. On
05.12.1994, the defendant purchased the properties from the said Ganapathia Pillai and since the date of purchase, he has been in possession and enjoyment of the same. In these circumstances, the defendant prayed for dismissal of the suit.
5.Before the trial Court, on the side of the plaintiff, the plaintiff was examined as P.W.1 and 19 documents Exs.A.1 to A.19 were marked and on the side of the defendant, he was examined as D.W.1 and 8 documents Exs.B.1 to B.8 were marked. The trial Court, after taking into consideration the oral and documentary evidences of both parties, decreed the suit. Aggrieved over the judgment and decree of the trial Court, the defendant preferred an appeal in A.S.No.23 of 2007 on the file of the Subordinate Court, Thoothukudi and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the concurrent findings of the Courts below, the defendant has filed the above Second Appeal.
6.The appellant raised the following Substantial Questions of Law in the Second Appeal:
(A) Whether the Courts below are right in holding that Ex.B.8 dated 05.12.1994 sale deed is void when Amendment under Section 28 of the Registration Act came into force only on 29.03.1997 under the Tamil Nadu Act 19 of 1997?
(B) Whether the Courts below are right in decreeing the suit of the respondent when it should have been dismissed for misjoinder of party in possession of Door NO.62?
(C) Whether the Courts below are right in decreeing the suit of the respondent when he and his predecessors in title were disposed from the property were to avoid the bar of limitation as provided under Article 65 of the Limitation Act, 1953??
7.Mr.M.V.Venkataseshan, learned Counsel appearing for the appellant submitted that under Ex.B.8 sale deed dated 05.12.1994, the defendant became the absolute owner of the properties and therefore, the Courts below ought not to have held that Ex.B.8 sale deed is a void document for the reason that the document was registered in Parasala in Kerala, since, under Section 28 of the Registration Act, the prohibition to register the documents in the States out side Tamil Nadu came into force only on 29.03.1997. Further the learned Counsel submitted that the suit filed by the plaintiff is barred by limitation and that the findings of the Courts below are perverse.
8.In support of his contentions, the learned Counsel appearing for the appellant relied upon the following judgments:
(i) In T.K.Mohammed Abubucker (Dead) through LRs and Others reported in (2009)14 Supreme Court Cases 224, wherein the Honourable Supreme Court held as follows:
13.Though title to an immovable property is usually established by tracing it for a period of thirty years, many a time, the search and tracing is restricted to a minimum period of twelve years, presumably with reference to Articles 64 and 65 of the Limitation Act, 1963. Further, where the title is traced to a grant or transfer by the Government or a statutory development authority, as contrasted from a transfer from a private person, the search is not taken prior to such transfer/grant, even if such transfer/grant is within twelve years.
29.The Letters Patent Bench overlooked the fact that a plaintiff in a suit for declaration of title and possession, can succeed only by making out his title and entitlement to possession and not on any alleged weakness in the title or possession of the defendants. It also overlooked the fact that the plaintiff did not step into the witness box and that none of his vendors and none of the neighbours/villagers, were examined. There was therefore no evidence about previous possession. In fact, the plaintiff had deliberately withheld evidence as to the date from which the defendants were in possession.
30.The Letters Patent Bench also proceeded on the basis that the suit was dismissed on the ground of adverse possession of the defendants. The trial Court and the first appellate Court on examination of the title found that the plaintiff had made out neither title nor previous possession. They also found that the defendants were in possession.
31.The trial Court and the first appellate Court also noticed the significant fact that the plaint and the evidence of the plaintiff are wholly silent as to when, that is in which year, the defendants allegedly encroached upon the suit property. The plaint merely stated that during the absence of the plaintiff, the defendants had encroached upon the suit property in entirety. Neither the date, month or year is given. In that context, the trial Court also observed that the defendants should be taken as having established their adverse possessory title also and consequently, the suit should be held to be barred by limitation. But even without the said finding, the suit was liable to be dismissed as neither the title of the plaintiff, nor previous possession of the plaintiff, nor encroachment by the defendants was made out.?
(ii) In Gopi and Another Vs. H.David and Others reported in 2011(1) CTC 694, wherein this Court held that under Section 28 of the Registration Act 1908, mere inclusion of property without any intention to commit fraud on Registration Law will not render registration void and there should be strong evidence to prove collusion and fraud to invoke Section 28. Further this Court held that the burden of proof lies on person who attacks validity of registration. In the absence of collusion and fraud between Parties Sale Deed registered is not hit by Section 28.
(iii) In Ramanathan Chetti and Others Vs. Delhi Batcha Tevar alias Udayana Tevar and Others reported in Vol.33 L.W.727, wherein a Division Bench of this Court held as follows:
"The 1st defendant had no title to item No.2. This, however, does not dispose of the respondent's contention that its inclusion in the suit mortgage deed renders the mortgage invalid. This seems to me to depend upon whether it was included in the deed for the purpose of committing a fraud upon the registration laws and the mortgages were parties to that fraud. If the property had been non-existent, then it is clear that its inclusion would invalidate the mortgage. But to argue that because the 1st defendant had no title to it, the mortgage is invalid is a totally different manner."
9.Countering the submissions made by the learned Counsel appearing for the appellant, Mr.J.Barathan, learned Counsel appearing for the respondent submitted that the Courts below have concurrently held that the purchase made under Ex.B.8 by the defendant is a void transaction for the reason that the property was registered in the State of Kerala, that too out of total extent of 79.64 Acres, the said sale deed was executed in respect of only one cent, which itself would establish that the document has been registered in Kerala to defraud the title holders.
10.Further the learned Counsel submitted that the contentions raised by the learned Counsel for the appellant was not raised as a ground in the Second Appeal, therefore, the learned Counsel cannot argue those points without raising it as a ground in the Second Appeal. Further the learned Counsel submitted that the alleged vendor of the defendant viz., Ganapathia Pillai's right to sell the property was not established by the defendant by any means. The learned Counsel also submitted that the plaintiff had established his title by oral and documentary evidences.
11.In support of his contentions, the learned Counsel appearing for the respondent relied upon the following Judgments:
(i) In M.Manoharadhas Vs. C.Arumughaperumal Pillai and another reported in 2003(1) CTC 539, wherein this Court held that in the case of a land situate in Kanyakumari District, the vendor executed sale deed and registered the same in the office of Sub Registrar, Parasala Village, Kerala State and if the vendor did not possess or own strip of land situate in Kerala State, the sale deed should be considered as fictitious and the sale deed is illegal and void in its entirely as it constitutes fraud on registration.
(ii) In Mohamed Kassim and Others Vs. C.Rajaram and Others reported in 1988(1) MLJ 447, wherein a Division Bench of this Court held that the sale deeds are compulsorily registered under Section 17 of the Indian Registration Act. Further Section 28 of the Act requires that every registrable document shall be presented for registration in the office of a Sub Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate. Further the Division Bench held that 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. Further it is also seen from the above provisions that a document not registered in accordance with the said provisions of the Act, has no effect on immovable property comprised therein.
(iii) In Smt.Rebti Devi Vs. Ram Dutt and Another etc., reported in 1998-1-L.W.346, wherein the Honourable Supreme Court held that when both sides have adduced evidence, the question of burden of proof pales into insignificance.
12.On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, it could be seen that it is the case of the plaintiff that he purchased the suit property by a registered sale deed dated 18.01.1996 marked as Ex.A.16 from one Somasundaram represented by his Power Agent Velu Konar, who is the father of the plaintiff. According to the plaintiff, under Ex.A.1 sale deed dated 24.02.1902, one Murugesan purchased the suit property from Subramania Pillai. After his death, his son Saminathan succeeded to the suit properties. After the death of Saminathan, his legal heir Somasundaram succeeded to the properties. The said Somasundaram executed Ex.A.19, Power of Attorney deed dated 26.10.1995 in favour of Velu Konar, who is the father of the plaintiff. By virtue of Ex.A.19 Power of Attorney deed, the said Velu Konar executed Ex.A.16 sale deed dated 18.01.1996 in favour of the plaintiff. According to the plaintiff, Murugesan was staying in Yalpanam, therefore he was called as Yalpanam Murugesan. After the death of Murugesan, when his son was enjoying the properties, one Ganapathia Pillai was looking after the properties of Saminathan and he was acting as an Agent. After the death of Saminathan, when Somasundaram was enjoying the properties, the said Ganapathia Pillai continued to manage the properties.
13.The plaintiff had specifically contended that the said Ganapathia Pillai had no independent right or title over the suit properties. The defendant purchased the property from the said Ganapathia Pillai under Ex.B.8 sale deed dated 05.12.1994. The defendant has not produced any document of title to establish that the said Ganapathia Pillai was the owner of the suit properties. Ex.B.1 is the patta issued in favour of Ganapathia Pillai and Ex.B.2 is the Othi deed dated 19.08.1977 executed by Ganapathia Pillai in favour of one Manickam Pillai. The defendant had not established or proved as to from whom the said Ganapathia Pillai had purchased the suit properties or as to how the said Ganapathia Pillai derived title over the suit properties. It is settled position that the patta shall not confer title in favour of a party. When according to the plaintiff, the said Ganapathia Pillai acted only as an Agent of Saminathan and Somasundaram, the defendant should have established the title of the siad Ganapathia Pillai. As already stated the defendant has not produced any parent document to establish the right and title of his vendor viz., Ganapathia Pillai. Even in the written statement, the defendant has not traced the title of Ganapathia Pillai. Merely stating that Ganapathia Pillai derived title by succession is not sufficient to prove his title. In what way, the said Ganapathia Pillai succeeded to the suit properties was not proved by the defendant. Even Exs.B.1, B.3, B.4 to B.7, which are water tax, electricity receipts stood in the name of the Yalpana Murugesan Madam represented by an Agent Ganapathia Pillai. Ex.A.8 the tax receipts stood in the name of Yalpana Madam represented by Agent Ganapathia Pillai. Ex.B.2 Othi deed which was executed by Ganapathia Pillai in favour of Manickam Pillai. Merely because the said Ganapathia Pillai executed the Othi deed in respect of the suit properties in favour of Manickam Pillai, that itself is not sufficient to prove the title of Ganapathia Pillai. Even Ex.B.8 sale deed dated 05.12.1994 was registered in Kerala.
14.As already stated, out of the total extent of 79.64 Acres in Parasala village, only one cent of land in that was sold to the defendant under the said document. In the judgment relied upon the learned Counsel for the respondent in Mohamed Kassim and Others Vs. C.Rajaram and Others reported in 1988(1) MLJ 447, the Division Bench of this Court clearly held that the document should be registered only before the Sub Registrar within whose jurisdiction the property is situate and not in other places.
15.The contention raised by the learned Counsel for the appellant stating that Section 28 of the Registration Act came into force only on 29.03.1997 cannot stand for the reason that Section 17 of the Registration Act itself is very clear about the place of registration of the document. The only amendment to Section 28 of the Registration Act came into force on 29.03.1997, however the main Section was very much available in the Act even prior to the amendment. In these circumstances, the contention raised by the learned Counsel for the appellant is liable to be rejected. Accordingly, the same is rejected.
16.So far as the non-joinder of party (ie.) the person who is in possession of Door No.62 is concerned, the said contention was not raised before the Courts below. Even in the written statement, the defendant has not averred anything about the person in possession of Door NO.62. When the said issue was not raised before the Courts below, the same cannot be allowed to be raised for the first time before this Court. In these circumstances, the said contention is also rejected.
17.With regard to the plea of limitation raised by the appellant is concerned, the plaintiff purchased the suit property under Ex.A.16 sale deed dated 18.01.1996, the suit was filed by the plaintiff on 06.12.1996 itself. Therefore, the suit filed by the plaintiff for declaration, recovery of possession and for mesne profits cannot be said to be barred by limitation. The suit filed by the plaintiff is well within the period of limitation. Therefore, the said contention raised by the appellant is also rejected.
18.When the plaintiff had categorically established his title by oral and documentary evidences, tracing the title of the predecessors in title and in the absence of any evidence on the side of the defendant to establish the title of his vendor, the Courts below have rightly decreed the suit.
19.Since the facts and circumstances differs, the judgments relied upon by the learned Counsel for the appellant are not applicable to the present case. The judgments relied upon by the learned Counsel for the respondent squarely applies to the facts and circumstances of the present case.
20.The appellants filed a petition in M.P.(MD)No.3 of 2011 under Order 41 Rule 27 C.P.C. to receive additional documents, viz., the original sale deed dated 05.12.1994, the certificate dated 23.09.2008 issued by the Assistant Commissioner, Tirunelveli Municipality and the certificate issued by the Office of the Tahsildar, Purasawalkam-Perambur Taluk, Chennai-11, dated 10.10.2011. In the affidavit filed in support of the petition, the appellants have stated that they obtained those documents only subsequently. Therefore, they are producing the same before this Court now. The appellants have not stated any reason for not producing the document at the earliest point of time. The appellants being the legal representatives of the defendant, should have produced those documents before the trial Court at the time of trial.
21.It is settled position that a document should be marked only through a party to the document. The respondent/plaintiff filed their counter affidavit and objected to the marking of the documents. The respondent also contended that under Section 19(B) of the Indian Stamp Act, 1899 which was inserted by the Tamil Nadu Act No.43 of 1992 and Section 19(B)(1) of the said Act contemplates where any instrument is registered in any part of India other than the State of Tamil Nadu and such instrument relates wholly or partly to any property situate in the State of Tamil Nadu, the copy of such instrument shall, when received in the State of Tamil Nadu under the Registration Act be liable to be charged with the differences of duty as on the date of the original instrument. The appellants have not paid the difference of stamp duty payable in Tamil Nadu and got the sale deed dated 05.12.1994 validated. The respondent contended that only for this reason, the original sale deed was not produced before the trial Court. In these circumstances, the said sale deed cannot be received as additional evidence and the same is barred under Section 19(B)(1) of the Indian Stamp Act.
22.In the absence of any reason given by the appellants, for not producing the documents at the earliest point of time i.e., before the trial Court at the time of trial, the present application filed after a long delay cannot be accepted. Therefore the petition filed by the appellants is liable to be rejected.
23.In these circumstances, I do not find any ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly, the same is dismissed. However there shall be no order as to costs. M.P.(MD) No.3 of 2011 stands dismissed. M.P.(MD)No.1 of 2011 stands closed.
To
1.The Subordinate Court, Thoothukudi
2. The Principal District Munsif Court cum Judicial Magistrate, Tiruchendur.
.