Madras High Court
P.Thirumoorthy vs M.Arumugham on 4 August, 2023
S.A.No.44 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13.08.2024
DELIVERED ON : 12.09.2024
CORAM:
THE HONOURABLE MR. JUSTICE N.SENTHILKUMAR
S.A.No.44 of 2011
and M.P.No.1 of 2011
P.Thirumoorthy ...Appellant
vs.
1.M.Arumugham
2.Rasappan (Died)
3.R.Subhulakshmi
4.R.Kalamathal
5.P.R.Sathishkumar
6.P.R.Kuzhanthaivel
(R2 Died R3 to R6 are impleaded as LRs of R2
vide Court order dated 04.08.2023 made in C.M.P.No.
20396/2021 in S.A.No.44/2011 by this Court.)
... Respondents
Prayer : Second Appeal filed Under Section 100 of CPC, to set aside the
Judgment and Decree dated 26.08.2010 made in A.S.No.72 of 2009 on the file
of the Principal Sub-ordinate Judge at Gobichettipalayam, concurring the
judgment and decree dated 18.09.2009 passed in O.S.No.343 of 2006 on the file
of the District Munsif Court, Gobichettipalayam and allow the Second Appeal.
For Appellant : Mr.B.Ramkumar
for Mr.M.Narayanasamy
https://www.mhc.tn.gov.in/judis
Page 1 of 22
S.A.No.44 of 2011
For Respondents : Mr.N.Manokaran for R1, R4 & R6
R2 – Died (steps taken)
R3 & R5 – No appearance
JUDGMENT
The Second Appeal has been preferred against the Judgment and Decree in A.S.No.72 of 2009 passed by the Principal Subordinate Judge, Gobichettipalayam concurring with the Judgment and Decree in O.S.No.343 of 2006 passed by the District Munsif Court, Gobichettipalayam. The appellant herein is the plaintiff and the respondents 1 & 2 herein are the defendants 1 & 2 in the suit in O.S.No.343 of 2006.
2. When the matter was listed for admission, this Court has issued notice to the respondents. The second appeal was not admitted on any Substantial Question of Law at the time of admission. Since notice was issued to the respondents, the arguments advanced on the side of the appellant and the respondents are considered which are as follows:
2a. The case of the appellant is that the suit property in new survey S.F.No.25/2 at Olalakovil Village, Gobichettipalayam originally belonged to Arumugham, the first respondent herein, who is the paternal uncle of the appellant herein. He obtained the property by way of Partition Deed dated https://www.mhc.tn.gov.in/judis Page 2 of 22 S.A.No.44 of 2011 28.06.1994 which was registered as Document No.615 of 1994 at Sub Registrar Office Kunnathur. The first respondent was allotted with the “C” Schedule property in the Partition Deed which includes the suit property. The suit property is as follows:
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cj;jp ,itfSf;F tplg;gl;Ls;s G.ncwf;.0.06.5k; ,jpy; nghJtpy; V.ncw.0.01.5 Nkw;gb fhiyapy; cs;s fpzh; 1y; 1/4 gq;Fk;, Nkw;gb fpzw;wpy; itf;fg;gl;Ls;s 5 vr;.gp kpd;rhu Nkhl;lhh; gk;G nrl;by; nghJtpy; 1/4 gq;Fk;, (kpd; ,izg;G vz;.140) ,jw;Fk; rk;ge;jg;gl;l kh%y; topeil https://www.mhc.tn.gov.in/judis Page 3 of 22 S.A.No.44 of 2011 tz;bg;ghij ghj;jpak; rfpjk;.
3. The appellant's contention before the First Appellate Court is that the first respondent has left the Village and joined as an employee in Hosiery Unit and settled at Tiruppur along with family. Since the portion of the land was very meagre, the first respondent leased the suit property to the appellant for a sum of Rs.1,000/- as yearly rent and therefore possession was vested with the appellant herein as a cultivating tenant as per the Lease Deed dated 14.04.1995 which was marked as Ex.A2.
4. The appellant's further contention before the First Appellate Court is that the Lease Deed was periodically renewed and therefore, the appellant has been in continuous possession and enjoyment of the property as a cultivating tenant and there was no arrears of rent to be paid to the first respondent and to show his bonafide, the appellant has filed a lodgment Schedule with current year rent along with his plaint.
5. The appellant contended that the Village Administrative Officer informed him that the suit property is going to be surveyed. The neighbouring land owners received survey notice. The appellant filed an application before https://www.mhc.tn.gov.in/judis Page 4 of 22 S.A.No.44 of 2011 the Tahsilar stating that there is no objection to survey the suit property without causing any loss or damage to the standing crops and plants etc. which was cultivated by the appellant. Sensing some interference from the second respondent herein, the appellant filed a suit in O.S.No.343 of 2006 seeking permanent injunction restraining the defendants and their men, from evicting, the plaintiff by force from the suit property except under due process of law; and to award cost of the suit.
6. The second respondent had filed the Written Statement before the Trial Court and contended that the appellant was never a cultivating tenant in enjoyment of the suit property and the Lease Deed was not executed in his favour.
7. The First Appellate Court had considered the evidence of PW1 to PW3 and Exs.A1 to A11 marked on the side of the appellant and has also considered the evidence of DW1 to DW4 and Exs.B1 to B5 marked on the side of the respondent before the Trial Court. The report and sketch of the Advocate Commissioner were marked as Court Exhibits (Exs.C1 & C2).
8. The Courts below disbelieved Ex.A2 as none of the witnesses who https://www.mhc.tn.gov.in/judis Page 5 of 22 S.A.No.44 of 2011 have affixed their signatures in the witness column in the Lease Deed i.e. Ex.A2 were examined by the appellant to ascertain the veracity of the said document which has been disputed by the second respondent. The only witness examined by the appellant to prove Ex.A2 was the Document Writer of A2 who was examined as PW3. However, PW3 deposed that Ex.A2 was registered in Sub Registrar Office at Kunnathur while Ex.A2 is an unregistered document. Therefore, the First Appellate Court had disbelieved the evidence of PW3.
9. The First Appellate Court has considered the documents marked by the appellant herein to prove his possession of the suit property. Ex.A4 is a petition sent to the Tahsildar and Exs.A5 to A9 are the weigh bills issued by Avinashi Cooperative Agricultural Society and Exs.A10 & Ex.A11 are the weigh bills issued by Kovai Virpanai Kulu. None of the documents would disclose that these documents are related to the suit property. Before the First Appellate Court, the appellant has agreed that he is residing adjoining to the suit property.
10. The First Appellate Court has considered the case of the second respondent and his evidence as DW1 that the suit property was obtained by way of Court proceeding in E.P.No.74 of 2006 in O.S.No.133 of 1999. The First Appellate Court also considered the documents marked by the second respondent. The Sale Deed in Ex.B2 was executed by the District Munsif https://www.mhc.tn.gov.in/judis Page 6 of 22 S.A.No.44 of 2011 Court, Gobichettipalayam in E.P.No.74 of 2006 and Ex.B3 is a Patta dated 21.09.2006 Ex.B4 is 'A' Register dated 21.09.2006 and Ex.B5 is a certified copy of the order passed in E.P.No.74 of 2006 in O.S.No.133 of 1999.
11. The First Appellate Court has considered the fact that the appellant who is residing adjoining to the suit property has not raised any objection when the possession of the suit property was handed over to the second respondent.
12. The First Appellate Court had also considered that the stamp paper of the Lease Deed had been purchased in the name of one Palanisamy who is none other than the father of the appellant herein. The appellant has deposed that the stamp paper was purchased for the purpose of loan obtained by the first respondent from the appellant's father for constructing house. This clearly shows that the appellant had made use of the stamp paper which was available with him much prior to entering into the Lease Deed. Only on that basis, the First Appellate Court had rightly disbelieved the existence of the Lease Deed.
13. It is the specific case of the second respondent that the appellant was estopped from filing a suit under Section 11 r/w. Order XXI Rule 101 C.P.C. The second respondent contended that a conjoint reading of Order XXI https://www.mhc.tn.gov.in/judis Page 7 of 22 S.A.No.44 of 2011 Rule 97 to 101 C.P.C., would show that when the appellant has an objection for delivery of possession, he ought to have raised the same at the time when the second respondent was given possession of the suit property. The appellant cannot be allowed to maintain a separate suit as mandated under Order XXI Rule 101 C.P.C.
14. The question that arose before the First Appellate Court is that whether a person having objection for delivery of possession of suit property to the decree holder can be allowed to maintain a separate suit without filing an application under Order XXI Rule 101 CPC before the Executing Court. For better understanding, Order XXI Rule 101 of CPC is extracted hereunder:
“All question including relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to contrary contained in any way for the time being in force, be deemed to have jurisdiction to decide such questions”.
In view of Order XXI Rule 96, it has to be seen, what was the procedure adopted while taking away the right of the lessee in possession of the suit https://www.mhc.tn.gov.in/judis Page 8 of 22 S.A.No.44 of 2011 property in the present case. The appellant has contended before the First Appellate Court that the procedures contemplated in C.P.C. such as beating of tom tom which will enable the lessee viz., the appellant herein to be aware of the proceedings initiated for possession of suit property was not followed.
15. The appellant's contention is that even when a property occupied by the tenant is sold in auction, while executing the decree, only a symbolic possession can be given to the decree holder as the actual possession will be with the tenant. The Hon'ble Supreme Court in Dev Raj Dogra and Others Vs. Gyan Chand Jain and Others reported AIR 1981 SC 981 has observed as follows:
The question of validity or otherwise of the tenancy may have to be considered and determined in an appropriate proceeding. In the present proceeding, the auction-purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale, is not entitled to recover physical possession from the appellants in view of the provisions contained in Order XXI Rule 95, and the auction-purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in Order XXI Rule 96 in respect of the portions in occupation of the appellants.
https://www.mhc.tn.gov.in/judis Page 9 of 22 S.A.No.44 of 2011
16. Per contra, the second respondent contended that on examination of the Village Administrative Officer and the Court employee, it is clear that neither the appellant nor his father resisted the delivery of possession. Therefore, the appellant cannot now claim that he was in actual possession of the suit property.
17. The submission of the second respondent is that when the Execution Petition was pending before the Trial Court, the appellant ought to have impleaded himself in the said Execution Petition and raised objection for grant of possession. The appellant cannot file a separate suit and pray for a fresh relief which is impermissible under law.
18.The learned counsel for the second respondent has relied upon the following judgments:
(i)In the case of R. Ranganatha Naidu vs. R. Subramaniya Mudaliar reported in 1998 (1) CTC 589, this Court has observed that “On a reading of the above section, mere particularly Explanation II(b) which was substituted by Amendment Act 1976 it is clear that if there is any dispute or question relating to the delivery of possession with regard to the property purchased through Court auction, the same has to be determined by the Court executing the decree https://www.mhc.tn.gov.in/judis Page 10 of 22 S.A.No.44 of 2011 and not by a separate suit.”
(ii) In the case of Silverline Forum Pvt. Ltd. vs. Rajiv Trust and Another reported in AIR 1998 SC 1754, a Full Bench of the Hon'ble Supreme Court has observed that “A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree”.
(iii) In the case of Shreenath and Another vs. Rajesh and Others reported in AIR 1998 SC 1827, a Full Bench of the Hon'ble Supreme Court has observed that “...the right of a tenant or any person claiming right on his own of the property in case he resists, his objection under Order 21 Rule 97 has to be decided by the executing court itself”.
19. The First Appellate Court found that the appellant who was residing near the suit property, having failed to file any application under Order XXI Rule 97 or under Rule 101 has not made out a case that he was in possession of the suit property and he has not established that he was a cultivating tenant or there was any Lease Deed between the parties. https://www.mhc.tn.gov.in/judis Page 11 of 22 S.A.No.44 of 2011
20. Considering all the above facts, the First Appellate Court concurred with the finding of the Trial Court that the appellant had failed to prove by way of any documents or by oral evidence that he was in actual possession of the suit property and dismissed the appeal and confirmed the Judgment and Decree passed in O.S.No.343 of 2006 dated 18.09.2006.
21. Challenging the order of dismissal by the First Appellate Court in A.S.No.72 of 2009, the present Second Appeal has been preferred by the appellant. The appellant has raised 7 Substantial Questions of Law viz.,
1.Whether the 2nd Defendant is right in not filing a suit for eviction as against this Appellant/Plaintiff?
2.Whether the proper remedy under law has been exercised by the 2nd Defendant/2nd Respondent to evict this Appellant/Plaintiff?
3.Whether the Appellant/Plaintiff can be evicted by circumventing the due process of law?
4.Whether the rights of a cultivating tenant can be decided in a civil suit?
5.Whether under the facts and circumstances of https://www.mhc.tn.gov.in/judis Page 12 of 22 S.A.No.44 of 2011 the case, possession has been handed over to the 2nd Respondent/2nd Defendant as per O21 R96 of the CPC?
6.Whether in the facts and circumstances of the case, symbolic possession or actual possession has been handed over to the 2nd Respondent/2nd Defendant?
7.Whether the Judgment of the Lower Appellate court and trial court is vitiated by its failure to apply correct principles of law and consider the entire evidence on record?
This Court has not admitted the Second Appeal on any Substantial Question of Law as stated supra. In view of the same, this Court proceeded to hear the case.
22. Mr.N.Manoharan, learned counsel appearing for the respondents 1, 4 & 6 had contended before this Court that when the execution of Lease Deed marked as Ex.A2 was disputed by the second respondent, then the onus is on the appellant to prove that the Lease Deed was executed in accordance with law. As the first respondent who is a party to the Lease Deed was not examined and the witnesses of the Lease Deed were also are not examined, Ex.A2 cannot be relied upon by the appellant to substantiate his contention. https://www.mhc.tn.gov.in/judis Page 13 of 22 S.A.No.44 of 2011
23. The other objection raised by the second respondent is that though Ex.A4 was addressed to the Tahsildar, there is no evidence to show that it was served on the Tahsildar and in the absence of any acknowledgment given by the Tahsildar, it cannot even be considered as a substantial piece of evidence. The second respondent contends that Ex.A4 was not proved in the manner known to law.
24. The next contention of the second respondent is that while examining Document Ex.A3 filed by the appellant, it is clear that the said document was filed before the Revenue Officer (Revenue Tahsildar) 4 days prior to initiation of the present suit. Therefore, the said document is created only for the purpose filing the suit in O.S.No.343 of 2006.
25. In support of his contentions, Mr.N.Manoharan, learned counsel appearing for the respondents 1, 4 & 6 had relied upon a judgment of the Hon'ble Supreme Court in Maria Margarida Sequeira Fernandes and Others vs. Erasmo Jack De Sequeira (Dead) Through LRs reported in (2012) 5 SCC 370 and submitted that it is the duty of the appellant to prove the genuineness of Ex.A2 by producing adequate documents and oral evidence. The relevant https://www.mhc.tn.gov.in/judis Page 14 of 22 S.A.No.44 of 2011 paragraph is extracted hereunder:
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
26. Mr.N.Manoharan, learned counsel appearing for the respondents 1, 4 & 6 had laid emphasis that the appellant should have a valid, substantial Lease Deed in his favour to establish that he was in actual possession of the suit property. A mere deposition before the Court cannot be acted upon when the appellant has failed to produce substantial evidence to support his oral evidence.
27. This Court is of the view that the appellant has failed to examine the Tahsildar before the Court to prove that the said letter was marked as Ex.A4 https://www.mhc.tn.gov.in/judis Page 15 of 22 S.A.No.44 of 2011 submitted by him. In the absence of any acknowledgment given by the Tahsildar and in the absence of any evidence let in by the appellant, the said Ex.A4 does not have any value or significance. Though the document is marked in the Court as an exhibit without any objection at the time of marking, the evidencing value of the documents assume significance only when it is proved in the manner known to law.
28. Apart from that, there is no material to show that Ex.A4 has been taken on file by making relevant entries in the register and there is no material to show that any enquiry was conducted on the basis of Ex.A3. Therefore, when there is a cloud created with regard to the genuineness of Ex.A3, the appellant had not chosen to dispel the cloud that arises in the minds of the second respondent as well as before the Courts below.
29. Mr.N.Manoharan, learned counsel appearing for the respondents 1, 4 & 6 has relied upon a judgment of the Hon'ble Supreme Court in Thiruvengadam Pillai vs. Navaneethammal and Another reported in (2008) 4 SCC 530. The relevant paragraphs of the aforesaid judgment is extracted hereunder:
14. If a person wants to create a backdated https://www.mhc.tn.gov.in/judis Page 16 of 22 S.A.No.44 of 2011 agreement, the first hurdle he faces is the non-availability of stamp paper of such old date. Therefore, tampering of the date of issue and seal affixed by the stamp vendor, as also the entries made by the stamp vendor, are quite common in a forged document. When the agreement is dated 5-1-1980, and the stamp papers used are purchased in the years 1973 and 1978, one of the possible inferences is that the plaintiff not being able to secure an antedated stamp paper for creating the agreement (bearing a date prior to the date of sale in favour of the second defendant), made use of some old stamp papers that were available with him, to fabricate the document. The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a layman unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers.
19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the https://www.mhc.tn.gov.in/judis Page 17 of 22 S.A.No.44 of 2011 defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PWs 1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate court, does not call for interference.
30. The appellant has not produced any materials except the evidence of PW3, who is unable to ascertain whether the document Ex.A2 is registered or not and when the second respondent specifically denied the existence of Ex.A2, https://www.mhc.tn.gov.in/judis Page 18 of 22 S.A.No.44 of 2011 it is for the appellant to establish beyond the reasonable doubt that Ex.A2 was entered into between the appellant and the first respondent. In the absence of cogent evidence, it is highly doubtful to rely upon Ex.A2 and it does not inspire confidence.
31. Exs.B1 to B5 makes it clear that the second respondent is in actual possession of the suit property. The appellant has not shown any plausible document to show that he is in actual possession of the property. The documents relied upon by the appellant in Exs.A5 to A11 are only the receipts which do not contain survey numbers or the address of the suit property. In the absence of any evidence to relate Exs.A5 to A11 to the suit property, these documents cannot be considered as clinching evidence to establish the right and possession of the appellant in the suit property.
32. While considering the case of the appellant, Ex.A2 dated 14.04.1995 cannot be considered as a genuine document and it was rightly disbelieved by the Courts below which needs no interference. The documents marked by the appellant in Exs.A3 to A11 cannot be considered as substantial evidence for the reasons stated supra. The appellant has not produced sufficient evidence to prove his possession and the possession taken by the second https://www.mhc.tn.gov.in/judis Page 19 of 22 S.A.No.44 of 2011 respondent by way of Court proceeding is established.
33. In the absence of any Substantial Question of Law arises for consideration, this Court has evaluated the evidence and the deposition of the respective parties before the Trial Court which was considered by the First Appellate Court. This court feels that no interference is required and the Second Appeal was not admitted on any Substantial Question of Law.
34. This Court is of the view that the Judgment and Decree in O.S.No.343 of 2006 dated 18.09.2009 passed by the District Munsif Court, Gobichettipalayam which was confirmed in Judgment and Decree in A.S.No.72 of 2009 dated 26.08.2010 passed by the Principal Subordinate Court, Gobichettipalayam need not be interfered with and the same is confirmed.
35. For the foregoing reasons, the Second Appeal fails and is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
12.09.2024 Internet: Yes Index : Yes/No Speaking/Non Speaking order https://www.mhc.tn.gov.in/judis Page 20 of 22 S.A.No.44 of 2011 pam To
1.The Principal Sub-ordinate Judge, Gobichettipalayam.
2.The District Munsif Court, Gobichettipalayam.
https://www.mhc.tn.gov.in/judis Page 21 of 22 S.A.No.44 of 2011 N.SENTHILKUMAR, J, pam S.A.No.44 of 2011 12.09.2024 https://www.mhc.tn.gov.in/judis Page 22 of 22