Madras High Court
Chinna Pillai @ Gowri vs Ganesan on 18 August, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 19.07.2022
Pronounced on : 18.08.2022
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.No. 718 of 2001
And
C.M.P.No. 187 of 2014
Chinna Pillai @ Gowri ... Plaintiff/Respondent/Appellant
Vs.
1. Ganesan
2. Kalaiselvi
3. Jayakumar
4. Elavarasi
5. Malliga
6. Rajarajan
7. Usha ... Defendants/Appellants/Respondents
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree dated 19.03.2001
passed by the learned Subordinate Judge, Thiruvarur in A.S.No. 11 of
2000 reversing the Judgment and Decree dated 16.09.1983 passed in
https://www.mhc.tn.gov.in/judis
2
O.S.No. 681 of 1981 on the file of the learned District Munsif,
Mannargudi.
***
For Appellants : Mr. S.K.Rakhunathan
For Respondents : Mr. T.Girish
for Mr.Srinath Sridevan
JUDGMENT
The plaintiff in O.S. No. 681 of 1981 on the file of the District Munsif Court, Mannargudi is the appellant herein.
2. The suit in O.S. No. 681 of 1981 was filed by the plaintiff, Chinna Pillai @ Gowri seeking permanent injunction restraining the defendant, Ganesan with interfering with her peaceful possession of the suit properties. The suit properties were nanja lands in Rayapuram Village, Needamangalam, Nagapattinam District, in R.S. No. 473, measuring 2.21 acres and in R.S. No. 446-2, measuring 0.40 acres.
3. By judgment dated 16.09.1983, the suit was decreed with costs. https://www.mhc.tn.gov.in/judis 3
4. The defendant then filed A.S. No. 55 of 1983 before the Sub Court Pattukottai. He also filed I.A. No. 37 of 1984 for reception of further documents as additional evidence. By judgment dated 29.02.1984, both the interlocutory application and the appeal suit were allowed and the decree in O.S. No. 681 of 1981 was set aside.
5. Aggrieved by that finding, the plaintiff filed S.A. No. 712 of 1984 before this Court. During the hearing of the second appeal, a learned Single Judge of this Court, (K. Sampath, J) framed an additional substantial question of law relating to the procedure adopted to receive the further documents in evidence and finding fault with the procedure adopted, remanded the appeal suit back to the Sub Court, Pattukottai for fresh disposal.
6. On constitution of Sub Court at Thiruvarur, the appeal suit was transferred to Sub Court, Thiruvarur and re-numbered as A.S. No. 11 of 2000. By judgment dated 19.03.2001, the appeal suit was allowed and https://www.mhc.tn.gov.in/judis 4 the decree in O.S. No. 681 of 1981 was again set aside.
7. The plaintiff then filed the present second appeal.
8. The second appeal had been admitted on the following substantial questions of law :
“1. Whether the Court below is right in holding that the appellant has not established her case especially when the Court below failed to consider the evidence of P.W.2 and P.W.3 and the proceedings of eviction under the Cultivating Tenants Act and the order of Rent Control, Thanjavur ?
2. Is not the judgment of the lower appellate Court vitiated by its failure to consider the defence of the respondent who is guilty of approbating and reprobating in that the respondent has in one breath claims that he is sub-lessee and in another breath claims to be the https://www.mhc.tn.gov.in/judis 5 direct lessee of the landlord ?
3. Is not the judgment and decree of the lower appellate Court vitiated by its failure to carry out the directions of this Court in S.A. No. 712 of 1984 when the case was remanded by this Court to the lower appellate Court for fresh disposal ?”
9. The appellant had also filed C.M.P. No. 187 of 2014 under Or. 41 Rule 27 C.P.C., to admit to evidence further documents. It is her contention that while granting injunction till disposal of the second appeal, in C.M.P. No. 7390 of 2001, by order dated 09.07.2001, a learned Single Judge of this Court, (P.D.Dinakaran, J) had also ordered as follows :
“ Interim injunction pending disposal of the
above Second Appeal.
However, the authorities under the Record of
Tenancy Rights Act are directed to decide the issue as to the tenancy of the suit property independently, without reference to the above order of interim injunction granted in favour of the https://www.mhc.tn.gov.in/judis 6 petitioner/appellant.
The parties are at liberty to move this Court for early disposal of the Second Appeal as soon as a finality is reached in the Record of Tenants Rights proceedings. The above CMP is disposed of accordingly.”
10. The document now sought to be filed is the order dated 31.05.2004 of the Tahshildar under the Record of the Tenancy Rights Act, 1969.
11. During the pendency of the second appeal, the respondent/defendant in the suit died and his legal representatives had been brought on record as 2nd to 7th respondents.
12. During the discussion hereunder, the appellant shall be referred as the plaintiff and the respondents as the defendant, they being the legal representatives of the deceased sole respondent/defendant in the suit.
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13. The plaintiff had instituted O.S. No. 681 of 1981 on the file of the District Munsif Court, Mannargudi, stating that the suit nanja lands in Rayapuram Village, Needamangalam, Nagapattinam District, in R.S. No. 473, measuring 2.21 acres and in R.S. No. 446-2, measuring 0.40 acres belonged to the Sripathi Venugopalaswami Temple at the village and claiming that her father Pakkiri Panikar was the lessee of the lands. She claimed that her father was in possession for well over 40 years till his death. She further claimed that the lease rights then vested in herself and in her sister, who subsequently died issueless, leaving her as the sole surviving heir of her father with consequent rights to hold the lands as tenant/lessee under the temple. Recognizing her status, the temple had also instituted P.T. No. 553 of 1981 before the Thanjavur Revenue Court, seeking eviction, holding that she was in arrears of rent.
14. She claimed that the defendant had helped her father and then herself to cultivate the lands. He however trespassed into the lands, necessitating her to file the suit seeking permanent injunction to protect possession.
15. The defendant, in his written statement also affirmed that he https://www.mhc.tn.gov.in/judis 8 helped the father of the plaintiff to cultivate the lands. He however claimed that the father had executed a release deed on 19.08.1975, recognizing him as a sub-lessee and therefore he claimed right to be in possession. He further stated that he had joined the local agricultural bank and obtained loan for cultivation and had also purchased fertilizers. He urged that therefore the suit should be dismissed.
16. The District Munsif, Mannargudi framed issues to determine whether the plaintiff was in possession and whether the defendant was a sub-lessee as claimed.
17. The parties were invited to graze the witness box and adduce oral and documentary evidence.
18. The plaintiff produced as Ex. A1 the original of the eviction petition filed by R. Lakshminarayanan, hereditary trustee of Sripathi Venugopalaswamy Temple, Rayapuram seeking eviction of the plaintiff and her sister, recognizing them as cultivating tenants and complaining https://www.mhc.tn.gov.in/judis 9 that they had paid the rents determined in measurements of kalams and marakkals of paddy and straw bundles for the fasli 1388, 1389 and 1390. This document establishes the case of the plaintiff that after the demise of her father, the temple had recognized her as the cultivating tenant.
19. The defendant had also affirmed that the father of the plaintiff was the cultivating tenant under the temple, but claimed that the father had relinquished that right in his favour and to substantiate that fact, produced Ex. B1, an unregistered relinquishment deed said to have been executed by the father.
20. The learned District Munsif returned a very damaging finding regarding the signatures of the father, Pakkiri Panikkar in Ex. B1 and had very categorically stated that even a casual comparison of his signatures found in Ex. A2, a registered Othi Deed and Ex. B1 would make it evident even to the naked eye, that the signatures in Ex. B1 have been forged. The differences have been pointed out in a very precise manner. It was also found that the other documents produced by the defendant did https://www.mhc.tn.gov.in/judis 10 not relate to the suit lands.
21. Holding as above and charging the defendant with producing a false document before Court, the District Munsif, decreed the suit.
22. The defendant then filed A.S. No. 55 of 1983 before the Sub Court at Pattukottai and also filed an application under Order 41 Rule 27 C.P.C., to produce additional documents. The appeal suit was allowed, but by judgment dated 24.11.1997 in S.A. No. 712 of 1984, a learned Single Judge of this Court, (K. Sampath, J), had found fault with the procedure adopted in admitting the additional documents to evidence and had remanded back the appeal suit for fresh disposal.
23. On remand, the appeal suit was transferred to the Sub Court at Tiruvarur and renumbered as A.S. No. 11 0f 2000. By judgment dated 19.03.2001, the appeal suit was allowed, by, and I am compelled to express my opinion, a very disappointing judgment.
24. This second appeal is focused on that judgment. https://www.mhc.tn.gov.in/judis 11
25. The learned Sub Judge had not expressed his opinion on the finding of the District Munsif regarding Ex. B1 and the signatures found therein. He had not expressed any opinion on the other documents produced by the defendant, and whether they actually related to the suit lands. On the other hand, he found fault with the plaintiff for not having produced any oral or documentary evidence to substantiate possession, completely overlooking Ex.A1, in which the actual landlord, the temple had recognized the plaintiff and her sister as cultivating tenants and had initiated proceedings to evict them. There cannot be a better document produced to establish tenancy.
26. The defendant, on the other hand, who claimed that the father of the plaintiff had relinquished his rights by way of Ex. B1 has to suffer the observations of the District Munsif regarding forgery of the signatures of the father in Ex. B1, which finding had not been set aside by the Sub Judge, Thiruvarur. The finding holds.
27. In Joseph v. Batho Mary, (1999) 5 SCC 711, in similar https://www.mhc.tn.gov.in/judis 12 circumstances when the court below had come to a finding that the assertion that the signature was forged and when the High Court had interfered with such finding holding that the assistance of an expert should have been sought, the Hon’ble Supreme Court observed as follows :
“5. ….it was a contention of the appellants that the signature of the landowner was forged on the joint application filed under Section 72-MM. That aspect was disputed by the contesting respondent, but the son of the purported signatory, when examined as PW 2 in the suit, said that the signature attributed to his late father in the joint application is a forged one. The fact-finding courts concurrently found that the said signature was forged. Unfortunately, learned Single Judge upset the said finding on a fragile reasoning that the aforesaid signature should have been forwarded to a handwriting expert to prove that it was forged.
28. Holding that the High Court should not have interfered with https://www.mhc.tn.gov.in/judis 13 the concurrent finding, the judgment was reversed.
29. In the instant case, the District Munsif had carefully analysed and expressed a definite opinion that the signatures in Ex. B1 are forged. The Sub Judge had however avoided any discussion on that aspect. It has to held that the finding of the District Munsif, not having been reversed, holds
30. In Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 110 : 1997 SCC (Cri) 992 at page 122, it was held as follows by the Hon’ble Supreme Court :
“38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the https://www.mhc.tn.gov.in/judis 14 disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [See : State (Delhi Admn.) v.
Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14] .]” 31.
31. A learned Single Judge of this Court in Periasamy Padayachi vs Andal, reported in (2002) 4 LW 615, held as follows on similar facts :
“8. When the over-writing of the signature of the respondent/defendant, on the face of it, is explicit, 1 do not see any necessity to send the promissory note for expert's opinion. That apart, if the appellant, who is the plaintiff himself, wants to substantiate his claim that the signature of the respondent/defendant-executor is not forged, he should have taken steps to discharge his burden. Having failed to do so, it is not open to the appellant/plaintiff to say that the learned Additional District Judge, Cuddalore, has erred in giving a finding of material alteration of the promissory note, without referring the same for expert's opinion.”
32. I therefore hold that the defendant had put up a false case before https://www.mhc.tn.gov.in/judis 15 the Court and had produced a document to subvert administration of justice.
33. Mr. Srinath Sridevan, learned Counsel for the defendant however fell back on the pronouncement of the Full Bench of this Court reported in 1979 SCC OnLine Mad 151 : (1980) 93 LW 169 :
(1980) 2 Mad LJ 89 (FB) : AIR 1980 Mad 180 (Periathambi Goundan vs The Sistrict Revenue Officer, Coimbatore and others), wherein, in view of introduction of Section 16 A to the T.N. Agricultural Land Record of Tenancy Rights Act, 1960, by the T.N. Amending Act, 34 of 1972, the Full Bench was placed with an obligation to pronounce an opinion on the exclusion of the jurisdiction of the Civil Court in matters relating to and arising out of the said Act.
34. Learned Counsel placed particular reference to the following observations :
“40. The above second appeal [(Muniyandi vs Rajangam Iyer, reported in 89 LW 240 : (1976) 1 Mad LJ 844 (DB)] dealt with one type of suit only. Instances can be multiplied. A landowner may file a suit for injunction putting forward the contention that the defendant, who was his tenant, had surrendered possession of the land, but https://www.mhc.tn.gov.in/judis 16 subsequently was seeking to interfere with his possession. If the suit is one for a simple injunction only, the question that has to be decided will be, whether the plaintiff landowner was in possession of the suit property on the date of the suit or not, and no other question wilt arise. AH other questions as to the defendant having been previously a cultivating tenant and his surrendering possession of the property subsequently will be only incidental to the determination of the question as to whether the plaintiff has established that he was in possession of the suit property on the date of the suit or not. Once it is held that the plaintiff-landowner was not in possession of the suit property on the date of the suit, the suit will have to be dismissed irrespective of the question as to whether the defendant was previously a cultivating tenant or not. In such a suit, if the prayer for grant of injunction is coupled with the prayer for declaration that the defendant was not a cultivating tenant or that the defendant had surrendered possession of the property, then the Civil Court may not have jurisdiction to go into the question whether the defendant was a cultivating tenant or not. Similarly, if the cultivating tenant files a suit for declaration that he is the cultivating tenant of the land in question and as a consequential relief prays for recovery of possession from the land-owner-defendant or an injunction, the primary relief being one of declaration of his status as a cultivating tenant, the other reliefs being consequential, the Civil Court may not have jurisdiction to decide the controversy with reference to which the primary relief is prayed for. We may also take a case where a landowner institutes a suit for recovery of https://www.mhc.tn.gov.in/judis 17 arrears of rent from his tenant and there is a controversy as to the actual extent of the land in the occupation of the tenant, which has a bearing on the quantum of rent payable by the tenant. In such a case, it cannot be held that the Civil Court has no jurisdiction to try the suit, since the determination of the extent of land in the occupation of the tenant, which is one of the matters coming within the scope of S. 3 (2) of the Act, is involved. We are merely referring to these cases only by way of illustration for the purpose of showing that it is not every suit or proceeding instituted in Civil Court which raises one or other of the matters enumerated in S. 3 (2) of the Act, which are to be determined by the authorities functioning under the Act, that will fail and what S. 16-A of the Act bears is the exercise of the jurisdiction by Civil Court in respect of matters referred to already and not the jurisdiction to deal with the suit or proceeding in other respects.
“41. Our conclusion as to what are the matters which are within the exclusive jurisdiction of the authorities constituted under the Act and with reference to which the bar imposed by S. 16-A comes into operation gains confirmation from the provisions of S. 14 (1) as already indicated. The various enactments enumerated in S. 14 (1) are all enactments dealing with the rights and liabilities of land-owners and tenants to whom land has been let for cultivation. In the context of the proceedings initiated under the provisions of those Acts, the particulars mentioned in S. 3 (2) of the Act will assume importance and the preparation of the approved record under the Act will constitute a preliminary determination of the matters necessary for invocation of https://www.mhc.tn.gov.in/judis 18 the jurisdiction of the authorities functioning under the Acts enumerated in S. 14 (1). If this aspect is borne in mind, it will be indisputably clear that the matters which are within the exclusive jurisdiction of the authorities constituted under the Act are limited by the provisions contained in S. 3 (2) of the Act, because those were the particulars which are directed to be included in the approved record to be prepared under the Act.”
35. The provision referred, Section 3 (2) the Act in relation to which the jurisdiction of the civil Court had been held to be ousted, or rather, the exclusive jurisdiction of the authorities under the Act had been stated to be limited, had been extracted in para 12 of the judgment ;
“12. S. 3 (1) of the Act enables the Government to direct by notification the preparation of a record of tenancy rights for such village or villages as may be specified in the Notification and provides that such records shall be prepared, maintained and revised in accordance with the provisions of the Act and the rules made thereunder. Sub-S.(2) of S. 3 reads as follows— “The record referred to in sub-S.(1) shall contain the following particulars, namely—(a) the survey number or sub-division number, extent and local r ame if any of the land; (b) the name and address of the landowner; (c) the name and address of the intermediary. If any;
(d) the name and address of the tenant cultivating the land; and (e) https://www.mhc.tn.gov.in/judis 19 such other particulars as may be prescribed”.
36. In the instant case, the suit had been filed for permanent injunction restraining the defendant from interfering with peaceful possession of the plaintiff. The defendant had put up a defence that he was a sub-lessee and that later his right had been affirmed by execution of Ex. B1. But that document had been found to have been created. No right can therefore flow to the defendant under that document. On the other hand, Ex. A1, clearly affirms that it is the plaintiff who is the tenant recognized by the landlord, the Sripathi Venugopalaswamy Temple.
37. I would therefore hold that the suit is maintainable and that the Civil Court had jurisdiction to determine the issues framed for trial.
38. I shall now proceed to answer the substantial question of law. They are intertwined and can therefore be taken up for consideration together.
39. All the three substantial questions of law revolve around appreciation of evidence.
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40. With respect to the first substantial question of law, I hold that the judgment of the first appellate Court suffers from failure to appreciate the oral and documentary evidence produced by the plaintiff. The learned Sub Judge had, for reasons, best known, closed his eyes to Ex. A1 and to the damaging observations of the District Munsif regarding forgery of the signatures of the father of the plaintiff in Ex. B1.
41. With respect to the second substantial question of law, I hold that the defendant is neither a sub-lessee under the father of the plaintiff nor under the plaintiff, nor is he a direct tenant under the temple. He can put up varied defences, but certainly not a false defence and certainly cannot be permitted to produce a document in which the signatures have been held to have been forged.
42. With respect to the third substantial question of law, I hold that this Court in the earlier round of litigation had directed the first appellate to follow the procedure under Or. 41 Rule 27 C.P.C. A reading of the judgment under appeal does not reveal that the Sub Judge had taken any effort to comply with such direction. https://www.mhc.tn.gov.in/judis 21
43. The substantial questions of law are answered accordingly. It must be pointed out that they, in fact required a re-appreciation of the evidence on record.
44. I hold that the judgment of the first appellate Court has to be interfered with and the judgment of the trial Court has to be restored and confirmed.
45. With respect to C.M.P. No. 187 of 2014, I hold that the documents are not required to render a finding in the second appeal. If a discussion is to be launched, then this Court would be entering into the realm of the jurisdiction of the Revenue Authorities and I would refrain from such adventure. The Civil Miscellaneous Petition is dismissed.
46. I must point out that tampering in Ex. B1 had been found as a fact established by the trial Court, which finding had not been interfered by the first appellate Court.
47. The Constitution Bench of the Hon’ble Supreme Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 at page 387 held as follows :
“25. An enlarged interpretation to Section 195(1)(b)(ii),(Cr.P.C.) https://www.mhc.tn.gov.in/judis 22 whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in court, is capable of great misuse. As pointed out in Sachida Nand Singh [(1998) 2 SCC 493 : 1998 SCC (Cri) 660] after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large.
“26. Judicial notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle https://www.mhc.tn.gov.in/judis 23 has been stated in the following manner:
“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong.”
48. However, I shall refrain from issuing directions to the District Munsif, Mannargudi to examine the production of a tampered document, Ex. B.1, since any charge of commission of criminal offence by the defendant, Ganesan has naturally abated on his death.
49. In the result :
i. The Second Appeal is allowed with costs.
ii. The judgment and decree dated 19.03.2001 in A.S. No. 11 of 2000 on the file of the Sub Court, Thiruvarur is set aside. iii. The judgment and decree dated 16.09.1983 in O.S. No. 681 of 1981 on the file of District Munsif Court, Mannargudi is restored and confirmed.
iv. Connected Miscellaneous Petition, if any is closed.
18.08.2022 vsg Index :Yes/No Internet:Yes/No https://www.mhc.tn.gov.in/judis 24 C.V.KARTHIKEYAN, J.
vsg To
1. District Munsif Court, Mannargudi.
2. Sub Court, Thiruvarur.
Pre-Delivery Judgment made in S.A.No. 718 of 2001 And C.M.P.No. 187 of 2014 18.08.2022 https://www.mhc.tn.gov.in/judis