Madras High Court
Muthu Virumaandi Thevar vs Kishore Banu on 28 August, 2014
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.08.2014 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM S.A(MD)No.474 of 2011 and M.P(MD)Nos.1 of 2011 and 1 of 2014 1.Muthu Virumaandi Thevar 2.Mathialagan 3.Jeyapal .. Appellants/ Defendants 1 to 3 Vs. 1.Kishore Banu 2.Samima Banu 3.S.M.Shahul Hameed (Respondents 1 to 3 are represented through their power of attorney) 4.Ajmal Khan .. Respondents 1 to 4/Plaintiffs 5.The Commissioner, Cumbum Municipality, Cumbum Town, Theni District. .. Fourth Respondent/Fourth Defendant Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 against the Judgment and decree dated 18.10.2010 passed in Appeal Suit No.3 of 2009 by the Sub Court, Uthamapalayam modifying the Judgment and decree dated 10.11.2008 passed in Original Suit No.18 of 2005 by the District Munsif Court, Uthamapalayam. !For Appellants : Mr.D.Malaichamy ^For Respondents : Mr.V.George Raja 1 to 4 for M/s.Ajmal Associates For Respondent No.5 : Mr.S.Kadarkarai :JUDGMENT
The Judgment and decree passed in Original Suit No.18 of 2005 by the District Munsif Court, Uthamapalayam and modified in Appeal Suit No.3 of 2009 by the Sub Court, Uthamapalayam are being challenged in the present second appeal.
2.The respondents 1 to 4 herein as plaintiffs have instituted Original Suit No.18 of 2005 on the file of the trial Court for the reliefs of perpetual injunction in respect of the suit first schedule and mandatory injunction in respect of the suit second schedule, wherein the present appellants and fifth respondent have been shown as defendants.
3.In the plaint it is averred that the suit properties are originally belonged to one Aamina Beevi and she voluntarily executed a settlement deed in favour of one E.S.Mohamed Ali on 07.05.1986 and the same has come into effect. The said Mohamed Ali has had enjoyed the suit property till his lifetime. The plaintiffs 1 to 3 are the daughters and son of the said Mohamed Ali. The suit first schedule as well as suit second schedule are contiguous properties. The suit second schedule has been set apart for forming a road. On the southern side as well as on the northern side of the suit properties, the defendants are having their properties and now the defendants have made arrangements to disturb the peaceful possession and enjoyment of the plaintiffs over the suit first schedule and also they tried to encroached the suit second schedule. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.
4.In the written statement filed on the side of the defendants 1 to 3, it is averred that a land measuring 1 acre 36 cents in suit survey number has been mortgaged by the original owner of the suit properties in favour of one Chellammal, who is none other than the wife of the first defendant and mother of the second defendant, by way of executing a mortgage deed dated 12.04.1978 and on the same day possession has been given by way of executing a separate indenture and now the defendants 1 and 2 are enjoying the entire extent mentioned in the mortgage deed dated 12.04.1978. It is false to aver in the plaint that the plaintiffs 1 to 3 are in possession and enjoyment of the suit properties and there is no merit in the suit and the same deserves to be dismissed.
5.In the written statement filed on the side of the fourth defendant, it is averred that the fourth defendant has not known about the existence of the suit second schedule and therefore the present suit deserves to be dismissed.
6.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants 1 to 3 as appellants have preferred Appeal Suit No.3 of 2009 on the file of the first appellate Court.
7.The first appellate Court after hearing both sides and upon reappraising the evidence available on record has partly allowed the appeal and thereby confirmed the Judgment and decree passed by the trial Court in respect of permanent injunction and dismissed the suit in respect of mandatory injunction. Against the Judgment and decree passed by the trial Court, modified by the first appellate Court, the present second appeal has been preferred at the instance of the defendants 1 to 3 as appellants.
8.At the time of admitting the present second appeal, the following substantial questions of law have been settled for consideration:
a)Whether the Courts below are correct in coming to the conclusion that the respondents 1 to 3 are in possession and enjoyment of the suit properties by ignoring the possessory right given to the first appellant's wife Chellammal under Exs.B.1 to B4 in the absence of any proof of dispossessing the appellants?
b)Whether the Courts below are correct in concluding that the simple mortgage under Ex.B.1 is discharged without any evidence?
9.The short point that arises for consideration in the present second appeal is as to whether the plaintiffs 1 to 4 are entitled to get the relief of perpetual injunction in respect of the suit first schedule in view of the simple mortgage deed dated 12.04.1978 and other documents dated 12.04.1978 and 01.04.1981?
10.The learned counsel appearing for the appellants/defendants 1 to 3 has sparingly contended that during lifetime of the original owner of the suit survey number by name Aamina Beevi, a simple mortgage deed has come into existence on 12.04.1978 in favour of Chellammal, who is none other than the wife of the first defendant and mother of the second defendant and on the same day, the said Aamina Beevi has executed a separate document, wherein it has been clearly stated that the possession of the mortgaged property has been given to the mortgagee and subsequently on 01.04.1981 she has executed another deed for the very same purpose and the Courts below without considering execution of simple mortgage deed and also without considering the subsequent documents, have erroneously rejected the defence putforth on the side of the appellants/defendants 1 to 3 and therefore the Judgment and decree passed by the trial Court, modified by the first appellate Court are liable to be interfered with.
11.Per contra, the learned counsel appearing for the respondents 1 to 4/plaintiffs has contended that Ex.B.1 is nothing, but a registered document and subsequently no document has come into existence and further the documents relied upon by the defendants 1 to 3 are not genuine and both the Courts have uniformly found that those documents are concocted documents and under the said circumstances the Judgment and decree passed by the trial Court, modified by the first appellate Court are not liable to be interfered with.
12.The entire case of the defendants 1 to 3 is based upon Exs.B.1 to B.3. Ex.B.1 is a simple mortgage deed alleged to have been executed by the original owner of suit survey number by name Aamina Beevi in favour of Chellammal. Ex.B.2 is a deed dated 12.04.1978 alleged to have been executed by the said Aamina Beevi. Likewise Ex.B.3 is also a deed alleged to have been executed by the said Aamina Beevi on 01.04.1981. In fact this Court has compared the signature of Aamina Beevi found in Ex.B.1 with her alleged signatures found in Exs.B.2 and B.3 and ultimately found that lot of variations are found place between the admitted signature and disputed signatures.
13.The learned counsel appearing for the respondents 1 to 4/plaintiffs has befittingly drawn the attention of this Court to the decision in Chandrakant Shankarrao Machale v. Parubai Bhairu Mohite (dead) through LRs. reported in (2008)6 Supreme Court Cases 745, wherein the Hon'ble Apex Court has held that terms of a registered mortgage deed can be altered or varied only by a registered document.
14.The specific case of the appellants/ defendants 1 to 3 is that Ex.B.1 has come into existence on 12.04.1978 and the same has been registered. Since Ex.B.1 is a registered document, Exs.B.2 and B.3 cannot be admitted in evidence and further as pointed out earlier the alleged signature of Aamina Beevi found in Exs.B.2 and B.3 is not her signature. Therefore viewing from any angle, the contention putforth on the side of the appellants/defendants 1 to 3 on the basis of Ex.B.1 cannot be accepted.
15.The present suit has been instituted in respect of two schedule of properties. With regard to first schedule, relief of perpetual injunction has been sought for and with regard to second schedule, relief of mandatory injunction has been sought for. In the written statement filed on the side of the appellants/defendants 1 to 3, no proprietary interest has been claimed in respect of the suit properties and their only defence is that they are in possession in pursuance of Exs.B.2 and B.3. Since it has already been held that the contention putforth on their side cannot be accepted, the Court can very well grant the relief perpetual injunction. Further the trial Court has decreed the suit as prayed for including the relief of mandatory injunction. However the first appellate Court has set aside the Judgment and decree passed by the trial Court in respect of the relief of mandatory injunction. Therefore viewing from any angle, the contentions putforth on the side of the appellants/defendants 1 to 3 are not factually and legally sustainable and all the substantial questions of law settled in the present second appeal are not all relevant for the purpose of deciding the present lis and altogether the present second appeal deserves to be dismissed.
16.The learned counsel appearing for the appellants/defendants 1 to 3 has advanced his residual argument stating that in the instant case the plaintiffs have not proved their alleged possession of the suit first schedule, since the power of attorney has clearly admitted in his evidence that in the suit properties some tamarind trees are in existence.
17.It has already been discussed in detail that the alleged possession of the defendants 1 to 3 on the basis of Ex.B.2 and B.3 cannot be accepted and further in the written statement filed on their side, no title has been claimed in respect of the suit first schedule. Considering the fact that the plaintiffs are having title to the suit properties, it is needless to say that possession follows title and therefore viewing from any angle all the contentions raised on the side of the appellants/defendants 1 to 3 are of no use.
18.In fine, this second appeal is dismissed without costs and the concurrent Judgments and decrees passed by the Courts below in respect of the relief of permanent injunction are confirmed. Consequently, connected Miscellaneous Petitions are dismissed.
To
1.The Sub Court, Uthamapalayam.
2.The District Munsif Court, Uthamapalayam.