Madras High Court
Visalamani W/O. Dhanabal vs Ganapathi on 21 April, 2007
S.A.No.830 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 11.03.2020
Delivered on: 08.05.2020
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.830 of 2007
and
C.M.P.No.1 of 2007
Visalamani W/o. Dhanabal ...Appellant
Vs
1. Ganapathi
2. Dhanalakshmi ...Respondents
PRAYER: Second Appeal is filed under section 100 of the Civil
Procedure Code to set aside the Judgment and decree passed in
A.S.No.188 of 2005 on the file of the Additional Sub Court,
Mayiladuthurai, dated 21.04.2007 confirming the Judgment and
decree passed in O.S.No.310 of 2002 on the file of the District
Munsif's Court, Sirkali, dated 16.11.2005.
For Appellant : Mr. S. Sounthar
For Respondents :Mr.M.V.Venkataseshan
****
http://www.judis.nic.in
1
S.A.No.830 of 2007
JUDGMENT
This Second appeal has been preferred by the plaintiff who was unsuccessful before both the Courts below. The parties are referred to in the same ranking as before the Trial Court. The facts essential for disposal of the second appeal are recapitulated herein below.
2.The plaintiff had filed O.S. No.310 of 2002 on the file of the District Munsif's Court, Sirgazhi, for a bare injunction in respect of the property measuring an extent of 0.13-1/3 acres comprised in Natham R.S. No.327/3 of Kathirruppu Village, Sirgazhi. It is the case of the plaintiff that he had purchased the property under a registered sale deed dated 02.05.1997 from the 1st respondent. The plaintiff had his house west of the suit property and in the suit property, he had planted 12 coconut saplings and was also storing hays there. The plaintiff would contend that the suit property only belonged to him. It is the further case of the plaintiff that North of the suit property is the Road and further north of the road, there is the property of the defendants. Though the defendants had no right to the property, after the sale of the property to the plaintiff, they had tried to trespass into the suit property and put up a thatched house on 11.12.2002. This attempt was successfully thwarted. However, the defendants had http://www.judis.nic.in 2 S.A.No.830 of 2007 threatened to renew their attempt which had constrained the plaintiff to file the instant suit.
3. The 1st respondent had filed Written Statement inter alia, denying the Sale of the suit property by him to the plaintiff. He would submit that the Sale Deed dated 02.05.1997 is a forged document. By no stretch of imagination would he sell a property worth of Rs.15,000/- for a petty sum of Rs.3,500/-. Further, the Sale Deed contains several overwritings, deletions and additions. The fact that the Sale Deed is fabricated is evident from the fact that as against a stamp duty of Rs.1607/-, the Sale Deed has been typed out in a Rs.100/- Stamp Paper. Further each signature in the deed differs from the defendants. He would further submit that the plaintiff has got some other person to impersonate the 1st respondent/1st defendant in the Sub-Registrar Office. The Suit property has never been in the possession and enjoyment of the plaintiff but has only been with the 1st defendant and his sister, the 2nd defendant. The defendant would further submit that the Suit property is the ancestral property of the defendants in which both defendants have their respective share. The cause of action pleaded in the suit is an utter falsehood. He therefore, sought for a dismissal of the suit.
http://www.judis.nic.in 3 S.A.No.830 of 2007
4. The 2nd defendant has independently filed a written statement contending that the property belonged to her father who died intestate. On his death the property devolved on the 1st and 2nd defendants and therefore any sale deed executed by the 1st defendant will not bind her share. She would further contend that the possession of the property continued to be with the defendants. Therefore, the suit should be dismissed.
5. The learned District Munsiff had framed the following issues after perusing the entire papers.
1, t fF brhjJ thjad meof;Fr;nrhj;J thjpapd;
mDgtj;jpy; ,Ue;J tUfpd;wjh?
2. thjp gpujhgpj;jpUf;Fk; 2.5.1997 Mk; Njjpa fpuarhrdk; Nghu;rupah?
3.2-k; gpujpthjp tof;Fr;nrhj;ij nghWj;Jl;L clikjhuuh?
4.thjp Nfl;bUg;gJ Nghy cWj;Jf;fl;lisg; gupfhuk;
fpilf;ff;$bajh?
5.thjpf;F vd;d gupfhuk; fpilf;ff;$baJ?
On the side of the plaintiff four witnesses were examined and Exhibits A1 to A8 were filed. Both the defendants had adduced evidence as D.W.1 and D.W.2. However, they did not mark any documents on their side. On a consideration of the evidence of record the learned District Munsiff held that Ex.A1-Sale Deed under which the plaintiff claims a right is a forgery and further the plaintiff had not proved the http://www.judis.nic.in 4 S.A.No.830 of 2007 possession of the suit property as on the date of the suit. For the aforesaid reasons the suit was dismissed by Judgment and Decree dated 16.11.2005.
6. Aggrieved by this Judgment and Decree, the plaintiff had filed A.S.No.188 of 2005 on the file of the Additional Sub Court, Mayiladuthurai. The learned sub-ordinate Judge also confirmed the finding of the learned District Munsiff and dismissed the appeal. Being aggrieved by this concurrent Judgment and Decree, the plaintiff has filed the above second appeal.
7. This Court had only directed notice to the defendants for the admission of the second appeal. Mr.S.Sounthar, the learned counsel appearing for the plaintiff/appellant herein would contend that the authenticity of Ex.A1-Sale Deed has been proved by examining P.W.2 and P.W.3 who are the witnesses to Ex.A1, though the plaintiff was not required to do so. He would further contend that the evidence of D.W.1 would clearly prove that he is an unreliable witness as he has denied his signature in the Vakalat and the Written Statement. The learned counsel would contend that once the signature in the written statement has been denied, the written statement cannot be looked http://www.judis.nic.in 5 S.A.No.830 of 2007 into for any purpose. He would also draw the attention of this Court to the Cross Examination of D.W.1. In support of his arguments that in the case of Sale Deeds the attestators need not be examined, he would rely on the following Judgment reported in AIR 1975 MAD 221 in the case of "Karuppiah Mooppanar Vs.Muthukaruppan Servai". In support of his contention that if a Registered Sale Deed is called in question the person so disputing the deed should prove the same, he would rely upon the Judgment reported in 2009(5)SCC 713 in the case of "Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jadoo".
8. Per contra, Mr.M.V. Venkatesan, the learned counsel appearing for the defendants/respondents herein would submit that both the Courts below have come to the conclusion that the plaintiff had not proved execution of Ex.A1 by the 1st defendant. Further, there were several discrepancies in the evidence of P.W.2 and P.W.3. who are the witnesses to the execution of the Ex.A1 by the 1st defendant. He would further highlight the fact that the plaintiff has not proved his possession and enjoyment of the suit property and the Courts below have observed that Ex.A3 to Ex.A5 does not relate to the suit property. He would therefore contend that this concurrent findings of fact need not be interfered by this Court. http://www.judis.nic.in 6 S.A.No.830 of 2007
9. Heard, the Counsel on both sides and perused the documents.
10. The 1st defendant had denied the execution of Ex.A1- Sale Deed and would contend that the very signatures in the document and its registration has taken place by impersonation. The plaintiff has examined P.W.2 and P.W.3 to prove the execution of the Sale Deed. However, the Plaintiff has not amended the plaint to include a relief for declaration. The evidence of the D.W.4 who is the Village Administrative Officer would show that the 1st defendant in the proceedings before the Revenue Authorities has not denied his signatures in the Deed but had contended that his signature had been obtained by fraud. Further, D.W.1, the 1st defendant is not a trustworthy and reliable witness. He had denied his signature in the Vakalat and the Written Statement itself. The 1st defendant has also not produced any supporting documents to prove the alleged forgery especially, when the plaintiff has examined P.W.2 and P.W3 to prove the document. The discrepancy in their evidence is not fatal to the plaintiff's claim since the witnesses have been able to speak about the execution of the deed by the 1st defendant and its registration. http://www.judis.nic.in 7 S.A.No.830 of 2007
11. This suit is not one for a declaration but one for permanent injunction. The Court has to consider as to whether the plaintiff had let in any evidence to show that he has been in possession of the property on the date of the Suit. Unfortunately, this has to be answered in the negative as this Court is in agreement with the findings of the Courts below in this regard. The appellant/plaintiff having failed to raise a substantial question of law in this Second appeal, this Court is constrained to dismiss the 2nd appeal.
12. In the result, the Second appeal is dismissed and the Judgment and Decree of the Courts below is confirmed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
08.05.2020 lbm Index : Yes/No Index/Internet Speaking order/non-speaking order http://www.judis.nic.in 8 S.A.No.830 of 2007 To:
1. The Additional Sub Court, Mayiladuthurai,
2. The District Munsif's Court, Sirkali, http://www.judis.nic.in 9 S.A.No.830 of 2007 P.T.ASHA, J., Lbm Pre-Delivery order in S.A.No.830 of 2007 and C.M.P.No.1 of 2007 08.05.2020 http://www.judis.nic.in 10