Madras High Court
M.Pachiappan vs Gouri on 8 July, 2015
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.07.2015 CORAM THE HON'BLE MS. JUSTICE R. MALA S.A.No.711 of 2005 Date of Reserving the Judgment 02.07.2015 Date of Pronouncing the Judgment 08.07.2015 1.M.Pachiappan 2.P.Kumar ... Appellants 1 & 2/Appellants 1 & 2/ Defendants 1 & 2 Vs 1.Gouri 2.Jothi 3.Madheswari 4.Valli 5.Valarmathi ... Respondents 1 to 5/Respondents 1 to 5/ Plaintiffs 1 to 5 Prayer: Second appeal filed under Section 100 of CPC against the judgment and decree dated 29.10.2004 made in A.S.No.25 of 2003 on the file of the Subordinate Court, Dharmapuri, confirming the judgment and decree dated 10.02.2003 passed in O.S.No.49 of 1998 on the file of the District Munsif Court, Dharmapuri. For Appellants : Mr.R.Subramanian For Respondents : Mr.J.Nandagopal J U D G M E N T
The second appeal arises out of the judgment and decree dated 29.10.2004 made in A.S.No.25 of 2003 on the file of the Subordinate Court, Dharmapuri, confirming the judgment and decree dated 10.02.2003 passed in O.S.No.49 of 1998 on the file of the District Munsif Court, Dharmapuri.
2. The averments made in the plaint are as follows:-
The suit properties are originally owned by one Venugopal who got the property under the registered settlement deed, dated 27.04.1918. The said settlement deed not only consists of the suit property but also the vacant land and house adjacent to the suit property. From the date of the settlement, the said Venugopal was in possession and enjoyment and he was using the suit lane to reach the Sathiram Mel Street. Thereafter, Venugopal made a construction in the suit lane with the front door facing the Salai Vinayagar Main Road and the back door facing the plaintiffs/respondents house. The door number of the said property is 135 and the assessment stood in the name of the Venugopal and he was paying the tax. While so, Venugopal along with Aadhilakshmi Ammal sold one portion of the property situated to the south of the suit property to one Appadurai varma on 12.11.1964. As per the said document, the suit lane belong to Venugopal and the purchaser has the right to use the suit lane while carrying out repair works in the Northern side wall. It was also specifically stated that whenever the vendor Venugopal intend to construct building in the suit lane, he is entitled to put hole and make the construction. On that basis, Venugopal made the construction and he was in possession. Now the property situated on the southern side of the suit property was purchased by one Kaliappan and he is in possession and enjoyment. While so, when Venugopal was carrying out business in the property, he fell ill and at that time, the first defendant entered into a rental arrangement and the rent was fixed at Rs.50/-. The first defendant paid the rent during the lifetime of Venugopal and the said Venugopal died on 21.04.1981, leaving behind the plaintiffs/respondents as legal heirs. After the death of Venugopal, the plaintiffs/respondents alone were paying the property tax. While so, from February 1988, the first defendant refused to pay the rent and issued a notice. The plaintiffs/respondents also issued a reply notice and immediately filed RCOP.No.3 of 1989 which was dismissed. Hence, the plaintiffs were forced to file the suit for declaration of title and recovery of possession.
3. The gist and essence of the written statement filed by the 1st defendant is as follows:
The averment made in the plaint is false. The suit property belong to the defendant and one Vasantha. The notice issued by the said Vasantha is true. It is also true that the RCOP was dismissed. The suit property and the two shops situated in the northern portion of the suit property was originally owned by one Ramachandra Chettiar. The said Ramachandra Chettiar was having two sons viz., Muniappa Chettiar and Ramasamy Chettiar. In the partition between Muniappa Chettiar and Ramasamy Chettiar, the shop situated in the Northern side was allotted to Ramasamy Chettiar and the shop situated to the North of Ramasamy Chettiar's shop was allotted to Muniappa Chettiar and they were in possession and enjoyment of the same. While so, Ramasamy Chettiar and his son Srinivasan sold their shop in favour of Dhanalakshmi Ammal, who is the daughter of Muniappa Chettiar. So, Dhanalakshmi Ammal is the owner of the property with whom the defendant entered into a rental agreement for Rs.50/- per month. Thereafter, the defendant purchased the said property on 24.09.1986 and one Vasantha purchased the other = share in the property. So, neither the said Venugopal nor his legal heirs are entitled to the suit property. There is no property tax assessment to the suit property and they paid the tax only to the shop on the North of the suit property. Thereafter, they filed RCOP.No.3 of 1989 for personal occupation which was dismissed. Then the 1st defendant sold his portion of the property to the 2nd defendant on 17.05.1995 and the said Vasantha sold his portion of the property to one Jamuna on 19.05.1995, so the suit is hit by mis-joinder of necessary parties and is hit by res judicata. Hence he prayed for dismissal.
4. The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1 to P.W.3, D.W.1 & D.W.2 and Exs.A.1 to A.27 and Exs.B.1 to B.3 and Exs.C.1 and C.2, decreed the suit. Aggrieved against the judgment and decree of the trial court, the defendant preferred an appeal in A.S.No.25 of 2003 on the file of the Subordinate Court, Dharmapuri.
5. The learned First Appellate Court has considered the argument advanced on either side and framed necessary point for consideration and confirmed the Judgment and Decree passed by the Trial Court and dismissed the appeal. Against the Decree and Judgment of the first Appellate Court, the present second appeal has been preferred by the defendant.
6. At the time of admission, the following question of law has been framed.
1. Whether the lower appellate Court right in drawing presumption under Section 90 of the Evidence Act with regard to Ex.A1 when the original documents has not been produced before the Court?
2. Whether the lower appellate Court was right in deciding the title of the plaintiffs over the suit shop merely on the basis of Exs.A-25 and A-27 property tax receipts?
7. The learned counsel appearing for the appellant would submit that the property was originally owned by one Narayana Chettiar and his two wives Papathi Ammal and Muniammal. They settled the property in favour of Venugopal under Ex.A.1/Settlement Deed, dated 27.04.1918. Originally the defendants got the property from one Ramachandra Chettiar and his two sons viz., Muniappa Chettiar and Ramasamy Chettiar. The said Ramasamy Chettiar sold the property to Dhanalakshmi Ammal under Ex.B.1/Sale Deed, dated 05.03.1969 from whom the 1st defendant/1st appellant purchased the same under Ex.B.2/Sale Deed, dated 24.09.1986. Another part of the property has been purchased by the sister-in-law of the 1st defendant one Vasantha under Ex.B.3/Sale Deed, dated 24.09.1986. In the said document, the suit property has been clearly mentioned. The learned counsel would further submit that both the Courts below relied upon the documents viz., Ex.A.4/Sale Deed, dated 12.11.1964 executed by Adhilakshmi Ammal and Venugopal in favour of Appadurai varma; Ex.A.16/Sale Deed, dated 30.04.1975 executed by Appadurai varma in favour of Kaliappa Gounder and Exs.C.1 and C.2 came to the conclusion that the properties belong to this respondent which is unsustainable. The learned counsel would further submit that even though the respondent herein has raised the plea that there is tenancy arrangement, the same has not been proved and in view of the same, the RCOP filed by the respondent in RCOP.No.3/1989 was dismissed. So, both the Courts below has failed to consider the documents viz., Exs.B.2 and B.3. Hence, the learned counsel for the appellants prayed for allowing the appeal.
8. Resisting the same, the learned counsel appearing for the respondent would submit that after Venugopal got the property under Ex.A.1/Settlement Deed, dated 27.04.1918, he sold one portion of the property in favour of one Appadurai varma under Ex.A.4/Sale Deed, dated 12.11.1964. In that description of property, the suit lane has been specifically mentioned. Furthermore, the suit property has been mentioned even when Appadurai varma sold the property in favour of Kaliappa Gounder under Ex.A.16/Sale Deed, dated 30.04.1975. It has also been proved by way of Commissioner report wherein it was stated that there was a staircase between the suit property and the respondent's/plaintiff's property. That factum was rightly considered by the Court below. Further, the learned counsel for the respondent would submit that though the first appellate Court has held that the Ex.A.1 document is the original, it has not been proved. Since the said document is of the year 1918 and is nearly 100 years old, by invoking Section 90 of the Indian Evidence Act, it is held that the said document is true and genuine. The learned counsel fairly conceded that though the said document was executed on 27.04.1918, the original was not produced and only the registered copy was obtained in the year 1985 i.e., within 30 years and so, the first appellate Court has committed an error in invoking Section 90 of the Indian Evidence Act while considering Ex.A.1 document.
9. Further, the learned counsel would submit that since the original was damaged, the registered copy of the document was marked and the subsequent document has proved that Ex.A.1 document is true and genuine. Even at the time of marking the document, it was marked subject to the objection. During the course of cross-examination, when P.W.1 was question about the original document, it was clearly stated that the original was damaged. In such circumstances, as per Section 65 of the Indian Evidence Act, the registered copy of the document can be relied upon. Hence, the learned counsel for the respondent prayed for dismissal.
10. Considered the rival submissions made by both sides and perused the material records, oral and documentary evidences.
Substantial Question of law 1
11. It is an admitted fact that the husband of the first respondent and the father of the respondents 2 to 5 got the property under the Settlement Deed, dated 27.04.1918. The registered copy of the said document is marked as Ex.A.1 and admittedly, the original of the said document was not marked. The Trial court has held that the said document has been proved in accordance with law. Whereas the first appellate Court by invoking presumption under Section 90 of the Indian Evidence Act came to the conclusion that Ex.A.1 is admissible in evidence and it is reliable. It is appropriate to incorporate Section 90 of the Indian Evidence Act.
90. Presumption as to documents thirty years old.Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
12. In the instant case, the registered copy of the settlement deed, dated 27.04.1918 was obtained only in the year 1985 and it was marked in the year 2002. In such circumstances, the first appellate Court has committed an error by invoking presumption under Section 90 of the Indian Evidence Act, since the document was not thirty years old as on the date of marking the same. Thus, the substantial question of law 1 is answered accordingly.
Substantial Question of law 2
13. Now this Court has to decide whether Ex.A.1 is admissible in evidence and can be relied upon?
At this juncture, it is appropriate to incorporate Sections 63 and 65 of the Indian Evidence Act.
63. Secondary evidence.Secondary evidence means and includes (1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it. 65. Cases in which secondary evidence relating to documents may be given.Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
14. Admittedly, Ex.A.1 is a secondary evidence. In Section 65(c) of the Indian Evidence Act, it has been specifically stated that when the original has been destroyed or lost the party can produce the secondary evidence. It is also true that Ex.A.1 document was marked through P.W.1, however subject to objection. In the cross-examination P.W.1 has specifically stated that the original has been damaged.
th/rh/M/1d; mry; gj;jpuk; ea;e;J ngha;tpl;lJ/ gj;jpuj;jpd; rkhrhu';fs; vdf;F nehpilahf bjhpahJ vd;why; rhp
15. So, Ex.A.1 has to be received in evidence. In pursuance of Ex.A.1, Ex.A.4/Sale Deed, dated 12.11.1964 was executed by Adhilakshmi Ammal and Venugopal in favour of Appadurai varma and thereafter, Ex.A.16/Sale Deed, dated 30.04.1975 was executed by Appadurai varma in favour of Kaliappa Gounder. In both the transactions, the suit property has been specifically mentioned. In Ex.A.4/Sale Deed, it is stated that whenever, the purchaser carries out repair work at the Northern Wall, he has got right to go through the suit lane to do the repair work. Further, it was stated that whenever Venugopal is inclined to construct a building, he has every right to put up a hole and make construction. It is appropriate to incorporate the relevant portion of the recital in the said document.
filapd; tlg[w Rtiu hpg;ngh; bra;a[k;nghJ filapd; tlg[wkpUf;Fk; eiltHp re;jpy; ngha; hpg;ngh; bra;Jf;bfhs;Sk; ghj;jpaKk; fpua filapy; bjd;g[wk; ,Uf;Fk; filapd; cs;ns tlg[wk; ,Uf;Fk; thrfhiy jh';fs; mfw;wptpl;L mt;tHpia Rth;itj;J K:otplntz;oaJ ,j;Jld; filapd; tlg[w nkw;F//////// tlg[uj;jpy; ,Uf;Fk; 2yf;fkpl;l tUf;F ghj;jpakpl;l re;jpy; 2yf;fkpl;lth; fl;olk; fl;odhy; fpua filapd; tlg[w Rtw;wpy; Jisg;nghl;L bghUe;jp fl;of;bfhs;Sk; ghj;jpak; cz;L/
16. Similarly, in Ex.A.16/Sale Deed, dated 30.04.1975 it was stated as follows:
tlg[wkpUf;Fk; eiltHp re;jpy; ngha; hpg;ngh; bra;Jf;bfhs;Sk; ghj;jpaKk; fpua filapy; bjd;g[wk; ,Uf;Fk; filapd; cs;ns tlg[wk; ,Uf;Fk; thrfhiy jh';fs; mfw;wptpl;L mt;tHpia Rth;itj;J K:otplntz;oaJ ,j;Jld; filapd; tlg[w nkw;F g[wRth;fSf;F gGJ Vw;gLk; fhyj;jpy; ic& ntQqnfhghy; brl;o tPl;od; tHpaha; te;J hpg;ngh; bra;J bfhs;Sk; ghj;jpaKz;L jtpu ic&filapd; tlg[uj;jpy; ,Uf;Fk; ntQqnfhghy; brl;of;F ghj;jpag;gl;l re;jpy; ntQqnfhghy; brl;oahh; fl;olk; fl;odhy; fpua filapd; tlg[w Rtw;wpy; Jisg;nghl;L bghUe;jp fl;of;bfhs;Sk; ghj;jpak; cz;L
17. Furthermore, the property has been assessed to tax and the house tax receipts were marked as Ex.A.6 to Ex.A.12 and the property tax receipt was marked as Ex.A.13. The property tax assessment notices were marked as Ex.A.23 to Ex.A.27. To prove those document P.W.3/Mohan, the Bill Collector was examined and he had deposed that the door no of the suit property is 135 and the tax was assessed in the name of Gowri and she was paying the property tax.
18. On the other hand, the appellants herein have filed three documents viz., Ex.B.1/Sale Deed, dated 05.03.1969 executed by Ramasamy Chettiar and his son Sreenivasan in favour of Dhanalakshmi Ammal from whom the first defendant has purchased the property under Ex.B.2/Sale Deed, dated 24.09.1986 and one Vasantha has purchased the property under Ex.B.3/Sale Deed, dated 24.09.1986. In all those transactions, the suit property was not mentioned. Furthermore, it is pertinent to note that Dhanalakshmi Ammal has filed RCOP.No.10 of 1985 and since the appellant had purchased the property i.e., Door No.136, during the pendency of RCOP, it was dismissed. But the suit property is Door No.135. Further, in Exs.C.1 and C.2, it was specifically stated there was a staircase in between the suit property bearing Door No.135 and the plaintiffs/respondents house. So, if really the property has been constructed by the appellant, what prompted him to put up staircase connecting the suit property to the plaintiffs/respondents property. The husband of the first respondent one Venugopal got the property in the year 1918 by way of Ex.A.1/Settlement Deed and the appellant/defendant has purchased Door No.136 under Ex.B.2 on 24.09.1986, during the pendency of RCOP filed by Dhanalakshmi/landlord. The subject matter of RCOP.No.10 of 1985 is not the property in Door No.135.
19. In such circumstances, both the Courts below has rightly held that the suit property belong to the respondent and the appellant herein entered the property as a tenant and later refused to pay the rent and subsequently, claimed title. Even though RCOP.No.3/1989 was filed, it was dismissed stating that the title has not been proved and since there is a title dispute, only the Civil Court alone has jurisdiction to decide the title to the suit property. On the basis of the said finding, the respondents/plaintiffs had filed the suit for declaration of title and recovery of possession. Thus, considering the same, both the Courts below had rightly held that the respondents are the owners of the suit property and they are entitled to recovery of possession.
20. Further, the title of the respondents/plaintiffs were decided not only based on the documents Exs.A.25 and A.27, but also based on various other documentary evidences. Thus, the Court below has rightly held that the respondents are the owner of the suit property and they are entitled to recovery of possession. The substantial question of law 2 is answered against the appellant.
21. In view of the answer given to the substantial question of law 1 and 2, I am of the considered view that the finding of both the Trial Courts is well-reasoned one and the same does not warrant interference by this Court. Consequently, the second appeal stands dismissed.
22. In fine,
(a) The Second Appeal is dismissed with costs.
(b) The judgment and decree passed by the Trial Court as well as the first appellate Court is hereby confirmed.
(c) The time granted for delivery is two months.
08.07.2015 To
1.The Subordinate Court, Dharmapuri.
2.The District Munsif Court, Dharmapuri.
3.The Record Keeper, V.R.Section, High Court, Chennai.
R. MALA, J.
pgp Pre-delivery Judgment made in S.A.No.711 of 2005 Dated : 08.07.2015