Madras High Court
T.M.K.Karuppusamy vs A.V.T.Ganesan ... First on 30 April, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.04.2015
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
S.A.(MD)No.679 of 2012
&
M.P.(MD)Nos. 1 and 2 of 2012
T.M.K.Karuppusamy ... Appellant / First
Respondent / First Defendant
Vs.
1.A.V.T.Ganesan ... First Respondent /
Appellant /Plaintiff
2.K.N.Chellakutty
3.Sudandiraprabha
4.Panchavarnam ... Respondents 2 to 4 /
Respondents 2 to 4 /
Defendants 2 to 4
5.Gnanasekaran ... Fifth respondent /
Fifth respondent /
Not a party
PRAYER
The above Second Appeal is filed under Section 100 C.P.C. against
the judgment and decree dated 15.12.2011 rendered in A.S.No.40 of 2007, on
the file of the Subordinate Judge, Virudhunagar, reversing the decree and the
judgment dated 20.03.2007 rendered in O.S.No.298 of 2004, on the file of the
District Munsif, Virudhunagar.
!For Appellant : Mr.S.Subbiah
^For Respondents : Mr.S.Radhakrishnan for R-1
:J U D G M E N T
The brief facts of the case are as follows:-
The first respondent herein / plaintiff has filed a suit in O.S.No.298 of 2004, on the file of District Munsif, Virudhunagar against the appellant herein and respondents 2 to 4 herein stating that the plaintiff has purchased the suit schedule mentioned property from one Saravanamuthu and others under a registered sale deed dated 04.03.1986. Out of the said property, a portion of the property had been alienated by the plaintiff to and in favour of one Kathiresan under a registered sale deed dated 06.01.1992. Further, the plaintiff also occupied a property which belongs to the Trust. Over the said Trust property, the plaintiff had constructed shops and enjoying the same. As such 'A' schedule mentioned property is consisting of his own property and Trust property. Over the said property, 34 shops were constructed by the plaintiff. Besides four houses were also constructed and a portion of a vacant land is available. The plaintiff has been remitting tax to the Virudhunagar Municipality for the said shops and houses.
2. The plaintiff, viz., A.V.T.Ganesan further submits that the first defendant viz., T.M.K.Karuppusamy had filed a suit in O.S.No.287 of 1991, on the file of District Munsif Court, Sathur against the plaintiff and the second defendant, viz., K.N.Chellakutty. Before filing the said suit, the first and second defendants, viz., T.M.K.Karuppusamy and K.N.Chellakutty had created forged documents. Hence, the plaintiff had filed a criminal case before the District Crime Branch, wherein, the criminal case in Crime No.18/92 has been registered against the first defendant and others. Thereafter, the suit in O.S.No.287 of 1991 filed by the first defendant, viz., T.M.K.Karuppusamy was dismissed after contest. Thereafter, the first defendant had filed appeal suit in A.S.No.60 of 1993 and the same was withdrawn by him. The defendants fraudulently created a sale deed pertaining to the 'B' schedule suit mentioned property. Actually, the first and second defendants have no rights over the suit schedule mentioned property. As such, the first and second defendants had created a forged sale deed which is not valid under law.
3. The plaintiff further stated that after knowing the fraud committed by the first and second defendants, the plaintiff had severed all connections with the defendants 1 and 2.The decree and judgment passed in O.S.No.287 of 1991, on the file of the District Munsif Court, Sattur is existing since against the decree and judgment, the appeal suit in A.S.No.60 of 1993 had been withdrawn. The plaintiff had obtained encumbrance certificate from the Sub Registrar Office, Virudhunagar, wherein, the forged document bearing No.1632 was registered dated 29.12.1996. The 'A' suit schedule mentioned property consists of 34 shops, 4 houses and a vacant portion under the use and occupation by the plaintiff. The Virudhunagar Municipality had imposed taxes and hence, the plaintiff had filed a suit in O.S.No.197 of 1994 against the Virudhunagar Municipality and challenged the levy of taxes. The same was decreed in favour of the plaintiff. Against the decree and judgment, the Virudhunagar Municipality had filed an appeal suit in A.S.No.63 of 1996 and the same was dismissed on merits.
4. The plaintiff further stated that the first defendant, viz., T.M.K.Karuppusamy had changed the tax receipt in his name on the file of Virudhunagar Municipality. The same was challenged by way of suit in O.S.No.64 of 1996 and a declaration was got that the tax receipt issued in the name of the first defendant is not valid. Against the decree passed in the declaration suit, no appeal has been filed by the first defendant. As per the decree and judgments passed in the three suits and as per the sale deeds, the plaintiff is remitting the mandatory taxes to the statutory authorities. As such, the plaintiff is enjoying the suit schedule mentioned properties without interference. The first defendant, viz., T.M.K.Karuppusamy has attempted to interfere with the suit schedule mentioned property since he lost his case before a Court of law. However, the first and second defendants had created a forged sale deed dated 18.03.1990 and this has to be cancelled. Further, the plaintiff had never executed general power of attorney in favour of the second defendant, viz., K.N.Chellakutty. The defendants 1 and 2 had impersonated and created a forged power of attorney which has been registered on the file of Vadhrap Sub Registrar Office. The plaintiff came to know about the said forged documents after filing the suit in O.S.No.287 of 1991. The forged documents had not been operated upon and the first and second defendants never occupied nor enjoyed the suit schedule mentioned property. As such, the forged documents created by the first and second defendants are to be cancelled.
5. Under the circumstances, the defendants and their men have attempted to occupy the 'B' schedule mentioned property on 15.04.2004 and at that point of time, the plaintiff and neighbours somehow managed to prevent them. However, the defendants and their men informed the plaintiff that they will come and occupy the property within 10 days. The defendants are taking law in their hands and they are having muscle power. As such, they can interfere with the suit property at any moment. Hence, a permanent injunction is required in the instant case. Besides, the defendants had created forged documents which is null and void. While the above suit in O.S.No.298 of 2004 is pending on the file of District Munsif Court, Virudhunagar, the third and fourth defendants viz., Sudandiraprabha and Panchavarnam have filed impleading petition in I.A.No.878 of 2004 and the same was allowed. Consequently, they have been impleaded as necessary parties as third and fourth defendants.
6. For filing the said suit, the original cause of action is dated 24.03.1986 and on that day, the sale deed had been registered in the name of the plaintiff and subsequently, a portion of the property had been alienated to and in favour of one Kathiresan dated 06.01.1992. Subsequently, the first defendant had filed suit in O.S.No.2811 and the same was dismissed. On 23.04.1992, the plaintiff had levelled a criminal case before the District Crime Branch. The same was registered on 24.03.2004. The Virudhunagar Municipality had issued demand notice to the plaintiff for arrears of tax and on 15.04.2004, the defendants had attempted to trespass into the suit schedule mentioned property. Hence, the suit has been filed within the jurisdiction of the District Munsif Court, Virudhunagar. The plaintiff had paid a sum of Rs.75.70 for permanent injunction pertaining to the 'A' shcedule menionted property and Rs.4,800.50 paid towards 'B' schedule mentioned property since the 'B' schedule mentioned property is valued at Rs.64,000/-. Therefore, the plaintiff prayed for grant of permanent injunction restraining the defendants from interfering with the 'A' schedule mentioned property and he prayed that the sale deed created by the first and second defendants in document bearing No.1632, registered on the file of Parasalai Sub Registrar Office dated 18.04.1990 and subsequently, the sale deed bearing No.1996 registered on the file of Virudhunagar Sub Registrar Office, Virudhunagar dated 29.12.1995 are null and void. Hence, the suit had been filed for the above said relief.
7. The first defendant viz., T.M.K.Karuppusamy had filed a written statement and resisted the suit. The first defendant stated that the plaintiff has to prove his case that he had purchased the property from one Saravanamuthu and his associates under the registered sale deed dated 04.03.1986. Likewise, the plaintiff has to prove that he had also alienated a portion of the property to one Kathiresan under a registered sale deed dated 06.01.1992. Further, the plaintiff has to establish his contention that he had constructed 34 shops and 4 houses over the 'A' schedule mentioned property and enjoying the same along with a vacant portion of the land. The first defendant admits that he had filed a suit in O.S.No.287 of 1991, on the file of District Munsif Court, Sattur, against the plaintiff and second defendant herein. Further, he denied that he and the second defendant had created forged documents pertaining to the property. The defendant admitted that the plaintiff had filed a criminal case before the District Crime Branch and the same had been registered in Crime No.18 of 1992. Further, this defendant had admitted that he had filed a suit in O.S.No.287 of 1991 and the same was dismissed, subsequently, an appeal had been filed and it was not pressed as withdrawn. The first defendant had also denied that he and the second defendant had created a forged sale deed and also refuted that the plaintiff and the defendant have relationship over the said property. The issue of whether or not the sale deed is a forged one had not been decided.
8. The first defendant had further submitted that the plaintiff has to prove that he had filed a suit in O.S.No.197 of 1994 against the Virudhunagar Municipality regarding the tax relating to 34 shops and 4 houses and also prove that the said suit had been decreed and that an appeal filed by the Virudhunagar Municipality had been dismissed. Therefore, the plaintiff has to prove that he had filed a declaration suit in O.S.No.64 of 1996 against the first defendant that the property tax stands in the name of the plaintiff. The first defendant had denied that he had made a wrong entry with the first item of the schedule mentioned property. The general power of attorney is not a forged one. The first defendant had further submitted that the schedule mentioned property belongs to him.
9. The third and fourth defendants have filed a written statement and resisted the suit. The defendants had further submitted that the sale deed dated 04.03.1986 alone is admitted as correct. The defendants had further submitted that the allegations made in the plaint that the sale deed dated 18.04.1990 between the defendants 1 and 2 is a forged one and that the plaintiff has no cordial relations with those defendants 1 and 2 are denied. In respect of the sale deed dated 18.04.1990 executed by the second defendant in favour of the first defendant, it is valid in law and has been acted upon. The plaintiff has no moral right to question the same. The further allegations that only after obtaining the encumbrance certificate the plaintiff had the knowledge about the registration of deeds are all incorrect. The defendants had further submitted that the plaint is in no way connected with these defendants and plaintiff is put to strict proof of the same. The defendants had further submitted that the allegations made in the plaint that since all the cases relating to the suit properties were decreed in favour of the plaintiff, it is necessitated to cancel the sale deed dated 18.04.1990 between the defendants 1 and 2 is denied. The allegations that the plaintiff is not a party to the documents and the plaintiff has never executed any power deed in favour of the second defendant are all denied as fraudulent and misleading and with an ulterior motive. In fact the second defendant had executed the sale deed dated 18.04.1990 in favour of the first defendant as the power agent of the plaintiff, since the plaintiff had executed a general power deed on 06.04.1990 in favour of the second defendant. The allegations made in the plaint that the defendants, on 15.04.2004, had tried to encroach upon the suit property and since the neighbours intervened the defendants had returned back saying that they would encroach upon the suit property within 10 days is denied. In fact the plaintiff is not at all in possession and enjoyment of the entire suit property and therefore is not at all entitled to the relief prayed for. The third and fourth defendants had further submitted that they have purchased specific portion of the suit property from the first defendant for valuable consideration by means of registered sale deed dated 20.11.1998. The defendants 3 and 4 had purchased their respective portion in the suit property through two separate sale deeds dated 20.11.1998 after having verified the title and possession of the first defendant in respect of the properties purchased by them. On the date of purchase itself, the defendants 3 and 4 were put into possession of their respective properties and are enjoying the properties till date.
10. The third and fourth defendants had further submitted that they are in exclusive peaceful possession and enjoyment of the respective properties purchased by them. The defendants 3 and 4 were also assessed to vacant land tax to their respective portions in their suit properties. Their title and exclusive possession is known to everybody including the plaintiff. The plaintiff has no right whatsoever in respect to the portions purchased by the defendants 3 and 4 and the plaintiff is not at all in possession of the same. The plaintiff is put to strict proof to identify and demarcate the various portions of the suit property by seeking an Advocate Commissioner's inspection. There is no cause of action for the suit and the alleged cause of action are all purely imaginary and concocted. The suit is hit by Limitation Act and therefore, the relief sought for by the plaintiff is barred by law of Limitations. The plaintiff is not at all entitled to the relief prayed for in the plaint. The Court fee paid by the plaintiff is incorrect and hence, the suit is liable to be dismissed in-limini. The description of the property shown in the plaint is absolutely incorrect and the plaintiff is put to proof of the same and the plaintiff who is not in possession and enjoyment is not at all entitled to any relief prayed for. The plaintiff and the defendants 1 and 2 are in collusion to swindle the properties of the defendants 3 and 4 and hence, the suit is liable to be dismissed.
11. The learned District Munsif, Virudhunagar, after recording the contents of the plaint and written statements filed by the defendants respectively, had framed three issues, viz., "(i) Whether the defendants made an attempt with the 'A' schedule mentioned property and disturbed the plaintiff? Whether the plaintiff is entitled to receive the relief for a permanent injunction as prayed for?
(ii) Whether the 'B' schedule mentioned property belongs to the plaintiff? Whether the plaintiff is entitled to receive a declaration?
(iii) What are the other reliefs?"
12. On the side of the plaintiff, the plaintiff was examined as P.W.1 and 14 documents were marked, viz., sale deed dated 24.03.1986 registered in the name of the plaintiff, sale deed dated 06.01.1992 executed by the plaintiff to in favour of one Kathiresan, judgment in O.S.No.287 of 1991, dated 22.06.1993, judgment in O.S.No.64 of 1995, dated 07.12.1995, Municipality notice dated 24.03.2000, encumbrance certificate, rough sketch, First Information Report in Crime No.18/1992, judgment in O.S.No.197 of 1994, dated 25.01.1995, judgment in A.S.No.63 of 1996, dated 31.10.1996 and encumbrance certificate dated 11.04.2004.
13. On the side of the defendant, two witnesses were examined viz., the first defendant and one Paramesvaram as D.W.1 and D.W.2 and 19 documents were marked, viz., sale deed dated 03.04.1990 registered in the name of the plaintiff, general power of attorney dated 06.04.1990 executed by the plaintiff in favour of second defendant, Municipality notice dated 17.02.1995, Proceedings of the District Registrar dated 21.11.1995, tax receipts, Notice dated 13.05.1997 issued by the Tahsildar, Virudhunagar, payment receipt dated 17.11.1995 issued by the Sub Registrar Office, Virudunagar, Proceedings dated 18.09.1995 of West Ramanathapuram District Registrar, promissory note dated 22.03.1986 for a sum of Rs.35,000/- executed by the plaintiff, promissory note dated 27.12.1985 for a sum of Rs.30,000/- executed by the plaintiff, sale agreement dated 18.01.1987 between the plaintiff and the first defendant, judgment in O.S.No.304 of 1990, dated 07.11.1990, summon issued in O.S.No.304 of 1990, judgment in C.C.No.198 of 2000, dated 12.10.2004, sale deed dated 20.11.1998 executed by the first defendant to and in favour of Sudandiraprabha, sale deed dated 20.11.1998 executed by the first defendant to and in favour of fourth Panchavarnam, land tax receipts showing payment made by Sudandiraprabha, land tax receipts showing payment made by Panchavarnam.
14. P.W.1 had adduced evidence that he had purchased the suit schedule mentioned property on 24.03.1986 under a registered sale deed. The same had been marked as Ex.B1. The same was admitted by the first and third defendants. As such, the property as per the sketch marked as A, B, C, D, E, F belongs to the plaintiff. P.W.1 further stated that 'A' schedule mentioned property consists of his own property which had been purchased under a registered sale deed dated 24.03.1986 and also Trust Property which he has occupied as a tenant. P.W.1 further stated that he is paying rent for the said land, whereupon P.W.2 had constructed 34 shops and also residential properties. The same was let out to third parties. The Trust property had been marked as F, E, D, G. P.W.1 had alienated a portion of the property to and in favour of one Kathiresan under a registered sale deed, out of his purchased land. This property is indicated as K, D, I, J. The said document has been marked as Ex.A2. P.W.1 further stated that the property pertaining to Ex.A2 and that pertaining to Ex.A8 are different and as such, the property covered under Ex.A2 is not a part of the suit schedule mentioned property.
15. P.W.1 further stated that he had lodged a complaint against the first defendant and his associates before the District Crime Branch, Virudhunagar and the same has been registered as Crime No.18 of 1992. Subsequently, the criminal case is pending on the file of Judicial Magistrate as C.C.No.198 of 2000. The said case has been disposed of and the copy of the order has been marked as Ex.A14, wherein, the first defendant and others have been acquitted since the plaintiff had not pressed the said calendar case. Further, the first defendant had filed a suit in O.S.No.287 of 1991 against the plaintiff which was dismissed, after contest. Against the dismissal of the said suit, the first defendant has filed an appeal suit in A.S.No.60 of 1993 and the same was dismissed and the copy of the judgment had been marked as Ex.A3. P.W.1 further stated that he had never executed a general powr of attorney to and in favour of the second defendant.
16. D.W.1 had adduced evidence that the plaintiff had purchased the schedule mentioned property from one Saravanamuthu Pillai and others on 04.03.1986. Further, he did not know the alienation of a portion of the property to and in favour of one Kathiresan. The plaintiff had executed a general power of attorney pertaining to his property to and in favour of one Chellakutti, the second defendant herein. On the strength of the power of attorney, the power holder, the second defendant had executed a sale deed bearing registration No.1632 of 1990, on the file of Parasalai Sub Registrar Office dated 18.04.1990. Subsequently, the sale deed had been released on 17.11.1995, after paying deficit of stamp duty.
17. D.W.1 further stated that he had remitted tax to the Virudhunagar Municipality for the subject matter of the property. He further stated that he had levelled a suit in O.S.No.304 of 1990, against the plaintiff for injunction. The same was granted on 11.04.1990. On the strength of the judgment and decree, D.W.1 had executed sale deeds to various persons on different dates. D.W.1 further stated that he and the second defendant had not created any forged documents as alleged by the plaintiff.
18. After recording the evidence of both parties, the trial Court had dismissed the said suit. Against the dismissal of the said suit in O.S.No.298 of 2004, the plaintiff has filed an appeal suit in A.S.No.40 of 2007, on the file of Sub Court, Virudhunagar. In the above said appeal, the plaintiff had filed an interlocutory application in I.A.No.45 of 2011 to implead one Gnanasekaran as fifth respondent in the said suit. The learned appellate Court Judge after hearing arguments of the highly competent counsels for their respective parties and on perusing the judgment of the trial Court, allowed the appeal.
19. Against the judgment and decree passed by the first appellate Court, the first defendant / appellant has filed the above second appeal.
20. The highly competent counsel appearing for the appellant submitted in the grounds of appeal that the question relating to Ex.B2 is, as to whether this document Ex.B2, had been executed by the first respondent or not, whereas, the first respondent himself had not even referred his signature found anywhere in the evidence over Ex.B2 and had not pointed out that the signature found in Ex.B2 was not that of his signature. In the absence of any evidence forthcoming from the side of the first respondent, when he examined himself as P.W.1 relating to the signature found in Ex.B1, the learned Subordinate Judge cannot proceed, as if that the signature found in Ex.B1 was denied by the first respondent. Though, the first respondent herein might have come out with a plea that he did not execute any power of attorney document in favour of the third respondent herein, such a plea is not sufficient, if not supported by any evidence, and the same had been over looked by the lower appellate Court. In the absence of any evidence relating to the genuineness or otherwise of the signature in the name of the first respondent appearing in Ex.B2, by identifying the signatures, in any form, the learned Subordinate Judge cannot take in that the first respondent had disputed the signature found in Ex.B2. The lower appellate Court has not at all applied the mandatory provisions contained under Order XVI Rule 27 of Code of Civil Procedure, as to whether such documents are allowed to be revised, as additional evidence in the above appeal, and the failure to apply the mandatory provisions contained thereto, has again vitiated the entire judgment, firstly, in the reception of the documents marked as Exs.B12 and B13. It was not explained as to how these documents B12 and B13 would be useful to determine the subject matter of the suit by the Court and in the absence of any explanation fourth coming from the side of the first respondent and the acceptance thereto by the Court, the learned Subordinate Judge had committed a further act of illegality, in allowing the application in I.A.No.45 of 2011, without any application of mind.
21. The highly competent counsel appearing for the appellant submitted in the grounds of appeal that the lower appellate Court has not assigned any reason whatsoever as to how Ex.B12 would be helpful to find out as to whether the signature found in Ex.B2 was that of the signature of the first respondent or not, and so, even the reason for admitting the document, as additional evidence at the stage of the appeal, has neither been assigned nor accepted and such a situation as created by the lower Appellate Court is not available under Order XVI Rule 27 of Code of Civil Procedure. Likewise, though the fifth respondent herein might have been impleaded at his own instance, still, he has not filed any written statement, in as much as, he was not party to the suit and so, without any pleading from him, it cannot be simply accepted that there was an agreement of sale pertaining to the portion of the schedule property, by the second respondent in his favour, moreso when, it was not explained as to how, this document Ex.B13 would advance the case of the second respondent. A perusal of the judgment of the lower appellate Court clearly reveals that it had not at all referred to these documents as relevant or helpful to arrive at the determination of the subject matter of the appeal, and so, when these documents exhibits B12 and B13 were not even considered and discussed, it could be easily said that Exs.B12 and B13 cannot at all be received as additional evidence, at the appellate stage. Further, Ex.B13 though irrelevant, still, the execution of it having been not admitted by the second respondent, it is illegal on the part of the learned Subordinate Judge to receive a copy of the agreement of sale, that too a xerox copy, which is totally inadmissible in evidence. The reasoning of the lower appellate Court that these two documents Exs.B12 and B13 are relevant for the purpose of this case and connected with the subject matter of the suit is nothing but a perverse one. Similarly, so far as the reliance upon Ex.A3 in the judgment in O.S.No.287 of 1991, on the file of DMC, Sattur is concerned, the lower appellate Court had failed to see that the said suit had been filed by the second respondent as against the respondents 1 and 3 herein, for a mere permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the properties, viz., the schedule 'B' properties, in the present suit and so, any decision rendered in Ex.A3 could not be taken as one as a binding judgment determining the rights of the parties and the same had not been considered by the learned Subordinate Judge.
22. The highly competent counsel appearing for the appellant submitted in the grounds of appeal that the lower appellate Court ought to have noticed that in so far as Ex.A3 as confirmed in Ex.A10 is concerned that the Court therein relied upon certain criminal complaints given by the first respondent herein against the second respondent and the third respondent herein, as if, that both of them conspired to create a false power of attorney by forging the signature of the first respondent and the pendency of the complaint and the investigation thereof was also a reason for the trial Court to suspect the genuineness of the transaction and also that the second respondent had not proved the possession of the suit properties and so, Ex.A3 cannot be pressed into service by the first respondent. Similarly, in so far as the judgment in O.S.No.64 of 1995, on the file of the District Munsif of Sattur, ivz., Ex.A4 is concerned, the second respondent was not a party to the suit and so, there cannot be any binding effect, though, the second respondent was examined as DW2 therein. Moreover, the said suit is only for the purpose of transferring the name of the first respondent from the name of the second respondent and what was decided thereon was that there was no basis for effecting a change in the Register and when there could not be any adjudication of title but what was granted under decree dated 07.12.1995 under Ex.A4 was only for the removal of the name of the second respondent and re transferring the register in the name of the first respondent and so, even this Ex.A4 cannot be relied upon to decide any title pertaining to the Schedules A and B properties in favour of the first respondent. The reasoning pertaining to the acceptability of Ex.A4 could equally apply to the other document Ex.A5 as well, in as much as, both the above suits under Exs.A3 and A4 would apply only with regard to the change of registry and method of taxation and not the title of the property, especially when, the law is very much settled that a Register standing in favour of a person would not clothe him with any title to the property. The conclusion reached by the learned Subordinate Judge that the first respondent has got title to the property by reason of Exs.A3, A4, A9 and A10 is nothing but based on perversive conclusions. The lower appellate Court had failed to see that the present suit is not one for declaration of title of the first respondent over the suit property and so, to render a finding that the first respondent has got right and interest over the suit property and that he had been in possession of the suit property is illegal without any power or jurisdiction. When there was no prayer by the first respondent for the declaration of his title over the suit properties, the finding that the first respondent was entitled to the suit property and that he was in possession of the suit property cannot be sustainable both in law as well as on facts. Even otherwise, the finding based upon the report Ex.C1 cannot be conclusive, in as much as, any finding given thereon can only be with reference to the evidence available already on record and since, the first respondent himself had not identified the signature found in Ex.B2 as not that of his signature, the reliance upon Ex.C1 is equally illegal.
23. The highly competent counsel appearing for the appellant submitted in the grounds of appeal that the the copy of Ex.C1 was not furnished to the second respondent and also his objection to the said Ex.C1 were not called for and so, when the first respondent had no occasion to consider or to object the report under Ex.C1, reliance upon such a document is again an act of illegality committed by the lower appellate Court. A mere dissimilarity in the alleged signatures between the two signatures taken for comparison, by an expert, cannot be said to be one leading to the conclusion that the signature found in Ex.B2 is not that of the first respondent herein. The lower appellate Court has not at all again assigned any reason whatsoever, as to how, it has applied its mind over the signatures found in Ex.B2, by comparing with the other signatures, and before reaching any such conclusion on the basis of Ex.B2, it is incumbent upon the Court to come to its own conclusion and also analyse the evidence from an expert to strengthen his conclusion, and the same has not been followed by the lower appellate Court. The crucial question relating to the reaching of a compromise between the second respondent and the first respondent, though discussed by the learned District Munsif and reached a conclusion, upon such discussion, very significantly, the learned Subordinate Judge had not at all discussed the same and has rather skipped it, without any discussion or a reason. The lower appellate Court ought to have also seen that the second respondent and the first respondent had reached a compromise and a settlement pertaining to the subject matter as could be evident from the decree and the judgment passed in A.S.No.63 of 1996, on the file of the District Judge of Virudhunagar District at Srivilliputtur and also subsequently admitted by the first respondent himself, when, he was examined as P.W.1 in the above C.C.No.198 of 2000, on the file of Judicial Magistrate, Virudhunagar and marked as Ex.B14. The learned Subordinate Judge should have considered the question relating to the reaching of the compromise as evident from the judgment and the decree dated 09.02.1995 made in A.S.No.337 of 1993, on the file of the District Judge, Srivilliputtur, for which, the second respondent is also filing a separate application, to receive the same, as additional evidence, in the above second appeal. It had been made clear that when the appeal preferred by the second respondent in A.S.No.63 of 1996, on the file of the District Judge of Virudhunagar at Srivilliputtur, was pending, there was a compromise entered into between the second respondent and the first respondent herein, at the intervention of the mediators and as agreed to by them, a document dated 18.01.1995 came to be executed between the second respondent and the first respondent herein in the presence of the mediators. Accordingly, a joint memo was filed in A.S.No.63 of 1996, signed by the second respondent and his counsel on which the endorsement made by the learned counsel appearing on behalf of the first respondent was that he had no objection, by making it on record about the settlement out side the Court and it was thus prayed that the appeal be dismissed as settled out of Court, and the appeal was also dismissed by the learned District Judge by his judgment dated 09.02.1995 in the terms of the joint memo.
24. The highly competent counsel appearing for the appellant submitted in the grounds of appeal that the joint memo dated 09.02.1995 was directed to be part of the decree and the joint memo reading as the parties had settled their dispute amicably outside the Court, the appeal might be dismissed without cost and the said joint memo was signed by the second respondent as well as his counsel and the counsel for the respondent endorsed with the comments, "taken notice. No objection" and also an order were passed on the memo as "By consent, memo recorded." The criminal complaint given by the first respondent against the second respondent though registered as crime No.18 of 1992, the final report was taken as C.C.No.198 of 2000, on the file of the Judicial Magistrate No.II, Virudhunagar and even, the first respondent, while being examined as P.W.1, turned hostile, in view of the compromise, and so, the learned Magistrate, feeling that, when the first respondent himself had turned hostile, no useful purpose would be served to examine other witnesses, and consequently, after the examination of the Investigating Officer as P.W.2, acquitted the second respondent, the third respondent herein and others by a judgment dated 12.10.2004. The said order of acquittal dated 12.10.2004 passed in C.C.No.198 of 2000 had become final, and neither the first respondent had challenged it by way of a revision nor the police preferred any appeal to this Court as against the order of acquittal dated 12.10.2004. The learned Subordinate Judge has failed to be understood by the second respondent as to why he had not discussed several material parts of the judgment rendered by the learned District Munsif relating to the conduct on the part of the first respondent, especially when, the first respondent has not come to the Court with clean hands and also suppressing several events. The lower appellate Court ought to have seen that when the person seeks equity, he must come to the Court with clean hands, whereas, the first respondent admittedly had not come to the Court with clean hands and the same had been over looked by it. The other material reason given by the trial Court that even in the year 2005, both the second respondent and the first respondent joined together and filed a suit against a third party, namely the predecessors in title of the first respondent in O.S.No.215 of 2005 on the file of the District Munsif of Virudhunagar has not been considered by the learned Subordinate Judge. The lower appellate Court had left out all the just legal reasoning given by the trial Court, in dismissing the suit filed by the first respondent herein, whereas, the lower appellate Court has not at all touched on any one of this reasoning given by the trial Court and the failure to do so is nothing but an act of illegality committed by it. The learned Subordinate Judge, when the first respondent was forced to admit regarding the compromise between the parties, pertaining to the subject matter, should have seen that the first respondent had not at all explained as to what is the nature of the compromise and the contents of the compromise and so, when, the first respondent had not come out, in any manner, explaining the nature or disclosing it either in the plaint or in the evidence, should have held that the first respondent is not entitled to make any claim that the signature found in Ex.B2 was not that of his. As a matter of fact, the first respondent had suppressed the existing of the compromise in between the parties in his plaint and so, when, the first respondent had suppressed the very material fact over the subject matter in issue, more particularly, with reference to the validity or otherwise of Ex.B2, he is not entitled to question Ex.B2, in any manner.
25. The highly competent counsel appearing for the appellant submitted in the grounds of appeal that the learned Subordinate Judge had failed to see that the first respondent had not even disclosed the existence of the compromise entered into between the parties in his plaint and so, when, the first respondent had not even disclosed the material allegation in his plaint, he has to be non-suited also on this ground of non-disclosure of the material facts in his plaint and also suppressing the same. The lower appellate Court ought to have held that in view of the compromise between the parties over the disputed Ex.B2 even in the year 1995 and so long as the first respondent had not challenged even that compromise but admitting the existence of such a compromise is estopped from claiming the legality and the binding nature of the Power of Attorney Ex.B2 upon him. The learned Subordinate Judge, on the same reason, should have held that the first respondent had admitted his signature or the admission relating to the genuineness of Ex.B2 or deemed to have admitted the execution or the genuineness of Ex.B2 and as such, Ex.B2 in any point of view, is binding upon him. The lower appellate Court had not at all applied its mind for all these relevant facts and legal positions and went on to decide the appeal on totally extraneous and irrelevant consideration that too, on perversive findings and also against the legal provisions and settled law. Above all, it is equally perverse to be held by the learned Subordinate Judge that the suit is not barred by limitation according to him, the provisions of Sections 12 and 17 of the Limitation Act alone would apply. The lower appellate Court might not have even gone through Section 12 of the Limitation Act, for exclusion of time, to compute the period of limitation, for any suit, appeal or application. There is nothing to be excluded as provided under sub- Sections (2) to (4) together with explanations appended to the said provision, and without understanding what is Section 12 of the Limitation Act, the learned Subordinate Judge went on to hold, as if, that Section 12 of the Limitation Act would apply. The lower appellate Court had failed in law to see that none of the provisions contained under Section 12 of the Limitation Act would apply to the facts of the case, as the first respondent had not brought out any exemption or exception to any law of limitation by pleading any exclusion of time as provided under other provisions as well as contained under Sections 13 to 16 of the Limitation Act. The learned Subordinate Judge should have also seen that once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it, as provided under Section 9 of the Limitation Act and so, when the time had begun to run on and from 23.04.1992, being the latest date of knowledge of the alleged fraud, a mere prosecution taken by the police on a final report would not stop the running of the time for filing a suit for declaration or cancellation. The lower appellate Court, should have also seen that a criminal proceedings or complaint would not exclude any running of the time for instituting the appropriate relief as, even if the criminal proceedings had ended in favour of the police, it could not give the relief to the first respondent. The learned Subordinate Judge should have also noticed that in C.C.No.198 of 2000, the first respondent is not a complainant, whereas, he only lodged a complaint with police, thus making the law to take its course, whereas, the complainant was only the police and whereas, the State alone is the prosecutor but not the first respondent. In any point of view, when the order of acquittal dated 12.10.2004 was passed by the learned Judicial Magistrate, Virudhunagar in C.C.No.198 of 2000, the running of the time would stop only on 12.10.2004 and if at all, the first respondent claims any exclusion, he can only plead for such plea from 23.04.1992 to 12.10.2004, but he cannot claim any exclusion, even otherwise, when he choose to institute the suit on 27.04.2004, even before when the running of the time had not stopped.
26. The highly competent counsel appearing for the appellant submitted in the grounds of appeal that the learned Subordinate Judge should have also seen that when the possession of the schedule B property was admitted by the first respondent not only in the earlier proceedings but also the present suit itself in his evidence, the suit for permanent injunction pertaining to schedule - B property could not be maintained as against the second respondent, in as much as, the first respondent as the plaintiff was not in possession of the suit property on his own showings. The lower appellate Court cannot allow or decree a suit for permanent injunction in favour of the plaintiff as against the defendant who is admittedly in possession of the suit property as and when, the first respondent had not prayed for a decree of possession of the portion in the occupation of the suit properties, the suit is barred under Section 34 of the Specific Relief Act. Even if Section 17 of the Limitation Act is considered fully and effectively, the said provision applies to a case of fraud of the defendant or respondent or his agent, as provided therein, the starting point of limitation, shall not begin to run until the plaintiff or the applicant had discovered the fraud or could with reasonable diligence, have discovered. Admittedly, the first respondent had come across the execution of Ex.B2, atleast as evident from Ex.A8, the First Information Report, viz., on 23.04.1992, when the crime as registered under Ex.A8, and from Ex.A8, it is very clear that the first respondent had knowledge of this alleged fraud on 23.04.1992 itself, and so, even under Section 17 of the Limitation Act, the suit is very much clearly barred by limitation, the suit having been filed on 27.04.2004. Article 56 of the Limitation Act has to be read along with Section 17 of the Limitation Act and if read together it will only make it clear that the limitation starts from the day when the issue or registration becomes known to the plaintiff, and so, when the alleged fraud comes to the knowledge of the plaintiff the latest on 23.04.1992, the period of limitation commences to run from 23.04.1992 and ends with 23.04.1995 and as such, the suit filed on 27.04.2004 is hopelessly barred by limitation. When the trial Court has taken much pain to decide the suit on the question of limitation, by discussing several aspects of the matter, the lower appellate Court had simply without assigning any reason held that the suit is not barred by limitation.
27. The highly competent counsel appearing for the appellant submitted in the grounds of appeal that the learned Subordinate Judge had failed to see that a suit for declaration that the documents were not binding upon him whereas, the proper frame of the suit is to cancel the documents and so, the suit for declaration without the relief of cancellation of the document is not maintainable. Even otherwise, in so far as the disputed signature is concerned, it is only in the Power of Attorney document Ex.B2 and so, the question of declaration or cancellation could only be with reference to the document itself but not any other document on the basis of this disputed document Ex.B2 whereas, the first respondent has not challenged the legality or otherwise of Ex.B2 and as such, the present suit for declaration relating to the sale deeds on the basis of Ex.B2 could not be sustained. The lower appellate Court should have dismissed the appeal preferred by the first respondent herein.
28. The highly competent counsel Mr.S.Radhakrishnan appearing for the first respondent/plaintiff submits that the plaintiff had purchased a property from one Saravamuthu Pillai under the registered sale deed dated 04.03.1986. The property has been described as A, B, C, D, E and F in the sketch. Out of the said property, a portion had been alienated to and in favour of one Kathiresan under the registered sale deed dated 06.01.1992. The said property has been described as K, D, I, J. The rest of the property described as F, E, D, G in the sketch belongs to the Trust. The property also is occupied by the plaintiff as a lawful tenant and he is paying land tax to the Trust. This property has been indicated as 'A' schedule mentioned property in the suit. The plaintiff had constructed 34 shops and 4 houses over the 'A' schedule mentioned property, which is consisting of Trust property and plaintiff's property. The plaintiff had obtained a sanctioned plan from Virudhunagar Municipality and constructed the shops and houses. The plaintiff is paying mandatory tax to the statutory authorities especially the Virudhunagar Municipality.
29. The highly competent counsel Mr.S.Radhakrishnan appearing for the first respondent/plaintiff further submits that the first and second defendants had jointly created a forged general power of attorney with mala- fide intention to usurp the property. Knowing the same, the plaintiff had levelled a complaint before the District Crime Branch at Virudhunagar and the same was registered as Crime No.18/1992. Subsequently, the said case had been withdrawn since the first and second defendants are not prepared to claim any civil rights over the plaintiff's property any further. The first defendant had filed a title suit in O.S.No.287 of 1991 and claimed ownership over the plaintiff's property and the same was dismissed. The highly competent counsel further submits that on the strength of forged general power of attorney, the second defendant had executed a sale deed to and in favour of the first defendant dated 18.04.1990. Hence, the plaintiff sought remedy to cancel the said forged document bearing No.1632, dated 18.04.1990, on the file of Sub Registrar, Parasalai. Subsequently, the same was re-registered as document No.1996, dated 29.12.1995. On the strength of this forged document, the first defendant had attempted to interfere with the plaintiff's property on 15.04.2004. Therefore, the permanent injunction is absolute necessary to the plaintiff in order to safeguard his civil rights over the schedule mentioned property. The same was granted by the first appellate Court, after well considering the evidence on both sides and on perusing the exhibits marked by them and as such, there is no lacuna or shortcomings or lapse or any infirmity in the decree and judgment passed in the appeal suit in A.S.No.40 of 2007, on the file of Sub Court, Virudhunagar, dated 15.12.2011. Hence, the highly competent counsel entreats the Court to dismiss the above appeal.
30. From the above discussions, this Court is of the view that:-
(i) The plaintiff had purchased a part of the suit schedule mentioned property under a registered sale deed dated 04.03.1986 from one Saravanamuthu and others. Out of the said property, a portion had been alienated to and in favour of one Kathiresan under a registered sale deed dated 06.01.1992. Besides, the plaintiff had occupied the Trust Property, wherein, he had constructed 34 shops and 4 residential houses. The said property is under the occupation and enjoyment of the plaintiff. The same is revealed through perusal of Exs.P6 and P11, viz., encumbrance certificates and as such, the plaintiff's possession confirms to be a lawful one.
Therefore, the plaintiff is entitled for permanent injunction for restraining / preventing the defendants / appellants in both appeals.
(ii) There is no detailed discussion regarding document bearing No.1632 of 1990, on the file of Parasalai Sub Registrar, dated 18.04.1990. Subsequently, on the strength of the sale deed No.1632 of 1990, the alienation had taken place between the first and second defendants. The document bearing No.1996, on the file of Sub Registrar, dated 29.12.1995 are not valid since the first and second defendants have not marked any documents pertaining to the properties that they are possessing i.e., valid title documents over the suit schedule mentioned property.
(iii) The plaintiff has remitted land tax to the Trust and also obtained a building plan and constructed 34 shops and 4 residential houses and the same was not objected by the Trust and as such, the plaintiff is a lawful tenant under the Trust. Therefore, the plaintiff's possession should not be disturbed.
(iv) The first defendant is claiming civil rights over the schedule mentioned property on the strength of documents bearing registration No.1632 of 1990, registered on the file of Parasalai Sub Registrar Office, dated 18.04.1990. On the strength of this deed, the first defendant had trespassed into the property on 15.04.2004 and attempted to forcefully occupy it. It clearly proves that the plaintiff is in physical possession. Therefore, the first defendant's remedy, if any, on the strength of the said documents lies only through a suit for declaration before the appropriate civil forum.
(v) The first defendant had not marked the general power of attorney and the second defendant, viz., Chellakutti had not been examined to prove that he was the power agent of the plaintiff, in order to determine the veracity of the general power. Subsequently, the sale deed had been executed as document No.1632 of 1990. In the instant case, the second defendant's evidence is absolutely necessary to prove the mode of sale consideration and whether the second defendant / power holder had submitted accounts to the plaintiff as per the condition of the general power deed. As such, the genunity of the document bearing No.1632 of 1990, dated 18.04.1990 has not been proved. As such, the first defendant cannot claim any civil rights / ownership over the said property, since the first defendant did not possess any valid title deeds. Besides, this Court is unable to understand as to how the first defendant tried to trespass into the suit property on 15.04.2004 i.e., after a lapse of 14 years.
(vi) The first defendant had obtained decree and judgment in O.S.No.304 of 1990, on the file of District Munsif Court, Sattur, dated 07.11.1990. On the strength of the said decree and judgment, he had also executed sale deeds to various persons. The same had neither been proved by way of marking of sale deeds nor had the names of the beneficiaries of the sale deeds had been mentioned.
31. On considering the facts and circumstances of the case and grounds raised by the highly competent counsel Mr.S.Subbiah for the appellant and on hearing the arguments of the highly competent counsel Mr.S.Radhakrishnan appearing for the first respondent and on perusing the typed set of papers and the views of this Court as expressed above as (i) to
(vi), this Court dismisses the above second appeal. Consequently, the judgment and decree passed in A.S.No.40 of 2007, on the file of the Subordinate Judge, Virudhunagar, dated 15.12.2011, reversing the judgment and decree passed in O.S.No.298 of 2004, on the file of the District Munsif, Virudhunagar, dated 20.03.2007 is confirmed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
To
1. The Subordinate Judge, Virudhunagar.
2. The District Munsif, Virudhunagar..