Madras High Court
Arul Prakasam Joseph vs Eliyas on 25 March, 2013
Author: G. Rajasuria
Bench: G. Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.03.2013 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.Nos.34 and 35 of 2009 Arul Prakasam Joseph .. Appellant in both appeals vs. Eliyas .. Respondent in A.S.34 of 2009 1. Eliyas 2. Pushparaj .. Respondents in A.S.35 of 2009 These Second Appeals are focussed as against the common judgment and decrees dated 28.02.2007 in A.S.Nos.16 and 17 of 2006 on the file of the Subordinate Judge, Chidambaram reversing the common judgment and decrees passed in O.S.Nos.555 of 2000 and 79 of 2001 dated 30.01.2004 on the file of the learned District Munsif cum Judicial Magistrate at Kattumannar Koil, dated 30.01.2004. For appellant : Mr.K.Thilageswaran For respondents : Mr.A.Muthukumar for Mr.D.Gubendragunabalan JUDGMENT
These Second appeals are focussed animadverting upon the common judgment and decrees dated 28.02.2007 in A.S.Nos.16 and 17 of 2006 on the file of the Subordinate Judge, Chidambaram reversing the common judgment and decrees passed in O.S.Nos.555 of 2000 and 79 of 2001 dated 30.01.2004 on the file of the learned District Munsif cum Judicial Magistrate at Kattumannar Koil, dated 30.01.2004.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the germane facts absolutely necessary for the disposal of these Second Appeals would run thus:
(a) O.S.No.555 of 2000 was filed by Eliyas as against Arul Prakasam Joseph, for permanent injunction so as to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit property on the strength that Eliyas happened to be the possessor of the suit property as a tenant, vide Ex.B1, the lease deed, dated 31.08.1988, executed in his favour by Mariasundaram, wife of Arokiasamy.
(b) According to the plaintiff, he had been in possession and enjoyment of the suit property and paying the agreed lease amount to Mariasundaram during her life time. While so, the defendant, after the death of Mariasundaram, holus bolus without having any right simply tried to interfere with his possession and enjoyment of the suit property, which necessitated the plaintiff to file suit.
(c) Per contra, Arul Prakasam Joseph/the defendant, filed the written statement oppugning and impugning the averments/allegations in the plaint, the gist and kernel of it would run thus:
As per Ex.B1, Eliyas had only the right to pluck the cashew fruits from the property described in the schedule of the plaint and there was no transfer of interest in the immovable property in favour of the plaintiff as per Ex.B1. The defendant's mother happened to be the absolute owner of the suit property after the death of Mariasundaram, who had only the right to enjoy the usufruct and not to possess the land.
As such, he prayed for the dismissal of the suit.
(d) O.S.No.79 of 2001 was filed by Arul Prakasam Joseph, so to say the defendant in the aforesaid suit O.S.No.555 of 2000, as against Eliyas, the plaintiff in O.S.No.555 of 2000 and Eliyas's son Pushparaj, seeking the relief of declaration that the plaintiff happened to be the absolute owner of the suit property and for injunction so as to restrain the defendants from interfering with his peaceful possession and enjoyment of the suit property.
(e) Precisely and succinctly, the case of the plaintiff as found set out in the plaint would run thus:
The admitted original owner of the suit property was Arokiasamy. During his life time he executed the settlement deed to the effect that his wife Mariasundaram should enjoy only the usufruct of the land and after her death, the property should absolutely vest with Felomina, the mother of Arul Prakasam Joseph. The said Mariasundaram died and Felomina pre deceased Mariasundaram. After their deaths, Arul Prakasam Joseph being the only child of deceased Felomina, became the absolute owner of the suit property.; while so, the defendants are having no right to interfere with the suit property.
(f) Per contra, the defendants resisted the suit virtually by putting forth and setting forth the averments as found set out in the plaint in O.S.No.555 of 2000.
(g) The trial Court framed the relevant issues.
(h) Up went the joint trial, during which Arul Prakasam Joseph was examined as P.W.1 and on his side along with him, P.W.2/Susai also was examined and Exs.A1 to A26 were marked; and on the side of the defendants, Eliyas examined himself as D.W.1 and Exs.B1 to B7 were marked.
4. Ultimately the trial Court decreed the suit O.S.No.79 of 2001 and dismissed the suit O.S.No.555 of 2000, as against which A.S.No.16 of 2006 was filed by Eliyas and A.S.No.17 of 2006 was filed by Eliyas and his son Pushparaj; whereupon the appellate Court reversed the judgment and decree of the trial court and decreed the suit in O.S.No.555 of 2000 and dismissed the suit in O.S.No.79 of 2001.
5. Challenging and impugning the common judgment and decrees of the first appellate Court, the said Arul Prakasam Joseph preferred these two Second Appeals almost on identical grounds, suggesting various substantial questions of law.
6. Heard both.
7. The learned counsel for Arul Prakasam Joseph would pyramid his argument, which could tersely and briefly be set out thus:
(a) Indubitably and indisputably, the suit property which is a cashew thope originally belonged to Arokiasamy. His wife was Mariasundaram. The couple had no issues. Hence Arokiasamy executed Ex.A1, the settlement deed settling for life the usufructuary right over the suit property in favour of his wife Mariasundaram and the absolute interest in favour of Felomina, the mother of Arul Prakasam Joseph. Whileso, the said Mariasundaram executed Ex.A1, the deed authorising Eliyas to harvest casuarina fruits in the suit property and pay a fixed amount of Rs.500/- (Rupees five hundred only) per annum, for a period of five years. After the expiry of five years he should cease to harvest the cashew crops.
(b) Whatever be the situation, after the death of Mariasundaram, the lease deed executed by her ceased to have effect and in such a case, the said Eliyas had no locus standi to claim as though he has been in possession and enjoyment of the suit property. In fact, Eliyas was not in possession and enjoyment of the suit property, because he was authorised for five years to reap only the cashew crops and pay a fixed sum of Rs.500/- per annum. As such, viewing the matter from any angle, Eliyas was not justified in filing the suit for injunction in O.S.No.555 of 2000 and no injunction could be granted in favour of him as it was given by the first appellate Court.
(c) As per the settlement deed, after the death of Mariasundaram, wife of Arokiasamy, Arul Prakasam Joseph being the sole legal heir of Felomina, became the absolute owner of the suit property and he has been in possession and enjoyment of it. However, Eliyas and his son Pushparaj are trying to interfere with his peaceful possession. In fact, Eliyas is none, but the son-in-law of Felomina's sister, namely Masgiridam. Pushparaj is the son of Elias. The trial Court appropriately and appositely, correctly and legally placing reliance on the deposition of D.W.1, Eliyas himself held that the suit property was only a cashew thope and there was no question of cultivating the cashew thope as a lessee there. Mariasundaram only permitted him to harvest the cashew crops there and give her per annum Rs.500/- as lease rent, which cannot be taken as one involving transfer of interest in the immovable property concerned, from Mariasundaram to Elias.
Accordingly, he would pray for setting aside the common judgment and decrees of the first appellate Court and for restoring the common judgment and decrees of the trial Court.
8. Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of Arul Prakasam Joseph, the learned counsel for Eliyas and Pushparaj, would advance his arguments, which could tersely and briefly be set out thus:
(a) A mere running of the eye over the deposition of D.W.1 Eliyas would reveal that absolutely there was no jot or pint of admission to the effect that Eliyas was authorised by Mariasundaram to harvest only the cashew crops and pay her a license fee of Rs.500/- annually.
(b) A plain reading of the recitals in Ex.B1, would exemplify and demonstrate, portray and convey that it is a registered pucca lease deed involving transfer of interest in the immovable property concerned from the lessor in favour of the lessee.
(c) The first appellate Court appositely and correctly, reversed the finding of the trial Court and decreed the suit O.S.No.555 of 2000 in favour of Eliyas and dismissed the suit O.S.No.79 of 2001, filed by Arul Prakasam Joseph, warranting no interference in the Second Appeal.
9. At this juncture, I am of the considered view, that the following substantial questions of law have to be framed and accordingly, they were framed with the knowledge of both sides and they also advanced their arguments.
(1) Whether the trial Court was justified in placing reliance on the evidence of D.W.1, for holding that as per Ex.B1, what was agreed upon was only to permit Eliyas to harvest the cashew crops and pay Mariasundaram an annual sum of Rs.500/- without any transfer of interest in the suit property?
(2) Whether the first appellate Court was justified in holding that Ex.A1, the settlement deed was not proved as per Sections 68 and 69 of the Indian Evidence Act, even though neither Eliyas nor Pushparaj happened to be the heir apparent of Arokiasamy?
(3) Whether there is any perversity or illegality in the judgment and decree of the first appellate Court?
10. A plain reading of the deposition of D.W.1/Eliyas would connote and denote, exemplify and demonstrate that there is absolutely no miniscule or molecular extent of admission on his part that he agreed to pluck or harvest only the cashew fruits and pay every year a sum of Rs.500/- to Mariasundaram.
11. The learned counsel for Arul Prakasam Joseph would strain every nerve in reading out the entire deposition of P.W.1 and interpreting the same by pointing out that the sum and substance, the gist and kernel, the pith and marrow, the warp and woof of the deposition of P.W.1 was only to the effect that what was agreed upon between Mariasundaram and Eliyas was only that the latter should harvest only the cashew crops and pay her a license fee of Rs.500/- per annum and nothing more. I cannot agree with it because the following excerpt from the deposition of P.W.1, would clearly indicate that he did not in any way convey any idea as canvassed by the learned counsel for Arul Prakasam Joseph.
",g;nghJ Ke;jphp nghlg;gl;Ls;sJ/ Muk;gj;jpy; fliy nghlg;gl;Ls;sJ/@
13. As such, the first appellate Court correctly on that aspect, reversed the judgment of the trial Court.
14. One should not lose sight of the fact that Ex.B1 is a registered lease deed and I would like to extract here the relevant portion of it:
VERNACULAR (TAMIL) PORTION DELETED
15. My mind is redolent and reminiscent of Sections 91 and 92 of the Indian Evidence Act, which are extracted hereunder for ready reference:
Section 91 and 92 of the Indian Evidence Act:
91.Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.--When the terms of a contract,or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2.--Wills admitted to probate in India may be proved by the probate.
Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.
Explanation 2.--Where there are more originals than one, one original only need be proved.
Explanation 3.--The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
"92. Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.
Proviso (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document.
Proviso (3) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4) The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6) Any fact may be proved which shows in what manner the language of a document is related to existing facts."
16. The decisions emerged thereunder would run thus:
(i) 1993-2-L.W.205 NANJAMMAL (DIED) AND ANOTHER V. PALANIAMMAL, certain excerpts from it would run thus:
"5. It was one of the contentions urged in the Court below that the plaintiff had not even obtained encumbrance certificate before the execution of Exhibit A1 and she had not taken the title deed from the defendant. The Court below has pointed out the recital in Exhibit A1 under which the defendant had undertaken to obtain an encumbrance certificate and give it to the plaintiff. The fact that the plaintiff had not taken the title deed in advance does not in any way discredit the truth of the agreement in Exhibit A1. In fact, the evidence of the defendant is that what was written was really an agreement though it was only for the purpose of securing the loan. She (defendant) has admitted that the plaintiff wanted her to execute an agreement for sale by way of security for the loan and she did execute such an agreement. When that is the fact, it is not open to the defendant to raise a plea that the terms of the agreement should be ignored as the real purpose was to secure the loan transaction. It is conceded by learned counsel for the appellants that the defendant is barred from raising such a plea by S.92 of the Indian Evidence Act.
6. Hence the only question to be considered is whether the relief of specific performance should not be granted to the plaintiff. The normal rule is that once the truth of the agreement is made out the Court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the agreement for sale. In the present case no such circumstances has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the defendant and relief of specific performance should be denied. The defendant has stated in the evidence that the property was worth much more than Rs.1,01,000/- at the time of the agreement. But there is absolutely no evidence in support of the same. No document has been produced to prove the value of the lands in the locality and no witness has been examined to speak to the same. In such circumstances we cannot accept the case of the defendant that the property is more valuable than the consideration mentioned in Exhibit A1."
(ii) (1982) 1 SCC 4, at page 10 -Gangabai v. Chhabubai, certain excerpts from it would run thus:
"11. The next contention on behalf of the appellant is that sub-section (1) of Section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the first proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties (Tyagaraja Mudaliyar v. Vedathanni919). The trial court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.
Accordingly, as against the recitals in the registered document, the parties cannot try to canvass any new case.
17. Here there is nothing to indicate as to what was leased out was only the right to pluck or harvest the cashew crops. The recitals in Ex.B8 would also demonstrate and display that after the expiry of five years, possession should be handed over by Eliyas in favour of the lessor, namely Mariasundaram.
18. Over and above that, the learned counsel for Eliyas and Pushparaj would invite the attention of this Court to the aforesaid excerpts from the deposition of P.W.1.
19. Undoubtedly, the said version would also establish and exemplify that there was transfer of possession of the immovable property by Mariasundaram in favour of Eliyas. As such, only in accordance with law alone Eliyas could be dispossessed of the suit property.
20. The learned counsel for Arul Prakasam Joseph would advance his argument to the effect that as per Ex.A1 itself, Mariasundaram had no right to encumber the suit property beyond her life time. It goes without saying that any life estate holder of a property can encumber it in such a manner so as to encumber it till their life time only and beyond that if any encumbrance is created, it will have no effect.
21. Over and above that, the learned counsel for Arul Prakasam Joseph would also submit that even as per the settlement deed, Ex.A1 Mariasundaram was not given with physical possession of the suit property and wherefore, she was given only with the right of harvesting the cashew crops, so to say, she had only the usufructuary right and not possessory right over the suit property.
22. Be that as it may, for the purpose of deciding this case, that point is not required, because undoubtedly the registered document Ex.B1 emerged during the life time of Mariasundaram. In such a case, Arul Prakasam Joseph who claims to be the vested reminder cannot dispossess the said Elias, otherwise than in accordance with law. But one fact is clear that for the purpose of deciding the injunction suit, it has to be seen as to whether as on the date of filing of the suit the person claiming to be in possession was in established possession or not. Once it is found so, then he would be entitled to injunction.
23. At this juncture, my mind is redolent and reminiscent of the following decision of the Hon'ble Apex Court:
2008(6) CTC 237 [Anathula Sudhakar v. P.Buchi Reddy (Dead) by Lrs. and others], an excerpt from it would run thus:
"12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere Suit for injunction, and in such a Suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the Plaint and convert the Suit into one for declaration. Alternatively, he may withdraw the Suit for bare injunction, with permission of the Court to file a comprehensive Suit for declaration and injunction. He may file the Suit for declaration with consequential relief, even after the Suit for injunction is dismissed, where the Suit raised only the issue of possession and not any issue of title."
24. A mere poring over and perusal of the said precedent would exemplify and demonstrate that a person in established possession whether he is having right to be in possession or not, has to be protected till he is dispossessed as per law.
25. As such, the question as to whether Eliyas authorisedly or unauthorisedly under Mariasundaram entered into the possession is not germane for deciding this injunction suit filed by Eliyas.
26. Relating to the finding of the first appellate Court that Ex.A1 was not proved in accordance with Sections 68 and 69 of the Indian Evidence Act, I would like to highlight that the first appellate Court totally misunderstood the scope of the aforesaid sections. Neither Elias nor Pushparaj happened to be heir apparent of Arokiasamy. In such a case, they are having no right to challenge the genuineness of Ex.A1.
27. The decision of the Hon'ble Apex Court could fruitfully be referred to at this juncture:
(i) (2008)4 SCC 300 [Krishna Kumar Birla v. Rajendra Singh Lodha and others]
(ii) The decision of this Court reported in 2001(1) CTC 708 [Valliammal v. S.Arumugha Gounder and another]
28. A bare poring over and perusal of the aforesaid precedents, would reveal that persons other than heir apparent, cannot challenge the genuineness of a Will or a settlement and they cannot call upon the proprietor of the Will or the settlement to strictly prove it in accordance with Section 68 or 69 of the Indian Evidence Act. As such, the finding of the appellate Court is totally erroneous. The aforesaid precedent relating to will is squarely applicable to settlement deed also.
29. The trial Court taking into account the evidence of P.Ws.1 and 2 and other attendant circumstances held that Ex.A1 was proved and that one should not lose sight of the fact that judgment pronounced in matters of this nature are judgment in personam and not judgment in rem. Here the judgment is pronounced as against Eliyas and Pushparaj, who are not the heir apparent of Arokiasamy. In such a case, such the finding by the trial Court warranted no interference at the hands of the first appellate Court and as such, the finding of the trial Court should be restored.
30. Not to put too fine a point on it, I am of the considered view that O.S.No.555 of 2000 decreed by the first appellate Court reversing the judgment has to be confirmed. However, the judgment and decree of the first appellate Court in reversing the finding of the trial Court in O.S.No.79 of 2001 relating to declaratory relief has to be set aside and such declaratory relief granted by trial Court has to be upheld.
31. Regarding non granting of injunction in favour of Arul Prakasam Joseph in O.S.No.79 of 2001 shall hold gold. In order to disambiguate any ambiguity if any, I shall make it clear that it is open for Arul Prakasam Joseph to take appropriate steps to recover possession from the defendants in O.S.No.79 of 2001 in the way known to law.
32. On balance,
(i) The first substantial question of law is answered to the effect that the trial Court was not justified in placing reliance on the evidence of D.W.1, for holding that as per Ex.B1, what was agreed upon was only to permit Eliyas to harvest the cashew crops and pay Mariasundaram an annual sum of Rs.500/- without any transfer of interest in the suit property.
(ii) The second and third substantial questions of law are answered to the effect that the first appellate Court was not justified in holding that Ex.A1, the settlement deed was not proved as per Sections 68 and 69 of the Indian Evidence Act, even though neither Eliyas nor Pushparaj happened to be the heir apparent of Arokiasamy.
Accordingly, these two Second Appeals are disposed of. However, there shall be no order as to costs.
To
1. The Subordinate Judge, Chidambaram.
2. The District Munsif cum Judicial Magistrate at Kattumannar Koil