BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/12/2010 CORAM THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD) NO.645 of 2010 M.Karunanithi .. Appellant/Plaintiff Vs. R.Mahalingam .. Respondent/Defendant Prayer Second appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 09.10.2009, passed by the learned Additional Subordinate Judge, Thanjavur in A.S.No.40 of 2008, confirming the judgment and decree dated 10.10.2006 passed by the learned District Munsif, Thanjavur in O.S.No.184 of 2002. !For Appellants ... Mr.M.P.Senthil ^ :JUDGMENT
The plaintiff, who lost his case in entirety before the trial Court, but
was partly successful in the lower appellate Court, has come forward with the
present Second Appeal in respect of the disallowed portion of his claim.
2. An extent of 1.18 acres comprised in R.S.No.148/1 in Pudukkudi,
Vadapathi Vattam, Thanjavur District within defined boundaries is shown to be
the suit property. The appellant/ plaintiff claiming to have become the owner of
the entire suit property and that the entire suit property was in his possession
and enjoyment in which the respondent/defendant was trying to interfere, filed
the Original Suit O.S.No.184 of 2002 on the file of the District Munsif,
Thanjavur for a bare injunction against the respondent.
3. According to the case of the appellant/ plaintiff, the suit property
originally belonged to one Rathinasamy and after him it devolved upon his legal
heirs Ramadoss and Selvaraj and thereafter in an oral partition the entire suit
property was allotted to Selvaraj. It is the further case of the appellant
/plaintiff that after the death of Selvaraj, his wife Jeyalakshmi, for herself
and on behalf of her minor son Selvamani, executed an unregistered sale deed
conveying the entire suit property in favour of one Palanisamy @ Palani on
07.02.2001, and the said Palanisamy @ Palani, in turn, executed a sale deed
dated 19.07.2001 in favour of the appellant/ plaintiff conveying the entire suit
property to him and that from the said date, the plaintiff was in possession and
enjoyment of the suit property and the respondent/defendant tried to interfere
with the same at the instigation of one Ramakrishnan.
4. The suit was resisted by the respondent/ defendant contending that it
was false to state that the entire suit property was allotted to Selvaraj in a
partition; that on the other hand the suit property was divided into two halves,
each one having an extent of 59 cents and the Northern half was allotted to
Ramadoss, whereas the Southern half was allotted to Jeyalakshmi W/o. Selvaraj;
that the respondent/defendant purchased the Northern half from the said Ramadoss
under a registered sale deed dated 20.03.2002, marked as Ex.B9 and that
therefore, the claim of perpetual injunction in respect of the suit property as
if the appellant/ plaintiff was in possession and enjoyment of the entire suit
property was unsustainable.
5. “(i) Whether the plaintiff is entitled for the permanent injunction as
prayed for? and
(ii) To what other reliefs, the plaintiff is entitled?”
were the two issues framed by the trial Court, based on which, the parties went
to trial. As many as six witnesses were examined and 15 documents were marked
on the side of the appellant/plaintiff, whereas 3 witnesses were examined and 13
documents were marked on the side of the respondent/defendant. The documents
produced by the revenue officials were marked as Exs.X1 to X4. The Report and
Plan submitted by the Advocate commissioner were marked as Exs.C1 and C2.
6. Upon considering the evidence in the light of the points urged in the
arguments advanced on either side, the learned District Munsif, Thanjavur held
that the appellant herein/plaintiff could not establish his title to the suit
property as the sale deeds relied on by him purporting to convey a property,
whose value was more than Rs.100/- were unregistered documents, whereas the
respondent/ defendant was able to prove his title to the Northern half of the
suit property by oral and documentary evidence including registered sale deeds.
Based on the above said finding, the learned trial Judge came to the conclusion
that the equitable relief of permanent injunction could not be granted in favour
of the appellant herein/plaintiff and hence, dismissed the suit in its entirety
by judgment and decree dated 10.10.2006.
7. The said decree of the trial Court, dismissing the suit, was challenged
before the lower appellate Court, namely the Court of Additional Subordinate
Judge, Thanjavur in A.S.No.40 of 2008. The learned Additional Subordinate
Judge, Thanjavur, after hearing both sides, came to the conclusion that the
contentions of the appellant/plaintiff that he derived title to the entire suit
property under the document marked as Ex.A.2 could not be countenanced since not
only the said document but also the parent deed, namely the sale deed allegedly
executed by Jeyalakshmi in favour of Palanisamy @ Palani marked as Ex.A.1 were
not admissible for want of registration. However, based on other documents and
oral evidence adduced on both sides, the lower appellate Court came to the
conclusion that the appellant/plaintiff was in possession of the Southern half
of the suit property and so far as the Northern half of the suit property was
concerned, the appellant/plaintiff did prove neither title nor possession. Based
on the said finding, the lower appellate Court has chosen to modify the decree
passed by the trial Court by allowing the suit in part and granting a decree in
favour of the appellant herein/plaintiff for permanent injunction in respect of
the Southern half of the suit property having an extent of 59 cents alone and
dismissed the suit in respect of the other half, namely Northern half of the
suit property.
8. Questioning the correctness and legality of the said judgment in so far
as the dismissal of the suit regarding the Northern half of the property is
concerned, the present second appeal has been filed by the appellant/plaintiff.
9. The submissions made by Mr.M.P.Senthil, learned counsel for the
appellant/plaintiff were heard. The Memorandum of grounds of Second Appeal and
the documents produced along with the same including copies of the judgments of
the Courts below were also perused.
10. After such hearing and upon such perusal, this Court is of the
considered view that the appellant /plaintiff has not shown that any question of
law has arisen to be resolved in the second Appeal or that any question of law
has been erroneously decided by the lower appellate Court.
11. The appellant/plaintiff claims title and possession based on two
unregistered documents nomenclatured as sale deeds. They are Exs.A1 and A2.
They came into existence within a period of 5. months gap between them. It is
also pertinent to note that within a period of 9 months from the date of alleged
purchase made by the appellant/plaintiff, he had chosen to approach the Court
for the relief of permanent injunction against the respondent/ defendant. Both
the Courts below have arrived at a correct conclusion that Exs.A1 and A2 could
not be admitted as evidence to establish any right claimed to have been derived
or conveyed under the said documents. Though the appellant/plaintiff has chosen
to produce patta relating to the suit survey number as Ex.A.4, that is not a
separate patta and it is a joint patta issued in the name of as many as 66
persons. The same shall not be enough to show that the appellant/plaintiff is in
exclusive possession of the entire suit property extending to 1 acre 18 cents.
12. Admittedly, the suit property originally belonged to Rathinasamy and
after him it came to be devolved on his sons Ramadoss and Selvaraj. According
to the plaintiff, the entire suit property was allotted in a partition between
the two to the said Selvaraj and from the legal heirs of Selvaraj, Palanisamy @
Palani purchased the suit property and the plaintiff, in turn, purchased it from
the said Palanisamy @ Palani. No document has been produced to show that the
entire extent of the suit property was exclusively enjoyed either by Selvaraj or
his legal heirs or Palanisamy @ Palani, the vendor of the plaintiff. There is
also no clear evidence to show when did such partition take place.
13. The entire case of the plaintiff rests on the oral evidence of the
witnesses examined on the side of the plaintiff. The first witness is the
plaintiff himself. The second witness is his alleged vendor under Ex.A.1 and the
other four witnesses are attestators of those two documents. Not even a scrap of
paper could be produced by the appellant/ plaintiff to show that either himself
or his vendor Palanisamy @ Palani or Jeyalakshmi or her husband Selvaraj was in
possession and enjoyment of the entire extent of the suit property. Since the
sale deeds are inadmissible as evidence in proof of any derivation of title in
respect of the immovable property, there is no chance of applying the principle
‘possession follows title’ in favour of the appellant/plaintiff in this case.
14. On the other hand, the respondent/ defendant, besides deposing as
D.W.1, has also examined his vendor Ramadoss as D.W.2. He has also produced
Ex.B.9 registered sale deed, a copy of patta pass book and other documents. One
another witness was also examined as D.W.3 in order to prove the case of the
defendant that the suit property was divided equally between Ramadoss on the one
hand and his predeceased brother’s wife and her minor son on the other hand and
that the Northern half of the suit property was allotted to the said Ramadoss.
15. The said Ramadoss himself has deposed as D.W.2. It is true that D.W.2
could not give the correct name of the purchaser under Ex.B.9. He would refer to
the purchaser under Ex.B.9 as Chelliah. It seems the appellant/plaintiff made
an attempt to gain advantage by pointing out the above said testimony of D.W.2.
But the said witness himself, at a later part of his deposition, has given a
clarification by stating that he sold the property to the defendant who was
known by him as Chelliah; that he was not aware as to whether the defendant also
had the name “Mahalingam” and that it was the defendant at whose request he came
to the Court to depose. A snap answer alone is sought to be projected to show
that the said Ramadoss would not have spoken the truth. When the testimony of
D.W.2 is considered in totality, it will show that his testimony was quite
natural and there was no material contradiction in it. His evidence will go to
show that he executed the sale deed Ex.B.9 in favour of the
respondent/defendant, who is known by him (D.W.2) as Chelliah.
16. It is not in dispute that D.W.2 is the Ramadoss referred to by the
plaintiff as one of the co-owners in the plaint itself. The admitted co-owner
has chosen to appear on behalf of the respondent/defendant to depose that there
was a partition in which the Northern half of the suit property was allotted to
him and the same was conveyed to the respondent/defendant by him. On the other
hand, the appellant/plaintiff, who claims that the entire property was allotted
to Selvaraj in a partition that took place between Ramadoss and Selvaraj, has
not chosen to examine any one of the admitted co-owners or any one of the
parties to the alleged partition. Even the said Jeyalakshmi w/o Selvaraj was not
examined to show that in the partition the entire suit property was allotted to
her husband Selvaraj and he was in possession and enjoyment of the entire suit
property.
17. On a proper re-appreciation of evidence, the lower appellate Court,
being the last appellate Court on facts, arrived at the correct conclusion that
the plaintiff failed to prove his case of allotment of the entire suit property
to Selvaraj in an alleged partition that took place between Selvaraj and
Ramadoss and on the other hand the respondent/defendant was able to prove that
the partition took place only after the death of Selvaraj, in which the Northern
half of the suit property was allotted to D.W.2 Ramadoss, whereas the Southern
half was allotted to Jeyalakshmi W/o. Selvaraj and their minor son and that
neither Selvaraj nor his legal heirs nor the plaintiff was ever in possession of
the Northern half of the suit property at any point of time. The said finding
rendered by the lower appellate Court is a finding on fact on proper re-
appreciation of evidence, which cannot be termed either defective or infirm,
much less perverse.
18. The success or failure of the claim of the appellant/plaintiff for the
relief of injunction in respect of Northern half of the suit property very much
depends upon the finding rendered on the above said fact. As the finding went
against the plaintiff, there is nothing wrong in non-suiting the
appellant/plaintiff for the relief sought for in so far as Northern half of the
suit property is concerned. Even assuming for argument sake that the exclusive
possession of the Northern half by the respondent/defendant is not proved, since
it has been held that the plaintiff has not proved valid title to the said
portion and on the other hand respondent/defendant has derived valid title under
Ex.B.9, the principle ‘possession follows title’ should be applied in favour of
the respondent/defendant and on that ground also the appellant/plaintiff is
liable to be non-suited for the relief in respect of the Northern half of the
suit property.
19. For all the reasons stated above, this Court finds no scope for
interference with the judgment of the lower appellate Court and that the Second
Appeal deserves dismissal at the stage of admission itself.
20. In the result, the Second Appeal is dismissed. Consequently, connected
M.P.(MD) No.1 of 2010 is dismissed. However, there shall be no order as to costs
as the Second Appeal is dismissed at the admission stage itself.
sj
To
1. The Additional Subordinate Judge,
Thanjavur.
2. The District Munsif,
Thanjavur.