JUDGMENT
P. Jyothimani, J.
Page 343
1. The defendants in the suit are the appellants. The plaintiffs filed a suit for declaration that the suit property absolutely belonged to them and for an injunction against the defendants not to interfere with their possession. The first and second plaintiffs are the wife and husband respectively and plaintiffs 4 to 7 are the sons and daughters of the first and second plaintiffs.
2. The plaintiffs’ case was that they purchased the suit property on 17.11.1972 from one Mariappan and four others under a Sale Deed and ever since the date of the said purchase, they have been in possession and enjoyment of the same. According to the plaintiffs, the defendants have no right over the property. Since the defendants happened to be the relatives of the vendor of the plaintiffs, they started giving trouble as if they also have a right over the property, which resulted in the plaintiffs filing the suit for declaration and injunction. The second defendant filed a written statement stating that the property sold by the vendor to the plaintiffs was ancestral property and they are related to the defendants and they have a right over the property. According to the second defendant, there was no partition in the ancestral property and therefore they have rights. The trial court after trial has come to a conclusion that there was no subsistence in the contention of the plaintiffs and dismissed the suit. On the first appeal filed by the plaintiffs in A.S. No. 54 of 1991, the first appellate court has reversed the judgment and granted a decree of declaration and possession in favour of the plaintiffs. The unsuccessful defendants in the first appellate court have filed the present appeal.
3. The Substantial Questions of Law were framed at the time of admission as follows:-
1. Whether the lower appellate Court erred in law in reversing the judgment and decree of the trial Court, when the second defendant who has admittedly not signed in the sale deeds Exs.A1 and B1 as attesting witness?
Page 344
2. Whether the sale deeds dated 17.11.1972, Exs.A1 and B1 are binding upon the appellants?
4. Heard the learned counsel for the appellants as well as the respondents.
5. Learned counsel for the appellants/defendants would mainly contend that a perusal of Ex.A1 Sale Deed under which the plaintiffs have stated, who purchased the suit property on 17.11.1972, there were eight witnesses including the second defendant Chinnu as one of the witnesses. However, when the defendants got a registration copy of Ex.A1 from the Registrar, the registration copy of the same document dated 17.11.1972 marked as Ex.B1 would show that the number of attesting witnesses, as the sale deed only defendants, which does not contain the name of the second defendant. Therefore, according to the learned counsel for the appellants/defendants, there is a discrepancy in the document and therefore, the plaintiffs cannot be said to have a right over the property. Learned counsel would urge that the very intention of including Chinnu-second defendant’s signature in Ex.A1, which is not actually found to be in Ex.B2 is to be eschewed. The record and copy of the sale deed from the vendor under Ex.A1 is by unlawful means. Therefore, according to the learned counsel for the appellants/defendants, the subject matter of the property is an ancestral property, which is undivided in which the defendants are also having rights.
6. Per contra, learned counsel for the respondents would urge that on the face of Ex.A1, the document is valid. Inasmuch as no one including the defendants, who are the appellants herein have chosen to challenge the validity of Ex.A1, the presumption should be that Ex.A1 Sale Deed is valid. Learned counsel for the respondents would also submit that it is false to state that the defendants have no right over the property. Such right has not been proved by the defendants in the suit at any point of time.
7. At the outset, it is relevant to point out that it is not stated by the learned counsel for the appellants either during the course of the argument in the second appeal or by the defendants in the trial, that mere absence of two witnesses will vitiate the document. I am of the considered view that even assuming for the argument sake that Ex.A1 Sale Deed, which is original document contains the witnesses of eight persons and the registration copy of Ex.A1, which is marked as Ex.B1 contains only six witnesses, it is not known as to how the validity of the sale deed can be questioned on that basis, especially, when the vendor of the said document Ex.A1 has not chosen to challenge the same and even the defendants, who happened to challenge the validity of Ex.A1, have not come forward with any definite claim over the property. Even assuming that the defendants have got any right, the remedy was elsewhere either by challenging the validity of Ex.A1 or by a separate proceeding for partition. In the absence of such claim, I am totally in agreement with the findings arrived at by the first appellate Court. Therefore, the judgment and decree of the first appellate Court is confirmed and there is no question of law, much less, substantial question of law is involved in the present case. With the result, the second appeal fails and the same is dismissed. No costs.