BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.986 of 2000 K.Sebasthi ... Appellant/Appellant/Plaintiff Vs 1.Palaniammal alias Palaniselvi 2.Arul Selvarani ... Respondents/Respondents/Defendants Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 17.02.1999 passed in A.S.No.90 of 1998 by the learned Subordinate Judge, Sivagangai, in confirming the judgment and decree dated 26.06.1998 passed in O.S.No.272 of 1997 by the learned Principal District Munsif, Sivagangai. !For Appellant ... Mr.A.L.Gandhimathi ^For Respondents ... No representation. :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
17.02.1999 passed in A.S.No.90 of 1998 by the learned Subordinate Judge,
Sivagangai, in confirming the judgment and decree dated 26.06.1998 passed in
O.S.No.272 of 1997 by the learned Principal District Munsif, Sivagangai.
2. Heard the learned Counsel for the appellant. Despite printing the name
of the Counsel for the respondents, no one appeared.
3. Broadly but briefly, narratively but precisely, the case of the
plaintiff as stood exposited from the records could be portrayed thus:
The plaintiff filed the suit for declaration and for injunction as against
the defendants on the strength of the sale deed dated Ex.A.1, dated 08.03.1993,
in his favour relating to the suit property. According to him, there was some
loan transaction alone between the plaintiff and the first defendant and that he
never executed any sale deed in favour of the first defendant relating to the
suit property at any point of time and in that connection, there was some
dispute. The first defendant with the assistance of the second defendant,
demanded the plaintiff to sell the suit property for which he refused.
Thereupon, the first and the second defendants joining hands with each other,
are trying to dispossess the plaintiff forcibly.
4. Per contra, denying and disputing the allegations/averments in the
plaint, the first defendant filed the written statement, with the averments
inter alia thus:
The plaintiff executed validly the sale deed Ex.B.1 on 28.11.1995 for
valid consideration in respect of the suit property and possession was also
handed over to him. Thereupon, the first defendant executed the sale deed in
favour of the second defendant on 19.03.1997. Accordingly, the first defendant
prayed for the dismissal of the suit.
5. The second defendant filed separate written statement reiterating the
averments as found set out in the written statement of the first defendant. Over
and above that, he also added that after purchasing the suit property, vide
Ex.B.3 dated 19.03.1997 from the first defendant, the second defendant laid
foundation and made construction upto the level of plinth area. Thereafter, the
plaintiff also had put up a temporary structure so as to store the building
materials for raising superstructure. He also constructed a small room for the
purpose of renting it out. As such, the plaintiff is having no right to file
the suit for declaration and for injunction.
6. The trial Court framed the relevant issues.
7. During trial, P.W.1 to P.W.5 were examined and Exs.A.1 to A.4 were
marked on the side of the plaintiff. D.W.1 to D.W.4 were examined and Exs.B.1
to B.3 were marked on the side of the defendants. Exs.C.1 and C.2 were marked
as Court documents.
8. Ultimately, the trial Court dismissed the suit.
9. Challenging the judgment and decree of the trial Court, the plaintiff
preferred appeal in A.S.No.90 of 1998 before the Subordinate Court, Sivagangai,
which Court confirmed the judgment and decree of the trial Court.
10. Being aggrieved by and dissatisfied with, the judgments and decrees of
both the Courts below, this second appeal has been filed on the following main
grounds among others:
Both the Courts below fell into error in not appreciating the relevant
facts and also the principles relating to the burden of proof. The plaintiff
disputed his signature in the sale deed Ex.A.1, even then the trial Court barely
believed the execution of the sale deed Ex.A.1 in favour of the first defendant
by the plaintiff and dismissed the suit. The first appellate Court erroneously
assumed and presumed as though there were lack of pleadings, ignoring the fact
that the plaintiff had spelt out the relevant facts. The trial Court enormously
expressed its view that even assuming that the plaintiff might be in possession
of the suit property, yet he was not entitled to any relief. Accordingly, he
prayed for setting aside the judgments and decrees of both the Courts below and
for decreeing the suit as prayed for.
11. At the time of admitting the second appeal, my learned Predecessor
framed the following substantial questions of law:
“1.Whether the judgments of the Courts below are erroneous and against the
rules of evidence contained in Section 100 to 104 of the Evidence Act?
2. Whether the lower appellate Court is correct in refusing to consider
the question of validity of the sale deed propounded by the defendants on the
ground of lack of pleadings as required under Order VI Rule 4 CPC, when the said
rule is wholly inapplicable in the present case?”
12. Both the points are taken together for discussion as they are
interlinked and interwoven with each other.
The Points:
13. At the outset itself, I would like to highlight that this is a case in
which the plaintiff had taken a specific plea to the effect that he did not
execute the sale deed in favour of the first defendant. Indubitably and
indisputably, the sale deed bears the left thumb impression of the plaintiff.
It is not as though the sale deed contains only the signature of the plaintiff.
In the first sheet of Ex.B.1 at the back portion, clearly the left thumb
impression of the plaintiff was obtained by the Sub-Registrar of Documents at
the time of registering the sale deed executed by the plaintiff in favour of the
first defendant.
14. It is at once clear that illustration (e) to Section 114 of the Indian
Evidence Act would be attracted.
15. At this juncture, the famous maxim “Omnia Praesumuntur contra
spoliatorem” [Every presumption is made against a wrong-doer.] could also
fruitfully be referred to.
16. Here, the best evidence could have been adduced by the plaintiff. The
legal presumption is in favour of the defendants. When the onus probandi got
shifted from the defendants’ side to the plaintiff’s side on examination of one
of the attestators, namely D.W.2, Mahamuni, the plaintiff ought to have
petitioned the trial Court for sending the sale deed for being verified by the
finger print expert so as to find out whether the left thumb impression of the
plaintiff as found in Ex.A.1 is that of the plaintiff or not. But, for reasons
best known to the plaintiff, he has not done so.
17. I am fully aware of the fact that initially, the burden is on the
defendants’ side to prove Ex.B.1. The defendants in addition to examining
themselves examined D.W.2, the attesting witness to Ex.B.1. Thereupon, the
burden of proof legally got shifted to the plaintiff’s side to prove that the
purported left thumb impression of the plaintiff in Ex.B.1, is not that of his,
but he had not discharged the burden cast on him.
18. Both the Courts below consistently held by analysing the evidence that
the plaintiff executed the sale deed Ex.B.1 and only as an afterthought, he came
forward with the plea as though he did not execute the sale deed Ex.B.1.
19. The learned Counsel for the plaintiff would submit that the trial
Court at paragraph No.13 of its judgment, has held wrongly that even though for
argument sake that the plaintiff is taken to be in possession of the suit
property, yet he is not entitled to any relief.
20. The learned Counsel for the plaintiff would also submit that once
possession is recognised in favour of the plaintiff, then there would be no harm
in granting injunction.
21. I could not countenance such a proposition as put forth by the learned
Counsel for the plaintiff. No doubt, even a trespasser who could prove his
established possession, could be granted permanent injunction to the effect that
his possession should not be disturbed till he is evicted under due process of
law. But, here, the position is some what different. The plaintiff after
executing Ex.A.1 in favour of the first defendant, veered round and took a quite
antithetical plea and it is turned out to be a false plea. In such a case, I am
of the considered opinion that the plaintiff who is duty bound to hand over the
possession in favour of the first defendant cannot be heard to contend that even
though he might be in illegal possession of the suit property, his possession
has to be protected by way of permanent injunction.
22. Ultimately, there is no merit in this second appeal. Both the Courts
below properly analysed the evidence available on record and arrived at the just
conclusion and I could see no perversity in the judgments and decrees of both
the Courts below.
23. Accordingly, both the points are answered as under:
The Substantial question of law No.(i) is decided to the effect that the
Courts below have not ignored Sections 100 and 104 of the Indian Evidence Act in
rendering the judgments and the Substantial question of law No.(ii) is decided
to the effect that the judgments of both the Courts below are not illegal even
though they referred to lack of pleadings as they based their judgments on
factual evidence proving Ex.B.1.
24. In the result, the second appeal is dismissed, confirming the
judgments and decrees of both the Courts below. However, in the facts and
circumstances of the case, there shall be no order as to costs.
rsb
To
1.The Subordinate Judge, Sivagangai.
2.The Principal District Munsif, Sivagangai.