S.A.(MD)No.1201 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.1201 of 2008
and
M.P.(MD)No.1 of 2010
Ananthavalli ... Appellant / Respondent / Plaintiff
-Vs-
S.Alagarsamy ... Respondent / Appellant / Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 24.03.2008 passed in A.S.No.
12 of 2008 on the file of the District Judge, Sivagangai by setting aside the
judgment and decree dated 23.11.2006 passed in O.S.No.136 of 2005 on the
file of the Principal District Munsif Court, Manamadurai.
For Appellant : Mr.M.Ponniah
For Respondent : Mr.S.Natarajan
https://www.mhc.tn.gov.in/judis
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S.A.(MD)No.1201 of 2008
JUDGMENT
The plaintiff in O.S.No.136 of 2005 on the file of the Principal District Munsif Court, Manamadurai is the appellant in this second appeal.
2. The appellant herein filed the said suit seeking the relief of declaration and recovery of possession. The case of the plaintiff is that the suit property bearing door No.106 belonged to her by virtue of the settlement deed dated 01.12.2003 executed in her favour by her husband namely Sonaimuthu. The plaintiff pleaded that since the defendant who is none other than the brother of the plaintiff's husband did not have any home on his own, he was permitted to reside therein. Since the plaintiff required the said premises for own use and occupation, she issued notice dated 06.07.2005. After receiving the same, the defendant issued reply dated 15.07.2005 projected a rival claim. Hence, the plaintiff was constrained to file the said suit. The defendant filed a detailed written statement controverting the plaint averments. Based on the divergent pleadings, the trial court framed the necessary issues. The plaintiff examined herself as P.W.1 and two other witness on her side. She marked Ex.A1 to Ex.A6. The defendant examined himself as D.W.1 and two other witnesses on his side. Ex.B1 to Ex.B4 were marked. After considering the evidence on record, the trial court by judgment and decree dated 23.11.2006 decreed the suit as https://www.mhc.tn.gov.in/judis 2/12 S.A.(MD)No.1201 of 2008 prayed for. Aggrieved by the same, the defendant filed A.S.No.12 of 2008 before the District Judge, Sivagangai. By the impugned judgment and decree dated 24.03.2008, the appeal filed by the defendant was allowed and the suit was dismissed. Challenging the same, this second appeal came to be filed. Initially notice was ordered and the records were called for. On the last hearing date ie. 24.09.2021, it was formally admitted and the following substantial questions of law were framed:-
“(1) Whether the finding of the first appellate court that Ex.A1 does not convey title to the plaintiff is perverse?
(2) Whether the finding of the first appellate court that Ex.B1 had been proved by the defendant is correct?
(3) Whether on a consideration of evidence on record, the interference of the first appellate court with regard to the finding of the trial court that the plaintiff had established better title is justified?”
3. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds. He also submitted that the appellant had filed M.P.(MD)No.1 of 2010 for adducing additional evidence. The learned counsel for the appellant submitted that in the interest of justice and to render a proper judgment, the additional evidence may be allowed to come on record. He called upon this court to answer the substantial questions of law in favour of the appellant and set aside the impugned judgment and decree and restore the decision of the trial court. https://www.mhc.tn.gov.in/judis 3/12 S.A.(MD)No.1201 of 2008
4. Per contra, the learned counsel appearing for the respondent submitted that the impugned judgment and decree do not call for interference. He pointed out that the suit property is situated in natham poromboke. The suit property along with the adjacent site totally measured 728 square feet. It was originally occupied by his father Sangu. Sangu had three sons namely Sonaimuthu, the defendant herein and Pandi. Even in the year 1987 itself, there was a family arrangement between the plaintiff's husband and the defendant. It was subsequently reduced into writing and marked as Ex.B1. As per the terms of the agreement, the plaintiff's husband was to reside in Door No.104, while the defendant was to reside in Door No.106 which is the suit property. The plaintiff's husband had no authority whatsoever to include the suit property in the so called settlement deed Ex.A1. The learned counsel would point out that the defendant had impeached the genuineness of the settlement deed said to have been executed in favour of the appellant. A deed of settlement requires registration and attestation by two witnesses. In the case on hand, Ex.A1 had been registered. But it was not proved in the manner known to law. None of the attesting witnesses were examined. The plaintiff's husband also did not enter the witness box and that is why, the first appellate court applying the mandate set out in Section 68 of the Indian Evidence Act, 1872 brushed it aside. Ex.B1 being a record of an antecedent evident does not https://www.mhc.tn.gov.in/judis 4/12 S.A.(MD)No.1201 of 2008 require registration. It is not a compulsorily registrable document under Section 17 of the Registration Act, 1908. The defendant had adduced evidence to show that it was he who had been remitting the property tax in respect of the suit house. He also would submit that non-joinder of the other brother namely Pandi is fatal to the case of the plaintiff. It is not enough if the plaintiff merely predicates her case on Ex.A1. She should have further proved that the plaintiff's husband had title over the suit property so that he could convey the same in favour of the plaintiff. No such effort was never undertaken. The plaintiff cannot try to make good in the second appeal what she failed to do so in the trial court. M.P.(MD)No.1 of 2010 can be allowed if the requirement set out in Order 41 Rule 27 of C.P.C., are fulfilled. In the case on hand, the appellant had miserably failed to establish that the requirements under Order 41 Rule 27 of C.P.C., have been met.
5. The learned counsel for the respondent submitted his written argument and took me through its contents. He relied on the decision reported in 2014 (4) CTC 471 (Union of India and others Vs. Vasavi Co- operative Housing Society Ltd.,) for the proposition that when the plaintiff seeks declaration of title and possession, she can succeed only on the strength of her own title and that could be done only by adducing sufficient evidence to discharge the onus cast on her irrespective of whether the https://www.mhc.tn.gov.in/judis 5/12 S.A.(MD)No.1201 of 2008 defendant had proved his case or not. Even if the title set up by the defendant is found against, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited. He also referred to the decision reported in AIR 1969 (SC) 1147(M.L.Abdul Jabbar Sahib Vs. H.Venkata Sastri and sons) for the proposition that scribe cannot be considered as attesting witness. He called upon this Court to answer the substantial questions of law against the appellant and dismiss the appeal.
6. I carefully considered the rival contentions and went through the evidence on record. The first question that I have to consider is whether Ex.A1 has been proved by the appellant or not. There is no dispute that the deed of settlement will have to be registered and attested by atleast two witnesses. Ex.A1 has been registered. The plaintiff however did not examine any attesting witness. She examined only the scribe. It is trite law that scribe cannot be considered as attesting witness. Now the question that falls for consideration is whether the plaintiff can still be said to have proved Ex.A1. To answer this question, one has to look at Section 68 of the Indian Evidence Act. Section 68 of Indian Evidence Act is as follows:-
68: Proof of execution of document required by law to be attested:-
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, it there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
https://www.mhc.tn.gov.in/judis 6/12 S.A.(MD)No.1201 of 2008
7. The plaintiff need not call the attesting witness in proof of execution of Ex.A1, unless its execution is specifically denied. The learned counsel appearing for the appellant initially submitted that since the plaintiff's husband has not denied having executed Ex.A1, there is no need to call his attesting witness in proof of execution of Ex.A1. This contention is erroneous. It is open to anybody against whom such a document is projected to deny the execution of the same. Ex.A1 is projected against the defendant. Now the question that calls for consideration is whether the defendant had denied the execution of Ex.A1. I went through the written statement filed by the defendant. The defendant has not denied the execution of Ex.A1. All that the defendant would plead in the written statement is that the plaintiff and her husband have conspired together and fraudulently prepared the document. In other words, the defendant had not denied the execution of Ex.A1 by Sonaimuthu, husband of the plaintiff. Since execution of Ex.A1 by Sonaimuthu has not been specifically denied by the defendant, there was no need for the appellant to examine the attesting witness to prove its due execution. The first appellate court erred in holding that execution of Ex.A1 has not been proved in the manner known to law. I answer the first substantial question of law in favour of the appellant.
https://www.mhc.tn.gov.in/judis 7/12 S.A.(MD)No.1201 of 2008
8. The defence of the defendants is predicated entirely on Ex.B1. Ex.B1 reads as follows:-
“1987Mk; tUlk; [{d; khjk; 15Mk; Njjp khdhkJiu Nky;fiu 5tJ fpU\;zuh[Guk; njUtpy; ,Uf;Fk; Nyl; rq;F kf;fs; NrhidKj;J> jk;gp mofu;rhkp ,uz;LNgh;fSk; Nrh;e;J gQ;rhaj;jhh;fs; igry;gb fl;Lg;gl;L rk;kjpj;J ,e;j xg;ge;jk; nra;J nfhz;bUf;fpNwhk;.
Ekf;F ghj;jpakhd khdhkJiu 5tJ thh;L cwh;
[d; fhydpapy; cs;s fhyp kidaplj;ij gpr;ir kfd;
NtYTf;F fpiuak; nra;J nfhLj;J fpiua njhifia itj;J ek;kspy; ,uz;lhtJ egUf;F fy;ahzk; nra;Jnfhz;l gbahYk; ehk; ,UtUk; MSf;F xU tPl;by; FbapUe;J tUtjhYk; ek;kspy; jk;gp ghz;bf;F ,d;Dk; fy;ahzk; Mftpy;iy mtDf;F fy;ahzk; MdJk; ek;Kila ,lj;jpy;
xU tPL fl;b G>h;j;jp nra;J ghz;b FbapUg;Gf;F
tpl;L;f;nfhL;g;gnjd;Wk; ehk; fl;Lg;gl;L rk;kjpj;J fpuhk
gQ;rhaj;jhh;fs; igry;gbf;Fk; ehk; ,e;j xg;ge;j mf;hpnkz;l;nra;J nfhz;bUf;fpNwhk;.”
9. If the document is a mere record of antecedent evident, then, it does not require registration. If on the other hand by virtue of the very document itself, a right is created, extinguished or limited, then, as per Section 17(1)(b) of the Registration Act, it would require registration. https://www.mhc.tn.gov.in/judis 8/12 S.A.(MD)No.1201 of 2008 From a reading of Ex.B1, one can come to the conclusion that only by virtue of Ex.B1, right was conferred on the defendant. I hold that Ex.B1 is a compulsorily registrable document as per Section 17(1)(b) of the Registration Act. The second substantial question of law is answered in favour of the appellant.
10. As rightly pointed out by the learned counsel appearing for the respondent, the plaintiff will have to establish her case. It will not be open to the appellant to pick holes in the defence. Admittedly, the suit property is a natham property. The case of the defendant is that the property was occupied by their father and that after his demise, it was divided between the suit property and the adjacent site which formed a single portion which was divided between the two brothers namely Sonaimuthu and Alagarsamy. Sonaimuthu was residing in Door No.104, While Alagarsamy was residing in Door No.106. The question that arises for consideration is whether the plaintiff has proved that she is the owner of the suit property also. The plaintiff traces her title by virtue of Ex.A1 dated 01.12.2003. By the said document, Sonaimuthu had conveyed the title in respect of the suit property in favour of the plaintiff. The core question is whether the plaintiff's husband himself had title over the suit property for executing Ex.A1. In this regard, the plaintiff had marked Ex.A2 to Ex.A4. Ex.A2 to Ex.A4 are https://www.mhc.tn.gov.in/judis 9/12 S.A.(MD)No.1201 of 2008 the property tax receipts issued by the local body. The local body happens to be a town panchayat. It is governed by the provisions of the Tamil Nadu District Municipalities Act, 1920. The statutory scheme set out therein would indicate that the property is assessed only in the name of the owner of the property. Of-course, any occupier can pay the property tax and collect the same. The assessment of a land or building is normally in the name of the owner. In the case on hand, the defendant also has marked quite a few documents such as Ex.B6 to Ex.B11. A reading of the same would show that Alagarsamy only remitted the tax. Assessment never stood in the name of Alagarsamy. Assessment stood only in the name of Sonaimuthu. Since the assessment made in favour of Sonaimuthu, prima facie one can come to the conclusion that he is the owner of the suit property. It is well settled that in a civil suit, the plaintiff needs only to show that he has a better title than the defendant. The plaintiff need not establish any absolute title. In the case on hand, by marking Ex.A1 and the other property tax receipts, the plaintiff has established that she has a far better title than the defendant. The third substantial question of law is also answered in favour of the appellant. The impugned judgment and decree passed by the first appellate court are set aside. The decision of the trial court is restored.
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11.The appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.
01.10.2021 Internet : Yes/No Index : Yes/No rmi To
1.The District Judge, Sivagangai.
2.The Principal District Munsif Court, Manamadurai. Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 11/12 S.A.(MD)No.1201 of 2008 G.R.SWAMINATHAN.J., rmi Judgment made in S.A.(MD)No.1201 of 2008 and M.P.(MD)No.1 of 2010 01.10.2021 https://www.mhc.tn.gov.in/judis 12/12