Madras High Court
Narayanan vs Jayaraman on 17 December, 2021
S.A.No.1026 of 2012
and M.P.No.1 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.1026 of 2012
and M.P.No.1 of 2012
Narayanan ... Appellant/Plaintiff
Vs.
Jayaraman ... Respondent/Defendant
PRAYER: This Second Appeal has been filed under Section 100 of CPC
against the judgment and decree made in A.S.No.76 of 2010 dated
30.09.2011 on the file of the Sub Court, Kallakurichi, confirming the
judgment and decree dated 19.08.2010 in O.S.No.365 of 2005 on the file
of the II Additional District Munsif's Court, Kallakurichi.
For Appellant : Mrs. R.Meenal
For Respondent : Mr.R.Syed Mustafa
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S.A.No.1026 of 2012
and M.P.No.1 of 2012
JUDGMENT
The unsuccessful plaintiff is the appellant herein.
2.This Second Appeal has been filed against the judgment and
decree dated 30.09.2011, passed by the learned Subordinate Judge,
Kallakurich, in A.S.No.76 of 2010, wherein, the learned Judge has
confirmed the order passed by the learned II Additional District Munsif
Court, Kallakurichi, in O.S.No.365 of 2005, dated 19.08.2010.
3.For the sake of convenience, the parties are referred to as per
their ranking before the trial Court.
4.The plaintiff has filed a suit in O.S.No.365 of 2005 before the
learned II Additional District Munsif's Court, Kallakurichi, seeking for
the relief of declaration of tittle and for permanent injunction to restrain
the defendant from interfering with the peaceful possession and
enjoyment of the suit property.
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S.A.No.1026 of 2012
and M.P.No.1 of 2012
5. Per contra, the learned counsel for the respondent/defendant
filed a written statement, by relying upon Ex.B1(Sale deed), Patta, Chitta
and Property tax Ex.B2, Ex.B3 and Ex.B4 and the communication from
the Revenue Department Ex.B5 and B6 and also the Judgment of the
Munsif Court in O.A.No.871 of 1994 as Ex.B7 and partition document
marked as Ex.B8 dated 04.05.1982.
6. After considering the oral and documentary evidence, both the
Courts below have come to the conclusion that the plaintiff has not filed
any ancient document to show that the property belongs to the ancestors
and in view of the attempt made by the P.W.1 that the defendant alone is
in enjoyment of the suit property and hence the second appeal.
7. This Court ordered notice to the respondent on 19.11.2012 and
respondent is being represented by a counsel. The following questions
were raised as substantial questions of law in the second appeal:
“1.Whether in law the Courts below are right
in rejecting Exs.A1 and A2 which are ancient
documents attracting presumption under Section 90
of the Evidence Act?
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S.A.No.1026 of 2012
and M.P.No.1 of 2012
2. Whether in law the Courts below are right in
ignoring the possession of DW1 and DW2 regarding
the possession of the suit property by the appellants
mother? .”
8.This Court heard the rival submissions made by the learned
counsel on either side and perused the materials placed on record.
9. Though Ex.A1, said to have been executed by the parents of the
plaintiff, which has been executed in their favour by their grandparents
by way of a settlement deed, they have not entered into the witness box
to said about the said document. In the absence of the parental document
or any ancient document of title, both the Courts below have rightly
rendered a finding to that effect.
10. In respect of sale deed dated 12.09.1988, the defendant has
exercised all the right to show that he is the owner of the portion of the
property mentioned therein and they are having the patta, property tax
receipt and kist receipts as could be seen from Ex.B2, Ex.B3 and Ex.B4
besides Ex.B7 and Ex.B8, which go to show that the certified copy of a
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S.A.No.1026 of 2012
and M.P.No.1 of 2012
decree in O.S.No.871 of 1994 and certified copy of partition deed dated
04.05.1982 respectively and in view of the placing of the title by the
defendant, both the Courts below have concurrently held that the
defendant has proved the possession of the suit property with the above
said document.
11. Further, the learned counsel for the appellant would contend
that Ex.A1 is 30 years old document, it does not need any parental
document to prove it. During the course of cross-examination of P.W.1,
he had admitted that there is no necessity for the parent document
showing that the grant parents of the plaintiff's parents have executed a
settlement deed in favour of the plaintiff's parents in respect of Ex.A1.
Hence, the above substantial question of law does not arise on the facts
and circumstances of the case.
12. In the facts and circumstances of the case, this Court find that
both the Courts below have rightly held that Ex.A1 and Ex.A2 are in
conflict with Section 122 of the Transfer and Property Act and rejection
of Ex.A1 is not on the ground of want of necessary document or ancient
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S.A.No.1026 of 2012
and M.P.No.1 of 2012
document. Since the parent document was not proved, there arises a
doubt as to the title of the documents and on the factual position also, the
above two substantial questions of law do not arise for consideration.
The concurrent finding by the Courts below on the point that title and
possession of the document appears to be doubtful is justified and the
same does not need any interference by this Court.
13. In the result, this Second Appeal stands dismissed and the
judgment and decree dated 30.09.2011 passed by the learned
Subordinate Judge, Kallakurichi, in A.S.No.76 of 2010, confirming the
judgment and decree dated 19.08.2010 passed by the learned II
Additional District Munsif Court, Kallakurichi, are hereby confirmed.
No costs. Consequently, connected miscellaneous petition stands closed.
17.12.2021
Internet : Yes
mp
https://www.mhc.tn.gov.in/judis
S.A.No.1026 of 2012
and M.P.No.1 of 2012
To
1.The Subordinate Judge, Kallakurichi.
2.The II Additional District Munsif Court, Kallakurichi.
https://www.mhc.tn.gov.in/judis
S.A.No.1026 of 2012
and M.P.No.1 of 2012
RMT.TEEKAA RAMAN, J.
mp
S.A.No.1026 of 2012
and M.P.No.1 of 2012
17.12.2021
https://www.mhc.tn.gov.in/judis
