Madras High Court
Thalaikaruppan vs Mayakkal on 22 December, 2021
S.A(MD)No.804 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.804 of 2021
and
C.M.P(MD)No.11077 of 2021
Thalaikaruppan ... Appellant/Appellant/Plaintiff
Vs.
Mayakkal ... Respondent/ Respondent/Defendant
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 11.02.2020 passed in
A.S.No.32 of 2018, on the file of the Subordinate Court,
Thirumangalam, confirming the judgment and decree dated 08.11.2017
passed in O.S.No.567 of 2007 on the file of the District Munsif Court,
Thirumangalam.
For Appellant : Mr.K.Hemakarthikeyan
1/18
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S.A(MD)No.804 of 2021
JUDGMENT
The appeal is directed against the Judgment and Decree
passed in A.S.No.32 of 2018, by the learned Subordinate Judge,
Thirumangalam, in confirming the Judgment and Decree in O.S.No.567
of 2007, passed by the learned District Munsif, Thirumangalam.
2. For the sake of convenience, the parties are referred to
herein, as per their own ranking as before the Trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
The suit property ancestrally belonged to Chinnakaruppan
Kudumban, father of the plaintiff herein. After the death of
Chinnakaruppan Kudumban, the suit property absolutely belongs to the
plaintiff. The plaintiff is in absolute possession and enjoyment of the
suit property. The plaintiff's father while he was alive, mortgaged the
suit property in the Co-operative Land Development Urban Bank,
Thirumangalam and made payments and redeemed the suit property. The
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S.A(MD)No.804 of 2021
payment receipt issued by the Land Development Urban Bank,
Thirumangalam, in the name of the plaintiff's father. Those documents
will clearly prove that the plaintiff has got absolute title, possession and
enjoyment of the suit property. The defendant proclaiming in the village
that the suit property belongs to her on the basis of some void sale
transaction made by her in respect of the suit property. The defendant on
02.12.2007 along with her henchmen tried to interfere with plaintiff's
peaceful possession and enjoyment of the suit property. Hence the suit.
4.The defendant filed a written statement contending that
the suit property ancestrally belonged to Chinnakaruppan, who is the
father of the plaintiff. The plaintiff's father mortgaged the suit property
and redeemed the same from the Co-operative Society are admitted as
true. The defendant has purchased the suit property for valuable
consideration by way of registered sale deed, dated 05.07.1985 from the
plaintiff, his father Chinnakaruppan and their Pangali T.Pandi. The
plaintiff and T.Pandi had executed the sale deed for themselves and on
behalf of their minor children. The defendant being the true and lawful
owner of the suit property, no injunction can be granted against her in
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S.A(MD)No.804 of 2021
respect of the suit property and hence, suit has to be dismissed with
costs.
5. Before the trial Court, on the side of the plaintiff, the
plaintiff examined himself as P.W.1 and Exs.A1 to A5 were marked. On
the side of the defendant, the defendant examined herself as D.W.1 and
Exs.B.1 to B.3 were marked. One Rathinasamy was examined as C.W.1
and Exs.C.1 to C.4 were marked.
6. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has dismissed the suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S.No.32
of 2018, on the file of the Subordinate Court, Thirumangalam. The first
appellate Court, after hearing both sides and upon reappraising the
evidence available on record, had dismissed the appeal and confirmed
the Judgment and decree passed by the trial Court. Challenging the said
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S.A(MD)No.804 of 2021
concurrent Judgments and decrees passed by the Courts below, the
present second appeal has been preferred at the instance of the plaintiff,
as appellant.
8. Heard the learned counsel for the appellant / plaintiff and
also perused the materials available on record.
9.The learned counsel for the appellant/plaintiff would
submit that the Courts below have failed to consider the oral and
documentary evidence which were marked by the appellant/plaintiff in a
proper perspective manner and failed to allow the appellant/plaintiff's
application in I.A.No.1 of 2019 to receive additional documents before
the appellate Court and there is no necessity to pray for cancellation of
sale deed which is per se illegal, since at the time of purchase itself,
mortgage was in subsistence before the Co-operative Land Development
Urban Bank, Thirumangalam and the appellant/plaintiff had proved that
there was mortgage at the time of execution of sale deed and the said
mortgage was discharged only in the year 1994 and proved the same
through C.W.1 and Exs.C.1 to C.4 and ought to have decreed the suit
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S.A(MD)No.804 of 2021
when the respondent / defendant had admitted the title of the
appellant/plaintiff. The judgment and decree of the Courts below were
based on surmises and conjectures, which is un-sustainable in law and
the same is liable to be set aside and hence, prayed to allow the Second
Appeal.
10.This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
11.On going through the averments, it is seen that the
property originally belonged to Chinnakaruppan Kudumban, the father
of the plaintiff. After the death of Chinnakaruppan Kudumban the suit
property absolutely belongs to the plaintiff. The plaintiff's father while
he was alive, mortgaged the suit property in the Co-operative Land
Development Urban Bank, Thirumangalam. The defendant has come
forward with a forged document and had claimed title over the property.
This point was not at all found in the plaint averments. But had clearly
assured that the defendant proclaiming that the property belongs to her
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S.A(MD)No.804 of 2021
on the basis of some void sales transactions regarding the said suit
property and prayed that the same should have been accepted by the
Courts below.
12. On going through the averments it is stated that the
defendant has purchased the suit property for a valuable consideration by
way of registered sale deed, dated 05.07.1985 from the plaintiff, his
father Chinnakaruppan and their Pangali T.Pandi. The plaintiff and
T.Pandi had executed a sale deed for themselves and on behalf of their
minor children as being the lawful owner of the property, in sale deed
Ex.B.1. Ex.B.1 is a registered sale deed and the plaintiff has not
substantiated their claim by providing any proof of evidence that the sale
deed is a forged one. Moreover it is averred that the suit property and
other properties were already mortgaged by the father of the plaintiff and
the plaintiff has been paying the instalments of amount towards the
discharge of the loan amount till the year 1999. When the suit property
was sold away under Ex.B.1 in favour of the defendant, the plaintiff
could not have paid the contribution up to the year 1999 and what made
the plaintiff to wait till 2007 to file a suit.
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S.A(MD)No.804 of 2021
13.It is pertinent to note that there is no dispute about the
fact that the suit property belonged to the father of the plaintiff by name
Chinnakaruppan Kudumban. But the plaintiff disputed Ex.B.1 sale deed
and that the instalment amount of loan was paid till the year 1999
towards the discharge of the mortgage involving the suit property. If the
suit property was sold under Ex.B.1 sale deed, there is no need for
making payment of instalment towards the discharge of mortgage till the
year 1999 was the point raised. It appears from the document Ex.C.1
that the property comprised in S.No.375/8 and 372/3 were subjected to
mortgage in Thirumangalam Co-operative Primary Agri and Rural
Development Bank Limited. Whileso, it is clear that there is another
property comprised in S.No.375/8 apart from the suit property, was under
mortgage with the above said bank. But the plaintiff did not produce any
evidence to show that the alleged instalments were paid until the year
1999 to the above said bank including that of the suit property. It is
well settled law so far as the registered documents are concerned,,it has
to be presumed that the said documents are genuine and valid one unless
and until contrary is proved. As no evidence produced to show that the
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S.A(MD)No.804 of 2021
loan due was paid only with regard to the suit schedule property, the
Court has to consider that there was no clear evidence in this regard.
14. On perusal of Ex.B.1, sale deed it is clear that one Pandi
and one Chinnakaruppan, who is the father of the plaintiff sold the suit
property in favour of the defendant on behalf of their minors, which
binding their children including that of the plaintiff. But none of them,
in particular, the brother of the plaintiff except the plaintiff disputed the
Ex.B.1 sale deed or challenge the sale. If the sale deed under Ex.B.1 is
fraudulent, definitely other persons in particularly the brother of plaintiff
along with the plaintiff would have raised dispute with regard to Ex.B.1
sale deed. But as already stated, no one either objected nor disputed
Ex.B.1 sale deed except the plaintiff. Under these circumstances even
assuming that just because the instalments being paid towards the
discharge of the mortgage till the year 1999, for the reasons best known
to the plaintiff, which is also not proved that the same was paid to the
suit property, it does not make any difference in this case, particularly, as
there is no material on record to discredit Ex.B.1-sale deed. Moreover
from the cumulative appraisal of the evidence emerged on record, it is
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S.A(MD)No.804 of 2021
clear that the plaintiff failed to prove that Ex.B.1 is a fraudulent one.
The mortgage with regard to the suit property also stands discharged
later in 1999 and the defendant has absolute title over the suit property,
without any cloud over the title as the plaintiff had already sold the
property and he cannot claim right over the same. Therefore, it cannot
be construed that the plaintiff has title over the suit property.
15.Based on the evidence of P.W.1, it is proved that the
document executed by the plaintiff and his family members. That being
the case, the registered sale deed executed by the plaintiff and his family
members and the plaintiff could not prove that his signature is not
T.Thalaikaruppan, which is present in the sale deed, but infact, he signs
all his papers as T.Thalaikaruppan and not C.Thalaikaruppan. Infact, this
pleading has been taken by the plaintiff that the plaintiff signs as
C.Thalaikaruppan and since, the plaintiff's father's name is
Chinnakaruppan, he has to sign his name only as C.Thalaikaruppan but,
all through out the case from the emerging of the vakkalat till the last
deposition of the witness by the P.W.1 the said Thalaikaruppan the
plaintiff has never ever signed any of the papers as C.Thalaikaruppan but
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he has only signed as T.Thalaikaruppan.
16.Moreover, the plaintiff has disputed the document
05.07.1985 for the simple reason that earlier there was an mortgage as
between the Bank and the plaintiff's father and hence all the property has
been mortgaged with the Bank. The title deeds have been deposited in
the Bank. On perusal of Ex.C.1 to C.3 would show that there is nothing
on record to show that deposit of title deeds has been made. It is stated
that the loan has been obtained by Chinnakaruppan in the year 1983
itself, whereas, the sale deed has been executed and signed only in the
year 1985, later Ex.A.5 which has been marked through the re-
examination of P.W.1 is a chitta which shows the name of the owner of
the property as Chinnakaruppan. The plaintiff having disputed Ex.B.1,
produced by the defendant has the ultimate duty to prove that the title
deeds regarding the property still stands in his name and that the title
deeds are in his possession. It is true that the sale has taken place in the
year 1983 that the patta was granted to the plaintiff with regard to the
suit property in the year 1983 itself and hence there is a fair possibility
that the plaintiff could have sold the suit property in the year 1985 but
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S.A(MD)No.804 of 2021
the defendant has not mutated the records initially.
17.Regarding the loan closure certificate which has been
issued by the Bank is dated only 10 days before the filing of the suit and
after receiving Ex.A.1 from the Bank, the plaintiff has filed the suit and
he has not even filed any encumbrance to prove that the Bank was
holding charge over the mortgaged property. From the Encumbrance
Certificate, it is seen that the property has been sold to Mayakkal in the
year 1985 itself and the alleged mortgage was not proved unless it is
registered, it would not reflect in the encumbrance. Further the plaintiff
has not stated as to which date he got knowledge about the alleged sale
deed and he never prayed for cancellation of the above sale deed.
Further the plaintiff never sought for any relief regarding cancellation of
the sale deeds or even recovery of possession. Further the plaintiff has
not filed any single revenue record to prove that he was in possession of
the suit property. Ex.A.5 would clearly show that the plaintiff was in
possession of the suit property two years before the alleged sale and no
current document is filed to show that he is in possession of the property.
The defendant case is that the plaintiff was the owner of the suit property
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along with Pandi and Chinnakaruppan and all three of them have
executed a sale deed in favour of the defendant even before alleged
closing of the loan. The plaintiff has the duty to prove that the signature
of the plaintiff is not genuine on the sale deed Ex.B.1, but the plaintiff
has not denied that the said document was not executed by the plaintiff.
Based on the documentary and oral evidence, it is found that the plaintiff
and his family members had executed the registered sale deed, dated
05.07.1985 in favour of the defendant and now he cannot come and
canvass that the said document is forged and not valid.
18.The specific case of the plaintiff is that the trial Court
underlined the fact that the plaintiff did not file the encumbrance
certificate. The plaintiff bonafidely believed that the suit was dismissed
due to non-filing of the encumbrance certificate and that the plaintiff has
filed a petition in I.A.No.1 of 2019 to receive additional documents. By
way of reply, the contention of the defendant is that the production of
additional document is highly belated one and the same was filed before
the appellate Court without exercising due diligence to file the same
before the trial Court.
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19. On a perusal of records, it clearly shows that the above
said document sought to be produced in this case in the form of
additional evidence by the petitioner is already within his knowledge.
Moreover the said document is no way useful to decide the matter in
dispute. The trial Court has also come to the conclusion that
Encumbrance Certificate is very well available in the Registration
Department and the trial Court has very much pointed out that there is no
such document namely, Encumbrance Certificate has been produced at
the time of trial. That being the case, the plaintiff has filed a petition to
produce the same by way of additional documents which is highly
belated and the Court feels that no purpose is served in allowing the
petition as the plaintiff failed to prove that notwithstanding the exercise
of due diligence, he could not produce the same earlier is available
before the plaintiff only now for filing an application to receive it and the
trial Court had rightly dismissed the said I.A.No.1 of 2019.
20.As the plaintiff has not sought for cancellation of sale
deed and only declaration of title and he is not entitled for the said prayer
as he has not proved his title and enjoyment of the suit property.
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S.A(MD)No.804 of 2021
21. The plaintiff Thalaikaruppan has executed a registered
sale deed and also signed in the mortgage deed of the Bank and only
based on the mortgage deed executed in favour of the Co-operative
Bank, the plaintiff has been continuously putting forth various
contentions regarding the sale deed presented before the Bank and not
established his case by proper admissible evidence to grant the relief of
declaration.
22.The plaintiff has never produced any single document to
prove that he has been in continuous possession and enjoyment of the
suit property. However, the plaintiff has approached this Court in order
to take possession of the property by getting an order for declaration of
title. Moreover, the defendant has also refuted the case of the plaintiff,
who in turn, had failed to prove his case by letting in appropriate
evidence and by producing relevant documents. Therefore, the plaintiff
is not entitled for any relief as sought for in the suit and hence the Courts
below have rightly rejected the claim of the plaintiff and this Court finds
no reason to interfere with the well reasoned judgment of the Courts
below. That being the case, this Court is not inclined to interfere with
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the concurrent findings of the Courts below and also there is no question
of law much less substantial question of law involved in this Second
Appeal to be decided by this Court and hence, the Second Appeal is
devoid of merits and the same fails.
23. In fine, the Second Appeal is dismissed. However, there
shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.
22.12.2021
Index : Yes/No
Internet : Yes/No
rm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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S.A(MD)No.804 of 2021
To
1.The Subordinate Court,
Thirumangalam.
2.The District Munsif Court,
Thirumangalam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.804 of 2021
V.BHAVANI SUBBAROYAN, J.
rm
Judgment made in
S.A(MD)No.804 of 2021
22.12.2021
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