Madras High Court
Ganesan vs Subbiah on 29 June, 2021
1 S.A.(MD)NO. 913 OF 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.913 of 2014
Ganesan ... Appellant/Appellant/
Plaintiff
Vs.
Subbiah ... Respondent/Respondent/
Defendant
Prayer: Second appeal filed under Section 100 of C.P.C., to
set aside the Judgment and Decree dated 16.06.2014 made in
A.S.No.81 of 2013 on the file of the Subordinate Judge,
Pudukottai, confirming the Judgment and Decree dated
20.12.2012 on the file of the District Munsif, Pudukottai, made
in O.S.No.211 of 2010 and to allow this second appeal.
For Appellant : Mr.Mr.K.Baalasundharam
For Respondent : No appearance.
***
JUDGMENT
The plaintiff in O.S.No.211 of 2010 on the file of the
District Munsif, Pudukottai, is the appellant in this second
appeal.
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2 S.A.(MD)NO. 913 OF 2014
2.The plaintiff filed the said suit seeking the relief of
permanent injunction against the defendant Subbiah. The case
of the plaintiff is that the suit property measuring 33 Ares in
Survey No.677/4 in Mullur Village, Pudukottai Taluk,
originally belonged to one Kulliyammal and that she sold the
same to one Palani @ Pananiyandi for valuable consideration
on 16.11.1970 by a registered sale deed and that the revenue
records stand in the name of Palani @ Palaniyandi and from
the said Palaniyandi, the appellant purchased the suit
property vide sale deed dated 10.06.2010. According to the
plaintiff, the defendant who claims to be the grandson of
Kulliyammal, wanted the plaintiff to reconvey the property.
Since the plaintiff declined to comply with the said request,
the defendant had been interfering with the plaintiff's
possession and enjoyment of the suit property and that
necessitated the plaintiff to institute the instant suit.
3.The defendant filed his written statement denying
the plaint averments. The defendant denied that the suit
property was sold by Kulliyammal to Palaniyandi. Except
admitting the fact that the property originally belonged to
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3 S.A.(MD)NO. 913 OF 2014
Kulliyammal, all the other claims put forth by the plaintiff
were denied by the defendant.
4.The learned trial Judge framed the necessary issues.
The first issue was whether the suit property belonged to the
plaintiff. The second issue was whether the plaintiff was in
possession of the same. The plaintiff examined himself as P.W.
1 and one Arumugam, attestor of Ex.A.5 as P.W.2. Ex.A.1 to
Ex.A.9 were marked. The defendant examined himself as D.W.
1 and two other witnesses in support of his contention that he
was in possession of the suit property and no documentary
evidence was adduced by the defendant. After a consideration
of the evidence on record, the learned trial Munsif held that
the plaintiff was the owner of the suit property. However, it
was held that the plaintiff had not established that he was in
possession of the same. Therefore, the relief of permanent
injunction was denied. As a result, the suit came to be
dismissed by judgment and decree dated 20.12.2012.
Aggrieved by the same, the plaintiff filed A.S. No.81 of 2013
before the Sub Court, Pudukottai. By judgment and decree
dated 16.06.2014, the first appellate Court confirmed the
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4 S.A.(MD)NO. 913 OF 2014
judgment and decree passed by the trial Court and dismissed
the appeal. Challenging the same, this second appeal came to
be filed.
5.This second appeal was admitted on the following
substantial questions of law:-
“i) Whether the Courts below are right
in law in non-suiting the plaintiff, having held
that the plaintiff is the absolute owner of the suit
property and whether this approach of the
Courts below is not perverse?
ii) Whether the failure of the Courts
below in applying the principle “possession
follows title” to the instant case is not
substantially erroneous in law calling for
interference?
iii) Whether the failure of the Courts
below to read the evidence of P.W.1 as a whole
is right in law especially when the plaintiff has
proved his title over the suit property?”
6.Notice was ordered to the respondent. The
respondent entered appearance through counsel. But when
the matter was called yesterday(28.06.2021), there was no
appearance on the side of the respondent. Hence the
respondent was set exparte and the case was posted for
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5 S.A.(MD)NO. 913 OF 2014
orders. Even today there is no appearance on the side of the
respondent. The learned counsel appearing for the appellant
informs the Court that he had intimated the counsel who had
entered appearance for the respondent about the listing of
this appeal for disposal.
7.The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds of appeal and called upon this Court to answer the
substantial questions of law in favour of the appellant and
allow the appeal and decree the suit as prayed for.
8.I carefully considered the said contentions. Since
the respondent is not represented, I undertook an
independent scrutiny of the evidence. There is no dispute that
the suit property originally belonged to Kulliyammal. The case
of the appellant is that Kulliyammal sold the suit property in
favour of Palani @ Palaniyandi vide sale deed dated
16.11.1970(Ex.A.1). It is true that the original sale deed was
not produced. The appellant in response to a specific question
in this regard had replied that the original document was
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6 S.A.(MD)NO. 913 OF 2014
missing and therefore, they could mark only a certified copy.
From this, one cannot doubt the version of the plaintiff that
Kulliyammal had sold the property in favour of Palani @
Palaniyandi. As rightly pointed out by the learned counsel
appearing for the appellant, Ex.A.1 is a registered document.
Therefore Section 60 of the Registration Act, 1908 can be
invoked. The said provision reads as follows :
“Certificate of registration.—(1) After such of
the provisions of sections 34, 35, 58 and 59 as apply
to any document presented for registration have been
complied with, the registering officer shall endorse
thereon a certificate containing the word
“registered”, together with the number and page of
the book in which the document has been copied.
In the decisions reported in (1972) 2 MLJ 508 (Irudayam
Ammal and Ors. V. Salayath Mary) and (1999) 3 MLJ 577
(Dr.Kumari Shantha Arogyadoss and Ors. V.
Tmt.G.C.Kamala Sri Hari and Ors.), it was held that
though registration by itself, in all cases, is not proof of
execution, if no evidence is available, the certificate of
registration is prime facie evidence of its execution.
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7 S.A.(MD)NO. 913 OF 2014
9.It is relevant to note here that except a plea of
formal denial, the defendant has not adduced any rebuttal
evidence. Ex.A.1 was executed and registered on 16.11.1970.
The suit in question was filed in the year 2010. The Court
below have given a categorical finding that the plaintiff has
established his title over the suit property. Having correctly
given such a finding, the Courts below erred in denying the
relief of permanent injunction. Apart from marking the sale
deed executed in his favour (Ex.A.5), the plaintiff had also
marked Ex.A.2, Ex.A.3, Ex.A.4, Ex.A.6 to Ex.A.9. These
documents are revenue documents. In fact the original patta
standing in the name of Palani @ Palaniyandi had also been
marked. On the other hand, the defendant examined two
witnesses to show that the he is in possession of the suit
property. The documentary evidence adduced by the plaintiff
cannot be displaced by the oral evidence. In the decision
reported in 2012 (6) CTC 303 (Kesavan V. Muthu), it was
held that when a property is transferred by parties inter vivos,
then the registered document evidencing the transfer of title
will be the main document of title and the patta issued, based
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8 S.A.(MD)NO. 913 OF 2014
upon the transfer of title will become the supporting document
to the title of the party. Normally, possession of patta signifies
lawful possession of the property by person in possession of
patta.
10.It is true that in the suit property, R.S.Pathy trees
are standing. In the chitta document filed by the plaintiff, it
was erroneously mentioned that Paddy is being grown. This is
certainly a discrepancy. But this erroneous entry in the chitta
document cannot disprove the claim of the plaintiff that he is
in possession of the suit property. The plaintiff's title has been
established. He has also filed a host of revenue documents
indicating that the revenue department has recognised the
possession of his vendor. By virtue of Ex.A.5 sale deed dated
10.06.2010, the plaintiff stepped into the shoes of his vendor
Palani @ Palaniyandi. Therefore, the substantial questions of
law are answered in the favour of the appellant and the
judgment and decree impugned passed by the first appellate
Court are set aside and the suit is decreed as prayed for.
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9 S.A.(MD)NO. 913 OF 2014
11.This second appeal is allowed. No costs.
29.06.2021
Index : Yes / No
Internet : Yes/ No
skm
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.
To:
1. The Subordinate Judge,
Pudukottai.
2. The District Munsif,
Pudukottai.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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10 S.A.(MD)NO. 913 OF 2014
G.R.SWAMINATHAN, J.
skm
S.A.(MD)No.913 of 2014
29.06.2021
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