Madras High Court
Malar vs Pasupathy (Died) ... 1St on 9 November, 2021
S.A(MD)No.34 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.34 of 2011
and M.P(MD)No.1 of 2011
Malar ... Appellant/Respondent/Plaintiff
Vs.
1.Pasupathy (died) ... 1st Respondent/Appellant/Defendant
2.Vaithyanathan
3.Ramalingam
4.Jayaraman
5.Iya @ Venugopalan ... Respondents 2 to 5/
Lrs of the deceased first respondent
(RR 2 to 5 are brought on record as Lrs of the
deceased sole respondent vide order
dated 03.12.2013 in M.P(MD)Nos.2 to 4 of 2011)
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 12.07.2010, passed in
A.S.No.20 of 2010, on the file of the Additional Subordinate Court,
Kumbakonam, reversing the judgment and decree dated 20.01.2010, passed
in O.S.No.412 of 2005, on the file of the First Additional District Munsif
Court, Kumbakonam.
1/20
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S.A(MD)No.34 of 2011
For Appellant : Mr.A.Arumugam
For RR 2 to 5 : Mr.G.Gomathi Sankar
JUDGMENT
This second appeal has been directed against the Judgment and
decree, dated 12.07.2010 passed in A.S.No.20 of 2010, by the Additional
Sub-Court, Kumbakonam, wherein, the Judgment and decree, dated
20.01.2010, passed in O.S.No.412 of 2005, by the First Additional District
Munsif Court, Kumbakonam, are reversed.
2.The appellant herein as plaintiff has instituted a suit in O.S.No.412
of 2005, on the file of the trial Court for the relief of permanent injunction,
wherein, the first respondent has been shown as the sole defendant.
3.Pending the second appeal, the first respondent died and his legal
heirs were brought on record as appellants 2 to 5.
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S.A(MD)No.34 of 2011
4.In the plaint, it is averred that the appellant / plaintiff is in
possession and enjoyment of the suit property and she has purchased the suit
property under a sale deed, dated 25.04.2005 for proper and valid
consideration. The suit property was originally owned and possessed by
A.R.Ramasamy and the same was under the cultivation of the plaintiff's
grandfather Govindasamy Padayachi, as a cultivating tenant. They have
entered into a lease agreement, dated 23.05.1953. Till the life time of the
plaintiff's grandfather, he was in possession and enjoyment of the same as a
cultivating tenant. After his death, his son, the plaintiff's father Boominathan
continued to enjoy the same as a tenant and was not paying the rent to the
original owner. As the plaintiff's father became unwell and was not in a
position to cultivate the suit property, he has sub-leased the suit property to
one Asokan, S/o.Pakkirisamy, who is the husband of the plaintiff, under a
sub-lease deed dated 07.07.1995. The plaintiff and her husband continued to
cultivate the suit property as absolute owners till the year 2005 and the
plaintiff has purchased the property by way of a valid sale deed from one
S.Subramania Chettiar, the power agent of Laila, who is the daughter of
A.R.Ramasamy Chettiar. The said Laila inherited the property from
A.R.Ramasamy Chettiar by settlement deed, dated 12.01.1970. The plaintiff
is in absolute possession and enjoyment of the property and in the
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S.A(MD)No.34 of 2011
meanwhile, the defendant has filed C.O.P.No.215 of 2005 and tried to
dispossess the plaintiff from the suit property. Since the defendant has tried
to disturb the peaceful possession and enjoyment of the plaintiff, the present
suit has been instituted for the relief as sought for in the plaint.
5.In the written statement filed on the side of the defendant, it is
averred that the defendant has not disputed the original ownership by
A.R.Ramasamy and the cultivating tenancy by the plaintiff's grandfather and
subsequently, by the plaintiff's father Boominthan and the relationship of the
parties are also not disputed by the defendant. The plaintiff's purchased the
suit property under the sale deed, dated 25.04.2005, is also not disputed by
the defendant. The only defence of the defendant is that the defendant
entered into a sub-lease agreement with the plaintiff's father Boominathan
under a sub-lease deed, dated 16.08.1989 and the actual possession is with
the defendant and he is cultivating the suit land. In order to evict the
defendant by a cross cut method, the plea of sub-lease deed in favour of the
plaintiff's husband is invented by the plaintiff herein. The defendant also
denied the plaintiff's claim of actual possession of the suit property.
Therefore, the defendant contended that his actual possession of the suit
property, which is lawful, cannot be disturbed by the plaintiff except under
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S.A(MD)No.34 of 2011
due process of law and there is no merit in the suit and the same deserves to
be dismissed.
6.On the basis of the rival pleadings raised on either side, the trial
Court has framed necessary issues and after analysing both the oral and
documentary evidence, has allowed the suit. Against the Judgment and
decree passed by the trial Court, the defendant as appellant has preferred an
Appeal Suit in A.S.No.20 of 2010, on the file of the first appellate Court.
7.The first appellate Court, after hearing both sides and upon
reappraising the evidence available on record, has allowed the appeal and
thereby set aside the Judgment and decree passed by the trial Court. Against
the Judgment and decree passed by the first appellate Court, the present
second appeal has been preferred at the instance of the plaintiff as appellant.
8.At the time of admitting the present second appeal, this Court had
framed the following substantial questions of law for consideration:
1) Whether the judgment of the first appellate court
is not a judgment in the eye of law, as it does not conform
to the requirements of Order 41 Rule 31 of Civil Procedure
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S.A(MD)No.34 of 2011
Code insofar as the points for determination and the
decisions thereon do not find incorporated in the
judgment?
2.Whether the first appellate court has given a
perverse finding that the respondent/defendant and not the
appellant/plaintiff who is in possession of the suit
property?
3.Whether the findings of the first appellate court
that the respondent/defendant is a tenant is perverse?
4.Whether the finding of the first appellate court that
the deed of assignment of lease-hold right allegedly
executed by the father of the appellant/plaintiff in favour of
the respondent/defendant is genuine and legally valid is
unsustainable in law?"
9.The learned counsel appearing for the appellant/plaintiff contended
that the first Appellate Court has not considered the well reasoned Judgment
and Decree of the trial Court, wherein proper points have been framed for
consideration and a well-considered decision has been rendered by the trial
Court, which is appropriate in the eye of law. The first Appellate Court has
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S.A(MD)No.34 of 2011
shifted the burden of proof on the plaintiff to disprove Ex.B.1 and on the
basis of the expert's opinion, the first Appellate Court has mechanically
come to a conclusion that Ex.B.1 was proved. Ex.B.1 was not proved in the
manner known to law and Ex.B.1 is in admissible in evidence and it is an
out right sale of lease hold right and it involves transfer of interest in
immovable property and it has to be compulsorily registered under Section
17 of the Registration Act and it is fatal to its admissibility. The First
Appellate Court ought to have rejected the claim made by the appellant on
the ground of non-registration and the same has not been properly stamped
and hence, the same cannot be taken as an admitted evidence. There is a
contradictory fact by the defendant and when the original lessee namely,
Boominathan has paid the rent in the year 1990 also which would show that
the original lease holder is Boominathan, the document alleged to have been
executed in the year 1989 is a forged one. The trial Court has considered the
genuineness of Ex.B.1 and also considered the witnesses and passed an
order, which ought not to have been reversed.
10.The learned counsel appearing for the appellant / plaintiff also
submitted that the alleged sub lease deed executed by the plaintiff's father in
the year 1989 cannot be accepted, as the said document has not been
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S.A(MD)No.34 of 2011
registered as per the Registration Act. Ex.B.1 is not a valid document and it
is not proved properly. The said lease deed alleged to have been executed by
the father of the plaintiff is a forged document, as the plaintiff's father has
not executed any such sub lease or transfer of lease and the said rights
cannot be transferred from one person to another. If the said document has
been registered, then it could be considered and when the consideration is
alleged to have been paid by the defendant, the said document has to be
compulsorily registered and the said document ought not to have been taken
into account by the first Appellate Court.
11.The learned counsel appearing for the appellant / plaintiff further
submitted that according to the defendant, he entered into a sub-lease
agreement with the plaintiff's father Boominathan under a unregistered
sub-lease. The name of the original owner has not been stated anywhere in
the written statement and if there is a transfer of lease which has to be
registered. That apart, the plaintiff's father itself got the property as a
cultivating tenant, he cannot have any right to transfer the lease or release it
to the defendant. When it is alleged to have been written as release deed and
as huge consideration has been paid, which is beyond the market value of
the property, the same would have been registered to safe guard the interest
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S.A(MD)No.34 of 2011
of the defendant. This itself would show that the said document is a forged
one. It is further stated that it is highly improbable and there is a statutory
bar under Section 17 of the Registration Act and the defendant has no right
whatsoever in the property. If he is not a tenant and he is having a right over
the property by way of release deed, then Ex.B.1 cannot be considered
which is inadmissible in law.
12.The learned counsel appearing for the appellant / plaintiff further
submitted that the findings of the trial Court regarding the genuineness of
the document was considered and found not an old document as it is a
created one and the papers and ink are not faded and looks new and this has
been discussed in detail in the trial Court Judgment clearly. The expert
opinion has been erroneously taken into account by the Appellate Court and
reversed the Judgment of the trial Court.
13.It is further seen that the experts opinion regarding the admitted
signature in Ex.A.5 series, wherein, 11 documents are admitted when Ex.A.4
differs with the admitted signature. The plaintiff submitted that the experts
have gone beyond the Courts direction which has not been ordered by the
Court to do so. The trial Court has accepted the said contention of the
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S.A(MD)No.34 of 2011
appellant and rejected the expert's opinion which has to be looked into. The
first Appellate Court has not rejected the said claim, but had observed that it
cannot be a proper appreciation of evidence rendered by the trial Court and
rejecting the same on filmsy grounds is to be interfered stating that the
disputed signature in Ex.A.4 is not a contemporaneous record, the finding of
the first Appellate Court is rejected.
14.The defendant has to establish the case of sub lease by the
plaintiff's father by substantiating clinching evidence and also the defendant
failed to examine himself and the power agent, who could speak on the same
on hearsay and the Appellate Court has wrongly come to the conclusion that
D.W.1 is the son of the defendant, who can let in evidence, as this power
agent and further the case is not acceptable and he cannot give evidence on
facts relating to the personal knowledge of the father. When the defendant
has not proved his case beyond doubt against the findings of the trial Court,
the same should not be accepted by the first Appellate Court by reversing
the Judgment and Decree of the trial Court.
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S.A(MD)No.34 of 2011
15.Regarding the appreciation of evidence, the learned counsel for the
appellant has relied on the Judgment of the Hon'ble Supreme of India in
Santhosh Hazari Vs. Purushottam Tiwari (Dead) by Lrs reported in 2001
(1) CTC 505 and the Judgment of this Court in Munivel Vs. Munusamy
Mudaliar and others reported in 1997 (1) CTC 26.
16.The learned counsel appearing for the respondents / defendants
contended that the original owner is A.R.Ramasamy and the plaintiff's father
Boominathan has given a release deed by releasing his rights as a cultivating
tenant to the defendant for a consideration of Rs.16,400/-, but it is an
unregistered document. The respondents / defendants further submit that the
sub-lease agreement has been entered into between the defendant and
Boominathan in the year 1989 and from 16.08.1989 onwards, the defendant
is in actual possession and is cultivating the said land. The trial Court has
erroneously decreed the suit, but the first appellate Court has rightly
reserved the same and therefore, the Judgment and decree passed by the first
appellate Court is not liable to be interfered with and the first Appellate
Court has rightly come to the conclusion that the plaintiff is not entitled for
the relief of permanent injunction.
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S.A(MD)No.34 of 2011
17.The learned counsel appearing for the respondents / defendants
would submit that the defendant is claiming right over the property through
the said document Ex.B.1, through which a sub lease has been given to him,
even though it has been stated as release deed, it is a sub lease. He further
submits that the plaintiff was never in possession of the property and the
defendant is in possession from 16.08.1989 and he is a cultivating tenant
and he is still in possession of the same. The kist receipts are filed before the
trial Court and also filed a caveat petition on 18.07.2005, when the plaintiff
created disturbance on the possession of the defendant. The plaintiff has
wrongly created sub lease deed in favour of her husband by giving an
anti-date is not valid and binding on the defendant and only the plaintiff has
created the sub lease, who never acted as a cultivating tenant, at any point of
time. The actual possession is with the defendant and the certificate issued
by the Village Administrative Officer would prove the same. He further
submits that the lands have been cultivated and the paddies are being
harvested by him. Suppressing all the material facts, the plaintiff has come
out with the suit and the trial Court has wrongly come to the conclusion and
decreed the suit and the first Appellate Court, by considering the expert's
opinion, has rightly allowed the first appeal in favour of the defendant and
prayed for dismissal of the Second Appeal.
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S.A(MD)No.34 of 2011
18.Heard the learned counsel for the appellant and the learned counsel
for the respondents and perused the materials available on record.
19.It is the case of the appellant / plaintiff that she is in possession and
enjoyment of the suit property and she has purchased the suit property under
a sale deed, dated 25.04.2005 for proper and valid consideration. It is the
defence of the defendant that the defendant had entered into a sub-lease
agreement with the plaintiff's father Boominathan under a sub-lease deed,
dated 16.08.1989 and the actual possession is with the defendant and he is
cultivating the suit land. On going through the document Ex.B.1, dated
16.08.1989, it is seen that the said Boominathan has released his rights to
the defendant as a cultivating tenant by receiving a consideration of
Rs.16,400/- and two persons have attested the same, as witnesses, is not
proved and it is inadmissible. From the year 1989, till the suit is filed in the
year 2005, the defendant has not mutated any revenue documents to prove
his tenancy. Only after the suit came to be filed, he has approached the
Thasildar, Kumbakonam for mutating his name as a cultivating tenant from
the original owner which is pending from the year 2005 till the date when
the matter is said to have been pending. The kist receipts have been marked
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S.A(MD)No.34 of 2011
as Ex.B.4 to B.6. Ex.A.9 is a petition filed under Form 5 and Ex.A.10 is the
counter filed by one Laila. The said Laila is none other than the daughter of
A.R.Ramasamy Chettiar, who has settled his property in her favour and she
becoming the owner of the property, is in dispute. Even though the Village
Administrative Officer had issued a certificate to show that the defendant
has cultivated some crops in the land and the same is ripe for harvesting, is
not being supported by any oral evidence, who has not been examined by
the defendant to prove his case. The failure on the part of the defendant who
had examined the VAO, the certificate issued by the VAO is not acceptable
on the ground that no revenue documents such as chitta and adangal to
prove the possession and enjoyment.
20.It is also further seen that the defendant's name has been wantonly
omitted in the documents and as per the release deed executed by
Boominathan, he is in possession is not proved. The handwriting expert's
opinion is also rightly appreciated by the trial Court and the first Appellate
Court has reversed the same when the expert authorities have gone beyond
the directions issued by the Court. Considering the vague averments of the
defendant, the first Appellate Court, the defendant without examining the
VAO based on revenue records, had come to a conclusion that the defendant
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S.A(MD)No.34 of 2011
is in actual possession of the property and the same is liable to be rejected,
as devoid of merits. The defendant has miserably failed to establish his
tenancy as a cultivating tenant through Boominathan. Even assuming that
tenancy is in the name of Boominathan, as the said Boominathan also died,
the sub-lease executed by him comes to an end. When the said original
owner has settled the property in favour of his daughter, who in-turn, has
executed a sale deed in favour of the plaintiff and now the plaintiff being the
owner of the property, she has very well established her right as a owner.
Kist receipt has been filed by one Laila on 08.10.1990 and the same has
been marked as Ex.B.4-and on perusal of the same, it is seen that the receipt
has been paid in the name of Laila by Boominathan. No piece of document
has been produced by the defendant to show that he had been in continuous
possession as has tenancy right from Laila and the claim of the defendant is
also not accepted and rejected. Counter-affidavit has been filed by Laila,
which is marked as Ex.A.10, in which, it is stated that the property in
R.S.No.134/1A, 80 cents, R.S.No.134, 1-1/3 cents were under the lease of
Boominatha Padayachi and after his death, his daughter came forward to
purchase the same from the said Laila and the said Laila has also sold the
property on 25.04.2005 by a registered document. Hence, the said Laila is
not all the owner of the property nor answerable to the claim and the
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S.A(MD)No.34 of 2011
defendant is not a tenant in the property and his claim is unsustainable. That
being the case, when Laila herself had stated that she herself is not at the
owner of the property, who had inherited the property by way of a settlement
deed sold it to the defendant failed to prove the existence of cultivating
tenancy of Laila and the defendant cannot canvass that the cultivating
tenancy is in existence and the Appellate Court has wrongly come to the
conclusion that the defendant is entitled to be in possession and enjoyment
of the suit property.
21.From the evidence of Laila also, it is found that the defendant was
never in possession and enjoyment of the property as a cultivating tenant as
a lease holder. The same was also accepted by the trial Court and the
revenue records do not show light on the possession of the said defendant,
as all the documents stand only in the name of Boominathan and hence, this
Court also comes to the conclusion that the defendant had failed to establish
his case and the Judgment of the first Appellate Court has to be reversed.
22.The evidence produced by the plaintiff would show that the
plaintiff is in possession of the property by producing the same from the
original owner and the defendant has not proved his possession by
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appropriate evidence is proved and it is a perverse finding of the first
Appellate Court and the same is hereby accepted and answered in favour of
the appellant / plaintiff. Based on the expert opinion, the first Appellate
Court has come to the conclusion that the said document, which is the
disputed one does not belong to contemporaneous period, the comparison
with the older documents and said that it is also accepted and it is also
perverse and it is also answered in favour of the plaintiff and the trial Court
observation is accepted and the first Appellate Court observation is
negatived. Hence, this Court comes to the conclusion that the findings of the
first Appellate Court is perverse and has not substantiated by proper
evidence when possession has not been proved by the defendant by any
revenue documents and alleging that he has sought for including his name as
a cultivating tenant and that itself would prove that the defendant is not a
cultivating tenant and the same is also rendered in favour of the plaintiff.
23.Regarding the prayer sought for by the appellant / plaintiff herein
to restrain the defendant from in any way interfering with her peaceful
possession and enjoyment of the suit property is hereby granted and the
Judgment of the first Appellate Court is hereby set aside and the Judgment
and Decree passed by the trial Court is upheld. The substantial questions of
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law are ordered accordingly in favour of the plaintiff and against the
defendants.
24.In fine, this second appeal is allowed without costs and the
Judgment and decree passed in A.S.No.20 of 2010, by the Additional
Sub-Court, Kumbakonam is set aside and the Judgment and decree, dated
20.01.2010, passed in O.S.No.412 of 2005, by the First Additional District
Munsif Court, Kumbakonam is restored. Consequently, connected
Miscellaneous Petition is closed.
09.11.2021
Index : Yes/No
Internet : Yes/No
ps
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.34 of 2011
To
1.The Additional Subordinate Court,
Kumbakonam.
2.The First Additional District Munsif Court,
Kumbakonam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.34 of 2011
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.34 of 2011
09.11.2021
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