Madras High Court
Sekar vs Murugesan on 1 October, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 1.10.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
S.A.(MD) No.612 of 2021
and
C.M.P.(MD) No.8175 of 2021
Sekar Appellant
vs.
1. Murugesan
2. Jegan
3. Vinoth Respondents
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 30.11.2020 passed in A.S.No.61 of 2020
on the file of the Additional District and Sessions Judge, Fast Track
Court, Tenkasi confirming the Judgment and decree dated 20.7.2020
passed in O.S.No.79 of 2018 on the file of the Principal Sub Judge,
Tenkasi.
For Appellant : Mr.S.S.Thesigan
JUDGMENT
The plaintiff, who failed in both the courts below in getting a
decree for declaration and injunction in respect of the suit property,
has filed the present Second Appeal questioning the correctness of the
concurrent findings of the courts below.
2. The factual background is as under:-
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(i) The suit property originally belonged to one Arunachalam as
his ancestral property and he had been in possession and enjoyment of
the same by paying kist etc. He had bequeathed the same to his son
Manikandan through his Will dated 13.2.2008 and subsequently, he
died on 6.9.2012. Since then, the said Manikandan was in possession
and enjoyment of the same by getting patta in his name and paying
kist etc. and on 30.9.2015, the said Manikandan had sold the same to
the plaintiff on 30.9.2015 and from then, the plaintiff had been in
possession and enjoyment of the same.
(ii) Whileso, the first defendant, who is the legal heir of the sister
of the said Arunachalam, without any legal right over the suit property,
claims right and title to the same in collusion with defendants 2 and 3
and had been interfering with the possession and enjoyment of the
plaintiff from 12.2.2018 onwards. The plaintiff had lodged a complaint
to the the Joint Sub Registrar I, Tenkasi on 14.2.2018. Except the
plaintiff, nobody else has got any right or title over the suit property
and since the defendants had been attempting to interfere with the
possession and enjoyment of the plaintiff, the present suit had been
filed.
(iii) The defendants filed written statement contending as
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under:-
The suit is not maintainable. The Will dated 13.2.2008 alleged
to have been executed by Arunachalam is a fake and fraudulent one.
The said Arunachalam had sold the suit property to the first defendant
and his wife Lakshmi Ammal on 16.4.1973 and since then, they had
been in possession and enjoyment of the same and on the death of his
wife Lakshmi, her legal heirs viz., the first defendant and also
defendants 2 and 3 had been enjoying the share of the suit property
belonged to Lakshmi Ammal. Whileso, the subsequent Will dated
13.2.2008 had been created fraudulently to usurp the suit property
already sold to the first defendant and his wife and based upon such
Will, the sale deed dated 30.9.2015 in favour of the plaintiff had also
been introduced. In fact, the alleged vendor Manikandan himself had
not acquired title to the suit property and thereby the plaintiff, who
claims title through the sale deed executed by the said Manikandan
has no right or title to the suit property. The plaintiff and the said
Manikandan, in collusion with each other, had filed the present suit and
hence, it is liable to be set aside.
(iv) On the above pleadings, the Trial Court had framed the
following issues for consideration:-
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(1) Is it true that first defendant and his wife had purchased the suit
property through sale deed dated 16.4.1973?
(2) It is true that the sale deed dated 16.4.1973 was acted upon?
(3) Whether the sale deed dated 30.9.2015 was a fraudulent one?
(4) Whether the plaintiff is entitled to the declaration sought for?
(5) Whether the plaintiff is entitled to permanent injunction sought for?
(v) During the Trial, the plaintiff examined himself as PW1 and
marked 12 documents while the first defendant examined himself as
DW1 and marked 2 documents.
(vi) On analysis of the oral and documentary evidence, the Trial
Court had dismissed the suit, aggrieved against which, the plaintiff had
preferred appeal in A.S.No.61 of 2020 on the file of the Additional
District and Sessions Judge, Fast Track Court, Tenkasi.
(vii) In the appeal, the plaintiff claimed that the Trial Court had
not properly appreciated the evidence to come to a conclusion that the
Will Ex.A2 and the sale deed Ex.A5 are not valid ones and the Trial
Court had erred in coming to the conclusion that no evidence is
produced by the plaintiff to prove his possession when Ex.A4 is
produced by the plaintiff to prove that kist had been paid by
Manikandan and when the defendants had not produced any
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documentary evidence to prove that they were in possession and
enjoyment of the suit property based on Ex.B1 sale deed, the Trial
Court ought to have come to a conclusion that Ex.B1 was not acted
upon.
(viii) The following points were taken up for consideration in the
Appeal by the appellate court:-
(1) Whether the Will Ex.A2 is a true and valid one?
(2) Whether the plaintiff is entitled to the relief of declaration and
permanent injunction in respect of the suit property?
(3) Whether the appeal is allowable or not?
(ix) The Appellate Court, on reconsidering the oral and
documentary evidence, had concurred with the finding of the Trial
Court, aggrieved against which, the present Second Appeal has been
filed by the plaintiff.
3. Learned counsel for the appellant/plaintiff would submit that
Ex.A12/B1 is a sham and nominal document which did not confer any
title on the respondents/defendants and such document was not acted
upon and no revenue records were mutated pursuant to the said sale
and the courts below have committed error in disbelieving the Will
Ex.A2 and the courts below have failed to appreciate the fact that the
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physical possession of the suit property was remaining with the
predecessors in title of the plaintiff and with the plaintiff after
execution of Ex.A5.
4. Having heard the learned counsel for the appellant/plaintiff
and perused the materials available on record, this court finds that the
plaintiff claims right and title to the suit property through Ex.A5 sale
deed dated 30.5.2015 executed by one Manikandan, son of
Arunachalam, who claims to have acquired the same through a Will
Ex.A2 dated 13.2.2008 executed by his father and the plaintiff intends
to take shelter under the receipts for payment of kist, etc. to prove
that possession of the suit property was with the predecessors in title
and subsequently with the plaintiff, whereas, the defendants claim
their right and title to the suit property based on Ex.B1 sale deed
dated 16.4.1973 executed by the said Arunachalam himself, the
original owner of the suit property.
5. The undisputed fact is that the suit property originally
belonged to one Arunachalam as it is his ancestral property. The
dispute is between the execution of two documents viz., A2 Will dated
13.2.2008 and Ex.B1 sale deed dated 16.4.1973. The claim of the
plaintiff is based on the Will Ex.A2 dated 13.2.2008 executed by the
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said Arunachalam, a document, based on which, Manikandan, son of
the said Arunachalam is said to have acquired title to the suit property
and had executed the sale deed dated Ex.A5 dated 30.9.2015 in
favour of the plaintiff. The defendants base their claim on Ex.B1 sale
deed dated 16.4.1973 executed by the said Arunachalam himself in
favour of the first defendant and his wife Lakshmi Ammal.
6. The document executed earlier in point of time is Ex.B1 in the
year 1973 itself and it is a registered one which had never been
challenged by the plaintiff and thereby the Trial Court had come to a
conclusion that it was acted upon. After executing a sale deed in the
year 1973 itself, the original owner Arunachalam himself had lost his
right over the suit property and thereby the Will claimed by the
plaintiff to have been executed by the said Arunachalam cannot be
deemed to be a valid document and the sale deed executed by his son
Manikandan in favour of the plaintiff, on the strength of the said Will,
cannot bind the defendants.
7. Having so observed, the Trial Court found that the documents
filed by the plaintiff in support of his possession viz., receipts and other
documents showing payment of receipt will not come to his rescue
since he can, if at all, be a trespasser having not proved the right and
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title of his vendor himself and thereby rejected the claim of declaration
and permanent injunction.
8. The appellate court had dealt with the Will Ex.A2 in depth and
found that it only contains the thumb impression alleged to be that of
the testator of the Will and no signature is found and the said Will had
not been properly proved to be valid in the eye of law and further,
copy of the Will alone has been produced in court and there is no
proper explanation as to the whereabouts of the original Will and that
no witness to the Will was examined in the suit to prove the
genuineness of the Will and thereby the plaintiff had not taken any
steps to prove the Will, moreso when Ex.B1 sale deed contains the
signature of the said Arunachalam and thereby disbelieved the Will,
Ex.A2.
9. Further, the appellate court has also found that the plaintiff
has not initiated to disprove the execution of the sale deed Ex.B1
except contending that it was not acted upon due to non mutation of
revenue records. In this regard, the appellate court has rightly found
that mere non mutation of revenue records will not be a ground to
come to a conclusion that the sale deed was not acted upon. It has
further rightly observed that the original title holder viz., Arunachalam
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himself had lost his right after executing the sale deed Ex.B1 and
thereby he is estopped from executing any Will in respect of the same
property. Observing so, the appellate court had rightly concurred with
the finding of the Trial Court and declined to grant the relief of
declaration and permanent injunction.
10. This court does not find any error or infirmity in the findings
of the courts below. In the opinion of this court, the Appellant has not
made any substantial question of law to admit this Second Appeal.
The Hon'ble Apex Court in Kirpa Ram (D) Tr.Lrs. vs Surender
Deo Gaur (2020 Scc OnLine SC 935) has categorically held as
under:-
"23. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the
High Court if it is satisfied that the case
involves a substantial question of law. The
substantial question of law is required to be
precisely stated in the memorandum of appeal.
If the High Court is satisfied that such
substantial question of law is involved, it is
required to formulate that question. The appeal
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has to be heard on the question so formulated.
However, the Court has the power to hear
appeal on any other substantial question of law
on satisfaction of the conditions laid down in
the proviso of Section 100 of the Code.
Therefore, if the substantial question of law
framed by the appellants are found to be
arising in the case, only then the High Court is
required to formulate the same for
consideration. If no such question arises, it is
not necessary for the High Court to frame any
substantial question of law. The formulation of
substantial question of law or re- formulation of
the same in terms of the proviso arises only if
there are some questions of law and not in the
absence of any substantial question of law. The
High Court is not obliged to frame substantial
question of law, in case, it finds no error in the
findings recorded by the First Appellate Court."
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11. In view of the above, the Second Appeal fails and is,
accordingly, dismissed without being admitted. No costs. The
connected Miscellaneous Petition is closed.
1.10.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised 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. Additional District and Sessions Judge,
Fast Track Court,
Tenkasi.
2. Principal Sub Judge,
Tenkasi.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
S.A.(MD) No.612 of 2021 and
C.M.P.(MD) No.8175 of 2021
1.10.2021.
https://www.mhc.tn.gov.in/judis/
