Karudiyan vs S.Muthaiah
2021 Latest Caselaw 18293 Mad

                                                                                  SA(MD)No.498 of 2021

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 Dated: 07.09.2021

                                                         CORAM

                        THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA


                                                 S.A(MD)No.498 of 2021
                                             and C.M.P(MD)No.6649 of 2021
                     1. Karudiyan
                     2. A.Velu
                     3. A.S.Mariappan
                     4. V.Mariappan                            ... Appellants/Appellants/Defendants
                                                       Vs.
                     S.Muthaiah                                ... Respondent/Respondent/Plaintiff

                     PRAYER:- Second Appeal is filed under Section 100 of C.P.C against the
                     judgment and decree dated 21.02.2020 passed in A.S.No.54 of 2015 on the
                     file of the Additional Sub Judge,Tirunelveli confirming the judgment and
                     decree dated 20.04.2015 passed in O.S.No. 531 of 2009 on the file of the
                     Principal District Munsif, Tirunelveli.

                                         For Appellants      : Mr.T.Selvan
                                         For Respondent/
                                             Caveator        : Mr.S.P.Maharajan

                                                     JUDGMENT

The defendants, who were unable to convince both the trial court and

the appellate court to allow the suit for declaration and recovery of

possession filed by them, have come up with this Second Appeal against the

plaintiff.

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

2. For the sake of convenience, the parties are referred to as per their

ranking in the original suit.

3. The case of the plaintiff is that the suit property was purchased by

him through a registered sale deed dated 26.04.1980 and he was in

possession and enjoyment till 31.01.2001. The 1st defendant was already

known to the plaintiff through his wife's brother. The defendants 1 and 2

were also looking after the lands of the plaintiff's father- in-law, which is

adjacent to the plaintiff's land. According to the plaintiff, since he settled at

Chennai from 31.01.2001, he had entrusted the suit property to the

defendants to look after it. It is also stated that the original title deed dated

26.04.1980 was handed over to the 1st defendant for the purpose of effecting

mutation in the revenue records. It is his further case that the 1st defendant

in connivance with the 2nd defendant had forged the signature of the plaintiff

and had executed a sale deed in favour of the 1 st defendant. The plaintiff

decided to sell the property and therefore, he applied for encumbrance

certificate on 23.12.2008. At that time only, the plaintiff came to know the

fact that the 1st defendant in connivance with the 2nd defendant had forged

the signature of the plaintiff and executed a sale deed dated 04.01.2002 in

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

favour of the 1st defendant. The plaintiff had never executed any sale deed

and coming to know the forgery and fraud, the plaintiff issued a legal notice

to the 1st defendant. After issuance of legal notice to the 1st defendant, he

had executed a sale deed in favour of the 3rd defendant and in turn, the 3rd

defendant had executed a sale deed in favour of the 4th defendant on

14.07.2009. Hence, the plaintiff had filed the suit to declare that the sale

deed dated 04.01.2002 in the name of the 1 st defendant and the sale deed

dated 14.07.2009 in favour of the 4th defendant as null and void.

4. The 1st defendant has filed a written statement. It is claimed by the

first defendant that the suit property was purchased by the plaintiff on

26.04.1980. On 04.01.2002, the plaintiff had sold away the property to the

1st defendant. The signature in the sale deed is that of the plaintiff. On the

date of execution of the sale deed in favour of the 1st defendant, the plaintiff

had handed over the title deed dated 26.04.1980. According to the first

defendant, from the date of purchase, the 1st defendant was in possession

and enjoyment of the suit property. On the basis of the application given by

the 1st defendant, the patta had been transferred in the name of the 3 rd

defendant. On 08.06.2009 he had executed a power deed in favour of the 3rd

defendant and he, in turn, had sold the property to the 4 th defendant.

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

According to the first defendant, the suit is not maintainable either in law or

on facts.

5.Though the fourth defendant has filed separate written statement,

he has adopted the averments made by the first defendant. According to the

fourth defendant, on 08.06.2009 the first defendant had executed a power

deed in favour of the 3rd defendant and that the 3rd defendant had sold the

property to him. It is claimed by the fourth defendant that from the date of

purchase, he is in possession and enjoyment of the property. After

execution of the sale deed in favour of the 1st defendant, the plaintiff was

never in possession and enjoyment of the schedule property. Hence the

plaintiff does not know whether the suit schedule property is nanja property

or punja property and hence, the fourth defendant had prayed for dismissal

of the suit.

6. The Trial Court framed as many as 6 issues:

i) Whether the sale deed dated 04.01.2002 is liable to be declared null and void.

ii) Whether the Court fee paid is deficit

iii) Whether the suit is barred by limitation

iv)Whether the suit is bad for non-joinder of necessary parties

v) To what other relief

vi) Whether the plaintiff is entitled to get the relief to declare the sale deed dated 14.07.2009 as null and void

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

7. Before the Trial Court the plaintiff had examined himself as PW.1

and the Special Sub Inspector of Police one Mohan was examined as PW. 2

and one Finger Print Expert Vijayarani was examined as PW.3. The

documents Ex.A.1 to Ex.A.9 were marked.

8. On the side of the defendants 4th defendant Mariappan was

examined as DW.1 and the office staff of the Sub Registrar one

Senthilkumar was examined as DW.2 one Nainar was examined as DW. 3

and one Subha was examined as DW.4 The documents Ex.B.1 to B.8 were

marked. Ex.X.1 was marked throughPW2 and Ex.X.2 was marked through

PW.3 and Ex.X.3 to Ex.X.5 were marked through DW.2. The Trial Court

after considering the oral and documentary evidence on both sides decreed

the suit with costs.

9. The defendants filed A.S. No.54 of 2015 on the file of the

Additional Sub Court, Tirunelveli. Among other grounds the defendants

specifically contended that suit for declaration seeking to declare the sale

deed dated 04.01.2002 as null and void ought to have filed within a period

of 13 years and that it was barred by limitation as per the article 59 of the

limitation Act. The Trial Court finding that it is the case of the plaintiff

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

that he came to know of the execution of the plaint dated 04.01.2002 only

on 23.12.2008 when he applied for encumbrance certificate is acceptable

and returned a finding that the defendants had not rebutted the same and

held that the suit is not barred by limitation. Further the Trial Court has held

that the plaintiff had proved his case by examining PW.2, the Special Sub

Inspector and marking Ex.X.1, First Information Report and by examining

PW3/expert proving that the finger print found in the sale deed dated

04.01.2002 does not tally with him and that had belonged to one

Nellaiappan by marking Ex.X2. The Trial Court had rendered a categorical

finding that the sale deed dated 04.01.2002 in favour of the first defendant

was not examined by the plaintiff and that sale deed was executed

fraudulently.

10. Thus answering the issues in favour of the plaintiff had declared

the sale deed dated 04.01.2002 and the subsequent sale deeds as null and

void.

11. The appellate Court also concurred with the view of the Trial

Court holding that the plaintiff had proved that he has not executed sale

deed dated 04.01.2002 and that the suit had been filed within period of

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

limitation and dismissed the appeal filed by the defendants, against the

concurrent findings of both the Courts below the present second appeal has

been filed by the defendants.

12. Mr.T.Selvan, learned counsel appearing for the appellants/

defendants and Mr.S.P.Maharajan, learned counsel for the

respondent/Caveator and perused the materials on record.

13. The learned counsel for the appellant would contend that the

Courts below erred in relying on Ex.X.2/Expert opinion without comparing

it with the admitted thumb impression of the plaintiff. The Courts below

failed to take into consideration that the original documents were handed

over to by the plaintiff to the defendants .

14. Per contra, the learned counsel for the respondents would submit

that the plaintiff by categorical evidence had explained how and in what

manner the documents went into the hands of the plaintiff and further, by

examining PW2/Special Sub Inspector of Police and PW3/expert had

proved that the thumb impression on the sale deed dated 04.01.2002 was

not that of the plaintiff and that it was that of one Nellaippan, thereby

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proved that the sale deed was not executed by the plaintiff. It is a clear case

of fraud committed by the defendants. One Nellaiappan in collusion with

the defendants had impersonated himself to be plaintiff and had executed

fraudulent sale deed. The plaintiff came to know of the sale deed only when

he applied for Encumbrance Certificate and the suit has been filed within a

period of limitation.

15. The Courts below after pursuing the oral and documentary

evidence have come to definite conclusion that the plaintiff had established

his case by proving that he has not executed sale deed and the sale deed had

been created by the defendants by impersonation and fraud. Further the

Courts have held that the suit is within the period of limitation.

16. In S.P.Chengalvaraya Naidu .vs. Jagnath (1994)1 SCC 1, the

Apex Court has held that the Courts of law are meant for imparting justice

between the parties. One who comes to Court, must come with clean hands.

In the case on hand, the Courts below have held that the defendant had

refuted the claim of the plaintiff based on the sale deed which was found to

be created by impersonation . The defendant had not come to the Court with

clean hands.

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

17. In the opinion of this Court, this Court finds no error in the

factual and legal findings recorded by the Courts below. The appellant has

not made out any substantial question of law to admit the second appeal.

18. The Hon'ble Apex Court in 2015 (16) SCC (Ashok Rangnth

Magar Vs. Shrikant Govindrao Sangvikar) has held that if the High Court

is satisfied that no substantial question of law is involved, it shall dismiss

the Second Appeal even without formulating substantial question of law.

The above view has been confirmed in the case of Kirpa Ram (Deceased)

through legal representatives and others Vs. Surendra Deo Gaur and

Others reported in (2020 SCC Online SC 935).

19. As stated above this Court does not find any error in the findings

of the Courts below. There is no substantial question of law involved in the

appeal. This Court concurred with the findings of the Trial Court as well as

the appellate Court. In the result second appeal stands dismissed without

being admitted. No costs. Consequently connected miscellaneous petition is

also closed.

07.09.2021 Index : Yes/No Internet: Yes/No CM

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

To:

1. The Additional Sub Judge,Tirunelveli.

2. The Principal District Munsif, Tirunelveli.

https://www.mhc.tn.gov.in/judis/ SA(MD)No.498 of 2021

A.D.JAGADISH CHANDIRA. J.,

CM

Pre-delivery judgment made in S.A(MD)No.498 of 2021 and C.M.P(MD)No.6649 of 2021

07.09.2021

https://www.mhc.tn.gov.in/judis/