Munusamy vs Subramani
2021 Latest Caselaw 19749 Mad

                                                                                   S.A.No.1177 of 2009




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                  Dated : 27.09.2021
                                                          CORAM
                                     THE HON'BLE Ms. JUSTICE R.N.MANJULA

                                                 S.A.No.1177 of 2009
                                                 and M.P.No.1 of 2009
                 Munusamy                                               ... Appellant/Plaintiff
                                                           Vs.
                 Subramani                                              ... Respondent/Defendant


                 Prayer: This Second Appeal is filed under Section 100 of Code of Civil
                 Procedure against the judgement and decree of the learned Principal Sub
                 Judge, Chengalpattu in A.S.No.77 of 2007 dated 15.04.2009 in reversing the
                 judgement and decree of the learned District Munsif Judge, Chengalpattu in
                 O.S.No.63 of 2000 dated 12.02.2007.
                                         For Appellant     : Mr.V.Raghavachari

                                         For Respondent    : No appearance

                                                    JUDGEMENT

(Heard through video conferencing)

This Second Appeal has been preferred against the judgement and

decree dated 15.04.2009 passed by the learned Principal Sub Judge,

Chengalpattu in A.S.No.77 of 2007 in reversing the judgement and decree

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S.A.No.1177 of 2009

dated 12.02.2007 passed by the learned District Munsif Judge, Chengalpattu in

O.S.No.63 of 2000.

2. The appellant was the plaintiff who filed the suit for declaration,

recovery of possession and permanent injunction in respect of the suit

property.

3. The averments of the parties in brief:-

The plaintiff has purchased the suit property by virtue of a registered

sale deed dated 15.10.1982 and he is in possession and enjoyment of the same.

The 'A' schedule property comprises 6 cents and out of which, a portion of 3

cents which is described under 'B' schedule is in dispute. It is submitted that

the defendant who does not have any title but owes his property to the west of

the suit property, had illegally trespassed into the 'B' schedule property. After

issuing pre-suit notice and filing a criminal complaint for trespass, the plaintiff

has filed the suit for the relief of declaration, recovery of possession along

with permanent injunction. The defendant has stated that the vendor of the

plaintiff is no one else than his brother Krishnan. His brother Krishnan is not

entitled to execute the sale deed in favour of the plaintiff all alone without the

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S.A.No.1177 of 2009

division of the property between himself and Krishnan by metes and bounds.

The plaintiff is not a bonafide purchaser and the sale deed is a sham and

nominal one.

4. Basing on the pleadings, the trial Court has framed the following

issues:-

1. Whether the plaintiff and his vendor were in possession of the

suit property?

2. Whether the sale deed EXA1 is binding upon the defendant?

3. Whether the plaintiff is entitle for declaration and possession of

the suit property?

4. Whether the judgment and decree dated 12.02.07 passed in

O.S.No.63/2000 are liable to be set aside?

5. During the course of the trial, on the side of the plaintiff, two

witnesses were examined as P.W.1 & P.W.2 and Exs.A1 to A5 were marked.

On the side of the defendant, one witness was examined as D.W.1 and Exs.B1

to B10 were marked.

6. At the conclusion of the trial, the learned trial Court has decreed the

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S.A.No.1177 of 2009

suit as prayed for. Aggrieved over that, the defendant has preferred the first

appeal before the First Appellate Court. The First Appellate Court reversed

the judgement of the trial Court and dismissed the suit by allowing the appeal.

Subsequently, the defendant has preferred this Second Appeal and the Second

Appeal has been admitted on the following substantial questions of law:-

a) Whether the lower appellate court is justified in rendering a finding as against admitted facts and whether its order is not opposed to Section 58 of Evidence Act?

b) When the title of the appellant's vendor is admitted by DW1, is the lower appellate court right in concluding that title of appellant was not established?

c) Whether the lower appellate court is right in merely extracting the citations and concluding that it does not apply to the facts of the case even without discussing its relevancy to the subject matter?

7. Mr.V.Raghavachari, learned counsel for the appellant submitted that

despite the trial Court has rendered a clear finding as to the title of the

appellant/plaintiff, the First Appellate Court has refused to give effect to

Section 58 of the Indian Evidence Act, 1872 and proceeded to record that the

plaintiff does not have any valid title. It is the further submission of the

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S.A.No.1177 of 2009

learned counsel that Ex.A1 – sale deed dated 15.10.1982 has not been

challenged by the defendant at any point of time and hence, he cannot deny the

title of the plaintiff.

8. On perusal of the records, it is seen that the plaintiff claims his title to

the suit property by virtue of his sale deed dated 15.10.1982. It is not in

dispute that the vendor of the plaintiff viz., Krishnan, is the brother of the

defendant. Despite Ex.A1 – sale deed mentions about the alleged assignment

given in favour of Krishnan in respect of the suit property, the said assignment

is not produced before this Court.

9. The one and only contention of the respondent/defendant is that he

himself and his brother Krishnan are the joint owners of the suit property and

hence, Krishnan has got no individual right to pass the entire title in respect of

the suit property.

10. The learned counsel for the appellant relies on the admission given

by the defendant during his cross examination, where he has stated that the

Government issued patta in the year 1973 to his brother Krishnan to the extent

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S.A.No.1177 of 2009

of 10 cents and thus 'A' schedule property was acquired by his brother.

Admittedly, 'A' schedule property comprises of 6 cents and not 10 cents.

Despite the respondent has stated in his evidence about the issuance of patta in

favour of his brother Krishnan, from his admission, it cannot be known

whether the property involved in the said patta relates to the suit property.

11. The appellant who is the plaintiff has got the burden to prove before

the Court that his vendor has got the complete title to convey the same in his

favour. He neither produced the assignment given in favour of his vendor

Krishnan nor has he called upon any witness from the Revenue Department to

speak on this. Admittedly, the respondent/defendant is in possession of 'B'

schedule property, on the footing that he has been in joint possession of the

same along with his brother Krishnan. Hence, the appellant/plaintiff cannot

claim any exclusive title on the same basing on the sale deed alone. Without

producing the assignment of his vendor, which is the parent document the

appellant cannot claim title in entirety.

12. In this suit filed by the plaintiff, the Government is not a party,

despite the parties are said to have been in enjoyment of the Government lands

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S.A.No.1177 of 2009

and thereafter, they got the patta conferred on them. Though admission of the

adverse party is the best evidence, if it does not correlate to the primary

evidence like the documentary evidence produced by the party to the suit, no

reliance can be attached to it. In that context, the learned First Appellate

Judge had opted not to rely on the admission given by the defendant. This

point has been clearly discussed with citations referred therein. Only when the

plaintiff proves his case, especially his origin of title and the right of his

vendor to execute the title deed in his favour, the onus will shift on the

defendant to rebut the same.

13. It is a settled position of law that the plaintiff has to prove his case.

The case of the plaintiff should stand on its own strength and not on the

weakness of the defendant’s case. In the absence of production of any anterior

document to Ex.A1 – sale deed, the claim of the plaintiff as to the relief of

declaration, cannot succeed. Hence, the substantial questions of law are

answered against the appellant. However, it is open to the parties to work

out their remedies by way of filing a partition suit, if any.

R.N.MANJULA,J.

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S.A.No.1177 of 2009

Sni

In the result, this Second Appeal is dismissed and the judgement and

decree dated 15.04.2009 passed by the learned Principal Sub Judge is

confirmed. No costs. Connected miscellaneous petition is closed.

27.09.2021 Speaking Index: Yes/No

Sni

To

1.The Principal Sub Judge, Chengalpattu.

2.The District Munsif Judge, Chengalpattu.

3.The Section Officer, V.R.Section, High Court, Madras.

S.A.No.1177 of 2009

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