Periyannan vs Sihappi Ammal
2022 Latest Caselaw 7201 Mad

                                                                             S.A.(MD)No.701 of 2010

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED: 06.04.2022

                                                         CORAM:

                            THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                               S.A.(MD)No.701 of 2010
                                                        and
                                                M.P.(MD)No.2 of 2010


                   Periyannan                            ... Appellant / Respondent / Plaintiff

                                                         -Vs-


                   Sihappi Ammal                      ... Respondent / Appellant / Defendant


                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree of the Sub Court, Sivagangai dated
                   18.06.2010 made in A.S.No.31 of 2006 in reversing the judgment and
                   decree of the District Munsif Court, Thirupathur, dated 27.01.2006 made in
                   O.S.No.58 of 2000.


                                         For Appellant          : Mr.T.S.Mohamed Mohideen
                                                                 for Mr.M.Mohanasundaram
                                         For Respondent         : Mr.G.Mohan Kumar


                                                     JUDGMENT

The plaintiff in O.S.No.58 of 2000 on the file of the District Munsif

Court, Thiruppathur is the appellant in this second appeal. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.701 of 2010

2. The suit was filed for declaration that the suit property belongs to

the plaintiff and for permanent injunction restraining the defendant from

interfering with the plaintiff's possession and enjoyment of the same.

The defendant filed written statement controverting the plaint averments.

The suit originally suffered a dismissal on 06.09.2002 on the ground that

the plaintiff was not prosecuting the suit. Aggrieved by the same, the

plaintiff filed A.S.No.12 of 2003 before the Sub Court, Sivagangai.

By judgment and decree dated 12.08.2004, the matter was remanded.

The plaintiff examined himself as P.W.1 and one Andiappan was examined

as P.W.2. Ex.A1 to Ex.A15 were marked. The defendant examined herself

as D.W.1 and one Rathinam was examined as D.W.2. One Chinnaiya was

examined as D.W.3. But his evidence was later eschewed. Ex.B1 to Ex.B7

were marked. An Advocate Commissioner was appointed and his report

and plan were marked as Ex.C1 & Ex.C2. After considering the evidence

on record, the trial court by judgment and decree dated 27.01.2006 decreed

the suit as prayed for. Challenging the same, the defendant filed A.S.No.31

of 2006 before the Sub Court, Sivagangai. By the impugned judgment and

decree dated 18.06.200, the decision of the trial court was reversed and the

appeal was allowed and the suit was dismissed. Challenging the same, the

plaintiff filed this second appeal. Though the second appeal was filed way https://www.mhc.tn.gov.in/judis

S.A.(MD)No.701 of 2010

back in the year 2010, only notice was ordered and it has not been admitted

till date.

3. The learned counsel appearing for the appellant reiterated the

contentions set out in the memorandum of grounds and called upon this

Court to formulate the substantial question of law and admit this second

appeal and take it up 'for disposal' later.

4. Per contra, the learned counsel appearing for the respondent

submitted that no substantial question of law arises for consideration.

5. I carefully considered the rival contentions and went through the

evidence on record.

6. The suit property measures 4 cents of land and is comprised in

Survey No.166/13 in Puthur Village, Nedumaram Group in Thiruppathur

Taluk. The stand of the defendant was that the father of the plaintiff namely

Chinnaiya Konar owned 9 cents of land in the said survey number and he

retained 5 cents and sold the remaining 4 cents in favour of the defendant

vide sale deed dated 25.06.1960. The trial court came to the conclusion that

the due execution of the sale deed has not been proved. Such a conclusion https://www.mhc.tn.gov.in/judis

S.A.(MD)No.701 of 2010

was arrived at because the plaintiff examined one Andiappan said to be the

attestor of Ex.B1-sale deed dated 25.06.1960. The first appellate court

disagreed with the said reasoning by invoking Section 90 of the Indian

Evidence Act, 1872. The first appellate court committed a clear error in

invoking Section 90 of the Act because the said provision can be invoked

only if the original document is marked. In this case, the defendant had

marked only a certified copy. Though the first appellate court erred in

invoking Section 90 of the Indian Evidence Act, I do not want to interfere

with the impugned judgment and decree on that ground. This is because, a

sale deed is not a document that requires to be attested. Only if a document

is required by law to be attested, it cannot be used as evidence until atleast

one attesting witness has been called for the purpose of proving its

execution. Section 68 of the Indian Evidence Act, 1872 will not apply in

the case of sale deed. It is not as if the defendant has projected the sale

deed for the first time in the written statement. There was a running battle

between the parties before the revenue authorities. The defendant and the

plaintiff had been locked in litigation before the revenue authorities right

from the year 1997. There were proceedings before the Thasildar,

Thiruppathur, RDO, Devakottai & DRO, Sivagangai and also the

Commissioner of the Land Administration, Chennai.

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

S.A.(MD)No.701 of 2010

7. The specific case of the defendant was that the plaintiff cannot

claim any title over the suit property because his father had already sold the

same to the defendant under Ex.B1 and that the plaintiff was also an eo

nominee party to the said sale deed. Therefore, the plaintiff ought to have

laid a proper foundation in his plaint questioning the validity of the said

sale deed dated 25.06.1960 which according to the defendant was executed

by the plaintiff's father. In the plaint, there is absolutely no foundation for

the allegation of forgery. In fact, in the plaint, the plaintiff nowhere has

made any reference to the said sale deed. On the other hand, he had alleged

that the defendant had staked a claim over the suit property on the strength

of documents that are forged and sham and nominal. Both allegations

cannot go together. A forged document can never assume the character of

sham and nominal document. Therefore, I have to necessarily sustain the

contentions of the learned counsel appearing for the respondent and there is

absolutely no foundation for the allegation that Ex.B1 is a forged document.

Merely because P.W.2 who had attested Ex.B1 did not support the

defendant, that would not result in disproving the said document. If as

already pointed out if the document is required by law to be attested, then

the burden would be on the defendant to examine the attesting witness to

sustain the sale deed. But that is not the case here. The document in

question is a sale deed and it is the plaintiff who has come to the Court. https://www.mhc.tn.gov.in/judis

S.A.(MD)No.701 of 2010

The defendant while cross-examining P.W.2 had clearly suggested to him

that the plaintiff was his relative and that is why, he falsely deposed.

8. There is yet another aspect of the matter. One of the contentions

urged by the plaintiff was that Ex.B1 does not contain any survey number.

But when four boundaries are clear and tally with the suit property,

omission to mention the survey number will not weaken or undermine the

case of the defendant. The defendant had also marked Ex.B2 dated

24.10.1958. The defendant deposed that in Ex.B2 which also executed by

the plaintiff's father, survey number had not been mentioned. The plaintiff

never took a stand that Ex.B2 is also a forged document. When the

authenticity of Ex.B2 has been challenged, the plaintiff must have taken

steps to apply for the original document from the office of Sub Registrar

and refer the same for the opinion of the hand writing expert. Such steps

were not taken. Therefore, I come to the conclusion that the plaintiff has

miserably failed to prove that Ex.B1 is a forged document. Of-course, the

defendant had failed to mark the original document. This in my view will

not weaken the defendant's case. The defendant is an illiterate lady. She

had stated that it was her husband who had been dealing with the matters.

Her husband was no more. Therefore, failure on the part of the defendant

to file the original document cannot be put against her. Even though some https://www.mhc.tn.gov.in/judis

S.A.(MD)No.701 of 2010

of the reasons assigned by the first appellate court are incorrect, in as much

as the defendant had proved her title over the suit property and since the

suit property is also a vacant site, one must come to the conclusion that

possession follows title.

9. No substantial question of law arises for consideration. The

impugned judgment and decree are confirmed. The second appeal is

dismissed. No cost. Consequently, connected miscellaneous petition is

closed.

06.04.2022

Internet : Yes/No Index : Yes/No rmi

To

1.The Sub Court, Sivagangai.

2.The District Munsif Court, Thirupathur.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

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

S.A.(MD)No.701 of 2010

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.701 of 2010

06.04.2022

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