Madras High Court
Sivasamy vs N.Indira on 8 April, 2022
S.A.(MD)No.277 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.277 of 2010
1.Sivasamy
2.Anbuselvi ... Appellants / Respondents 1 & 4 / Defendants 1 & 4
-Vs-
1.N.Indira ... Respondent / Appellant / Plaintiff
2.Mookkaiyan
3.Muthusamy ... Respondents / Respondents 2 & 3 / Defendants 2 & 3
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.28 of 2009 on the
file of the Principal Subordinate Judge, Thanjavur dated 11.11.2009
reversing the decree and judgment passed in O.S.No.274 of 2005 on the
file of the District Munsif Court, Thanjavur, dated 28.04.2009.
For Appellants : Mr.M.R.S.Prabhu
For R1 : Mr.M.Saravanan
For R2 : Mr.H.Rahamadullah
For R3 : no appearance
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S.A.(MD)No.277 of 2010
JUDGMENT
The contesting defendants in O.S.No.274 of 2005 on the file of the
District Munsif Court, Thanjavur are the appellants in this second appeal.
2. The suit was filed by the first respondent herein namely Indira
seeking permanent injunction in respect of the suit property. The suit
property is a piece of agricultural land. Written statement was filed by the
second defendant and adopted by the second appellant herein. The plaint
averments were controverted. Based on the divergent pleadings, the trial
court framed the necessary issues. The plaintiff examined herself as P.W.1.
Her husband Nehru was examined as P.W.2. Ex.A1 to Ex.A15 were
marked. The second appellant herein examined herself as D.W.1. Two
other witnesses were examined on their side. Ex.B1 to Ex.B11 were
marked. After consideration of the evidence on record, the trial court by
judgment and decree dated 28.04.2009 dismissed the suit. Questioning the
same, the plaintiff filed A.S.No.28 of 2009 before the Principal Sub Court,
Thanjavur. By the impugned judgment and decree dated 11.11.2009, the
decision of the trial court was reversed and the appeal was allowed and the
suit was decreed as prayed for. Challenging the same, this second appeal
was filed by D1 & D4. It was admitted on 09.02.2022 on the following
substantial questions of law:-
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S.A.(MD)No.277 of 2010
“(i) When under Ex.A5-sale deed dated 06.02.2008 it has been specifically
mentioned that the possession of the suit property was handed over to the plaintiff
on the same date and when there was no mention of previous possession of suit
property on the date of suit ie., on 30.09.2005, was it correct for the lower appellate
court to grant injunction to the plaintiff as prayed for?
(ii) When the due execution of Ex.A4 power deed and Ex.A5 sale deed
were not proved and established by examining witness relating to the said
documents, was the lower appellate Court correct in granting decree as prayed
for?”
3. The learned counsel appearing for the appellants reiterated the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the appellants
and set aside the impugned judgment and decree passed by the first
appellate court and restore the decision of the trial court.
4. Per contra, the learned counsel appearing for the plaintiff / R1
submitted that the impugned judgment and decree do not call for any
interference.
5. I carefully considered the rival contentions and went through the
evidence on record.
6. There is no dispute that the suit property originally belonged to one
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S.A.(MD)No.277 of 2010
Ramalingam. The case of the defendants is that the second defendant
Mookaiyan had purchased the said property by way of oral sale from the
said Ramalingam in the year 1967. Mookaiyan had executed a othi deed
dated 22.05.2005 in favour of the second appellant herein / D4. As on date,
the land is very much in possession and enjoyment of the 4th defendant. The
suit is one for injunction and therefore, it is the plaintiff who should prove
that she was in possession of the suit property on the date when the suit was
filed.
7. The learned counsel appearing for the appellants would point out
that the sale deed was taken from some of the legal heirs of the said
Ramalingam only on 06.02.2008. It was based on the power of attorney
granted in favour of the plaintiff's husband Nehru under Ex.A4 dated
22.01.2008. Ex.A5 reads that only under the said sale deed, possession was
handed over to the purchaser. This by itself indicated that the plaintiff was
not in possession of the suit property on the date when she filed the suit.
The learned counsel appearing for the appellants also would contend that
due execution of Ex.A4 & Ex.A5 was not proved by examining the
witnesses to the said documents.
8. I am not persuaded by the contentions advanced by the learned
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S.A.(MD)No.277 of 2010
counsel appearing for the appellants. The title in respect of the suit
property clearly stands only in the name of the plaintiff Indira. Indira had
also marked the original title deed dated 10.07.1972 whereunder
Ramalingam purchased the suit property from Chinnaiah. The original sale
deed dated 10.07.1972 is marked as Ex.A1. It is true that the plaintiff did
not examine the attestor of Ex.A4 or Ex.A5. Ex.A5-sale deed is not a
document that is required by law to be attested. Only if the document is
required by law to be attested, Section 68 of the Indian Evidence Act will
come into play. In as much as a sale deed is not a document falling within
the scope of Section 68 of the Indian Evidence Act, the first appellate court
cannot be faulted for having held that the plaintiff has proved due execution
of Ex.A4 & Ex.A5. It is true that in Ex.A5, there is a recital that possession
of the property was handed over to the purchaser only thereunder. It
appears to be more a case of cut and paste drafting. In the plaint itself, the
plaintiff had clearly averred that she is in possession of the suit property for
more than 18 years and that she is taking steps to obtain sale deed from the
legal heirs of the original owner. Therefore, the evidence adduced by the
plaintiff is in consonance with the plaint averments. The plaintiff had also
marked Ex.A13-certificate issued by VAO. Of-course, the very same VAO
who was examined as D.W.3 had issued a parallel certificate for the second
appellant also. The first appellate court chose to accord preference to
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S.A.(MD)No.277 of 2010
Ex.A13 because Ex.A13 had been counter signed by the Headquarters
Deputy Thasildar, Thanjavur whereas the certificate marked by the 4th
defendant was signed only by the VAO. D.W.3 admitted in the cross-
examination that he was not the VAO of the concerned village, when he
issued Ex.B11. The plaintiff by marking Ex.A7 to Ex.A11 had
convincingly demonstrated that she was very much in possession of the suit
property on the date of filing of the suit. Her case had become further
strengthened by obtaining the title deed also. In any event, possession is
more a question of fact. The first appellate court is the final Court of fact.
Therefore, I answer the substantial questions of law against the appellants.
I confirm the decision of the first appellate court decreeing the suit as
prayed for. The second appeal is dismissed. No cost.
08.04.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Principal Subordinate Judge, Thanjavur.
2.The District Munsif Court, Thanjavur.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.277 of 2010
Madurai.
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.277 of 2010
08.04.2022
https://www.mhc.tn.gov.in/judis
