Madras High Court
Ramalingam vs Kalimuthu ... Plaintiff/ on 18 April, 2023
S.A.No. 1467 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.04.2023
CORAM
THE HONOURABLE MR. JUSTICE V. LAKSHMINARAYANAN
S.A.No. 1467 of 2011
And
M.P.No. 1 of 2011
1. Ramalingam
2. Jothimani ... Defendants/Appellants/Appellants
Vs.
Kalimuthu ... Plaintiff/Respondent/Respondent
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Decree and Judgment dated 29.08.11 made in
A.S.No. 6 of 2011 on the file of the learned Subordinate Judge, Udumalpet
confirming the Judgment and decree dated 16.03.11 made in O.S.No. 233
of 2007 on the file of the learned District Munsif, Udumalpet.
***
For Appellants : Mr.A.Gowtham
for Mr. B.Nambiselvan
For Respondent : Mr. R.Gokula Krishnan
https://www.mhc.tn.gov.in/judis 1
S.A.No. 1467 of 2011
JUDGMENT
The defendant is the appellant. The plaintiff and the defendant are
brothers. The plaintiff Kalimuthu is the owner of the property. The suit
property fell to the share of the plaintiff, by virtue, of a partition between
the first defendant and the plaintiff. It was evidenced by the partition deed
dated 08.11.1994. The said document was filed as Ex.A-1. The plaintiff
claimed that the defendant sought to interfere with the suit property and
that the defendant wanted to purchase the property and since the plaintiff
refused to alienate the same, he was attempting to tresspass into the
property. Hence, he sought aid by the Court by filing a suit for permanent
injunction not to interfere with his possession.
2. In response to the said plaint, the defendant brought to the notice
of the Court Ex.B-1, an unregistered sale deed dated 20.07.1998 under
which the plaintiff had sold the property to the defendant for a sum of
Rs.20,000/-. According to him, when both the parties went to register the
property, it came to their notice that one Velusamy Gounder had filed a
suit in O.S.No. 272 of 1996 for recovery of money and had attached the
S.A.No. 1467 of 2011
said property. Since the property was under attachment of orders of Court,
according to the defendant, he could not have the property registered.
However, since possession was handed over under the document, he
continued to be in possession of the property. The plaintiff, due to
inimical motive, wanted to get the aid of the Court to take forcible
possession and hence, filed the suit.
3. In other words, the clear case of the defendant is that he is in
possession pursuant to a duly stamped but unregistered deed dated
20.07.1998. The learned District Munsif Court, Udumalpet, who tried the
suit in O.S.No. 233 of 2007 decreed the suit on 16.03.2011. The First
Appeal in A.S.No. 6 of 2011 on the file of the Subordinate Judge at
Udumalpet, confirmed the same in and by way of Judgment dated
29.08.2011. Against this concurrent findings, the appellant has approached
this Court.
4. At the time of admission, the following substantial questions of
law were framed for consideration:-
S.A.No. 1467 of 2011
“1. Whether the finding rendered by the
Courts below that an unregistered document
could not used to establish possession is correct
in law in view of the Judgment of the Hon'ble
Supreme Court reported in 2003(4) SCC 161 and
1969(1) SCW 341?;
2. Whether the Courts below are correct in
law in having placed reliance on the decision
reported in 2010 (6) CTC 290 contrary to the law
laid down by the Hon'ble Supreme Court of
India?;
3. Whether the Judgment and decree of the
Courts below legally sustainable in view of the
mandate contained in Article 141 of the
Constitution of India?;
4. Whether the Courts below are correct
in law in having entertained a suit for a bare
injunction when there existed a dispute regarding
title?;
5. Whether the Court below are correct in
law having shifted the burden of proof on the
appellant/defendant to establish the genuineness
S.A.No. 1467 of 2011
of Ex.B-1 and not call upon the
plaintiff/respondent to prove his case. ”
5. Out of these questions of law, I heard the learned counsel on
either side.
6. The suit property admittedly belongs to the plaintiff. He had
obtained the property by way of a partition between himself and the first
defendant evidenced through registered agreement of partition dated
08.11.1994. It is clear from Ex.B-1, the plaintiff had alienated the property
to his brother but for want of registration, due to attachment, it could not
be completed.
7. I have gone through Ex.B-1. It states that the possession has
been handed over to the first defendant. The second defendant is none else
the wife of the first defendant. The plaintiff, apart from Ex.A-1, has
produced Exs. A-2 to A-6. I am not accepting A-6 because it is an after
suit document and I am not in a position to accept Exs.A-3 to A-5 because,
all of them have come into force just prior to the filing of the suit. There
S.A.No. 1467 of 2011
are not documents evidencing the possession of the plaintiff between the
period 08.11.1994 to 20.07.1998 and from 20.07.1998 to 30.03.2007, ie.,
just prior to the presentation of the plaint. The date 20.07.1998 is a crucial
date because that is a date for which the Ex.B-1 was executed.
8. Mr. R.Gokula Krishnan, learned counsel appearing for the
respondent would vehemently argue that I should not look into Ex.B-1 as it
is stamped but yet unregistered document. He would urge that though the
sale deed had been executed, since it has not been registered, it comes
within a teeth under Section 17 and 49 of the Registration Act. It is
necessary to point out that this Court in R.Munusamy Vs. G.Krishttapillai
[MANU/TN/1716/2014] dated 08.10.2014 has held in a suit for
permanent injunction, it is always open to the Court to look into an
unregistered document for the purpose of possession.
9. Mr.A.Gowtham, learned counsel for the appellants would bring
to my notice a Judgment of the Supreme Court in Bondar Singh and Ors.
Vs. Nihal Singh and Ors reported in (2003) 4 SCC 161 where under the
Court has held even an unregistered sale deed can be looked into for the
purpose of establishing possession of the property.
S.A.No. 1467 of 2011
10. In the light of the clear and categorical views taken by this Court
and that of the Hon'ble Supreme Court, I am constrained to hold that both
the Courts below have failed to appreciate the nature and content of Ex.B-
1. I am not reading Ex.B-1 as transferring title. It is only for the purpose
of seeing as to who is in possession and enjoyment of the property. Ex.B-1
is an inter party document between the plaintiff and the first defendant.
The document reads possession has been handed over. Consequently, a
mere suit for injunction is not maintainable. It is always open to the
plaintiff to resort the appropriate remedies as it is open to him in
accordance with law. However, he cannot succeed in this suit since the
first defendant is in possession of the property by virtue of Ex.B-1. The
Courts below have rejected Ex.B-1 only on the ground that it is an
unregistered document. I am not willing to confirm the same as I have
held that Ex.B-1 can be looked into for a collateral purpose ie., to see as to
who is in possession of the property. To reiterate, I am not looking into it
as a document evidencing transfer of title. I am constrained to interfere
with the judgments of the Courts below. I answer the substantial questions
of law framed in favour of the appellants and against the respondent.
S.A.No. 1467 of 2011
11. In fine, the Judgment and Decree of the learned District Munsif,
Udumalpet, in O.S.No. 233 of 2007 dated 16.03.2011 as confirmed by
Judgment and Decree of the learned Subordinate Judge, Udumalpet, in
A.S.No. 6 of 2011 dated 29.08.2011 is hereby set aside. This Second
Appeal is allowed with costs throughout. Consequently, connected
Miscellaneous Petition is closed.
18.04.2023
Index :Yes/No
Internet:Yes/No
vsg
To
1. District Munsif, Udumalpet.
2. Subordinate Judge, Udumalpet.
S.A.No. 1467 of 2011
V. LAKSHMINARAYANAN , J.
vsg
S.A.No. 1467 of 2011
And
M.P.No. 1 of 2011
18.04.2023
https://www.mhc.tn.gov.in/judis 9
