Madras High Court
C.Rasu @Alagarsamy vs Thangaiah on 6 February, 2023
2023/MHC/536
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.02.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)NO.755 OF 2011
C.Rasu @Alagarsamy :Appellant/Appellant/Plaintiff
.vs.
Rasu Thevar(died)
1.Thangaiah
2.Mayandi(died)
3.Rajamani(set exparte in A.S)
4.The Sub-Registrar,
Office of the Sub-Registrar,
N.R.T.Nagar Main Road,
Theni District.
5.Kavitha
6.Madankumar
7.Manisha
8.Shanmugam
(Respondents 5 to 8 are brought on record as L.Rs of the
deceased second respondent as per order of this Court made
in C.M.P(MD)Nos.635 to 637 of 2023 in S.A(MD)No.755 of 2011,
dated 23.01.2023) :Respondents/Respondents/Defendants
PRAYER: Second Appeal filed under Section 100 of Civil Procedure
Code against the judgment and decree made in A.S.No.138 of 2008,
dated 15.11.2010, on the file of Subordinate Judge, Theni
confirming the judgment and decree made in O.S.No.168 of 2006,
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2
dated 28.3.2007, on the file of District Munsif, Theni.
For Appellant :Mr.A.Saravanan
For Respondents :Mr.S.Srinivasa Raghavan
1 to 3
For Respondent-2 : No appearance
For Respondent-4 : Mr.T.Jayaselan
Govt.Advocate
JUDGMENT
*************
The plaintiff in the suit is the appellant before this Court. The
suit is for declaration of title and for permanent injunction, with an
alternative prayer for possession and for mandatory injunction.
2.The suit was dismissed by the trial Court. Aggrieved by the
same, the appellant preferred a first appeal in A.S.No.136 of 2008
before the First Appellate Court. The First Appellate Court
concurred with the findings of the trial Court and dismissed the
appeal. Hence the appellant is before this Court.
3.According to the appellant/Plaintiff, the suit property
originally belongs to his father Chinnasamy and after his death, in
the year 1985, the appellant succeeded the suit property. It was
also averred that the revenue documents stand in the name of
appellant and during the month of January 2004, when the
appellant obtained an Encumbrance Certificate in respect of the
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suit property, it came to his knowledge that respondents 1 to
4/Defendants 1 to 4 created some encunbrance over the suit
property, so as to defeat the title and right of the appellant over
the suit property.Therefore, the appellant was constrained to file a
suit for the relief as mentioned above.
4.The respondents 1 to 4/defendants 1 to 4 filed a Written
Statement denying the title as well as the possession of the
appellant over the suit property. It was the specific case of the
respondents that the suit property was purchased by the first
respondent's father Mayandi Thevar from the father of the
appellant on 16.12.1955 by way of an unregistered sale deed. It
was also contended by the respondents 1 to 4 that the said
Mayandi Thevar had enjoyed the suit property from the date of
purchase and after his death, the respondents 1 to 4 succeeded to
his interest and from then onwards, they had been in possession
and enjoyment of the suit property. It was further submitted that
taking advantage of the absence of entry in the revenue records in
favour of respondents, the appellant had filed this speculative suit.
5.Before the trial Court, the appellant was examined as P.W.1
and yet another independent witness was examined as P.W.2.The
appellant marked 11 documents as Ex.A1 to Ex.A11 on his behalf.
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On behalf of the respondents, the second respondent was examined
as D.W.1 and three independent witnesses were examined on behalf
of the respondents as D.W.2 to D.W.4. The respondents also marked
15 documents on their behalf as Ex.B1 to Ex.B15. The trial Court,
on appreciation of both oral and doumentary evidence available on
record, found that the appellant as plaintiff in a suit for title, had
failed to establish his title and consequently, dismissed the suit.
Aggrieved by the same, the appellant preferred an appeal before
the First Appellate Court in A.S.No.138 of 2008.The appellant also
filed an application to raise additional evidence and the sale deed
executed in favour of the appellant's father, dated 23.05.1945 was
marked as Ex.A12 and other revenue documents were marked as
Ex.A13 to Ex.A23.The First Appellate Court found that the suit
property was sold by the appellant's father to the first
respondent's father under Ex.B1 for a value of Rs.60/-.Since the
value of the subject-matter of sale was less than Rs.100/-, the same
need not be registered. Subsequently, the property had been dealt
with by the respondents' family by mortgaging the property in
year 1992. The first respondent executed a settlement deed in
respect of the suit property in the year 1998. These two
transactions namely mortgage of the suit property and settlement
of the suit property had taken place long prior to the filing of the
suit. Therefore, the first appellate Court concurred with the
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findings of the trial Court and dismissed the first appeal.
Aggrieved by the same, the appellant had preferred the present
Second Appeal.
6.The learned counsel for the appellant assailed the
judgments and decrees passed by the Courts below by mainly
submitting that the title of the appellant was proved by additional
document marked as Ex.A12 before the First Appellate Court and
hence the finding that the appellant had failed to establish his title
over the suit property, cannot be accepted. The learned counsel for
the appellant by referring to the revenue documents filed in
support of his case, submitted that the additional documents
produced before the first appellate Court as Ex.A12 coupled with
the other revenue documents proves the appellant's title and
possession over the suit property and the finding rendered by the
first appellate Court as if the appelant had failed to prove his title
over the suit property is vitiated by non-consideration of material
evidence available on record.
7.As far as the additional evidence filed before the first
appellate Court is concerned,it will not improve the case of the
appellant in any way, because even as per the pleadings of the
respondents, the property was purchased by the father of the first
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respondent from the father of the appellant.Therefore the original
title of the appellant's father over the suit property had been
admitted through the written statement. The respondents
purchased the suit property under Ex.P21 from the father of the
appellant. Though Ex.B1 is an unregistered sale deed, in view of
the fact that the value of the subject-matter of the sale dealt with
under Ex.B1 was mentioned as Rs.60/-, there is no necessity for
the parties to go for a compulsory registration.Therfore the non
registration of Ex.B1 will not vitiate the document. The Courts
below, considering the age of the sale deed executed in favour of
the first respondent's father namely Ex.B1, raised a presumption
under Section 90 of the Evidence Act and held that under Ex.B1,
the father of the first respondent acquired title over the suit
property. The said finding cannot be brushed aside easily.
8.Apart from Ex.B10, the Encumbrance Certificate produced
on behalf of the appellant proves that the property had been dealth
with by the respondents subsequent to the purchase. The entries
in Ex.A10 Encumbrance Certificate makes it clear that the suit
property was mortgaged by the first respondent in the year 1992.
Subsequently in the year 1998, he had executed a Gift Deed in
favour of his son. These two registered transactions of the year
1994 and 1998 well before the filing of the suit, prove that the
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property had been enjoyed by the respondents family subsequent
to the purchase. The appellant said to have acquired knowledge
about the registered transactions of the respondents in respect of
the suit property after getting Encumbrance Certificate namely
Ex.A10. The said document is dated 24.02.2004. However, the
present suit has been filed by the appellant only on 9.2.2006. If
really, the appellant had right and possession over the suit
property, on acquiring the knowledge about the registered
documents,under which the property had been dealt with by the
respondents, the appellant would have filed the suit immediately on
acquiring knowledge of the registered transactions of the
respondents. Long in-action on the part of the appellant makes it
clear that the property was sold to the first respondent's father
long back and they had been in possession and enjoyment of the
suit property. This Court finds no question of law much less
substantial question of law in the Second Appeal and hence the
same deserves to be dismissed.
9.In the result, the Second Appeal is dismissed, confirming
the judgments and decrees passed by the Courts below. There is
no order as to costs.
06.02.2023
https://www.mhc.tn.gov.in/judis
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Subordinate Judge,
Theni.
2.The District Munsif,
Theni..
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
vsn
JUDGMENT MADE IN
S.A(MD)NO.755 OF 2011
06.02.2023
https://www.mhc.tn.gov.in/judis
