Madras High Court
Velusamy Servaikarar vs Poo Murugan on 20 June, 2023
S.A.(MD)No.336 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.336 of 2018
1.Velusamy Servaikarar
2.Ramanathan ... Appellants
/Vs./
1.Poo Murugan
2.Vilvalingam
3.Lakshmi
4.Shanmugalakshmi
5.Sub Registrar,
Sayalkudi,
Ramanathapuram District. ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree passed in A.S.No.60 of 2014,
on the file of the Sub Court, Paramakudi, dated 17.11.2016 confirming
the judgment and decree passed in O.S.No.58 of 2008 on the file of the
District Munsif Court, Muthukulathur, dated 01.08.2014.
1/12
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S.A.(MD)No.336 of 2018
For Appellants : Mr.H.Thayumanaswamy
For Respondents : Mr.A.Arumugam (R1)
No appearance (R2 to R4)
Mrs.S.Jeya Priya
Government Advocate
JUDGMENT
This Second Appeal has been filed challenging the concurrent
findings of the courts below. The defendants 1 and 2 in the suit in
O.S.No.58 of 2008 on the file of the District Munsif Court,
Mudukulathur are the appellants herein. The respondents are the
plaintiffs and the third defendant in the suit. The suit was filed for
declaration that the mortgage deed executed between the first and the
second defendants is invalid and hence, it has to be cancelled. In the
forthcoming paragraphs, the parties are described as per their litigative
status in the suit.
2. It is the case of the plaintiffs that the mortgage deed (Ex.A14)
executed between the first and the second defendants is a fabricated
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S.A.(MD)No.336 of 2018
document and hence, it has to be cancelled. According to the plaintiffs
Ex.A14, mortgage deed is a self serving document and it does not create
any title in favour of the first defendant, who had executed the mortgage
deed in favour of the second defendant. According to the plaintiffs, the
first defendant does not have any title over the suit schedule properties.
The plaintiffs categorically pleaded that the mortgage deed (Ex.A14) is a
fabricated document. The plaintiffs pleaded that they are the absolute
owners of the suit schedule properties and the patta also stands in their
names.
3. However, as seen from the written statement filed by the
defendants, they claim that the mortgage deed (Ex.A14) is a valid
mortgage. Based on the documents of the years 1905 and 1909, the
defendants traced their title over the suit schedule properties. They also
claimed that the patta is also standing in the joint names of the plaintiffs
predecessors as well as the defendants predecessors in title.
4. Based on the pleadings of the respective parties, the trial Court
framed issues. Before the trial Court, the plaintiffs filed 14 documents,
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S.A.(MD)No.336 of 2018
which were marked as Exs.A1 to A14 and two witnesses were also
examined on their side, namely, the second plaintiff, Poomurugan as P.W.
1 and another person by name Pandiyan as P.W.2. On the side of the
defendants, 20 documents were filed, which were marked as Exs.B1 to
B20 and three witnesses were examined, namely, the second defendant,
V.Ramanathan as D.W.1 and two other persons by name, S.Kadhar
Mydeen and Narayanan as D.W.2 and D.W.3 respectively.
5. The trial Court, namely, the District Munsif Court,
Mudukulathur, by its judgment and decree dated 01.08.2014 passed in
O.S.No.58 of 2008 decreed the suit in favour of the plaintiffs by
declaring that the mortgage deed dated 03.01.2006 (Ex.A14) executed by
the first defendant in favour of the second defendant is a invalid
document and consequently, granted the relief of declaration as sought
for by the plaintiffs in the suit by cancelling the said document. The trial
Court, while dismissing the suit, has categorically given a finding based
on the documents produced by the defendants, which have been marked
as Exs.B1 to B20 that the said document did not refer to survey numbers,
extents, Pimash numbers and patta numbers pertaining to the suit
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S.A.(MD)No.336 of 2018
schedule properties. The finding of the trial Court found in paragraph
No.11 of the judgment reads as follows:
“11.gpujpthjpfs; jug;gpy; jhth brhj;Jf;fspy;
1k; ,yf;f brhj;ij bghWj;J vt;tpj MtzKk; jhf;fy;
bra;ag;gltpy;iy. nkYk; gpujpthjpfs; jug;gpy;
bra;ag;gl;Ls;s gp.th.rh.M.2>4>9>11>12>13>14 Mfpa
Mtzq;fs; tHf;F brhj;jpw;F vt;tpjj;jpy; bjhlh;g[ cs;s
Mtzq;fs; vd;W gpujpthjp jug;gpy; epU:gpf;fg;gltpy;iy.
nkw;go Mtzq;fspy; jhth brhj;Jf;fs; rh;nt vz;fs;
fhzg;gltpy;iy. nkYk; gp.th.rh.M.5> gp.th.rh.M.2>
gp.th.rh.M.7> Mfpait tHf;F brhj;Jf;fs; gpujpthjpfSf;F
ghj;jpak; vd;gij epU:gpf;f jFe;j Mtzq;fs; ,y;iy.
nkYk; gp.th.rh.M.3 MdJ tHf;fpd; 2k; ,yf;f brhj;J 6
egh;fSf;F ghj;jpag;gl;lJ vd;W fz;Ls;sJ. nkYk;
gpujpthjpfs; jug;gpy; gp.th.rh.M.8 uhKj;njth; bgahpy;
23.12.1905 k; njjp Kj;Jr;rhkp nrh;itahy; 1k; ,yf;f
brhj;jpd; xU FWf;fk; fpiuak; bfhLf;fg;gl;Ls;sjhf jhf;fy;
bra;ag;gl;Ls;sJ. nkw;go gp.th.rh.M.8 I ghh;itapLk; nghJ
mjpy; jgrpy; brhj;jpy; rh;nt ek;gnuh bkhj;j tp];jPuznkh
ig kh]; ek;gh; gl;lh ek;gh; vJt[k; fhzg;gltpy;iy.
nkYk; jgrpy; brhj;jpd; ehd;F khy; mst[fSf;Fk; tHf;F
jhth 1k; ,yf;f brhj;jpd; mst[fSf;Fk;
xj;Jg;nghftpy;iy. gp.th.rh.M.8 tHf;F 1k; ,yf;f
brhj;jpw;F cz;lhd Mtzk; vd;gJ Vw;Wf;bfhs;Sk;goahf
,y;iy. nkYk; gpujpthjpfs; jug;gpy; tpy;ypazd; nrh;it
25 ½ brz;l; 2k; ,yf;f brhj;jpy; ghj;jpag;gl;lJ vd;W
xg;gf[ ;bfhs;sg;gl;Ls;sJ. thjpfs; tpy;ypazd; nrh;it
K:ykhf jhd; 2k; ,yf;f brhj;J jq;fSf;F 27 ½ brz;l;
ghj;jpak; vd;Wk; Twpa[s;sdh;.”
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S.A.(MD)No.336 of 2018
6. As seen from the above findings, it is clear that the defendants
did not have any title over the suit schedule properties. On the other
hand, the plaintiffs had produced pattas, Exs.A1 and A2 dated
24.10.2008 and 05.08.2008 respectively to prove that they are in
possession of the suit schedule properties. The plaintiffs have not sought
for declaration of their title over the suit schedule properties. The
plaintiffs have sought for cancellation of the mortgage, which according
to the plaintiffs, is a fabricated document created by the defendants to
create title over the suit schedule properties. If the plaintiffs had sought
for declaration of their title over the suit schedule properties, necessarily
he has to produce all parent documents, by which they trace their title
over the same.
7. However, the instant case is one where the plaintiffs sought
only to declare the mortgage deed as null and void on the ground that the
said document is a fabricated document. Therefore, the necessity for
producing parent documents, by which the plaintiffs derived title over the
suit schedule properties will not arise. It would suffice if the plaintiffs
produce the proof for being in possession of the suit schedule properties.
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S.A.(MD)No.336 of 2018
In the instant case, the plaintiffs have produced pattas, Exs.A1 and A2
standing in their names to prove that they are in possession of the suit
schedule properties.
8. Having categorically pleaded that the defendants did not have
any right to mortgage the suit schedule properties, as they did not have
any title over the same, it is for the defendants to produce documentary
evidence to prove that they have title over the suit schedule properties to
enable the first defendant to execute a mortgage deed in favour of the
second defendant.
9. As seen from the oral and documentary evidence available on
record, the defendants have miserably failed to produce any iota of
evidence to prove that the first defendant is having title over the suit
schedule properties to enable the first defendant to execute a mortgage
deed (Ex.A14) in favour of the second defendant. The documents
produced by the defendants, which have been marked as exhibits do not
reflect the survey number, pimash number and patta numbers, which is
disclosed in the suit schedule properties.
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S.A.(MD)No.336 of 2018
10. Only after giving due consideration to the same, the trial
Court, in its judgment and decree dated 01.08.2014 in O.S.No.58 of 2008
and the lower appellate Court, in its judgment and decree dated
17.11.2016 in A.S.No.60 of 2014 have concurrently held that the first
defendant does not have any title over the suit schedule properties and
therefore, the mortgage deed executed by the first defendant in favour of
the second defendant (Ex.A14) is null and void.
11. The mortgage deed (Ex.A14) is of the year 2006. Till date, it
is also not known about the status of the mortgage deed (Ex.A14), as to
whether the mortgagee has paid the dues to the mortgager or whether the
mortgage has been duly discharged. 17 years have been lapsed. Having
pleaded that the mortgage deed (Ex.A14) is a valid mortgage, the
defendants ought to have produced necessary evidence before the trial
Court in respect of their contention that the mortgage deed (Ex.A14) is
not a fabricated document, but is a valid document executed for valuable
consideration. They have miserably failed to produce any iota of
evidence for the same before the trial Court. Both the Courts below have
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S.A.(MD)No.336 of 2018
rightly considered all the contentions raised by the appellants /
defendants and they have rightly rejected the same by holding that the
mortgage deed (Ex.A14) is invalid document and it has to be cancelled.
This Court, on 12.02.2021, admitted this second appeal by formulating
the following substantial question of law:
“Whether the Courts below were right in granting
a decree for cancellation of the mortgage deed, dated
03.01.2006 in the absence of a prayer for declaration of
title of the plaintiffs?”
12. For the foregoing reasons, this Court is of the considered view
that the substantial question of law formulated by this Court at the time
of admission of this second appeal on 12.02.2021 has to be answered
against the appellants / defendants by holding that the mortgage deed
dated 03.01.2006 (Ex.A1) is an invalid mortgage deed and the
declaration sought for by the plaintiffs in the suit was rightly granted in
favour of the plaintiffs by the Courts below.
13. The learned counsel appearing for the appellants placed before
this Court a judgment of the Hon'ble Supreme Court of India in the case
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S.A.(MD)No.336 of 2018
of Union of India and Others vs. Vasavi Cooperative Housing Society
Limited and Others (2014 (2) SCC 269), which held that in a suit for
declaration of title and possession, the burden of proof is on the plaintiff
to establish his case irrespective of whether the defendant's case was
proved or not. The decision has no applicability to the present case.
14. In the case on hand, the plaintiffs have not filed the suit for
declaration to declare that they are the absolute owners of the suit
schedule property, but they have filed the suit only to cancel the
mortgage deed, which according to them, is a fabricated document and an
invalid document. The plaintiffs have also filed pattas, Exs.A1 and A2 to
prove that they are in possession of the suit schedule properties.
Therefore, necessarily they have an interest in the suit schedule
properties.
15. When the plaintiffs have not sought to declare their title over
the suit schedule properties, but they have sought a limited relief of
cancellation of a mortgage deed and that too when they are having
interest over the suit schedule properties, the judgment referred to supra
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S.A.(MD)No.336 of 2018
relied upon by the learned counsel appearing for the appellants will not
apply to the facts of the instant case as in the said decision, it was a case,
where the plaintiffs had sought for declaration of his title over the suit
schedule properties when necessarily the initial burden of proof is on the
plaintiffs therein.
16. For the foregoing reasons, there is no merit in this second
appeal and accordingly, this second appeal is dismissed.
17. It is to be noted that the mortgage deed comprises of several
properties, which includes the suit schedule properties also. Insofar as
the judgments rendered by the Courts below are concerned, it is restricted
only to the suit schedule properties alone and not for other properties.
The same is made clear by this Court in this judgment also. There shall
be no order as to costs. Consequently, connected Miscellaneous Petition
is closed.
20.06.2023
Index : Yes / No
NCC : Yes / No
Sm
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S.A.(MD)No.336 of 2018
ABDUL QUDDHOSE, J.
Sm
TO:
1.The Sub Court, Paramakudi.
2.The District Munsif Court, Muthukulathur.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.336 of 2018
Dated:
20.06.2023
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