Madras High Court
Yasothai Ammal vs Vai. Nagarajan :Ist on 27 November, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A(MD)NO.280 OF 2021
and
C.M.P(MD)No.3843 of 2021
Yasothai Ammal :Appellant/Appellant/First Defendant
.vs.
1.Vai. Nagarajan :Ist Respondent/Ist Respondent/
Plaintiff
2.Sahul Hameed
3.The Sub-Registrar,
Sub-Registrar’s Office,
Tiruverumbur,
Tiruchirappalli. :Respondents 2 and 3/Respondents
2 and 3/Defendants 2 and 3
PRAYER: Second Appeal filed under Section 100 of Civil Procedure
Code against the judgment and decretal order made in A.S.No.173
of 2015, dated 28.2.2018, on the file of the II Additional Subordinae
Judge, Trichirappalli confirming the judgment and decretal order
made in O.S.No.1413 of 2009, dated 28.08.2014, on the file of the
Principal District Munsif Court, Trichirappalli.
For Appellant :Mr.S.Deenadhayalan
For Respondent-1 :Mr.M.Saravanan
For Respondent-2 :No appearance
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2
For Respondent-3 :Mr.N.Muthuvijayan
Special Govt.Pleader
JUDGMENT
*********
This Second Appeal is filed challenging the concurrent
findings of the Courts below in A.S.No.173 of 2015, dated
28.2.2018, on the file of the II Additional Subordinate Judge,
Trichirappalli and in O.S.No.1413 of 2009, dated 28.08.2014, on
the file of the Principal District Munsif Court, Trichirappalli.
2.The appellant, as plaintiff, filed a suit in O.S.No.1413 of
2009 seeking for the relief of permanent injunction restraining the
defendants from interfering with the peaceful possession and
enjoyment of the suit property and for mandatory injunction
asking the third defendant to cancel the sale deed, dated
12.11.2008 in Document No.11266/2008 in the Sub-Registrar
Office, Thiruverumbur.
3.The case of the appellant is that the suit property is a
cultivable land. The first defendant is the owner of the suit property
and she had executed a sale deed in favour of the plaintiff in respect
of the suit property on 12.06.2008. In pursuance of the sale, the
plaintiff was put in possession and he was in possession and
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enjoyment of the suit property. The pattas were changed in the
name of the plaintiff and he has been paying the kist for the suit
property. He had executed a simple mortgage in respect of the suit
property in favour of one T.Raman on 13.06.2008 and that be the
position, the plaintiff came to know that the first defendant sold the
same property to the second defendant on 12.11.2008. Since the
property was under-valued, proceedings under Section 47(1)(b) of
the Indian Stamp Act was initiated. In the said circumstances, the
suit is filed for the aforesaid relief.
4.In the written statement filed by the first defendant, it is
stated that the sale deed executed in favour of the plaintiff, dated
12.6.2008, is not true. The defendant denies the truth, validity,
execution and attestation of the sale deed, dated 12.06.2008. The
thumb impression in the sale deed is not that of the first defendant
and it is a rank forgery document. The plaintiff was not given the
possession and he is not in possession and enjoyment of the suit
property. The mortgage deed, dated 13.06.2008 in favour of one
T.Raman is a created document. All the other documents are also
created by the plaintiff. The first defendant, being the owner of the
suit property, sold the property to the second defendant through
her power of attorney agent on 12.11.2008. ‘’A’’ Register of the suit
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property stood in the name of the first defendant for the year 1996
and 1997 and the first defendant prays for the dismissal of the suit.
5.On the basis of the aforesaid pleadings, the trial Court
framed the following issues and additional issues:
Issues:-
1.Whether the plaintiff is in possession of the suit property?
2.Whether the plaintiff is entitled to permanent injunction
relief as prayed for?
3.To what other relief, the plaintiff is entitled?
Additional Issues:
1.Whether the plaintiff is entitled for the relief of mandatory
injunction as prayed for by the plaintiff?
6.At trial, P.W.1 was examined and Ex.A1 to Ex.A10 were
marked and on the side of the defendants, no oral or documentary
evidence was produced. On going through the oral and documentary
evidence, the learned trial Judge found that the first defendant had
already sold the property to the plaintiff through Ex.A1 sale deed
and when that was established, she cannot again sell the property
to the second defendant. In this view of the matter, the suit was
decreed as prayed for. Challenging the judgment, the first defendant
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filed an appeal in A.S.No.173 of 2015 and the learned appellate
Judge concurred with the findings of the trial Court and dismissed
the appeal. Thus the first defendant is before this Court by filing
the present Second Appeal.
7.The learned counsel for the appellant submitted that when
the first defendant had specifically denied that the sale deed
executed in Ex.A1 is a rank forgery document and that the thumb
impression in the sale deed is not that of the first defendant,it is for
the plaintiff/first respondent to prove that the first defendant had
executed the sale deed. However, the first respondent/Plaintiff had
not taken any steps to prove Ex.A1-sale deed. The first respondent
has not taken Ex.A1-sale deed to the Finger Print Expert opinion.
Attestors to the sale deed was not examined. Therefore, when
Ex.A1-sale deed is not proved in the manner known to law and the
Court below is not right in placing reliance on Ex.A1-sale deed.
8.It is his further submission that when the title of the
plaintiff/first respondent is seriously disputed, the plaintiff should
have sought for the relief of declaration of his title. But no such
prayer was asked. The suit was filed only for the relief of injunction
alone. In the facts and circumstances, especially, the defense put
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up by the first defendant, that suit filed without the prayer of
declaration of title, is not maintainable. In this regard, the learned
counsel for the appellant pressed into service the judgment of the
Honourable Apex Court in the case of T.V.Ramakrishna
Reddy .vs. M.Mallappa reported in AIR 2021 Supreme Court
4293.He prayed for reversing the judgment of the Courts below and
prayed for dismissal of the suit.
9.In reply to the submission, the learned counsel for the first
respondent submitted that the averments made in the written
statement are not supported by any evidence. The alleged
purchaser namely, the second defendant was set ex-parte before
the trial Court. He is the best person interested in defending the
plaintiff’s suit, but, he did not contest the suit before the trial Court
or agitated the trial Court’s judgment before the first appellate
Court by filing an appeal. The first defendant’s husband is one of
the attestors of Ex.A1-sale deed. Both the attestors were dead and
therefore, they could not be examined. The sale deed in Ex.A1 is a
registered document and it is not open to the appellant to challenge
the contents of the sale deed. There is a prohibition under Section
92 of the Indian Evidence Act. Thus he prayed for the dismissal of
the Second Appeal.
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10.This Court considered the rival submissions made on either
side and perused the records.
11.From the case projected in the pleadings, documents and
the evidence of the parties, it is not in dispute that the first
defendant was the owner of the suit property. It is also not in
dispute that the first defendant had executed a sale deed in favour
of the second defendant on 12.11.2008. The case of the plaintiff is
that the first defendant had already sold the suit property to the
plaintiff through Ex.A1-sale deed on 12.06.2008. In that case, sale
of suit property again to the second defendant on 12.11.2008, is
illegal. As already narrated, the case of the first defendant is that
she has not executed the sale deed, dated 12.06.2008 and the
thumb impression found in the sale deed is not that of her.
12.From the oral and documentary evidence, it is seen that
the plaintiff has produced Ex.A1 to Ex.A10. Ex.A1 is the disputed
sale deed, Ex.A2 is the patta in respect of the suit property in
favour of the plaintiff. Ex.A4 is the order of the Food Supply
Tahsildar, Tiruchirappalli to the Village Administrative Officer,
Poolangudi. Ex.A5 is the kist receipts standing in the name of the
plaintiff. After sale in favour of the second defendant, the plaintiff
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had given a complaint to the Police and the copy of the complaint
is produced as Ex.A7. Ex.A9 shows that prior to the execution of
sale deed, dated 12.06.2008, there was a sale agreement between
the first defendant and the plaintiff on 23.01.1981. The copy of the
First Information Report registered in pursuance of the complaint
of the plaintiff is Ex.A10. It is also seen that the plaintiff had
mortgaged the suit property in favour of one T.Raman on
13.6.2008. However, the copy of this document is not produced
before the Courts below. Perusal of Ex.A2, Ex.A3, Ex.A4, Ex.A5,
Ex.A7 and Ex.A10 show that in pursuance of sale deed, dated
12.06.2008, revenue records have been mutated in the name of the
plaintiff and the plaintiff has been in possession and enjoyment of
the suit property.
13.In Ex.A1-sale deed, first defendant’s husband Periyasamy
had attested in support of execution of this document along with
Mallappan, son of Sangili Muthu. The trial Court has recorded that
both the attestors are dead and no more and therefore, they could
not be examined. Ex.A1-sale deed is a registered sale deed and it
is preceded by a sale agreement. The first defendant’s husband
stood as one of the attestor to Ex.A1-sale deed. Both the attestors
are no more. By production of Ex.A1,Ex.A9, revenue records, Police
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complaint and FIR referred to above, the plaintiff has clearly
established that the first defendant had executed the sale deed in
favour of the plaintiff and mutation of revenue records was also
done and that the plaintiff is in possession and enjoyment of the suit
property.
14.When this Ex.A1-sale deed is disputed by the first
defendant claiming that it is a rank forgery document and that the
thumb impression found in Ex.A1-sale deed is not that of him,
then, in the facts and circumstances of the case and evidence
available, it is the primary duty of the appellant/first defendant to
prove this claim. She should have taken the sale deed to the Finger
Print Expert’s opinion. Strangely, she has not chosen to do that. The
best person interested to challenge the plaintiff’s suit is the second
defendant, who is the purchaser through sale deed, dated
12.11.2008. Curiously, he remained ex-parte throughout the
proceedings before the Courts below.
15.When considering the scope of Section 92 of the Indian
Evidence Act, 1872, in Mangala Waman Karandikar(dead)
through legal representatives v. Prakash Damodar Ranade
reported in (2021) 6 SCC 139, the Hon'ble Supreme Court has
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held as follows:
“14......92.Exclusion of evidence of oral
agreement.—When the terms of any such
contract, grant or other disposition of property,
or any matter required by law to be reduced to
the form of a document, have been proved
according to the last section, no evidence of any
oral agreement or statement shall be admitted,
as between the parties to any such instrument
or their representatives in interest, for the
purpose of contradicting, varying, adding to, or
subtracting from, its terms:
Proviso (6).—Any fact may be proved which
shows in what manner the language of a
document is related to existing facts.”
15. It is manifest from these two sections
that it is only in cases where the terms of the
document leave the question in doubt, then
resort could be had to the proviso. But when a
document is a straightforward one and presents
no difficulty in construing it, the proviso does not
apply. In this regard, we may state that Section
95 only builds on Proviso (6) of Section 92.
16.If the contrary view is adopted as
correct it would render Section 92 of the
Evidence Act, otiose and also enlarge the ambit
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of Proviso (6) beyond the main section itself.
Such interpretation, provided by the High Court
violates basic tenets of legal interpretation.
[Rohitash Kumar v. Om Prakash Sharma, (2013)
11 SCC 451 at p. 459 : (2013) 3 SCC (L&S)
368] Section 92 specifically prohibits evidence of
any oral agreement or statement which would
contradict, vary, add to or subtract from its
terms. If, as stated by the learned Judge, oral
evidence could be received to show that the
terms of the document were really different from
those expressed therein, it would amount to
according permission to give evidence to
contradict or vary those terms and as such it
comes within the inhibitions of Section 92. It
could not be postulated that the legislature
intended to nullify the object of Section 92 by
enacting exceptions to that section.
16.With regard to the submission of the learned counsel for
the appellant that the suit filed without the prayer for declaration of
title, the suit for injunction cannot be maintained on the basis of
the judgment referred to supra, this Court finds that the facts in
both the cases are totally different. In the case cited by the
appellant, the plaintiff claimed title only on the basis of revenue
entry, whereas, in the case before hand, the plaintiff claimed title
to the suit property through Ex.A1-sale deed executed by the first
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defendant. As already discussed, there is a clear evidence to show
that the first defendant had sold the suit property to the plaintiff
and thereafter, necessary mutation of revenue records took place.
The first defendant cannot give evidence against Ex.A1-sale deed.
Plaintiff is in possession and enjoyment of the suit property. In the
said circumstances, the suit for permanent injunction, in the
considered view of this Court,is maintainable. This Court is of the
view that the Courts below have properly appreciated the evidence
and decreed the suit.
17.In Sir Chunilal V. Mehta and Sons .vs.The Century
Spinning Co. Limited reported in AIR 1962 SC 1314, the
Honourable Supreme Court formulated what amounts to a
substantial question of law, as follows:
1.Whether it is of general public importance (or)
2.Whether it directly and substantially affects the rights of
parties and if so;
3.Whether it is either an open question (in the sense not
finally settled by this Court or Privy Council or Federal Court) (or);
4.The question is not free from difficulty and calls for
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discussion of alternative views;
18.In the case before hand, the appellant has not made out
any of the aforesaid grounds to formulate substantial question of
law. There is no substantial question of law arises for consideration
in this Second Appeal. Thus this Court finds that there is no cause
for interference in the judgments of the Courts below and hence,
the Second Appeal is dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
27.11.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Ist Additional Subordinate Judge,
Tiruchirappalli.
2.The Principal District Munsif,
Tiruchirappalli.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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G.CHANDRASEKHARAN,J.
vsn
JUDGMENT MADE IN
S.A(MD)NO.280 OF 2021
and
27.11.2023
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