Madras High Court
Sri Sivagragha Yogigal Adheenam vs K.Radha on 8 September, 2023
S.A.No.971 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.09.2023
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.No.971 of 2002
Sri Sivagragha Yogigal Adheenam,
Suriyanar Koil,
Rep. by its 27th Gurumaha Sannidhanam,
Sri-La-Sri Sankaralinga Paramacharya Swamigal,
Sooriyanarkoil, Thirumangalakudi Post,
Thiruvidaimarudur Taluk, Valangaiman Munsifi. ...Appellant
vs.
1.K.Radha
2.K.Shanmugam
3.K.Sundaram ... Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 07.03.2002 in A.S.No.
43 of 2001 on the file of the Additional Subordinate Judge,
Kumbakonam reversing the Judgment and Decree dated 09.09.1999 in
O.S.No.165 of 1998 on the file of the District Munsif, Valangaiman.
For Appellant : Mr.K.Govindarajan
for M/s.Sarvabhauman Associates
For Respondents : No appearance
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S.A.No.971 of 2002
JUDGMENT
The appellant is the plaintiff in the suit in O.S.No.165 of 1998 on
the file of the District Munsif, Valangaiman at Kumbakonam. The
respondents are the defendants in the above suit.
2. The suit was filed by the appellant / plaintiff seeking for
permanent injunction restraining the respondents / defendants and their
men from interfering with the appellant / plaintiff's peaceful possession
and enjoyment of the suit property.
3. The case of the plaintiff is that the suit property belongs to the
plaintiff and they they are in possession and enjoyment of the same.
There is fencing to the north and west of the suit property and wall to the
east of the suit property. Coconut trees are available in the suit property
and they are enjoying the benefits of the same. Pits are being dug for the
purpose of planting coconut saplings. A suit in O.S.No.417 of 1994 was
filed by the plaintiff against the husband of the first defendant and father
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S.A.No.971 of 2002
of the defendants 2 and 3, namely, Kaliyamoorthi and one Jegannadhan.
Pending suit, Kaliyamoorthi passed away. Judgment and Decree was
granted against Jegannadhan. The defendants have no right or title over
the suit property. The second defendant, as a tenant, is cultivating some
other lands that belong to the plaintiff. However, lease was not paid
correctly. The defendants sought to take some portion of the suit
property on lease. However, Adheenam did not consent to the same.
Therefore, on 12.08.1998, the defendants tried to encroach the suit
property. However, the plaintiff's men prevented them from doing so.
The plaintiff feels that there would be interference by the defendants.
Hence, the suit.
4. The case of the defendants is that the defendants 2 and 3 are the
sons of the first defendant. It is true that the plaintiff is the absolute
owner of the suit property. However, it is false that the entire suit
property is under Pannai cultivation of the plaintiff. The husband of the
first defendant, namely, Kaliyamoorthi, cultivated the 71 cents of land of
the suit property on lease. After the demise of Kaliyamoorthi, the
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S.A.No.971 of 2002
defendants and the other sons of Kaliyamoorthi, namely, Madhavan and
Kannadasan were cultivating the said 71 cents of land. Madhavan and
Kannadasan have not been added as parties to the suit. Hence, the suit is
bad for non-joinder of parties. After the lease in favour of the first
defendant's husband, the said 71 cents of land was never in possession of
the plaintiff. The defendants did not claim any right apart from the above
said 71 cents of land in the suit property. The description of the suit
property is not correct. The suit in O.S.No.417 of 1994 already filed by
the plaintiff was dismissed. Hence, the present suit is barred under res
judicata. The plaintiff has not contributed any work in the above 71
cents of land in the suit property. The defendants have done all the
works therein. Nothing as alleged in the plaint happened on 12.08.1998.
Therefore, there is no cause of action for the suit. It is true that the
second defendant is a tenant in respect of the nanja land belonging to the
plaintiff. However, there is no arrears of rent. The defendants, as
cultivating tenants, are in possession and enjoyment of the said 71 cents
of land and therefore, there is no necessity for them to request the
plaintiff to grant lease of the said land. The suit is affected under Tamil
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S.A.No.971 of 2002
Nadu Act 57/61. The Court fee is not paid correctly. Hence, the
defendants prayed that the suit be dismissed with costs.
5. Before the Trial Court, the plaintiff has examined PW1 to PW4
and marked 1 document as Ex.A1 in order to substantiate their case. The
defendants examined two witnesses DW1 and DW2 including the third
defendant (DW1) and marked 9 documents as Exs.B1 to B9 in order to
substantiate their case.
6. After analyzing the oral and documentary evidence on record
and after hearing the submissions on both sides, the Trial Court came to
the conclusion that the suit property belongs to the plaintiff. The Trial
Court disbelieved the Ex.B3 Lease Deed since the defendants failed to
prove that Ex.B3 was executed as per Order XXI Rule 21(4) of the Tamil
Nadu Public Trusts (Regulation of Administration of Agricultural Lands)
Act, 1961. The Trial Court has also observed that since Ex.B3 has not
been proved, Ex.B4 receipt and Ex.B5 letter attain no significance and
the same cannot be relied upon in the present case. Therefore, the Trial
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S.A.No.971 of 2002
Court concluded that the plaintiff has been in possession and enjoyment
of the suit property and granted Judgment and Decree as sought for by
the plaintiff.
7. Aggrieved over the said Judgment and Decree, an appeal was
filed by the defendants in A.S.No.43 of 2001 on the file of the Additional
Subordinate Judge, Kumbakonam. After hearing both sides, the first
Appellate Court came to the conclusion that after the demise of
Kaliyamoorthi, the husband of the first defendant, the defendants are
cultivating the 71 cents of land in the suit property and are in possession
and enjoyment of the same. The first Appellate Court, therefore, set
aside the Judgment and Decree granted by the Trial Court. Aggrieved
over the same, the appellant / plaintiff filed the present Second Appeal.
8. This Court admitted this appeal on 26.06.2002, by framing the
following substantial questions of law.
"1. When Ex.B3 is not in conformity with
Section 21 of the Tamil Nadu Public Trust
(Regulation of Administration) Act 57/61 read
with Section 4 (B) (I) of the Tamil Nadu Act 25
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S.A.No.971 of 2002
of 1955 and the benefit of exemption from
stamp duty is not available, whether the lower
Appellate Court is justified in law in relying
upon Ex.B3 which is unstamped and
unregistered? (vided 1984 TLNJ 260)
2. When Ex.B3 lease deed is a fabricated
document, which is inadmissible and invalid
for want of stamp duty and registration,
whether the Lower Appellate Court is correct
in law in deciding the rights of the parties on
the basis of Ex.B3?
3. Whether the Lower Appellate Court is
justified in law in discarding the evidence of
PW2, the Revenue Official and the admission
of DW1, which would categorically establish
that the respondents are not in possession of 71
cents as claimed by them?
4. Whether the lower Appellate Court is
correct in law in reversing the Judgment and
Decree of the Trial Court without setting aside
any of the findings rendered by the Trial Court
in favour of the appellant?"
9. The learned counsel appearing for the appellant / plaintiff would
submit that the appellant / plaintiff is the absolute owner of the suit
property. The appellant / plaintiff had never signed the Ex.B3 Lease
deed. It is a forged one. Further Ex.B3 cannot be considered to be a
valid document, since it is an unregistered document. As far as Ex.B4
receipt and Ex.B5 letter are concerned, the learned counsel would submit
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S.A.No.971 of 2002
that they are not only fabricated but are also not related to the suit
property. The suit was filed in the year 1998. Exs.B6 and B7 receipts
are of the year 1996 and 1997 i.e., the receipts are issued just prior to two
years of filing of the suit. The receipts are also not signed by the
appellant / plaintiff, which shows that the respondents / defendants have
created those documents only for the purpose of this case. The learned
counsel further relied upon the evidence of PW3 and PW4 and contended
that PW3 has stated that the respondents / defendants have never enjoyed
the suit property. PW3 and PW4 have further categorically stated that
the appellant / plaintiff was doing all the repair works and has been in
possession and enjoyment of the suit property. Facts being so, the first
Appellate Court blindfoldedly accepted the Ex.B3 Lease Deed and
reversed the Judgement and Decree passed by the Trial Court. Hence,
the learned counsel submitted that it is necessary to interfere with the
Judgement and Decree passed by the first Appellant Court and the same
is liable to be set aside.
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S.A.No.971 of 2002
10. Notice has been served to the respondents 1 and 2. After
service of notice, the first respondent / first defendant passed away. Her
Legal Representatives are the second and third respondents and they are
already on record. The Second Appeal was already dismissed as against
the third respondent vide order dated 09.07.2018. The name of the
second respondent has been printed in the cause list. However, there is
no appearance on behalf of him. The Appeal is of the year 2002, even
then, there is no appearance for the second respondent, which shows that
he has no interest to contest the case. Therefore, this Court, after hearing
the learned counsel for the appellant and perusing the oral and
documentary evidence on record, proceeded to pass orders.
11. According to the respondents / defendants, 71 cents of land of
the suit property was leased out to the first respondent's husband, namely,
Kaliyamoorthi, by way of Ex.B3 Lease Deed dated 11.01.1973.
Subsequently, the husband of the first respondent has passed away and
the respondents / defendants are being in possession and enjoyment of
the said 71 cents of land. In support of their claim, they have filed Ex.B4
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S.A.No.971 of 2002
receipt issued for payment of Rs.81/- by Kaliyamoorthi to the Temple
towards Lease, Ex.B5 letter written by Srilasri Velappa Thesigar to
Kaliyamoorthi and Exs.B6 and B7 receipts issued for payment of Lease
Amount. However, according to the appellant / plaintiff, they have never
executed Ex.B3 Lease Deed. It was not signed by them. It is a forged
one. They have also not issued any receipts Exs.B4, B6 & B7 as alleged
by the respondents / defendants.
12. Admittedly, the appellant / plaintiff is the owner of the suit
property. Even assuming that the Ex.B3 Lease Deed was signed and
executed by the appellant / plaintiff, it is an admitted fact that the same
was not registered legally. Lease created by way of an unregistered
document is valid for only one year. Furthermore, Lease Deed was
executed only against the husband of the first respondent / first
defendant. Now he is no more. All these aspects would prove that the
Ex.B3 Lease Deed is not a valid document and the same cannot be relied
upon in the present case. That apart, during the oral evidence, DW1
himself has deposed that the respondents / defendants have no house in
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S.A.No.971 of 2002
the 71 cents of land and only third parties are residing therein. Mere
reading of the evidence of PW1 and PW3 would prove that the
respondents / defendants are not in possession and enjoyment of the suit
property. After considering the oral and documentary evidence in toto,
this Court is of the opinion that the first Appellant Court ought not have
given much weight for the unregistered document Ex.B3 Lease Deed. It
is contradictory to the provisions of law. Further, the receipts Exs.B6 &
B7 marked on the side of the respondents / defendants are of the year
1996 and 1997, which are just one year and two year prior to the date of
filing of the suit. No document, whatsoever, has been marked for the
period from 1975 to 1995. Furthermore, Exs. B6 & B7 have not been
signed by the appellant / plaintiff. The first Appellate Court failed to
consider all the above facts and committed a fatal legal error. In view of
the above observations, this Court is of the firm view that the
respondents / defendants are not in possession and enjoyment of any
portion of the suit property. Admittedly, there is no dispute with regard
to the title of the suit property. Since, the respondents / defendants have
failed to establish that they are in possession and enjoyment of the suit
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S.A.No.971 of 2002
property, certainly, based on the title, the presumption available is that
the appellant / plaintiff is in possession of the suit property. Therefore,
the appellant / plaintiff is entitled for the relief sought for in the suit.
Accordingly, the substantial questions of law framed by this Court are
answered in favour of the appellant / plaintiff.
13. Therefore, for the reasons stated above, the Judgment and
Decree dated 07.03.2002 in A.S.No.43 of 2001 on the file of the
Additional Subordinate Judge, Kumbakonam is set aside. The Second
Appeal is allowed. The Judgment and Decree dated 09.09.1999 in
O.S.No.165 of 1998 on the file of the District Munsif, Valangaiman is
hereby upheld. No costs.
08.09.2023
NCC:Yes/No
Index:Yes/No
Speaking/Non-speaking order
mbi
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S.A.No.971 of 2002
To
1.The Additional Subordinate Judge, Kumbakonam
2.The District Munsif, Valangaiman
3.The Section Officer,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.971 of 2002
KRISHNAN RAMASAMY, J.
mbi
S.A.No.971 of 2002
08.09.2023
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