Madras High Court
K.Selvamuthukumar vs S.R.Krishnan on 12 April, 2024
S.A(MD)Nos.501 of 2017 and 476 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 15.02.2024
Pronounced on : 12.04.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.VADAMALAI
S.A(MD)Nos.501 of 2017 and 476 of 2021
and
C.M.P(MD)No.6355 of 2021
S.A(MD)No.501 of 2017
K.Selvamuthukumar ... Appellant/Appellant/Plaintiff
Vs.
S.R.Krishnan ... Respondent/Respondent/Defendant
PRAYER in S.A(MD)No.501 of 2017:-
This Second Appeal is filed under Section 100 of the Civil Procedure
Code, to set aside the decree and judgment passed by the Principal District
Judge, Sivagangai, dated 24.11.2016 in A.S.No.30 of 2015, confirming the
decree and judgment of the Subordinate Judge, Sivagangai, dated 09.06.2015
passed in O.S.No.9 of 2007 and decree the suit as prayed for with costs.
1/29
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S.A(MD)No.476 of 2021
K.Selvamuthukumar ... Appellant/Appellant/Defendant
Vs.
S.R.Krishnan ... Respondent/Respondent/Plaintiff
PRAYER in S.A(MD)No.476 of 2021:-
This Second Appeal is filed under Section 100 of the Civil Procedure
Code, to set aside the decree and judgment passed by the Subordinate Judge,
Manamadurai, dated 07.04.2021 in A.S.No.162 of 2019, confirming the
decree and judgment of the Principal District Munsif, Manamadurai, dated
14.07.2017 passed in O.S.No.53 of 2007 and dismiss the suit with costs
throughout.
For Appellant : Mr.S.Parthasarathy in both SAs
For Respondent : Mr.K.K.Kannan in both SAs
COMMON JUDGMENT
The Second Appeal in S.A(MD)No.501 of 2017 is filed against the
judgment and decree dated 24.11.2016 passed in A.S.No.30 of 2015 on the
file of the Principal District Court, Sivagangai, confirming the judgment and
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decree dated 09.06.2015 passed in O.S.No.9 of 2007 on the file of Sub Court,
Sivagangai.
2. The appellant is the plaintiff and the respondent is the defendant in
O.S.No.9 of 2007 on the file of Sub Court, Sivagangai. The appellant/plaintiff
filed the suit for recovery of money.
3. The Second Appeal in S.A.(MD)No.476 of 2021 is filed against the
judgment and decree dated 07.04.2021 passed in A.S.No.162 of 2019 on the
file of the Sub Court, Manamadurai, confirming the judgment and decree
dated 14.07.2017 passed in O.S.No.53 of 2007 on the file of the Principal
District Munsif Court, Manamadurai.
4. The appellant is the defendant and the respondent is the plaintiff in
O.S.No.53 of 2007 on the file of the Principal District Munsif Court,
Manamadurai. The respondent/plaintiff filed the suit for ejectment.
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5. For the sake convenience, the parties are referred as plaintiff and
defendant as arrayed in O.S.No.9 of 2007 on the file of the Sub Court,
Sivagangai.
6. Case of the plaintiff: (Case of the appellant K.Selvamuthukumar)
The suit property belonged to the defendant. On 22.01.2000 the
defendant borrowed Rs.1,50,000/- from the plaintiff and the defendant
accepted that in lieu of interest the plaintiff would be in possession of the suit
property. To that effect, the defendant executed an unregistered Othi deed in
favour of the plaintiff. The plaintiff demanded repayment of money from the
defendant, who failed to repay. When dispute arose between them, the
plaintiff presented petition before the District Collector, Sivagangai. That
petition was forwarded to the Police Station, Thiruppachethi for disposal.
During police enquiry, the defendant agreed about the othi loan and executed
a consent letter dated 16.10.2004 in the presence of the police official and
gave undertaking that he would repay the loan amount with other expenses
incurred by the plaintiff regarding repair works and tax within 22.01.2005. in
spite of that also, the defendant has not repaid the loan amount. Hence, the
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plaintiff sent legal notice dated 18.10.2006. The defendant sent reply notice
dated 20.11.2006 alleging the plaintiff is in the suit property as a tenant, who
paid Rs.5,000/- as advance and monthly rent is Rs.1,000/-. The contents
stated in the reply notice are false. Therefore, the plaintiff filed the suit for
recovery of Rs.1,50,0000/-.
7. Case of the Defendant: (Case of respondent S.R.Krishnan)
The defendant never paid Rs.1,50,000/- to the plaintiff and never
executed the alleged deed. The plaintiff’s father is retired employee of
revenue department and at this instance the plaintiff forged the alleged deed.
The defendant stated this fact in his reply notice. The plaintiff has to prove
legally that his father filed a petition to District Collector and it was
forwarded for police enquiry, in the said police enquiry the defendant
admitted the obtaining of loan of Rs.1,50,000/- and also executed an
undertaking letter dated 16.10.2004. The unregistered Othi deed and the
alleged letter executed before police officials are not legally acceptable. The
plaintiff has been inducted as tenant in the suit property, which is belonged to
the defendant. The plaintiff agreed to pay monthly rent at Rs.1,000/- p.m. and
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also paid Rs.5,000/- as advance. The relationship between the defendant and
the plaintiff is only landlord and tenant. Again the plaintiff gave another
petition to the District Collector and the same was forwarded for police
enquiry, after police enquiry the said petition was closed on 20.10.2005.
Thereafter, the plaintiff did not pay rent and the advance was adjusted from
December 2005 to April 2006. The plaintiff is in arrears of rent from May
2006. The defendant issued reply legal notice to the plaintiff. Further, even
prior to suit on 28.02.2007 the defendant issued legal notice to the plaintiff
seeking possession as per Transfer of Property Act. The plaintiff gave reply
on 5.3.2007. These facts were suppressed by the plaintiff So, the suit is liable
to be dismissed.
8. On the same set facts, the defendant (S.R.Krishnan) filed suit for
ejectment in O.S.No.53 of 2007 on the file of the Principal District Munsif
Court, Manamadurai against the plaintiff (K.Selvamuthukumar), who resisted
the case for ejectment alleging the same averments made in plaint in O.S.No.9
of 2007.
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Before the Trial Court
9. During trial of O.S.No.9 of 2007, on the side of the plaintiff, the
plaintiff was examined as P.W.1 and two witnesses were examined as P.W.2
and P.W.3 and marked 7 exhibits as Ex.A.1 to Ex.A.7. On the side of the
defendant, two witnesses were examined as D.W.1 and D.W.2 and Ex.B.1 to
Ex.B.8 were marked. Ex.X1 and Ex.X2 were also marked.
10. After hearing both the learned Sub Judge, Sivagangai concluded
that the plaintiff is not entitled to the suit amount and dismissed the suit by
passing judgment and decree dated 09.06.2015. Aggrieved by the judgment
and decree in O.S.No.9 of 2007, the plaintiff preferred the Civil Appeal in
A.S.No.30 of 2015 before the District Court, Sivagangai. The First Appellate
Court after hearing both and after perusing material records of the case
dismissed the appeal in A.S.No.30 of 2015 by passing judgment dated
24.11.2016 and confirmed the judgment and decree passed in O.S.No.9 of
2007.
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11. Challenging the judgment and decree of the First Appellate
Court, the defendant has preferred this Second Appeal in S.A.(MD)No.501 of
2017 and the same has been admitted for file on 02.03.2021 on the following
substantial questions of law:-
(i) Whether the courts below were right in
concluding that the plaintiff has not proved Ex.A.1 on the
ground that the stamp paper, on which it is written, stands
in the name of a different person, overlooking the fact that
the Sub-Rule (2) Rule 6 of the Indian Stamp Act, which
requires the document to be written on a stamp paper
which was purchased either in the name of party of the
document or power of attorney of the party, has been
omitted by G.O.Ms.No42602/6-2/1983, dated 20.08.1983?
(ii) Whether the Courts below were right in
concluding that Article 29 of the limitation Act would
apply, despite the fact that the document prescribed a
particular period for repayment?
(iii) Whether the Courts below are right in rejecting
the evidence of D.W.2 when he has specifically deposed
supporting the case of the plaintiff and has not been
treated as a hostile witness by the defendant under section
154 of the Evidence Act.?
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O.S.No.53 of 2007 (filed by defendant S.R.Krishnan in O.S.
No.9 of 2007)
12. During trial of O.S.No.53 of 2007, on the side of the plaintiff, the
plaintiff was examined as P.W.1 and one B.Muthu was examined as P.W.2
and marked 10 exhibits as Ex.A1 to Ex.A10. On the side of the defendant
(K.Selvamuthukumar/plaintiff in O.S.No.9 of 2007), two witnesses were
examined as D.W.1 and D.W.2 and Ex.B1 to Ex.B6 were marked.
13. After hearing both the learned Principal District Munsif,
Manamadurai concluded that the plaintiff is entitled to the suit claim of
ejectment and decreed the suit by passing judgment and decree dated
14.07.2017. Aggrieved by the judgment and decree in O.S.No.53 of 2007,
the defendant (K.Selvamuthukumar/Plaintiff in O.S.No.9 of 2007) preferred
the Civil Appeal in A.S.No.162 of 2019 before the Sub Court, Manamadurai.
The First Appellate Court after hearing both and after perusing material
records of the case dismissed the appeal in A.S.No.162 of 2019 by passing
judgment dated 07.04.2021 and confirmed the judgment and decree passed in
O.S.No.53 of 2007.
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14. Challenging the judgment and decree of the First Appellate
Court, the defendant has preferred this Second Appeal in S.A.(MD)No.476 of
2021 and the same has been admitted for file on 17.02.2022 on the following
substantial question of law:-
'' Whether the Courts below were right in holding
that it is not necessary to go into the genuineness of
Exhibit B.2 unregistered mortgage deed on the ground
that the same has already been decided by the Courts in
a connected proceedings when the connected
proceedings are already pending in an admitted second
appeal?''
15. Heard both sides and perused the records in these Second Appeals.
The learned counsel for the appellant/plaintiff made lengthy arguments by
relying catena of citations. Per contra the learned counsel for the
respondent/defendant also made lengthy arguments against the case of the
plaintiff.
16. On hearing both and on perusal of records, it is mainly attacked on
the unregistered Othi document, which is marked as Ex.A1 in O.S.No.9 of
2007 and as Ex.B2 in O.S.No.53 of 2007. It is also mainly attacked on the
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alleged letter executed by the defendant before police official during enquiry
upon the petition allegedly given by the father of the plaintiff.
17. The learned counsel for the appellant/plaintiff argued that the suit
property is dwelling house, the possession of which was given to the plaintiff
on receipt of Rs.1,50,000/- by the respondent/defendant on execution Ex.A1
unregistered Othi deed. At the time of execution, the deed was unregistered
and the document was marked on payment stamp duty penalty. The learned
counsel for the appellant/plaintiff submitted that though the Ex.A1 is
unregistered, it can be used for collateral purpose i.e., the amount received by
the defendant can be taken into consideration. He further argued that
according to document, the defendant received Rs.1,50,000/- on 22.01.2000
and so, the plaintiff has proved the advance of loan of Rs.1,50,000/-, but the
Courts below failed to appreciate the contents of the documents. In support
of his argument, the learned counsel for the appellant relied on the following
citations:
(1) 2001 (1) Law Weekly 613 (Joseph, P /v/
M.T.Santiagu)
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(2) 1997 (2) CTC 517 (Kousalya Ammal /v/ Valliammal)
(3) (2008) 3 MLJ 1488 (Mad NOC) (Murugan /v/
Sumathradevi & Anr.)
(4) (2009) 1 MLJ 961 (Selvan /v/ Mohamad Gani)
(5) 2004 (1) Law Weekly 706 (Bondar Singh & Ors /v/
Nihal Singh & Ors.)
(6) 2014 (3) Law Weekly 609 (K.R.Sivadesikan Pillai /v/
Ravichandran)
(7) 2014 (6) CTC 773 (R.Munusamy /v/ G.Krishttappillai
and Ors.)
18. On consideration of the above citations, except the citation
2014-3 Law Weekly 609, other citations were arisen out of Civil Revision
Petitions. Of course, on consideration of the above citations, unregistered
document can be marked as evidence for any collateral transaction. However,
in this case, the respondent/defendant vehemently contended that the
document was created and forged at the instance of the plaintiff’s father, who
was working as revenue official. When the said document resisted as forged
by the defendant, it is bounden duty of the plaintiff to establish or prove the
said unregistered Othi as rightly observed by the Courts below.
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19. On perusal of Ex.A1 - Othi deed, the stamp paper was sold by one
V.Muthukrishnan, Court Stamp Vendor, Palayamkottai, Tamilnadu and it
was purchased by one Mani, Madurai. Date of sale of stamp paper is
30 Nov 1999. The said stamp paper is used for writing of Othi as if executed
by the defendant in favour of the plaintiff both were residing at
Thiruppachethi Village of Sivagangai District on 22.01.2000. At this
juncture, the appellant/plaintiff’s side submitted that as sub rule (2) of Rule
6 of the Indian Stamp Act, that ''Every paper, on which the stamp has been
engraved or embossed purchased by a person or his duly constituted attorney
either by act of parties or by operation of law or by status, shall be used only
for the purpose of executing a document, in which that person or his duly
constituted attorney is party'', that sub rule was omitted by G.O.Ms.No.
42602/6-2/1983, dated 20.08.1983 by the Tamil Nadu Government and
hence, there is no bar in using the stamp paper by the plaintiff though it
stands in some other name.
20. It is the definite case of the defendant, since the plaintiff’s father
was working in revenue department at his instance the stamp paper was used
for forging the document. The plaintiff did not deny that his father working
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in revenue department. Section 2 (11) of the Indian Stamp Act, defines how
a document should be duly stamped. Section 35 states that the instrument not
duly stamped is inadmissible in evidence. Though the Rule 6 (2) was omitted,
the plaintiff has not established that a stamp paper purchased by a person can
be used by some other person at some other district. The Courts below
correctly appreciated the evidence of the plaintiff as P.W.1, who deposed in
his cross examination that “ehd; gpujpthjpf;F bfhLj;j fld;
bjhiff;fhf mth; vdf;F xU xj;jp Mtzk;
vGjpf;bfhLj;jpUf;fpwhh;. 22.03.2000 md;W gj;jpu fhfpjk; thq;fpa md;nw
th.rh.M.1 vGjg;gl;lJ.....” P.W.2 - Sathiyamoorthy, who is the scribe of
the said document deposed as “th.rh.M.1 Kj;jpiuj;jhs;
ghisaq;nfhl;il Kj;Jf;fpU];zd; vd;gthplk; ,Ue;J kJiuiar;
nrh;e;j kzp vd;gth; bgahpy; thq;fg;gl;ljhf cs;sJ. Rhl;rpfspy;
rg;ghzp vd;gth; Kjypy; ifbahg;gk; ,l;L jd; jfg;gdhh; bgaiu
vGjpdhh;/ mjd; gpd;dh; jq;frhkp ifbaGj;J nghl;L mtuJ mg;gh
bgaiu vGjpdhh;…” One of the witnesses to the document Thangasamy
was examined as P.W.3 who deposed that ‘vGjpaJk; rhl;rpa[k; vd;W
th.rh.2 jpU.rj;jpa:K:h;j;jp ifbahg;gk; ,l;lij jhd; ghh;f;ftpy;iy”.
On perusal of Ex.A.1 – Deed, the witnesses have not written their father’s
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name. On perusal of evidence of plaintiff as P.W.1 admitted that P.W.2 is his
relative and P.W.3 is friend of his father. In the above circumstances, the
Courts below correctly came to the conclusion that Ex.A.1 - Deed is not
proved by the plaintiff.
21. Moreover, when the defendant disputed the document, the plaintiff
has not taken steps to prove his signature through handwriting expert
opinion. The plaintiff admitted that the document can be used only for
collateral purpose as he filed the suit for recovery of money only. The
plaintiff has not stated in his pleadings that at the time of execution of
Ex.A.1 - Othi deed, the title documents of the suit property was handed over
to the plaintiff while he stated that possession was handed over to him by the
defendant. On perusal of Ex.A.1, there is no content regarding interest.
No prudent man would execute Othi deed on obtaining money without
interest and it is in general while writing Othi deed or usufructuary mortgage
deed, the possession would be handed over to the loan giver in lieu of
interest. Further, the plaintiff has not produced any revenue records for
payment of tax to prove Othi. These circumstances create cloud upon the
genuineness of the Ex.A.1 as rightly held by the Courts below.
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22. It is the definite case of the respondent/defendant that the plaintiff
was inducted as tenant by way of oral tenancy for monthly rent of Rs.1,000/-
and the plaintiff paid Rs.5,000/- as advance and the plaintiff failed to pay rent
from May, 2006 he filed suit for ejectment. The alleged unregistered othi
deed was marked as Ex.B2. The learned counsel for the respondent/defendant
contended that there is no content in the alleged Ex.A1 and Ex.B2 - Othi deed
that the appellant/plaintiff was permitted to be in possession in lieu interest
and a common man would make such contents in usufructuary mortgage deed
after getting mortgage loan. The learned counsel for the appellant/plaintiff
submitted that as per Ex.A1 and Ex.B2 - Othi deed, exclusive possession was
given to the plaintiff by the defendant. As per section 6 of Specific Relief
Act, person in exclusive possession cannot be presumed to be a tenant on that
basis, for which he relied on decision of the Hon’ble Supreme Court reported
in (2017) 1 MLJ 598 (S.Balakrishnan /v/ V.Gokilnath and anr). On
perusal of the decision, of course a person in exclusive possession cannot be
presumed to be a tenant. But, in this case on hand, the respondent/defendant
stated that the appellant/plaintiff was inducted as tenant and accordingly
terminating tenancy issued Ex.A5 legal notice. As already stated supra, the
appellant/plaintiff failed to prove the execution of Ex.A.1 and Ex.B.2 - Othi
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deed and he has not produced any tax receipt as othidar in support of his
exclusive possession.
23. The appellant/plaintiff has further contended that the
respondent/defendant has not filed any rent receipt, the respondent/defendant
has deposed that he has not issued any receipt towards rent and that the courts
below has not correctly appreciated the evidence and relied on decision of
this court reported in 1995-2 Law Weekly 705 (Fathuma and Anr. /v/
K.S.kadherkani). On perusal of the decision, it is clear that in that case the
plaintiff alone examined and no other independent witness was examined to
prove oral tenancy and also notice terminating tenancy was not issued.
Whereas in this case on hand, Ex.A.5 termination notice under Section 106 of
TP Act was issued to the appellant/plaintiff and also independent witness was
examined as P.W.2 to support the case of the respondent/defendant. So, the
citations are not applicable to the facts of the case.
24. On perusal of records, the respondent/defendant proved the oral
tenancy by examining P.W.2 - Muthu. Moreover, in the reply notice - Ex.A.4
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marked in O.S.No.9 of 2007 and the same was marked as Ex.A.2 in O.S.No.
53 of 2007 clearly stated about the relationship of landlord and tenant
between defendant and plaintiff and stoutly denied the deed of Othi. Further,
the Courts below held that the alleged Othi deed is not valid document as
held in O.S.No.9 of 2007 and A.S.No.30 of 2015, the Courts below
concluded that the alleged Othi deed is not valid in the eye of law and also
held that the defendant proved tenancy and decreed for ejectment. It is now
raised objection on appellant/plaintiff side that when the Second Appeal is
pending before this Court regarding the decision of the alleged Othi deed, the
decree for ejectment is not sustainable in law.
25. Per contra, on the respondent/defendant side it is argued that the
appellant/plaintiff has not filed any injunction petition or stay petition to stay
the operation of decree of the earlier suit and hence, there is no bar for Courts
below to take into consideration of the decision regarding Ex.B2 - Othi deed
before the Courts of law in the earlier suit. Admittedly, the Second Appeal is
filed against the concurrent finding of the Courts below and also the
appellant/plaintiff has not established that there is stay order passed by this
Court and the same was pending at the time of trial of suit for ejectment and
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hence, the Courts below were right in holding that it is not necessary to go
into the genuineness of Ex.B2 - unregistered mortgage deed on the ground
that the same has already been decided by the Courts in a connected
proceedings when the connected proceedings are already pending in an
admitted the Second Appeal. Therefore, the first question of law in both
appeals are answered against the appellant/plaintiff.
26. The next contention raised by the appellant/plaintiff is that the
respondent/defendant executed Ex.A.1 - Othi deed dated 22.01.2000 with
specific content that he received Rs.1,50,000/- and he would repay the same
within 5 years. The learned counsel for the appellant/plaintiff argued that as
per Limitation Act, Article 19 says for filing a suit for recovery of money the
suit has to be filed within three years when the loan is made, Article 28 says
for filing suit on a single bond, where a day is specified for payment, the suit
has to be filed within three years from the day so specified. Article 29 says
for filing the suit on a single bond, no such day is specified, the suit has to be
filed within three years from the date of executing the bond and Article 30
says for filing suit on a bond subject to a condition, the suit has to be filed
within three years when the condition is broken. He further contended that
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in this case, the respondent/defendant executed Ex.A1 - Deed on receipt of
money on 22.01.2000 on condition that he would repay the money within
5 years. So, in this case, the limitation period would start after expiry of five
years i.e., 22.01.2005 the suit has been filed in the year 2007, so the suit is
filed within the limitation, but the Courts below erred in concluding that the
suit is barred by limitation. In support of his argument the learned counsel
relied on the judgment of this Court reported in 1970 (1) MLJ 156, in which
it is held as follows:
“It is well settled that, where a mortgage deed
fails for want of registration or attestation or for any
other purpose, it is admissible as evidence of a
personal covenant contained therein for payment of
the amount. It cannot also be disputed that where a
time limit is fixed for the repayment of money in a
simple money bond, limitation will start only from
that date.”
27. On perusal of the plaint, the suit has been filed for simple recovery
of money and Court fee paid under Section 22 of TNCF Act. The suit has not
been seeking mortgage decree and court fee paid under Section 33 of TNCF
Act. The Courts below correctly observed that the appellant/plaintiff has
pleaded in his plaint in paragraph No.7 as follows:
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“thjpaplk; ,e;jg; gpujpthjp buhf;fkhf U:.1>50>000/ fldhfg;
bgw;Wf;bfhz;L mjw;F Mjuthf Kd; ghuhtpy; Twpatz;zk;
22.01.2000k; njjpapl;L xU gjptpy;yhj xj;jpg;gj;jpuk;
vGjpf;bfhLj;J ,Ug;gjpy; xj;jp mog;gilapy; thjp ,t;tHf;fpy;
gpujpthjp kPJ ahbjhU ghpfhuKk; nfhutpy;iy. nkw;go
Mtzj;jpy; gpujpthjp thjpaplk; ,Ue;J bgw;w fldhfg;
bgw;Wf;bfhz;L ,Ug;gij xg;g[f;bfhz;L nkw;fz;l Mtzk;
vGjpf;bfhLj;jpUg;gij thjpa[k; nkw;fz;l 22.01.2000 Mk; njjpapl;l
Mtzj;jpid cga jug;gpdUf;F ,ilna Vw;gl;Ls;s
gzghpkhw;wk; rk;ge;jkhf nkw;go Mtzj;ij mog;gilahff;
bfhz;L me;j tiff;fhf nkw;go Mtzj;jpid mog;gilahff;
bfhz;L ,t;tHf;if jhf;fy; bra;jpUf;fpwhh;.....”
From the above averments it is very clear, the suit has not filed on the
basis of Othi, the suit is filed for recovery of money as seen from very
averment that “22.01.2000 Mk; njjpapl;l Mtzj;jpid cga
jug;gpdUf;F ,ilna Vw;gl;Ls;s gzghpkhw;wk; rk;ge;jkhf nkw;go
Mtzj;ij mog;gilahff; bfhz;L me;j tiff;fhf...”.
28. Therefore, the Courts below correctly held that the suit has been
filed only for recovery of money on the basis of money transaction between
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the parties since the suit is filed and court-fee paid under Section 22 of TNCF
Act, the suit should have been filed within three years from the date of
transaction between the parties. Even as per citation relied on by the
appellant/plaintiff reported in 2014-3 Law weekly 609 (K.R.Sivadesikan
Pillai /v/ Ravichandran), this Court observed and held in paragraph Nos.10
and 13 as follows:
“10. …...It is not in dispute that a lease deed
prescribing 10 years as the lease period is compulsorily
registrable u/s 17 of the Registration Act. As per section
49 of the Registration Act, such a document if not
registered shall not be admitted in evidence. However,
the proviso to sec.49 provides that such a document can
be used for the purpose of proving a collateral
transaction.
13. The right to seek refund of the advance
amount or recovery of possession of the property as a
tenant would have accrued in 1988 itself and the
appellant/plaintiff did not take any such steps. From the
date of dispossession itself, the cause of action for
refund of advance amount had arise. As such, the suit
should have been filed within three years thereafter. As
he has caused a delay of more than 10 years, the claim
of the appellant/plaintiff is hopelessly barred by
limitation.”
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In a suit for recovery of money on the basis of unregistered lease deed,
dated 28.08.1987 for a period of 10 years, on which date advance of
Rs.15,000/- paid, the suit was filed after 10 years i.e., in the year 1998 has
been held as barred by limitation.
29. In the case on hand also, the alleged unregistered Othi deed, dated
22.01.2000, though alleged 5 years, the suit filed for recovery of money
which is filed in the year 2007 is barred by limitation. As per citation, the
suit should have been filed within three years. So, the Courts below correctly
came to conclusion that the suit is barred by limitation relying on the citation
reported in 2013(2) CTC 89 (P.Lakshmanan /v/ Muniappan). Hence, the
question of law is answered against the appellant/plaintiff.
30. The next contention raised by the appellant/plaintiff is that the
respondent/defendant executed a letter during police enquiry wherein he
admitted that the receipt of money of Rs.1,50,000/- and has given undertaking
that he would repay the same by 22.01.2005. The learned counsel for the
appellant/plaintiff contended that the respondent/defendant side witness
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S.A(MD)Nos.501 of 2017 and 476 of 2021
D.W.2 has clearly admitted in his evidence that the respondent/defendant
executed a hand written letter before the police officer, who made enquiry
upon petition filed by one Kalyani, but the respondent/defendant has not
treated the D.W.2 as hostile as per section 154 of the Evidence Act.
31. The learned counsel for the appellant/plaintiff argued that the
statement before the police is admissible in evidence and Section 25 of the
Evidence Act would be attracted only to the criminal proceedings, but the
Courts below simply rejected the Ex.A.5 - letter executed by the
respondent/defendant before police official. The learned counsel relied on the
following citations:
1. 1995(1) CTC 526 (Periyasamy /v/ Parvathy and
Anr.)
2. 2017(1) MLJ 594 (G.Rama Rajalakshmi /v/
M.Sampath Kumar)
3. 1999(1) MLJ 69 (S.Murugesan and ors /v/
S.Pethaperumal and Ors.)
4. 2002(4) CTC 222 (K.C.Palanisamy /v/
M.Chinnasamy and Ors.)
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S.A(MD)Nos.501 of 2017 and 476 of 2021
32. On perusal of the above citations, statement before police official
can be taken into consideration only after eliciting both side evidences. Most
citation held in Civil Revision Petitions only. In this case, the alleged Ex.A5
and evidence of D.W.2 with regard to petition filed by one Kalyani, who is
father of the appellant/plaintiff against the respondent/defendant. The enquiry
was between the said Kalyani and the respondent/defendant. So, the
appellant/plaintiff is not a party to that petition enquiry. It is not the case of
the appellant/plaintiff that his father Kalyani has filed the said petition on
behalf of the appellant/plaintiff.
33. On perusal of records, the original of the said alleged consent letter
Ex.A5 has not been filed before this Court and only copy of the same has
been marked. On perusal of evidence appellant/plaintiff, who clearly
admitted in his cross examination that
“vf;];.1y; fz;l midj;J Mtzq;fSk; b$uhf;];
Mf ,Uf;fpd;wJ/cz;ik efy; vd;W fhty;Jiwapdh;
ifbaGj;J bra;Js;shh;fs;/ ,jd; mry;
fhty;Jiwapdhplk; ,Uf;fpd;wJ/ jpUg;ghr;nrj;jp
fhty;Jiwapdhplk; ,Uf;fpd;wJ. ,e;j nfhg;gpy; vd; mg;gh
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S.A(MD)Nos.501 of 2017 and 476 of 2021
khtl;l Ml;rpahplk; g[fhh; bfhLj;jjhf brhy;yg;gl;Ls;sJ…
rk;gtq;fs; midj;Jk; vd; mg;ght[f;Fk; gpujpthjpf;Fk;
ele;jjhfjhd; brhy;yg;gl;Ls;sJ. vd;idg; bghWj;J me;j
g[fhhpy; vJt[k; brhy;yg;gltpy;iy/ tPL. Xj;jp bfhLf;fy;
thq;fy; rk;ke;jkhf vdf;Fk; gpujpthjpf;Fk; ele;jjhf
brhy;yg;gltpy;iy…’
He further clearly deposed as “th.rh.M.5 Mtzj;jpd; mry;
jpUg;ghr;nrj;jp fhty;epiyaj;jpy; ,Ug;gjhf rhd;W mspj;Js;shh;hfs;. ,e;j
MtzKk; ePjpkd;wj;jp ypUe;J rk;kd; mDg;gp tutiHf;fg;gl;Ls;sJ/ ,e;j
Mtzj;jpy; gpujpthjp Ml;nrgiz bra;Js;shh;h/ cz;ik Mtzj;jpid
jpUg;ghr;nrj;jp fhty;epiyaj;jpypUe;J tutiHj;J epU:gpf;f ehd;
jahuhf ,y;iy..”
So, from the above evidence of the appellant/plaintiff, it is clear that
Ex.A5 is only a Photostat Copy and the original of the same is available with
Thiruppachethy Police Station and the appellant/plaintiff is not ready to call
for the original in order to prove his case. Admittedly, the petition enquiry
was made between the father of the appellant/plaintiff and the
respondent/defendant as seen from the evidences and records. So, the third
question of law is also answered against the appellant/plaintiff.
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S.A(MD)Nos.501 of 2017 and 476 of 2021
34. From the above facts and circumstances, the Courts below found
concurrent finding based on evidences adduced in the case. The said findings
require no interference by this Court by way of Second Appeal. The citations
relied on by the appellant/plaintiff are not applicable to the case of the
appellant/plaintiff. Hence, the question of laws framed in these two appeals
are answered against the appellant/appellant. Thus, these Second Appeals
fail.
35. In the result, the Second Appeal in S.A(MD)No.501 of 2017 is
dismissed. The judgment and decree dated 24.11.2016 passed in A.S.No.30 of
2015 on the file of the Principal District Court, Sivagangai, confirming the
judgment and decree dated 09.06.2015 passed in O.S.No.9 of 2007 on the file
of Sub Court, Sivagangai is confirmed. No costs.
36. In the result, the Second Appeal in S.A(MD)No.476 of 2021 is
dismissed. The judgment and decree dated 07.04.2021 passed in A.S.No.162
of 2019 on the file of the Sub Court, Manamadurai, confirming the judgment
and decree dated 14.07.2017 passed in O.S.No.53 of 2007 on the file of the
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S.A(MD)Nos.501 of 2017 and 476 of 2021
Principal District Munsif Court, Manamadurai is confirmed. No costs.
Consequently, connected Miscellaneous Petition is closed.
12.04.2024
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
VSD
To
1.The Principal District Judge,
Sivagangai.
2.The Principal District Munsif,
Manamadurai.
3.The Subordinate Judge,
Sivagangai.
4.The Subordinate Judge,
Manamadurai.
5.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)Nos.501 of 2017 and 476 of 2021
P.VADAMALAI, J.
VSD
Pre-Delivery Judgment made in
S.A(MD)Nos.501 of 2017 and 476 of 2021
and
12.04.2024
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