Madras High Court
K.A. Sridevi (Died) vs K. Aiyappan on 7 February, 2025
S.A. No.12 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2025
CORAM :
THE HON'BLE MR. JUSTICE K. RAJASEKAR
S.A. No. 12 of 2012
1. K.A. Sridevi (died) ... Plaintiff/ Appellant/ 1st Appellant
2. K.A. Shreeja
3. K.A. Mayadevi
4. K.A. Sheeba
5. K.A. Shismitha ... Appellants 2 to 5
(Appellants 2 to 5 brought on record as
Legal heirs of the deceased sole appellant
viz. K.A. Sridevi vide Court Order dated
28.03.2022 made in C.M.P. No.3718 of
2022)
Vs.
1. K. Aiyappan
2. I. Unnikrishnan
3. I. Devagi (died)
4. I. Udayakumar
5. The Coonoor Municipality,
Coonoor. ... Defendants/ Respondents/ Respondents 1
to 5
th
6. Shobana ... 6 Respondent
(R6 brought on record as Legal heirs of the
deceased 3rd respondent viz. I.Devagi vide
Court Order dated 18.04.2022 made in
C.M.P. Nos.6744, 6746 and 6747 of 2022)
1/16
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S.A. No.12 of 2012
Second Appeal filed Under Section 100 of Civil Procedure Code against the
Judgment and Decree dated 20.07.2011 made in A.S. No.17 of 2010 on the file of
the Subordinate Judge, Nilgiris at Ooty, confirming the Judgment and Decree made
in O.S. No.283 of 1995 dated 18.01.2010 on the file of the District Munsif,
Coonoor.
For Appellants : Mr. L. Palani Muthu
For RR 2 to 4 : Mr. R. Shivakumar
(For M/s. K.M. Vijayan Associates)
For R5 : No Appearance
For R6 : Left
******
JUDGMENT
This second appeal is filed by the plaintiff, challenging the concurrent
finding of the Courts below, dismissing the suit for declaration and recovery of
possession of the suit property.
2. For the sake of convenience, the parties are referred herein according
to their litigative status and rank before the Trial Court. The brief facts leading to
filing of this appeal by the appellant/ plaintiff are as follows:
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2.1 The plaintiff No.1 is the daughter of the first defendant and the suit
properties are the bunk shops bearing door nos.23, 24, 25 and 26 situated in
Government Poramboke Land in Survey No.2072 of Coonoor Town. The first
defendant was in possession of the said bunk shops and the Coonoor Municipality
has also assessed the bunks in the name of first defendant vide assessment No.809,
recognizing its encroachments. About 13 years ago, the first defendant had
borrowed 40 sovereigns of gold ornaments from the plaintiff and was not able to
return back the same or repay the value of the same. Hence, he had come forward
to hand over the bunk shops bearing door nos.23, 24, 25 and 26 to the plaintiff, as
per the agreement dated 11.12.1987. On the same day, the possession of the said
bunks were also handed over to the plaintiff and the first defendant also agreed
that he will not claim return of the same and requested the fifth defendant/
Coonoor Municipality to change the assessment for the said bunks in favour of the
plaintiff. Accordingly, the assessment for the said bunks were changed in the
name of the plaintiff vide proceedings dated 17.03.1989, as per assessment number
6577. Thereafter, the plaintiff was in possession and enjoyment of the said bunks
and was paying property tax to the Coonoor Municipality.
2.2 The plaintiff had permitted the second defendant, who is the brother
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of the plaintiff to possess bunks bearing Door Nos. 23 and 24, on the condition
that, the second defendant shall vacate the said bunks, whenever demanded by the
plaintiff. But, when the plaintiff asked to vacate the bunk shops, the second
defendant refused to vacate, therefore, a legal notice dated 13.07.1990 to the
defendants 1 to 4, the same was replied by the defendants with untenable reasons.
The first defendant, at the instigation of other defendants had sent a letter to the
fifth defendant to change the assessment of the said bunks in his name. Upon
receiving the letter, the fifth defendant had sent a notice to the plaintiff calling for
records and the same was replied by the plaintiff by a legal notice. However, the
fifth defendant had allotted a fresh Assessment number in favour of the second
defendant in connection with the bunks bearing door nos.23 and 24. Therefore, the
plaintiff has come forward with the suit for declaration, possession and mandatory
injunction.
2.3 The second defendant filed written statement adopted by the first and
fourth defendants, in which it has been stated that taking advantage of the old age
of the first defendant, his signature was obtained in the agreement dated
11.12.1987 by the plaintiff. The first defendant was not aware about the contents,
facts and purpose of the said agreement. It is further stated that the plaintiff is not
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having capacity to hold 40 Sovereigns of gold ornaments and has no reason to
hand over her jewels to the first defendant. It is further stated that the without the
knowledge of the sons and other daughter of the first defendant, the plaintiff had
fraudulently prepared agreement and obtained signature from the first defendant.
It is also submitted that the first defendant, is the absolute owner of the Bunk
shops bearing door Nos.23 to 26 and he has never handed over the possession of
the suit property to the plaintiff.
2.4 The Third defendant has filed separate written statement, in which she
has stated that she is in occupation of bunk shop bearing Door No.23 and she has
spent huge sum of money for maintenance and running the shop in it. It is further
stated that the first defendant had never received any gold ornaments from the
plaintiff and the plaintiff by coercion and undue influence obtained the signature
of the first defendant in the agreement dated 11.12.1987. It is further stated that,
transferring rights over any immovable property by way of unregistered agreement
is not valid and without proper enquiry, the fifth defendant had transferred the
assessment in the favour of the plaintiff and the same is cancelled, hence the
plaintiff has no manner of right over the bunk shops bearing door Nos.23 to 26.
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2.5 The fifth defendant / Coonoor Municipality had filed its written
statement stating that, based on the request made by the plaintiff on 08.03.1989,
the assessment of the bunks were transferred from the name of the first defendant
to her name vide proceedings dated 17.03.1989. It is further stated that after
receipt of the representation from the first defendant dated 09.08.1990, the plaintiff
was called upon to submit necessary records, subsequently, the plaintiff issued a
reply on 25.01.1991 alleging several arrangement between her and the other
defendants. The original assessment was in the name of the first defendant and it
was transferred in the name of the plaintiff without proper documents, hence, this
defendant is entitled to rectify the wrong, i.e., change the name of assessee.
2.6 Based on the pleadings and the evidence, both Courts below have held
that the plaintiff has failed to prove the execution of the agreement dated
10.12.1987 – Ex.A.1, thereby, she is not entitled to seek for declaration and
possession. Further, both Courts have also held that since the property is in nature
of immovable property, the same shall be done by way of registered instruments,
thereby the plaintiff cannot claim any right over the same.
2.7 Aggrieved over the above concurrent findings of both Courts below,
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the plaintiff has come forward with this appeal.
3. This Court after considering the representation of both sides, while
admitting the appeal, framed the following substantial question of law:
a) Whether the judgment and decree of the Courts below are correct
in the light of the fact that the first defendant has not denied his
signature under Ex.A.1 by filing a written statement?
b) Whether the Courts below are correct in brushing aside the
documents filed by the plaintiff which shows the possession of the
plaintiff?
4. The learned counsel appearing for the plaintiff/ appellants submits
that the first defendant has categorically admitted the execution of the Ex.A.1 -
agreement dated 11.12.1987 during his lifetime and he had not been enquired to
adduce his evidence to prove his claim that Ex.A.1 executed by the first defendant
in favour of the plaintiff by fraudulent means or any mis-representation have been
admitted in execution of Ex.A.1. In the absence of any evidence on the side of the
defendant, the burden of proof for execution of the Ex.A.1 was wrongly placed on
the plaintiff by both Courts. Since the concurrent findings were rendered based on
the wrong onus to prove the Ex.A.1, this Court is entitled to question and re-
appreciate the evidence relating to execution of Ex.A.1. Similarly, the assessment
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of tax for shops was in the favour of the first defendant and after execution of
Ex.A.1, the assessment was transferred in the favour of the plaintiff, hence the
defendants 2 to 4 have no manner of right in rising any objections. He also
submitted that the plaintiff is the original owner of the said bunks and the
defendants 2 to 4 were in possession, only under permissible occupation and
without any manner of right to continue their possession, they shall return the
possession to the plaintiff. In this case, since the defendants 2 to 4 have refused to
hand over the possession, the plaintiff has come forward with the suit to recovery
of possession over the subject property.
5. The learned counsel appearing for the respondents 2 to 4 submits that
both Courts below after considering the evidence placed on record have held that
the plaintiff was unable to prove the genuineness and validity of Ex.A.1, further
the plaintiff has not adduced any oral or documentary evidence to prove that she
had given forty sovereigns of gold to the first defendant, which warranted, the first
defendant to transfer his rights over the subject matter to the plaintiff. Therefore,
he prays to confirm the judgment and decree of the lower Courts and dismiss the
appeal.
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6. It is a settled law in the cases of concurrent findings rendered by the
Trial Court and the lower Appellate Court, the power of the High Court in the
second appeal is very limited and re-appreciation of the evidence is not
permissible, further if the finding is based on misreading of any evidence or
placing onus on the wrong party, it is permissible to interfere in the concurrent
finding of both Courts stated above under Section 100 of CPC, after framing
substantial question of law. Similarly, if there is a construction of document is
required, and the same is not properly constructed, the High Court is empowered to
interfere in the above findings. Similarly, when there is a mis-reading or wrong
application of law, it is open to interference under Section 100 of CPC.
7. In this case, the plaintiff relied on Ex.A.1, which is the terms of
agreement between the plaintiff and Defendant No.1. The recitals in the Ex.A.1
shows that the first defendant has declared that he was having bunk shops bearing
Door Nos.23 to 26 in the Government Poramboke Land in Survey No.2072 of
Coonoor Town in the Government land. Recognizing his encroachment, the
Coonoor Municipality also issued assessment to the first defendant under
assessment No.809. He further stated that he has received gold jewels from the
plaintiff and he was not able to repay the value of the gold, therefore, he has come
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forward to hand over all the bunk shops bearing Door Nos.23 to 26 in favour of
the plaintiff and there is also recitals that the possession is also handed over to the
plaintiff on the same day 11.12.1987. Section 17(1)(b) deals with compulsory
registration of any document for transfer of interest, titles or assign rights over any
immovable property. In Ex.A.1, these shops were considered as immovable
properties and the evidence of witnesses show that door numbers were assigned to
the bunk shops by the Coonoor Municipality Corporation.
8. As held by both Courts below, though Ex.A.1 titled as agreement, it is
only the transfer of interest in the property by the first defendant in favour of the
plaintiff and the same has to be registered compulsorily. It is also settled law that
the registered document can be received as a collateral evidence for proving the
character of the party. It is the admitted fact in this case that, the second plaintiff
has been in possession of bunk shops bearing door Nos.23 and 24 and the third
defendant has been in possession of bunk shop bearing door No.23, which was
also admitted by the P.W.1, who is the daughter of the plaintiff during her oral
examination. However, the plaintiff had filed the suit seeking possession from the
second defendant in respect of bunk shop in door No.23 also. Therefore, both
Courts have held that unless and until the plaintiff is able to sustain the Ex.A.1 -
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agreement, the plaintiff cannot claim possession either from the second defendant
or from any other defendants.
9. The Hon'ble Apex Court in Avinash Kumar Chauhan Vs. Vijay
Krishna Mishra [AIR 2009 SC 1489], has held that there is no prohibition under
Section 49 of the Registration Act, to receive an unregistered document in
evidence for collateral purpose. But the document so tendered should be duly
stamped or should comply with the requirements of Section 35 of the Stamp Act,
if not stamped, as a document cannot be received in evidence even for collateral
purpose unless it is duly stamped or duty and penalty are paid under Section 35 of
the Stamp Act.
10. In this case, the first defendant has come forward to execute the
agreement to hand over the possession of the bunks, for his inability to return back
the 40 sovereigns of gold ornaments. It is also stated that there are totally four
bunk shops, however, the value of the bunk shops has not been mentioned.
Further, it has been held that the plaintiff shall not claim back their 40 sovereigns
of gold ornaments from the first defendant. That being the case, this Court is of
the view that the document marked as Ex.A.1 is not properly stamped, as per the
Section 35 of the Act, it cannot be tendered as evidence or for collateral purpose.
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11. During the pendency of suit and before recording the evidence, the
first defendant was died. It is also admitted that the plaintiff was in possession of
Door Nos.25 and 26. During examination, it was suggested to D.W.1/ Defendant
No.2 that, in pursuant to the execution of Ex.A.1, the possession of bunks in door
nos. 25 and 26 were handed over to the plaintiff and Door Nos. 23 and 24 shall
also be handed over the plaintiff. In the Ex.A.1, it is stated that the bunk shops
bearing door nos.23 to 26 belongs to the first defendant and the plaintiff was
residing in Door No.26. Defendants 2 and 3 claim that they are in possession of
shop door nos.23 and 24, they also admitted that shop door nos. 25 and 26 are in
possession of the plaintiff, During evidence, it has been admitted by the parties
that Door Nos.23 to 24 were in possession of second and third defendant and Door
Nos.25 and 26 were with the plaintiff. This probabilize the case of the plaintiff
that after recording of the agreement, the possession of the plaintiff over Door
Nos.25 and 26 were handed over. However, the plaintiff had failed to prove the
execution of Ex.A.1, to show that all the shops were handed over to her, as per
terms of Ex.A.1.
12. Based on the Ex.A.1, the plaintiff cannot claim ownership over the
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bunk shops bearing door Nos.23 to 26 has held by both Courts below. The relief
claimed herein by the plaintiff is the declaration that she is entitled for possession
of Bunk shops bearing door Nos.23 to 26 covered under Old Assessment No.809
and new Assessment No.6577. However, she is entitled to retain the possession of
Door Nos.25 and 26, since her possession has not been denied by the Defendants 2
and 3. Accordingly, the judgment and decree passed by the Trial Court is modified
to the effect that the plaintiff is entitled for protecting her possession of bunks
bearing Door Nos.25 and 26 and she is not entitled to claim any relief of
declaration with regard to bunk shops bearing Door Nos.23 and 24.
13. The fifth defendant municipality had filed separate written statement
stating that without properly verifying the rights of the plaintiff and they have
transferred the assessment in favour of the plaintiff and subsequently on the
objections raised by the first defendant, they have changed the assessment in
favour of the first defendant, as per the order dated 09.08.1990. Admittedly, the
land in which bunk shops are situated is a Government land and as per Section 3 of
the Tamil Nadu Land Encroachment Act, 1905, the Government is entitled to levy
penal charges for unauthorized occupation of the land. The municipality is
collecting property tax for the shops and the Municipality is vested with power to
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issue license for running shops as well as impose property tax on the occupants of
the land and for the building under Tamil Nadu District Municipalities Act, 1920.
14. Accordingly, the fifth defendant/ Municipality is directed to consider
the case of the parties herein, and to assess tax based on their possession including
the Door Nos.25 and 26, possessed by the plaintiff. This Court, once again
reiterates that, the property in which the shops are situated is Government
Poramboke land and admittedly, the private parties herein have encroached the
same, they have no manner of right to claim any title or possession against the
Government or authorities.
15. Both the Courts have rightly held that, the Ex.A.1 is not a valid
document to prove the transfer of any right in favour of the plaintiff and she is not
entitled for declaration of title over the suit properties. However, the Courts
below failed to consider the material evidence that, the plaintiff is in possession of
shop nos.25 and 26 and she is entitled to protect her possession over the above
shops. The Civil Courts are entitled to mould the relief based on evidence placed
on record and dismissing the suit in its entirety is not proper, which warranted
interference of this Court and accordingly, the substantial question of laws framed
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above are answered.
16. Accordingly, this second appeal is partly allowed, with direction to
the Municipality/ Respondent No.5 to consider the plaintiff's possession of Door
nos.25 and 26, and assess property tax, by issuing fresh assessment in her favour.
This order shall not confer or create any title to the parties herein, who are
admittedly in unauthorized occupation of Government land. Consequently,
connected civil miscellaneous petition, if any stands closed. No cost.
07.02.2025
stn
Index:Yes/No
Speaking Order : Yes/No
Neutral Citation Case : Yes/No
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K. RAJASEKAR, J.
stn
To:
1. The Section Officer,
VR Section,
High Court, Madras.
07.02.2025
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