M. Sundararaju v. S. Periasami — 1999 DIGILAW 1078 (MAD)

Judgment :- M. Sundararaju, the plaintiff, is the appellant herein. S. Periasami, the defendant, is the respondent herein. 2. The plaintiff filed a suit in O.S. No. 1372 of 1983 on the file of the District Munsif, Trichirapalli for a permanent injunction, restraining the respondent/defendant from interfering with his possession and enjoyment of the suit properties. 3. According to the appellant, the suit properties belonged to his father and under a registered Partition Deed dated 15.6.1983, effected by his father, items 1 and 2 of the suit properties were allotted to him and under a registered settlement deed dated 29.6.1983, Item No. 3 of the suit property was bequeathed by his father in his favour and as such, the respondent-defendant has no right, title or interest in the suit properties and since the respondent/defendant attempted to interfere with his peaceful possession and enjoyment of the suit properties, he filed a suit, seeking for the relief of permanent injunction. 4. The respondent/defendant contested the suit, inter alia , stating that the respondent and the father of the plaintiff are the brothers, that under a Family Arrangement Deed dated 10.6.1968, entered into between them, 6- cents in the first items of the suit properties and the second and third items of the suit properties were allotted to the share of the respondent, that certain other properties were allotted to the father of the plaintiff and that pursuant to the said Family Arrangement, the respondent has been in continuous possession and enjoyment of the properties and that he had perfected his title by adverse possession and the plaintiff was never in possession of the suit properties, at any point of time. 5. On the above said pleadings, various issues were framed by the trial Court and the plaintiff examined himself as PW.1 and marked Exs. A1 to A17. On the side of the defendants, the defendant examined himself as D.W.I and two other persons as D.W. 2 and D.W. 3 and Exs. Bl to B8 were marked. 6. On consideration of the materials, the trial Court decreed the suit as prayed for. 7. Aggrieved against the judgment and decree of the trial Court, the respondent herein filed an appeal in A.S. No. 34 of 1986, before the II Additional Judge, Trichirapalli. Bl to B8 were marked. 6. On consideration of the materials, the trial Court decreed the suit as prayed for. 7. Aggrieved against the judgment and decree of the trial Court, the respondent herein filed an appeal in A.S. No. 34 of 1986, before the II Additional Judge, Trichirapalli. During the pendency of the appeal, the respondent filed an I.A. No. 1043 of 1986 for reception of additional document and sought to mark a certified copy of ‘Thandal Extract’ in respect of the items of the suit property for Faslis 1384 to 1391. The said petition was allowed and the document was marked as Ex. B9. Thereafter, the lower Appellate Court, after hearing the parties and on considering the records, allowed the appeal and dismissed the suit filed by the plaintiff/appellant. Hence, the present Second Appeal. 8. At the time of admission of this Second Appeal, the following substantial questions of law were formulated by this Court:— “1. Whether the lower appellate Court is right in placing reliance on the evidence adduced by the respondent/defendant in regard to the purchase of the suit properties in the name of the appellants father when such a plea has not been raised in the pleadings? And 2. Whether the lower Appellate Court was right at its construction of Ex. B7”. 9. In elaboration of the above questions of law, Mr. AR.L. Sundaresan, learned counsel appearing for the appellant, would vehemently contend that the well-considered judgment and decree, passed by the trial Court, have been reversed by the lower Appellate Court, without giving valid reasons. 10. It is contended that the lower Appellate Court, having disbelieved the case of the defendant, that the suit properties were purchased by the father of the plaintiff out of the fund, including the income earned by the defendant, committed a grave illegality in holding that the defendant would be entitled to the possession of the property, without considering the various documents produced by the plaintiff, which would establish his title and possession. According to the learned counsel for the appellant, when the defendant comes forward with a plea that the suit properties are the joint family properties, it is for him to prove the same and in the absence of any material to establish the same, it should be taken that the property belongs to the person, in whose name it stands. According to the learned counsel for the appellant, when the defendant comes forward with a plea that the suit properties are the joint family properties, it is for him to prove the same and in the absence of any material to establish the same, it should be taken that the property belongs to the person, in whose name it stands. He would also contend that the lower appellate Court ought not to have placed reliance on Ex. B7, which is an unregistered and unstamped document, inspite of the prohibition under Section 17 and 49 of the Registration Act and Section 35 of the Indian Stamps Act. 11. In reply to the said submission, Mrs. Pushpa Sathayanarayanan, learned counsel appearing for the respondent, wibuld read out the entire judgment of the lower appellate Court and contend that the detailed reasonings given by the lower Appellate Court, oh consideration of the entire materials available on record, cannot be said to be perverse, and as such, the Second Appeal is liable to be dismissed, especially, when the finding of fact by the last Court of fact is not liable to be disturbed under Section 100 C.P.C. 12. The counsel for both parties would cite number of authorities, in order to substantiate their respective pleas. 13. On going through the judgment of the lower appellate Court, I quite see that the lower appellate Court took pains in considering each and every piece of evidence let in by the respective parties and made a threadbare discussion. When the factual details have been discussed by the lower Appellate Court, in a thorough manner, a question would arise as to whether this Court would be competent to hold that the appreciation of the materials is wrong and therefore, the Second Appeal is liable to be allowed, by invoking Section 100 C.P.C. 14. With reference to the scope of this Court, under Section 100 C.P.C. in the Second Appeal, both the counsel, appearing for the respective parties, would cite number of authorities, both for and against. 15. With reference to the scope of this Court, under Section 100 C.P.C. in the Second Appeal, both the counsel, appearing for the respective parties, would cite number of authorities, both for and against. 15. The following decisions would show the various circumstances, under which the findings of the llower Courts, when there is no proper appreciation of evidence, could be interfered with by this Court:— “ 1998 (II) C.T.C. 157 ( Manakkan v. Vecra Perumal ), 1997 (III) C.T.C. 634 ( Ramusamy v. Ramasamy ), 1997 3 S.C.C. 546 ( Major Singh v. Rattan Singh ), 1997 (III) C.T.C. 516 ( S.D. Inderchand v. Baghavandass Reddiar ), 1998 (I) C.T.C477 = 1998-2-L.W. 333 ( Mulhu Goundqr v. Poosafi @ Palaniappan ), 1997 (I) C.T.C. 360 = 1996-2-L.W. 461 ( Seeni Ammal v. Veerayee Animal ), 1997 (I) C.T.C. 222 ( Kannammal v. Chinnaponnammal ), 1999 (I) C.T.C. 245 ( Rajiah Nadar v. Manonmani Ammal ), 1997-1-L.W. 474 ( Irudayasamy v. Perumal Naidu ), 1996 (7) S.C.C. 389 ( Kochu Kakkada Aboobaker v. Attah Kasim ), AIR 1968 S.C., 466 ( Sonawatia v. Sriram ), AIR 1971 S.C.1049 ( Radfia Nath v. Haripada ) AIR 1980 S.C.I754 ( Madan Lai v. Gopi ), 1996 (I) C.T.C. 360 = 1996 (2) S.C.C. 624 ( Surain singh v. Mehenga ). 1996 (8) S.C.C. 365 = 1996-2-L.W. 465 ( D.S. Thimmappa v. Siddaramakka ) 1997 (2) S.C.C. 548 ( Sitaramacharya v. Gururajacharya ), AIR 1998 S.C. 427 ( Mehumnisa v. Visham Kumari ), 1998 (I) L.W. 413 ( Rahamalhulla Shulhari (a) Peer Hazarath v. The Muslim Janiath of Eachampatti etc. & others ) 1998 (I) C.T.C. 98 = 1998 (I) L.W. 451 ( Rajammal v. Ramasami and three others.” ) 16. The principles and the circumstances given in the above decisions, to indicate that the findings of the lower Courts could be interfered with by the High Court under Section 100 C.P.C, arc given below:— “a) when the Courts below fail to consider the relevant documents in proper perspective and effect of those documents on the rights of the parties, the I High Court is entitled to reconsider the evidence by drawing inferences from the admitted documents. (b) If the findings of the Courts below are not ‘ supported by evidence or are based on misconception or erroneous, and perverse, the High Court can interfere in the Second Appeal. (b) If the findings of the Courts below are not ‘ supported by evidence or are based on misconception or erroneous, and perverse, the High Court can interfere in the Second Appeal. (c) It is the duty of the High Court to consider whether the reasons given by the Courts below are sustainable in law. Therefore, the High Court necessarily requires to go into that question to test the reasons. If the reasons given by the Courts below are llimsly, the substantial question of law would arise. (d) The High Court under Section 100 C.P.C. is entitled to take into consideration the question whether the material evidence and the relevant circumstances were considered by the lower Courts. This Court is also entitled to consider whether the finding of the lower appellate Court is based on evidence, and whether the evidence is based on pleadings. If the finding of the lower appellate Court is based only on surmises or on wrong application of law, and it is not based on evidence or pleadings, this Court is entitled to interfere with that finding. e) The jurisdiction of this Court under Section 100 C.P.C. is very peculiar. It is neither as wide as under Section 96 (Appeals) nor as restricted as under Section 115 C.P.C. (Revision). The term “question of law” and “substantial question of law” as occurring in Section 100 C.P.C both prior to and after 1976 Amendment has always been understood and interpreted as to include questions of fact as concluded by the Courts below which would be vitiated if based on no evidence or on perverted appreciation of evidence resulting in conclusions which could not have been arrived at by any reasonable person or by completely ignoring the materials available on record. f) In the interest of justice, it would be necessary not to ignore improper appreciation of evidence or to turn a blind eye to glaring mis-reading of the evidence by the Subordinate Courts. Therefore, a question of fact is not a taboo for Section 100 C.P.C’. The recent trend has been in favour of keeping an open eye as against the glaring misreading, misquoting or failure to consider crucial evidence. Therefore, a question of fact is not a taboo for Section 100 C.P.C’. The recent trend has been in favour of keeping an open eye as against the glaring misreading, misquoting or failure to consider crucial evidence. g) Where both the Courts below had ignored the weight of preponderating circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and in coming to its own independent conclusions. h) When both the Courts below had recorded diverse findings and where the material evidence and the relevant circumstances had not been adverted to by the appellate Court, the High Court would be justified in interfering with the finding of fact. i) Where the first appellate Court failed to draw the proper inference from proved facts and to apply law in proper perspective, the High Court, in Second Appeal, would be justified in drawing proper inference from such proved facts and that such inference by the High Court would be proper. j) The finding arrived at, by the Courts below, without evidence and without applying the correct principles of law, cannot bind this Court. k) When the error of law committed by the lower appellate Court is so patent and substantial, it calls for ‘ interference, under Section 100 C.P.C. by this Court.” 17. The other decisions, in which this Court as well as the Apex Court would hold that though the findings of the lower Appellate Court are erroneous, this Court cannot at all interfere when there is no substantial question of law involved. They are as follows:— “1999 (II) C.T.C. 468 = 1999-2-L.W. 614 ( Kondiba Dagadu Kadam v. Savitribai Sopan Gujar ), AIR 1996 S.C. 3521 ( Navaneethammal v. Arjuna Chetty ), 1992-2-L.W. 588 ( Arumugham and others v. Sundarambal and another ) (S.C.) 1997 (I) C.T.C. 200 = 1997-1-L.W. 733 ( Sokkuthai Ammal v. Pandiaraj ) (Madras), 1997 (II) MU 23 = 1997-3-L.W. 27 ( Varappan v. Sri Lakshminarayanan Venugopalaswamy Temple ), 1998 (III) M.L.J. 581 ( Alagumalai Moopanar v. Subbiah and others ) (Madras), AIR 1995 SC 2086 ( Vrindavanibai Samhaji Mane v. Ramachandra Vithal Ganeshkar and others ) and AIR 1963 S.C. 302 ( Ramachandra Ayyar and another v. Ramalinga Chettiar and another. )’ 18. )’ 18. The propositions with reference to the restrictions put under Section 100 C.P.C, by which it has been indicated that the High Court shall not interfere in the Second Appeal, would be summarised as follows:— “a) The interference with the concurrent findings of the Courts below by the High Court, under Section 100 C.P.C. must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower Courts. b) The High Court has no jurisdiction to interfere in Second Appeal, with the finding of fact given by the first appellate Court based upon the appreciation of relevant evidence. (c) The High Court, under Section 100 C.P.C. can entertain the Second Appeal only when there is substantial question of law and the first appellate Court is competent to entertain the question of facts and decide whether the finding of fact arrived at by the trial Court is erroneous or not and the Court of Second Appeal is not competent to find about the soundness of the fact. (d) Efforts shall be made to distinguish between a question of law and a substantial question of law. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. The conditions mentioned in the section must be strictly fulfilled before a Second Appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact. (e) It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in Second Appeal when it is found that the lower appellate Court has given satisfactory reasons for doing so. (f) The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. (g) Mere wrong application on facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant cannot be allowed to raise that point as substantial question of law in Second Appeal. The mere appreciation of the facts, the documentary evidence, or the meaning of entries or the contents of the document cannot be held to be raising of substantial question of law. h) where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in Second Appeal. i) The Second Appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court. It is open to the first appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on other side. It is not permissible for the Second Appellate Court to interfere with such finding of the first appellate Court only on the ground that the first appellate Court had not come to grips with the reasoning given by the trial Court. j) The factual finding recorded by the learned first appellate Judge on appreciation or oral and documentary evidence does not call for any interference, if it does not suffer from any patent error of law or perversity of approach in the matter of appreciation of such evidence.” 19. j) The factual finding recorded by the learned first appellate Judge on appreciation or oral and documentary evidence does not call for any interference, if it does not suffer from any patent error of law or perversity of approach in the matter of appreciation of such evidence.” 19. In the light of the above restrictions, this Court is constrained to see as to whether the present case would come under any of the categories, by which the findings of facts, rendered by the lower Appellate Court could be interfered with, on the basis of the substantial questions of law, formulated in this case. 20. As indicated earlier, the first substantial question of law is whether the lower Appellate Court is right in placing reliance on the evidence adduced by the defendant in regard to the purchase of the suit properties in the name of the appellants father, when such a plea was not raised in the pleadings. 21. According to the appellant/plaintiff, he would be entitled to the permanent injunction, in respect of the suit property item Nos. 1 to 3, on the basis of the title conferred to him under Ex. A1, the Partition Deed dated 15.3.1983 and Ex. A2, Settlement Deed dated 29.6.1983. 22. It is the case of the defendant/respondent that the suit items were alloted to him in the family arrangement made on 10.6.1968, on the basis of the Agreement Deed Ex. B7 and from that date onwards, he has been in possession and enjoyment of the suit properties. There is no dispute in the fact that the defendant is the brother of the plaintiffs father and the suit properties were purchased in the name of the plaintiffs father under Ex. A9 to All in the years 1961, 1962 and 1963 respectively. 23. It is the evidence of D.W.I, the defendant, that after the death of his father, his elder brother, plaintiffs father, his mother Perumayee Ammal and himself were living together and the father of the plaintiff was managing the entire family. He would state in his deposition that in the year 1958, he joined as a Clerk in Kaveri Sugar Factory at Pettaivaithalai. His marriage was arranged only by the plaintiffs father and the marriage was held in the year 1967. In the meantime, the suit properties were purchased from the years 1961 to 1963. 24. He would state in his deposition that in the year 1958, he joined as a Clerk in Kaveri Sugar Factory at Pettaivaithalai. His marriage was arranged only by the plaintiffs father and the marriage was held in the year 1967. In the meantime, the suit properties were purchased from the years 1961 to 1963. 24. Even P.W.I, the plaintiff, would admit in his cross-examination that earlier, his father, the defendant and their mother - Perumayee Ammal were living together under the same roof. The deposition of D.W.I would clearly show that up to the marriage, which was held in the year 1967, they were all living together and he used to give his income to his brother from 1958 onwards, after he joined the job. He would specifically state that the suit properties were purchased in the interest of joint family, out of monies of both the plaintiffs father and the defendant. The relevant portion is this:— Tamil 25. It is pointed out by the learned counsel for the appellant, on the basis of the first substantial question of law, that the above plea has not been raised in the written statement. This submission may not be correct. 26. In the written statement, though details have not been given, it is stated that the suit properties and other properties were belonging to both the defendant and his elder brother, Mallan Mutharaiyar, the father of the plaintiff. Therefore, it cannot be contended that there was no plea at all in the written statement that it was a joint family property. 27. When P.W.I was examined, he would specifically admits in the cross-examination, when various questions were put to him, with reference to the purchase of the suit properties in the name of his father, when his father was managing the entire family, consisting of mother and unmarried defendant, that those things would be known only to his father and that he did not know as to how the suit properties were purchased by his father. The relevant portion is this:— Tamil 28. The above admission would clearly show that P.W.I was not able to give the details, by whose money the properties were purchased in the name of the father of the plaintiff. 29. The relevant portion is this:— Tamil 28. The above admission would clearly show that P.W.I was not able to give the details, by whose money the properties were purchased in the name of the father of the plaintiff. 29. On the other hand, it is the specific case of the defendant from the beginning, that the suit properties belonged to both the plaintiffs father and the defendant. 30. Under these circumstances, P.W.I should have examined his father, in order to establish that the suit properties were not joint family properties and they are only self-acquired properties of his father, especially, when it is the specific case of the defendant that the suit properties were purchased from the income of both, the plaintiffs father and himself. 31. As a matter of fact, P.W.I ass indicated above, would admit that his father alone would instruct his lawyer and he alone would give the details. Such being the case, there is no reason as to why the plaintiffs father was not examined. 32. The entire reading of the deposition of P.W. 1 would clearly show that the plaintiffs, father, who was instructing his lawyer from the beginning, conveniently, avoided the box, thereby denied himself of a proper scrutiny of the case, pleaded by his son or any legally accepted material to prove his version. 33. In such a situation, there is nothing wrong for the first Appellate Court to think it fir to place reliance upon the oral evidence of D.W.I, who has stated that both in the written statement and in the deposition that the suit properties belonged to both i.e , the father of the plaintiff and the defendant. 34. The learned counsel for the appellant, on the strength of the decisions reported in 1999-2-L.W. 713 (Amirthalingam v. Uthayathamma and others ), AIR 1978 MLJ 56 ( Ranganayaki Animal v. S.R. Srinivasan ), A.I.R. 1969 S.C. 1076 - ( Mudigowda v. Ramachandra ) and 1975 M.L.J. 184 = 88 L.W. 63 S.N. ( Kandaswami Chetliar v. Gopal Chettiar ), would contend that the burden of proof, as to the joint family properties, is on the person, who pleads the same. But, on a perusal of the decisions mentioned above, it is clear that they would not be of any use to the appellant, since the plaintiff has to discharge the initial burden, by establishing that the acquisition were made by his father, without the aid of his brother, the defendant. In the present case, P.W.I himself would admit that both the plaintiffs father and the defendant, along with their mother, were jointly living. It is not disputed that the defendant joined as a Clerk in the sugar factory in 1958 and the marriage of the defendant was arranged by the plaintiffs father and the same was held in the year 1967. 35. Under those circumstances, it is for the plaintiff to initially establish that his father acquired the properties through his self-earned income and he derived title from him, by virtue of Exs. A1 and A2. The plaintiff has not only miserable failed to discharge the initial burden, but also had not chosen to examine his father, who was very much available and who was actually at the background of the ease. 36. Furthermore, it cannot be said that there is no evidence at all to show that the suit properties were purchased when both the plaintiffs father and the defendant were living together along with their mother till 1968. This factor is also proved by D.W. 2, who attested Ex. B7, the partition Family Arrangement. 37. P.W.I himself would admit, as indicated earlier, that all of them, namely, plaintiffs father, defendant and their mother, were living together. In the light of this admission, the evidence of D.W.I, the defendant, to the effect that the suit properties and other properties were purchased out of the funds, belonged to both the plaintiffs father and the defendant, assumes significance. 38. It is settled law, where a manager of the Joint Hindu Family acquired certain properties, in his own name and sufficient nucleus of the joint family property, out of which those properties might have been acquired and apart from “those properties, the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the Joint family. As sufficient nucleus have acquired it, the property, in the name of any member of joint family, should be presumed to be acquired from out of the family funds and so to form part of the joint family property, unless a contrary is shown. This is, however, subject to the limitation that the joint family property must be such as with its aid that the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. But, where it is established or admitted that the family which possessed joint property, which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint family property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. 39. The above principles have been laid down in the following decisions:— “1. A.I.R. 1959 S.C. 906 ( Mallappa Girimallappa Betgeri and others v. Yellappagouda ) 2. A.I.R. 1969 SC 1076 ( Mudigowda Gowdappa Sankh and others v. Ramachandra Revgowda Sankh ) 3. A.I.R. 1972 2531 ( Baikuntha Nath Paramanik v. Sashi Bhusan Pramanik ); 4. 1996 2 S.C.C. 491 ( Surendra Kumar v. Phoolchand ).” 40. While these principles have been applied to the present facts of the case, the admission made by P.W.I that the plaintiffs father, the defendant and his mother were living together and the evidence of D.W.I, the defendant, that he was living with others as a joint family and handing over his income till his marriage, in the year 1967, to his elder brother, the plaintiffs father, would make it abundantly clear that these properties were purchased in the year 1961 to 1963, in the name of the plaintiffs father, as a manager of the family, only out of the common fund of the defendant and the plaintiffs father. 41. 41. Thus, in the absence of any material to show that the father of the plaintiff had some other source of income to purchase the suit properties, it can be safely held on the available materials, that they were the properties of the joint family. As indicated earlier, there is no evidence on the side of the plaintiff either to rebut the presumption or to disprove the above fact. 42. Under those circumstances, the lower Appellate Court is correct in holding that the father of the plaintiff created the documents, Exs. A1 and A2, which are sham and nominal, in order to deprive the rights of his younger brother, the defendant herein. Consequently, Exs. A1 and A2 would not be of any use to hold that the plaintiff would be entitled to the relief of permanent injunction, as those documents would not be considered to be the valid documents, conferring title to the plaintiff. 43. The second substantial question of law, formulated in this case, is as to whether the lower Appellate Court was right at its construction of Ex. B7? 44. It is vehemently contended by the learned counsel appearing for the appellant that the lower Appellate Court cannot rely upon the document, Ex. B7, which is not registered as required under Section 17 of the Registration Act or by provision of the Transfer of Property Act and consequently, it shall be held that the evidence of D.W. 2, who has attested Ex. B7 as false and the recitals in Ex. B7 have to be totally rejected. He would also contend that Section 49 would not give any helping hand to the defendant to rely upon Ex. B7, as it cannot be used for the collateral purpose. 45. With regard to the inadmissibility of unregistered document, the learned counsel for the appellant would cited 1999 (II) C.T.C. 555 ( Agastin v. Devasagayam ) and A.I.R. (33) 1946 P.C. 51 = 59 L.W. 196 ( Ram Rattan v. Parma Nand ). 46. In those decisions, it is held that when the document is a Deed of Partition, undet Section 17-B of the Registration Act, it is compulsorily registrable and consequently, the bar created under Section 49(c) of the said Act will operate, resulting in the document, being inadmissible in evidence. 47. 46. In those decisions, it is held that when the document is a Deed of Partition, undet Section 17-B of the Registration Act, it is compulsorily registrable and consequently, the bar created under Section 49(c) of the said Act will operate, resulting in the document, being inadmissible in evidence. 47. It is also held that the Unstamped Deed of Partition cannot be used to corroborate the oral evidence, as to factum of partition. In both these decisions, it was held that the document marked was held to be a Partition Deed and on that basis, the finding had been given. But, in the instant case, the lower Appellate Court allowed the defendant to use this document only for the collateral purpose as provided under Section 49 of the Registration Act. 48. This Court, in a decision reported in 1997 (II) ML.J. 23 = 1999-3-L.W. 27 (cited supra), Honourable Raju, J., as he then was, would hold as follows:— “4 It is by now well-settled that though a document particularly a document of the nature under consideration, the unregistered rent deed, has not been registered under the law of registration, there is no impediment for referring to the same or relying upon the recitals therein for collateral purposes. That apart, I find much turned on the oral evidence also in this case and in support of the facts contained in the unregistered rent deed, the plaintiff temple examined P.Ws. 1 to 3 who spoke in favour and support of the casern the temple, but conveniently the defendant has avoided the box and thereby denied himself of a proper scrutiny of the case pleaded by him or any legally accepted material to prove his version.” The above observation, in my view, would squarely apply to the facts of this case as well. 49. A reading of Ex. B7 would show that it was merely a family agreement/arrangement. Under this document, it was decided to divide the properties between the plaintiffs father and the defendant. D.W. 2 is one of the attesting witnesses. It is stated in the said document that both the parties agreed to execute the Partition Deed and to get it registered in the Sub-Registrars office and the expenditure of the same has to be incurred by both. D.W.I while referring this document, would state that after execution of his family arrangement deed, Ex. It is stated in the said document that both the parties agreed to execute the Partition Deed and to get it registered in the Sub-Registrars office and the expenditure of the same has to be incurred by both. D.W.I while referring this document, would state that after execution of his family arrangement deed, Ex. B7 dated 10.6.1968, he several times requested his elder brother to register the Partition Deed in the Sub-Registrars office, but, however, the elder brother, avoided the execution. 50. D.W. 2, who has attested the Family Arrangement document, would clearly say that from the date of the execution of the said document, the defendant had been enjoying the suit properties allotted to him. He would also state that both the plaintiffs father and the defendant had signed in the document, in his presence. 51. In fact, D.W. 2, who was aged about 65 years, at the time of examination, would clearly state that on the request of both the defendant and the plaintiffs father, the above, family arrangement, under Ex. B7 was made and he participated in the said family arrangement, as he was the Periapattayadar of the village. On appreciation of his evidence, the lower Appellate Court would observe that there is nothing to indicate that he deposed falsely against the plaintiff. Furthermore, there is no challenge on his evidence that the plaintiffs father, as a willing party, had put his signature in Ex. B7. 52. Under those circumstances, the non-registration and non-stamping of the document, would not preclude the Court from using the said document for a collateral purpose, in order to test the veracity of the evidence of D.Ws. 1 and 2. 53. Once the evidence of D.Ws. 1 and 2, which is corroborated by D.W. 3, who speak about the possession by the defendant, D.W.I, is held to be reliable, them it has to be held that from the date of execution of Ex. B7, the suit properties are in the enjoyment of the defendant. 54. As stated above, though the plaintiff (P.W.I) would state in the Chief-examination that the defendant has no right in the suit properties, in the cross-examination, he would state that the defendant has got right only in the third item of the property and not in any other items. In the light of this statement by P.W.I, the materials placed by the defendant would assume importance. 55. In the light of this statement by P.W.I, the materials placed by the defendant would assume importance. 55. It is no doubt, true that several documents have been filed by the plaintiff to prove his possession. Similarly, the defendant also had filed the documents to prove his possession. But, the lower Appellate Court, on consideration of all the documents, would state that the plaintiff was not able to establish his exclusive possession of the suit properties from the date of the execution of the documents, Exs. A1 and A2. 56. On the other hand, it is held by the lower Appellate Court, on consideration of the various documents, such as Exs. B2, B3, B4, B6 and B9, that the defendant had been in continuous possession of the suit properties till the date of the suit. The suit is for a bare injunction, alleging that the plaintiff was in exclusive possession of the suit properties on the basis of Exs. A1 and A2. In a suit for injunction, it is the duty of the plaintiff to prove that he is in continuous possession on the date of the suit. 57. In this context, it would be relevant to extract the observation made by this Court, reported in 1998 (III) M.L.J. 567 = 1998-3-L.W. 119 ( Chellathurai v. Perumal Nadar ) “8 The suit is only for bare injunction alleging that the plaintiff is in exclusive posession on the basis of Ex-A1. In the suit for injunction, it is the duty of the plaintiff to prove that he continued to be in possession on the date of suit. Only when evidence on both sides are even, title to the property will have some relevance.” 58. In the present case, the plaintiff asked for a permanent injunction, alleging that he is in exclusive possession on the basis of Exs. A1 and A2, the, Title Deeds. Therefore, the plaintiff has to necessarily establish that he took possession on the date of the execution of the documents and he continued to be in possession on the date of the suit. 59. As I stated earlier, both the parties produced their documents to prove their possession. However, it cannot be stated that the evidence is even. Therefore, the plaintiff has to necessarily establish that he took possession on the date of the execution of the documents and he continued to be in possession on the date of the suit. 59. As I stated earlier, both the parties produced their documents to prove their possession. However, it cannot be stated that the evidence is even. Even assuming that the evidence adduced by both the parties, relating to the possession, are even, then the plaintiff loses his case, in view of the fact that he has failed to establish the title through valid documents. Moreover, the lower Appellate Court elaborately discussed the evidence let in by both parties and held that the defendant alone had produced the documents to show that on the date of the suit, he was in possession of the suit properties. This is purely a finding of fact. 60. In the light of the materials discussed above and the, finding of fact rendered by the lower Appellate Court, I am unable to find any compelling reason to interfere with the judgment and decree impugned. In my view, the finding of fact, which has been given by the first Appellate Court, is purely based upon the appreciation of the relevant evidence. 61. As pointed out by the Apex Court, it is not within the domain of this Court to investigate the reasons on which the findings have been arrived at by the last Court of fact, being the first Appellate Court. 62. Furthermore, when I find that the reasonings given by the first Appellate Court, to set aside the trial Courts decree, are sound and not flimsy, and particularly, when the first Appellate Court is shown to have exercised its discretion in a judicial manner, it is not proper for me to interfere with the judgment of the first Appellate Court. 63. In the present case, as noted above, the first Appellate Court made a thorough discussion and meticulously considered the evidence adduced by the parties and gave correct reasons for accepting the evidence adduced by the defendant and for rejecting the evidence let in by the plaintiff. 64. In view of what is stated above, this Second Appeal, which has no merit, is liable to be dismissed and accordingly, it is dismissed. No costs.