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2002 DIGILAW 176 (MAD)

Komiah v. Subbulakshmiammal and another

2002-03-01

K.SAMPATH

body2002
Judgment : The plaintiff in O.S.No.110 of 1983, on the file of the District Munsif, Shencottah, is the appellant in the second appeal. 2. He filed the suit for permanent injunction restraining the first defendant/ first respondent herein, from interfering with his possession and enjoyment of the suit properties as cultivating tenant alleging as follows: He became a lessee of Lakshmiammal about four years prior to suit, agreeing to pay four Kottahs of paddy every year. She died in or about 1980. During her lifetime, the second defendant/ second respondent herein, was receiving the rent from the plaintiff on her behalf. Even after the death of Lakshmiammal, he continued to be in possession of the suit properties as cultivating tenant. He had been regularly paying the rent to the second defendant till pisanam 1983. The original owner and the plaintiff had entered into a lease arrangement on 11.3.1979. On 26.3.1983, the first defendant came to the suit properties, informed him that she had got delivery of the property through Court, and attempted to throw him out, necessitating, the filing of the suit. 3. The first respondent resisted the suit contending inter alia that the lease set up by the plaintiff was false and a fraudulent one. No lease was executed by Lakshmiammal, at any time, in favour of the plaintiff. The lease deed had been created by the plaintiff and the second defendant. The first defendant filed a suit against the second defendant in O.S.No.46 of 1979 before the Subordinate Judges Court, Tenkasi, which was later on transferred to the District Munsif, Shencottah, and renumbered as O.S.No.49 of 1981. In that suit, the second defendant contended that he was entitled to the suit properties as heir to Lakshmiammal. He also claimed that he was in possession of the suit properties. The said suit was decreed on 21.1.1982 in favour of the first defendant, and in E.P.No.9 of 1983 she also took possession of the properties on 9.2.1983. The plaintiff was not in possession of the suit properties and he was not entitled to any relief. 4. Thesecond defendant remained ex parte. 5. The said suit was decreed on 21.1.1982 in favour of the first defendant, and in E.P.No.9 of 1983 she also took possession of the properties on 9.2.1983. The plaintiff was not in possession of the suit properties and he was not entitled to any relief. 4. Thesecond defendant remained ex parte. 5. Thetrial Court framed the necessary issues and on the oral and the documentary evidence (2002) 1 MLJ 647 at 648 held that the lease deed set up by the plaintiff was not a genuine document, that the receipts produced by him were not genuine, and that the first defendant was in possession pursuant to the Execution Proceedings. So holding by judgment and decree, dated 10.11.1983, the trial Court dismissed the suit. 6. The plaintiff filed appeal in A.S.No.157 OD 1998, before the Subordinate Judges Court, Tenkasi. The learned Subordinate Judge, by judgment and decree, dated 26.2.1988 confirmed the decision of the trial Court and dismissed the appeal. It is as against this, the present second appeal has been filed. 7. At the timeof admission, the following substantial questions of law were raised for decision in the second appeal. • “(1) Whether the finding given by the Courts below that pursuant to the proceedings in O.S.No.49 of 1979 on the file of the District Munsifs Court, Shencottah, delivery of possession was given to the respondents, is sustainable when the same is symbolical in nature and has no operation as against the appellant herein, nor does it create any privity of interest of estate between the appellant and the first respondent hereine • (2) Whether the said delivery of possession of the suit property to the first respondent is sustainable by the mere production of a certified copy of a warrant of delivery of possession, especially when the facts show that only symbolical possession could have been delivered to the first respondente and • (3) Whether the Courts below were right in holding that the appellant is not a cultivating tenante” 8. From the facts it is seen that the suit properties originally belonged to one Lakshmiammal. The first defendant is the grand daughter of Lakshmiammal and the second defendant is the grand son. Under Ex.B-1, dated 22.2.1979, Lakshmiammal gave a Power of Attorney to the first defendant. She filed a suit against the second defendant in O.S.No.447 of 1979. From the facts it is seen that the suit properties originally belonged to one Lakshmiammal. The first defendant is the grand daughter of Lakshmiammal and the second defendant is the grand son. Under Ex.B-1, dated 22.2.1979, Lakshmiammal gave a Power of Attorney to the first defendant. She filed a suit against the second defendant in O.S.No.447 of 1979. The second defendant filed a written statement stating that he was in possession of the suit properties and cultivating the same. Ex.B-2 is the copy of the written statement filed by him in the said suit. The suit was decreed. Ex.B-3 is the copy of the delivery proceedings. As per Ex.B-3 the first defendant took possession of the suit properties on 9.2.1983. The delivery proceedings clearly falsify the case of the plaintiff that he was in possession of the suit properties as a cultivating tenant. Particularly when the second defendant had claimed in the prior suit as a cultivating tenant in possession of the property, and as late as 19791980, it is inconceivable any lease deed would have come into effect on 11.3.1979 in favour of the present plaintiff. The first defendant had disputed the genuineness of Ex.A.1/lease deed. The Courts below compared the signature attributed to Lakshmiammal in Ex.A-1 with the admitted signature in Ex.B-1/Power of Attorney, and found that the signature in Ex.A-1 was a clear forgery. I myself compared the two signatures and I concur with the view taken by the Courts below, Ex.A-1 is a created document. The Courts below have found that Ex.A-1 and the receipts produced by him had been created by the plaintiff with the help of the second defendant. The second defendant having filed in his attempt to grab the properties had set up the present plaintiff to file the present suit. The plaintiff had also not produced any material to show that he was a cultivating tenant. 9. Thenext question will be whether the delivery through Court is only a paper delivery. 10. In C.Ramasami v. Kuruva Boyan C.Ramasami v. Kuruva Boyan (1991)1 L.W. 244 it has been held: “It is not possible for a Court to ignore the evidence afforded by the Court officials to the effect that delivery has been effected, on the mere allegation that there was no actual delivery. 10. In C.Ramasami v. Kuruva Boyan C.Ramasami v. Kuruva Boyan (1991)1 L.W. 244 it has been held: “It is not possible for a Court to ignore the evidence afforded by the Court officials to the effect that delivery has been effected, on the mere allegation that there was no actual delivery. In order to reject the official records such as the bailiffs endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full par- (2002) 1 MLJ 647 at 649 ticulars as are necessary to support the same, the Court shall not direct an enquiry as to whether there is actual delivery. In every case the judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an order of stay in the appellate Court. A bare allegation that the delivery is a paper delivery and that the appellant continues in possession is hardly sufficient to direct an enquiry whether there is physical delivery. The presumption under Sec.114 of the Evidence Act the official acts are performed regularly will undoubtedly apply.” 11. I have followed the said decision in Govindaswamy Pillai v. Marudan (2002)1 L.W. 113 . 12. From the factual details extracted already, it would be clear that the plaintiff had been set up by the second defendant after the latter had failed in his attempt to get the properties in the prior suit filed by the first defendant. As pointed out in the decisions cited supra, unless there is any fraud alleged with details and proved, the Court cannot assume that the delivery through Court was only a proper delivery. There is no warrant for assuming that it was only a symbolical possession that was taken by the first defendant. Substantial questions of law 1 and 2 are answered against the appellants. 13. So far as the third substantial question of law is concerned, we have already noticed that the plaintiff had not proved that he was cultivating the suit lands as a cultivating tenant. Consequently, the third substantial question of law is also answered against the appellant. The second appeal fails and the same is dismissed. No costs.