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2007 DIGILAW 1116 (MAD)

Tmt. Vannammal v. Kottai

2007-03-28

R.BANUMATHI

body2007
Judgment :- As against the concurrent findings of the Courts below Defendant has preferred this Second Appeal. .2. The case of the plaintiff is that the suit property in Survey No.428/1 is his ancestral property. During the settlement proceedings, Patta was granted in favour of the Plaintiffs father Kumaran. According to Plaintiff, Patta was changed in the name of Plaintiff and their ancestor, and they have been in long possession and enjoyment and paying kist etc. to the Suit Property. Alleging that Defendant is threatening to interfere with his possession and apprehending trespass, Plaintiff has filed the suit for permanent injunction. 3. Denying plaint averments Defendant has filed written statement contending the Suit Property belonged to Petchi Ammal, Daughter of Chinna Karuppan. According to the Defendant, the said Petchi Ammal sold the Suit Property to the Defendant under Ex.B.1 (dated 13.05.1959). Defendant Vannammal, with the help of her husband, has been cultivating the same and was in long possession and enjoyment of the Suit Property. Defendant has alleged that original Sale Deed in her favour has been destroyed in fire. 4. On the above pleadings, three issues were framed in the Trial Court. Finding that Vendor of the Defendant (D.W.3) has not proved his title and holding that D.W.3 has no title, and no document had been produced to prove the title of Defendants predecessor-in-title, the Trial Court negatived the defence plea. The Trial Court however, held that Boundary Recitals in Exs.B.4 and B5 cannot form the basis for accepting the Defendants title. The Judgment of Trial Court was confirmed by First Appellate Court, finding that Defendant has not proved her title to the Suit Property. .5. Challenging the concurrent findings, Defendant has filed this Second Appeal. The following substantial question of law was formulated at the time of admission of the Second Appeal. ."Whether the Courts below were correct in decreeing the suit filed by the plaintiff by rejecting the certified copy of the sale deed, filed by the defendant and marked as Exhibit B1.?" 6. Challenging the concurrent findings of the Court below, the learned counsel for Appellant/Defendant contended that Courts below erroneously negatived the defence plea on the ground that original document had not been filed. Challenging the concurrent findings of the Court below, the learned counsel for Appellant/Defendant contended that Courts below erroneously negatived the defence plea on the ground that original document had not been filed. It was further contended that Exs.B4 and B5 are ancestral documents, about 23 years prior to the Suit and Southern Boundary Recitals thereon would show the right and title of the Defendant in the Suit Property, which was ignored by Courts below. 7. Drawing attention of Court to the Settlement Patta, Kist receipts, Patta granted in the up-dating Survey schemes, the learned counsel for the Respondent/ Plaintiff had submitted that Plaintiff had proved his title to the Suit Property by ample documentary evidence and the Courts below have rightly decreed the Plaintiffs suit. The learned counsel for the Respondent/Plaintiff further contended that Courts below rightly negatived the defence plea, since the Defendant has not produced any document showing title of her Vendor. 8. The Suit Property relates to Survey No.428/1 an extent of 57 Cents in Arasanur Village. Plaintiff claims that the Suit Property is his Ancestral Property. Ex.A1 is the extract of Survey Settlement Register for Suit Survey No.428/1, which stands in the name of Kumaran, father of Plaintiff. Ex.A.2 is the rough Patta/Survey No.428/1-Patta No.272. Exs.A3 to A5 are the Kist Patta in the name of P.Kumaran and Exs.A5 and A6 are the Kist Patta for Patta No.272. In recognition of Plaintiffs right and enjoyment of the Suit Property in the up-dating Survey schemes, Ex.A.8 Patta was also granted in favour of the Plaintiff. Plaintiffs have also adduced oral evidence by examining P.Ws.1 and 2. P.W.3 is the Village Headman, who has clearly deposed that he has collected Kist from Pattadar viz., the Plaintiff. 9. By adducing documentary and oral evidence, Plaintiff has discharged the initial burden of proving his prima facie case, and the burden lies upon the Defendant to prove that she has better right and title in the Suit Property. The Defendant bases her claim upon Ex.B1 (13.05.1959)-Sale Deed in favour of the Defendant by Petchi Ammal and two others. In Ex.B1 Sale Deed it is stated that the Suit Properties belonged to the Vendors ancestrally. As held by the Courts below, to substantiate prior title of Vendor Petchi Ammal, no evidence was adduced. The Defendant bases her claim upon Ex.B1 (13.05.1959)-Sale Deed in favour of the Defendant by Petchi Ammal and two others. In Ex.B1 Sale Deed it is stated that the Suit Properties belonged to the Vendors ancestrally. As held by the Courts below, to substantiate prior title of Vendor Petchi Ammal, no evidence was adduced. D.W.1-Irulappan, husband of the Defendant was examined, who has stated that Petchi Ammal had inherited Suit Property from her Mother. D.W.3 Ambalam is one of the Vendor under Ex.B3, who has also stated that Petchi Ammal had Patta in Survey No.428/1. Excepting the oral evidence of D.Ws.1 and 3, no documentary evidence or Settlement Patta was produced in the name of ancestor of Petchi Ammal. The Courts below have rightly held that the Defendant has not convincingly established the prior title of her Vendor Petchi Ammal. 10. It is also relevant to note that after the alleged purchase of the Suit Property under Ex.B1, Defendant has not applied for obtaining Patta under Ex.B2. Defendant is said to have paid Kist to the Suit Property for Faslis 1376 to 1382 and she is said to have paid Kist for Patta No.272. As noticed earlier that the Patta stands in the name of Kumaran, Father of Plaintiff. While so, alleged payment of Kist by the Defendant would not establish her title to the Suit Property. 11. The learned counsel for the Appellant/Defendant mainly placed reliance upon the Boundary Recitals in Exs.B4 and B5. Ex.B4 (dated 11.02.1960) is the Sale Deed in favour of one Sokkaiah Ambalam, of the Property in Survey No.426/4, which is situated on the northern side of the Suit Property. Ex.B5 is the Sale Deed (dated 06.07.1961) in favour of one Kattiaya Mooppan, by the above said Sokkaiah Ambalam of the Property Survey No.426/4. Both in Exs.B4 and B5 the southern Boundary is stated as the land of Irulappan. Irulappan is the husband of Defendant. The Boundary Recitals in Exs.B4 and B5 are very much relied upon by the Defendant to contend that the Suit Property belongs to her and she is in enjoyment of the Suit Property. 12. To substantiate the Boundary Recitals in Exs.B4 and B5, D.W.4-Chellaiah, Vendor under Ex.B4 was examined, who has deposed about the Boundary Recitals in Ex.B4. Exs.B4 and B5 Sale Deeds are not inter parties. The Boundary Recitals thereon will not establish the title of the Defendant. 12. To substantiate the Boundary Recitals in Exs.B4 and B5, D.W.4-Chellaiah, Vendor under Ex.B4 was examined, who has deposed about the Boundary Recitals in Ex.B4. Exs.B4 and B5 Sale Deeds are not inter parties. The Boundary Recitals thereon will not establish the title of the Defendant. Recitals of Boundaries in document between third parties are not admissible under Sections 11 or 13 of the Indian Evidence Act, but they might be admitted under Section 32 of the Indian Evidence Act, when conditions laid down thereon, are present. In some cases, distinction could be drawn in this way. Where the executants of documents of neighbouring lands (between third parties) are called as witnesses, the Boundary Recitals may be admitted for the purpose of corroborative evidence under Section 157 of the Indian Evidence Act. Exs.B4 and B5 being the Sale Deeds not inter parties, the Boundary Recitals thereon can only be corroborative piece of evidence. The Boundary Recitals in Exs.B4 and B5 itself cannot establish title of the Defendant. .13. Yet another aspect is also to be pointed out Ex.B1 Sale Deed is only Registration copy. The Defendant has not produced original title Deed. The Second Appeal was admitted on the ground of non production of original of Ex.B1. According to the Appellant/Defendant original Sale Deed was destroyed in a fire accident. In his evidence D.W.1, husband of Defendant has stated that destruction of original Sale Deed in a fire accident could be proved by examining the Villagers viz., Chinna Ambalam and Iyyadurai. But those witnesses were not examined to substantiate the destroying of original Sale Deed in a fire accident. In the lower Appellate Court, Defendant has filed I.A.No.573 of 1992 under Order 41 Rule 27 C.P.C., for the purpose of examining additional witnesses to substantiate her plea of document being destroyed in a fire accident. That application was dismissed by the First Appellate Court on the ground that the Defendant has not shown any satisfactory reasons for not examining those witnesses in the Trial Court. Observing that the conditions under Order 41 Rule 27 C.P.C. are not shown by the Defendant, the Appellate Court dismissed that application and in my considered view that order does not suffer from any serious infirmity. 14. Observing that the conditions under Order 41 Rule 27 C.P.C. are not shown by the Defendant, the Appellate Court dismissed that application and in my considered view that order does not suffer from any serious infirmity. 14. The contents of a document must be proved by production of the original document and secondary evidence of it is, generally not admissible (vide Section 64 of the Indian Evidence Act). But there are exceptions to the Rule and Section 65 states the various class of cases in which secondary evidence relating to documents may be given. The principle is that so long as the original exists and is available, it being the best evidence, must be produced. If it cannot be produced on account of its loss, destruction, detention by the opponent, or third person who does not produce after notice, physical or legal irremovability, or any other cause, secondary evidence is admissible. Section 65 admits of secondary evidence only if it is shown that the document is lost or destroyed or otherwise not available. .15. In this case, the Defendant has alleged that the document was destroyed by fire, which has not been substantiated by adducing evidence. Only when the absence of original is satisfactorily accounted for, secondary evidence could be admitted. The Defendant has stated that original could not be produced, since it was burnt in fire. Though witnesses have not been examined, Ex.B1 being the Registration copy could be looked into. But the Courts have disbelieved the Defence plea not only on account of non-production of original, but mainly on the ground that the defendant has failed to establish the title of her Vendor Petchi Ammal. In those factual situation, non-production of original of Ex.B1 was taken note of, as a relevant factor. It cannot be said that the Courts below have committed serious error in not admitting the Registration copy of the Sale Deed i.e, Ex.B1. 16. The learned counsel for the Defendant has mainly contended that there is a long gap of 35 years between Exs.A2 and A9 and the Plaintiff has not explained that long gap. Exs.A3 to A5 and A5 and A6 are the Kist receipts paid by the Plaintiff, evidencing his possession and enjoyment of the Suit Property. It cannot be said that there is an unexplained long gap in the possession of the plaintiff. 17. Exs.A3 to A5 and A5 and A6 are the Kist receipts paid by the Plaintiff, evidencing his possession and enjoyment of the Suit Property. It cannot be said that there is an unexplained long gap in the possession of the plaintiff. 17. In proper appreciation of evidence, Courts below have recorded sound reasoning for granting decree to the Plaintiff. There is no error or defect in the appreciation of evidence or the findings recorded thereon calling for interference, exercising jurisdiction under Section 100 C.P.C. 118. For the foregoing discussion, the concurrent Judgment of the Courts below is confirmed and the Second Appeal is dismissed. In the circumstance of the case, both parties are directed to bear their respective costs. Consequently, connected C.M.P.No.17183 of 1994 is also dismissed.