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2011 DIGILAW 259 (MAD)

Dhandapani v. Balamurugan

2011-01-19

G.RAJASURIA

body2011
Judgment :- 1. This Second Appeal is focused animadverting upon the judgment and decree dated 29.10.2009 passed in A.S. No.15 of 2009 by the Sub-Court, Neyveli, confirming the judgment and decree of the learned District Munsif cum Judicial Magistrate Court, Neyveli in O.S. No.322 of 2005. The parties are referred to hereunder according to their litigative status and ranking before the Trial Court. 2. A ‘resume’ of facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The Plaintiff, who is the Respondent herein filed the Suit seeking the following reliefs: “To grant permanent injunction restraining the Defendants their men and agents from entering into the suit property.” (extracted as such) (b) The Defendants filed the Written Statement resisting the Suit. (c) Whereupon issues were framed. The Plaintiff/Balamurugan examined himself as P.W.1 along with P.W.2/Selvapandian and P.W.3/Arumugam and Exs.A1 to A22 were marked. On the side of the Defendants D.W.1 to D.W.6 were examined and Exs.B1 to B22 were marked. (d) Ultimately the Trial Court decreed the Suit. Being aggrieved by and dissatisfied with the same, Appeal was filed for nothing but to be dismissed confirming the judgment and decree of the Trial Court. 3. Challenging and impugning the judgments of both the Courts below, this Second Appeal has been filed inter alia that the Courts below failed to take into consideration the fact that the alleged Sale Deed was never intended to be acted upon, but it was executed only by way of security to repay the loan availed by the Defendants from the Plaintiff, who is a money lender. The Defendants never parted with the possession in favour of the Plaintiff. Even then, based on insufficient and patchy evidence the Courts below held as though the Plaintiff was in possession and enjoyment of the suit property under the Sale Deed. Submitting as aforesaid, the learned Counsel for the Appellant pleaded for setting aside the judgments and decrees of both the Courts below and for dismissing the Suit. 4. The following proposed substantial questions of law are found suggested in the memorandum of Second Appeal: “(1) Whether in law the Courts below are right in failing to see that the onus of proving the truth and validity of the Sale Deed shifted on the Plaintiff once the Defendants had proved that the deed was only a security for a loan? (2) Whether in law the Courts below did not err in failing to see that when title is denied, the Suit for injunction could not be maintained without seeking to get a declaration of title? (3) Whether in law the Courts below are right in over looking that the settled possession of the Appellants could not be disturbed by the Respondent except by due process of law?” 5. Heard both sides. 6. A summation and summarization of the arguments as put forth and set forth by the learned Counsel for the Appellants/Defendants would run thus: (a) The onus of proof was on the Plaintiff to establish that the Sale Deed was in fact acted upon and that too in the wake of the defence taken by the Defendants that the Sale Deed emerged only by way of security of prompt repayment of the loan. (b) The Courts below did not apply the correct proposition of law in analyzing the voluminous evidence adduced on the side of the Defendants. (c) Merely because certain revenue records were filed on the side of the Plaintiffs, the Courts below were not justified in holding as though the actual physical possession was with the Plaintiff. Accordingly, the learned Counsel for the Appellants/Defendants would pray for setting aside the judgment and decree of both the Courts below. 7. Whereas, by way of torpedoing and pulverizing the arguments as put forth and set forth on the side of the Appellants, the learned Counsel for the Respondent/Plaintiff would advance his arguments, the gist and kernel of them would run thus: (a) Indubitably and indisputably, admittedly and unarguably, the Sale Deed, Ex.A1 is in the name of the Plaintiff and it is a registered Sale Deed. (b) The Trial Court correctly pressed into service Section 92 of the Indian Evidence Act and also the relevant decision of the Hon’ble Apex Court and decided the lis warranting no interference of the High Court. (c) Based on the Sale Deed, Ex.A1, mutation was effected in the revenue records and that would expatiate and demonstrate, display and project that the Plaintiff has been in possession and enjoyment of the suit property under the said Sale Deed. (c) Based on the Sale Deed, Ex.A1, mutation was effected in the revenue records and that would expatiate and demonstrate, display and project that the Plaintiff has been in possession and enjoyment of the suit property under the said Sale Deed. In such a case, the irresistible conclusion is that the Sale Deed was acted upon and in such a case it would not lie in the mouth of the Defendants to contend that the Sale Deed was a sham and nominal one and it only emerged by way of security for the prompt repayment of the loan borrowed by the Defendants and their father from the Plaintiff. Accordingly, the learned Counsel for the Respondent/Plaintiff prays for the dismissal of the Second Appeal. 8. I fumigate my mind with the following decisions of the Hon’ble Apex Court: (i) Hero Vinoth (Minor) v. Seshammal, 2006 (4) CTC 79 (SC) : 2006 (5) SCC 545 ; and (ii) Kashmir Singh v. Harnam Singh and another, 2008 (4) Scale 300 . A mere perusal of those judgments would amply make the point clear that unless there is substantial question of law involved in the matter, the question of entertaining the Second Appeal would not arise at all. Hence it is just and necessary to analyse the relevant facts available before me to find out as to whether any substantial question of law has been made out in this matter. 9. A plaint reading of the judgment of the trial Court which has been written property and elaborately by the learned Trial Judge, would exemplify and demonstrate that the learned Judge adhered to the provisions of the Indian Evidence Act and also the relevant case laws. The learned Judge applied the principle of onus of proof properly. 10. At this juncture, my mind is redolent and reminiscent of the following maxim: Affirmanti, non neganti incumbit probatio-The burden of proof lies upon him who affirms, not upon one who denies. Here it is ex facie and prima facie clear the Ex.A1, the registered Sale Deed was executed by the Defendants in favour of the Plaintiff. In such a case, squarely Section 92 of the Indian Evidence Act can be pressed into service. The Defendants who try to press into service their plea should prove that the said document was not intended to be acted upon. 11. In such a case, squarely Section 92 of the Indian Evidence Act can be pressed into service. The Defendants who try to press into service their plea should prove that the said document was not intended to be acted upon. 11. In this connection, I would like to recollect the following decision of the Division Bench of this Court: Nanjammal(Died) and another v. Palaniammal, 1993 (2) LW 205 , certain excerpts from it would run thus: “5. It was one of the contentions urged in the Court below that the Plaintiff had not even obtained Encumbrance Certificate before the execution of Exhibit A1 and she had not taken the title deed from the Defendant. The Court below has pointed out the recital in Exhibit A1 under which the Defendant had undertaken to obtain an Encumbrance Certificate and give it to the Plaintiff. The fact that the Plaintiff had not taken the title deed in advance does not in any way discredit the truth of the agreement in Exhibit A1. In fact, the evidence of the Defendant is that what was written was really an agreement though it was only for the purpose of securing the loan. She (Defendant) has admitted that the Plaintiff wanted her to execute an agreement for sale by way of security for the loan and she did execute such an agreement. When that is the fact, it is not open to the Defendant to raise a plea that the terms of the agreement should be ignored as the real purpose was to secure the loan transaction. It is conceded by learned Counsel for the Appellants that the Defendant is barred from raising such a plea by Section 92 of the Indian Evidence Act. 6. Hence, the only question to be considered is whether the relief of specific performance should not be granted to the Plaintiff. The normal rule is that once the truth of the agreement is made out the Court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the Agreement for Sale. In the present case no such circumstances has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the Defendant and relief of specific performance should be denied. In the present case no such circumstances has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the Defendant and relief of specific performance should be denied. The Defendant has stated in the evidence that the property was worth much more than `1,01,000/- at the time of the agreement. But there is absolutely no evidence in support of the same. No document has been produced to prove the value of the lands in the locality and no witness has been examined to speak to the same. In such circumstances we cannot accept the case of the Defendant that the property is more valuable than the consideration mentioned in Exhibit A1.” 12. In Ganga Bai v. Chhabubai, AIR 1982 SC 20 , the Hon’ble Apex Court held as under, certain excerpts from it would run thus: “11. The next contention on behalf of the Appellant is that sub-section (1) of Section 92 of the Evidence Act bars the Respondent from contending that there was no sale and, it is submitted, the Respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last Section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the First Proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intend of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties (Tyagaraja Mudaliyar v. Vedanthanni). The Trial Court was right in permitting the respondent to lead parol evidence in support of her plea that the Sale Deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the Court below in favour of the Respondent must be accepted. The second contention on behalf of the Appellant must also fail.” No doubt, a mere perusal of the judgment of the Hon’ble Apex Court would leave no doubt in the mind of the Court that Section 92 of the Indian Evidence Act can be pressed into service only relating to the averments in the document and the parties to the document concerned should not suggest variation. However, either of the parties can very well plead that the document itself was not intended to be acted upon. I would like to agree with the suggestion made by the learned Counsel for the Defendants that they were entitled to plead before the Court that the Sale Deed was not intended to be acted upon. While holding so, I would also like to point out that onus probandi as already highlighted supra is on the Defendants. It has to be seek as to whether the burden was discharged. 13. It is a trite proposition of law that burden of proof is ambulatory and not static. Once the Plaintiff by marking Ex.A1 the registered document discharged his burden of proof in proving the document and that too with the aid of Section 114, Illustration (e) of the Indian Evidence Act, the burden got shifted to the Defendant’s side. Both the Courts below meticulously examined the oral and documentary evidence and held that absolutely there was no shred or shard, iota or molecular extent of evidence to establish and prove that the said document emerged only by way of securing the alleged prompt repayment of the loan. In such a case, it is a pure question of finding of fact with which this Court is not expected to interfere unless there is any perversity or illegality in it. On hearing the argument of the learned Counsel for the Defendants, I could see no perversity or illegality in the finding of facts rendered by the Trial Court. The Appellate Court also in commensurate with the established principles in dealing with Appeals, correctly dealt with the matter warranting no interference in this Second Appeal. The registered Sale Deed/Ex.A1 as well as the Revenue Records, is relied on by the Plaintiff to prove that the Plaintiff is the owner of the property and wherefore, I could see no question of law much less substantial question of law involved warranting interference in the Second Appeal. Accordingly, this Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.