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2012 DIGILAW 2011 (MAD)

Madivadhanam v. Saroja

2012-04-20

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed in A.S.No.46 of 2000 dated 19.01.2001 in reversing the judgment of the trial court made in O.S.No.52 of 1993 dated 12.01.2000 in dismissing the suit filed by the plaintiff. 2. The appellant herein was the defendant and the respondent herein was the plaintiff before the trial court. 3. The case of the plaintiff as stated in her plaint would be as follows:- The suit property as described in the schedule belongs to the plaintiff. The plaintiff purchased the same for a valid consideration along with other property from Abdul Kader and others by means of a registered Sale Deed dated 4.11.1982. The plaintiff took possession of the suit property and other properties as per the terms of the Sale Deed. 3(2) The ownership and enjoyment of the suit property on the part of the plaintiff is categorically admitted by the defendant as seen from the suit filed by him against one M.A. Arunachalam, not a party herein in O.S.No.492/84 on the file of this Court. The certified copy of the plaint is also filed herewith. He has falsely stated in the plaint that he has entered into an agreement of sale for the half of the suit property with this plaintiff. This plaintiff never entered into an agreement of sale with this defendant at any point of time nor she authorised any person to enter into an agreement of sale, therefore it will not bind this plaintiff. Further, under law, it will not create any right or title in favour of this defendant to any part of the suit property or half of the suit property as falsely claimed in the other suit. 3(3) Eventhough the defendant has also purchased some property from the vendors of the plaintiff, the said property does not relate to the suit property. In the year 1983, the defendant illegally and unlawfully trespassed upon the suit property and demolished the wall on the west of the suit property and created a way leading to Kallukaran lane from his property without the knowledge of the plaintiff when the defendant was subsequently questioned by the plaintiff's son about his illegal act, the defendant having accepted to surrender possession and put up the wall on the west as before has not done sofar. The defendant has also failed to surrender possession of the suit property inspite of a registered notice dated 16.02.1992. The defendant who received the notice sent a reply notice, on 20.02.1992 containing false allegations and falsely claimed right to the suit property by adverse possession. The entire suit property is now illegally used by the defendant as a pathway leading to Kallukaran lane from the property purchased by him. He has got no right of way through the suit property. Even though he had stated in the plaint in O.S.No.492 of 1984, that he has agreed to purchase only a portion of the suit property from the plaintiff, he in his reply notice claimed title to the entire suit property through adverse possession. The claim of adverse possession is false and not sustainable both on facts and under law. Hence the plaintiff is now constrained to file this suit for declaration of her title to the suit property and the consequential relief of possession. 3(4) The plaintiff therefore prays that this Court may be pleased to pass a decree in her favour, a) declaring that the plaintiff alone is owner of the suit property and holds title to the same and consequentially for recovery of possession of the suit property from the defendant; b) to direct the defendant to pay future profits till possession of the suit property is delivered to the plaintiff; c) to direct the defendant to pay the costs of the suit. 4. The objections raised by the defendant in the written statement would be as follows:- The suit property is situate at No.2 Road. But it is not correct to state that the plaintiff has purchased the same from her vendors. If there are any such recitals found in the plaintiff's sale deed the same is a self-serving one and caused to be incorporated with some ulterior motive. The plaintiff never took possession of the suit property. She has never enjoyed the property even for a single day. The allegations in the plaint are not only untrue but also misleading. No doubt the defendant herein has stated in O.S.No.492/1984, that he has entered into an agreement of sale with one Saroja, the plaintiff herein. The plaintiff's husband one Narayanan has entered into an agreement and he has signed the same for and on behalf of the plaintiff. The allegations in the plaint are not only untrue but also misleading. No doubt the defendant herein has stated in O.S.No.492/1984, that he has entered into an agreement of sale with one Saroja, the plaintiff herein. The plaintiff's husband one Narayanan has entered into an agreement and he has signed the same for and on behalf of the plaintiff. The original agreement was produced in that suit, on the date of filing itself. The plaintiff herein and her husband Narayanan still continue to be wife and husband and are living under the same roof. All her affairs are being looked after by her husband. The said Narayanan has purchased the properties in the name of his wife. In fact, the said Narayanan is running Jewellery business and Titan Watch Agency, so the agreement was entered into by the husband of the plaintiff. Hence, that agreement is perfectly valid and binding upon the plaintiff also. The very long silence and inaction of the plaintiff will also substantiate the same. 4(2) Prior to her purchase the defendant was in possession of the property purchased by him as well as the properties purchased by the plaintiff and her son. When the vendors have expressed their intention to sell the properties, this defendant has expressed his willingness to surrender the portion, purchased in the name of the plaintiff and her son. But he has imposed a condition, that the suit property has to be given to him to use the same as an access to the lane. The same was accepted by the plaintiff's husband who has entered into an agreement to convey the same on 04.11.1982. The total consideration of Rs.1000/- was also paid on the same date. It was also agreed that the plaintiff's husband has to execute the sale deed as and when the defendant requires. Though the defendant was already in possession of the property and was using the same as an access, from the date of agreement, he continues to be in possession and enjoyment of the same. It is a deliberate falsehood to state that this defendant has trespassed into the suit property in the year 1983. The door way is not a newly created one as alleged. On the other hand it is there from the very inception of the building. It is a deliberate falsehood to state that this defendant has trespassed into the suit property in the year 1983. The door way is not a newly created one as alleged. On the other hand it is there from the very inception of the building. In fact this defendant was residing in the upstairs portion with his family from the year 1973. The family members used to have an access to the upstairs portion only through the suit passage from the lane. The other allegations that the plaintiff's son questioned the same and the defendant accepted to surrender possession are made without any regard for truth. Further after the execution of the agreement, in favour of this defendant, by way of recognising the transaction, the plaintiff's husband has put up a pucca wall leaving the suit property on the north of the wall. The same will clearly indicate that the plaintiff is very much conscious that she is having property only upto the southern wall. Or else she would have put up construction including the suit property. So the plaintiff can not lay any claim over the suit property. Even if she has got any semblance of right the same is lost on account of the defendant's long continuous and uninterrupted possession and enjoyment . On that score also the plaintiff has lost her title or interest if any. 4(3) For the notice issued by the plaintiff a suitable reply was sent. Since the factum of the agreement was revealed more than one time the same was not mentioned in the reply notice again. That position can not be taken advantage of. A rough plan not drawn to scale is appended herewith and the same may be read as part hereof. 4(4) During the subsistence of the agreement, the plaintiff and her husband put up a sewage tank over the pipe line of the defendant. The matter was reported to the Municipality and consequently the tank was removed. Out of that the plaintiff got annoyed and refused to execute a sale deed and that position has developed into a number of cases between the parties. All the cases are being conducted by the said Narayanan. The matter was reported to the Municipality and consequently the tank was removed. Out of that the plaintiff got annoyed and refused to execute a sale deed and that position has developed into a number of cases between the parties. All the cases are being conducted by the said Narayanan. With a view to give further troubles he has caused his wife / the plaintiff to file the present suit, that too after a long interval of nearly 10 years from the date of the alleged trespass. This defendant therefore prays that this Court may be pleased to dismiss the suit with costs. 5. The trial court, after framing necessary issues on the aforesaid pleadings, entered trial. After appraising the evidence adduced on either side of the parties, the trial court had come to the conclusion of dismissing the claim of the plaintiff. 6. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal before the 1st appellate court in A.S.No.46 of 2000, challenging the judgment and decree passed by the trial court. After hearing both sides, the 1st appellate court reversed the judgment and decree passed by the trial court and thus allowed the appeal and thereby the suit was decreed in favour of the plaintiff. 7. Aggrieved by the reversal judgment of the 1st appellate court, the defendant has preferred this 2nd appeal before this Court. On admission of the 2nd appeal, this Court had formulated the following substantial questions of law for consideration in this appeal. "a. Whether the judgment of the lower appellate court is vitiated in granting a decree for title and recovery of possession, when the respondent's title deed, namely, Ex.B6, does not include the suit property ? b. Whether the Judgment of the lower appellate court is vitiated by error apparent on the face of the record in its stating that the respondent's title was not denied in the written statement of the appellant, when it was specifically denied in the written statement ? c. Whether the lower appellate court erred in law in ignoring the legal principle of "Res Loquitor" while deciding the consequence of 20 feet high wall raised by respondent segregated her property with that of the suit property ? c. Whether the lower appellate court erred in law in ignoring the legal principle of "Res Loquitor" while deciding the consequence of 20 feet high wall raised by respondent segregated her property with that of the suit property ? d. Whether the respondent who approached the Court with unclean hands by materially altered xerox copy of his title deed, is entitled to the specific relief of recovery of possession ? and e. Whether the lower appellate court erred in overlooking section 79 of the Evidence Act while considering Ex.B6 ?" 8. Heard Mr. S. Sounthar, learned counsel for the appellant/defendant and Mr. A. Muthu Kumar, learned counsel for the respondent/plaintiff. 9. The learned counsel for the appellant/defendant would submit in his argument that the 1st appellate court was patently erroneous in coming to the conclusion that the title of the plaintiff to the suit property was not denied in the written statement which is factually an incorrect finding. He would further submit in his argument that while the defendant was examined as DW1, he had categorically denied the title of the plaintiff to the suit property as pleaded in his written statement. He would further submit in his argument that the plaintiff who had filed the suit for declaration of his title and for recovery of possession ought to have proved the case and he shall not harp upon the weakness of the defendant and seek the relief on that basis. He would further submit that the 1st appellate court had thus come to a conclusion that the defendant has to prove the negative aspect. He would also submit that the defendant was in possession and enjoyment of the suit property along with the property conveyed to him and therefore, he has also raised the plea of adverse possession in the event that the title to the suit property was established by the plaintiff. He would also submit that the plaintiff who entered into an agreement through her husband in respect of selling of ½ right in the suit property would be estopped from seeking exclusive right in the suit property as belonging to her. He would also submit that the evidence of DW1 was quite explicit but the 1st appellate court did not accept the evidence of DW1. 10. He would also submit that the evidence of DW1 was quite explicit but the 1st appellate court did not accept the evidence of DW1. 10. He would also submit that the document produced in Ex.A3 by the plaintiff was only the xerox copy and the boundary recitals in the said document have been manipulated for the purpose of showing that the plaintiff was having the suit property along with the property lying to the south of the said property and had screened wire lane in the sale deed and it could be evidenced through Ex.B6, the certified copy of Ex.A3 and the said certified copy would prevail over the xerox copy Ex.A3. He would also draw the attention of the Court to the provisions of Section 79 of the Evidence Act in order to admit the certified copy as a true document. He would further submit that the plaintiff who had come to the Court with unclean hands by suppressing the true boundaries of the property purchased by him, is not entitled for any discretionary relief. He would further submit that the said sale deed executed in favour of the plaintiff by the common vendor would show that the suit property was not conveyed by him. He would further submit that the alleged admission made by the defendant in another proceedings regarding the right of the plaintiff over the suit property would not bind the defendants since the plaintiff did not sign in the sale agreement Ex.B7. He would also submit that the admission given by the defendant was shown to be wrong by producing the certified copy of the title deed of the plaintiff, which would show that there was no lane portion in the schedule of properties. He would further submit in his argument that if really, the plaintiff has conveyed the suit property along with the property sold under Ex.B6, she would not have put up a compound wall to a height of 20 feet which would prevent access to the suit property from the property lying on the southern side. 11. He would further submit in his argument that if really, the plaintiff has conveyed the suit property along with the property sold under Ex.B6, she would not have put up a compound wall to a height of 20 feet which would prevent access to the suit property from the property lying on the southern side. 11. He would also submit that the suit property was a small lane measuring 2 feet breadth and 10 feet length which was used by the defendant for his convenience to reach the Kallukaran lane for over a statutory period from the date of his purchase and therefore, dismissal of the suit by the trial court ought not to have been reversed by the 1st appellate court. He would further submit in his argument that the admission in the earlier proceedings would not bind the defendant since it was an uncanny admission and the said proceedings were not pursued by the defendant. He would also submit that the plaintiff did not produce even the original of Ex.A3 and if really, the original was produced by the plaintiff, the correct description of the suit property would have been established by the plaintiffs for the Court to come to a correct conclusion. 12. He would further submit in his argument that the admission of the defendant would not give any title to the plaintiff and he has to stand on his own legs to prove his case as pleaded by him. He would cite a judgment of the Hon'ble Apex Court reported in AIR 1960 (2) SC 100 (Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others) in support of his arguments. Yet another judgment of the Hon'ble Apex Court reported in AIR 1966 S C 605 (Ambika Prasad Thakur and others v. Ram Ekbal Rai (dead) by his LRs and others) was also cited for the similar principle. He would further submit in his argument that the defendant had also denied the execution of the sale agreement produced in Ex.B7 and there could not be any case of estoppel for the defendant. He would further submit in his argument that by virtue of the principles laid down by the Hon'ble Apex Court, an admission given by the defendant in some other proceedings can be shown to have erroneous and on such circumstance, the admission cannot be relied upon. He would further submit in his argument that by virtue of the principles laid down by the Hon'ble Apex Court, an admission given by the defendant in some other proceedings can be shown to have erroneous and on such circumstance, the admission cannot be relied upon. He would also submit that the trial court had considered the evidence produced before it and had come to the conclusion that the plaintiff had not established her case but was harping upon the weakness of the defendant which was not permissible and had rightly come to the conclusion of dismissing the suit. However without any valid reasons, the 1st appellate court had interfered with the judgment of the trial court and reversed the same, which is not permissible in law. Therefore, he would request the Court that the judgment and decree passed by the 1st appellate Court is not sustainable and therefore, it may be interfered and set aside and thus, the appeal may be allowed and consequently, the judgment and decree passed by the trial court may be restored. 13. The learned counsel for the respondent/plaintiff would submit in his argument that the plaintiff purchased the property from the common vendor who sold the property with defective measurement and the plaintiff was conveyed with the suit property along with the property situated at the southern side under Ex.A3 and the alleged correction of boundary in Ex.A3 was not true. He would also submit that the mere production of Ex.B6, the certified copy of Ex.A3 would not show that the recitals in Ex.A3 were concocted. He would also submit that it was also possible that the defendant would have corrected the boundary recital with the active connivance of the Sub-Registrar, and could have obtained the certified copy. He would also submit that if really, the defendant is relying upon the certified copy in Ex.B6, he ought to have sent for the original registration sheet of Ex.A3 and that would be the conclusive proof of any correction of the lane portion in the schedule, stated to have done by the plaintiff or had the defendant connived with the Sub-Registrar who had added the boundary recital as a lane and thereafter, obtained the certified copy in Ex.B6. The said case of the defendant could also be dis-proved since he had entered into an agreement with the husband of the plaintiff representing on behalf of the plaintiff herself for the purchase of ½ right in the suit property. He would further submit that the moment he entered into an agreement with the plaintiff's husband, the defendant is estopped from claiming that the property was not belonged to the plaintiff. He would also submit in his argument that the plaintiff proved his case by producing the document of title Ex.A3 with the support of the admission given by the defendant and the sale agreement produced in Ex.B7. He would further submit in his argument that the defendant after entering into Ex.B7 agreement cannot turn round and say that the plaintiff has no title to the said property. He would also submit that the claim of adverse possession based upon the possession said to have been given to him in an executory contract would not create any effective adverse possession as decided by the trial court and such possession of the said property by the defendant would only deemed to be on behalf of the owner himself. He would draw the attention of the Court to a judgment of the Hon'ble Apex Court reported in 1991 (1) MLJ 32 (SC) (Achal Reddy v. Ramkrishna Reddiar and others), in support of his argument. He would further submit that the 1st appellate court had appraised the evidence correctly and had distinguished the application under the provisions of Section 79 of the Evidence Act and also found that the pleadings of the plaintiff are sustainable and therefore the findings of the 1st appellate Court need not be interfered since there is no perversity or misconception of evidence. He would therefore submit that the judgment and decree of the 1st appellate court need not be interfered and the same may be confirmed and thus, the second appeal may be dismissed. 14. I have given anxious thoughts to the arguments advanced on either side. 15. The suit was actually filed by the plaintiff for declaration of plaintiff's title and for recovery of the same and also for mesne profits till the property has been handed over by the defendant. The suit property is a lane measuring 2 feet breadth and 10 feet in length. 15. The suit was actually filed by the plaintiff for declaration of plaintiff's title and for recovery of the same and also for mesne profits till the property has been handed over by the defendant. The suit property is a lane measuring 2 feet breadth and 10 feet in length. Admittedly, the said suit property is located in between the properties belonging to the plaintiffs on the southern side and the Kallukaran lane on the western side; and the property of one Thenammai, wife of Arunachalam Chettiar on the northern side and the property of the defendant was on the eastern side. The said property is thus described in the plaint schedule. The same property was subjected to an earlier suit in O.S.No.492 of 1984 filed by the defendant herein against the northern side owner Arunachalam, in which, the defendant pleaded that the suit property was agreed to have been purchased from the plaintiff herein through a sale agreement dated 04.11.1982 and the defendant was entitled to the suit property to be obtained from the plaintiff. The said plaint along with the sketch were produced before the trial court as Exs.A1 and A2. In Ex.A2 sketch I could see that the suit property was referred to as 'ABCD' as mentioned here and the defendant herein had admitted that he got the property from the plaintiff herein. The evidence of the defendant would go to show that the suit property in Ex.A2 suit as well as in this suit are one and the same and the suit property was purchased by the husband of the plaintiff in her name and he had instructed the same to be averred in the earlier plaint and in the written statement filed in this suit. He would also admit in his evidence that the property purchased by him was shown to have situated on the eastern side of the suit property. Furthermore, he had categorically admitted that he knew that the suit property was belonging to the plaintiff. On the basis of the admission given by DW1, can a decree be passed in favour of the plaintiff by the 1st appellate court by reversing the judgment of the trial court in dismissing the suit. Furthermore, he had categorically admitted that he knew that the suit property was belonging to the plaintiff. On the basis of the admission given by DW1, can a decree be passed in favour of the plaintiff by the 1st appellate court by reversing the judgment of the trial court in dismissing the suit. The judgment of the Hon'ble Apex Court reported in AIR 1960 (2) SC 100 (Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others) would lay down the principle which would be as follows:- "11. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous." 16. Yet another judgment of the Hon'ble apex Court was cited by the learned counsel for the appellant reported in AIR 1966 SC 605 (Ambika Prasad Thakur and others v. Ram Ekbal Rai (dead) by his LRs and others) for the principle that the admission given by the witness would be only against him. The relevant passage would be run as follows:- "13. ... The admission was made under somewhat suspicious circumstances at the end of the trial of the case when the arguments had begun. Though this petition was filed, the written statement of the Maharaja was never formally amended. In the circumstances, this admission has weak evidentiary value. In this suit the plaintiffs do not claim tenancy right either by express grant or by adverse possession. Title cannot pass by mere admission. The plaintiffs now claim title under Cl.(1) of S.4 of Regulation XI of 1825. The evidence on the record does not establish this claim." 17. The aforesaid principles laid down by the Hon'ble Apex Court would no doubt lay down that any admission given by the witness can be shown to be wrong or uncanny. Applying this principle, whether the defendant can get over the admission given by him in Ex.A1 plaint. No doubt, the defendant filed a suit in Ex.A1 against one Arunachalam claiming that he is the owner of half of the suit property, by virtue of his purchase from the plaintiff, through a sale agreement. Applying this principle, whether the defendant can get over the admission given by him in Ex.A1 plaint. No doubt, the defendant filed a suit in Ex.A1 against one Arunachalam claiming that he is the owner of half of the suit property, by virtue of his purchase from the plaintiff, through a sale agreement. When such pleading is made, he had categorically admitted that the suit property belonged to the plaintiff Saroja only. However, the reason put-forth by the defendant in his chief examination was that the husband of the plaintiff namely Narayanasamy told him that his wife was the owner of the suit property and believing the same, he had entered into an agreement. However, he had consciously admitted in the cross examination that the plaintiff was the owner of the suit property and he had given instructions to the plaint in Ex.A1 and he would again confirm that the suit land belonged to the plaintiff by claiming adverse possession in the half of the suit land. In such circumstances, the admission given by the defendant through filing of Ex.A1 suit was confirmed in his evidence, let in this suit. Instead of showing that the earlier admission given in Ex.A1, was erroneous, he had confirmed the title of the plaintiff to the suit property by seeking adverse possession. No doubt, an admission is a weakest proof and it could be taken as proved when there is a support from other evidence. Insofar as this case is concerned, the admission given by the defendant was confirmed by him and thereby the admission given by the defendant had become the strongest proof in favour of the plaintiff. The 1st appellate court had discussed the points elaborately and had found that the admission made by the defendant was sufficient to hold that the plaintiff has proved her title to the suit property. 18. Similarly, the 1st appellate court had also dealt with the case of adverse possession and found that the defendant cannot raise such a plea when he himself had claimed title to the property by virtue of a sale agreement in the earlier suit. Moreover, the said half right said to have been belonged to the plaintiff after the purchase of half right in the suit property could not be held as an exclusive possession by the defendant. Moreover, the said half right said to have been belonged to the plaintiff after the purchase of half right in the suit property could not be held as an exclusive possession by the defendant. Even if the half right was considered to have been purchased by the defendant from the plaintiff, he would be at best deemed as a co-owner or common owner to the suit property and therefore, there is no question of any adverse possession. Moreover, in the judgment of the Hon'ble Apex Court reported in 1991 (1) MLJ 32 (SC) (Achal Reddy v. Ramkrishna Reddiar and others), it has been categorically laid down that the possession of a transferee on the foot of an agreement of sale cannot claim adverse possession on behalf of the owner himself. Therefore, the plea of adverse possession cannot also be based upon the agreement of sale for the half share in the property said to have been purchased through the said agreement of sale. 19. Considering all these aspects, the 1st appellate court had come to a clear conclusion that the plaintiff has proved his case. Similarly, the 1st appellate court had also dealt with the distinction in between Ex.A3 xerox copy of the original sale deed and certified copy of Ex.B1. No doubt, according to Section 79, there would be a presumption that the contents of the said document being a certified copy obtained from lawful authority are true. The original document was not produced however, the xerox copy has been produced and it was admitted in evidence. The trial court had presumed that certain things had happened in fabricating the boundary as suitable to the plaintiff and therefore, held the document was not a true, genuine and reliable document. The argument put-forth by the learned counsel for the respondent, that the certified copy could have been obtained by the defendant, after manipulating the original copy of registration available in the Sub-Registrar's Office and thereafter, copy could have been obtained by the defendant by producing the same before Court, is not acceptable under Section 79 of the Evidence Act. However, the presumption drawn, under provisions of Section 79 of the Evidence Act is a rebuttable presumption. However, the presumption drawn, under provisions of Section 79 of the Evidence Act is a rebuttable presumption. The xerox copy of the original produced is different from the certified copy, it is necessary to prove through production of original copy retained by the Registrar's Office by sending for the same but it was not done by the defendant. Therefore, the 1st appellate court has stated that the difference found in Ex.A3 and Ex.B6 regarding the boundary description would not in any way take away the title of the plaintiff. The 1st appellate court has clearly laid its findings on the basis of the evidence. The trial court had wrongly arrived at a conclusion not supported by any evidence and therefore, the 1st appellate court had rightly come to the conclusion of reversing the judgment of the trial court. Therefore, I am not find any reason to interfere with the judgment and decree passed by the 1st appellate court in reversing the judgment of the trial court. 20. For the foregoing discussions, I am of the considered view that the judgment and decree passed by the 1st appellate court was sound and reasonable in reversing the judgment of the trial court and therefore, the judgment and decree passed by the 1st appellate court are confirmed and the second appeal is liable to be dismissed with costs. 21. In fine the second appeal is dismissed, confirming the judgment and decree passed by the 1st appellate court made in A.S.No.46/2000, dated 19.01.2001, in reversing the judgment of trial court in O.S.No.52 of 1993 dated 12.01.2000, in dismissing the suit.