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2012 DIGILAW 994 (MAD)

G. Venkatesan v. P. Rajamanickam

2012-02-23

V.PERIYA KARUPPIAH

body2012
JUDGMENT 1. This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.51 of 2003 dated 23.09.2009 in confirming the judgment and decree passed by the trial Court in O.S.No.200 of 1992 dated 23.01.2003 in decreeing the suit. 2. The appellants herein were the defendants and the respondent was the plaintiff before the trial Court. 3. The case of the plaintiff in the amended plaint in brief before the trial Court would be thus:- Initially, the suit was filed for permanent injunction. After the filing of written statement, the suit was amended and a prayer for declaration has been included. The case of the plaintiff as per the amended plaint is that the suit property absolutely belonged to him. It is his self-acquired property. He purchased a vacant site for a valuable consideration as per the registered Sale Deed dated 29.12.1963. He has constructed a house in the suit property and is residing there. He is paying house tax for the suit property to the Jolarpet Panchayat. He is in possession and enjoyment of the same ever since the date of his purchase. The defendants who have no right or interest over the suit property, are trying to trespass into the suit property, taking advantage of the fact that it is a vacant site. The plaintiff had prevented the attempt of trespass by the defendants on 24.02.1992. Hence, he has filed the present suit for the above said relief. 4. The objections of the defendants in the form of written statement before the trial court would be thus:- They have denied all the allegations. According to them the suit property is not the self-acquired property of the plaintiff. It is ancestral property of the plaintiff and the 2nd defendant. The plaintiff is having two brothers by name Murugesan and the second defendant and also is having six sisters. Since the suit property is the ancestral property, the plaintiff and his sisters and brothers are having right over the same. The plaintiff and his brother Murugesan and the 2nd defendant had partitioned the suit property through a "Koorchit" on 31.03.1978. The plaintiff is a party to the "Koorchit". In the said partition, the plaintiff was given "A" schedule property, Murugesan was given "B" schedule property and the "C" schedule property was allotted to the 2nd defendant. The plaintiff and his brother Murugesan and the 2nd defendant had partitioned the suit property through a "Koorchit" on 31.03.1978. The plaintiff is a party to the "Koorchit". In the said partition, the plaintiff was given "A" schedule property, Murugesan was given "B" schedule property and the "C" schedule property was allotted to the 2nd defendant. Hence, the plaintiff is estopped from raising the plea that the suit property is the self-acquired property. The defendants have denied the purchase made by the plaintiff on 29.12.1963. According to them, the said Sale Deed is bogus and not acted upon. On the date of the execution of the Sale Deed, the plaintiff was only a minor and he had no sufficient funds to purchase the suit property. After the "Koorchit", the respective parties had taken possession of their respective shares. The house in the suit property was constructed 70 years ago. The 1st defendant had purchased the share of Murugesan, i.e., the "B" Schedule property on 01.09.1978 for a valuable consideration. From the date of his purchase, he has been in possession and enjoyment of the same. After purchase, the 1st defendant applied to the Jolarpet Panchayat on 17.10.1986 to grant permission to construct house in the suit property. The plaintiff raised an objection on 22.10.1986 and the Panchayat Executive Officer conducted an enquiry and overruled the objection of the plaintiff. The plan was approved by the Panchayat on 07.06.1988. The suit property was absolutely belonged to the defendants only and they did not commit any trespass. The suit is barred by limitation. The other sisters of the plaintiff are also having right over the suit property and the legal representative of Murugesan have to be impleaded. Hence, the suit is bad for non-joinder of necessary parties. The 1st defendant is the brother-in-law of the plaintiff. The plaintiff has no right, title or interest over the suit property and he prays for the dismissal of the suit with costs. 5. The trial court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the suit filed by the plaintiff was decreed without costs. 6. Aggrieved upon the judgment and decree passed by the trial Court, the defendants preferred the appeal before the First Appellate Court in A.S.No.51 of 2003. 5. The trial court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the suit filed by the plaintiff was decreed without costs. 6. Aggrieved upon the judgment and decree passed by the trial Court, the defendants preferred the appeal before the First Appellate Court in A.S.No.51 of 2003. After hearing the arguments on both sides, the First Appellate Court had come to the conclusion of dismissing the appeal and thereby, the judgment and decree of the trial court were confirmed. 7. The defendants aggrieved by the judgment and decree passed by the Appellate Court have preferred the second appeal before this Court. 8. On admission of the second appeal, this Court had formulated the following substantial questions of law:- 1. Whether the findings of the Courts below are not perverse inasmuch as they are against the documentary proof, namely the "Koorchit" under Ex.B5? 2. Whether the order of the Courts below are not contrary to Ex.B5, the "Koorchit" wherein the plea of partition has been evidenced ? 9. Heard Ms.V.Srimathi learned counsel for the appellants/defendants and Mr.P.Anand, learned counsel appearing on behalf of Mr.P.Muthukrishnan, learned counsel for the respondents/plaintiffs. 10. The learned counsel for the appellants/defendants would submit in her argument that the judgment and decree passed by the First Appellate Court in concurrent with the judgment and decree of the trial Court, are erroneous in law. She would further submit that the property in question was originally belonged to joint family but purchased in the name of the plaintiff and it cannot be a self-acquired property, in the wake of proof of Ex.B5 a koorchit entered between the plaintiff and his brothers. She would further submit in his argument that the plaintiff did not adduce any evidence to show that the property was purchased as a self-acquired property. She would further submit that while the property was purchased in the name of the plaintiff, the mother had signed as an attestor, in order to show that the property was purchased in the name of the plaintiff as eldest male member of the family when the defendants were minors under the care of the mother. She would further submit that while the property was purchased in the name of the plaintiff, the mother had signed as an attestor, in order to show that the property was purchased in the name of the plaintiff as eldest male member of the family when the defendants were minors under the care of the mother. She also submit that the execution of Ex.B5 would go to show that the property was put in the hotch-pot of the joint family so as to give a character of the joint family property and therefore, the plaintiff is estopped from claiming that the property was his self-acquired property. She would further submit in her argument that the plaintiff had not established that he had got enough funds to purchase the property in the year 1963 and therefore, the production of Ex.B5 would go to show that it was a joint family property and it was divided through an oral partition, which was evidenced by Ex.B5. She would further submit that the importance of Ex.B5 was not considered by both the Courts below and the proof of Ex.B5 would establish that the plaintiff cannot claim exclusive title over the suit property as he was also estopped from claiming them as a self-acquired property and he himself has admitted as joint family property and had put it for partition. She would further submit that the concurrent judgment of the First Appellate Court even though concurrent, it is liable to be interfered since there was no proper partition of evidence and the correct conclusion of the case in the wake of Ex.B5. She would also rely upon the judgment of Hon'ble Apex Court reported in AIR 2003 SC 1905 (Bandar Singh and others v. Nihal Singh and others) in support of her argument. She would also draw the attention of the Court reported in the judgment of Division Bench of this Court in 2001 (1) LW 257 in respect of the admissibility of unregistered and unstamped family arrangement. She would also request the Court to interfere with the judgment and decree passed by the First Appellate Court which failed to interfere in the judgment of the trial Court as it was against the evidence and legal proceedings. She would also request the Court to interfere with the judgment and decree passed by the First Appellate Court which failed to interfere in the judgment of the trial Court as it was against the evidence and legal proceedings. Therefore, she would request the Court that the second appeal may be allowed and thus, the judgment and decree passed by the Court below may be set aside and consequently, the suit filed by the plaintiff before the trial Court may be dismissed. 11. The learned counsel for the respondent would submit in his argument that the evidence of PW1 was promptly appreciated by the Courts below and on the basis his evidence, it was considered that the property was purchased by the plaintiff himself as his self-acquired property. He would further submit that the onus shifted on the defendant to prove that the property belonged to joint family was not discharged by the defendant and therefore, the evidence adduced regarding Ex.B5 would not germane for consideration. He would also submit that if it is proved to be a joint family property, then only the division of property through Ex.B5 would come into play. He would also submit that the plaintiff denied the execution of Ex.B5, the 'Koorchit' and the same was not proved by the defendants through cogent evidence adduced. He would further submit in his argument that the mere production of Ex.B5 would not prove that the property is a joint family property. He would also submit that no witness has been examined to prove Ex.B5. It is further submitted by the learned counsel for the respondent that the 'koorchit' produced in Ex.B5 was an unregistered and unstamped document, which is not admissible in law to prove the oral partition. He would also draw the attention of the Court to a judgment of this Court reported in 2002 (4) LW 696 (Rengasami Reddiar (died) & Others v. M.K.Mummachi Reddiar (died) & Others, in support of his argument. Therefore, he would submit that the concurrent judgment reached by both the courts below regarding the finding of fact that the suit property was not a joint family property, need not be interfered and thus, the second appeal may be dismissed. 12. I have given anxious thoughts to the arguments advanced on either side. 13. Therefore, he would submit that the concurrent judgment reached by both the courts below regarding the finding of fact that the suit property was not a joint family property, need not be interfered and thus, the second appeal may be dismissed. 12. I have given anxious thoughts to the arguments advanced on either side. 13. The case of the plaintiff would be that the suit property belonged to him by virtue of purchase made by him on 29.12.1963. The said document showing the purchase made by the plaintiff was produced in Ex.A1. Admittedly in the said property, the plaintiff is stated to have raised construction in some part and the remaining parts are still vacant. The case put-forth by the plaintiff was that the defendants have seriously indulged in interfering with the possession of the plaintiff in respect of the vacant site. Both the courts below have found that the plaintiff is entitled to the suit property by virtue of his purchase evidenced by Ex.A1 and through his possession of the said property through the property tax receipts produced by him in Exs.A22 to A25. The plaintiff has also produced the approval of the house building in Exs.A39 and A40 and the voters ID card was produced as Ex.A43. The other documents produced by him were after the suit. However, the defendants have produced Ex.B1 sale deed executed by one Murugesan in favour of the 1st defendant in respect of a part of the suit property in the year 1978. The case of the defendant would be that the plaintiff was one of the brothers of the 2nd defendant and one Murugesan. The mother of all the three brothers was one Gangammal, who attested the sale deed. No doubt, the sale deed was standing in the name of the plaintiff to show a prima facie case in favour of the plaintiff. However, the said case was denied by the defendants in their written statement by putting forth the oral partition, evidenced by a 'koorchit' entered in to between parties on 31.03.1978 which included the plaintiff also as one of the parties. The said plea of the defendant that the koorchit was executed in between parties would include the plaintiff on 31.3.1978, was not denied by the plaintiff by way of filing any reply statement. The said plea of the defendant that the koorchit was executed in between parties would include the plaintiff on 31.3.1978, was not denied by the plaintiff by way of filing any reply statement. However, he has amended the plaint seeking for a declaratory relief along with the already prayed relief of permanent injunction in the suit. No further pleadings have been introduced by way of amendment in respect of 'koorchit' dated 31.03.1978as his denial. However, the said document has been produced as Ex.B5 to evidence the oral partition. The plaintiff did not object the admissibility of the said document, at the time of its production in the evidence. The said 'koorchit' produced in Ex.B5 would go to show that it contained the signature of the plaintiff as one of the executants. The said division of properties had in between parties including the plaintiff was spoken to in the sale deed produced by the 1st defendant in Ex.B1, bymentioning the sale executed by one Murugesan based upon his right in the suit property accrued through Ex.B5. The partition had in between the son Ponnusamy and Gangammal was mentioned in the said sale deed Ex.B1. No doubt, the said sale deed was of the year 1978 but, the plaintiff had filed the suit in the year 1992 claiming to be in possession of the vacant site lying adjacent to his house. In Ex.B1, I could see that the western boundary is given as plaintiff's house. 14. At this stage, the only point to be seen is whether Ex.B5 would be sufficient to prove that the property was purchased in the name of the plaintiff for the benefit of all the members of the joint family. No doubt, it is true that the plaintiff is shown as one of the executants in Ex.B5, the "koorchit" said to have been executed in between the plaintiff and the brothers of the plaintiff namely Murugesan and the 2nd defendant. The finding of the trial court was that there was no person connected with Ex.B5 was examined to prove the said document. Of course, DW2 is also a party to the said document and he is one of the brothers of the plaintiff who deposed that the family arrangement or the oral partition was held in between parties with the help of panchayatars and those panchayatars had divided the said property. Of course, DW2 is also a party to the said document and he is one of the brothers of the plaintiff who deposed that the family arrangement or the oral partition was held in between parties with the help of panchayatars and those panchayatars had divided the said property. On the decision of the panchayatars the said properties were divided and they have accepted the same and therefore, the 'koorchit' has been executed for the said purpose. The judgment of this Court reported in 2002 (4) LW 696 (Rengasami Reddiar (died) & Others v. M.K.Mummachi Reddiar (died) & Others was drawn to the attention of this Court that an un-stamped and unregistered document showing the division of properties in between parties cannot be an admissible document. The relevant passage would be as follows:- "8. ... There is no averment regarding the existence of joint family properties nor is there anything to show that there was a dispute which was resolved by the Panchayat. But what is evident is, it is this document which is the source of title. ................ ........ But a reading of this document, the properties were divided. So, this document was intended to create the separate rights in the immovable property an therefore, it is not admissible in evidence and Courts cannot also let in any oral evidence with regard to such a document. Ex.A4 is not admissible in evidence, and cannot be relied on. 15. The principle laid down by this Court was that if the right is created under the document in the nomenclature of family arrangement dividing the joint family property, it requires proper stamp and registration. However, an exemption to that principle is that the dispute could be shown to have resolved by panchayat, so as to evidence the divisions of property earlier. The said document was stated to have divided the properties only 'presenti'. As far as this case is concerned, the reading of Ex.B5 would go to show that there was a panchayat and according to the resolution of the panchayat, the division was made in between them and they all agreed to have the said property with them. Therefore, we could see that the partition has taken place on the decision of the panchayat which had already taken place in between parties and this 'koorchit' in Ex.B5 was executed only to evidence the resolution of panchayat. Therefore, we could see that the partition has taken place on the decision of the panchayat which had already taken place in between parties and this 'koorchit' in Ex.B5 was executed only to evidence the resolution of panchayat. In the judgment of Hon'ble Division Bench of this Court reported in 2001 (1) LW 257 (Lakshmipathy, A.C. v. A.M.Chakrapani Reddiar & Others), it has been categorically laid down the same principle, which are as follows:- "41 (v)However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, need not be stamped or registered." 16. As far as this case is concerned, the panchayat has resolved to divide the properties into three schedules to those three persons and accordingly, it was accepted and to evidence the same 'koorchit' Ex.B5 has been written. Therefore, I could see that such a document Ex.B5 which was not disputed by the plaintiff in his pleadings nor at the time of producing evidence cannot now be questioned by the plaintiff as not executed by him. The trial court as well as the First Appellate Court have not considered the evidence properly towards the proof of Ex.B5 since DW2, who was a party to the document, was examined to prove the same, but the courts below have come to the conclusion that no one connected with the document Ex.B5 was examined. Therefore, the proof of Ex.B5 through DW2 would go to show that the plaintiff had also participated in Ex.B5 and it cannot be said that he did not execute Ex.B5. Therefore, the question of law framed to the effect that proof of Ex.B5 was not considered by both the courts below despite it was not objected to by the plaintiff in his pleadings and was proved through the evidence of DW2 would go to show that the judgments of both the courts below are perverse. 17. In the judgment of Hon'ble Apex Court, reported in AIR 2003 SC 1905 (Bondar Singh and others v. Nihal Singh and others), it has been held the High Court is under Section 100 CPC interfered with the judgment and decree passed by the First Appellate Court even though concurrent with the judgment of the trial court. The relevant passage would be as follows:- "4. ......... The relevant passage would be as follows:- "4. ......... We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts under S.100 CPC is concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such finding can be at set aside by the High Court in appeal under S. 100 C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below. In the present case the findings of fact arrived at by the lower appellate Court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed." 18. Apart from the said judgment, in the judgment of this Court reported in 2002(2) MLJ 659 (Ponnaiyan v. Karuppakkal) is applicable to the present case and the relevant passage would run thus:- "25. No doubt, interference with the concurrent findings of the Courts below by the High Court under Sec.100, C.P.C. must be avoided unless warranted by compelling reasons. In a case where the finding is recorded without any legal evidence on record or misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse the High Court can set aside the findings and take a different view." 19. According to the principle laid down by the aforesaid judgments, this Court could see that the judgment of both the courts below are perverse and they are not in accordance to the evidence adduced before the trial court and therefore, I am of the considered opinion that they are liable to be interfered. Further, the substantial questions of law framed have already been decided in favour of the appellant and in favour of setting aside the judgment of both the courts below. Therefore, the second appeal filed by the appellant is allowed. The judgment and decree passed the first appellate Court are set aside and consequently, the suit filed before the trial court is dismissed. No costs throughout.