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2013 DIGILAW 4039 (MAD)

Krishnan v. Lakshmi Ammal

2013-11-28

K.KALYANASUNDARAM

body2013
JUDGMENT 1. This second appeal is filed by defendants 1 and 2, inveighing the judgment and decree dated 29.9.2003 passed by the Subordinate Judge, Dharmapuri, in A.S.No.32 of 2001, confirming the judgment and decree dated 17.4.2001 passed by the District Munsif, Harur, in O.S.No.567 if 1990, which is one for declaration and recovery of possession and for mandatory injunction. 2. The parties, for the sake of convenience, are referred to her under according to their litigative status and ranking before the trial Court. 3. The respondent herein/plaintiff filed the suit for declaration of title and recovery of possession and for declaration that the patta issued favour of the second defendant is not binding on her and for mandatory injunction directing defendants 3 and 4 to cancel the patta issued in favour of the second defendant. 4. The brief facts of the case as set out in the plaint are to the effect that the suit property belongs to the father of the plaintiff, namely, Vattan @ Theerthagiri, who died about 10 years ago, and after his demise, the plaintiff had acquired right, as the legal heir of Vattan @ Theerthagiri, and had been in possession and enjoyment of the same. While so, the defendants, disputing the title of plaintiff, have trespassed into the property on 22.4.1989 by force. Hence, the plaintiff filed the suit for declaration of title and recovery of possession. 5. The first defendant filed written statement, contending that originally the father of the plaintiff, namely, Vattan @ Theerthagiri was owning the property, and on 6.10.1968 he sold the property to his father Elasi Gounder for a sale consideration of Rs.500/- and also handed over the possession to him. Since then, he has been in possession and enjoyment of the suit property. It is further contended that for the past 24 years, the first defendant has been in continuous possession of the land and so, even if the plaintiff is having any right, the first defendant had acquired right by adverse possession. 6. Whereupon issues were framed by the trial Court. During trial, the plaintiff examined herself as P.W.1 along with P.W.2 and 3 and marked Ex.A1. The firs defendant examined himself as D.W.1 along with D.W.2 and marked Exs.B1 to B8. 7. 6. Whereupon issues were framed by the trial Court. During trial, the plaintiff examined herself as P.W.1 along with P.W.2 and 3 and marked Ex.A1. The firs defendant examined himself as D.W.1 along with D.W.2 and marked Exs.B1 to B8. 7. Ultimately, the trial Court decreed the suit in part declaring the title and possession of the plaintiff in respect of the suit property; however, dismissed the suit in respect of other reliefs. 8. As against the said judgment and decree of the trial Court, defendants 1 and 2 preferred the appeal in A.S.No.32 of 2001, which was dismissed by the appellate Court, confirming the judgment and decree of the trial Court. 9. Being aggrieved by the judgments and decrees of both the Courts below, this second appeal has been filed by defendants 1 and 2 on various grounds and also suggesting substantial questions of law. 10. The second appeal was admitted by this Court on the following substantial questions of law: “(1) Whether the Court below are justified in holding that the Sale Deed dated 6.10.1968, under Exhibit B1 is not genuine, even though the respondent has not disputed the validity of the same by filing additional statement or otherwise? (2) Whether the Courts below are correct in decreeing the suit, when the respondent has admittedly not produced documentary or any other convincing evidence in support of the claim of her possession of the suit properties ever since from the date of the death of her father? (3) Whether the Court below are justified in putting the burden on the appellants to prove their possession and title to the suit properties? 11. Heard Mr.S. Kanniah, the learned counsel for the appellants and Mr.G.K. Ilanthiraiyan, the learned counsel for the respondent and perused the records. 12. Learned counsel for the appellants/defendants submitted that the plaintiff has filed the suit for declaration and possession and therefore, the burden is on her to prove that she is the owner of the suit property. In the plaint, the plaintiff has averred that her father died about 10 years go, but she did not taken any steps to get the patta transferred in her name. Ex.A1-the patta issued on 22.11.1986 also stands in the name of the plaintiff’s father. The learned counsel further contended that the plaintiff’s father. In the plaint, the plaintiff has averred that her father died about 10 years go, but she did not taken any steps to get the patta transferred in her name. Ex.A1-the patta issued on 22.11.1986 also stands in the name of the plaintiff’s father. The learned counsel further contended that the plaintiff’s father. The learned counsel further contended that the plaintiff had not disputed the execution of sale deed-Ex.B1 dated 6.10.68, which is a registered document and as such, the finding of the Courts below that the defendants did not prove their title under Ex.B1 is not sustainable in law. The learned counsel further contended that the Courts below have wrongly placed onus upon the defendants and decreed the suit. 13. Per contra, the learned counsel for the respondent/plaintiff contended that the defendants have admitted that the father of the plaintiff, namely, Vattam @ Theerthagiri, was the original owner of the suit property and the plaintiff, in her evidence has categorically denied the execution of Ex.B1-the sale deed. Hence, the onus is heavily on the defendants to prove that they derived title to the suit property under Ex.B1-the sale deed dated 6.10.1968. Even the documents filed by the defendants, namely, Ex.B2-the patta issued on 13.7.1974 and the kist receipts Ex.B3 (series) were all stood in the name of the said Vattam @ Theerthagiri, which corroborates the case of the plaintiff that the suit property was originally enjoyed by her father Vattam @ Theerthagiri, and after his demise, the plaintiff has been enjoying the same. 14. The learned counsel for the respondent/plaintiff further submitted that the oral evidence of P.Ws.2 and 3, who are the neighbouring land owners, would establish that the defendants evicted the plaintiff by force, on 22.4.1989, and took possession by illegal means. Though the defendants have contended that as per Ex.B1-sale deed dated 6.10.1968 the father of the first defendant, namely, Elasi Gounder, purchased the suit property and took possession, they did not produce any document to prove their possession from 1968 and the admission of D.W.1 that till the year 1985 the kist was paid in the name of Vattam @ Theerthagiri would prove that the suit property was not handed over to the defendants as per Ex.B1-Sale Deed and they were not in enjoyment of the same. In short, the argument of the counsel for respondent is that the defendants did not prove their title through Ex.B1-the sale deed, nor by possession and enjoyment of the suit property for more than the statutory period. Accordingly, the learned counsel prayed for the dismissal of the second appeal. 15. In the plaint there is no averment about Ex.B1-the sale deed dated 6.10.1968 and the plaintiff claimed right only through her father. In the written statement, the first defendant has categorically admitted that the father of the plaintiff was the original owner of the suit property and the defendants claim title under Ex.B1-the sale deed dated 6.10.1968 said to have been executed by the father of the plaintiff in favour of his father Elasi Gounder. In the evidence, P.W.1 has categorically denied the execution of Ex.B1-the sale deed dated 6.10.1968. Therefore, the burden is on the defendants to prove the genuineness and execution of Ex.B1-the sale deed. 16. It is settled law that it is not mandatory on the part of the plaintiff to file a reply statement to dispute or deny the averments in the written statement. P.W.1 has clearly deposed that immediately after her father’s demise, she came into possession of the suit property and she had been enjoying the same. While so, the defendants trespassed into the property and took possession by force. The evidence of P.Ws.2 and 3 also was to the same effect. The defendants had not shattered the independent evidence of P.W.2 and P.W.3. Ex.A1-the patta issued on 22.1.1986, Ex.B2-the patta issued on 13.7.19747 and the kist receipts issued under Ex.B3 (series) for fasli 1394 to 1399 (1984 to 1989), all stand in the name of the original owner Vattam @ Theerthagiri. On the basis of the oral evidence of P.Ws.1 to 3 and the documentary evidence Ex.A1, Ex.B2 and Ex.B3, the trial Court as well as the appellate Court had come to the conclusion that the plaintiff is entitled for the relief of declaration and possession. 17. When the defendants assert their right under Ex.B1-the sale deed dated 6.10.1968, the burden got shifted on them to prove the same. The defendants, to prove their title to the suit property, have produced Ex.B1-the certified copy of the sale deed, but they did not produce the original of it and they did not also gave any explanation for producing the secondary evidence. The defendants, to prove their title to the suit property, have produced Ex.B1-the certified copy of the sale deed, but they did not produce the original of it and they did not also gave any explanation for producing the secondary evidence. As per Section 64 of the Indian Evidence Act, documents must be proved by primary evidence and exception is section 65. Section 65 of the Act is usefully extracted hereunder: Section 65. Cases in which secondary evidence relating to documents may be given – Secondary evidence may be given of the existence, condition or contents of a document in the following cases:- (a) When the original is shown or appears to be in the possession or poer-of the person against whom the document is sought to be proved, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person not produce it; (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) When the original is of public document within the meaning of section 74; (f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence, (g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the act to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible, In case (b), the written admission is admissible, In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 18. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 18. It is mandatory on the part of the defendants to satisfy the requirements while marking the certified copy of the sale deed, but admittedly the defendants failed to do so. Moreover, the first defendant was not a party to the document and to prove the execution of Ex.B1-the sale deed dated 6.10.1968, he should have produced the original document and also examined the witnesses to the document. Mere production of a copy of the sale deed would not satisfy the legal requirement to prove his title. 19. At this juncture I would like to refer to the judgment of the Hon’ble Apex Court reported in (2007) 5 SUPREME COURT CASES 730-J. YASHOD V. K. SHOBHA RAVI. Paragraph No.9 of the Judgment would run thus: “9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or my be reached by you, you shall given no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 65 deals with the proof of the contents of the documents tendered in evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted......” 20. In the light of the above provision and the judgment of the Honourable Apex Court, Ex.B1-Sale deed dated 6.10.1968 does not have any evidentiary value. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted......” 20. In the light of the above provision and the judgment of the Honourable Apex Court, Ex.B1-Sale deed dated 6.10.1968 does not have any evidentiary value. The trial Court as well as the appellate Court, on proper analysis of oral and documentary evidence, gave a categorical finding that the plaintiff has proved her title and she is entitled for decree of possession, which warrants no interference by this Court. 21. In view of my discussion supra, the substantial questions of law are answered against the appellants/defendants. Accordingly, the second appeal is dismissed. However, there is no order as to costs.