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2014 DIGILAW 3896 (MAD)

N. v. Sundaram VS Veerapan

2014-10-17

P.DEVADASS

body2014
Judgment : 1. The defendant in O.S.NO.67 of 2007 on the file of District Munsif, Kulithalai, has preferred this Second Appeal since the suit has been decreed by the trial court which was upheld by the First Appellate Court/Sub-Court, Kulithalai, in A.S.No.53 of 2010. 2. The respondents/plaintiffs, who are blood brothers, laid the suit for injunction with respect to 20 cents of property comprised in Survey No.220/14, situate in Nangavaram Village in Kuzhithalai Taluk in Karur District on the plea that the property is of two halves, namely, Northern half and Southern Half, the northern half originally belonged to the defendant, while the southern half belonged to defendant's blood brother Krishnamoorthy, they have sold their respective portions under Ex.A.1 and A2 to one Kaliappa Gounder, who latter sold the entire property under Ex.A.3 to Chellammal, the mother of plaintiffs, after her demise, by inheritance, the plaintiffs have become owners of the property. It is their further plea that the property is in their possession right from the days of purchase of their mother and they are in continuous possession and enjoyment, however, since their possession is being invaded by the defendant/ appellant, they have sought for injunction as against him. 3. The suit has been resisted by the appellant/defendant filing a written statement denying title as well as possession of the plaintiffs. The crux of the case pleaded by the defendant in the written statement is that Ex.A1 and A2 have not been executed as pleaded by the plaintiffs. They were borne out of forgery. 4. After framing the necessary issues, the trial court put the suit on trial, appreciating the evidence adduced, ultimately accepting the case of the plaintiffs decreed the suit. On the very same reasoning the next Appellate Court dismissed the appeal preferred by the appellant and that is how the defendant is before us 5. The learned counsel for the appellant would submit that the respondents have failed to discharge their burden to establish their case as to title as well as possession. The learned counsel for the appellant would read some portions in Exs.A1 and A2 and would submit that they lend credence to the contention that they are all concocted and forged and thus respondents have to establish the genuineness of Ex.A1 and A2. 6. The learned counsel for the appellant would draw our attention to an order passed by this Court in C.R.P.Nos. 6. The learned counsel for the appellant would draw our attention to an order passed by this Court in C.R.P.Nos. 889 and 890 of 2010 dated 08.07.2010 wherein this Court emphasized that since a specific denial has been made by the defendant with regard to the execution of sale deeds, the entire burden lies upon the plaintiffs to prove that they are having valid title to the suit property and the learned counsel for the appellant would add that the plaintiffs have not established their case, but both the courts below have not properly viewed the matter and the evidence adduced. 7. On the other hand, the learned counsel for the respondents would submit that the plaintiffs have laid the suit for injunction and not sought for declaration as to their title to the suit property. Of course, they are bound to establish that they are in legal possession and incidentally, they are bound to reveal in what legal manner they are in possession of the property producing relevant evidence. 8. The learned counsel for the respondents referring to Ex.A.1 and A2 would submit that they are parent deeds for their mother's Ex.A3. He would also contend that all the contentions of the appellants would be only with reference to his Ex.A.1 Sale deed and with reference to Ex.A.2 he cannot plead for his brother Krishnamoorthy. 9. Taking us through some of the pertinent portion of evidence of D.W.1/defendant/appellant the learned counsel for the respondents would submit that all along the appellant has been in Bombay, his father Agandeswara Iyer, in the suit village was taking care of the affairs of defendant's property. The sale deed was executed by the defendant under Ex.A.1 in favour of Kaliappa Gounder on 29.04.1982. Since the defendant was preoccupied in Mumbai, by a power deed, he empowered his father to present his sale deed Ex.A1 before the Sub Registrar for registration and he had also empowered his father to look after his property matter. Till his father was alive the said power deed was not cancelled by the defendant and this has also been admitted by him during his cross examination as D.W.1. In this connection, the appellant took out the application in M.P.(MD)No. 2 of 2014 under Order 41 Rule 27 C.P.C to produce a certified copy of the said general power deed. 10. In this connection, the appellant took out the application in M.P.(MD)No. 2 of 2014 under Order 41 Rule 27 C.P.C to produce a certified copy of the said general power deed. 10. The learned counsel for the respondents also would contend that in one part of the property, constructions were made by the respondents. Patta and other documents are all in their names. As regards his alleged possession, no document has been produced by the defendant. He would also refer to the oral evidence of D.W.1 wherein D.W.1 had stated that all along he was in Mumbai. 11. In reply, the learned counsel for the appellant would reiterate the forgery plea made with reference to Ex.A.1. Further a reading of Exs.A1 and A2 would show that they are not regular sale deeds and they seems to be connected with some money matter. The learned counsel for the appellant would also submit that at this distance of time, no indulgence be given to the respondents to produce the additional document. 12. I have given my anxious consideration to the submission of both sides and perused the judgments and the decrees of the courts below and perused the case records. 13. Now by way of a Reception Petition under Order 41 Rule 27 C.P.C the respondents wants to produce a certified copy of the power of attorney executed by defendant in favour of his father. A question as to very genuineness of Exs.A1 and A2 has been raised by the appellant/ defendant. On the reverse of Ex.A.1 there is an endorsement to the effect that Ex.A1 has been presented by the father of the defendant to the Sub-Registrar for registration. Such a contention has also been placed by the plaintiffs before the courts below. In such circumstances, to enable this Court to consider the contention of the plaintiffs whether Ex.A.1 has been presented by the father by virtue of the power given to him, a certified copy of the said power deed has been produced by the respondents/plaintiffs in this Second Appeal. 14. In such circumstances, to enable this Court to consider the contention of the plaintiffs whether Ex.A.1 has been presented by the father by virtue of the power given to him, a certified copy of the said power deed has been produced by the respondents/plaintiffs in this Second Appeal. 14. Order 41, Rule 27 C.P.C runs as under :- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 15. Order 41, Rule 27 C.P.C is in two parts. First part, namely, Order 41, Rule 27 (1)(aa) refers to consideration by the court whether with due diligence the party could have produced the documents. Second part, namely, Order 41, Rule 27 (1)(b) C.P.C. is very wide in its scope and sweep. It emphasize that if the court feels, wants something is necessary to enable it to take a decision, pronounce judgment in the appeal even at the appellate stage the court can receive the additional evidence, both, oral and documentary. The second part of Order 41, Rule 27(1)(b) C.P.C seeks to provide assistance to the court to render justice to resolve the controversy in appeal. Now the present case falls under the said second part of Order 41, Rule 27 C.P.C. 16. As we have already stated about the importance of the said power deed this additional document would enable this Court to clear certain controversy as to the sale deed pressed into service by the plaintiff. Therefore, we receive this additional document of the plaintiffs and mark it as Ex.A.10. As we have already stated about the importance of the said power deed this additional document would enable this Court to clear certain controversy as to the sale deed pressed into service by the plaintiff. Therefore, we receive this additional document of the plaintiffs and mark it as Ex.A.10. 17. Now we will jump into the consideration of the respective case of the parties. 18. The order passed by this Court in C.R.P.Nos.889 and 890 of 2010 dated 8.7.2010 is no more than reiterating the position of law as regards burden of proof that the person who came to the court with a specific plea must establish it by letting in relevant evidence and if no evidence is let in who will fail upon whom the burden of proof lies. This has been made with reference to the plea that for their mother's Ex.A.3 sale deed Exs.A1 and A2 sale deeds are parent documents. However, the truth and genuineness of Ex.A.1 and A2 has been questioned by the appellant. 19. The scope of the suit is also based on the nature of the suit plea taken and the relief sought for. This is a suit for bare injunction. Injunction has been sought for by the plaintiffs to protect the possession. Merely on the plea taken in the written statement altogether the texture and structure of the suit will not change. But, even if the suit is for bare injunction, such discretionary relief cannot be granted on mere possession. A person must establish to the court that he is in legal possession of the property. Otherwise, it will be 'might is right'. Otherwise, there will be recognition for disorderliness in society. A trespasser, invader, interloper, intruder first put his legs on another man's property and simply declare that he is possession and seek the discretionary relief of injunction. Here we must remember a rudimentary principle that in a suit for bare injunction we need not see predominantly title as in a suit for title but we must see incidentally in what legal manner the plaintiffs are in possession to assure ourselves; if they are in possession, whether it is legal, namely whether they are in legal possession of the property. Therefore, to get relief from the court of law one has to justify that he is in possession of the property in a manner known to law. 20. Therefore, to get relief from the court of law one has to justify that he is in possession of the property in a manner known to law. 20. Originally, the entire suit property belonged to the family of the defendant. The defendant and Krishnamoorthy are blood brothers. Long back partition took place in their family. 20 cents of property have been divided into to equal halves. It is stated that the Northern half had gone to the defendant, while the southern half fell to the share of his brother Krishnamoorthy. 21. On 29.04.1982, under Ex.A.2, Krishnamoorthy sold his 10 cents to one Kaliappa Gounder. On the same day, the defendant is stated to have sold his 10 cents under Ex.A.1 to the very same Kaliappa Gounder. Thus, Kaliappa Grounder became owner of the entire 20 cents. Thereafter, under Ex.A3 dated 06.02.1984 Kaliappa Grounder sold the entire property to Chellammal, the mother of plaintiffs. Exs.A.1 and A2 were not admitted by the defendant and he says that they are forged and they were not executed as claimed by the plaintiffs. 22. A reading of the judgment of the First Appellate Court shows that the defendant has mainly concerned with his own Ex.A.1 and he has given up his battle with respect to Ex.A.2. That apart, as on today, the executant of Ex.A.2, namely, Krishnamoorty does not dispute his execution of Ex.A.2. Further, even in his evidence, D.W.1 would only indirectly attack Ex.A.2. His main plank of attack is with reference to Ex.A.1. There were some over writings. On reading Ex.A.1 entirely it would show that it is a deed of conveyance. On the reverse of Ex.A.1 it is stated that this document has been presented for registration by defendant's father, about which questions also have also been posed to D.W.1/defendant when he was in the witness box. There was no clearcut answer from him. He cannot wriggle out of the adverse situation in which he was placed. Further, Ex.A.10 would also show that Ex.A.1 has been presented by his father with the authorization of his son, namely, the defendant. Further, the said power under Ex.A.10 was prior to the execution of Ex.A.1. Further when his father was alive, defendant did not either challenge it or cancel it. He also admits this in his evidence as D.W.1. 23. The property totally measures 20 cents. There exists certain physical structure(see Ex.C1, C2 Reports). Further, the said power under Ex.A.10 was prior to the execution of Ex.A.1. Further when his father was alive, defendant did not either challenge it or cancel it. He also admits this in his evidence as D.W.1. 23. The property totally measures 20 cents. There exists certain physical structure(see Ex.C1, C2 Reports). Ex.A.5 Patta, Ex.A.6 tax receipts are in the name of plaintiffs. Further, there is admission of the appellant/defendant that he is not in possession of any document in support of his claim that he is possession of the property. Further there is a building in the suit property. Defendant did not say that he has constructed it. There is no paper suggesting that defendant is in possession. 24. The enormous oral and documentary evidence produced would show that the mother of the plaintiffs, namely, Chellammal acquired the property under Ex.A3, its parent documents being Ex.A1 and A2. After, her death, her sons, namely, the plaintiffs have succeeded to her property and they are in possession of the same. Thus, they are in legal possession. 25. Considering the entire matter in this perspective we are bound to concur with the judgment and decree rendered by the courts below. 26. In the circumstances, this Second Appeal is devoid of any merit, it fails and it is dismissed. The judgment and decrees of the courts below are upheld. No order as to costs. Consequently, connected M.P.(MD) No.1 of 2014 is closed.