Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 3975 (MAD)

Karuppaiah v. Pitchai

2016-11-21

S.S.SUNDAR

body2016
JUDGMENT : S.S. Sundar, J. 1. The Plaintiffs in O.S. No.83 of 2004 and in O.S. No.87 of 2004 on the file of District Munsif Court, Ilayangudi, are the appellants before this Court. 2. The appellants filed a suit in O.S.No.87 of 2004 for declaration of title and consequential permanent injunction restraining the respondents in S.A.No.321 of 2011 from interfering with their peaceful possession and enjoyment of the suit property. The suit properties are described as two items located in Valasaikadu Village, Ilayangudi Taluk. The plaintiffs also filed another suit in O.S.No.83 of 2004 against one Pitchai the respondent in S.A.No.320 of 2011, in respect of another property for similar relief. In both the suits, it was the common case of the plaintiffs/appellants that the suit properties originally belonged to one Sathappakonar and that he executed a settlement deed in favour of their mother, one Sathayee Ammal who is none other than the daughter of the settlor through his fourth wife one Azhagamma. It was the further case of the plaintiffs that the suit property pursuant to the settlement deed dated 29.06.1942, was enjoyed by their mother - Sathayee Ammal and that after the death of Sathayee Ammal, they are in possession and enjoyment of the suit properties. 3. The defendants in the two suits claimed right to the suit properties on the basis of sale deeds obtained from one Muthazhagu, who according to them, is the son of one Karuppiah, who is also one of the sons of the fourth wife of the settlor namely Azhagamma. The defendants in the suit who claimed to have purchased the properties from the brother of the plaintiffs mother, specifically denied the execution of settlement deed by Sathappakonar dated 29.06.1942. The document under Ex.A1 produced by the plaintiffs before the trial Court is only a certified copy of the original. Hence, the trial Court specifically held that Ex.A1 is not admissible in evidence as the original document has not been filed. Without addressing any other issue, the suit was dismissed by the trial Court only on the ground that the plaintiffs have not proved their document of title. Even in the absence of settlement deed, it is to be noted that the plaintiffs being the granddaughters of Azhagammal through her daughter, are also entitled to claim a share in the suit properties as the properties are the self-acquired properties of Sathappakonar. Even in the absence of settlement deed, it is to be noted that the plaintiffs being the granddaughters of Azhagammal through her daughter, are also entitled to claim a share in the suit properties as the properties are the self-acquired properties of Sathappakonar. Without considering any other issue, the suit was dismissed. The appellants preferred the appeals in A.S.No.90 of 2008 and A.S.No.93 of 2008 before the sub-Court, Sivaganga. 4. The appellate Court also in paragraph ' 9' of the judgment rendered a finding that the document Ex.A1, namely, settlement deed dated 29.06.1942 cannot be considered as a valid document, since the secondary evidence produced by the appellants cannot be accepted as a valid document to prove the appellant's title. After holding that the document is inadmissible, the appellate Court also held that the second item of the suit properties which is the subject matter of suit in O.S.No.87 of 2004 has not been referred to in the document in Ex.A1 and that the appellants have not produced any correlation certificate in respect of the suit properties. 5. Aggrieved by the judgment and decree of the lower appellate Court dismissing both the appeals which were filed against the judgment and decree of the Courts below in O.S.Nos.83 and 87 of 2004, these second appeals have been filed by the appellants. At the time of admitting the Second Appeal, this Court framed the following questions of law:- "(a) Whether the judgments and decrees passed by the Courts are perverse? (b) Whether the Courts below are right in rejecting Ex-A1 without properly considering Sections 76 and 90 of Indian Evidence Act? (c) Is not the Courts below committed error when the document is 30 years old presumption has to be taken as such document is genuine?" 6. It is to be noted that the document under Ex.A1 is only a certified copy of the original settlement deed. Since the original settlement deed dated 29.06.1942 is a registered document, the certified copy of the document is permissible under the Registration Act. Section 65(f) of the Indian Evidence Act, reads as follows:- "65 (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". 7. Section 65(f) of the Indian Evidence Act, reads as follows:- "65 (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". 7. Since the certified copy is permitted under the Registration Act, certified copy of the same is admissible as secondary evidence as per Section 65(f) of the Indian Evidence Act. Hence, the conclusion of the lower appellate Court on the admissibility of the document, is unsustainable and the documents cannot be treated as invalid documents. 8. The learned Counsels appearing for the sole respondent in these appeals submitted that the appellant has not produced correlation certificate regarding the suit properties and hence, the lower appellate Court is right in rejecting the claim of the appellant on the ground that the suit properties are not proved to be the properties covered under Ex.A1. It is also submitted by the learned Counsel for the respondents that the second item of the suit property is not seen from the document under Ex.A1 and that the appellate Court is, therefore, right in negativing the claim of the appellants and confirming the judgment of the trial Court. The submissions of the learned Counsel for the respective respondent in these Second Appeals have been considered in the light of the pleadings in this case. 9. First of all, it is to be noted that the respondents have not specifically pleaded regarding the identity of the properties or the title of Sathappakonar. Since they have admitted that the suit properties belonged to Sathappakonar originally and they also claimed right only under the sale deed alleged to have been executed by one Muthazhagu, the grandson of Sathappakonar, the contention of the respondents cannot be accepted. 10. Before the trial Court as well as the lower appellate Court, the identity of the suit property was not an issue as there was no objection. Hence, the same was not an issue framed on the basis of pleadings and hence, the lower appellate Court was not expected to render the finding merely because the same was raised at the time of arguing the appeal. No amount of evidence can be admitted without pleading. The parties are not permitted to raise any issue without there being any specific pleading in the written statement. No amount of evidence can be admitted without pleading. The parties are not permitted to raise any issue without there being any specific pleading in the written statement. Since the findings of the lower appellate Court are not supported by any pleading, I have no hesitation to set aside the same. Though the lower appellate Court is wrong in rejecting the document in Ex.A1, it is seen that the Courts below have not decided whether the document Ex.A1 namely the Settlement Deed dated 29.06.1942 is proved or not. In such circumstances, an opportunity has to be given to the appellants to prove the document under Ex.A1. 11. The learned Counsel for the appellants then submitted that the defendant/respondent in the respective appeals have no right to claim any title over the suit properties, since the document under Ex.A1 referred to the fact that the son of Karuppiah is dead. From this, it was submitted by the appellants that the defendants in the respective suits have no right to object the settlement deed Ex.A1 as they have set up a false plea of title by purchasing the property from a fictitious person. 12. The Courts below have not gone into the genuineness of Ex.A1 as well as the truth and veracity of the sale deeds alleged to have been obtained by the defendants in the respective suits from the said Muthazagu. It is also made clear that the right and title and interest of the defendants can be accepted only when the defendants proved the fact that Karuppiahkonar S/o. Sathappakonar was very much alive and that he left his son by name Muthazhagu. Since all the issues which arise for consideration to dispose of the suit, have not been considered, I have no other option except to remit the matter. 13. Hence, the judgments of the Courts below are set aside and both the Second Appeals are allowed and the matters are remitted back to the lower appellate Court to give an opportunity to both parties to decide the following issues: (a) Whether the settlement deed under Ex.A1 dated 29.06.1942 is proved in accordance with law? (b) Whether the sale deeds under which the defendants in the respective suits, claim title are valid and executed by the son of Karuppiah/grandson of Sathappakonar? (c) Whether the plaintiffs/appellants proved their possession to get a decree for injunction? 14. (b) Whether the sale deeds under which the defendants in the respective suits, claim title are valid and executed by the son of Karuppiah/grandson of Sathappakonar? (c) Whether the plaintiffs/appellants proved their possession to get a decree for injunction? 14. The Courts below may also frame appropriate issues which may arise on the basis of pleadings of respective parties. Both parties are directed to appear before the sub-Court, Sivaganga on 15.12.2016 without fail. The lower appellate Court is also directed to dispose of the appeal within a period of ten months thereafter. No costs. Consequently, connected Miscellaneous petitions are closed.