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2018 DIGILAW 2656 (MAD)

Kasilingam v. Periyanayagam

2018-08-28

T.RAVINDRAN

body2018
JUDGMENT : Challenge in this Second Appeal is made to the judgment and decree dated 31.12.2004 passed in A.S.No.2 of 2004 on the file of the Principal Sub Court, Villupuram modifying the judgment and decree dated 29.09.2003 passed in O.S.No.324 of 2001 on the file of the I Additional District Munsif Court, Ulunthurpet. 2. The Second Appeal has been admitted on the following substantial questions of law: 1. Whether the admissions made by plaintiffs and his other witnesses P.W.2 and P.W.3 in witness box in respect of execution and registration of Ex.A1 Sale Deed on the same day 16.03.2001 itself contradicting his pleading is sufficient proof of the fact that the execution and registration of Ex.A1 is only on 16.03.2001?t 2. Whether the first Appellate court's decree and judgment is right in holding that Ex.A1 Sale Deed was executed prior to the date of registration without considering the admission made by plaintiff and his witnesses P.W.2 and P.W.3 in witness box? 3. Whether the plaintiff is duty bound to prove the recitals made in the document Ex.A1 Sale Deed when the defendant strongly objected the same? 4. Whether the first Appellate court's Decree and Judgment is correct in shifting the burden of proof of a fact to the defendant even after the plaintiff and his witnesses admitted the said fact in the witness box? 5. Whether the first Appellate Court's Decree and judgment is correct in holding that Ex.B1 Sale Deed was executed and registered on 09.03.2001 but Ex.A1 sale deed was executed on 08.03.2001 and registered on 16.03.2001 without considering the fraudulent nature of document and the circumstantial evidence? 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is not necessary to dwell into the facts of the case in detail. 4. 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is not necessary to dwell into the facts of the case in detail. 4. The suit has come to be laid by the plaintiff contending that the suit properties originally belonged to one Anjalai Ammal and after her demise, her son-in-law Ponnusamy and grand children Krishnamurthy and Marimuthu Ammal inherited the suit properties and enjoyed the same, sold the suit properties in favour of the plaintiff on 08.03.2001 and accordingly, it is stated that the plaintiff has acquired right, title and interest in respect of the suit properties and inasmuch as the defendant without any authority interfered with the plaintiff's possession and enjoyment of the suit properties, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 5. The defendant resisted the plaintiff's suit contending that the suit properties were inherited only by Anjalai Ammal's grand children namely Krishnamurthy and Marimuthu Ammal and it is further stated that Krishnamurthy and Marimuthu Ammal effected the oral partition in respect of the suit properties and other properties belonging to them and accordingly, it is further contended that in the abovesaid oral partition, the northern half share of 39 cents in the first item and the eastern half share of 41 = cents in the second item fell to the share of Marimuthu Ammal and Marimuthammal after enjoying the same had alienated the abovesaid properties in favour of the defendant, by way of a sale deed dated 09.03.2001 and following the same, it is only the defendant, who has been in possession and enjoyment of the abovesaid properties and the plaintiff though vied with the defendant in purchasing the abovesaid properties from Marimuthu Ammal, but failed in the attempt, according to the defendant, he had created the sale deed dated 08.03.2001 in respect of the suit properties and registered the same on 16.03.2001 and therefore, it is contended that the sale deed projected by the plaintiff is not valid and accordingly prayed for the dismissal of the plaintiff's suit. 6. 6. On the basis of the materials placed on record by the respective parties, the trial court after holding that the sale deed executed in favour of the defendant dated 09.03.2001 marked as Ex.B1 is a true, valid document and binding upon the plaintiff accordingly, disposed of the plaintiff's suit by granting the relief of declaration and permanent injunction in favour of the plaintiff in respect of the suit properties excluding the properties purchased by the defendant by way of Ex.B1 sale deed. The first appellate court, on an appreciation of the materials placed on record, after holding that Ex.B1 is not a true and valid document and accordingly, thereby modified the judgment and decree of the trial court and resultantly decreed the suit in favour of the plaintiff in entirety as prayed for. Impugning the same, the present Second Appeal has been laid. 7. The only issue between the parties is as regards which of title deeds of the parties is entitled for acceptance. Now, according to the plaintiff, he claimed to have acquired the suit properties by way of sale deed dated 08.03.2001 marked as Ex.A1. The abovesaid sale deed has come to be registered only on 16.03.2001. However, relying Section 47 of the Registration Act, contending that the date of registration would operate from the date of execution, accordingly, it is pleaded by the plaintiff that he having acquired the suit properties from the legal heirs of Anjalai Ammal, it is he who is having title, possession and enjoyment of the suit properties and accordingly it is his contention that the suit deserves acceptance. 8. Per contra, the defendant claims that the suit properties had been orally divided between Krishnamurthy and Marimuthu Ammal and he had acquired the properties which fell to the share of Marimuthu Ammal as detailed in the written statement by way of a sale deed dated 09.03.2001 executed by Marimuthu Ammal which document had come to be registered on the same date and accordingly contended by the defendant that the plaintiff had created an Ex.A1 sale deed, having failed to compete with him in acquiring the properties from Marimuthu Ammal. 9. 9. The plaintiff's title deed marked as Ex.A1, though stated to have been executed on 8.03.2001, but, when it is found that the said document had come to be registered only on 16.03.2001 and furthermore, when the defendant is impugning the truth and validity of Ex.A1 sale deed, as rightly put forth, it is only the plaintiff, who has to establish his case for seeking the reliefs as prayed for. In this connection, the plaintiff at the foremost should establish that Ex.A1 sale deed had come to be executed by the vendors of the same on 08.03.2001 as put forth by him, inasmuch as the plaintiff seeks the benefit of section 47 of Registration Act for claiming the validity of Ex.A1, right from the date of execution i.e., 08.03.2001. However, it is found that the plaintiff has miserably failed to establish that Ex.A1 sale deed has come to be executed by the vendors on 08.03.2001. 10. In this connection, the plaintiff examined as P.W.1 during the course of cross examination has admitted that prior to Ex.A1 sale deed, there has been no sale agreement between the parties to execute the sale deed and therefore, it is seen that Ex.A1 sale agreement is not proceeded by any sale agreement. Even in the plaint, the plaintiff has not averred anything about the sale agreement having been executed in respect of the suit properties between the parties associated with Ex.A1 sale deed. However, during the course of evidence, it is found that the plaintiff had come forward with the case as if the sale agreement had been executed in respect of the suit properties on 23.04.2000 marked as Ex.A3. However, when Ex.A3 has not been pleaded in the plaint, furthermore, when Ex.A3 has not been executed by all the vendors of Ex.A1 sale deed and Ex.A3 is not found to be in respect of the entire suit properties, as rightly contended, Ex.A3 cannot be safely relied upon for accepting the plaintiff's case. 11. As regards the position, as to whether the plaintiff has established his case of the execution of sale deed on 08.03.2001, the plaintiff examined as P.W.1, during the course of cross examination has admitted that the defendant had purchased the half share of the suit properties from Marimuthu Ammal by way of a sale deed dated 09.03.2001. 11. As regards the position, as to whether the plaintiff has established his case of the execution of sale deed on 08.03.2001, the plaintiff examined as P.W.1, during the course of cross examination has admitted that the defendant had purchased the half share of the suit properties from Marimuthu Ammal by way of a sale deed dated 09.03.2001. Thus it is found that the plaintiff had admitted the execution of the sale deed dated 09.03.2001 marked as Ex.B1 relied upon by the defendant. Further, P.W.1, during the course of cross examination has stated that Ex.A1 sale deed was registered at 5 pm and Ex.A1 was written after 12 noon on the date when the said document was registered and the stamp papers for Ex.A1 was acquired on the date of the registration of the said document, however, they had written the date of execution as 08.03.2001 in the sale deed and also admitted that he had not verified any encumbrance on the date of registration of Ex.A1 sale deed and such being the evidence of P.W.1, it is seen that only on the date of registration i.e., 16.03.2001, Ex.A1 sale deed had come to be executed between the parties thereto, however, putting the date of execution as 08.03.2001. When the above fact has been clearly admitted by the plaintiff himself as above noted, it is found that Ex.A1 sale deed would not have been executed on 08.03.2001 as projected by the plaintiff and on the other hand, it would have been executed only on 16.03.2001 i.e., on the date of registration of the said document. Likewise, P.W.2 also during the course of cross examination would admit that Ex.A1 sale deed was registered between 1 and 2 pm and on the same day, the sale deed had come to be written between 10 am and 11 am. Therefore, it is found that from the evidence of P.W.2, Ex.A1 sale deed was written only on 16.03.2001 and not on 08.03.2001 as projected by the plaintiff. Therefore, it is found that from the evidence of P.W.2, Ex.A1 sale deed was written only on 16.03.2001 and not on 08.03.2001 as projected by the plaintiff. Similarly, P.W.3 who is the attestor of Ex.A1 sale deed, at the time of registration, during the course of cross examination, has testified that the sale deed Ex.A1 has been written on the date when the said document was registered between 3 and 4 pm and at the time of execution of Ex.A1, Rangan and Kesavan attested the document and at the time of registration of document, he and one Shanmugam signed as identifying witnesses. Thus, it is found that even P.W.3 has accepted that Ex.A1 has been executed only on the date of registration. 12. In the light of the above position, when it is found that all the witnesses including the plaintiff had admitted that sale deed Ex.A1 was prepared, executed and registered only on 16.03.2001 and not anterior in time and in particular, the plaintiff has admitted that despite the same, they had written the date of execution as 08.03.2001 in Ex.A1, the first appellate court without considering the above said aspects of the matter, as spoken to by the plaintiff and his witnesses, erred in holding that Ex.A1 sale deed was executed on 08.03.2001 and not on 16.03.2001. Thus, it is found that the determination of the first appellate court as regards the date of execution of the sale deed Ex.A1 is not on the proper appreciation of the materials available on record and on the other hand, without any basis and in such view of the matter, as rightly argued, the determination of the first appellate court upholding the date of execution of Ex.A1 sale deed as 08.03.2001 could only be described as perverse and illogical. The first appellate court seems to have been carried away by the sale agreement projected in the matter marked as Ex.A3. The first appellate court seems to have been carried away by the sale agreement projected in the matter marked as Ex.A3. However when Ex.A3 has not been disclosed by the plaintiff and at the first instance, the plaintiff was not also willing to produce the said agreement as such and only later had chosen to produce the same and when Ex.A3 sale agreement is found to be not in connection with the sale deed Ex.A1 and differs from Ex.A1, particularly, as regards the parties associated with the two documents and the properties described in the two documents as well as the consideration recited in the two documents, it is found that the plaintiff has miserably failed to establish that Ex.A1 sale deed was executed on 08.03.2001 and on the other hand, the materials placed on record would only clearly go to show that the said document had been prepared, executed and registered only on 16.03.2001 and not prior to the same. In such view of the matter, it is found that when on 09.03.2001 itself, Marimuthu Ammal had alienated her share in the suit properties in favour of the defendant by way of Ex.B1 sale deed, it is found that even assuming for the sake arguments that Ex.A1 sale deed would take effect from 16.03.2001, however when prior to the same, Marimuthu Ammal had conveyed her share in the suit properties to the defendant by way of Ex.B1, as rightly determined by the trial court, Ex.A1 can be declared to be a valid instrument only excluding the properties comprised in Ex.B1. In the light of the above discussions, the first appellate court has erred in upholding the validity of Ex.A1 sale deed that the same had been executed on 08.03.2001 itself by failing to consider the evidence of the plaintiff and his witnesses, with reference to the same, in the right perceptive and when the plaintiff owes the duty to establish his case, when the plaintiff has failed to establish his that his title deed had come into existence on 8.03.2001 and on the other hand, when the same is found to have been executed only on 16.03.2001 and even prior to the same, one of the executors of Ex.A1 sale deed had already conveyed her share in the suit properties to the defendant on 09.03.2001 by way of Ex.B1 sale deed, which document had come to be registered on 09.03.2001 itself, it is thus found that Ex.B1 will have precedence to Ex.A1 and in such view of the matter, the first appellate court is found to have erroneously determined that Section 47 of the Registration Act would apply to Ex.A1 sale deed on a wrong premise and in such view of the matter, the substantial questions of law formulated in the Second Appeal are accordingly answered in favour of the defendant and against the plaintiff. 13. In support of the defendant's contentions, the counsel for the defendant placed reliance upon the decisions reported in (i) AIR 1972 SC 2162 [S.K.Mohammad Rafiq (dead) by his legal representatives Vs. Khalilul Rehman and another ] (ii) 2010 (13) SCC 128 [Har Narain (Dead) By Lrs Vs. Mam Chand (Dead) By Lrs and Others] (iii) AIR 1961 SC 1747 (V 48 C 325) [Ram Saran Lall and others Vs. Mst. Domini Kuer and others] The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 14. Mam Chand (Dead) By Lrs and Others] (iii) AIR 1961 SC 1747 (V 48 C 325) [Ram Saran Lall and others Vs. Mst. Domini Kuer and others] The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand. 14. CMP.No.253 of 2004 The petition has been laid by the petitioner/plaintiff seeking to produce the record sheet of Marimuthu Ammal for holding that her date of birth is only on 10.04.1984 and date of the marriage is on 10.04.2002 and therefore the sale deed executed by her and marked as Ex.B1, therefore on the date of the sale deed executed by her and marked as Ex.B1, she was only a minor and not having the capacity to execute the same and thereby Ex.B1 having been rendered invalid and on that footing, sought to project the abovesaid document. However, as rightly put forth by the defendant's counsel, when no such plea has been made by the plaintiff in the plaint as regards the incapacity of Marimuthu Ammal to execute Ex.B1 sale deed in favour of the defendant in respect of the share allotted to her in the oral partition and when it is found that Ex.B1 has been executed by Marimuthu Ammal and the same had been registered as per law and when the projected document cannot be entertained as such without any pleading and further proof and when the basis for the production of additional evidence is sought to be made out for the first time in the course of the Second Appeal without any foundation, in my considered opinion, the projected additional evidence cannot be entertained for accepting the plaintiff's case as such. Further, the reason projected for accepting the additional evidence are found to be not satisfying the requirements of order 41 Rule 27 CPC in any manner. Accordingly, the petition deserves rejection. 15. In conclusion the judgment and decree dated 31.12.2004 passed in A.S.No.2 of 2004 on the file of Principal Subordinate Court, Villupuram are set aside and resultantly the judgment and decree dated 29.09.2003 passed in O.S.No.324 of 2001 on the file of I Additional District Munsif Court, Ulundurpet are restored. Accordingly, the Second Appeal is allowed with costs. C.M.P.No.253 of 2004 is dismissed. Consequently, connected miscellaneous petition, if any is closed.