Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 586 (MAD)

Abdul Rasheed v. Rakkammal

2019-03-04

R.HEMALATHA

body2019
JUDGMENT : R. HEMALATHA, J. 1. The defendant in O.S. No. 479 of 1991 and the plaintiffs in O.S. No. 21 of 1994 and O.S. No. 25 of 1994, on the file of the District Munsif, Ramanathapuram filed the present appeals respectively. 2. All the suits in O.S. No. 479 of 1991, O.S. No. 21 of 1994 and O.S. No. 25 of 1994 were filed by the respective plaintiffs for declaration of his/her/their title to the suit property and for consequential relief of permanent injunction restraining the defendants in the suits from interfering with their peaceful possession and enjoyment over the suit properties. 3. The plaintiff Rakkammal in O.S. No. 479 of 1991 is the first defendant in O.S. No. 21 of 1994 and 6th defendant in O.S. No. 25 of 1994. Since the suit properties and issues involved in all these suits are one and the same, the trial Court tried the suits jointly and the evidence was recorded in common in O.S. No. 479 of 1991. The plaintiff in O.S. No. 479 of 1991 examined herself as PW-1 and marked Ex.A1 to Ex.A9. Two witnesses were examined on the side of the defendants and Ex.B1 to Ex.B52 were marked. An Advocate Commissioner was appointed by the trial Court for inspecting the suit property and he filed his report (Ex.C1) and plan (Ex.C2). 4. The learned District Munsif, Ramanathapuram after framing necessary issues, dismissed the suit in O.S. No. 479 of 1991 and decreed the suits in O.S. No. 21 of 1994 and O.S. No. 25 of 1994. 5. Aggrieved over the decree and judgment, dated 22.11.1995 passed by the learned District Munsif, Ramanathapuram, the plaintiff Rakkammal filed appeals in A.S. No. 101 of 1996, A.S. No. 125 of 1996 and A.S. No. 100 of 1997 before the Principal District Judge, Ramanathapuram. The learned Principal District Judge, Ramanathapuram after analysing the evidence on record allowed all the appeals and reversed the findings recorded by the trial Court. 6. Now, the Second Appeals are filed by the defendant. 7. For the sake of convenience the parties are referred to as per their ranking in the trial Court and at appropriate places their ranking in the second appeal will also be referred, if necessary. 8. 6. Now, the Second Appeals are filed by the defendant. 7. For the sake of convenience the parties are referred to as per their ranking in the trial Court and at appropriate places their ranking in the second appeal will also be referred, if necessary. 8. The case of the plaintiff Rakkammal in O.S. No. 479 of 1991 is that the suit properties originally belonged to her maternal grand-father Irulandi and that she has been enjoying the suit properties by way of succession as evidenced by the mortgage deeds Ex.A1 & Ex.A2 and UDR patta Ex.A4. She has also filed the kist receipts Ex.A7 to Ex.A9 to show her possession over the suit properties. It is further contended by her that the defendants without any iota of right over the suit properties are attempting to interfere with her peaceful possession and enjoyment of the suit properties. She therefore, filed the suit in O.S. No. 479/91 for declaration of her title to the suit properties and for a permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit properties. 9. The suit was resisted by the present appellants on the following grounds: (i) Though the suit properties originally belonged to Irulandi, the said Irulandi sold the suit properties in favour of Seenikathar Jalaludeen under a registered sale deed, dated 11.3.2000, a registered copy of which is marked as Ex.B2. (ii) After the demise of Seenikathar Jalaludeen his three sons were enjoying the suit properties and thereafter, the legal heirs (the defendants) are in enjoyment of the suit properties. The plaintiff Rakkammal does not have any right over the suit properties and therefore, the suit filed by them should be decreed and the suit filed by the plaintiff Rakkammal should be dismissed. 10. Mr. S. Sitharanjandoss, learned counsel appearing for the appellants would contend that the first appellate court dismissed the claim of the defendants (plaintiffs in O.S. No. 21 of 1994 and O.S. No. 25 of 1994) mainly based on the alleged death extract (Ex.A3) of Irulandi which states that Irulandi died on 25.2.1915 when there is no proof that the person referred in Ex.A3 is the maternal grandfather of the plaintiff Rakkammal. He also pointed out that the death of Irulandi is registered on 20.02.1915 as per Ex.A3 when Irulandi died on 25.02.1915. He also pointed out that the death of Irulandi is registered on 20.02.1915 as per Ex.A3 when Irulandi died on 25.02.1915. He would therefore contend that the decision of the first appellate Court that Irulandi could not have executed the sale deed (Ex.B2) dated 11.03.1920 is wrong. His next contention is that the first appellate Court merely extracted section 90 of the Indian Evidence Act and also held that in the absence of the original sale deed Ex.B2 no presumption as to the genuineness of the document could be raised on the basis that it is more than 30 years. His specific contention is that the original of Ex.B2 was lost and therefore Ex.B2 once admitted as secondary evidence should be held to be a sufficient proof for sale of the suit properties in favour of the Seenikathar Jalaludeen and therefore the first appellate Court should not have decreed the suit in favour of the plaintiff in O.S. No. 479 of 1991 and dismissed the suits filed by the present appellants. Reliance was placed on the following decisions in this regard: (i) Ali Hasan vs. Matiullah, AIR 1988 Allahabad 57. (ii) P.C. Purushothama Reddiar vs. S. Perumal, 1972 (1) SCC 9 . (iii) S. Rathnammal vs. Mottadu and Others, 1998 (3) LW 262 . 11. His contention is that when once the case for the introduction of secondary evidence is made out, certified copy from the Registrar's office can be admitted under section 57(5) of the Registration Act without other proof than the Registrar's Certificate of the correctness of the copy and shall be taken as a true copy. It is his contention that mere production of certified copy of the sale deed (Ex.B2) without any further oral evidence to support it would be enough to show what the original document contained. 12. Per contra, Mr. A. Arumugam, learned counsel appearing for the respondents would contend that the respondent had adduced a death extract Ex.A3 which would show that Irulandi who is the alleged vendor of the suit properties through Ex.B2, dated 11.03.1920, died on 25.2.1915 and in such circumstances, it is for the appellants to prove the execution of Ex.B2 and that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence as per section 101 to 103 of the Indian Evidence Act. He would also contend that when the execution of a document is directly is in issue between two parties, the circumstances that the document is a registered one does not of itself sufficient to prove its genuineness and dispense with the necessity of any independent proof. He further relied on the decision in Kousalya Ammal vs. Valliammai Ammal and Another, 1997 (11) CTC 577 and contended that mere marking of a document would not amount to proof of contents thereon. 13. At the outset, it may be observed that when the respondents/plaintiffs has clearly contended that Ex.B2 is a forged document and Irulandi could not have executed Ex.B2, dated 11.03.1920 as he died on 25.02.1915 as evidenced by Ex.A3, it is the bounden duty of the appellants to prove that on 11.3.1920 Irulandi executed the sale deed through the original of Ex.B2. 14. It is also to be pointed out that Ex.B2 is more than 30 years old and as per Section 90 of Indian Evidence Act, a Court can draw statutory presumption regarding the signature and every other part of such document. The first appellate Court after referring to the following decisions: Sital Das vs. Santram and Others, AIR 1954 SC 606 , Harihar Prasad Singh and Another vs. Deonarain Prasad and Others, 1956 SC 305, K.V. Subbaraju vs. S. Subbaraju, AIR 1968 SC 947 , Bhuvaneswari vs. Murahari (died) and Another, ILR 1997 (Madras) 1051 had held that a Court cannot draw a statutory presumption under Section 90 of the Indian Evidence Act in respect of a certified copy of a document which is more than 30 years old. 15. A perusal of Ex.B2 shows that the sale deed was executed for discharging a mortgage loan obtained by the vendor Irulandi from Ibrahim Rowthar and Iburamusa Rowthar through a mortgage deed, dated 15.02.1916. The appellant produced neither the original of Ex.B2 nor the alleged mortgage deed, dated 15.02.1916. 16. The learned counsel appearing for the appellant relied on the proceedings of Revenue Divisional Officer, dated 7.03.1991 in Mu.Mu.271/89 (Ex.B11) and contended that the Revenue Divisional Officer had in clear cut terms held that Rakkammal did not prove that Irulandi died on 25.02.1915 and also held that the coconut trees on the northern side of S. No. 567/1 are 10 years old and on Southern side ground-nuts are planted. He also drew the attention of this Court to the order of Revenue Divisional Officer (Ex.B11) wherein it was observed that Rakkammal (Respondent herein) admitted that she has not cultivated any crops in the suit properties. A further reading of Ex.B11 shows that there is a temple called Irulandi Temple on the western side of S. No. 567/2 and the general public (Hindu) are worshipping the God Irulandi. It is pertinent to point out that the appellants are Muslims. Moreover, as against the orders passed by the Revenue Divisional officer, Ramanathapuram the respondent Rakkammal had filed a revision before the District Revenue Officer and the District Revenue Officer in his orders in Na.Ka.B5/22627/91, dated 10.02.1992 (Ex.B12) dismissed the revision mainly based on the pendency of the suit in O.S. No. 479 of 1991 before the District Munsif, Ramanathapuram. In fact, the defendants in O.S. No. 479 of 1991 filed a petition before the Revenue Divisional Officer as against the orders of Tahsildar granting patta in favour of Rakkammal and only such a petition orders were passed. 17. All the observations of the first appellate Court are based on the sound principles of law and since the respondent/plaintiff Rakkammal had proved her title over the suit properties, possession follows title and in fact patta was also issued to her by Tahsildar, Ramanathapuram. 18. In view of all these reasons stated by me, second appeals fail and are therefore dismissed. No costs.