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2021 DIGILAW 3058 (MAD)

Malar v. Pasupathy (died)

2021-11-09

V.BHAVANI SUBBAROYAN

body2021
JUDGMENT : This second appeal has been directed against the Judgment and decree, dated 12.07.2010 passed in A.S.No.20 of 2010, by the Additional Sub-Court, Kumbakonam, wherein, the Judgment and decree, dated 20.01.2010, passed in O.S.No.412 of 2005, by the First Additional District Munsif Court, Kumbakonam, are reversed. 2. The appellant herein as plaintiff has instituted a suit in O.S.No.412 of 2005, on the file of the trial Court for the relief of permanent injunction, wherein, the first respondent has been shown as the sole defendant. 3. Pending the second appeal, the first respondent died and his legal heirs were brought on record as appellants 2 to 5. 4. In the plaint, it is averred that the appellant / plaintiff is in possession and enjoyment of the suit property and she has purchased the suit property under a sale deed, dated 25.04.2005 for proper and valid consideration. The suit property was originally owned and possessed by A.R.Ramasamy and the same was under the cultivation of the plaintiff's grandfather Govindasamy Padayachi, as a cultivating tenant. They have entered into a lease agreement, dated 23.05.1953. Till the life time of the plaintiff's grandfather, he was in possession and enjoyment of the same as a cultivating tenant. After his death, his son, the plaintiff's father Boominathan continued to enjoy the same as a tenant and was not paying the rent to the original owner. As the plaintiff's father became unwell and was not in a position to cultivate the suit property, he has sub-leased the suit property to one Asokan, S/o.Pakkirisamy, who is the husband of the plaintiff, under a sub-lease deed dated 07.07.1995. The plaintiff and her husband continued to cultivate the suit property as absolute owners till the year 2005 and the plaintiff has purchased the property by way of a valid sale deed from one S.Subramania Chettiar, the power agent of Laila, who is the daughter of A.R.Ramasamy Chettiar. The said Laila inherited the property from A.R.Ramasamy Chettiar by settlement deed, dated 12.01.1970. The plaintiff is in absolute possession and enjoyment of the property and in the meanwhile, the defendant has filed C.O.P.No.215 of 2005 and tried to dispossess the plaintiff from the suit property. Since the defendant has tried to disturb the peaceful possession and enjoyment of the plaintiff, the present suit has been instituted for the relief as sought for in the plaint. 5. Since the defendant has tried to disturb the peaceful possession and enjoyment of the plaintiff, the present suit has been instituted for the relief as sought for in the plaint. 5. In the written statement filed on the side of the defendant, it is averred that the defendant has not disputed the original ownership by A.R.Ramasamy and the cultivating tenancy by the plaintiff's grandfather and subsequently, by the plaintiff's father Boominthan and the relationship of the parties are also not disputed by the defendant. The plaintiff's purchased the suit property under the sale deed, dated 25.04.2005, is also not disputed by the defendant. The only defence of the defendant is that the defendant entered into a sub-lease agreement with the plaintiff's father Boominathan under a sub-lease deed, dated 16.08.1989 and the actual possession is with the defendant and he is cultivating the suit land. In order to evict the defendant by a cross cut method, the plea of sub-lease deed in favour of the plaintiff's husband is invented by the plaintiff herein. The defendant also denied the plaintiff's claim of actual possession of the suit property. Therefore, the defendant contended that his actual possession of the suit property, which is lawful, cannot be disturbed by the plaintiff except under due process of law and there is no merit in the suit and the same deserves to be dismissed. 6. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has allowed the suit. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred an Appeal Suit in A.S.No.20 of 2010, on the file of the first appellate Court. 7. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the plaintiff as appellant. 8. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal and thereby set aside the Judgment and decree passed by the trial Court. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the plaintiff as appellant. 8. At the time of admitting the present second appeal, this Court had framed the following substantial questions of law for consideration: 1) Whether the judgment of the first appellate court is not a judgment in the eye of law, as it does not conform to the requirements of Order 41 Rule 31 of Civil Procedure Code insofar as the points for determination and the decisions thereon do not find incorporated in the judgment? 2. Whether the first appellate court has given a perverse finding that the respondent/defendant and not the appellant/plaintiff who is in possession of the suit property? 3. Whether the findings of the first appellate court that the respondent/defendant is a tenant is perverse? 4. Whether the finding of the first appellate court that the deed of assignment of lease-hold right allegedly executed by the father of the appellant/plaintiff in favour of the respondent/defendant is genuine and legally valid is unsustainable in law?" 9. The learned counsel appearing for the appellant/plaintiff contended that the first Appellate Court has not considered the well reasoned Judgment and Decree of the trial Court, wherein proper points have been framed for consideration and a well-considered decision has been rendered by the trial Court, which is appropriate in the eye of law. The first Appellate Court has shifted the burden of proof on the plaintiff to disprove Ex.B.1 and on the basis of the expert's opinion, the first Appellate Court has mechanically come to a conclusion that Ex.B.1 was proved. Ex.B.1 was not proved in the manner known to law and Ex.B.1 is in admissible in evidence and it is an out right sale of lease hold right and it involves transfer of interest in immovable property and it has to be compulsorily registered under Section 17 of the Registration Act and it is fatal to its admissibility. Ex.B.1 was not proved in the manner known to law and Ex.B.1 is in admissible in evidence and it is an out right sale of lease hold right and it involves transfer of interest in immovable property and it has to be compulsorily registered under Section 17 of the Registration Act and it is fatal to its admissibility. The First Appellate Court ought to have rejected the claim made by the appellant on the ground of non-registration and the same has not been properly stamped and hence, the same cannot be taken as an admitted evidence. There is a contradictory fact by the defendant and when the original lessee namely, Boominathan has paid the rent in the year 1990 also which would show that the original lease holder is Boominathan, the document alleged to have been executed in the year 1989 is a forged one. The trial Court has considered the genuineness of Ex.B.1 and also considered the witnesses and passed an order, which ought not to have been reversed. 10. The learned counsel appearing for the appellant / plaintiff also submitted that the alleged sub lease deed executed by the plaintiff's father in the year 1989 cannot be accepted, as the said document has not been registered as per the Registration Act. Ex.B.1 is not a valid document and it is not proved properly. The said lease deed alleged to have been executed by the father of the plaintiff is a forged document, as the plaintiff's father has not executed any such sub lease or transfer of lease and the said rights cannot be transferred from one person to another. If the said document has been registered, then it could be considered and when the consideration is alleged to have been paid by the defendant, the said document has to be compulsorily registered and the said document ought not to have been taken into account by the first Appellate Court. 11. The learned counsel appearing for the appellant / plaintiff further submitted that according to the defendant, he entered into a sub-lease agreement with the plaintiff's father Boominathan under a unregistered sub-lease. The name of the original owner has not been stated anywhere in the written statement and if there is a transfer of lease which has to be registered. 11. The learned counsel appearing for the appellant / plaintiff further submitted that according to the defendant, he entered into a sub-lease agreement with the plaintiff's father Boominathan under a unregistered sub-lease. The name of the original owner has not been stated anywhere in the written statement and if there is a transfer of lease which has to be registered. That apart, the plaintiff's father itself got the property as a cultivating tenant, he cannot have any right to transfer the lease or release it to the defendant. When it is alleged to have been written as release deed and as huge consideration has been paid, which is beyond the market value of the property, the same would have been registered to safe guard the interest of the defendant. This itself would show that the said document is a forged one. It is further stated that it is highly improbable and there is a statutory bar under Section 17 of the Registration Act and the defendant has no right whatsoever in the property. If he is not a tenant and he is having a right over the property by way of release deed, then Ex.B.1 cannot be considered which is inadmissible in law. 12. The learned counsel appearing for the appellant / plaintiff further submitted that the findings of the trial Court regarding the genuineness of the document was considered and found not an old document as it is a created one and the papers and ink are not faded and looks new and this has been discussed in detail in the trial Court Judgment clearly. The expert opinion has been erroneously taken into account by the Appellate Court and reversed the Judgment of the trial Court. 13. It is further seen that the experts opinion regarding the admitted signature in Ex.A.5 series, wherein, 11 documents are admitted when Ex.A.4 differs with the admitted signature. The plaintiff submitted that the experts have gone beyond the Courts direction which has not been ordered by the Court to do so. The trial Court has accepted the said contention of the appellant and rejected the expert's opinion which has to be looked into. The plaintiff submitted that the experts have gone beyond the Courts direction which has not been ordered by the Court to do so. The trial Court has accepted the said contention of the appellant and rejected the expert's opinion which has to be looked into. The first Appellate Court has not rejected the said claim, but had observed that it cannot be a proper appreciation of evidence rendered by the trial Court and rejecting the same on filmsy grounds is to be interfered stating that the disputed signature in Ex.A.4 is not a contemporaneous record, the finding of the first Appellate Court is rejected. 14. The defendant has to establish the case of sub lease by the plaintiff's father by substantiating clinching evidence and also the defendant failed to examine himself and the power agent, who could speak on the same on hearsay and the Appellate Court has wrongly come to the conclusion that D.W.1 is the son of the defendant, who can let in evidence, as this power agent and further the case is not acceptable and he cannot give evidence on facts relating to the personal knowledge of the father. When the defendant has not proved his case beyond doubt against the findings of the trial Court, the same should not be accepted by the first Appellate Court by reversing the Judgment and Decree of the trial Court. 15. Regarding the appreciation of evidence, the learned counsel for the appellant has relied on the Judgment of the Hon'ble Supreme of India in Santhosh Hazari Vs. Purushottam Tiwari (Dead) by Lrs reported in 2001 (1) CTC 505 and the Judgment of this Court in Munivel Vs. Munusamy Mudaliar and others reported in 1997 (1) CTC 26 . 16. The learned counsel appearing for the respondents / defendants contended that the original owner is A.R.Ramasamy and the plaintiff's father Boominathan has given a release deed by releasing his rights as a cultivating tenant to the defendant for a consideration of Rs.16,400/-, but it is an unregistered document. The respondents / defendants further submit that the sub-lease agreement has been entered into between the defendant and Boominathan in the year 1989 and from 16.08.1989 onwards, the defendant is in actual possession and is cultivating the said land. The respondents / defendants further submit that the sub-lease agreement has been entered into between the defendant and Boominathan in the year 1989 and from 16.08.1989 onwards, the defendant is in actual possession and is cultivating the said land. The trial Court has erroneously decreed the suit, but the first appellate Court has rightly reserved the same and therefore, the Judgment and decree passed by the first appellate Court is not liable to be interfered with and the first Appellate Court has rightly come to the conclusion that the plaintiff is not entitled for the relief of permanent injunction. 17. The learned counsel appearing for the respondents / defendants would submit that the defendant is claiming right over the property through the said document Ex.B.1, through which a sub lease has been given to him, even though it has been stated as release deed, it is a sub lease. He further submits that the plaintiff was never in possession of the property and the defendant is in possession from 16.08.1989 and he is a cultivating tenant and he is still in possession of the same. The kist receipts are filed before the trial Court and also filed a caveat petition on 18.07.2005, when the plaintiff created disturbance on the possession of the defendant. The plaintiff has wrongly created sub lease deed in favour of her husband by giving an anti-date is not valid and binding on the defendant and only the plaintiff has created the sub lease, who never acted as a cultivating tenant, at any point of time. The actual possession is with the defendant and the certificate issued by the Village Administrative Officer would prove the same. He further submits that the lands have been cultivated and the paddies are being harvested by him. Suppressing all the material facts, the plaintiff has come out with the suit and the trial Court has wrongly come to the conclusion and decreed the suit and the first Appellate Court, by considering the expert's opinion, has rightly allowed the first appeal in favour of the defendant and prayed for dismissal of the Second Appeal. 18. Heard the learned counsel for the appellant and the learned counsel for the respondents and perused the materials available on record. 19. 18. Heard the learned counsel for the appellant and the learned counsel for the respondents and perused the materials available on record. 19. It is the case of the appellant / plaintiff that she is in possession and enjoyment of the suit property and she has purchased the suit property under a sale deed, dated 25.04.2005 for proper and valid consideration. It is the defence of the defendant that the defendant had entered into a sub-lease agreement with the plaintiff's father Boominathan under a sub-lease deed, dated 16.08.1989 and the actual possession is with the defendant and he is cultivating the suit land. On going through the document Ex.B.1, dated 16.08.1989, it is seen that the said Boominathan has released his rights to the defendant as a cultivating tenant by receiving a consideration of Rs.16,400/- and two persons have attested the same, as witnesses, is not proved and it is inadmissible. From the year 1989, till the suit is filed in the year 2005, the defendant has not mutated any revenue documents to prove his tenancy. Only after the suit came to be filed, he has approached the Thasildar, Kumbakonam for mutating his name as a cultivating tenant from the original owner which is pending from the year 2005 till the date when the matter is said to have been pending. The kist receipts have been marked as Ex.B.4 to B.6. Ex.A.9 is a petition filed under Form 5 and Ex.A.10 is the counter filed by one Laila. The said Laila is none other than the daughter of A.R.Ramasamy Chettiar, who has settled his property in her favour and she becoming the owner of the property, is in dispute. Even though the Village Administrative Officer had issued a certificate to show that the defendant has cultivated some crops in the land and the same is ripe for harvesting, is not being supported by any oral evidence, who has not been examined by the defendant to prove his case. The failure on the part of the defendant who had examined the VAO, the certificate issued by the VAO is not acceptable on the ground that no revenue documents such as chitta and adangal to prove the possession and enjoyment. 20. The failure on the part of the defendant who had examined the VAO, the certificate issued by the VAO is not acceptable on the ground that no revenue documents such as chitta and adangal to prove the possession and enjoyment. 20. It is also further seen that the defendant's name has been wantonly omitted in the documents and as per the release deed executed by Boominathan, he is in possession is not proved. The handwriting expert's opinion is also rightly appreciated by the trial Court and the first Appellate Court has reversed the same when the expert authorities have gone beyond the directions issued by the Court. Considering the vague averments of the defendant, the first Appellate Court, the defendant without examining the VAO based on revenue records, had come to a conclusion that the defendant is in actual possession of the property and the same is liable to be rejected, as devoid of merits. The defendant has miserably failed to establish his tenancy as a cultivating tenant through Boominathan. Even assuming that tenancy is in the name of Boominathan, as the said Boominathan also died, the sub-lease executed by him comes to an end. When the said original owner has settled the property in favour of his daughter, who in-turn, has executed a sale deed in favour of the plaintiff and now the plaintiff being the owner of the property, she has very well established her right as a owner. Kist receipt has been filed by one Laila on 08.10.1990 and the same has been marked as Ex.B.4-and on perusal of the same, it is seen that the receipt has been paid in the name of Laila by Boominathan. No piece of document has been produced by the defendant to show that he had been in continuous possession as has tenancy right from Laila and the claim of the defendant is also not accepted and rejected. Counter-affidavit has been filed by Laila, which is marked as Ex.A.10, in which, it is stated that the property in R.S.No.134/1A, 80 cents, R.S.No.134, 1-1/3 cents were under the lease of Boominatha Padayachi and after his death, his daughter came forward to purchase the same from the said Laila and the said Laila has also sold the property on 25.04.2005 by a registered document. Hence, the said Laila is not all the owner of the property nor answerable to the claim and the defendant is not a tenant in the property and his claim is unsustainable. That being the case, when Laila herself had stated that she herself is not at the owner of the property, who had inherited the property by way of a settlement deed sold it to the defendant failed to prove the existence of cultivating tenancy of Laila and the defendant cannot canvass that the cultivating tenancy is in existence and the Appellate Court has wrongly come to the conclusion that the defendant is entitled to be in possession and enjoyment of the suit property. 21. From the evidence of Laila also, it is found that the defendant was never in possession and enjoyment of the property as a cultivating tenant as a lease holder. The same was also accepted by the trial Court and the revenue records do not show light on the possession of the said defendant, as all the documents stand only in the name of Boominathan and hence, this Court also comes to the conclusion that the defendant had failed to establish his case and the Judgment of the first Appellate Court has to be reversed. 22. The evidence produced by the plaintiff would show that the plaintiff is in possession of the property by producing the same from the original owner and the defendant has not proved his possession by appropriate evidence is proved and it is a perverse finding of the first Appellate Court and the same is hereby accepted and answered in favour of the appellant / plaintiff. Based on the expert opinion, the first Appellate Court has come to the conclusion that the said document, which is the disputed one does not belong to contemporaneous period, the comparison with the older documents and said that it is also accepted and it is also perverse and it is also answered in favour of the plaintiff and the trial Court observation is accepted and the first Appellate Court observation is negatived. Hence, this Court comes to the conclusion that the findings of the first Appellate Court is perverse and has not substantiated by proper evidence when possession has not been proved by the defendant by any revenue documents and alleging that he has sought for including his name as a cultivating tenant and that itself would prove that the defendant is not a cultivating tenant and the same is also rendered in favour of the plaintiff. 23. Regarding the prayer sought for by the appellant / plaintiff herein to restrain the defendant from in any way interfering with her peaceful possession and enjoyment of the suit property is hereby granted and the Judgment of the first Appellate Court is hereby set aside and the Judgment and Decree passed by the trial Court is upheld. The substantial questions of law are ordered accordingly in favour of the plaintiff and against the defendants. 24. In fine, this second appeal is allowed without costs and the Judgment and decree passed in A.S.No.20 of 2010, by the Additional Sub-Court, Kumbakonam is set aside and the Judgment and decree, dated 20.01.2010, passed in O.S.No.412 of 2005, by the First Additional District Munsif Court, Kumbakonam is restored. Consequently, connected Miscellaneous Petition is closed.