Research › Search › Judgment

Madras High Court · body

2023 DIGILAW 2097 (MAD)

Nallammal v. Thothan Ambalam

2023-06-16

ABDUL QUDDHOSE

body2023
JUDGMENT : Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree passed by the Fast Track Court, Dindigul Court in A.S.No.38 of 2010 on 29.04.2011, confirm the judgment and decree of Trial Court in O.S.No.149 of 2009 dated 06.07.2010 on the file of the Principal Subordinate Judge, Dindigul. Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree passed by the Fast Track Court, Dindigul Court in A.S.No.39 of 2010 dated 29.04.2011, confirm the judgment and decree of Trial Court in O.S.No.133 of 2006 dated 06.07.2010 on the file of the Principal Subordinate Judge, Dindigul. These Second Appeals have been filed challenging the judgment and decree of the Fast Track Court, Dindigul dated 29.04.2011 passed in A.S.Nos.38 and 39 of 2010. 2. Two suits were filed, namely, O.S.No.133 of 2006 and O.S.No.299 of 2006. O.S.No.133 of 2006 was filed by the respondent before the Principal Sub Court, Dindigul seeking for declaration and permanent injunction and in the alternative for partition against the appellant and her father Perumal Ambalam and her husband Mookan Ambalam in respect of suit A schedule property. O.S.No.299 of 2006 was originally filed by the appellant (Nallammal) against the respondent before the II Additional District Munsif Court, Dindigul seeking for a bare injunction restraining the respondent from interfering with the appellant's peaceful possession and enjoyment of the suit schedule property. Thereafter, the suit O.S.No.299 of 2006, which was originally filed before the II Additional District Munsif Court, Dindigul, was transferred to the file of the Principal Sub Court, Dindigul and re-numbered as O.S.No.149 of 2009. 3. Since the subject matter of the suit schedule properties in O.S.No.133 of 2006 filed by the respondent and O.S.No.149 of 2009 filed by the appellant were one and the same, both the suits were tried together. As seen from the pleadings, the case of the appellant is that the entire suit schedule properties, which are the subject matter of O.S.No.133 of 2006 and O.S.No.149 of 2009 measuring 3 acres and 6 cents, absolutely belongs to her. She claims that she became the absolute owner by virtue of a registered settlement deed dated 19.04.2002 (Ex.B1) executed by her father Perumal Ambalam. She claims that she became the absolute owner by virtue of a registered settlement deed dated 19.04.2002 (Ex.B1) executed by her father Perumal Ambalam. According to the appellant, the respondent attempted to dispossess the appellant unlawfully from the suit schedule properties which necessitated her to file the suit O.S.No. 149 of 2009 seeking for permanent injunction restraining the respondent from interfering with her peaceful possession and enjoyment of the suit schedule properties. 4. However, it is the case of the respondent that he is the son of one Vellaiyan Ambalam. According to him, the said Vellaiyan Ambalam and Perumal Ambalam, the father of the appellant, are brothers. According to the respondent, the suit schedule properties are the ancestral properties of Vellaiyan Ambalam and Perumal Ambalam and they were in their joint possession. According to the respondent, after the death of his father, the respondent was brought up by the said Perumal Ambalam. According to the respondent, 20 years back, out of the total extent of 3 acres and 6 cents, which is the total extent of the suit schedule properties, the said Perumal Ambalam handed over the possession in respect of 1 acre and 53 cents to the respondent. According to the respondent, since the appellant denied that the respondent is the owner of 1 acre and 53 cents out of 3 acres and 6 cents in the suit schedule properties, the respondent was constrained to file a suit for declaration, permanent injunction and in the alternative for partition of suit A schedule property. The respondent also claimed that there was a panchayat muchalika (Ex.A1) entered into between the parties in the year 2000 by which an extent of 1 acre and 53 cents, which is the suit schedule A property, was allotted to the respondent. 5. Based on the pleadings of the respective parties, issues were framed by the Trial Court in both the suits. A joint trial was conducted in both the suits, namely, O.S.No.149 of 2009 and O.S.No.133 of 2006. 5. Based on the pleadings of the respective parties, issues were framed by the Trial Court in both the suits. A joint trial was conducted in both the suits, namely, O.S.No.149 of 2009 and O.S.No.133 of 2006. By a common judgment and decree dated 06.07.2010 in O.S.No.133 of 2006 and O.S.No.149 of 2009, the Principal Sub Court, Dindigul dismissed the suit O.S.No.133 of 2006 filed by the respondent for declaration and permanent injunction or in the alternative for partition in respect of suit A schedule property and decreed the suit O.S.No.149 of 2009 filed by the appellant for permanent injunction restraining the respondent from interfering with her peaceful possession and enjoyment of the suit schedule property by rendering the following findings: a) The panchayat muchalika (Ex.A1) relied upon by the respondent is not admissible in evidence as it is an unregistered document. b) P.W.4, who was examined as a witness on the side of the respondent, had admitted in his cross-examination that the averments contained in his proof affidavit was not instructed by him and that he does not have knowledge about the panchayat muchalika (Ex.A1). c) The respondent has pleaded in his plaint that he is the only son of Vellaiyan Ambalam, whereas, in his cross-examination, he has admitted that he has a brother and sister who have not been impleaded as parties to the proceedings. d) The legal heirs of the deceased brother and sister of the respondent were not impleaded as parties to the suit O.S.No.133 of 2006 by the respondent. e) The respondent has not approached the Court with clean hands. f) The respondent failed to produce any revenue records standing in his name in respect of the suit schedule properties. g) The Advocate Commissioner's reports, namely, Ex.C1 and Ex.C2, have to be rejected for the reason that Ex.A4 sale deed standing in the name of the respondent's wife discloses the four boundaries which reveals that on the northern side, the property is bounded by Perumal Ambalam's land and Perumal Ambalam is the father of the appellant. h) The suit schedule properties were purchased in the year 1985, whereas, the alleged partition took place in the year 1986 which is unbelievable. In case, the claim of the respondent was true, in the four boundaries in Ex.A4 sale deed, the name of the respondent would have been reflected. h) The suit schedule properties were purchased in the year 1985, whereas, the alleged partition took place in the year 1986 which is unbelievable. In case, the claim of the respondent was true, in the four boundaries in Ex.A4 sale deed, the name of the respondent would have been reflected. Based on the above findings, the Trial Court decreed the suit in favour of the appellant for bare injunction in O.S.No.149 of 2009 and dismissed the suit O.S.No.133 of 2006 filed by the respondent for declaration and permanent injunction and in the alternative for partition by a common judgment and decree dated 06.07.2010. 6. Aggrieved by the common judgment and decree dated 06.07.2010 passed in O.S.No.133 of 2006 and O.S.No.149 of 2009 by the Principal Sub Court, Dindigul, the respondent filed two first appeals in A.S.Nos.38 and 39 of 2010 before the Fast Track Court, Dindigul. However, the Lower Appellate Court, namely, the Fast Track Court, Dindigul by its common judgment and decree dated 29.04.2011 in A.S.Nos.38 and 39 of 2010 reversed the findings of the Trial Court by accepting the case of the respondent that a valid panchayat muchalika (Ex.A1) was entered into by which the respondent is entitled for an extent of 1 acre and 53 cents (suit A schedule property) out of 3 acres and 6 cents as claimed by him in the plaint filed in O.S.No.133 of 2006. Based on the Advocate Commissioner's reports (Ex.C1 and Ex.C2), the Lower Appellate Court reversed the findings of the Trial Court by holding that there was a partition effected 20 years back by which the appellant and the respondent were now entitled to an extent of 1 acre and 53 cents in the total extent of 3 acres and 6 cents. 7. Aggrieved by the common judgment and decree dated 29.04.2011 passed by the Fast Track Court, Dindigul in A.S.No.38 of 2010 and A.S.No.39 of 2010 by which the first appeals filed by the respondent were partly allowed by which the declaratory relief sought for by the respondent in O.S.No.133 of 2006 before the Principal Sub Court, Dindigul was granted in his favour and the suit O.S.No.149 of 2009 filed by the appellant for a bare injunction came to be dismissed, these Second Appeals have been filed by the appellant. 8. 8. This Court on 09.12.2019 admitted the Second Appeals by formulating the following substantial questions of law: “(i) Whether the lower Appellate Court is right in granting a decree for declaration of title in O.S.No.133 of 2006 in the absence of other legal heirs of Vellaiyan, who is the father of the plaintiff in O.S.No.133 of 2006? ii) Whether the lower Appellate Court is right in granting a decree for permanent injunction against co-owners?” 9. Heard Mr.S.Sarvagan Prabhu, learned counsel for the appellant and Mr.A.Hariharan, learned counsel for the respondent. 10. The learned counsel for the appellant would submit as follows: a) The Lower Appellate Court has erroneously accepted that a valid panchayat muchalika (Ex.A1) was entered into by which the respondent was allotted 1 acre and 53 cents out of the suit schedule properties. b) The Lower Appellate Court has erroneously relied upon the Advocate Commissioner's reports (Ex.C1 and Ex.C2), though the said Advocate Commissioner's reports reflected only the physical features of the suit schedule properties and did not refer to the possession and ownership status of the properties to the suit. c) A valid settlement deed dated 19.04.2002 (Ex.B1) was executed in favour of the appellant by her father Perumal Ambalam and ever since the date of the execution of the said settlement deed, the appellant is in possession and enjoyment of the suit schedule properties as the absolute owner. d) The revenue records which have been marked as exhibits will clearly establish that the appellant ever since the date of the settlement deed dated 19.04.2002 is in possession and enjoyment of the suit schedule properties and even prior to that, her father Perumal Ambalam was in possession and enjoyment as an absolute owner. e) One of the respondent's witness, namely, P.W.4, the alleged attestor to the panchayat muchalika (Ex.A1), which is relied upon by the respondent, has admitted in his cross-examination that the averments in his proof affidavit was not instructed by him and he does not have any knowledge about the panchayat muchalika (Ex.A1). f) The panchayat muchalika (Ex.A1) is an unregistered document and is not an admissible piece of evidence. g) There are other legal heirs for the deceased Vellaiyan Ambalam, the father of the respondent and without making them as parties to the proceedings, the suit filed by the respondent in O.S.No.133 of 2006 is not maintainable. f) The panchayat muchalika (Ex.A1) is an unregistered document and is not an admissible piece of evidence. g) There are other legal heirs for the deceased Vellaiyan Ambalam, the father of the respondent and without making them as parties to the proceedings, the suit filed by the respondent in O.S.No.133 of 2006 is not maintainable. h) No revenue records standing in the name of the respondent has been produced by the respondent which will clearly establish that the appellant is the absolute owner of the suit schedule properties measuring a total extent of 3 acres and 6 cents. i) Ex.A4 sale deed standing in the name of the respondent's wife pertaining to the neighbouring land discloses in the four boundaries that on the northern side, the property of the respondent's wife is bounded by Perumal Ambalam's land and Perumal Ambalam is none other than the father of the appellant. The respondent's wife purchased the property under Ex.A4 sale deed in the year 1985, whereas, the alleged partition is said to have taken place in the year 1986 which is not possible. 11. The learned counsel for the appellant also drew the attention of this Court to the common judgment and decree passed by the Trial Court in O.S.No.133 of 2006 and O.S.No.149 of 2009 as well as the common judgment and decree passed by the Lower Appellate Court in A.S.Nos.38 and 39 of 2010 and would submit that the Trial Court had rightly decreed the suit O.S.No.149 of 2009 in favour of the appellant and dismissed the suit O.S.No.133 of 2006 filed by the respondent. But the Lower Appellate Court has erroneously reversed the findings of the Trial Court by dismissing the suit O.S.No.149 of 2009 and by decreeing the suit in favour of the respondent in O.S.No.133 of 2006. 12. Per contra, the learned counsel for the respondent would submit as follows: a) The suit A schedule property was owned by the respondent and suit B schedule property was owned by the appellant. The total extent of both the properties is 3 acre and 6 cents. According to the learned counsel for the respondent, the total extent of 3 acre and 6 cents was equally partitioned between the appellant and the respondent long ago and the appellant and the respondent were cultivating their respective lands measuring 1 acre and 53 cents each. The total extent of both the properties is 3 acre and 6 cents. According to the learned counsel for the respondent, the total extent of 3 acre and 6 cents was equally partitioned between the appellant and the respondent long ago and the appellant and the respondent were cultivating their respective lands measuring 1 acre and 53 cents each. b) In the settlement deed dated 19.04.2002 (Ex.B1), the appellant has admitted that the suit schedule A and schedule B properties are ancestral properties. Hence, the panchayat muchalika dated 15.03.2000 (Ex.A1) entered into between the appellant and the respondent under which both of them were entitled for 1 acre and 53 cents each is a valid document. According to him, the Lower Appellate Court has rightly accepted the panchayat muchalika dated 15.03.2000 (Ex.A1) and has rightly considered the Advocate Commissioner's reports by reversing the findings of the Trial Court and by decreeing the suit in favour of the respondent. c) The Advocate Commissioner's reports make it clear that the properties have already been partitioned and the respective parties are in enjoyment of their respective portions as absolute owners. In particular, the learned counsel for the respondent drew the attention of this Court to the following paragraph in the Advocate Commissioner's report: d) According to the learned counsel for the respondent, the appellant and her husband have falsely alleged that there was no partition recorded through a panchayat muchalika (Ex.A1) and he would further submit that the witness to the panchayat muchalika (Ex.A1) has himself admitted in his deposition that the panchayat muchalika (Ex.A1) is a valid document by which the appellant and the respondent have recorded their partition. Discussion: 13. The panchayat muchalika dated 15.03.2000 (Ex.A1), recording the alleged partition between the appellant and the respondent is an unregistered document. This Court will have to first examine as to whether an unregistered document can be treated as a document of title. The panchayat muchalika (Ex.A1) records a partition arrangement between the appellant and the respondent by which each of them are entitled for 1 acre and 53 cents. As seen from the panchayat muchalika (Ex.A1), the partition was allegedly effected by the parties themselves, though in the presence of panchayatdars. The panchayat muchalika (Ex.A1) records a partition arrangement between the appellant and the respondent by which each of them are entitled for 1 acre and 53 cents. As seen from the panchayat muchalika (Ex.A1), the partition was allegedly effected by the parties themselves, though in the presence of panchayatdars. When a family arrangement, as is the case with panchayat muchalika is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be stamped and duly registered as per the Indian Stamp Act and Indian Registration Act. Panchayat muchalika is in the nature of a family arrangement and being an unregistered document, panchayat muchalika which has allegedly created right/title in favour of both the parties, is not admissible in evidence as per Section 17 and 49 of the Tamil Nadu Registration Act. Section 17 of the Tamil Nadu Registration Act deals with documents of which registration is compulsory. The document of the nature as that of panchayat muchalika (Ex.A1) is not exempted from registration under Section 17 of the Tamil Nadu Registration Act. Section 17(2) of the Tamil Nadu Registration Act has enumerated the documents which are exempted from registration and a family arrangement like that of panchayat muchalika (Ex.A1) is not exempted from registration. Section 49 of the Tamil Nadu Registration Act makes it clear that any document which requires registration is not admissible in evidence. 14. It is true that a valid partition arrangement can be effected orally, but where the terms of the arrangement have been reduced to the form of a document as in the case of a panchayat muchalika (Ex.A1), Section 91 of the Indian Evidence Act prohibits the admission of any evidence of the terms except the document itself or secondary evidence of its contents where such evidence is admissible. Therefore, the instrument of partition, being unregistered, cannot be admitted as evidence of the transaction and oral evidence to prove the terms of the agreement is barred. In the case on hand, the Lower Appellate Court, namely, the Fast Track Court, Dindigul in A.S.Nos.38 and 39 of 2010 by its judgment and decree dated 29.04.2011 has passed a judgment and decree for declaration alone in favour of the respondent based on Ex.A1 panchayat muchalika and on Advocate Commissioner's reports, namely, Ex.C1 and Ex.C2. In the case on hand, the Lower Appellate Court, namely, the Fast Track Court, Dindigul in A.S.Nos.38 and 39 of 2010 by its judgment and decree dated 29.04.2011 has passed a judgment and decree for declaration alone in favour of the respondent based on Ex.A1 panchayat muchalika and on Advocate Commissioner's reports, namely, Ex.C1 and Ex.C2. As seen from the pleadings, oral and documentary evidence available on record, it is the case of the respondent that there was a partition between the respondent and the father of the appellant in respect of the suit A schedule properties 20 years back prior to the filing of the suit O.S.No.133 of 2006. But, however, the respondent has failed to produce any revenue records to show that he is in possession and enjoyment of the suit A schedule property in O.S.No.133 of 2006 from the year 1985, whereas, exhibits B2 to B14 (revenue records) filed on the side of the appellant before the Trial Court are in existence from the year 1980. The respondent has also not disputed the fact that the appellant has produced revenue records in support of her case that she is in possession of both suit A and B schedule properties totally measuring 3 acres and 6 cents. The revenue records produced by the appellant, which have been marked as exhibits, will go to prove that the appellant and her father were in possession and enjoyment of the properties from the year 1980 till the date of institution of the suit. 15. The Lower Appellate Court failed to note that Ex.A1 (panchayat muchalika) was marked, but the same was not proved through oral and documentary evidence and the same cannot also be relied upon as it is inadmissible in evidence for lack of proper stamp duty and registration. The respondent examined P.W.4 as a witness before the Trial Court and P.W.4 has deposed that he had signed the panchayat muchalika (Ex.A1) as an attesting witness. But in his cross-examination, he has stated that he had filed the proof affidavit not on his own volition, but as instructed by the respondent, he had signed the proof affidavit and that he is also not aware about the panchayat muchalika (Ex.A1) and the contents therein. But in his cross-examination, he has stated that he had filed the proof affidavit not on his own volition, but as instructed by the respondent, he had signed the proof affidavit and that he is also not aware about the panchayat muchalika (Ex.A1) and the contents therein. It is therefore clear that without any sufficient evidence, the Lower Appellate Court has erroneously reversed the findings of the Trial Court by allowing the first appeals filed by the respondent based on the Advocate Commissioner's reports (Ex.C1 and Ex.C2) and the panchayat muchalika (Ex.A1), which is inadmissible in evidence on account of its non-registration. 16. The Lower Appellate Court granted the declaratory relief in favour of the respondent in O.S.No.133 of 2006 by finding weakness in the appellant's case. In any suit for declaration, the plaintiff will have to prove title by adducing evidence independently. Even if the title of the defendant is not proved, the plaintiff will have to prove his case that he is the absolute owner of the suit schedule property. In the case on hand, the respondent has failed to adduce any oral and documentary evidence to prove that he is the absolute owner of the suit schedule property in O.S.No.133 of 2006 as the panchayat muchalika (Ex.A1) being an unregistered document is inadmissible in evidence. The Advocate Commissioner's reports, namely, exhibits C1 and C2, portrays only the physical features of the property. The Lower Appellate Court erroneously has taken into consideration the reports of the Advocate Commissioner in favour of the respondent in O.S.No.133 of 2006. The Advocate Commissioner was appointed by the Trial Court only to note down the physical features of the suit schedule properties and not to ascertain in whose favour the title vests. The Court alone based on the oral and documentary evidence available on record can decide the person who is having the title over the respective suit schedule properties. Evidence cannot be collected from the Advocate Commissioner's report for the purpose of proving the respondent's title, necessarily, the onus is on the respondent to prove his title over the suit schedule A property as per Section 101 of the Indian Evidence Act being the plaintiff while letting in oral and documentary evidence to prove his title. 17. Evidence cannot be collected from the Advocate Commissioner's report for the purpose of proving the respondent's title, necessarily, the onus is on the respondent to prove his title over the suit schedule A property as per Section 101 of the Indian Evidence Act being the plaintiff while letting in oral and documentary evidence to prove his title. 17. The Trial Court only based on the pleadings, oral and documentary evidence available on record has rightly held in its common judgment and decree dated 06.07.2010 in O.S.No.133 of 2006 and O.S.No.149 of 2009 that the panchayat muchalika (Ex.A1) is not a valid document as it is an unregistered document and the revenue records also stand only in the name of the appellant. As seen from the judgment and decree of the Lower Appellate Court dated 29.04.2011 in A.S.Nos.38 and 39 of 2010, the Lower Appellate Court failed to give any justifiable reason for accepting the panchayat muchalika (Ex.A1) for the purpose of granting the declaratory relief in favour of the respondent. Without proper discussion, the Lower Appellate Court has erroneously held that the panchayat muchalika (Ex.A1) is a valid document admissible in evidence. But on the contrary, the said document being improperly stamped and an unregistered document is inadmissible in evidence in view of Section 17 and Section 49 of the Tamil Nadu Registration Act. Exhibits B4 to B13 are the revenue records and tax receipts, which prove that the appellant is in continuous possession and enjoyment of the suit schedule properties in O.S.No.149 of 2009 from the year 1980 onwards. In such circumstances, the Lower Appellate Court ought to have confirmed the judgment and decree passed by the Trial Court in O.S.No.149 of 2009. As seen from the judgment and decree of the Lower Appellate Court, it has failed to give any valid reason for not taking into consideration the exhibits B2 to B14 marked by the appellant before the Trial Court. No revenue records have been produced by the respondent to prove that he is in possession of the suit schedule A property measuring 1 acre and 53 cents, though he may contend in his pleadings and in his oral evidence that for the past 20 years prior to the filing of the suit, he has been in possession and enjoyment of the suit schedule A property. 18. 18. It is also to be noted that the appellant's father, Mr.Perumal Ambalam, had executed a settlement deed dated 19.04.2002 in respect of the suit schedule properties in favour of the appellant and the said settlement deed has been marked as Ex.B1. The respondent has not challenged the settlement deed dated 19.04.2002 (Ex.B1), but has filed the suit for declaration that he is the absolute owner of the suit schedule A property only in the year 2006, i.e., after a lapse of more than three years from the date of the settlement deed dated 19.04.2002 (Ex.B1). Though in the settlement deed dated 19.04.2002 (Ex.B1), the recitals state that the suit schedule properties are ancestral properties, that statement cannot be exploited by the respondent to support his case when the revenue records filed by the appellant, which have been marked as exhibits B2 to B14, categorically proves that the appellant and her father are in continuous possession of the suit schedule properties right from 1980 onwards. 19. In view of the above reasoning, the substantial questions of law formulated by this Court on 09.12.2019 while admitting these Second Appeals have to be answered in favour of the appellant by holding that the Lower Appellate Court has committed an error in granting the decree for declaration of title in O.S.No.133 of 2006 in favour of the plaintiff therein in the absence of other legal heirs of Vellaiyan, who is the father of the plaintiff in O.S.No.133 of 2006 and the Lower Appellate Court has also committed an error in granting a decree for permanent injunction against the co-owners. 20. For the foregoing reasons, this Court is of the considered view that the Lower Appellate Court has misdirected itself by total non-application of mind to the pleadings, oral and documentary evidence available on record and to the settled position of law that when a family arrangement, as is the case with panchayat muchalika is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be stamped and duly registered as per the Indian Stamp Act and Indian Registration Act. 21. In the result, these Second Appeals will have to be necessarily allowed. 21. In the result, these Second Appeals will have to be necessarily allowed. Accordingly, these Second Appeals are allowed by setting aside the judgment and decrees of the Lower Appellate Court, namely, the Fast Track Court, Dindigul dated 29.04.2011 in A.S.Nos.38 and 39 of 2010. There shall be no order as to costs.