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2025 DIGILAW 861 (MAD)

K. A. Sridevi (died) v. K. Aiyappan

2025-02-07

K.RAJASEKAR

body2025
JUDGMENT : This second appeal is filed by the plaintiff, challenging the concurrent finding of the Courts below, dismissing the suit for declaration and recovery of possession of the suit property. 2. For the sake of convenience, the parties are referred herein according to their litigative status and rank before the Trial Court. The brief facts leading to filing of this appeal by the appellant/plaintiff are as follows: 2.1 The plaintiff No.1 is the daughter of the first defendant and the suit properties are the bunk shops bearing door nos.23, 24, 25 and 26 situated in Government Poramboke Land in Survey No.2072 of Coonoor Town. The first defendant was in possession of the said bunk shops and the Coonoor Municipality has also assessed the bunks in the name of first defendant vide assessment No.809, recognizing its encroachments. About 13 years ago, the first defendant had borrowed 40 sovereigns of gold ornaments from the plaintiff and was not able to return back the same or repay the value of the same. Hence, he had come forward to hand over the bunk shops bearing door nos.23, 24, 25 and 26 to the plaintiff, as per the agreement dated 11.12.1987. On the same day, the possession of the said bunks were also handed over to the plaintiff and the first defendant also agreed that he will not claim return of the same and requested the fifth defendant/ Coonoor Municipality to change the assessment for the said bunks in favour of the plaintiff. Accordingly, the assessment for the said bunks were changed in the name of the plaintiff vide proceedings dated 17.03.1989, as per assessment number 6577. Thereafter, the plaintiff was in possession and enjoyment of the said bunks and was paying property tax to the Coonoor Municipality. 2.2 The plaintiff had permitted the second defendant, who is the brother of the plaintiff to possess bunks bearing Door Nos. 23 and 24, on the condition that, the second defendant shall vacate the said bunks, whenever demanded by the plaintiff. But, when the plaintiff asked to vacate the bunk shops, the second defendant refused to vacate, therefore, a legal notice dated 13.07.1990 to the defendants 1 to 4, the same was replied by the defendants with untenable reasons. 23 and 24, on the condition that, the second defendant shall vacate the said bunks, whenever demanded by the plaintiff. But, when the plaintiff asked to vacate the bunk shops, the second defendant refused to vacate, therefore, a legal notice dated 13.07.1990 to the defendants 1 to 4, the same was replied by the defendants with untenable reasons. The first defendant, at the instigation of other defendants had sent a letter to the fifth defendant to change the assessment of the said bunks in his name. Upon receiving the letter, the fifth defendant had sent a notice to the plaintiff calling for records and the same was replied by the plaintiff by a legal notice. However, the fifth defendant had allotted a fresh Assessment number in favour of the second defendant in connection with the bunks bearing door nos.23 and 24. Therefore, the plaintiff has come forward with the suit for declaration, possession and mandatory injunction. 2.3 The second defendant filed written statement adopted by the first and fourth defendants, in which it has been stated that taking advantage of the old age of the first defendant, his signature was obtained in the agreement dated 11.12.1987 by the plaintiff. The first defendant was not aware about the contents, facts and purpose of the said agreement. It is further stated that the plaintiff is not having capacity to hold 40 Sovereigns of gold ornaments and has no reason to hand over her jewels to the first defendant. It is further stated that the without the knowledge of the sons and other daughter of the first defendant, the plaintiff had fraudulently prepared agreement and obtained signature from the first defendant. It is also submitted that the first defendant, is the absolute owner of the Bunk shops bearing door Nos.23 to 26 and he has never handed over the possession of the suit property to the plaintiff. 2.4 The Third defendant has filed separate written statement, in which she has stated that she is in occupation of bunk shop bearing Door No.23 and she has spent huge sum of money for maintenance and running the shop in it. It is further stated that the first defendant had never received any gold ornaments from the plaintiff and the plaintiff by coercion and undue influence obtained the signature of the first defendant in the agreement dated 11.12.1987. It is further stated that the first defendant had never received any gold ornaments from the plaintiff and the plaintiff by coercion and undue influence obtained the signature of the first defendant in the agreement dated 11.12.1987. It is further stated that, transferring rights over any immovable property by way of unregistered agreement is not valid and without proper enquiry, the fifth defendant had transferred the assessment in the favour of the plaintiff and the same is cancelled, hence the plaintiff has no manner of right over the bunk shops bearing door Nos.23 to 26. 2.5 The fifth defendant / Coonoor Municipality had filed its written statement stating that, based on the request made by the plaintiff on 08.03.1989, the assessment of the bunks were transferred from the name of the first defendant to her name vide proceedings dated 17.03.1989. It is further stated that after receipt of the representation from the first defendant dated 09.08.1990, the plaintiff was called upon to submit necessary records, subsequently, the plaintiff issued a reply on 25.01.1991 alleging several arrangement between her and the other defendants. The original assessment was in the name of the first defendant and it was transferred in the name of the plaintiff without proper documents, hence, this defendant is entitled to rectify the wrong, i.e., change the name of assessee. 2.6 Based on the pleadings and the evidence, both Courts below have held that the plaintiff has failed to prove the execution of the agreement dated 10.12.1987 – Ex.A.1, thereby, she is not entitled to seek for declaration and possession. Further, both Courts have also held that since the property is in nature of immovable property, the same shall be done by way of registered instruments, thereby the plaintiff cannot claim any right over the same. 2.7 Aggrieved over the above concurrent findings of both Courts below, the plaintiff has come forward with this appeal. 3. This Court after considering the representation of both sides, while admitting the appeal, framed the following substantial question of law: a) Whether the judgment and decree of the Courts below are correct in the light of the fact that the first defendant has not denied his signature under Ex.A.1 by filing a written statement? b) Whether the Courts below are correct in brushing aside the documents filed by the plaintiff which shows the possession of the plaintiff? 4. b) Whether the Courts below are correct in brushing aside the documents filed by the plaintiff which shows the possession of the plaintiff? 4. The learned counsel appearing for the plaintiff/ appellants submits that the first defendant has categorically admitted the execution of the Ex.A.1 - agreement dated 11.12.1987 during his lifetime and he had not been enquired to adduce his evidence to prove his claim that Ex.A.1 executed by the first defendant in favour of the plaintiff by fraudulent means or any mis-representation have been admitted in execution of Ex.A.1. In the absence of any evidence on the side of the defendant, the burden of proof for execution of the Ex.A.1 was wrongly placed on the plaintiff by both Courts. Since the concurrent findings were rendered based on the wrong onus to prove the Ex.A.1, this Court is entitled to question and re- appreciate the evidence relating to execution of Ex.A.1. Similarly, the assessment of tax for shops was in the favour of the first defendant and after execution of Ex.A.1, the assessment was transferred in the favour of the plaintiff, hence the defendants 2 to 4 have no manner of right in rising any objections. He also submitted that the plaintiff is the original owner of the said bunks and the defendants 2 to 4 were in possession, only under permissible occupation and without any manner of right to continue their possession, they shall return the possession to the plaintiff. In this case, since the defendants 2 to 4 have refused to hand over the possession, the plaintiff has come forward with the suit to recovery of possession over the subject property. 5. The learned counsel appearing for the respondents 2 to 4 submits that both Courts below after considering the evidence placed on record have held that the plaintiff was unable to prove the genuineness and validity of Ex.A.1, further the plaintiff has not adduced any oral or documentary evidence to prove that she had given forty sovereigns of gold to the first defendant, which warranted, the first defendant to transfer his rights over the subject matter to the plaintiff. Therefore, he prays to confirm the judgment and decree of the lower Courts and dismiss the appeal. 6. Therefore, he prays to confirm the judgment and decree of the lower Courts and dismiss the appeal. 6. It is a settled law in the cases of concurrent findings rendered by the Trial Court and the lower Appellate Court, the power of the High Court in the second appeal is very limited and re-appreciation of the evidence is not permissible, further if the finding is based on misreading of any evidence or placing onus on the wrong party, it is permissible to interfere in the concurrent finding of both Courts stated above under Section 100 of CPC, after framing substantial question of law. Similarly, if there is a construction of document is required, and the same is not properly constructed, the High Court is empowered to interfere in the above findings. Similarly, when there is a mis-reading or wrong application of law, it is open to interference under Section 100 of CPC. 7. In this case, the plaintiff relied on Ex.A.1, which is the terms of agreement between the plaintiff and Defendant No.1. The recitals in the Ex.A.1 shows that the first defendant has declared that he was having bunk shops bearing Door Nos.23 to 26 in the Government Poramboke Land in Survey No.2072 of Coonoor Town in the Government land. Recognizing his encroachment, the Coonoor Municipality also issued assessment to the first defendant under assessment No.809. He further stated that he has received gold jewels from the plaintiff and he was not able to repay the value of the gold, therefore, he has come forward to hand over all the bunk shops bearing Door Nos.23 to 26 in favour of the plaintiff and there is also recitals that the possession is also handed over to the plaintiff on the same day 11.12.1987. Section 17(1)(b) deals with compulsory registration of any document for transfer of interest, titles or assign rights over any immovable property. In Ex.A.1, these shops were considered as immovable properties and the evidence of witnesses show that door numbers were assigned to the bunk shops by the Coonoor Municipality Corporation. 8. As held by both Courts below, though Ex.A.1 titled as agreement, it is only the transfer of interest in the property by the first defendant in favour of the plaintiff and the same has to be registered compulsorily. 8. As held by both Courts below, though Ex.A.1 titled as agreement, it is only the transfer of interest in the property by the first defendant in favour of the plaintiff and the same has to be registered compulsorily. It is also settled law that the registered document can be received as a collateral evidence for proving the character of the party. It is the admitted fact in this case that, the second plaintiff has been in possession of bunk shops bearing door Nos.23 and 24 and the third defendant has been in possession of bunk shop bearing door No.23, which was also admitted by the P.W.1, who is the daughter of the plaintiff during her oral examination. However, the plaintiff had filed the suit seeking possession from the second defendant in respect of bunk shop in door No.23 also. Therefore, both Courts have held that unless and until the plaintiff is able to sustain the Ex.A.1 - agreement, the plaintiff cannot claim possession either from the second defendant or from any other defendants. 9. The Hon'ble Apex Court in Avinash Kumar Chauhan Vs. Vijay Krishna Mishra [ AIR 2009 SC 1489 ] , has held that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act. 10. In this case, the first defendant has come forward to execute the agreement to hand over the possession of the bunks, for his inability to return back the 40 sovereigns of gold ornaments. It is also stated that there are totally four bunk shops, however, the value of the bunk shops has not been mentioned. Further, it has been held that the plaintiff shall not claim back their 40 sovereigns of gold ornaments from the first defendant. That being the case, this Court is of the view that the document marked as Ex.A.1 is not properly stamped, as per the Section 35 of the Act, it cannot be tendered as evidence or for collateral purpose. 11. That being the case, this Court is of the view that the document marked as Ex.A.1 is not properly stamped, as per the Section 35 of the Act, it cannot be tendered as evidence or for collateral purpose. 11. During the pendency of suit and before recording the evidence, the first defendant was died. It is also admitted that the plaintiff was in possession of Door Nos.25 and 26. During examination, it was suggested to D.W.1/ Defendant No.2 that, in pursuant to the execution of Ex.A.1, the possession of bunks in door nos. 25 and 26 were handed over to the plaintiff and Door Nos. 23 and 24 shall also be handed over the plaintiff. In the Ex.A.1, it is stated that the bunk shops bearing door nos.23 to 26 belongs to the first defendant and the plaintiff was residing in Door No.26. Defendants 2 and 3 claim that they are in possession of shop door nos.23 and 24, they also admitted that shop door nos. 25 and 26 are in possession of the plaintiff, During evidence, it has been admitted by the parties that Door Nos.23 to 24 were in possession of second and third defendant and Door Nos.25 and 26 were with the plaintiff. This probabilize the case of the plaintiff that after recording of the agreement, the possession of the plaintiff over Door Nos.25 and 26 were handed over. However, the plaintiff had failed to prove the execution of Ex.A.1, to show that all the shops were handed over to her, as per terms of Ex.A.1. 12. Based on the Ex.A.1, the plaintiff cannot claim ownership over the bunk shops bearing door Nos.23 to 26 has held by both Courts below. The relief claimed herein by the plaintiff is the declaration that she is entitled for possession of Bunk shops bearing door Nos.23 to 26 covered under Old Assessment No.809 and new Assessment No.6577. However, she is entitled to retain the possession of Door Nos.25 and 26, since her possession has not been denied by the Defendants 2 and 3. Accordingly, the judgment and decree passed by the Trial Court is modified to the effect that the plaintiff is entitled for protecting her possession of bunks bearing Door Nos.25 and 26 and she is not entitled to claim any relief of declaration with regard to bunk shops bearing Door Nos.23 and 24. 13. Accordingly, the judgment and decree passed by the Trial Court is modified to the effect that the plaintiff is entitled for protecting her possession of bunks bearing Door Nos.25 and 26 and she is not entitled to claim any relief of declaration with regard to bunk shops bearing Door Nos.23 and 24. 13. The fifth defendant municipality had filed separate written statement stating that without properly verifying the rights of the plaintiff and they have transferred the assessment in favour of the plaintiff and subsequently on the objections raised by the first defendant, they have changed the assessment in favour of the first defendant, as per the order dated 09.08.1990. Admittedly, the land in which bunk shops are situated is a Government land and as per Section 3 of the Tamil Nadu Land Encroachment Act, 1905 , the Government is entitled to levy penal charges for unauthorized occupation of the land. The municipality is collecting property tax for the shops and the Municipality is vested with power to issue license for running shops as well as impose property tax on the occupants of the land and for the building under Tamil Nadu District Municipalities Act, 1920. 14. Accordingly, the fifth defendant/ Municipality is directed to consider the case of the parties herein, and to assess tax based on their possession including the Door Nos.25 and 26, possessed by the plaintiff. This Court, once again reiterates that, the property in which the shops are situated is Government Poramboke land and admittedly, the private parties herein have encroached the same, they have no manner of right to claim any title or possession against the Government or authorities. 15. Both the Courts have rightly held that, the Ex.A.1 is not a valid document to prove the transfer of any right in favour of the plaintiff and she is not entitled for declaration of title over the suit properties. However, the Courts below failed to consider the material evidence that, the plaintiff is in possession of shop nos.25 and 26 and she is entitled to protect her possession over the above shops. The Civil Courts are entitled to mould the relief based on evidence placed on record and dismissing the suit in its entirety is not proper, which warranted interference of this Court and accordingly, the substantial question of laws framed above are answered. 16. The Civil Courts are entitled to mould the relief based on evidence placed on record and dismissing the suit in its entirety is not proper, which warranted interference of this Court and accordingly, the substantial question of laws framed above are answered. 16. Accordingly, this second appeal is partly allowed, with direction to the Municipality/ Respondent No.5 to consider the plaintiff's possession of Door nos.25 and 26, and assess property tax, by issuing fresh assessment in her favour. This order shall not confer or create any title to the parties herein, who are admittedly in unauthorized occupation of Government land. Consequently, connected civil miscellaneous petition, if any stands closed. No cost.