Rajagopalan v. Pattappan @ Pattudurai2.Nallusamy @ Nallusevai

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 24.03.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANISecond Appeal Nos.477 & 496 of 1995andC.M.P.Nos.8415 & 8416 of 2006Rajagopalan ... Appellant in both S.A.Nos.477 & 496 of 1995/ [Plaintiff in both the OS].Vs.1.Pattappan @ Pattudurai2.Nallusamy @ Nallusevai... Respondents in both S.A.Nos.477 & 496 of 1995 [Defendants in both the OS].PRAYER IN S.A.No.496 of 1995: Second Appeal against the Judgment anddecree of the learned Principal District Judge, Salem dated 13.07.1994made in A.S.No.271 of 1993, confirming the judgement and decree dated20.09.1993 made in O.S.No.201 of 1990 on the file of the PrincipalDistrict Munsif, Salem.PRAYER IN S.A.No.477 of 1995: Second Appeal against the Judgment anddecree dated 13.07.1994 made in A.S.No.3 of 1994 on the file of thePrincipal District Judge, Salem confirming the judgement and decree dated20.09.1993 made in O.S.No.195 of 1990 on the file of the PrincipalDistrict Munsif, Salem. For Appellant: Mr.T.Murugamanickam For Respondents : Mr.D.SivakumaranJ U D G M E N TThe unsuccessful plaintiff in both the courts below in O.S.No.195 of1990 has filed Second Appeal in S.A.No.477 of 1995. Likewise the sameparty who was the defendants in O.S.No.201 of 1990 having suffered adecree of declaration and injunction has filed Second Appeal No.496 of1995. The suit filed by the appellant in O.S.No.195 of 1990 is one forinjunction, while O.S.No.195 of 1990 is relating to the suit for permanentinjunction to 1.01 acres of land comprised in Survey No.46/1A and 6 cents https://hcservices.ecourts.gov.in/hcservices/ of land comprised in Survey No.46/1B in Valapadi Village, the suitproperty in O.S.No.201 of 1990 filed by the respondent for declaration oftitle is in respect of 2½ cents of land comprised in Survey No.46/1B inValapadi Village. 2. The case of the plaintiff in O.S.No.195 of 1990 was that he haspurchased the suit property as stated above from one Marimuthu, S/oVaiyapuri under a sale deed dated 22.02.l988 marked as Ex.B.1. Accordingto the plaintiff, the defendants having failed in their efforts to fightwith the plaintiff have used the passage situated in Survey No.46/1B as acartrack and they have also attempted to interfere with the agriculturaloperations by the plaintiff in the suit property on 22.12.1989. However,the case of the defendants in the said suit, who are the respondentsherein are that while it is true that the plaintiff has purchased underthe sale deed dated 22.02.1988 from one Marimuthu, the said sale is notvalid. The defense was on the basis that the said Marimuthu himself hasno right in the property comprised in Survey No.46/1B. It is their casethat they have been using the carttrack situated in Survey No.46/1Bexclusively and they have also obtained patta and are in exclusiveenjoyment. It is also the case of the defendants in the said suit who arethe plaintiff in O.S.No.201 of 1990 filed by them for declaration inrespect of 2½ cents situated in Survey No.46/1B Valapadi Village as statedabove that the first plaintiff in the said O.S.No.201 of 1990 is the sonof the second plaintiff. The second plaintiff under a sale deed executedby one Ayyammal and Arumugam dated 02.02.1955 marked as Ex.A.2 haspurchased the said suit property and it is their case that the defendantin the said suit who is the plaintiff in O.S.No.195 of 1990 afterpurchasing the properties on the Northern side of the plaintiff’sproperty under the sale deed dated 22.02.1988 from one Marimuthu, S/oVaiyapuri under Ex.B.1 has attempted to interfere with the use of theexclusive carttrack situated in Survey No.46/1B for the purpose ofreaching their property situated in Survey No.46/2A which has resulted infiling of the said suit for declaration. Therefore, it is clear that theactual dispute is relating to the title and possession in respect ofSurvey No.46/1B at Valapadi Village. 3. Both the courts below have found that while Ayyammal and Arumugamhave sold the suit property in O.S.No.201 of 1990 to the plaintiffs, whoare the respondents in the appeal under a sale deed dated 02.02.1955marked as Ex.A.2, the same Arumugam has sold the same property along withhis minor son under a sale deed dated 22.05.1957 marked as Ex.A.7 to oneVaiyapuri, who is the father of the vendor of the plaintiff in O.S.No.195of 1990, who is the appellant in these appeals and therefore, theplaintiff in O.S.No.195 of 1990 relied upon Ex.B.1 document dated22.02.1988 from Marimuth, S/o Vaiyapuri cannot sustain his claim and itwas on that basis the suit was filed by the appellant in O.S.No.195 of1990. It is as against the concurrent findings by both the courts belowthe present second appeals are filed. While admitting the Second appeals https://hcservices.ecourts.gov.in/hcservices/ this Court has framed the following substantial questions of law: Question of law in S.A.No.477 of 1995"a) When the 1st respondent has attested the mortgage deed inwhich the suit property formed the subject matter, will he notbe estopped from later claiming title to the suit property?b) Whether the judgements of the courts below are vitiated inthat, they have upheld the sale in favour of the appellant underEx.A.2, when it is per se evident, that, the subject matter ofsale does not form part of the suit property? Question of law in S.A.No.496 of 19951) When the 1st respondent has attested the mortgage deed inwhich the suit property formed the subject matter, will he notbe estopped from claiming title to the suit property? 2) Whether the judgements of the courts below are vitiated inthat they have upheld the sale in favour of the appellant underEx.A.2 when it is per se evident, that, the subject matter ofsale does not form part of the suit property? 3) Whether the lower appellate court was correct in rejectingEx.B.11 on the ground it was an unregistered document, when itcould have been looked into for corollary purpose of seeking the1st appellant's attestation?"4. The main point urged on behalf of the appellant in these appealsis that the plaintiffs in O.S.No.201 of 1990 and their claim rested onEx.A.2 dated 02.02.1955 cannot be sustained. While the plaintiffs underEx.A.2 in respect of the suit property in O.S.No.201 of 1990 traces thetitle of Ayyammal based on document and Arumugam based on adversepossession, it was only under Ex.A.3 release deed dated 18.03.1995 ,thestepbrothers of Arumugam, namely, Perumal and Sadayan have released theirright in the Southern half of the Survey No.46/1 and therefore, on thedate, namely, on 02.02.1955 when Ex.A.2 sale deed was executed in favourof the second plaintiff in O.S.No.201 of 1990, the said Arumugam had notitle over the property at all. 5. It is the further case of the appellant herein that after therelease deed was obtained from his stepbrothers, the said Arumugam alongwith his minor son has sold 54 cents which is the Southern half of SurveyNo.46/1 to Vaiyapuri under a sale deed dated 22.05.1957 marked as Ex.A.7.It was thereafter, Vaiyapuri and his son have partitioned among themselveson 21.01.1980 under Ex.B.14 partition deed under which the Southern halfof Survey No.46/1 was allotted to Vaiyapuri’s son Marimuthu and the saidMarimuthu who has sold to the plaintiff in O.S.No.195 of 1990 under thesale deed dated 22.02.1988 marked as Ex.B.1 and therefore, it is the whoclaim under the sale deed of Arumugam dated 02.02.1955 cannot sustaintheir claim of ownership since Arumugam on that date was not having anyright over the property. 6. The further contention raised on behalf of the appellant is thatwhile the Appellate Court has found that on the date of execution of https://hcservices.ecourts.gov.in/hcservices/ Ex.A.2 dated 02.02.1955 Arumugam had no right to sell the property butproceeds on the basis that on the date Ex.A.7 dated 22.05.1957 he hadright.7. On the other hand, it is the contention of the respondents in theappeal that while it is true that on the date of execution of the saledeed under Ex.A.2 dated 02.02.1955 Arumugam was not having any right ortitle over the property, by virtue of the subsequent release deed dated18.03.1955 given within a short period marked as Ex.A.3, the saidArumugam’s right over the property stands confirmed and therefore, thesale deed executed by Arumugam along with Aiyammal under Ex.A.2 dated02.02.1955 is to be treated as valid from the said date of execution. Itis also the case of the respondents that when that is the position, atleast after the execution of release deed on 18.03.1955 marked as Ex.A.3,the said Arumugam regained his right of executing Ex.A.7 by way of saledeed to Vaiyapuri. Therefore, according to the learned counsel for therespondents, the defect if any under Ex.A.2 was cured by the subsequentdocument Ex.A.3. 8. It is also the contention of the learned counsel for therespondents that the claim of the respondents, who is the plaintiff inO.S.No.201 of 1990 is restricted only in respect of 2½ cents which is thesubject matter of sale deed under Ex.A.2. He would also submit thatevidence of P.W.3 who is the vendor of the sale deed dated 09.10.1953marked as Ex.A.1 which is the adjacent property on the Northern side apartfrom son of Ayyammal who is the co-executant of Ex.A.2 also would provethe title and possession of the respondents who are the plaintiff inO.S.No.201 of 1990. 9. A reference to the judgements of the courts below show that theTrial Court as well as the First Appellate Court on appreciation ofevidence of P.W.2 and P.W.3 and also on the construction of Ex.A.1 andEx.A.2 have come to the conclusion that the 2½ cents which is the subjectmatter of Ex.A.2 sale deed has been used as passage exclusively by theplaintiff in O.S.No.201 of 1990 who are the respondents herein. Thecourts below have also found that the claim of the plaintiff in O.S.No.195of 1990 that his right has been admitted by the defendants relying uponEx.B.11 muchalika executed by Marimuthu in favour of the appellant inwhich the first defendant in O.S.No.195 of 1990 stood as a witness, wasnot even the pleading and having found that the 2½ cents have beenpurchased by the second defendant in O.S.No.195 of 1990, who was thesecond plaintiff in O.S.No.201 of 1990 and it is not proved that he hasnot stood as witness in any such document, has come to a clear conclusionin favour of the respondents herein. 10. In fact even assuming that such a muchalika was executed byMarimuthu in favour of the appellant herein in which the first respondenthas singed a witness, it does not in any way affect the right of thesecond respondent, who is the second plaintiff in O.S.No.201 of 1990 https://hcservices.ecourts.gov.in/hcservices/ having obtained a sale deed in his favour on 02.02.1955. In fact theFirst Appellate Court has also given a finding about the additionaldocument marked as Ex.B.15 stating that the said document relates to theNorthern side of 54 cents whereas the disputed property measuring 2½ centsis admittedly forming part of the Southern side of 54 cents of lands. TheFirst Appellate Court has also considered the document relied upon by theappellant, namely, Ex.A.11 muchalika stating that inasmuch as suchdocument requires registration and the same remains unregistered, noevidentiary value can be attached to the same. 11. It is seen that on factual position and on the basis of thedocuments the courts below have come to the correct conclusion. In thesecircumstances there is absolutely no question of estoppel against thesecond respondent in whose name the property was purchased under Ex.A.2even assuming that the first respondent has signed as witness underEx.B.11 muchalika (mortgage deed). That apart as correctly found by thecourts below the said document cannot be given any evidentiary value,since it remains an unregistered document. 12. The one other question of law that the suit property as well asthe property comprised in Ex.A.2 are not one and the same is also notcorrect on the factual situation. In view of the above said fact, thereis absolutely no question of law involved in this case much lesssubstantial question of law and therefore, the judgements and decrees ofthe courts below are confirmed and the Second Appeals stand dismissed. Nocosts. Consequently, the connected C.M.Ps. are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Principal District Judge, Salem.2. The Principal District Munsif, Salem.3. The Record Keeper, VR Section, High Court, Madras.+ 1 CC To Mr. D.Shivakumaran, Advocate SR NO.18783+ 2 CCs to Mr.T.Murugamanikkam, Advocate SR NO 18746Second Appeal Nos.477 & 496 of 1995ng[co]Gp/18.4