Natarajan v. Sengamala Moopanar

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 04.08.2009CORAM:THE HON'BLE MR. JUSTICE M.DURAISWAMYSecond Appeal No.595 of 2000 Natarajan ..Appellant/DefendantVs Sengamala Moopanar ..Respondent/PlaintiffSECOND APPEAL filed under Section 100 of the Code of CivilProcedure judgment and decree dated 31.03.1999 made in A.S.No.75 of1993 on the file of the Learned Subordinate Judge, Ariyalur againstthe judgment and the decree in O.S.No.273 of 1991 dated 29.1.1993 onthe file of the Learned District Munsif, Ariyalur.For Appellants : Mr.J.R.K.Bhavanantham for Mr.K.SridharFor Respondents: Mr.S.Parthasarathy Senior Counsel for M/s.Sarvabhauman AssociatesJ U D G M E N TThe above Second Appeal arises against the judgment and decreein A.S.No.75 of 1993 on the file of Learned Subordinate Judge,Ariyalur against the Judgment and Decree in O.S.No.273 of 1991 onthe file of the Learned District Munsif, Ariyalur.2. The defendant in the suit is the appellant in theabove second appeal. The respondent herein is the plaintiff in thesuit. 3. The plaintiff filed the suit in O.S.No.273 of 1991 onthe file of the Learned District Munsif, Ariyalur for declaration andinjunction. 4. The brief case of the plaintiff is as follows:- (i) According to the plaintiff, the 4 items of suitproperties belongs to him absolutely. The Patta Nos.403 and 374 https://hcservices.ecourts.gov.in/hcservices/ pertaining to the suit properties stands in the name of theplaintiff. Originally, item 1 and 2 of the suit property belonged toone Palaniyammal W/o Swamynatha Moopanar. On 19.5.1962, the saidPalaniyammal sold item 1 and 2 of the suit properties to oneMuthusamy Moopanar. The said Muthusamy Moopanar, his brother's sonKathirvel Moopanar and his brother Karuppaiah Moopanar sold item 1and 2 measuring an extent of 21 cents in S.F. 191/3 and 25 cents inS.F. 191/5 to the plaintiff on 13.5.1970. The plaintiff is inpossession and enjoyment of the properties from the date of purchase.(ii) Item 3 and 4 of the suit properties originallybelonged to Vadivel Moopanar. On 8.8.1932, the said Vadivel Moopanarmortgaged the properties with one Paramasiva Moopanar for a sum ofRs.22/-. Since, the said Vadivel Moopanar could not discharge themortgaged debt, he orally sold items 3 and 4 of the suit propertiesto the father of the plaintiff namely Kandasamy Moopanar for a sum ofRs.50/-. The said Kandasamy Moopanar died in the year 1960. Theplaintiff is the only son of the said Kandasamy Moopanar. Theplaintiff and his father were in possession and enjoyment of the item3 and 4 of the suit properties from January 1936. The plaintiff'sfather discharged the mortgaged debt with Paramasiva Moopanar andpaid the balancaae sale consideration to Vadivel Moopanar on30.1.1936. An endorsement of discharge of the mortgage debt was madein the mortgage deed dated 8.8.1932.(iii) The defendant have no right over the suit properties.The defendant's purchase under sale deed dated 26.4.1991 and 4.9.91are not valid. The documents are fictitious documents. The vendor ofthe defendant have no right over the suit properties. The plaintiffissued notice on 18.9.1991 and the defendant sent reply on 23.9.1991,denying the title and enjoyment of the suit properties. The plaintiffalso pleaded adverse possession and prescription. Therefore, theplaintiff filed a suit.5. The brief case of the defendant is as follows:(i) According to the defendant, the plaintiff was inpossession of suit item 1 and 2 till 1.9.1980. In the year 1980,there was an oral exchange between the plaintiff and Dhanavelwhereby, the said Dhanavel gave suit item 3 and 4 to the plaintiff inexchange to item 1 and 2 of the suit properties which were given bythe plaintiff to Dhanavel. The possession followed in favour of theparties as part of the exchange. The above exchange was resorted byboth for the convenient enjoyment of both parties as S.F. 191/1 and191/7 were owned by the plaintiff and as these items are contiguousones for suit items 3 and 4 and suit items 1 and 2 are alsocontiguous ones. (ii) According to the defendant, oral exchange is amplyproved by the Registered Sale deed dated 21.5.1975 executed by the https://hcservices.ecourts.gov.in/hcservices/ one Ayyammal in favour of Dhanavel Moopanar in respect of item 3 and4 of the suit properties. The plaintiff's father Kandasamy Moopanardid not purchase the suit items 3 and 4 orally from Vadivel Moopanar.The adverse possession pleaded by the plaintiff in respect of thesuit properties is not sustainable. (iii) Pursuant to the oral exchange, patta was transferredin favour of Dhanavel in respect of suit items 1 and 2 and for thelands in suit items 3 and 4 patta was transferred in the name of theplaintiff. The defendant purchased the suit items 1 and 2 fromDhanavel under a registered sale deed dated 26.4.1991. Since therehas been dispute raised over the suit items 1 and 2, the defendanthad also purchased the suit items 3 and 4 under a Registered Sale-deed dated 4.9.1991. Since it is not open to the plaintiff to disputethe title and possession over the suit item, the defendant may beadvised to recover the possession of the suit items 3 and 4 asalternative plea.(iv) The defendant is in enjoyment of items 1 and 2 of thesuit properties. The defendant also filed counter claim. If the courtfinds that the oral exchange pleaded by the defendant is not inaccordance with law, the defendant is entitled for declaration andpossession in respect of items 3 and 4 of the suit properties.6. Before the trial court, on the side of the plaintiff,the plaintiff was examined as P.W.1 and 15 documents Exs. A1 to A15were marked. On the side of the defendants, 2 witnesses were examinedand 15 documents Exs. B1 to B15 were marked. 7. The trial Court after taking into consideration the oraland documentary evidences of both the parties decreed the suit.8. Aggrieved over the judgment and decree of the trialCourt, the defendant filed an appeal in A.S. No. 75 of 1993 on thefile of the Learned Subordinate Judge, Ariyalur and the lowerappellate court after taking into consideration the materialsavailable on records also confirmed the judgment and decree of thetrial Court and dismissed the appeal. 9. Aggrieved over the judgments and decrees of the courtsbelow, the plaintiff has filed the above Second Appeal. 10. Heard Mr.J.R.K.Bhavanantham, the learned counsel forthe appellant and Mr.S.Parthasarathy, the learned Senior Counsel forthe respondent.11. At the time of admission of the Second Appeal, thefollowing substantial question of law arose for consideration: https://hcservices.ecourts.gov.in/hcservices/ 1) Whether in the absence of pleading in thewritten statement, the lower court was right inignoring the evidentiary value of Exhibit B2 dated21.4.1975, Ex.B14 and B.15?2) Whether the lower court was right in drawingthe presumption of continuance retrospectively?3) Whether the respondent/plaintiff was estoppedfrom pleading that she had no knowledge of the contentsof the Ex.B.2 being attested by her?4) Whether the comparison of the signatures inExhibit B2 and deposition papers of therespondent/plaintiff by the court was in accordancewith law?12. On a careful consideration of the materials availableon record and submissions made by the learned counsel appearing forthe appellant and the learned senior counsel appearing for therespondent, it could be seen that under Ex.A.1 Sale Deed dated19.5.1962 one Muthusamy Moopanar purchased item 1 and 2 of thesuit properties from one Palaniyammal. Under Ex.A.2 Sale Deed dated13.5.1970, the respondent/plaintiff purchased items 1 and 2 of thesuit properties from Muthusamy Moopanar. Ex.A.3 is the patta issuedto the respondent/plaintiff in respect of the items 1 and 2 of thesuit properties. Therefore, from the documents marked on the side ofthe respondent/plaintiff, it is clear that he is having absoluteright over the item 1 and 2 of the suit properties and he is inpossession and enjoyment of the same. So far as items 3 and 4 of thesuit properties are concerned, the appellant/defendant himself hasadmitted in the written statement that the respondent/plaintiff is inpossession and enjoyment of the properties. 13. The learned counsel appearing for the appellantcontented that item 3 and 4 of the suit property originally belongedto one Vadivel Moopanar and subsequently, the appellant's vendorDhanavel was enjoying the property till 1.9.1980 and thereafter byoral exchange the said Dhanavel exchanged items 3 and 4 of the suitproperties with item 1 and 2 of the suit properties with therespondent/plaintiff. Ex.B.3 is the sale deed dated 26.4.1991 underwhich the appellant purchased items 1 and 2 of the suit propertiesfrom Dhanavel. Ex.B.4 is the sale deed under which the appellantpurchased items 3 and 4 of the suit properties from Vadivel Moopanar.Though the appellant has stated that he is in possession andenjoyment of item 1 and 2 of the suit properties there is nothing onrecord to prove the same. Ex.A.4 is the mortgage deed dated8.8.1932. The respondent's father Kandasamy Moopanar discharged themortgage debt on 30.1.1936 to that effect and an endorsement hasbeen made in the said mortgaged deed on the same date. The total sale https://hcservices.ecourts.gov.in/hcservices/ consideration of item 3 and 4 of the suit properties was Rs.50/-.Since the value of the properties was less than Rs.100/-,registration of the document is not mandatory. Therefore, the oralsale is valid in law, which requires no documents. Therefore, thepurchase made by the father of the respondent namely KandasamyMoopanar is valid. So far as the possession and enjoyment of item 3and 4 of the suit properties are concerned, the appellant himselfadmitted that the respondent is in possession and enjoyment of theproperties. Further, patta in respect of item 3 and 4 was issued inthe name of the respondent/plaintiff and he has also paid kist inrespect of the item 3 and 4 of the suit properties.14. Though the appellant/defendant contented that therespondent had attested the Ex.B.2 sale deed dated 21.4.1975, but thesame has not been pleaded in the written statement. Further, theattestor cannot be said to be a consented party to the transactions.Therefore, the Principal of Estoppel cannot be applied. 15. The courts below found that the appellant's purchaseunder Ex.B.3 and B.4 were made only to create problem. The appellanthas also failed to prove his possession and enjoyment of item 3 and 4of the suit properties, even prior to the alleged oral exchange inthe year 1980. The courts below have rightly come to the conclusionthat the oral exchange pleaded by the appellant is not true. 16. The learned counsel appearing for the appellant reliedon the following judgments:(i) AIR 1966 Supreme Court 605 (Ambika Prasad Thakur and othersetc. Vs Ram Ekbal Rai (dead) by his legal representatives and othersetc.) "11. The plaintiffs were out of possession of thelands in suit continuously from November 30, 1915 up toMay 27, 1925 and again from May 27, 1925 up to the dateof the suit. The Dumraon Raj and the pattadars were inpossession of the lands in suit continuously from May27, 1925 up to the date of the suit. In the revisionalsurvey of 1937, the defendants 1st party are shown tobe in possession of these lands. The plaintiffs allegedpossession and dispossession within 12 years. Assumingthat Art.47 does not apply,t he suit is governed byArt. 142. The plaintiffs have failed to establish theirpossession within 12 years of the suit and the suit isbared by Art. 142 of the Indian Limitation Act.13.The Maharaja was interested in the successof the suit, and it was necessary for him in his owninterest to make this admission. The admission was madeunder somewhat suspicious circumstances at the end of https://hcservices.ecourts.gov.in/hcservices/ the trial of the case when the arguments had begun.Though this petition was filed, the written statementof the Maharaja was never formally amended. In thecircumstances, this admission has weak evidentiaryvalue. In this suit the plaintiffs do not claim tenancyright either by express grant or by adverse possession.Title cannot pass by mere admission. The plaintiffs nowclaim title under Cl. (1) of S.4 of Regulation XI of1825. The evidence on the record does not establishthis claim.15. The question is whether such an influenceshould be drawn. Now, if a thing or a state of thingsis shown to exist, an interference of its continuitywithin a reasonably proximate time both forwards andbackwards may sometimes be drawn. The presumption offuture continuance is noticed in Illustration (d) toS.114 of the Indian Evidence Act, 1872. In appropriatecases, an inference of the continuity of a thing orstate of things backwards may be drawn under thissection,though on this point the section does not givea separate illustration.The presumption of continuity weakens with thepassage of time. How far the presumption may be drawnboth backwards and forwards depends upon the nature ofthe thing and the surrounding circumstances. In thepresent case, the High Court rightly refused to drawthe inference from the state of things during 1892 to1909 that the ancestors of the plaintiffs held frontierplots of Dubha Mal in 1863."(ii) (2003) 7 Supreme Court Cases 481 (Deva Vs. Sajjan Kumar)"Since the animus to hold the land adversely tothe title of the true owner could be said to havestarted only upon institution of the suit, held, thisnegatived the defendant's case of having prescribedtitle by adverse possession-Mere long possession ofthe defendant for a period of more than twelve yearswithout intention to possess the suit land adverselyto the title of the plaintiff and to the latter'sknowledge cannot result in acquisition of title byprescription."(iii) AIR 1956 Supreme Court 593"Civil P.C.(5 of 1908),O.6, R.2 – Variance betweenpleading and proof: Evidence let in no issues on whichthe parties actually went to trial should not be made https://hcservices.ecourts.gov.in/hcservices/ the foundation for decision of another and differenceissue, which was not present to the minds of theparties and on which they had no opportunity ofadducing evidence. But that rule has no application toa case where parties go to trial with knowledge that aparticular question is in issue, though no specificissue has been framed thereon,and adduce evidencerelating thereto."17. The respondent/plaintiff has proved his title,possession and enjoyment over the suit properties by documents.Therefore, the facts and circumstances in the judgments referredabove differs from the case on hand. Therefore, the judgments are notapplicable to the present case. 18. The learned senior counsel appearing for the respondentrelied on the following judgments: (i) (2008) 5 Supreme Court Cases 25 (Patinhare PurayilNabeesumma Vs. Miniyatan Zacharias and another). "In respect of four items of the properties, theappellant-plaintiff has been able to prove her title asalso the possession. The fact that her husband was thecultivating tenant in respect of the suit property isnot in dispute. The tax receipts filed by her also goto show that the entire suit land was the subject-matter of grant of tenancy by the landlord and if notfrom a (sic an earlier) date, tax has been paid by theappellant-plaintiff at least from 1955 onwards. In viewof Section 110 of the Evidence Act a presumption can beraised in regard to possession, both backward andforward."(ii) (2009) 4 M.L.J. 449 (Chidambara Padayachi Vs. VellalyaPadayachi and Others)"Attestation proves no more than that thesignature of an executing party has been attached to adocument in the presence of a witness. It conveys,neither directly nor by implication, any knowledge ofthe contents of the document and it ought not to beput forward alone for the purpose of establishing thata man consented to the transaction, which the documenteffects."(ii) (2003) 1 M.L.J.769 (K.A.Selvanachi and another Vs.Dr.S.R.Sekar and another) https://hcservices.ecourts.gov.in/hcservices/ "Mere attestation of a document does not implythat the attestor had knowledge of the contents of thedocument. There should be something more than mereattestation. Custom and usage are always a matter ofevidence and strict proof. Observation of individualJudge based on personal perceptions and experiencecannot be elevated to status of rules of law."(iii) (2003) 2 M.L.J. 756 (Thirumalaiswami and others Vs.Nallathambi and others)"Attestation does not constitute estoppel unlessintrinsic evidence is there in the document to showthat the attestor had knowledge of the contents."19. Therefore, applying the principles laid down in theabove referred judgments, it could be seen that therespondent/plaintiff produced kist receipts and other documents bothbackward and forward and under Section 110 of the Evidence Act,presumption can be raised in regard to his possession of the suitproperties. Though the respondent/plaintiff had attested Ex.B.2Sale Deed, there is nothing on record to show that the attestor hadthe knowledge of the contents of the document. Therefore, therespondent's attestation of Ex.B.2 could not operate as estoppel. 20. The courts below after taking into consideration theoral and documentary evidences of both the parties have rightlydecreed the suit. I find no substantial question of law to interferewith the concurrent findings of the courts below. The second appealis liable to be dismissed. Accordingly, the second appeal isdismissed. However, there will be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarrj/vaTo1.The Subordinate Judge, Ariyalur. 2.The District Munsif, Ariyalur.3.The Section Officer, V.R. Section, High Court, Madras.+ 1 c.c. to M/s. Sarvabhauman Associates. S.R.No.35301.+ 1 c.c. to Mr. K. Sridhar, Advocate. S.R.No.35785. S.A.No.595 of 2000 KSK (CO)GSK 25.08.2009.