A. Philomen Rasu vs S. Kunna Kavandar

S.M. Abdul Wahab, J.—This second appeal has been preferred by the unsuccessful defendant, who succeeded before the trial Court but

lost before the lower appellate Court.

The plaintiff/respondent filed the suit for bare injunction restraining the defendant from interfering with his possession and enjoyment of the suit

property measuring an extent of 1.96 acres, classified as dry land in S.No. 113/4 in Pillur Village, Trichi District. The case of the plaintiff was that

he purchased the suit property under Ex.A.I dated 20.9.1973 and on the very same day possession was given to him and has been paying kist

under Exs.A-3 and A-4 and also got patta under Ex.A-2. Since the defendant is demanding reconveyance, he has filed the suit.

The defence was that the plaintiff is a money lender. When the defendant approached for a loan he agreed to it provided a sale deed is executed

in his favour. Accordingly, he purchased the stamp papers and got the sale deed executed, but the agreement was that the land should be

reconveyed after the repayment of the loan. The value of the property was Rs. 10,000. Admittedly, the defendant alone has been in possession

and enjoyment and the patta stood in the name of the defendant. Kist was also paid by the defendant. When the patta was transferred in the name

of the plaintiff, it was objected to, thereupon the District Collector directed the plaintiff to agitate the matter before the Civil Court. Before the suit

there was a panchayat, the defendant offered to repay the amount for having a reconveyance. But the plaintiff demanded interest at 36% per

annum. Though panchayatdars settled the interest at 12% he did not agree. Only thereafter the suit has been filed.

The trial Court after considering the evidence come to the conclusion that though the sale deed has been executed in favour of the plaintiff, the

validity and the truth of the same has to be agitated separately and what was necessary for consideration in this suit was possession, as the suit was

only for a bare injunction. Relying upon Exs.B-1, B-2, B-3, B-4 and B-6, the trial Court found that possession was with the defendant. Hence, the

suit was dismissed.

On appeal to the lower appellate Court, the lower appellate Court has reversed the judgment and decree of the trial Court. It has given a finding

that the plaintiff must be in possession.

The learned counsel for the appellant urged before me the only point that the lower appellate Court has not considered the vital documents,

namely, Exs.B-1, B-2, B-3, B-4 and B-6, and has relied upon Ex.A.l only and the recital therein. Hence, the non-consideration of the vital

documents resulted in the grave irregularity on the part of the lower appellate Court.

On the other hand, learned counsel for the respondent contended that the document Ex.A-1 is a valid one. When there is a documentary

evidence stating that possession has been handed over, evidence against the same is precluded u/s 92 of the Indian Evidence Act. He also

contended that if the case of the defendant was proved nothing prevented him from moving the Court to have the sale deed set aside, since it has

not been done, the case of the defendant should be rejected.

Even though in the sale deed dated 20.9.1973 there is recital that possession has been handed over to the plaintiff, no evidence has been

adduced before the court that the plaintiff was in actual possession and enjoyment of the suit property. The kist receipts Exs.A-1 and A-4 are

subsequent to the suit. Patta book Ex.A-2 has been obtained just six months prior to the filing of the suit, when the plaintiff attempted to get it, the

defendant had objected to the same, as is evidenced from Ex.A-5. As both the Courts below have rightly stated that we are not concerned with

the title in the suit and we are concerned only with the possession, we have to analyse the evidence carefully to see whether the plaintiff or the

defendant is in possession.

We have Ex.B-1 patta book, issued to the defendant on 23.7.1974, i.e., after a year after the sale. Ex.B.6 is the certified copy of the adangal

for faslis 1385 to 1388 corresponding to the years 1975 to 1978. There, it is specifically mentioned that the defendant has cultivated the land from

1975 to 1978 i.e., during faslis years 1385 to 1388, ground-nut, Kambu and cotton have been raised. An attempt has been made before the lower

appellate court by filing an application u/s 76 of the Civil Rules of Practice for calling for the village account No. 14 for the fasli years 1385 to

1388. Another application was filed for reopening the evidence for marking those documents. But the applications were rejected. Whatever the

reasons may be, the defendant has produced the evidence to show that during fasli years 1385 to 1388, he has been in possession. Further, the

attempt to show that for the earlier fasli also, the defendant was in possession by summoning the account No. 14. But the lower appellate Court

has rejected it. In my view, since the lower appellate Court is the Court of appeal, with reference to facts when a party to the suit makes an honest

attempt to adduce more evidence to establish a fact as a final court of appeal on fact, some liberal approach should always been made. The appeal

appears to have been filed on 2.3.1982. The appeal was finally heard 12.11.1983. Before that the applications have been filed. Therefore, it

cannot be said that the appeal was pending for several years and no further delay should be caused in disposing of the appeal.

It is of course the duty of the parties to adduce evidence, but at the same time, it is the duty of the Court to render justice to the parties before

the Court, apart from deciding the issues before it. Even though the later part of the duty of the Court does not require to show any indulgence to a

party the first part of the duty requires some indulgence in genuine cases. Since the case has already been argued and orders have been reserved, if

the appellant chooses to file an application before the revenue authorities, for the certified copy of the Account No. 14, he would not definitely

succeed to get them within a short period. That is why applications have been filed for summoning. Therefore, I cannot commend the act of the

lower appellate court in rejecting the application for reopening of the cases and calling for the village account No. 14.

Apart from the above, kist has also been paid by the defendant under Ex.B-2 before the filing of the suit. As we have seen, except the

statement in the sale deed, there is no other document to show that the plaintiff has taken possession of the suit property.

When we come to the oral evidence also, we find the evidence of the defendant is acceptable rather than the evidence of the plaintiff, when

there is no discrepancy pointed out in the evidence of D.W-1, P.W. 1''s evidence is full of contradiction. In the first instance he has denied that he

is a money lender but however admits that he used to lend monies on promissory notes. Again he has stated that he has produced kist receipts

before the Co-operative Society for raising a loan. Subsequently, he says that the kist receipts were lost, as he did not choose to keep them in safe

custody. He has also stated that he raised loan on the property, but he says that without an application he was able to raise such a loan. This is one

aspect. That apart, he has admitted that he never bothered to look into the encumbrance, original parent documents, etc., before he purchased the

suit property. Further he never bothered to find in whose name the property stood. He has categorically stated that since the defendant was in

possession, he took the sale deed from the defendant. If there was a genuine sale transaction, the purchaser would have taken care to look into the

encumbrance certificate and find out the original owner. The word part of it is that he did not know how the defendant got the land whether by

purchase or by assignment by the Government. Apart from that he has also admitted that the defendant filed an application before the Tahsildar

claiming relief under Debt Relief Act. This strengthens the case of the defendant that the defendant actually executed the sale deed only for raising a

loan. Another important aspect is that the defendant has categorically stated that there was a panchayat and in the panchayat the plaintiff demanded

Rs. 3 per hundred per month towards interest, but the panchayatdars settled it for lesser amount, but he did not accept the same. So, after going

through the evidence, we have to record our finding about the title deed, which we are not called upon to do so, in this second appeal. However,

only for the purpose of ascertaining the possession, the aforesaid remarks have been made, and from the evidence it is not possible that the plaintiff

has established possession on the date of the suit. On the other hand, the defendant has proved that he has been in possession. The lower appellate

court has simply relied upon Ex.A-1, particularly, the recitals therein. The learned counsel also relies upon the settlement and Section 92 of the

Evidence Act. Section 92 of the Evidence Act excludes oral evidence with reference to a settlement contained in a document. But we have seen in

this case that sufficient documentary evidence have been let in, in the form of Exs.B-1, B-2, B-3,B-4 and B-6. Therefore, I am not in a position to

sustain the finding of the lower appellate court. Hence, the judgment and decree of the lower appellate court is reversed, the decree and judgment

of the trial court is restored. Since these proceedings relate only to injunction, it is open to the plaintiff to institute appropriate proceedings if so

advised for declaration. Accordingly, the appeal is allowed. There will be no order as to costs. Consequently, C.M.P.No. 934 of 1984, is

dismissed.