Amrithraj, M. Pattani Muthu and M. Koil Pillai vs Indirani

A. Ramamurthi, J.—The defendants, who lost in both the courts below, are the appellants.

The case in brief is as follows:-

The plaintiff purchased the suit properties under three sale deeds dated 24.03.1966. Patta was also transferred in the name of the plaintiff and she

has been paying kist. The defendants have no right whatsoever in the properties. The 1st defendant along with defendants 2 and 3 joining together,

has fraudulently created a sale deed as if the plaintiff had conveyed the properties to the 1st defendant and registered the same before the Sub

Registrar, Ottapidaram by impersonation. The impugned document was executed on 30.05.1990. The plaintiff is residing at Chennai since 1960

and she came to know about the impugned document only in 1995 and she made a complaint with Revenue Divisional Officer, Kovilpatti as well

as police. By virtue of the impugned document, the 1st defendant is attempting to interfere in the possession and enjoyment of the plaintiff and

hence, she filed the suit for declaration and permanent injunction relating to the property.

The defendants contended that the plaintiff conveyed the suit property to the 1st defendant on 30.05.1990 for a valid consideration of

Rs.13,715/=. Patta was also transferred in the name of the 1st defendant and he is in possession and enjoyment of the same. He had also dug a

well and obtained loan from Primary Cooperative Bank to the extent of Rs.22,000/=. The plaintiff has not come forward with any suit to set aside

the impugned sale deed. The plaintiff is not entitled to claim any relief.

The trial court framed 5 issues and on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 to A-25 were marked and on the side of

the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-16 were marked. The trial court decreed the suit in favour of the plaintiff and

aggrieved against this, the defendants preferred A.S.No.7 of 2001 on the file of Additional District Court, Tuticorin and the learned Judge after

hearing the parties, dismissed the appeal and aggrieved against this, the defendants have come forward with the present second appeal.

The appellants / defendants have raised the following substantial questions of law in the memorandum of grounds of appeal:

(1) Are the courts below correct in relying upon the photographs Exs.A-22 and A-23, without the corresponding photo negatives ?

(2) Are the courts below correct in holding that the judgment of this Court reported in 1993 3 CTC 630 is not applicable to the facts and

circumstances of this case?

(3) In the absence of any proof of possession by the plaintiff, are the courts below correct in law in granting any relief of permanent injunction ?

(4) Is not the judgment and decree of the courts below liable to be set aside on account of misappreciation and misreading of the evidence ?

Heard the learned counsel for the parties.

It is admitted that the plaintiff had purchased the suit properties under Exs.A-1 to A-3 and patta was also transferred in her name and she has

paid the kist. The plaintiff is residing at Chennai since 1960 and this being so, the 1st defendant with the help of defendants 2 and 3 has fraudulently

created Ex.B-1 sale deed dated 30.05.1990 as if the plaintiff had conveyed the properties to the 1st defendant giving the address of the plaintiff as

if she was residing at Madurai. Exs.A-9 to A-17 are the documents filed by the plaintiff to show her possession of the property. She has also filed

documents to show that she was residing only at Madras.

The trial court as well as the lower appellate court granted a decree in favour of the plaintiff for declaration and permanent injunction. The

learned counsel for the appellants/defendants raised a plea that when the impugned sale deed is attacked by the plaintiff, she ought to have come

forward with a suit to set aside the sale deed and the present suit for declaration and injunction is not sustainable. The 1st defendant had produced

sufficient evidence to show that he had purchased the property and he is in possession and enjoyment of the same. The 1st defendant also

produced documents to show that he had sunk a well in the property under Jeevandhara Scheme and obtained loan from Kulasekaranallur

Agricultural Cooperative Bank for cultivation in the property. The comparison of the thumb impression has not at all been done in a manner

admissible in law and mere comparison in the open court would not be sufficient without a proper comparison in the Laboratory. The photographs

relating to the thumb impression were not marked along with the negatives. The courts below failed to consider the untrustworthiness of the

evidence of P.W.2 as there was no evidence to prove that he was a qualified Forensic Scientific Expert. Ex.A-5 dated 03.05.1994 is not a

document addressed to the defendants and as such, no adverse inference can be drawn against them.

P.W.1 categorically stated that she had not executed Ex.B-1 in favour of the 1st defendant at any point of time. In fact, the 1st defendant was

called upon to produce the original sale deed before the Court and only at the time of examination of D.W.1, Ex.B-1 had been filed into the Court.

D.W.1 was studying in Law College in 1990 and he had not actually seen the prior title deeds of the plaintiff prior to the impugned document. He

has stated that defendants 2 and 3 alone negotiated with the plaintiff and Ex.B-1 was executed. There is a recital in Ex.B-1 to the effect that the

property belonged to P.W.1 under ancestral right; but a perusal of Exs.A-1 to A-3 only falsified the same. D.W.1 had also not filed any document

to show that P.W.1 was ever residing at Madurai; but on the other hand, P.W.1 had filed number of documents to show that she was residing only

at Chennai.

D.W.2 had been examined by the appellants as if he was the person, who is said to have identified P.W.1 before the Sub Registrar at

Ottapidaram. D.W.2 had no occasion to see P.W.1 previously and on 30.05.1990 he had signed in some more documents also in the Sub

Registrar Office. He fairly conceded that the 1st defendant alone called upon him to come to the Sub Registrar Office and D.W.2 had not actually

seen P.W.1 signing the document. D.W.2 is also related to D.W.1. Under the circumstance, the evidence of D.W.2 had been rightly rejected by

the courts below. The counsel for the plaintiff called upon the 1st defendant to produce Ex.B-1 before the Court for the purpose of sending it for

comparison by the Forensic Expert. However, in spite of notice, D.W.1 failed to produce the same. The plaintiff took steps to send for original

documents from the Sub Registrar Office and they were examined by P.W.2, the Forensic Expert by comparing with the admitted thumb

impression. He also gave an opinion that the thumb impression in Ex.B-1 is not that of the plaintiff and the report is marked as Ex.A-24. There is

no reason to discredit the testimony of P.W.2. However, the learned counsel for the appellants contended that the comparison has not been done

properly. Even the court has got power to compare the admitted signature of thumb impression with the disputed one.

The learned counsel for the appellants further stated that D.W.1 had sunk a well in the prope4rty and he had also applied for electricity service

connection. He had also obtained loan from the Primary Cooperative Bank and produced the document. D.W.3 is an employee in the

Cooperative Bank and he was examined to prove the availing of loan. But, no electricity service connection has been given. Simply because loan

was availed, it cannot be concluded that D.W.1 is the real owner of the property. In fact, P.W.1 had given a complaint before Revenue Divisional

Officer, Kovilpatti under Ex.A-5.

The learned counsel for the appellants next contended that the plaintiff ought to have come forward with a suit to set aside the document when

she had denied the execution of the same. The plaintiff denied the execution of the document and according to her, it is a void one and hence u/s

31 of the Specific Relief Act, it is not necessary for cancelling or setting aside the document. She can ignore the same and file a suit to declare her

right in the property with a consequential relief of permanent injunction. D.W.1 had not chosen to produce the pass book or the patta book or any

other document to show his possession of the property. The courts below rightly came to the conclusion that P.W.1 alone is in possession and

enjoyment of the property and she never conveyed the property to the 1st defendant at any point of time. Since the finding given by the courts

below is based on legal evidence, no interference is called for.

For the reasons stated above, the Second Appeal fails and is dismissed. No costs. Consequently, CMP No.16773 of 2001 is also dismissed.