Go. Neelahram vs Rajendran

B. Rajendran, J.—The plaintiff is the appellant. This second appeal is preferred challenging the judgment and decree dated 15.07.2014 passed by the learned Additional Subordinate Judge, Pondicherry in A.S. No. 2 of 2009 in confirming the judgment and decree dated 30.12.2008 passed by the learned II Additional District Munsif, Pondicherry in O.S. No. 418 of 2000.

The parties are referred to here under according to their litigative status and ranking before the trial Court.

The short facts that are necessary for the disposal of this Second Appeal would run thus:

(a) The plaintiff/appellant filed the suit seeking permanent injunction as against the defendants and to declare the sale deed dated 05.11.1992 and 17.08.1993 in the name of the first defendant and also the sale deed dated 04.06.1991 in the name of the second defendant as null and void. It is his contention that he purchased the suit properties under the registered sale deed dated 27.03.2000 from the third defendant, who being the power of attorney of Prakash Bhat and Ramesh Kumar and is in possession and enjoyment of the same. While so, the defendants 1 and 2 who are having no title or interest in the suit property, are disturbing him. Hence the suit.

(b) The defendants 1 and 2 filed the written statement and resisted the suit by contending that they are in possession and enjoyment of the suit property and the same is open, deliberate and known to everyone in the village including the so called Gowtham Bhat. The defendants'' further stated that the plaintiff with ulterior motive of snatching the property by hook or by crook came to the village and spread the news as if they had purchased the suit property. Accordingly, by way of counter claim, the defendants sought for a permanent injunction as against the plaintiff restraining him from interfering with their peaceful possession and enjoyment.

(c) The plaintiff had filed an objection for the counter claim filed by the defendants stating that it is the bounden duty of the defendants to prove that the sale deeds are genuine. The defendants are fully aware that the sale deeds are fabricated and forged ones and they have filed the counter claim only to obtain illegal gain through court. Accordingly, the plaintiff prayed for the dismissal of the counter claim.

(d) The trial court framed the relevant issues.

(e) During trial, on the plaintiff''s side, P.Ws. 1 to 4 were examined and Exs. A1 to A15 were marked. On the defendants'' side, D.Ws. 1 to 4 were examined and Exs. B1 to B16 were marked.

Ultimately, the trial court after analysing the oral and documentary evidence adduced on both sides dismissed the suit filed by the plaintiff as well as the counter claim filed by the defendants by holding that the plaintiff has not proved his title and the power of attorney and the defendants 1 and 2 have also failed to prove their possession and enjoyment in the suit property with proper documentary evidence.

Aggrieved against the dismissal of the suit, the plaintiff preferred the appeal in A.S. No. 2 of 2009 and the first appellate court, initially allowed the appeal ex-parte. Subsequently, the original vendor, viz., Prakash Bhat filed an application in I.A. No. 110 of 2012 in A.S. No. 2 of 2009 for impleading himself as a party to the proceedings; that application was resisted by the plaintiff/appellant and the said application was dismissed vide order dated 24.01.2014. After filing of the setting aside application, the first appellate court restored the appeal and thereafter, after hearing both sides dismissed the appeal confirming the judgment and decree of the trial court vide judgment and decree dated 15.07.2014 coming to the conclusion that the appellant/plaintiff failed to prove that the sale deeds Exs. B2, B3 and B4 are forged one. Challenging the same, the present second appeal has been filed by the appellant/plaintiff, raising the following substantial questions of law:

Whether the lower appellate court is justified in dismissing the appeal without hearing the arguments of the parties to the case after assuming charge for the first time, and after reading from the case records that the case was posted for judgment?

Whether the lower courts can dismiss all the reliefs sought for in the suit by both the parties to the proceedings, without giving any finding in favour of either of them creating an ambiguity with regard tot he title of the suit schedule mentioned property, when the Issue No. 3 has been framed only for the said purpose?

Whether the lower courts can overlook the finding of the expert with regard to the signatures of the vendor, when the mere comparison of the same by the court by itself will clearly support the case of the appellant that the signatures in the disputed documents are forged by the defendants 1 and 2 and their alleged vendors?

Whether the judgment of the lower court is erroneous to the effect that no finding with regard to Issue No. 3 has been given in the judgment, when the said Issue No. 3 is the main relief sought for by the appellant?

Whether the lower courts are justified in dismissing the reliefs of permanent injunction sought for by both the parties over one and the same suit property, by stating that the documents produced by either parties are insufficient to grant the same?

To what other relief the appellant and the respondents are entitled to?

Heard the learned counsel for the appellant.

Learned counsel appearing for the appellant/plaintiff would mainly contend that there cannot be two owners for one and the same property and when both the parties have approached the courts to declare their title, the courts below ought to have given a finding in favour of either of the party so that the title for the suit property could be determined; however, both the courts below without doing so, have dismissed both the suit filed by the appellant/plaintiff as well as the counter claim filed by the defendants, which is against law. He would further submit that the finding given by the courts below that non-examination of the original vendor, viz., Prakash Bhat from whom the appellant/plaintiff has purchased the property is fatal to his case is not sustainable. Learned counsel for the appellant/plaintiff would also submit that the first appellate court earlier allowed the appeal filed by the appellant/plaintiff, ex-parte; however, on a petition filed by the respondents/defendants 1 and 2, the same was re-opened and a reversal finding was given by the first appellate court confirming the judgment and decree of the trial court. Accordingly, he would pray for setting aside the judgments and decrees of both the courts below and for allowing the second appeal.

On an analysis of the judgments passed by both the Courts below, it is seen that both the courts below have disbelieved the sale deed executed in favour of the appellant/plaintiff under Ex. A2 dated 27.03.2000. The first appellate court held that Exs. B2 to B4 executed in favour of the defendants 1 and 2 is earlier to the Ex. A2 sale deed executed in favour of the appellant/plaintiff. The first appellate court further held that when the original owner Prakash Bhat is alive and is residing in Bangalore, the plaintiff could have very well produced him before the Court to get his signatures and thumb impressions in the open court in the presence of both parties as well as their counsels and also sent it for expert opinion to prove the signatures found in Exs. B2 to B4. The first appellate court also held that the trial court rightly disbelieved the expert opinion given in Ex. A6 by PW5 for the reason that she herself during cross-examination admitted that she is only a LLB degree holder and she has not got any qualification for examining the thumb impression and handwriting.

Unfortunately, this second appeal cannot be entertained for the simple reason that it is purely a question of fact and both the courts below have concurrently held that the appellant/plaintiff has not proved any case to set aside the sale deeds and accordingly, negatived the prayer of the appellant/plaintiff. The defendants also as against the dismissal of their counter claim had not preferred any appeal.

For all the aforesaid reasons and also taking into consideration the fact that there is no question of law involved in this second appeal and it is only a question of fact, which has been decided by both the courts below concurrently, I do not find any reason to interfere with the reasoned order passed by both the courts below. Accordingly, the second appeal fails and the same is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.