K. Mokkamayan vs P. Pushparani and Rajangam

P. Sathasivam, J.—The revision petition is directed against the order dated 7.12.1999 in O.S. No. 154 of 1997 on the file of District

Munsif, Periyakulam First defendant in that suit is the petitioner in this revision. Respondents herein filed the said suit for bare injunction. The

petitioner herein/1st defendant therein filed a written statement disputing the claim made by the plaintiff and also denied the allegation that the

plaintiff purchased the suit property through a registered sale deed dated 12.2.1985. It is also contended that plaintiff does not have title or

possession over the suit property. He also specifically pleaded that he has been in physical possession and enjoyment as pathway for more than the

statutory period and such possession and enjoyment was open, hostile and uninterrupted one, and perfected his title by adverse possession.

While the petitioner - first defendant was examined as D.W.1, an unregistered sale deed dated 14.10.1980 was sought to be marked through

him. The same was objected by the plaintiff on the ground that since the defendant wants to establish his possession through the said document and

the same being an unregistered one, the same cannot be marked.

After analysing the defence taken by the defendant, the Court below came to the conclusion that he is basing his possession through the said

document dated 14.10.1980, and in the absence of registration which is mandatory, the Court below accepted the objection raised by the plaintiff

and refused to mark the said document on the side of the defendant.

As requested, I have also carefully perused the plea of the defendant in their written statement as well as the sale deed dated 14.10.1980. In the

light of the stand of the defendant and of the fact that the value of the property is more than Rs. 100.00, the Court below is justified in refusing to

mark the said document on the side of the defendant. Even though it is stated by the learned counsel for the petitioner that the said document can

be marked for collateral purpose viz., for proving of the suit property, I am unable to accept the argument of the learned counsel for the petitioner.

The decision viz., Ayyavu (died) and 8 others Vs. Shanti Bibi and 9 others, r elied on by the learned counsel for the petitioner, in the light of the

factual position in our case, does not help the petitioner''s case.

In this regard, it is useful to refer the decision of this Court reported in Ruckmangathan v. Ramalingam (1997 (II) CTC 595) . In an identical

circumstance, Subramani, J., in the said decision has concluded,

On going through the written statement as well as the application, we find that what the defendant wants to prove is, the factum of sale. He has

no case anywhere in the written statement or in the application that he wants to prove a document for collateral purpose. When there is no such

case put forward, the lower Court, assuming that it could be used for collateral purpose, has gone beyond the case of the parties. When the

defendant has a definite case that possession passed on the basis of the sale deed, and if the sale could not be proved, to make use of the

document for the purpose of possession, cannot be said as a collateral purpose. From a reading of the written statement, I understand that he

claims possession as owner. When the ownership could not be had, when there is no registered deed and possession is also part of that

transaction, it cannot be said that it is a collateral purpose as found by the lower Court. Whether any ground has been made out to admit the

document? It is true that a discretion has been exercised by the lower Court and in the normal circumstances, this Court should not interfere. But,

when the discretion exercised has seriously affected the rights of the other party, this Court is entitled to invoke its jurisdiction to rectify that

mistake. The reason mentioned is that he thought of confronting the plaintiff with the document, and when the plaintiff did not admit the execution of

such document, he thought of producing the same in Court. He also says that he had to produce the document before the Collector for paying the

stamp duty and penalty. Those reasons cannot be said as sufficient cause. The defendant cannot think that his case will be supported by the plaintiff

and, therefore, he waited for the production of the document. If that was in his mind, the reason stated by him cannot be recognised by Court. For

paying stamp duty and penalty, from 1975 to 1983, what the defendant did for eight years, is also explained.

Plaintiff has seriously opposed the reception of the document and has, in fact, denied the very execution of such a document. He has also said

that the document has been created for the purpose of this suit. Without taking into consideration that objection, the lower Court has ordered that

it could be marked for a collateral purpose as if the document is genuine. If the genuineness of a document is questioned, the execution of the

document itself will have to be proved and that cannot be a collateral purpose. Without considering any of these legal contentions, the lower Court,

as if it is a routine matter, has allowed the application. The order of the Court below, is therefore, liable to be set aside, and the Civil Revision

Petition is to be allowed.

With respect, I am in agreement with the view expressed by the learned Judge. As stated earlier, in the light of the plea taken by the defendant in

the written statement and he being seen to be very much relying on the said document to prove his claim, undoubtedly the execution of the

document will have to be proved and without doing so the same cannot be marked even for a collateral purpose. The Court below is fully justified

in rejecting the claim of the defendant.

In the light of what is stated above, I do not find any error or infirmity in the impugned order. Consequently, the civil revision petition fails and

the same is dismissed. No costs. In view of the dismissal of the main revision, connected CMPs., are also dismissed.