M. Karunanithi vs R. Mahalingam

P.R. Shiva Kumar, J.—The Plaintiff, who lost his case in entirety before the trial Court, but was partly successful in the lower appellate

Court, has come forward with the present Second Appeal in respect of the disallowed portion of his claim.

An extent of 1.18 acres comprised in R.S. No. 148/1 in Pudukkudi, Vadapathi Vattam, Thanjavur District within defined boundaries is shown

to be the suit property. The Appellant/ Plaintiff claiming to have become the owner of the entire suit property and that the entire suit property was

in his possession and enjoyment in which the Respondent/Defendant was trying to interfere, filed the Original Suit O.S. No. 184 of 2002 on the file

of the District Munsif, Thanjavur for a bare injunction against the Respondent.

According to the case of the Appellant/ Plaintiff, the suit property originally belonged to one Rathinasamy and after him it devolved upon his

legal heirs Ramadoss and Selvaraj and thereafter in an oral partition the entire suit property was allotted to Selvaraj. It is the further case of the

Appellant /Plaintiff that after the death of Selvaraj, his wife Jeyalakshmi, for herself and on behalf of her minor son Selvamani, executed an

unregistered sale deed conveying the entire suit property in favour of one Palanisamy @ Palani on 07.02.2001, and the said Palanisamy @ Palani,

in turn, executed a sale deed dated 19.07.2001 in favour of the Appellant/ Plaintiff conveying the entire suit property to him and that from the said

date, the Plaintiff was in possession and enjoyment of the suit property and the Respondent/Defendant tried to interfere with the same at the

instigation of one Ramakrishnan.

The suit was resisted by the Respondent/ Defendant contending that it was false to state that the entire suit property was allotted to Selvaraj in a

partition; that on the other hand the suit property was divided into two halves, each one having an extent of 59 cents and the Northern half was

allotted to Ramadoss, whereas the Southern half was allotted to Jeyalakshmi W/o. Selvaraj; that the Respondent/Defendant purchased the

Northern half from the said Ramadoss under a registered sale deed dated 20.03.2002, marked as Ex.B9 and that therefore, the claim of perpetual

injunction in respect of the suit property as if the Appellant/

Plaintiff was in possession and enjoyment of the entire suit property was unsustainable.

""(i) Whether the Plaintiff is entitled for the permanent injunction as prayed for? and

(ii) To what other reliefs, the Plaintiff is entitled?

were the two issues framed by the trial Court, based on which, the parties went to trial. As many as six witnesses were examined and 15

documents were marked on the side of the Appellant/Plaintiff, whereas 3 witnesses were examined and 13 documents were marked on the side of

the Respondent/Defendant. The documents produced by the revenue officials were marked as Exs.X1 to X4. The Report and Plan submitted by

the Advocate commissioner were marked as Exs.C1 and C2.

Upon considering the evidence in the light of the points urged in the arguments advanced on either side, the learned District Munsif, Thanjavur

held that the Appellant herein/Plaintiff could not establish his title to the suit property as the sale deeds relied on by him purporting to convey a

property, whose value was more than Rs. 100/- were unregistered documents, whereas the Respondent/ Defendant was able to prove his title to

the Northern half of the suit property by oral and documentary evidence including registered sale deeds. Based on the above said finding, the

learned trial Judge came to the conclusion that the equitable relief of permanent injunction could not be granted in favour of the Appellant

herein/Plaintiff and hence, dismissed the suit in its entirety by judgment and decree dated 10.10.2006.

The said decree of the trial Court, dismissing the suit, was challenged before the lower appellate Court, namely the Court of Additional

Subordinate Judge, Thanjavur in A.S. No. 40 of 2008. The learned Additional Subordinate Judge, Thanjavur, after hearing both sides, came to the

conclusion that the contentions of the Appellant/Plaintiff that he derived title to the entire suit property under the document marked as Ex.A.2 could

not be countenanced since not only the said document but also the parent deed, namely the sale deed allegedly executed by Jeyalakshmi in favour

of Palanisamy @ Palani marked as Ex.A.1 were not admissible for want of registration. However, based on other documents and oral evidence

adduced on both sides, the lower appellate Court came to the conclusion that the Appellant/Plaintiff was in possession of the Southern half of the

suit property and so far as the Northern half of the suit property was concerned, the Appellant/Plaintiff did prove neither title nor possession.

Based on the said finding, the lower appellate Court has chosen to modify the decree passed by the trial Court by allowing the suit in part and

granting a decree in favour of the Appellant herein/Plaintiff for permanent injunction in respect of the Southern half of the suit property having an

extent of 59 cents alone and dismissed the suit in respect of the other half, namely Northern half of the suit property.

Questioning the correctness and legality of the said judgment in so far as the dismissal of the suit regarding the Northern half of the property is

concerned, the present second appeal has been filed by the Appellant/Plaintiff.

The submissions made by Mr. M.P. Senthil, learned Counsel for the Appellant/Plaintiff were heard. The Memorandum of grounds of Second

Appeal and the documents produced along with the same including copies of the judgments of the Courts below were also perused.

After such hearing and upon such perusal, this Court is of the considered view that the Appellant /Plaintiff has not shown that any question of

law has arisen to be resolved in the second Appeal or that any question of law has been erroneously decided by the lower appellate Court.

The Appellant/Plaintiff claims title and possession based on two unregistered documents nomenclatured as sale deeds. They are Exs.A1 and

A2. They came into existence within a period of 51/2 months gap between them. It is also pertinent to note that within a period of 9 months from

the date of alleged purchase made by the Appellant/Plaintiff, he had chosen to approach the Court for the relief of permanent injunction against the

Respondent/ Defendant. Both the Courts below have arrived at a correct conclusion that Exs.A1 and A2 could not be admitted as evidence to

establish any right claimed to have been derived or conveyed under the said documents. Though the Appellant/Plaintiff has chosen to produce

patta relating to the suit survey number as Ex.A.4, that is not a separate patta and it is a joint patta issued in the name of as many as 66 persons.

The same shall not be enough to show that the Appellant/Plaintiff is in exclusive possession of the entire suit property extending to 1 acre 18 cents.

Admittedly, the suit property originally belonged to Rathinasamy and after him it came to be devolved on his sons Ramadoss and Selvaraj.

According to the Plaintiff, the entire suit property was allotted in a partition between the two to the said Selvaraj and from the legal heirs of

Selvaraj, Palanisamy @ Palani purchased the suit property and the Plaintiff, in turn, purchased it from the said Palanisamy @ Palani.

No document has been produced to show that the entire extent of the suit property was exclusively enjoyed either by Selvaraj or his legal heirs or

Palanisamy @ Palani, the vendor of the Plaintiff. There is also no clear evidence to show when did such partition take place.

The entire case of the Plaintiff rests on the oral evidence of the witnesses examined on the side of the Plaintiff. The first witness is the Plaintiff

himself. The second witness is his alleged vendor under Ex.A.1 and the other four witnesses are attestators of those two documents. Not even a

scrap of paper could be produced by the Appellant/ Plaintiff to show that either himself or his vendor Palanisamy @ Palani or Jeyalakshmi or her

husband Selvaraj was in possession and enjoyment of the entire extent of the suit property. Since the sale deeds are inadmissible as evidence in

proof of any derivation of title in respect of the immovable property, there is no chance of applying the principle ''possession follows title'' in favour

of the Appellant/Plaintiff in this case.

On the other hand, the Respondent/ Defendant, besides deposing as D.W.1, has also examined his vendor Ramadoss as D.W.2. He has also

produced Ex.B.9 registered sale deed, a copy of patta pass book and other documents. One another witness was also examined as D.W.3 in

order to prove the case of the Defendant that the suit property was divided equally between Ramadoss on the one hand and his predeceased

brother''s wife and her minor son on the other hand and that the Northern half of the suit property was allotted to the said Ramadoss.

The said Ramadoss himself has deposed as D.W.2. It is true that D.W.2 could not give the correct name of the purchaser under Ex.B.9. He

would refer to the purchaser under Ex.B.9 as Chelliah. It seems the Appellant/Plaintiff made an attempt to gain advantage by pointing out the

above said testimony of D.W.2. But the said witness himself, at a later part of his deposition, has given a clarification by stating that he sold the

property to the Defendant who was known by him as Chelliah; that he was not aware as to whether the Defendant also had the name

Mahalingam"" and that it was the Defendant at whose request he came to the Court to depose. A snap answer alone is sought to be projected to

show that the said Ramadoss would not have spoken the truth. When the testimony of D.W.2 is considered in totality, it will show that his

testimony was quite natural and there was no material contradiction in it. His evidence will go to show that he executed the sale deed Ex.B.9 in

favour of the Respondent/Defendant, who is known by him (D.W.2) as Chelliah.

It is not in dispute that D.W.2 is the Ramadoss referred to by the Plaintiff as one of the co-owners in the plaint itself. The admitted coowner

has chosen to appear on behalf of the Respondent/Defendant to depose that there was a partition in which the Northern half of the suit property

was allotted to him and the same was conveyed to the Respondent/Defendant by him. On the other hand, the Appellant/Plaintiff, who claims that

the entire property was allotted to Selvaraj in a partition that took place between Ramadoss and Selvaraj, has not chosen to examine any one of

the admitted co-owners or any one of the parties to the alleged partition. Even the said Jeyalakshmi w/o Selvaraj was not examined to show that in

the partition the entire suit property was allotted to her husband Selvaraj and he was in possession and enjoyment of the entire suit property.

On a proper re-appreciation of evidence, the lower appellate Court, being the last appellate Court on facts, arrived at the correct conclusion

that the Plaintiff failed to prove his case of allotment of the entire suit property to Selvaraj in an alleged partition that took place between Selvaraj

and Ramadoss and on the other hand the Respondent/Defendant was able to prove that the partition took place only after the death of Selvaraj, in

which the Northern half of the suit property was allotted to D.W.2 Ramadoss, whereas the Southern half was allotted to Jeyalakshmi W/o.

Selvaraj and their minor son and that neither Selvaraj nor his legal heirs nor the Plaintiff was ever in possession of the Northern half of the suit

property at any point of time. The said finding rendered by the lower appellate Court is a finding on fact on proper reappreciation of evidence,

which cannot be termed either defective or infirm, much less perverse.

The success or failure of the claim of the Appellant/Plaintiff for the relief of injunction in respect of Northern half of the suit property very much

depends upon the finding rendered on the above said fact. As the finding went against the Plaintiff, there is nothing wrong in nonsuiting the

Appellant/Plaintiff for the relief sought for in so far as Northern half of the suit property is concerned. Even assuming for argument sake that the

exclusive possession of the Northern half by the Respondent/Defendant is not proved, since it has been held that the Plaintiff has not proved valid

title to the said portion and on the other hand Respondent/Defendant has derived valid title under Ex.B.9, the principle ''possession follows title''

should be applied in favour of the Respondent/Defendant and on that ground also the Appellant/Plaintiff is liable to be non-suited for the relief in

respect of the Northern half of the suit property.

For all the reasons stated above, this Court finds no scope for interference with the judgment of the lower appellate Court and that the Second

Appeal deserves dismissal at the stage of admission itself.

In the result, the Second Appeal is dismissed. Consequently, connected M.P.(MD) No. 1 of 2010 is dismissed. However, there shall be no

order as to costs as the Second Appeal is dismissed at the admission stage itself.