Ramasami Pillai vs Amarajothi

V. Periya Karuppiah

S.A. No. 116 of 2005

This appeal has been preferred by the plaintiff whose appeal filed before the First Appellate Court against the judgment and decree passed by

the trial Court in dismissing the suit in O.S. No. 650 of 1995 dated 19.07.2000 was dismissed in A.S. No. 132 of 2000 dated 3.3.2004.

S.A. No. 117 of 2005

This appeal has been preferred by the defendants against the judgment and decree passed by the First appellate Court in dismissing the appeal in

A.S. No. 133 of 2000 dated 3.3.2004 filed against the judgment and decree passed by the trial Court in O.S. No. 642 of 1995 dated

19.07.2000.

The First Appellate Court has heard both the appeals in A.S. Nos. 132 and 133 of 2000 jointly and had delivered a common judgment on

3.3.2004.

The case of the plaintiff in O.S. No. 650 of 1995 would be as follows:

The plaintiff is having right, title and enjoyment in the suit property. A part of the suit property and the property situated adjacent to the northern

side originally belonged to one Velayutham Pillai and others which was purchased by the plaintiff and his elder brother Palaniyapillai on 5.2.1962

for a valuable consideration by means of a registered sale deed. On the south-west corner, a portion of the suit property was a vacant site and was

in possession of plaintiff''s aunt one Meenakshi Ammal which was also purchased by plaintiff and his brother Palaniyapillai on 17.12.1975 for a

valuable consideration by means of a registered sale deed. After purchasing the property, they have enjoyed the suit property and property

situated on the northern side jointly and thereafter,the plaintiff and his brother divided the property on 20.12.1975 by means of a registered

partition deed. In the partition, they have divided the other family properties also along with the suit properties. In the partition, plaintiff was allotted

''B'' schedule and plaintiff''s brother was allotted on the northern side of the suit property and suit properties also fall to the share of the plaintiff.

Thereafter, plaintiff is in possession and enjoyment of the suit property by paying kist to the Government. Moreover, the plaintiff is enjoying the

property by keeping haystack and by tying live stocks also. In that way, the plaintiff has perfected title by adverse possession. The defendant is not

having any right or title in the suit property at any time. Due to the enmity arose between the plaintiff and defendant on 20.06.1995, the defendant

attempted to restrain the plaintiff from keeping haystack and tying livestock in the suit property which is illegal. Hence, the plaintiff has sought for

permanent injunction restraining the defendant and his men and agent from interfering with the peaceful possession and enjoyment of the suit

property by dumping garbage and keeping haystack and tying goats and bulls. Hence the suit.

The contentions of the defendant raised in the written statement are as follows:-

The defendant denied the averments made in the plaint, except the averments stated hereunder. The plaintiff has to prove the same.

The suit properties and the properties situated on the northern side were never owned by Valayutham and others and were also not enjoyed by

them. Hence, the sale deed said to have been executed by Velayutham on 05.02.1962 to the plaintiff and Palaniyapillai is not valid. It is true that a

portion on the suit property, situated on the North-West Corner, which was a vacant plot, was owned by plaintiff''s aunt Meenakshi Ammal. Suit

property was never enjoyed by plaintiff or Palaniyapillai at any time. Neither the plaintiff nor his brother are having any right to divide the property

on 20.12.1975. The said partition deed will neither bind this defendant nor his mother Meenakshi Ammal. The unregistered sale deed dated

17.12.1975 is not true. To grab the property of Meenakshi Ammal with ulterior motive, the partition deed was created. The suit property was

originally belonged to one Poovayee Ammal and who has executed the registered sale deed on 07.10.1960 to his brother Subbrayapillai and

handed over the property on the same date. From then onwards, said Subbrayapillai was enjoying the suit property. Later, this defendant and his

mother Meenakshi Ammal had purchased the same for Rs. 200/- on 16.08.1967 by means of a registered sale deed. From then onwards by

paying kist this defendant is enjoying the suit property. After the death of defendant''s mother, the defendant is enjoying the suit property, in which

he is having right and title. This defendant has filed O.S. No. 642 of 1995 against the plaintiff and obtained temporary injunction. The suit is filed by

suppressing the above facts. The document filed along with the plaint by the plaintiff is not true and correct one. Hence, the suit might be dismissed.

The case of the plaintiff in O.S. No. 642 of 1995 are as follows:

The suit properties are originally belonged to one Poovayee Ammal. Poovayee Ammal had executed a registered settlement deed on 07.10.1960

in favour of one Subbrayapillai. Subbrayapillai executed a settlement deed and enjoying the property from whom the plaintiff''s mother Meenakshi

Ammal had purchased for Rs. 200/- by means of a registered sale deed on 16.08.1967. From the date of purchase, the plaintiff''s mother was in

possession and enjoyment of the suit property, who died 10 years back. After the death of Meenakshi Ammal, the plaintiff is the only legal heir and

had inherited the property and enjoyed it by paying kist to the Government without any interruption. The suit properties are enjoyed by the plaintiff

and his mother more than the statutory period. Hence, they have perfected title by adverse possession. The defendants are not having any right or

title in the suit properties at any time. Since defendants are having property adjacent to the suit property and using the situation that the plaintiff is

residing in Kallakurichi, to get unlawful gain, the defendants attempted to trespass into the suit on 13.6.1995 which is unlawful. If the defendants

are not restrained by means of a permanent injunction from interfering with the peaceful possession and enjoyment, it would cause irreparable loss

and injury. Hence, the suit.

The contentions of the second defendant raised in the written statement, which was adopted by the first defendant are as follows:-

These defendants purchased the suit property 17.12.1975 from Meenakshi Ammal by means of an unregistered sale deed and later, they have

divided by means of a registered partition deed on 20.12.1975. From the date of purchase, these defendants were paying kist to the Government

and enjoying it by dumping garbage and keeping haystack and tying goats and bulls. Since these defendants are enjoying the suit properties for

more than 30 years and perfected title by adverse possession, the suit is liable to be dismissed.

The trial Court had framed necessary issues in both the suits and conducted trial in common and recorded the evidence in O.S. No. 650 of

1995 and admitted the documents accordingly. After appraisal of the evidence adduced on either side, the trial Court had dismissed the suit in

O.S. No. 650 of 1995 without costs and decreed the suit in O.S. No. 642 of 1995 with costs.

Aggrieved by the said judgment and decree passed in both the suits, the plaintiff in O.S. No. 650 of 1995 preferred the appeal before the First

Appellate Court in A.S. No. 132 of 2000 and the defendants in O.S. No. 642 of 1995 had preferred the appeal before the First Appellate Court

in A.S. No. 133 of 2000. The First Appellate Court heard the arguments on both sides in common and had come to the conclusion of dismissing

both the appeals without costs by confirming the judgment and decree passed by the trial Court, in both the suits.

Aggrieved by such finding of the First Appellate Court, the appellant in A.S. No. 132 of 2000 has preferred the Second Appeal No. 116 of

2005 and the aggrieved defendants/appellants in A.S. No. 133 of 2000 have preferred the Second Appeal No. 133 of 2005 before this Court.

On admitting both the appeals, this Court, on 4.2.2005, had framed the following substantial questions of law to be decided in these appeals.

(a). Whether the appellant had pleaded and proved adverse possession as required under Article 65 of the Limitation Act, 1963, whether the

Courts below are justified in law in rejecting the claim based on adverse possession?

(b). When Ex. A5 Sale deed can be looked into for collateral purposes, whether the Courts below are justified in law in rejecting the same in

contravention of Section 35 of the Stamp Act, 1899 read with Section 49 of the Registration Act, 1908?

Heard, Mrs. Mythili Suresh, learned counsel appearing for the appellants in both the appeals and Mr. A.G. Rajan, learned counsel for the

respondent in both the appeals.

The appellant in S.A. No. 116 of 2005 is the plaintiff in O.S. No. 650/1995and appellant in A.S. No. 132 of 2000. The appellants in S.A.

No. 117 of 2005 are the defendants in O.S. No. 642 of 1995 and the appellants in A.S. No. 133 of 2000. The respondent in both the appeals is

one and the same person who is the defendant in O.S. No. 650 of 1995 and the plaintiff in O.S. No. 642 of 1995.

It is appropriate that the ranks of parties in O.S. No. 650/1995 are being used for referring parties, since evidence was recorded in common in

that suit only.

The plaintiff in O.S. No. 650 of 1995 filed a suit in respect of the suit property located in S. No. 268/2B (former Survey number is 80/1) on

the basis of an unregistered sale deed dated 17.12.1975 for a consideration of Rs. 650/- in the name of his brother. It is also the case of the said

plaintiff in O.S. No. 650/1995 that after the date of such sale deed obtained from the defendant''s mother Meenakshi ammal, he had also clubbed

with other properties and partitioned them on 20.12.1975 and obtained the said property to his share and was in possession and enjoyment of the

said property for over a statutory period by keeping the property in his possession and enjoyment and however, the defendant in that suit had

attempted to disturb the possession and to encroach the said property and therefore, he prayed for permanent injunction. In support of the

plaintiff''s case in O.S. No. 650 of 1995, he has produced Ex. A5, an unregistered sale deed for a sum of Rs. 650/-. The said sale deed was

refused to be marked since it was not properly stamped and was not a registered document registerable u/s 17 of the Registration Act. Therefore,

necessary stamp duty and penalty were imposed and it was paid by the plaintiff and thereafter only, the said unregistered sale deed was admitted in

evidence, subject to the objection raised by the defendants. The submission of the learned counsel for the plaintiff was that even though the

unregistered sale deed Ex. A5 would not prove title in respect of the suit property, it can looked into to prove possession of the said property,

which is a collateral purpose. Further more, it was insisted by her that the plaintiff held the possession of the suit property along with the other

properties and dealt with the same in a partition dated 20.12.1975 in between the brothers of the plaintiff. She would further speak that the plaintiff

was continuously enjoying the suit property for over a statutory period and thus, prescribed title through adverse possession. She would also stress

that such possession of the suit property satisfied the provisions of Article 65 of the Limitation Act.

According to the submission of the learned counsel for the defendant/respondent, the sale deed in Ex. A5 was for a consideration of more than

Rs. 100/- and therefore, it is a compulsorily a registerable document and that cannot be admitted in evidence. He would also submit that the lower

Courts have correctly come to the conclusion that Ex. A5 was not a true and genuine document and the title to the suit property was not

established by the plaintiff through Ex. A5 and therefore, the judgment of the Court below need not be interfered in the second appeals.

However, learned counsel for the appellants/plaintiffs in O.S. No. 642 of 1995 would cite a judgment of the Honourable Apex Court reported

in Bondar Singh and Others Vs. Nihal Singh and Others, in support of her arguments. She also relied upon relevant portion as detailed herein in

support of her arguments.

...Under the law a sale deed in required to be property stamped and registered before it can convey title to the vendee. However, legal position is

clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes.

In the present case the collaterall purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least

shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized....

Yet another judgment of this Court reported in 2009(5) CTC 822 (P. Narayanan vs. Kasi) has been cited by the learned counsel for the

appellant. The relevant passage would run thus:

Therefore, it is very clear that even an unregistered document can be looked into by the trial court for collateral purpose if the party is willing to

pay the deficit stamp duty and the penalty.

Therefore, Ex. A5, even though not registered but was cured by the payment of stamp duty and penalty marked as Ex. A5 could be looked

into if it is a genuine document and proves any collateral purpose. The collateral purpose, as relied upon by the plaintiff in O.S. No. 650 of 1995

would be that the plaintiff was put in possession and enjoyment of the suit property from the said date i.e., 17.12.1975. For that, we have to

peruse the said document Ex. A5 as to its construction. On a cursory look of Ex. A5, we could see that the possession of the property sold under

Ex. A5 was handed over by the defendant''s mother Meenakshi ammal on that day itself.

It was contended by the learned counsel for the defendant that the truth and validity of the signature of Meenakshi ammal was questioned by

the defendant and therefore, the mere production of the said unregistered document will not in any way prove the case of the plaintiff and therefore,

it cannot be taken as a true document for the purpose of the finding regarding possession of the said property. Of course, the said document was

produced and was marked as Ex. A5. However, the signature of the defendant''s mother Meenakshi ammal found in Ex. A5 was not taken to any

handwriting expert for comparison with admitted signatures of the said Meenakshi ammal and to give his opinion to show that it was not belonging

to the mother of the defendant. One Velayutham Pillai was examined as P.W.2 to prove the execution of the said document. The First Appellate

Court as well as the trial Court have not believed the evidence of P.W.2 and found that the said unregistered document produced in Ex. A5 was

not a true document since the handwritings in Tamil during the year 1975 was not in such style of writing the letters '' is '' and '' iy '' But they were

written as '' is '' instead of '' ]s '' and similarly, '' ]y '' was written as '' iy '' and during such period, the Tamilnadu Government did not pass such an

order to use everywhere such modification of the letters but it was used in the year 1975 and therefore, it was found by the Court below that it

could not be a true document. However, the argument of the learned counsel for the appellant that the scribe was the follower of Thanthai Periyar

and therefore, he used such letters even prior to the Government''s order was not at all accepted by both the courts below. On verification of the

documents, I could see that the scribe had put at the beginning of writing the document, ""gps;isahh; RHp@ and he also used the letter ''$'' in writing

the words of the document. If really, he is following the writing revolution as per the Thanthai Periyar''s principle, he would not have put the letter

''$'' and instead, he would have used the letter ''r''. Of course, the said scribe Mr.K.Mohan was not examined on the side of the plaintiff. P.W.1

alone had given an explanation for the use of such revolutionary letters even in the year 1975. Whether it could be relied upon is a question. The

courts below had categorically come to the conclusion that Ex. A5 is not a true and genuine document. Whether this court can go and disturb the

factual decision reached by the said courts is also to be considered. For that, we have to see whether there was any bias or perverse on the part of

the Courts below in deciding that Ex. A5, was a fake document.

The plea of the plaintiff was that the unregistered sale deed was executed by the mother of the defendant and the same was agreed to be

registered along with the partition deed in Ex. A1 and it could not be registered thereafter and however, the partition deed was registered and in

the said partition deed, the property comprised in Ex. A5 was also included and partitioned in between the parties. If such plea was proved, then,

we could see some point on the side of the appellant to accept the contention that both the Courts have acted biasedly and perversely to decide

the issues. The description of the said property in Ex. A5 shows that the measurements as 19 1/2 feet on the north-south and 54 feet on the east-

west but the description as mentioned in the suit schedule would only depict different measurements namely 21 feet on the north-south and 84 feet

on the east-west with different boundaries. The same description as mentioned in the suit schedule in O.S. No. 650/1995 was mentioned only in

Ex. A1, the partition deed. Therefore, the case of the plaintiff that the property purchased under Ex. A5 was referred to in Ex. A1 and thereby the

truth and validity of Ex. A5 was recognised by including the property comprised in Ex. A5 in the partition deed Ex. A1, cannot be accepted.

Without such support from Ex. A1, when we approach Ex. A5, the reason for non-registration of such document was not explained by the plaintiff

even though the mother of the defendant Meenakshi ammal was alive for about 10 years from the date of Ex. A5. Therefore, I find that the Courts

below have come to the independent conclusion and there is no reason for interfering with the finding reached by them regarding Ex. A5. There

was no bias or perversity on the part of the First Appellate Court in agreeing with the decision reached by the trial court in respect of the character

of Ex. A5. Therefore, the finding of the First Appellate Court that Ex. A5 was not a true and genuine document cannot be interfered by this Court.

When the truth and genuineness of the unregistered document Ex. A5 is not accepted, the presumption as to the possession and enjoyment of the

property comprised therein cannot be taken note of as per the judgment of the Honourable Apex Court reported in Bondar Singh and Others Vs.

Nihal Singh and Others, as well as the judgment of this Court reported in 2009(5) CTC 822 (P. Narayanan vs. Kasi). Since the document in Ex.

A5 is not a true and genuine document, it cannot be looked into for collateral purpose regarding possession of the suit property in favour of the

plaintiff. Therefore, there cannot be any continuous possession held by the plaintiff in pursuance of Ex. A5. If Ex. A5 is found to be genuine

document, then only the principles laid down by the Honourable Apex Reported in Bondar Singh and Others Vs. Nihal Singh and Others, and this

Court reported in 2009(5) CTC 822 (P. Narayanan vs. Kasi) would come to the rescue of the plaintiff. In the said circumstances, the questions of

law framed in the appeals are liable to be decided against the appellants/plaintiffs.

For the foregoing discussions, I am of the considered opinion that the judgment of the First Appellate Court in confirming the judgment of the

trial Court is quite sound and reasonable and therefore, I am not inclined to interfere with the judgment and decree of the First Appellate Court.

In fine, the judgment and decree of the First Appellate Court are confirmed and the second Appeals deserve dismissal and accordingly, the

second appeals are dismissed. No costs.