Ramathilagam vs Nambi Naidu

G. Chockalingam, J.—Challenge in this second appeal is to the judgment and decree, dated 22.02.2005 passed in A.S. No.238 of 2004 by the II Additional Subordinate Judge, Tirunelveli, confirming the judgment and decree passed in O.S. No.782 of 1996 on the file of the District Munsif-cum-Judicial Magistrate, Nanguneri, dated 03.12.2004.

M.P. No.1 of 2011 has been filed by the appellants under Order 41 Rule 27 of CPC., to receive additional documents on the side of the appellants/D.2 to D.6

The respondents herein as plaintiffs 2 and 3 has instituted Original Suit No.782 of 1996 on the file of the trial Court praying for the relief of declaration and permanent injunction, wherein the present appellants have been shown as defendant 2 to 6.

It is averred in the plaint that the 1st plaintiff was in absolute possession and enjoyment of the suit properties. The 6th item of the suit property was obtained by the 1st plaintiff through a sale deed, after the life time of his step-mother Mookkammal. The 1st plaintiff is the only son of Nambi Naidu. The suit properties consist of Nanja and Punja lands with electric motor pump set, houses and shops. The 1st plaintiff alone is paying kist to the Punja lands belongs to Sri Vanaumamalai Jeer Mutt, Nanguneri. Patta to the suit properties stand in the name of the 1st plaintiff and his sons alone. The 1st plaintiff is paying electric charges to the electric motor in the lands and the service connection Number is 38. The 1st defendant is the brother of the 1st plaintiff''s wife. Forty years back, the 1st plaintiff was in a difficult financial crisis and therefore, in order to manage the same and save his properties, the 1st plaintiff had created a sham and nominal sale deed, dated 07.09.1952 in favour of the father of his wife, by name Ganapathy Naidu. At the time of execution of the sale deed, the 1st plaintiff''s father was in Ceylon and he did not return to India till his death. The 1st plaintiff''s father-in-law Ganapathy died in Ceylon in the year 1957 leaving the 1st defendant and his 4 sisters, including the wife of the 1st plaintiff as his heirs. Thereafter, the 1st plaintiff got back the original sale deed from the Registrars'' Office, but he apprehended that the 1st defendant might have taken the same. The defendants 2 and 3 were minors at the time of execution of the sale. Due to some misunderstanding arose between the 1st plaintiff and the 1st defendant, the 1st defendant initiated false proceedings before the Tahsildar for issue of patta. After enquiry, the Tahsildar, gave a clear finding on 13.03.1985 that the 1st plaintiff alone is in absolute possession and enjoyment of the properties for more than 35 years. During July 1987, the 1st defendant threatened the plaintiffs that he will interfere with the possession of the suit property. Hence, the plaintiffs filed the suit for the relief stated above.

In the written statement filed on the side of the defendants, it is averred as follows:-

The suit filed by the plaintiffs is not maintainable. The sale executed on 07.09.1952 was the original sale and on that basis, the 1st defendant had taken possession of the suit property. The 1st defendant is the only son of Ganapathy Naidu. After the death of the said Ganapathy Naidu, patta in respect of the suit property stands transferred in the name of the 1st defendant. The 1st plaintiff for himself and being the guardian of the plaintiffs 2 and 3 executed a sale deed on 07.09.1952 in favour of the father of the 1st defendant. Therefore, the said sale deed executed by the 1st plaintiff is a valid one, since, the plaintiffs 2 and 3 have become majority. The 1st defendant during September 1959 installed 5 HP electric motor in the suit property and patta in respect of the nanja lands also stands in the name of the defendants. On 15.04.1958, a lease agreement was entered into between the 1st defendant and one Subbiah Konar in respect of suit 1 and 2nd items. The 1st plaintiff has also handed over the entire accounts to the 1st defendant. The 1st plaintiff has handed two sale deeds, dated 01.05.1915 and 29.08.1945, prior to the sale deed, dated 07.09.1952. Due to some misunderstanding between the plaintiffs and the 1st defendant, the defendants cancelled the agency of the plaintiffs. Hence, prays for the dismissal of the suit.

The trial court after considering the rival evidence adduced on either side has decreed the suit as prayed for. Against the judgment and decree passed by the trial court, the defendants as appellants have preferred the A.S. No.238 of 2004 on the file of the first appellate court. The first appellate court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the judgment and decree passed by the trial court in O.S. No.782 of 1996. Against the judgment and decree of the courts below, this second appeal has been preferred at the instance of the defendants as appellants.

At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration:-

Whether the findings of the courts below are vitiated by its failure to consider the possession and enjoyment of the suit property by the appellants under Ex.B2 to B9 and B24 on the basis of Ex.B1 corroborating the evidence of DW1?

Whether the courts below is right in granting the relief of injunction without seeking the relief that the sale deed under Ex.B1 is sham and nominal and without seeking to substantiate the same within the period of limitation as provided for under Article 60 of the Limitation Act?

Whether the courts below is right in casting the burden of proof that the transaction under Ex.B1 as true and valid and the appellants as defendants in the suit, especially when the respondent as plaintiff failed to discharge the burden?

The learned counsel for the appellants/L.Rs. of the 1st defendant argued that both the courts below were erred in coming to the conclusion that the plaintiffs are in possession and enjoyment of the property and they are entitled for declaration and possession of the suit property and both the courts below, without appropriating the specific contention raised by the plaintiffs, challenging the validity of the Sale Deed Ex.B1, dated 07.05.1952 and erroneously decreed the suit in favour of the plaintiffs and the courts below completely overlooked on the allegation in the plaint that the relief sought for cannot be granted, without seeking to set aside the sale under Ex.B1. The courts below were erred in assuming the Sale Deed Ex.B1 is a sham and nominal in the absence of any positive and acceptable evidence, especially when due execution of Ex.B1 is not in dispute. The courts below were not properly appreciated Exs.B1 and B2 documents and come to the wrong conclusion that the plaintiffs are entitled to the suit property and they are in possession and enjoyment of the suit property and granted decree without any reason. The courts below were not looked into the evidence of DW1 and therefore, the concurrent findings of the courts below are liable to be set aside and the second appeal has to be allowed.

Per contra, on the side of the respondents it is argued that both the courts below, after considering the oral and documentary evidences available on record, have come to the correct conclusion, which cannot be assailed and does not require any interference in this second appeal, since the question of law that the plaintiffs are entitled to the suit property is only the question of fact and the question of fact decided by the courts below cannot be interfered with in the second appeal and therefore, the second appeal has to be dismissed in to.

Point for consideration in M.P.(MD)No.1 of 2011:

Whether the documents produced by the appellants have to be received in the second appeal stage.?

The petitioners, in the appellate stage, have produced four documents on the side of the appellants. The documents produced are the certified copies obtained from Taluk Office. The said documents are the public documents and the genuinity of the said documents cannot be questioned by the other side. Even though the documents were of the year 1976, the appellants have obtained copies recently and sufficient reasons are shown by the appellants for getting the copies belatedly. Hence, the above documents can be received as additional documents and they are marked as Exs.B.39 to B.42 in the second appeal. The documents Nos.1 to 3 are the public documents and the fourth document is the letter written by the Deputy Tahsildar to the present petitioner.

In this case, it is admitted by both parties that the present second appeal was filed by the LRs of the first defendant and the respondents are the legal heirs of the deceased plaintiff. It is also an admitted fact that the property in question is belonged to the first plaintiff and he executed a sale deed in favour of Ganapathy Naidu on 07.09.1952.

According to the respondents, it is not supported by any consideration and it is only a sham and nominal one. The Said Ganapathy Naidu was not enjoying the suit property and even though, the sale deed executed in favour of Ganapathy Naidu, the first plaintiff is in possession and enjoyment of the suit property and in order to prove his continuous possession some valid documents viz., Tax receipt, Town Panchyat notice, Patta, Electricity consumption charges and Adangal Extract etc., were produced and hence, even though sale deed was executed in favour of Ganapathy Naidu, the plaintiffs are in continuous possession and enjoyment of the suit property, which is clearly proved by documentary evidence. But it is contended on the side of the appellants that the sale deed executed in favour of Ganapathy Naidu came into fore and as Agent of Ganapathy Naidu, the plaintiffs were enjoying the suit property and rendering accounts of Ganapathy Naidu and subsequently, after the death of Ganapathy Naidu, rendering the accounts to the defendants. But to prove the same, no documents have been produced on the side of the appellants and further, no acceptable document has been produced to prove that the possession was handed over to Ganapathy Naidu by the first plaintiff.

D.W.1 in his deposition has stated that gpuhJ jgrpy; brhj;Jf;fs; Mjpapy; 1tJ thjpf;F capy; K:yk; ghj;jpag;gl;L ,Ue;jJ/ nkw;go 1tJ thjp gpuhJ jgrpy; brhj;ij vdJ jhj;jhthd fzgjp eha[Lf;F 7.9.1952 y; fpiuak; vGjpf; bfhLj;Js;shh;"

It is admitted by both sides and on verification of plaint, that the plaintiffs, firstly, have filed a suit before the District Munsif Court, Tirunelvei, on 17.08.1987 and it was numbered as O.S. No.1028 of 1987. Subsequently, the said suit was transferred on the administrative grounds and it was renumbered as O.S. No. 516 of 1988 by the learned District Munsif, Vallioor, and the learned District Munsif, Vallioor, after hearing both parties on the question of court fee and jurisdiction, returned the plaint on 06.09.1991 with a direction to amend the plaint and to re-present before the proper court within two months. The plaintiffs have re-presented the plaint along with necessary court fee before the Sub Court, Tirunelveli, on 30.10.1991 and the learned Sub Judge, Tirunelveli, has taken the case on file as O.S. No.322 of 1991. Subsequently, on administrative grounds, it was transferred to District Court, Vallioor and numbered as O.S. No.207 of 1996 and finally it was taken on file by the learned District Munsif-cum-Judicial Magistrate, Nanguneri, as O.S. No.782 of 1996. As per the judgment passed in O.S. No.516 of 1988 by the learned District Munsif, Vallioor, the plaint was returned on 06.09.1991 and within two months time as granted by the learned District Munsif, Vallioor, the plaint was represented before the Sub Court, Tirunelveli, on 30.10.1991. So the grounds raised in the second appeal on the side of the appellants that after the disposal of O.S. No.516 of 1988, the present suit viz., O.S.No.782 of 1996 filed by the plaintiffs is barred under Order 2, Rule 2 CPC, is not at all sustainable, because this suit is in continuance of O.S. No.516 of 1988. So the argument of the learned counsel for the respondents is liable to be rejected.

In the present case, even though Ex.A.1-Sale Deed was executed by the first plaintiff in favour of late Ganapathy Naidy, this Court, after analysing the evidence on record, held that possession was not handed over to Ganapathy Naidu by the first plaintiff. Further, the documents produced at the stage of the appeal i.e., Exs.B.39 to B.42 reveal that during the year 1976 itself, patta was transferred and in Ex.B.2 document the name of first defendant was removed and the first plaintiff''s name was inserted on 17.05.1976 itself. So, from the year 1976 on-wards, the present plaintiffs are in possession of the suit property which is proved by the documents Exs.B.40 and B.42.

So as per the documents Exs.B.40 and B.42, patta was transferred in the name of first plaintiff during the year 1976. So the argument of the learned counsel for the respondents/plaintiffs 2 and 3 that even though the sale deed was executed in favour of Ganapathy Naidu, the plaintiffs are in possession of the suit property which is clearly proved by the above documents, is acceptable.

Further, it is very clear from the records that the present suit is filed for declaration and injunction by the plaintiffs against the defendants on the allegation that the sale deed executed by the first plaintiff in favour of Ganapathy Naidu is sham and nominal and the plaintiffs are in continuance possession of the suit property. In the said circumstances, no separate prayer is necessary to declare that the document executed by the first plaintiff in favour of Ganapathy Naidu is sham and nominal. Hence, the arguments of the learned counsel for the appellants/defendants that the suit is not maintainable, since there is no separate prayer for declaration and that the document executed by the first plaintiff in favour of Ganapathy Naidu sham and nominal is not at all sustainable.

The plaintiffs filed the suit against the defendants for declaration and injunction regarding the suit property in the year 1987 i.e., on 17.08.1987 as O.S. No.1028 of 1987. Even after the filing of the suit, admittedly, the plaintiffs are in possession of the property and the defendants have not chosen to file a suit for recovery of possession from the plaintiffs herein. Even till today from 1987 onwards, the suit is pending and the plaintiffs are in possession and enjoyment of the suit properties mentioned in the sale deed executed in favour of Ganapathy Naidu. So the argument of the learned counsel for the respondents/plaintiffs that since Ex.B. 1 sale deed is sham and nominal one, the defendants have not taken any steps to recover the suit property cannot be rejected.

The learned counsel appearing for the respondents has relied upon a judgement of this court reported in 2000 (IV) CTC 513 in the case of Tmt. Nallammal v. Dhanshkodi, in support of his contention, wherein it has been held that:-

"Civil Procedure Code, 1908, Section 100-Lower appellate Court''s finding of fact should not be interfered with in second appeal so long as there is some material for arriving at suit finding by lower appellate court.

"10.The lower appellate Court, as the final court of fact, has come to a proper conclusion with regard to the non-genuineness of the agreement, Ex.A2. As has been pointed out in the Supreme Court decision Taherakhatoon v. Salambin Mohammed, AIR 1999 SC 1104 that as long as there was some material for the rejection of the document, the Second Appellate Court ought not to interfere with the above said finding of fact reached by the lower Appellate Court."

From the above decision, it is made clear when there is a concurrent findings of the lower court and first appellate court, in the second appeal the High court should not interfere with the findings on question of fact.

In this case, the learned counsel appearing for the respondents argued that the trial court and the first appellate court found that the plaintiffs are in possession and enjoyment of the suit property. Hence, both the courts below, after analysing oral and documentary evidence available on record, have correctly come to the conclusion that since the plaintiffs are in possession and enjoyment of the property, they are entitled for the relief as prayed for and the same need not be interfered with in this second appeal.

The Principle of law laid down by this Court in the decision cited supra is squarely applicable to the facts of the present case. Hence, this court is of the considered view that there is no illegality or infirmity in the judgment of the Courts below and there is no reason to interfere with the concurrent findings of the courts below and therefore, the second appeal is liable to be dismissed.

Accordingly, the substantial questions of law are answered.

In the result, the second appeal is dismissed and the concurrent findings of the courts below are confirmed. M.P.(MD)No. 1 of 2011 is ordered. Considering the facts and circumstances of the case, both parties are directed to bear their own costs.