Second Appeal filed against the judgment and decree dated 28-07-2003 made in A.S.No. 17 of 2003 on the file of the Principal District Judge, Tirunelveli, confirming the judgment and decree dated 02-03-2001 made in O.S.No. 724 of 1992 on the file of Additional District Munsif, Valliyoor.
2. The averments in the plaint are as follows:-
(i) The Suit property originally belonged to one Ponniah Pandaram. He executed settlement deed in favour of his son Ponnudurai on 14.11.1978, which was duly executed, validly attested and accepted. From 14.11.1978 onwards, he was in possession and enjoyment of the same by way of paying the kist for the same.
(ii) The plaintiff purchased the same from Ponnudurai on 18.02.1983 and from that date onwards, he has been in possession and enjoyment of the same. After purchase, the property has been sub-divided as Survey No. 1486/1D and patta also stands in the name of plaintiff. The defendants are utter strangers and they have no right, title and interest, whatsoever over the schedule property. On 20.12.1992, the first defendant attempted to disturb the peaceful possession and enjoyment by cutting the odai trees in the schedule property claiming that he purchased the property from second defendant. Due to the intervention of well-wishers, the first defendant dispersed away. The Second Defendant has no title or interest over the suit property so she could not convey any title for the first defendant. The plaintiff approached the police, who in turn advised him to move a Civil Court. Hence, he was constrained to file the Suit for declaration that the schedule property belongs to the plaintiff and for consequential injunction and prayed for a decree.
3. The gist and essence of written statement filed by second defendant and adopted by first defendant is as follows:-
(i) The said Ponniah Pandaram is only a name-lender and the property has been purchased in his name, since, he was the 'Karta' of the joint family and out of the family fund raised by his six daughters and his 1st son, viz., Perumal @ Selvaraj. At that time, the second son of the said Ponniah Pandaram, was only a minor. The Gift deed was not true and genuine. It was not accepted and acted upon. The Sale Deed dated 18.02.1983 has been executed for consideration of Rs.3,000/- viz., Rs.500/- less than that of the Gift Deed. This will clearly speak of the fact that the alleged sale deed in favour of the Plaintiff is void abinitio and as per law, it could never be acted upon. The plaintiff had never been in possession and enjoyment of the same. The plaintiff has created all those documents by exercising his influence with the Revenue Officials, since the plaintiff is a surveyor himself.
(ii) Pooniah Pandaram died intestate leaving behind one Perumal @ Selvaraj and Ponnudurai as his male issues and therefore, they were entitled to undivided 1/2 share in the schedule property. After partition, the western half of the schedule property was allotted to the share of the said Perumal @ Selvaraj. He died intestate in the year 1976 leaving his wife and his daughter as his legal heirs. The first defendant is the lawful purchaser of the western half of the schedule property and he is in possession and enjoyment of the same since the date of execution of the sale deed in his favour. The sale deed in favour of the first defendant is valid. The first defendant is in possession and enjoyment of the western half viz., 45 cents out of the total extent of 90 cents, ever since the date of execution of the sale deed in his favour. Prior to him, second defendant was in possession and enjoyment of the same. In fact, the cemetaries of Ponniah Pandaram, Annathai, Perumal @ Selvaraj and Nallamuthu, the first wife of Ponniah Pandaram, are available only in the western half of the suit property. The plaintiff is having absolutely no connection whatsoever with the cemeteries available in the western half of the suit property. There is no cause of action for the Suit and hence, she prayed for dismissal of the Suit.
4. Gist and essence of reply statement filed by the plaintiff is as follows:-
(i) Ponniah Pandaram was the absolute owner of the property and neither his sons nor daughters ever contributed for the purchase of the property. There was no joint family in existence with Ponniah Pandaram and his sons and daughters, so it is false to say that the suit property was purchased out of the joint family funds consisting of his daughters and sons.
(ii) Roselin, one of the daughters of late Ponniah Pandaram filed a suit for partition and separate possession in O.S.No. 356 of 1982 on the file of the Additional Sub-Judge, Tirunelveli, claiming 1/6th share in the suit property and other properties. The second defendant in O.S.No. 724 of 1992 is the third defendant in O.S.No. 356 of 1982, whereas, the plaintiff is the sixth defendant in that suit. Two issues were raised in respect of the suit property. After full fledged trial, the Suit was dismissed on 30.07.1984 by the Subordinate Judge, Tirunelveli, holding that Ponniah Pandaram was the absolute owner of the plaint schedule property and that he had gifted the property to his son Ponnudurai as per the registered Gift deed dated 14.11.1978. The said Ponnudurai in turn had sold the property to the plaintiff. The said Roselin filed A.S.No. 98 of 1985 on the file of II Additional District Judge, Tirunelveli, against the judgment and decree in O.S.No. 356 of 1982, which was also dismissed, confirming the judgment and decree in O.S.No. 356 of 1982, so, it became final.
(iii) It is significant to note that the first defendant or any other party to the suit in O.S.No. 356 of 1982 ever took a plea that late Ponniah Pandaram was only a name-lender and that the property was purchased out of joint family funds. On the other hand, it was the definite case that the plaint schedule property exclusively belonged to late Ponniah Pandaram, so the claim of the defendants over the Suit property is hit by constructive estoppel. The sale deed executed by Ponnudurai in favour of the plaintiff on 18.02.1983 for Rs.3,000/- is valid and binding on the defendants. The price could be the market price existing at the time of sale. Since, there was no trees in the property, the land was sold for Rs.3000/-. In any case, the defendants have no right to question the sale in favour of the plaintiff. Further, in O.S.No. 356 of 1982, it was already decided that the plaintiff is the owner of the plaint schedule property. The Sub-Division proceedings and the issue of patta in favour of the plaintiff are valid and binding on the defendants. The earth collections in a few places at the time of commission inspection were make believe things and they won't confer any title or interest in the plaint schedule property. Hence, he prayed for the decree as prayed for in the plaint.
(iv) The learned Additional District Munsif, Valliyoor, after considering the averments both in the plaint and written statement had framed three issues and one additional issue and after considering the oral evidence of PWs 1 and 2 and Dws 1 to 4 and exhibits marked as Exs. A1 to A25, B1 to B8 and C1 and C2, has decreed the Suit, without costs, as prayed for, holding that the Suit is not hit by resjudicata and that the plaintiff is in possession and enjoyment of the same. Against that the defendants preferred an Appeal in A.S.No. 17 of 2003 on the file of Principal District Judge, Tirunelveli, the learned first Appellate Judge after hearing the arguments of both sides had framed six points for consideration and ultimately dismissed the Appeal, concurring with the finding of the trial Court that the plaintiff is the owner of the Suit property and Suit is not barred by principle of resjudicata and that the plaintiff is in possession of the suit property. Against which, the defendants have come forward with this Second Appeal.
5. The Second Appeal was admitted on 07.02.2004 on the following substantial questions of law:
1.Whether the Courts below are justified in not deciding the issue independently without influence of the finding in earlier Suit in O.S.No. 356 of 1982 ?
2.Whether the Courts below are justified in deciding the principle of resjudicata in the absence of pleadings and evidence ?
3.Whether the Courts below are right in upholding the settlement deed dated 14.11.1978 when the settlor died on 09.11.1978 itself and whether the settlement deed was proved as per Evidence Act ?
6. The respondent as a plaintiff filed a suit for declaration of title and consequential permanent injunction stating that the suit property originally belonged to one Ponniah Pandaram. He executed the Settlement Deed in favour of his son Ponnudurai and that Settlement Deed has been validly accepted and acted upon. The plaintiff purchased the same from Ponnudurai under a registered Sale Deed dated 18.02.1983. The first defendant is alleged to have purchased the property from the second defendant . Denying second defendant's title and since, first defendant attempted to interfere with his peaceful possession and enjoyment, the plaintiffcame forward with the Suit praying for declaration and permanent injunction.
7. The defendants/appellants opposed the Suit stating that the first defendant is the owner of the property and that he purchased the property from second defendant. The trial Court after considering the oral and documentary evidence in previous Suit in O.S.No. 356 of 1982 on the file of Sub-Court, Tirunelveli, wherein, it was decided that Ex.A2-Settlement Deed and Ex.A3-Sale Deed are true and valid, held that the respondent/plaintiff is owner of the property and that he is in legal possession and decreed the Suit.
8. Against that, the defendants have come forward with the Appeal. The first Appellate Judge also considered the arguments of both counsel and concurred with the finding of the trial Court and confirmed the decree and judgment of trial Court. Aggrieved against that the present Appeal has been preferred by the defendants.
9. The learned counsel for the appellants/defendants would contend that the respondent herein alleged to have purchased the property under Ex.A3 on 18.02.1983 from one Ponnudurai, basing his title on Ex.A2-Settlement Deed dated 14.11.1978, but the fact remains that the original owner Ponniah Pandaram has died on 09.11.1978, whereas the settlement deed is dated 14.11.1978 and therefore, Ex.A2 is not true and genuine and it was not executed by Ponniah Pandaram. Hence, the plaintiff/respondent has no title over the property. The learned counsel further urged that the documents filed by the plaintiff/respondent are only xerox copies. It is not admissible in evidence. The learned counsel for the appellants would further submit that the trial Court and first Appellate Court, relying on the previous proceedings between the same parties in O.S.No. 356 of 1982 on the file of Sub-Court, Tirunelveli, had come to the conclusion, which is against law.
10. The learned counsel further contended that the suit properties originally belonged to Ponniah Pandaram and he is having a son, by name, Ponnudurai, who is alleged to be the vendor of the respondent herein. Ponniah Pandaram had another son, by name, Perumal and his wife's name is Annakili/second defendant and from her the first appellant herein has purchased the property and he is having 1/2 share in the property, which the trial Court and first Appellate Court have failed to consider. Hence, the learned counsel appellants prayed for allowing the Appeal and dismissal of the Suit and setting aside the judgment and decree passed by the trial Court and first Appellate Court.
11. The learned counsel for the respondent/plaintiff would contend that originally the suit property belonged to one Ponniah Pandaram. He executed the Ex.A2-Settlement Deed in favour of his son Ponnudurai, which was duly accepted and acted upon. From Ponnudurai, the respondent herein had purchased the property. The learned counsel further urged before filing of the Suit, one Roselin has filed a Suit in O.S.No. 356 of 1982 on the file of Sub-Court, Tirunelveli, claiming partition in the property. All the parties to the Suit in O.S.No.724 of 1992 are parties to the previous Suit in O.S.No. 356 of 1982. In that Suit, Ex.A2-Settlement Deed and Ex.A3-Sale Deed have been specifically dealt with by Sub-Court, Tirunelveli and ultimately, it has come to the correct conclusion that Ex.A2-Settlement Deed is true, valid, accepted and acted upon and so, Ponnudurai is having title over the property. Since, Ponnudurai sold the property to respondent herein, he has derived title over the property and his possession over the property is legal, so the trial Court considered the aspect in proper manner.
12. The learned counsel for the appellants would contend that photocopies have been marked, but the above argument does not hold good, because here, certified copies of the documents filed in O.S.No. 356 of 1982 have been obtained and filed and registration copy alone has been marked. So the argument advanced by the learned counsel for appellants does not merit acceptance. Moreover, the learned counsel for respondent has relied upon the decision reported in 2004-1-LW-728, R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple. But the above citation is not relevant because here the documents marked viz., Ex.A1 is registration copy, Exs.A2 to A17 are certified copies, which were filed in the previous suit in O.S.No. 356 of 1982 and Exs.A18 and 21 are true copies of the notice sent to the Tahsildar and Deputy Collector, so there is no xerox copies have been filed before the Court.
13. The learned counsel for respondent further contended that now the appellants have relied upon Ex.B2-Death Certificate. In the Death Certificate, the date of death of Ponniah Pandaram was mentioned as 09.11.1978, but the date of registration of Ex.A2-Settlement Deed is dated 14.11.1978, but that has not been mentioned in the previous proceeding in O.S.No. 356/1982 and the document Ex.B2-Death Certificate has been concocted for the purpose of this case and hence, trial Court and first Appellate Court has correctly held that Ex.B2-Death Certificate is not true and genuine one.
14. After the disposal of the Suit in O.S.No. 356/1982 only Annakili/second defendant has sold the property to the first defendant/first appellant. The first defendant/first appellant has purchased litigation and attempted to interfere with the possession of respondent/plaintiff and hence, the trial Court and first Appellate Court has considered all the aspects in proper perspective and come to the correct conclusion. Therefore, there is no illegality or infirmity in the judgment passed by the trial Court and first Appellate Court and hence, he prayed for dismissal of this Appeal.
15. Substantial Question No.3: The admitted facts of the case is that the Suit property and other properties , which are the subject matter of Suit in O.S.No. 356 of 1982, originally belonged to one Ponniah Pandarum. He is having two sons, one is Ponnudurai and another is Perumal @ Selvaraj. During the life time of Ponniah Pandarum, he has executed Ex.A2-Settlement Deed in favour of his son Ponnudurai on 14.11.1978, who inturn had sold the property to the respondent/plaintiff. The date of death of Ponniah Pandarum has been disputed by the defendants/appellants and they filed Ex.B2-Death Certificate stating that the death of Ponniah Pandarum is 09.11.1978, whereas the alleged Ex.A2- Settlement Deed came into existence on 14.11.1978, so Ex.A2-Settlement Deed is not true and genuine one and it is not executed by the deceased Ponniah Pandarum.
16. But the learned counsel for the respondent herein has vehemently submitted that this document has been marked as Ex.B19 in O.S.No. 356 of 1982 and that has been upheld in the Suit upto High Court and it became final. During the pendency of the Suit, the second appellant herein/second defendant as third defendant in O.S.No. 356 of 1982 has not made any plea that Ex.A2-Settlement Deed has been concocted after the death of deceased Ponniah Pandarum.
17. It is also urged that Ex.B2-Death Certificate has been fabricated and concocted for the purpose of this case, that too, after filing of this case. While considering the arguments of both counsel and perusal of Exs. A13, A14, A15, A16 and Ex.B2, particularly Ex.B2, wherein, it was stated that death of Ponniah Pandarum is 09.11.1978, but date of registration is mentioned as 31.03.1998, which has clearly proved that the document Ex.B2 has been created, fabricated and concocted for the purpose of the case to defeat the legal claim of the respondent herein and therefore, no reliance can be placed on Ex.B2-Death Certificate.
18. It is also pertinent to note that one Roselin filed a Suit against the present plaintiff and second defendant and others claiming share in three items of property. Present suit property mentioned as first item of second schedule property, in that second defendant Annakili has been set exparte, she has not contested the same. In this Suit, it was elaborately discussed and decided that the settlement deed dated 14.11.1978 marked here as Ex.A2, which was marked as Ex.B19 in the previous Suit in O.S.No. 356 of 1982 has been held as true and genuine document in Paragraph 15 and in that, it was also held that Ex.A3-sale deed in favour of the plaintiff/respondent, which was marked as Ex.B14, show in that no one has whispered that before Ex.A2-Settlement Deed came into existence Ponniah Pandarum died and that Ex.B2 is fabricated or forged document. Hence, I am of opinion that Ex.A2-Settlement Deed is true and genuine document, but Ex.B2-Death Certificate has been concocted for the purpose of the case after filing of the present Suit in O.S.No. 724 of 1992. Hence,the third substantial question of law is answered accordingly. Hence, I am of the opinion that Ex.B2 has been concocted for the purpose of the case, whereas, Ex.A2-Settlement Deed is true and genuine document and hence, it can be safely concluded that the Settlement Deed was executed during the life-time of Ponniah Pandarum.
19. Substantial Questions of Law 1 and 2:-
Even though the Substantial Questions of Law have been raised in the previous suit in O.S.No. 356 of 1982, it has caused confusion on the mind of this Court below and decided the fact and second issue is in respect of resjudicata. While considering the plaint, it was stated that the plaintiff has not raised the plea of resjudicata. But at the time of letting in evidence and marking of documents, the trial Court has framed additional issue, as to, whether the suit is bad for resjudicata regarding the schedule of property. The plea of resjudicata makes question of fact and law.
20. Section 11 of Code of Civil Procedure reads as under:
"11. Res judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
21. Even though, it was neither pleaded by plaintiff/respondent nor by the defendants/appellants on letting in evidence and marking of documents, the trial Court has framed additional issue and that has been decided by the first appellate court also, because while perusing the document, the court has clearly observed the present parties to the proceedings are party to the previous suit. The suit property is a subject matter. The documents relied upon by the respondent herein (Exs.A2 and A3) have been discussed in the previous suit stating that this respondent as 6th defendant in the previous suit is claiming title in respect of first item of second schedule of property that has been decided in his favour. In the above said circumstances, even if the Court comes to the conclusion that without pleading that principle of resjudicata has not been decided, even then the case of the respondent cannot be thrown out. The respondent has filed Ex.A1-sale deed in favour of Ponniah Pandarum. He purchased the same on 23.02.1955 and he executed the settlement deed in favour of his son Ponniah Pandarum under Ex.A2 on 14.11.1978. In turn Ponnudurai executed the sale deed in favour of this respondent under Ex.A3 on 18.02.1983 and from that date onwards, he is in possession and enjoyment by changing patta in his name. The Chitta has been marked as Exs.A4, A5 and A6. Kist Receipts have been marked as Exs.A7 to A12 and A20. Since, the patta has been changed, he has issued notice to Tahsildar under Exs.A18 and A21. The acknowledgment card has been marked as Exs.A19 and A.22. A.23 is the return cover addressed to Village Administrative Officer, which clearly proves that the respondent is the owner of the property and he is in possession of the property and his possession is legal.
22. Per contra, the second appellant herein has executed Ex.B3-Sale Deed dated 23.07.1989 after she lost her case in O.S.No.356 of 1982, in favour of first appellant. The 1st appellant herein after knowing that second defendant/second appellant has no right over the property, he purchased the litigation and attempted to interfere with the possession of the respondent. The appellants filed Ex.B5-Licence Form-N for Blasting Operation and Ex.B6- Chitta and Ex.B7-Adangal for Fasli 1406 and 1409 and Ex.B8-Patta. It is also pertinent to note that in this case, Commissioner has been appointed and he inspected the property and filed his report in Exs.C1 and C2. In his report, the Commissioner has stated that there was four cemeteries in the South West corner. In Paragrah 5 of the report the Commissioner has mentioned that all cemeteries were newly white washed and plastered with sand. The extract of Paragraph 5 of Commissioner's report is as follows:
"5) jhth ,lj;jpy; bjw;F gf;fk; bjd;nkw;F K:iyapy; fpHnkyhf 30 moapy; bjd;tlyhf 20 moa[k; c;ss K:iyapy; 4 rkhjpfs; cs;sd/ mitfspy; 3 fpHnkyhft[k; 1 bjd;tlyhft[k; cs;sJ/ io rkhjpfs; kz;zhy; bkGfg;gl;Lfs;sJ/ g[jpjhf bts;isaof;fg;gl;Ls;sJ/ bts;is moj;j kl;ila[k; mUfpy; fplf;fpwJ/ " A reading of the above would clearly prove that as soon as the Suit has been filed, he filed an application for appointment of Commissioner and before Commissioner made an inspection, he created evidence by way of putting up a new cemetery by sand plastering and white washed the same.
23. In the above said circumstances, it has been clearly proved that the appellants herein have created the evidence to show as if they were in possession and enjoyment of the suit property. The trial court and first appellate court has come to the conclusion that the respondent herein is the owner of the property as per Ex.A3-Sale Deed dated 18.02.1983 and he is in possession and enjoyment. Alleging that the first appellant purchased the property from second appellant, the first appellant attempted to interfere with the possession of respondent and so the respondent herein/plaintiff is entitled to declaration of title to the suit property and injunction. In the above said circumstances, there is no perversity or illegality in the finding of the trial court and first appellate Court.
24. Admittedly, first Appellate Court is last fact finding Court. As per Section 100 of CPC unless there is no perversity in the finding of the first Appellate Court/last fact finding Court, the High Court has no power to interfere with the finding by way of re-appreciation of evidence let in before the Court. As already discussed, there is no perversity or non considering of any material documents by the trial Court or the first Appellate Court, so I am inclined to concur with the finding of the trial Court and first Appellate Court. I do not find any infirmity or illegality in the decree and judgment of trial Court and first Appellate Court, so the same are liable to be confirmed and hence, the second appeal is liable to be dismissed.
25. In fine, the Second Appeal is dismissed. The judgment and decree of the trial Court and the first Appellate Court are confirmed. No costs.
paa To
1. The Principal District Judge, Tirunelveli.
2. The Additional District Munsif, Valliyur.