The above Second Appeal arises against the judgment and decree in A.S.No.75 of 1993 on the file of Learned Subordinate Judge, Ariyalur against the Judgment and Decree in O.S.No.273 of 1991 on the file of the Learned District Munsif, Ariyalur.
2. The defendant in the suit is the appellant in the above second appeal. The respondent herein is the plaintiff in the suit.
3. The plaintiff filed the suit in O.S.No.273 of 1991 on the file of the Learned District Munsif, Ariyalur for declaration and injunction.
4. The brief case of the plaintiff is as follows:-
(i) According to the plaintiff, the 4 items of suit properties belongs to him absolutely. The Patta Nos.403 and 374 pertaining to the suit properties stands in the name of the plaintiff. Originally, item 1 and 2 of the suit property belonged to one Palaniyammal W/o Swamynatha Moopanar. On 19.5.1962, the said Palaniyammal sold item 1 and 2 of the suit properties to one Muthusamy Moopanar. The said Muthusamy Moopanar, his brother's son Kathirvel Moopanar and his brother Karuppaiah Moopanar sold item 1 and 2 measuring an extent of 21 cents in S.F. 191/3 and 25 cents in S.F. 191/5 to the plaintiff on 13.5.1970. The plaintiff is in possession and enjoyment of the properties from the date of purchase.
(ii) Item 3 and 4 of the suit properties originally belonged to Vadivel Moopanar. On 8.8.1932, the said Vadivel Moopanar mortgaged the properties with one Paramasiva Moopanar for a sum of Rs.22/-. Since, the said Vadivel Moopanar could not discharge the mortgaged debt, he orally sold items 3 and 4 of the suit properties to the father of the plaintiff namely Kandasamy Moopanar for a sum of Rs.50/-. The said Kandasamy Moopanar died in the year 1960. The plaintiff is the only son of the said Kandasamy Moopanar. The plaintiff and his father were in possession and enjoyment of the item 3 and 4 of the suit properties from January 1936. The plaintiff's father discharged the mortgaged debt with Paramasiva Moopanar and paid the balancaae sale consideration to Vadivel Moopanar on 30.1.1936. An endorsement of discharge of the mortgage debt was made in the mortgage deed dated 8.8.1932.
(iii) The defendant have no right over the suit properties. The defendant's purchase under sale deed dated 26.4.1991 and 4.9.91 are not valid. The documents are fictitious documents. The vendor of the defendant have no right over the suit properties. The plaintiff issued notice on 18.9.1991 and the defendant sent reply on 23.9.1991, denying the title and enjoyment of the suit properties. The plaintiff also pleaded adverse possession and prescription. Therefore, the plaintiff filed a suit.
5. The brief case of the defendant is as follows:
(i) According to the defendant, the plaintiff was in possession of suit item 1 and 2 till 1.9.1980. In the year 1980, there was an oral exchange between the plaintiff and Dhanavel whereby, the said Dhanavel gave suit item 3 and 4 to the plaintiff in exchange to item 1 and 2 of the suit properties which were given by the plaintiff to Dhanavel. The possession followed in favour of the parties as part of the exchange. The above exchange was resorted by both for the convenient enjoyment of both parties as S.F. 191/1 and 191/7 were owned by the plaintiff and as these items are contiguous ones for suit items 3 and 4 and suit items 1 and 2 are also contiguous ones.
(ii) According to the defendant, oral exchange is amply proved by the Registered Sale deed dated 21.5.1975 executed by the one Ayyammal in favour of Dhanavel Moopanar in respect of item 3 and 4 of the suit properties. The plaintiff's father Kandasamy Moopanar did not purchase the suit items 3 and 4 orally from Vadivel Moopanar. The adverse possession pleaded by the plaintiff in respect of the suit properties is not sustainable.
(iii) Pursuant to the oral exchange, patta was transferred in favour of Dhanavel in respect of suit items 1 and 2 and for the lands in suit items 3 and 4 patta was transferred in the name of the plaintiff. The defendant purchased the suit items 1 and 2 from Dhanavel under a registered sale deed dated 26.4.1991. Since there has been dispute raised over the suit items 1 and 2, the defendant had also purchased the suit items 3 and 4 under a Registered Sale-deed dated 4.9.1991. Since it is not open to the plaintiff to dispute the title and possession over the suit item, the defendant may be advised to recover the possession of the suit items 3 and 4 as alternative plea.
(iv) The defendant is in enjoyment of items 1 and 2 of the suit properties. The defendant also filed counter claim. If the court finds that the oral exchange pleaded by the defendant is not in accordance with law, the defendant is entitled for declaration and possession in respect of items 3 and 4 of the suit properties.
6. Before the trial court, on the side of the plaintiff, the plaintiff was examined as P.W.1 and 15 documents Exs. A1 to A15 were marked. On the side of the defendants, 2 witnesses were examined and 15 documents Exs. B1 to B15 were marked.
7. The trial Court after taking into consideration the oral and documentary evidences of both the parties decreed the suit.
8. Aggrieved over the judgment and decree of the trial Court, the defendant filed an appeal in A.S. No. 75 of 1993 on the file of the Learned Subordinate Judge, Ariyalur and the lower appellate court after taking into consideration the materials available on records also confirmed the judgment and decree of the trial Court and dismissed the appeal.
9. Aggrieved over the judgments and decrees of the courts below, the plaintiff has filed the above Second Appeal.
10. Heard Mr.J.R.K.Bhavanantham, the learned counsel for the appellant and Mr.S.Parthasarathy, the learned Senior Counsel for the respondent.
11. At the time of admission of the Second Appeal, the following substantial question of law arose for consideration:
1) Whether in the absence of pleading in the written statement, the lower court was right in ignoring the evidentiary value of Exhibit B2 dated 21.4.1975, Ex.B14 and B.15?
2) Whether the lower court was right in drawing the presumption of continuance retrospectively?
3) Whether the respondent/plaintiff was estopped from pleading that she had no knowledge of the contents of the Ex.B.2 being attested by her?
4) Whether the comparison of the signatures in Exhibit B2 and deposition papers of the respondent/plaintiff by the court was in accordance with law?
12. On a careful consideration of the materials available on record and submissions made by the learned counsel appearing for the appellant and the learned senior counsel appearing for the respondent, it could be seen that under Ex.A.1 Sale Deed dated 19.5.1962 one Muthusamy Moopanar purchased item 1 and 2 of the suit properties from one Palaniyammal. Under Ex.A.2 Sale Deed dated 13.5.1970, the respondent/plaintiff purchased items 1 and 2 of the suit properties from Muthusamy Moopanar. Ex.A.3 is the patta issued to the respondent/plaintiff in respect of the items 1 and 2 of the suit properties. Therefore, from the documents marked on the side of the respondent/plaintiff, it is clear that he is having absolute right over the item 1 and 2 of the suit properties and he is in possession and enjoyment of the same. So far as items 3 and 4 of the suit properties are concerned, the appellant/defendant himself has admitted in the written statement that the respondent/plaintiff is in possession and enjoyment of the properties.
13. The learned counsel appearing for the appellant contented that item 3 and 4 of the suit property originally belonged to one Vadivel Moopanar and subsequently, the appellant's vendor Dhanavel was enjoying the property till 1.9.1980 and thereafter by oral exchange the said Dhanavel exchanged items 3 and 4 of the suit properties with item 1 and 2 of the suit properties with the respondent/plaintiff. Ex.B.3 is the sale deed dated 26.4.1991 under which the appellant purchased items 1 and 2 of the suit properties from Dhanavel. Ex.B.4 is the sale deed under which the appellant purchased items 3 and 4 of the suit properties from Vadivel Moopanar. Though the appellant has stated that he is in possession and enjoyment of item 1 and 2 of the suit properties there is nothing on record to prove the same. Ex.A.4 is the mortgage deed dated 8.8.1932. The respondent's father Kandasamy Moopanar discharged the mortgage debt on 30.1.1936 to that effect and an endorsement has been made in the said mortgaged deed on the same date. The total sale consideration of item 3 and 4 of the suit properties was Rs.50/-. Since the value of the properties was less than Rs.100/-, registration of the document is not mandatory. Therefore, the oral sale is valid in law, which requires no documents. Therefore, the purchase made by the father of the respondent namely Kandasamy Moopanar is valid. So far as the possession and enjoyment of item 3 and 4 of the suit properties are concerned, the appellant himself admitted that the respondent is in possession and enjoyment of the properties. Further, patta in respect of item 3 and 4 was issued in the name of the respondent/plaintiff and he has also paid kist in respect of the item 3 and 4 of the suit properties.
14. Though the appellant/defendant contented that the respondent had attested the Ex.B.2 sale deed dated 21.4.1975, but the same has not been pleaded in the written statement. Further, the attestor cannot be said to be a consented party to the transactions. Therefore, the Principal of Estoppel cannot be applied.
15. The courts below found that the appellant's purchase under Ex.B.3 and B.4 were made only to create problem. The appellant has also failed to prove his possession and enjoyment of item 3 and 4 of the suit properties, even prior to the alleged oral exchange in the year 1980. The courts below have rightly come to the conclusion that the oral exchange pleaded by the appellant is not true.
16. The learned counsel appearing for the appellant relied on the following judgments:
(i) AIR 1966 Supreme Court 605 (Ambika Prasad Thakur and others etc. Vs Ram Ekbal Rai (dead) by his legal representatives and others etc.) "11. The plaintiffs were out of possession of the lands in suit continuously from November 30, 1915 up to May 27, 1925 and again from May 27, 1925 up to the date of the suit. The Dumraon Raj and the pattadars were in possession of the lands in suit continuously from May 27, 1925 up to the date of the suit. In the revisional survey of 1937, the defendants 1st party are shown to be in possession of these lands. The plaintiffs alleged possession and dispossession within 12 years. Assuming that
Art.47 does not apply,t he suit is governed by
Art. 142. The plaintiffs have failed to establish their possession within 12 years of the suit and the suit is bared by
Art. 142 of the Indian Limitation Act.
13.The Maharaja was interested in the success of the suit, and it was necessary for him in his own interest to make this admission. The admission was made under somewhat suspicious circumstances at the end of the trial of the case when the arguments had begun. Though this petition was filed, the written statement of the Maharaja was never formally amended. In the circumstances, this admission has weak evidentiary value. In this suit the plaintiffs do not claim tenancy right either by express grant or by adverse possession. Title cannot pass by mere admission. The plaintiffs now claim title under Cl. (1) of S.4 of Regulation XI of 1825. The evidence on the record does not establish this claim.
15. The question is whether such an influence should be drawn. Now, if a thing or a state of things is shown to exist, an interference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in Illustration (d) to S.114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section,though on this point the section does not give a separate illustration.
The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances. In the present case, the High Court rightly refused to draw the inference from the state of things during 1892 to 1909 that the ancestors of the plaintiffs held frontier plots of Dubha Mal in 1863."
(ii) (2003) 7 Supreme Court Cases 481 (Deva Vs. Sajjan Kumar) "Since the animus to hold the land adversely to the title of the true owner could be said to have started only upon institution of the suit, held, this negatived the defendant's case of having prescribed title by adverse possession-Mere long possession of the defendant for a period of more than twelve years without intention to possess the suit land adversely to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by prescription."
(iii) AIR 1956 Supreme Court 593 "Civil P.C.(5 of 1908),O.6, R.2 Variance between pleading and proof: Evidence let in no issues on which the parties actually went to trial should not be made the foundation for decision of another and difference issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon,and adduce evidence relating thereto."
17. The respondent/plaintiff has proved his title, possession and enjoyment over the suit properties by documents. Therefore, the facts and circumstances in the judgments referred above differs from the case on hand. Therefore, the judgments are not applicable to the present case.
18. The learned senior counsel appearing for the respondent relied on the following judgments:
(i) (2008) 5 Supreme Court Cases 25 (Patinhare Purayil Nabeesumma Vs. Miniyatan Zacharias and another).
"In respect of four items of the properties, the appellant-plaintiff has been able to prove her title as also the possession. The fact that her husband was the cultivating tenant in respect of the suit property is not in dispute. The tax receipts filed by her also go to show that the entire suit land was the subject-matter of grant of tenancy by the landlord and if not from a (sic an earlier) date, tax has been paid by the appellant-plaintiff at least from 1955 onwards. In view of
Section 110 of the Evidence Act a presumption can be raised in regard to possession, both backward and forward."
(ii) (2009) 4 M.L.J. 449 (Chidambara Padayachi Vs. Vellalya Padayachi and Others) "Attestation proves no more than that the signature of an executing party has been attached to a document in the presence of a witness. It conveys, neither directly nor by implication, any knowledge of the contents of the document and it ought not to be put forward alone for the purpose of establishing that a man consented to the transaction, which the document effects."
(ii) (2003) 1 M.L.J.769 (K.A.Selvanachi and another Vs. Dr.S.R.Sekar and another) "Mere attestation of a document does not imply that the attestor had knowledge of the contents of the document. There should be something more than mere attestation. Custom and usage are always a matter of evidence and strict proof. Observation of individual Judge based on personal perceptions and experience cannot be elevated to status of rules of law."
(iii) (2003) 2 M.L.J. 756 (Thirumalaiswami and others Vs. Nallathambi and others) "Attestation does not constitute estoppel unless intrinsic evidence is there in the document to show that the attestor had knowledge of the contents."
19. Therefore, applying the principles laid down in the above referred judgments, it could be seen that the respondent/plaintiff produced kist receipts and other documents both backward and forward and under
Section 110 of the Evidence Act, presumption can be raised in regard to his possession of the suit properties. Though the respondent/plaintiff had only attested Ex.B.2 Sale Deed, there is nothing on record to show that the attestor had the knowledge of the contents of the document. Therefore, the respondent's attestation of Ex.B.2 could not operate as estoppel.
20. The courts below after taking into consideration the oral and documentary evidences of both the parties have rightly decreed the suit. I find no substantial question of law to interfere with the concurrent findings of the courts below. The second appeal is liable to be dismissed. Accordingly, the second appeal is dismissed. However, there will be no order as to costs.
rj/va To
1.The Learned Subordinate Judge, Ariyalur
2.The Learned District Munsif, Ariyalur