The plaintiffs in the suit in O.S.No.1836 of 1984 are the appellants in this Second Appeal. The first appellant is the first plaintiff. Since the first appellant died during the pendency of this appeal, the appellants 4 and 5 are brought on record as Legal Representatives of the deceased first appellant.
2. The learned counsel for the appellants has filed a memo dated 21.12.2016 stating that the fifth appellant, who was impleaded as the Legal Representative of the deceased first appellant, also died on 28.01.2015. It is also stated in the memo that the fourth appellant is the only legal heir of the deceased fifth appellant. Hence, the memo is accepted by recording the fact that the fourth appellant is the legal heir of the deceased fifth appellant and that there is no abatement on the death of the fifth appellant.
3. The appellants filed a suit in O.S.No.1836 of 1984 on the file of Additional District Munsif Court, Nagercoil, for declaration of title to the suit property and for recovery of possession from the defendant. The suit property is an extent of 641/2 cents on the northern side of 1 Acre 29 Cents in Survey No.2969 in 'A' Neendakarai Village, Agasteeswaram Taluk, Kanyakumari District.
4. The case of the plaintiffs in the suit is as follows:
The suit property originally belonged to one Maravan Nadar, S/o.Sudalakatha Nadar. The said Maravan Nadar sold the suit property and the northern 78 1/2 cents out of 1 Acre 57 Cents in another Survey Field viz., Survey No.2956 in the same Village to one Ramalingam Nadar, S/o.Ananchaperumal Nadar. The said Ramalingam Nadar had four sons, by name Velayudhaperumal, Ponniah, Kanthaswami and Ananchaperumal alias Pauliah. There was an oral partition among the four brothers and as per the oral partition, Velayuthaperumal and Kanthaswami got the northern 78 1/2 cents out of 1 Acre 57 cents in Survey No.2956 and the suit property was allotted to Ponniyah and Ananchaperumal alias Pauliah. The first plaintiff is the son of Ponniah and plaintiffs 2 and 3 are the sons of Ananchaperumal alias Pauliah. After the death of Ponniah and Ananchaperumal alias Pauliah, the plaintiffs are entitled to succeed to the suit property. The defendant, who had no right, title or possession over the suit property, trespassed into the same in January, 1984 and enclosed the suit property with the compound wall along with other plots belonged to him and has planted the tender coconut trees which are six months old. The plaintiffs came to know about the illegal trespass only in February, 1984 and they asked the defendant's father to surrender and wanted him to surrender possession of the suit property illegally trespassed in January, 1984. From the defendant's father, the plaintiffs came to know that one Ponniah Nadar, S/o.Velayudhaperumal had sold the property to one Ganapathy by an earlier sale deed dated 04.10.1969 and that the said Ganapathy had, in turn, executed a gift of the suit property to the defendant on 27.06.1980. The executants of the sale deed dated 04.10.1969 and the gift deed dated 27.06.1980 had no right, title or possession in respect of the suit property. Since the defendant got the property from the said Ganapathy and had trespassed into the suit property, he is liable to hand over possession to the plaintiffs, who are the lawful owners and were in enjoyment of the property till it was trespassed by the defendant.
5. The case of the defendant, in brief, is as follows:
5.1. The entire 1 Acre 29 Cents in Survey No.2969 belonged to Velayudhaperumal Nadar, S/o.Ayyankannu Nadar. The said Velayudhaperumal Nadar, the predecessor-in-interest of the defendant is not the son of Ramalinga Nadar. On the death of Velayudhaperumal Nadar, his two sons, by name Narayana Perumal Nadar and Ponniah Nadar inherited the property. They also orally divided the property. The northern half was allotted to Ponniah Nadar and southern half was taken by Narayana Perumal Nadar.
5.2. The sale deed relied upon by the plaintiffs dated 09.12.1087 M.E. is a mischievous document and Ramalinga Nadar did not get any right under the said document. The said sale deed was not followed by possession.
5.3. The southern half was sold by Narayana Perumal Nadar and his two sons to one N.K.Natesan on 23.10.1959 and that he got title and possession over the same. The said N.K.Natesan in turn sold the property to the father of the defendant one Dr.K.Padmanabhan on 01.11.1969.
5.4. The northern half in survey No.2969 was sold by Ponniah Nadar, S/o.Velayudhaperumal Nadar, to one Ganapathy. The said Ganapathy is the brother of Dr.K.Padmanabhan, the father of the defendant. The sale deed is dated 04.10.1969. The real owner is only Dr.K.Padmanabhan and the sale was in the name of Ganapathy, who is only his Benami. It was only Dr.K.Padmanabhan who was in possession of the suit property and later, a formal gift deed was executed by Ganapathy in favour of the defendant. The property was always in the possession and enjoyment of Dr.K.Padmanabhan. Since Dr.K.Padmanabhan is in possession of the suit property, he is a necessary party. The father of the defendant is entitled to 1 Acre 29 cents and he has been in possession of the same from 1969. The suit property was enclosed by the father of the defendant as owner and the trees were also planted by him in the year 1969. Since Dr.K.Padmanabhan has been in possession of the entire 1 Acre 29 Cents along with other properties owned by him for more than 15 years and had effected valuable improvements, the plaintiffs even if they had any title to the suit property, it had been lost by adverse possession.
6. The Trial Court, after framing a specific issue with regard to the validity of the document dated 09.12.1087 M.E. (1912), found that the document is not acted upon. Surprisingly, without analyzing how the document Ex.A.20 came into existence, and what was the intention behind the execution of this document, the Trial Court proceeded to consider the case of the defendant on the basis of the documents filed by the defendant under Exs.B.1, B.2, B.3, B.4, B.5 and B9.
7. The Trial Court, after referring to the proceedings under Ex.B.6 and the patta that was granted in favour of Dr.K.Padmanabhan, the father of the defendant, held that the defendant has proved his possession for more than the statutory period and had prescribed title by adverse possession.
8. It is pertinent to mention that the Trial Court has not referred to any other documents filed by the plaintiffs except the documents Exs.A.1, A.2 and A.20. Despite the fact that the plaintiffs have filed Exs.A.1 to A.21, out of which, Exs.A.9 to A.19 are revenue documents, there is no reference to any of these documents in the judgment and there is no indication that the Court has applied its mind to the evidentiary value of the documents filed by the plaintiffs and that the Trial Court rejected the contentions of the plaintiffs and dismissed the suit.
9. Aggrieved by the findings of the Trial Court, the plaintiffs preferred an appeal in A.S.No.156 of 2003 on the file of Second Additional Sub Court, Nagercoil. The lower Appellate Court also confirmed the judgment and decree of the Trial Court, of course, by giving different reasoning. The Appellate Court specifically held that the plaintiffs failed to prove the sale deed under Ex.A.20. The Appellate Court also held that the plaintiffs have failed to prove that the documents Exs.A.20, A.1 and A.2 were acted upon. Despite the fact that the plaintiffs have produced several documents to show the plaintiffs' enjoyment, there was no reference to these documents by the Appellate Court also. Since the plaintiffs have not produced any revenue document, after the year 1961, the lower Appellate Court proceeded or presumed that the defendant's document, viz., the revenue records would enable him to claim enjoyment from 1961. Strangely, after referring to the Commissioner's report and the observation of the Commissioner about the age of the coconut trees, the Appellate Court also found that the defendant has prescribed title by adverse possession. The Appellate Court further observed that the suit itself is bad for non-joinder of defendant's father as a party to the suit on the ground that the defendant's father alone is the owner of the property and not the defendant. The Appellate Court also held that the sale deed under Ex.A.20 had not been acted upon and that the plaintiffs/appellants miserably failed to prove that the son of Ramalinga Nadar was in possession and enjoyment of the suit property by virtue of the family partition pleaded by the plaintiffs. The Appellate Court also confirmed the judgment of the Trial Court holding that the plaintiffs have not established their right, title and interest over the suit property. Despite the fact that the defendant has produced only Exs.B.6 to B.10 to prove his enjoyment, the Appellate Court specifically held that the defendant has proved his possession and enjoyment more than the statutory period of 12 years and that he has prescribed title by adverse possession. Aggrieved by the judgment and decree of the Courts below, the plaintiffs have preferred the above appeal.
10. At the time of admitting the Second Appeal, the following substantial questions of law are formulated by this Court for consideration:
"(i) Whether the finding of the Courts below that the respondent and predecessor in title were in possession from 1969 as evidenced by Commissioner's report is correct when the sale deed Ex.A3 = B4 and A4 = B11 are against the report of the Commissioner?
(ii) Whether the Courts below erred in holding that the sale deeds in favour of Appellants are not acted upon?
(iii) Whether the Courts below are right in dismissing the suit when the petitioner/appellant proved title and the respondent failed to prove adverse possession?
(iv) Whether the alienee from a guardian of minor will get title when the property was already sold by the minor rep. by natural guardian and that sale was not set aside by the minor within 3 years from the date of attaining majority?"
11. Heard Mr.C.Sankar Prakash, learned counsel for the appellants as well as Mr.V.Meenakshi Sundaram, who was appointed as an Amicus Curiae in this case to assist the Court, as the respondent had neither appeared in person nor engaged a counsel.
12. Mr.V.Meenakshi Sundaram, learned counsel, who was appointed by this Court as Amicus Curiae, has referred to the important documents, the pleadings of parties concerned and the findings of the Courts below, so as to focus the scope of this Second Appeal. He also placed before this Court some judgments of the Hon'ble Supreme Court which would be referred to little later. Sum and substance of his submission was that the findings of the Courts below are erroneous and that the Courts below have failed to consider the material facts and evidence on record.
13. The learned counsel for the appellants strenuously argued that the findings of the Courts below that the sale deeds relied upon by the plaintiffs under Ex.A.20 along with Exs.A.1 and A.2 were not acted upon, are perverse. The sale deed under Ex.A.20 would clearly show that one Muthuppillai Nadachi, as guardian of Ponniah Nadar, S/o.Velayudhaperumal Nadar, executed the sale deed in favour of Maravan Nadar. The genuineness of the document was not in issue before the Courts below. However, the defendant, who was pleaded that this document is a mischievous one, has taken a stand during the trial that this document Ex.A.20 was never acted upon. Pursuant to the document under Ex.A.20 (1912), by virtue of another sale deed under Ex.A.1, dated 09.12.1087 M.E., Maravan Nadar executed a sale deed in favour of Ramalinga Nadar. These two documents would clearly show that the plaintiffs' claim of title is well founded.
14. It is the case of the defendant that the same Ponniah Nadar, who had executed the sale deed under Ex.A.20 in the year 1912, through his mother as guardian, executed a subsequent sale deed in favour of one Bathalomai in respect of the suit property under Ex.B.2 dated 15.02.1968. It was further contended by the defendant that the said Bathalomai executed a release deed dated 30.04.1968, in favour of Ponniah Nadar. It is to be noted that the purchaser under Ex.B.2 has released his right under Ex.B.3 in favour of his vendor by describing Ex.B.2 sale deed as one without consideration. The sale deed dated 15.02.1968 and the release deed dated 30.04.1968 have been marked as Exs.B.2 and B.3 in this case. The transferee under Ex.B.3, viz., Ponniah Nadar, executed a sale deed in favour of one Ganapathy under Ex.B.4 dated 04.10.1969. It was the said Ganapathy who had transferred the suit property in favour of the defendant by virtue of the gift deed under Ex.B.11 dated 27.06.1980. Thus, from the documents of title deeds filed by the parties, it can be seen that the plaintiffs and defendant claim title from one Ponniah Nadar, S/o.Velayudhaperumal Nadar. However, the plaintiffs have purchased the suit property by a document under Ex.A.20 (1912), whereas the defendant claim title through his predecessor-in-interest, who had acquired right from the same Ponniah Nadar under Ex.B.2, dated 15.02.1968. It is only to circumvent the prior document of title Ex.A.20, the defendant has described the document Ex.A.20 as a mischievous one. No attempt was made by the defendant to prove that the document is not a bona fide one conveying sale transaction or that the document was not actually executed by the person who was the original owner of the property. An attempt was also made by the defendant to prove that the documents Exs.A.20 and A.1 were not acted upon. Very strangely, the Trial Court as well as the lower Appellate Court, after referring to the documents filed by the defendant to hold title in his favour, considered the plea of defendant that the document Exs.A.20 and A.1 were not acted upon. Therefore, it became easier for the Courts below to exclude many documents filed by the plaintiffs to prove their possession and enjoyment of the suit property pursuant to their title deeds under Exs.A.20 and A.1. The documents filed by the defendant under Exs.B.2 to B.4 and B.11 cannot convey any title either in favour of the plaintiffs or in favour of their predecessors-in-interest for the simple reason that the person, who executed the sale deed under Ex.B.2, had conveyed long back his right, title and interest over the suit property in favour of the plaintiffs' predecessors-in-interest. In such circumstances, the findings of the Courts below on the question of title are perverse and cannot be accepted.
15. It is to be seen that the plea that the document of sale under Ex.A.20 was not acted upon cannot be accepted merely on the strength of subsequent alienations. The plea that the document was not acted upon rests on the admitted fact regarding the execution of a valid document and the actual transfer taking place under an instrument. Only after showing that the intention of transferor was very clear that he never intended to transfer his right, title and interest in favour of the transferee, such a plea can be entertained. Even for the Court to act upon such plea, the person, who plead that the transferor had no intention to convey or that the document of conveyance executed by him was only a sham and nominal document, must satisfy the Court by explaining the motive behind such transaction and the reason for such sham transaction being brought about in the manner acceptable to Courts. Further, the transferee under Ex.A.20 executed a sale under Ex.A.1 dated 09.12.1087 M.E. (1912) in favour of Ramalingam Nadar. Further, Ex.B.1 is a sale deed in respect of the southern 641/2 cents in S.No.2969. This property was later purchased by defendant's father Dr.Padmanabhan under Ex.B.5. Even in the written statement, it is admitted that the southern 641/2 cents in S.No.2969 was allotted to Narayana Perumal Nadar, the brother of Ponniah Nadar and Narayana Perumal Nadar and his two sons sold the same to one N.K.Natesan. In the description of the property, the northern boundary is shown as the property of one Ponniah Nadar, the father of plaintiffs 2 and 3. Hence, the document Ex.B.1 disproves the case of defendant that the documents Exs.A.20 and A.1 were not acted upon.
16. In the present case, the defendant has not examined anyone to prove the real nature of transaction under Exs.A.20 and A.1. In fact, the defendant has not examined himself as a witness and he examined only a person, who according to him, was the care-taker of the suit property on his behalf. It is surprising to note that the Courts below have rendered a finding as to the nature of transaction under Exs.A.20 and A.1, despite the absence of any positive evidence to prove the transaction as one as pleaded by the defendant. The plea of benami or the plea that a transaction as one which is sham and nominal or the plea that the document was not acted upon cannot be accepted without there being strong circumstances and factual background explaining the special circumstances by which the parties were forced to bring about such document at the cost and risk. Having regard to the casual way in which the Courts below have dealt with the issue, this Court is of the view that the findings of the Courts below by holding that the document Exs.A.20 and A.1 were not acted upon are perverse and liable to be reversed, especially in the light of boundary recitals in Ex.B.1.
17. The next issue is regarding the plea of adverse possession raised by the defendant/respondent. The Courts below have relied upon the documents Exs.B.6 to B.10. Ex.B.6 is the proceedings of Assistant Director of Survey on the petition filed by the father of the defendant dated 25.11.1973. This order was passed by the Assistant Director of Survey on 27.02.1975. Neither the plaintiffs nor their predecessors-in-interest were shown as parties. Hence, this document cannot be taken as one which would bind the interest of the plaintiffs. Further, this document Ex.B.6 is only about the survey that was conducted by the Revenue Department, pursuant to the request of the defendant's father Dr.K.Padmanabhan. The question of actual enjoyment of the property cannot be presumed from this document. Even this document indicates that there was discrepancy with regard to the extent which was in the enjoyment of defendant's father and that the defendant's father has made a representation/petition only to get his land identified with reference to his title deed. In the absence of any notice to the persons who had rival claim in respect of the lands in question, this document cannot be safely relied upon as against the appellants/plaintiffs. Ex.B.7 is a document of patta which was given to the defendant's father Dr.K.Padmanabhan in the year 1982. It is not in dispute that the defendant's father had acquired some interest in respect of the southern half in Survey No.2969. The document Exs.B.2 to B.4 and B.11 would indicate that the defendant alone could trace title to the suit property. These documents would show that the defendant's father had no right in respect of any portion over the suit property. Hence, the document Ex.B.6 would not help the defendant to prove his possession over the suit property. Assuming that there could be some discrepancy or mistake, while carrying out the changes in revenue accounts, the case of the defendant in the written statement do not justify a conclusion to hold possession in favour of defendant on the basis of these documents. The documents relied upon by the defendant are contrary to his own pleadings in the suit. Further, the revenue records Exs.B.7 to B.10 are also contrary to title deeds relied upon by the defendant.
18. It is also pertinent to mention that the plaintiffs have produced several documents from 1952 to 1961 to show that they are in possession of the suit property pursuant to their documents of title under Exs.A.20 and A.1. As against these documents, the defendant has produced only Exs.B.6 to B.10 the revenue records. As pointed out earlier, Ex.B.6 is dated 27.02.1975 and it has no relevance to prove the physical enjoyment of the suit property. The patta passbook Ex.B.7 stands in the name of defendant's father and the same cannot be relied upon to prove the enjoyment of the property by the defendant. The suit itself was filed in the year 1984. However, the documents Exs.B.8 to B.10 are obtained after the suit was filed. In such circumstances, this Court finds that the plea of adverse possession has not been substantiated by the defendant with acceptable evidence. The defendant also has failed to examine himself to prove his possession and enjoyment for more than the statutory period. When there are positive documents and oral evidence of first plaintiff as P.W.1 are available, it is expected that the defendant should come forward to controvert the case of plaintiffs and the evidence of P.W.1 regarding the physical enjoyment of the suit property by the plaintiffs. Strangely, the defendant has not examined himself, but examined only a person who was his care-taker. The evidence of D.W.1 regarding the validity of transactions under the documents produced either by the plaintiffs or by the defendant cannot be believed as he is not competent to speak about it. However, his version regarding the enjoyment of the suit property by him on behalf of the defendant is not supported by any other evidence. Even the defendant's father in whose name the documents Exs.B.6 to B.10 stand was not examined.
19. Admittedly, the suit property was a vacant land. With regard to the description of the suit property, there is no dispute. However, the case of the defendant that he has planted coconut trees was accepted by the Courts below. Further, the Courts below have also relied upon the Commissioner's report and accepted the Commissioner's opinion that the coconut trees are more than 20 years old. The Advocate Commissioner was not examined. He inspected the property in the year 1995 nearly after 11 years from the date of filing of suit. It was by accepting the Commissioner's report, the Courts below expressed its conclusion that the suit property must be under the enjoyment of the defendant for more than the statutory period. The learned counsel for the appellants referred to the evidence of P.W.1 and the specific case of the plaintiffs that the coconut trees were planted by the defendant just prior to the suit and that the trees are 10 years old. In such circumstances, in the absence of competent witness to speak about or to contradict the version of plaintiffs, this Court is not in a position to accept the finding of the Trial Court as well as the Appellate Court based on the Commissioner's report. The Advocate Commissioner is not an Expert. Hence, it is not possible for him to give opinion as to the age of the standing coconut trees. Admittedly, the Commissioner was appointed in the year 1995 several years after the institution of the suit in the year 1984 and after inspecting suit property in the year 1995, it appears that the Advocate Commissioner has filed the report in the year 2000. The suit was filed in the year 1984. In these circumstances, it is impossible for anyone to determine the age of coconut tree which is grown up unless the person is an Expert. Even the opinion of an Expert should contain reasons to support his conclusion or opinion. In the present case, the Commissioner has not adopted any scientific method in ascertaining the age of the coconut trees. Except the Commissioner's report, I find that there is absolutely no evidence to prove the age of coconut trees and to prove the physical enjoyment of the suit property by the defendant beyond the statutory period of 12 years. In these circumstances, the findings of the Courts below on the question of limitation/adverse possession are also perverse.
20. In this regard, the learned counsel for the appellants referred to the judgment of a Division Bench of this Court in the case of Banu @ Banumathi v. Muniammal reported in 2013(5) CTC 599, wherein this Court has held that the Advocate Commissioner cannot be appointed to ascertain the age of the building. He also relied upon the earlier judgment of this Court to hold that the Commissioner is not an Expert so as to give an opinion about certain things which he could not do. The judgment of the Division Bench is also applicable to the present case to the extent that the Commissioner's report can only be accepted as an Expert opinion, unless it is corroborated by other evidence which are relevant and acceptable. As it has been held and pointed out earlier, the Advocate Commissioner in the present case has not given any reason to form an opinion, so that this Court could also analyze the veracity or reasonableness in the report of the Advocate Commissioner.
21. From the principles laid down by this Court and the Hon'ble Supreme Court, it is seen that the Courts below have not dealt with the plea of adverse possession in the manner, as it is expected by the binding precedents.
22. With regard to the power under Section 100 of the Code of Civil Procedure, Mr.V.Meenakshi Sundaram, learned counsel, as Amicus Curiae, brought to the notice of this Court the judgment of the Hon'ble Supreme Court in the case of Vidhyadhar v. Manikrao reported in 1999(3) SCC 573, wherein the Hon'ble Supreme Court has held as follows:
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box."
23. The learned counsel appearing as Amicus Curiae also relied upon another judgment of the Hon'ble Supreme Court in the case of Hero Vinoth v. Seshammal reported in AIR 2006 SC 2234, wherein, at paragraph No.13, it has been held as follows:
"Though as rightly contended by learned counsel for the appellant the scope for interference with concurrent findings of fact while exercising jurisdiction under
Section 100, CPC is very limited and re-appreciation of evidence is not permissible where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under
Section 100, CPC after formulating a substantial question of law."
24. Mr.V.Meenakshi Sundaram, learned counsel appearing as Amicus Curiae, has also relied upon a judgment of the Hon'ble Supreme Court in the case of P.Chandrasekharan v. S.Kanakarajan reported in 2007 (5) SCC 669, wherein, at paragraph Nos.11 to 13, it has been held as follows:
"11. A bare comparison of the deed of sale on the basis whereof the appellants claim their right, title and interest, namely, the deed of sale dated 16.9.1935 with the rough plan (Ext.A-17) purported to have been drawn up on the basis of the Service Settlement Plan, therefore, must lead to proper identification of the suit property. It may be as was contended by Mr.Balakrishnan that between the period 1935 and the date of institution of the suit surrounding properties have changed many hands or the original owners might have died; but when the plaintiffs themselves relied upon a sketch to establish identity of the properties in suit vis-a-vis the existence of lanes and the constructed platform, etc. it was for them to show that the description of the property tallies with the one stated in the deed of sale. What was to be in the south of the property belonging to Pitchaikara Pillai and others in the deed of sale have been shown to be the west of the said property. It is difficult to come to a conclusion one way or the other as to whether the lane which is situated on the east of Item 9 of the property and the municipal lane which is situated at a distance on the eastern side and intervened by a piece of land belonging to Palanisamy Pillai can be taken to be identifying points. We have been taken through other documents also including Ext.A-3 wherein the description of the property has been stated thus:
"In Tiruchirappalli District, Srirangam Sub-district, Tiruchirappalli Taluk, Thimmarayasamudhram Village, Veereshwaram, East Street, Srirangam Municipal Second Ward in TS No.1960/2 and 4 west of common lane 7 ft wide pathway.
NORTH of property of Sambasivam Pillai vacant side in TS No.1960/1; EAST of municipal north to south lane in above TS No.1960/1 and SOUTH of the vacant site of Palanisamy Pillai and Kunjammal.
WEST of common lane of 7 ft wide pathway and in 1960/1 within these four boundaries north to south 4 1/4 std ft, east to west 102 std ft. The property is comprised in Srirangam municipal limits and vacant space as third item manai is situate in TS No.1960/1 at 4 ft lower level."
The said deed was executed in the year 1966. The description of the property was stated to be on the east of municipal north to south lane, was shown in the rough sketch as existing in the south of the disputed property.
12. There cannot be any doubt whatsoever that a substantial question of law is different from a question of law. Interpretation of a document which goes to the root of the title of a party to the lis would indisputably give rise to a question of law.
13. In Rev.Fr.M.S.Poulose v. Varghese interpretation of the recitals contained in a document was held to be involving a substantial question of law. What is prohibited for the High Court while exercising this jurisdiction under Section 100 CPC is to interfere with a finding of fact. This limited jurisdiction, inter alia, would become exerciseable when the findings are based on misreading of evidence or so perverse that no reasonable person of ordinary prudence could take the said view."
25. Therefore, relying upon the judgments of the Hon'ble Supreme Court, the learned counsel appearing as Amicus Curiae also submitted that the findings on the interpretation of recitals contained in a document can involve a substantial question of law. In this case, the recitals in Ex.B.1 (boundary description) were not considered by the Courts below.
26. This case is a good example, where the Courts below have neither considered the legal implications and the incidents of title that flow from Exs.A.20 and A.1. Further, the plea of defendant that the documents in Exs.A.20 and A.1 are sham and nominal has been casually dealt with and accepted without appreciating the presence of valid circumstances and essential ingredients to describe a document as sham and nominal or as one which was never intended to be acted upon.
27. For all the above reasons, this Court is of the view that the Courts below have not applied their mind with regard to the material aspects. In view of the discussions made above, I answer the questions of law framed by this Court in favour of the appellants and as a consequence, the Second Appeal is allowed with cost. The judgment and decree of the lower Appellate Court in A.S.No.156 of 2003, dated 10.02.2005, confirming the judgment and decree of the Additional District Munsif Court, Nagercoil, in O.S.No.1836 of 1984, dated 24.10.2002, are set aside and the suit in O.S.No.1836 of 1984 on the file of the Additional District Munsif Court, Nagercoil, stands decreed.
28. This Court expresses its admiration to Mr.V.Meenakshi Sundaram, learned counsel, for rendering valid assistance in this case, accepting the request of this Court to appear as an Amicus Curiae.
To
1.The Second Additional Sub Judge, Nagercoil.
2.The Additional District Munsif, Nagercoil.
.