Thirunavukkarasu Pillai v. Varadharaja Pillai

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 19.12.2017 PRONOUNCED ON : 17.01.2018

CORAM

THE HONOURABLE MR. JUSTICE T.RAVINDRAN S. A.No.1584 of 2001

1. Thirunavukkarasu Pillai(Deceased)

2. Savitha

3. Muthukumarasamy ... Appellants/Plaintiff (Appellants 2 & 3 are brought on record as LRs of the Deceased sole appellant vide order of this Court dated 06.12.2017 made in CMP No.20229 to 20231 of 2017) Vs.

Varadaraja pillai ... Respondent/Defendant Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree of Additional Sub Court, Mayiladuthurai made in A.S.No. 24 of 1999 dated 27.03.2000 confirming the judgment and decree of the District Munsif Court, Sirkali made in O.S.No.232 of 1995 dated 09.02.1999.

For Appellants : Mr.S.Sounthar For Respondent : Mr.C.Ravichandran *****

JUDGMENT

Challenge in this second appeal is made to the judgment and decree dated 27.03.2000 passed in A.S.No. 24 of 1999, on the file of the Additional Sub Court, Mayiladuthurai, confirming the judgment and decree dated 09.02.1999 passed in O.S.No.232 of 1995 on the file of the District Munsif Court, Sirkali.

2. Parties are referred to as per their rankings in the trial Court.

3. Suit for recovery of possession and permanent injunction.

4. The case of the plaintiff, in brief, is that the suit property belongs to the plaintiff, he having purchased the same from his brothers, namely, Rathinampillai and Sammandhampillai on 01.01.

1935 and pursuant to the above said purchase of the suit property, it is only the plaintiff, who has been in possession and enjoyment of the suit property and the defendant, who owns the property adjacent to the suit property, while putting up a new construction in his property, unlawfully encroached into the ABCD portion of the suit property as depicted in the plaint plan, shows as A schedule in the the plaint and annexed the same with his property and hence, the defendant is liable to remove the encroachment put up on the said property and hand over the vacant space to the plaintiff and further, the defendant has also attempted to interfere with the possession and enjoyment of the remaining property to which the plaintiff is entitle to and as the defendant is not entitle to disturb the plaintiff's possession and enjoyment, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.

5. The case of the defendant, in brief, is that the suit is not maintainable either in law or on facts. It is false to state that the suit property belongs to the plaintiff. It is false to state that the plaintiff had purchased the suit property from his brothers on 01.01.1935 and enjoying the same. The alleged sale deed dated 01.01.1935 has been fabricated by the plaintiff and it is not a valid transaction. An extent of 0.71⁄2 cents in the suit property situated on the eastern side was purchased by the defendant's vendor Arumugampillai from the plaintiff's brother Sammandhampillai, by way of a registered sale deed dated 31.05.1950 and thereafter, Arumugampillai was enjoying the above said extent purchased by him, by obtaining patta, paying kist etc.

, and in the partition effected in the family of Arumugampillai involving his son Muthaiyapillai, the said property was allotted to the share of Agoramurthi and accordingly, Agoramurthi was enjoying the said extent by obtaining patta and the same could also be seen from the joint patta issued in favour of Agoramurthi and the plaintiff and the defendant purchased the above said 0.71⁄2 cent from Agoramurthi in 1981 and enjoying the same and hence, the above said extent of 0.71⁄2 cent belongs to the defendant and the same is in his possession and enjoyment and hence, the plaintiff cannot claim any right over the said extent.

therefore, it is false to state that the defendant had encroached into the property of the plaintiff and put up unlawful construction. It is further false to to state that the defendant has attempted to interfere with the plaintiff's possession and enjoyment of the remaining extent of the suit property as alleged in the plaint. Further, the defendant, by way of continuous enjoyment from the days of his predecessors in interest, had perfected his title to the suit property by adverse possession and the suit is bad for non-joinder of necessary parties. The plaintiff has no cause of action to institute the suit and hence, the suit is liable to be dismissed.

6. In support of the plaintiff's case PW1 has been examined, Exs.A1 to A4 were marked. On the side of the defendant DWs1 to 4 were examined, Exs.B1 to B8 were marked.

7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the suit laid by the plaintiff. Impugning the same, the present second appeal has come to be laid.

8. At the time of admission of the second appeal, the following substantial question of law was formulated for consideration:

" When the sale price under Ex.A2 dated 1.1.35 for the sale of immovable property comprised therein is Rs.88/-, have not the Courts below committed an error of law in rejecting the document as inadmissible in evidence for want of registration?"

9. The plaintiff is claiming title to the property in dispute, by way of purchase from his brothers on 01.01.1935. According to the plaintiff, the sale transaction above stated has been incorporated in a document, which has come to be marked as Ex.A2. The said document is not registered. According to the plaintiff, inasmuch as the said document only confirms the oral sale already effected by the brothers, in favour of the plaintiff and as the sale transaction has been effected only for a sale price of Rs.88/-, it is his contention that Ex.A2 document does not require registration as per law and hence, it is contended that the Courts below had erred in rejecting Ex.A2 for want of registration.

10. It is argued by the plaintiff's counsel that on a perusal of the recitals found in Ex.A2, the same would only disclose that it is a record of the past transaction for a sum

of Rs.88/- and in such view of the matter, the said document does not require registration and in this connection, the plaintiff's counsel placed reliance upon the decisions reported in AIR 1958 PUNJAB 406 (Rattan chand and another Vs. Bhagirath Ram and other), 98 L.W. Page 906 (V.S.Meenakshisundaram and two others Vs. Kaliyaperumal and two others) and 44 L.W. Page 949 (Chinnasami chetty and others Vs. Manickammal and another).

11. A perusal of the above said decisions would go to show that where the sale has been effected by way of a oral transaction and thereafter, the parties had entered into a document, wherein the recitals of the factum of the oral sale transaction had been incorporated thereunder, it is found that in such circumstances, the said document would not require registration as the same only reflects the past transaction. However, in so far as this case is concerned, it is found that the defendant has challenged the very factum of the oral sale pleaded by the plaintiff by way of which he claims to have purchased the property in dispute from his brothers. A perusal of Ex.A2 does not indicate as to when the alleged oral sale had taken place prior to 01.01.1935. Ex.A2 is very silent as to the same.

Further, it is also not correctly proved by the plaintiff as to whether he had been delivered the possession of the property alienated by his brothers, prior to 01.01.1935. If really the alleged oral sale transaction is accompanied by the delivery of the property concerned, as rightly argued, necessary documents would have been placed by the plaintiff to show that he is in possession and enjoyment of the disputed property from the date of the oral sale. However, when the plaintiff has not pleaded and established as to the date of the alleged oral sale and further, when the plaintiff has also not placed acceptable and reliable proof to hold that he has been in possession and enjoyment of the disputed property from the date of the alleged oral sale, it is seen that the Courts below were right in holding that Ex.

A2 document cannot be held to be a record containing the recitals of past transaction and accordingly, further rightly held that inasmuch as the plaintiff has failed to establish the alleged oral sale as projected by him, accordingly holding that the plaintiff is claiming title to the disputed property only by way of Ex.A2 document, it is seen that the Courts below were right in holding that Ex.A2 cannot be relied upon for want of registration. In this connection, the Courts below rightly placed reliance upon the decision reported in 98 L.W. Page 906 (V.S.Meenakshisundaram and two others Vs. Kaliyaperumal and two others) cited by plaintiff's counsel for coming to the conclusion that the alleged oral sale transaction projected by the plaintiff having been put on record, even if the alleged sale is effected for consideration less than Rs.

100/-, the said document requires registration as per law and accordingly, Ex.A2 document, being an unregistered one, the same is found to be inadmissible in evidence by the Courts below.

The determination of the Courts below that Ex.A2 cannot be relied upon for want of registration for the reasons aforestated does not warrant any interference. As above discussed, the plaintiff has miserably failed to establish that the oral sale had been truly effected and that he had been delivered the possession of the disputed property by his brothers at the time of the alleged oral sale.

12. On a perusal of the materials, it is found that as rightly determined by the Courts below, Arumugampillai has purchased a particular extent in the suit property from Sammandhampillai, by way of Ex.B1 sale transaction and further, the plaintiff has also purchased a portion of the suit property by way of Ex.B8 sale transaction and when it is found that the plaintiff had already been conveyed portions of the suit property under Ex.B8 and further, when a portion of the suit property had been alienated to Arumugampillai under Ex.B1, the case of the plaintiff that his brothers had alienated the disputed property namely, the suit property to him by way of oral sale, prior to Ex.A2 document, as such, cannot be accepted in any manner.

As rightly found by the Courts below, the contention of the plaintiff that only the trees standing on the property had been conveyed under Exs.B1 and B2 cannot be accepted, considering the recitals found in the above said documents. In such view of the matter, as rightly found by the Courts below, the case of the plaintiff that his brothers had conveyed the suit property by way of an oral sale transaction stands belied by the documents marked as Exs.B1 and B8.

13. That apart, the Chitta extracts marked as Exs.B4 and B6 also would go to show that inasmuch as the plaintiff and Arumugampillai had purchased a particular extent of the property in the suit survey number, it is seen that joint patta had been issued in their favour and when the same is also fortified by the evidence of the VAO examined as DW3, the contention of the plaintiff that he had purchased the suit property in its entirety, by way of an oral sale from his brothers, even prior to 01.01.1935, as such, cannot be believed and accepted.

14. The Courts below also did not place acceptance to the contention of the plaintiff as regards Ex.A4, as it has been rightly held that, even assuming for the sake of arguments, the suit property does not find a place in Ex.A4, that by itself would not substantiate the plaintiff's case, when it is seen that Exs.B4 and B6 belie the case of the plaintiff as determined by the Courts below rightly.

15. When the plaintiff traces his claim to the suit property only by way of an oral sale transaction and when the plaintiff

has failed to establish the factum of oral sale transaction, particularly, as to when the same had come to be effected and further, when the plaintiff has failed to establish that he has been delivered possession of the suit property by way of the alleged oral sale and when no material has been placed by the plaintiff to evidence that he is in possession and enjoyment of the disputed property pursuant to the alleged oral sale and on the other hand, when the documents projected by the defendant, as above discussed, completely belie the case of the plaintiff and when it is further seen that the plaintiff seeks title or right to the suit property only by way of Ex.A2 document, which as rightly determined by the Courts below, requires compulsory registration as per law, it is seen that there is no infirmity or error in the findings of the Courts below that the plaintiff has miserably failed to establish his title or right to the suit property.

16. In the light of the above discussions, the Courts below were right in rejecting Ex.A2 document for want of registration, even though the said document recites as if, it is a sale of immovable property for a consideration of Rs.88/- as it is found that the plaintiff had miserably failed to establish the factum of oral sale and in such view of the matter, it cannot be construed that the above said document Ex.A2 only records the past sale transaction and accordingly, the substantial question of law formulated in the second appeal is answered against the plaintiff.

17. For the reasons aforestated, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar sli

To

1. The Additional Sub Court, Mayiladuthurai.

2. The District Munsif Court, Sirkali.

+1cc to Dr.C.Ravichandran, Advocate sr.no.3139 S. A.No.1584 of 2001 kj(co) nr 10/05/2018