IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.10.2009 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL S.A.No.1452 of 1995 Pandurangan ... Appellant/Plaintiff vs. 1.Shanmugam 2.Ammachi Ammal ... Respondents/Defendants Appeal filed under Section 100 C.P.C. against the judgment and the decree dt.25.1.94 in A.S.16/92 on the file of the Subordinate Court, Villupuram, reversing the judgment and the decree dt.28.11.91 in O.S.No.302/89 before the Additional District Munsif's Court, Villupuram. For appellant : M/s.Juliana Pinto For respondents : No Appearance for R1, R2. JUDGMENT The plaintiff is the appellant herein. The suit was filed by the plaintiff seeking for a declaration of possessory title of the plaintiff and also for permanent injunction restraining the defendants 1 and 2 from interfering with the peaceful possession and enjoyment of the plaintiff. 2.The trial court accepted the case of the plaintiff and decreed the suit as prayed for. The First Appellate court reversed the finding of the trial court. As against which the plaintiff has preferred the present Second Appeal. 3.The respondents/defendants originally engaged a counsel. The counsel reported no instruction on 10.03.2008 itself. Thereafter there was no representation for the respondents/defendants inspite of the fact that their names were printed in the cause list. The submission made by the learned counsel appearing for the plaintiff/appellant was heard. https://hcservices.ecourts.gov.in/hcservices/ 4. The plaintiff has contended in the plaint that the suit property bearing door no.94V, Murugan temple street, E.Mandagapattu village, Villupuram taluk is a lake poromboke. It was in the possession and enjoyment of Messrs. Kaliamoorthy and Krishnamoorthy. They having put up a superstructure were in possession and enjoyment of the same. There was an oral partition in their family and the property was equally divided between them. The said Kaliamoorthy sold away his half share in the suit house and the vacant site for a consideration of Rs.5,000/- on 20.03.1986 and his brother Krishnamoorthy sold his half share in the suit house and the vacant site for a consideration of Rs.5,300/- on 27.02.1989 to the plaintiff. It is contended that the plaintiff has been in possession and enjoyment of the said property after both of them vacated the premises. With the above pleadings the plaintiff has sought for declaration of possessory title and for permanent injunction. 5. The defendants resisted the claim of the plaintiff on the ground that Kaliamoorthy who put up a superstructure in the suit property sold the same to the second defendant on 13.02.1988. There after the first and second defendants have been in possession and enjoyment of the suit property. Setting up a rival possessory title to the suit property, the defendants sought for dismissal of the suit. 6. The trial court completely disbelieved the documents produced on the side of the respondents/defendants. Having relied upon the evidence of P.W.2 and P.W.3 who were allegedly in possession of the suit property prior to the transfer of possession and also the other documents produced on the side of the plaintiff chose to decree the suit as prayed for. 7. The First Appellate court upset the finding of the trial court relying upon the documentary evidence produced by the respondents/defendants. But the First Appellate Court had not entered into any discussion with respect to the evidence of P.W.2 and P.W.3 who were originally in possession of the suit property. 8. The following questions of law have been framed at the time of admission of the Second Appeal. "1) Whether in law the lower appellate Court was right in overlooking the unimpeachable evidence of the plaintiff's vendors who have vouched for the sale in favour of the plaintiff especially since there is no dispute with regard to the vendors' title to the property. And 2) Whether in law the lower appellate Court is right in ignoring that the alleged sale in favour of the defendants is subsequent to the sale in favour of the plaintiff." https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel appearing for the appellant/plaintiff would submit that the First Appellate court without properly adverting to the oral and documentary evidence let in on the side of the appellant chose to upset the judgment of the trial court. The tenor of the documents produced by the defendants was completely misquoted by the First Appellate Judge. It is her further submission that the unimpeachable testimony of the evidence of P.W.2 and P.W.3, the prior possessors of the suit property was completely ignored by the First Appellate Court. As the judgment of the First Appellate Court is found to be perverse, interference is called for, she would submit. 10. It is the case of the appellant/plaintiff that he purchased the possessory right over the suit property which admittedly belonged to the Government by virtue of two documents one dated 20.03.1986 and another one dated 27.02.1989 from Kaliamoorthy and Krishnamoorthy respectively. Both of them were also examined as P.W.2 and P.W.3 on the side of the appellant. 11. The trial court has rightly dismissed the plea for marking the unregistered document of sale alleged to have been executed by Kaliamoorthy and Krishnamoorthy transferring possessory title over the suit property to the appellant/plaintiff. As the said transfer of right in the immovable property exceeds the value of Rs.100/-, no unregistered document of conveyance can be legally executed. P.W.2 and P.W.3 have of course spoken about the sale of their possessory right over the Government poromboke in favour of the appellant/plaintiff. Such evidence cannot have any legal basis in as much as the relevant documents which transfer the possessory right they had were not registered. They cannot also speak about such a sale in the absence of any documentary proof. 12. The trial court has fallen in error in granting the relief of declaration of possessory title in favour of the appellant/plaintiff. on the following grounds. i) The Government being the paramount owner of the property may have serious objection to the grant of a decree for a declaration of possessory title in favour of the appellant/plaintiff. Unfortunately, the paramount owner of the property namely, the Government was not impleaded as a party to the suit to decide the possessory title claimed by the plaintiff/appellant. ii) It is not as if the appellant/plaintiff has sought for such a relief based on the long possession and enjoyment of the suit property. Within about a few months from the date of taking possession of the property, it appears that there had been a scramble for possession and on account of which the present suit has been instituted. The appellant/ https://hcservices.ecourts.gov.in/hcservices/ plaintiff has raised his plea for grant of declaration of possessory title based on two sale transactions, one clinched from Kaliamoorthy and another one from Krishnamoorthy. Those two documents were not marked before the trial court. Therefore, the claim for possessory title based on those two sale transactions cannot be granted. iii) It is not the case of the appellant/plaintiff that the appellant/plaintiff prescribed title over the suit property on account of the long possession and enjoyment of the same over the period prescribed under the Law of Limitation. As already pointed out, within about a few months time from taking possession of the property, dispute over possession of the property has arisen between the plaintiff on the one side and defendants on the other side. In such circumstances, I find that the lower appellate court should not have granted the relief of declaration declaring the possessory right of the plaintiff over the suit property. 13. As rightly pointed out by the learned counsel appearing for the appellant the First Appellate Court has simply ignored the evidence of P.W.2 and P.W.3 who spoke about delivery of possession to the appellant/plaintiff. The second defendant and the plaintiff have traced their right to Kaliamoorthy and Krishnamoorthy who had been admittedly in possession of the suit property. Therefore, the evidence of Kaliamoorthy and Krishnamoorthy examined as P.W.2 and P.W.3 has considerable weight in determining the question whether who was actually in possession of the suit property at the time of filing the suit. The First Appellate Court has rightly relied upon that part of the evidence of P.W.2 and P.W.3 which speak to the delivery of possession by Kaliamoorthy and Krishnamoorthy to the plaintiff. 14. The suit was filed on 21.03.1989 about a week earlier to the institution of the suit. It is found that plaintiff was served with voters list dated 16.03.1989 marked as exhibit A5. Exhibit A6 dated 01.07.1991 a house tax receipt filed by the plaintiff has come into existence long subsequent to the filing of the suit. Exhibit A1 to A3 and A7 relate to the voters list containing the name of Kaliamoorthy and Krishnamoorthy, the prior possessors of the property in the voters list which was printed and issued in the year 1988. Therefore, it is found that only a stray document dated 16.03.1989 which also came into existence about a week prior to the filing of the suit stands in the name of the plaintiff. Even the aforesaid stray document will have to be analysed in the background of the unimpeachable testimony of P.W.2 and P.W.3, the admitted prior possessors of the suit property. 15. Exhibit B1 to Exhibit B5, the house tax receipts and the land revenue receipts stand in the name of Kaliamoorthy and Krishnamoorthy. Exhibit A6, house tax receipt dated 08.02.1989 which https://hcservices.ecourts.gov.in/hcservices/ came into existence about a month prior to the institution of the suit does not relate to the suit property bearing door no.94V, but a property bearing door no.271. Exhibit A5 does not indicate that the payment of land revenue relates to the suit property. A week prior to the laying of the suit it appears that voters list dated 17.03.1989 containing the name of the defendants was issued but the same was rectified by the authorities concerned under Exhibit B10. Except house tax receipts and land revenue receipts in the name of Kaliamoorthy and Krishnamoorthy, no document worth referring to was produced by the defendants to show their possession in the property. But unfortunately, the First Appellate Court without properly referring to the content of those documents produced on the side of the defendants, has made a casual comment that voluminous documents have been produced on the side of the defendants to establish their possession in the suit property. As the First Appellate Court has patently fallen in error in not properly analysing the evidence on record and has arrived at a perverse, finding, ignoring the detailed discussion relating to the documents embarked upon by the trial court, interference with the judgment of the First Appellate Court is warranted. 16. Coming to the substantial questions of law framed by this court it is held that the First Appellate Court has fallen in error in overlooking the unimpeachable evidence of P.W.2 and P.W.3 who have categorically spoken to the delivery of possession by them to the appellant/plaintiff. But the lower appellate court has rightly ignored the alleged sale transactions spoken to both by the plaintiff and the defendants, as the said sale transaction was not clinched in accordance with law under a registered sale deed. 17. In view of the above facts and circumstances, the judgment of the First Appellate Court is set aside and the judgment of the trial court that the plaintiff is entitled to permanent injunction restraining the defendants and their men from interfering with the possession and enjoyment of the property is sustained and the decree for declaration of possessory title granted in favour of the plaintiff by the trial court stands set aside. The appeal is allowed in part. There is no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. pri https://hcservices.ecourts.gov.in/hcservices/ To 1. The Subordinate Court, Villupuram. 2. The Additional District Munsif's Court, Villupuram. 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.R.Subramanian, Advocate, SR.No.55882. S.A.No.1452 of 1995 KA (CO) A.S 05.11.2009 https://hcservices.ecourts.gov.in/hcservices/