IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 18.08.2010 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL S.A.No.764 of 1997 Rangaswami ... Appellant/First Defendant Vs 1.T.V.Krishnan (died) 2.Belliammal 3.Rajammal 4.Jayalakshmi 5.Rukmani 6.Sethuraman 7.Chinnasamy (died) (Already given up) 8.Thoppaiyan 9.Lakshmi 10.Janaki 11.Renuka 12.Sakunthala 13.K.Venkataraj (Respondents 9 to 13 are brought on record as LRs of decreased First Respondent vide order dated 16.08.2004 made in CMP No.18832 of 2003 ... Respondents PRAYER: Appeal is filed under Section 100 Cr.P.C as against the Judgment and decree dated 12.07.1996 made in A.S.No.29 of 1995 on the file of the II Additional District Judge, Coimbatore, confirming the Judgment and decree dated 12.07.1994 made in O.S.No.92 of 1990 on the file of III Additional District Munsif Court, Coimbatore. For Appellant : Mr.B.Soundarapandian For Respondents : No Appearance for R2 to R6 No Appearance for R8 to R13 JUDGMENT The Appellant/First defendant has projected the Second Appeal before this Court as against the Judgment and decree dated 12.07.1996 made in A.S.No.29 of 1995 on the file of the Learned II Additional District Judge, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 2.The First Appellate Court viz., the Learned II Additional District Judge, Coimbatore dated 12.07.1996 has among other things observed that 'Ex.A.3 Sale Deed dated 31.05.1961 has cogently traced the history of the title which had devolved upon Narayanan Chettiar even during the life time of Karian Chettiar and further opined that DW1 has admitted that he was permitted to occupy the suit property just because his property is situated opposite to the suit property etc., and has come resultant conclusion that the trial Court Judgement and Decree made in O.S.No.92 of 1990, dated 12.07.1994 do not warrant any interference and dismissed the Appeal with costs. 3.Before the trial Court, three issues have been framed for determination in the case. On behalf of the Respondents/Plaintiffs witnesses PW1 to PW3 have been examined and Ex.A.1 to Ex.A.5 have been marked. On the side of the Defendants, DW1 has been examined and Ex.B.1 to Ex.B.4 have been marked. 4.The trial Court on appreciation of oral and documentary evidence available on record has come to the conclusion that the Respondents/Plaintiffs are entitled to the relief of declaration that they are the owners of the suit property and also they are entitled to get the relief of recovery of the possession and accordingly decreed the suit leaving the parties to bear their own costs. 5.Being dissatisfied with the Judgment and Decree of the First Appellate Court in A.S.No.29 of 1995, dated 12.07.1996, the Appellant/First Defendant has filed the present Appeal before this Court. 6.At the time of admission of the Second Appeal, this Court has framed the following substantial questions of law for rumination; "1. Whether the reasoning of the Courts below that since Ex.A.3 is 30 years old, the entire contents of it can be taken to have proved are legally sustainable when it is in contravention to Section 90 of the Indian Evidence Act? 2.Whether the Courts below are correct in exonerating the Respondents/Plaintiffs from the clutches of Section 110 of the Indian Evidence Act in not demanding strict proof for their act of attributing permissive possession and subsequent trespass by the Appellant?. 7.The contentions, discussions and findings on substantial questions of law 1 and 2: According to the Learned Counsel for the Appellant/First Defendant, the trial Court as well as the First Appellate Court have not appreciated of the fact that Narayanan Chettiar has no right https://hcservices.ecourts.gov.in/hcservices/ title and interest in respect of the suit property and as such the suit filed by the Respondents/Plaintiffs is not maintainable in law. 8.Advancing his arguments, the Learned Counsel for the Appellant/First Defendant contends that no partition has been effected between Karian Chettiar and his son Narayanan Chettiar as present Appellant/First Defendant, but this aspect of the matter has not been taken note of by both the Courts below. 9.It is the further contention on the side of the Appellant/First Defendant that the suit property has been a self-acquired one of Karian Chettiar and the Sale Deed purported to be executed by Narayanan Chettiar when Karian Chettiar has been alive, then Narayanan Chettiar has no right over the suit property and all the more, no partition has been effected between Karian Chettiar and his son. A plea has projected on the side of the Appellant/First Defendant that no document has been produced by the Respondents/Plaintiffs to show that the property has been marked to Rangammal for Rs.300/- and she instituted a suit in O.S.No.1163 of 1959 and that a sum of Rs.375/- has been paid by Narayanan Chettiar on 05.06.1991. 10.The Learned Counsel for the Appellant/First Defendant urges before this Court that the Appellant/First Defendant has been in exclusive possession and enjoyment for more than 30 years in respect of the suit property and therefore, he has perfected title by means of Adverse possession. 11.In short, the contention of the Learned Counsel for the Appellant/First Defendant is that the aforesaid material aspects of the matter have not been adverted to by the Courts below in real and proper perspective which has resulted in serious miscarriage of justice and therefore prays for allowing the Appeal in furtherance of substantial cause of justice. 12.In the plaint filed by the Plaintiffs it is among other things averred that 'one Narayanan Chettiar and the First Defendant (Appellant) are brothers and they divided their properties and enjoy them separately and that the suit property fell to the share of Narayanan Chettiar, who died long ago and during his life time he executed a Sale Deed on 31.05.1961 in favour of the father of the Plaintiffs 1 to 3 i.e., Venkita Chettiar in regard to the suit property and the father of the Plaintiffs had expired and he was in actual possession and enjoyment of the suit property and after his death, the Plaintiffs, who are the legal heirs of Venkita Chettiar, were in actual possession and enjoyment of the suit property.' 13.That apart, in the plaint, the Plaintiffs 1 to 3 have also stated that the First Plaintiff died on 23.02.1992, leaving behind https://hcservices.ecourts.gov.in/hcservices/ the Will dated 13.07.1990, in favour of the fourth Plaintiff-his wife and she is entitled to 1/3rd share of the deceased/First Plaintiff's in the suit property. Further, the second Plaintiff also expired on 08.01.1993 and the Plaintiffs 5 to 8 are the legal heirs and hence, they are entitled to 1/3rd share of second Plaintiff's in the suit property. More over, after the demise of Plaintiffs 1 and 2, the other Plaintiffs are in actual possession and enjoyment of the suit property. According to the Plaintiffs, who are away from the suit property and the Appellant/First Defendant tried to put up a small shed and there was warranted along with the similar persons namely D2 and D3 by means of legal notice on 08.05.1989, in respect of the same the Appellant/Defendant has trespassed into the suit property illegally. Hence, the Plaintiffs have filed the suit seeking the relief of declaration that they are entitled to the suit property and for recovery of possession of the suit property from the Defendants. 14.The Appellant/First Defendant before the trial Court, in the written statement has among other things pleaded that on 05.10.1944, the Appellant/First Defendant's father Karian Chettiar purchased the house property from one Krishna Iyer and he has been in possession and enjoyment of the same during his life time and then Karian Chettiar died leaving the Appellant and his brother Narayanan Chettiar as legal heirs to succeed the assets his liabilities and after the death of his father he has been in possession and enjoyment of the property and his brother Narayanan Chettiar died issueless. 15.The Appellant/First Defendant has put forward a plea that his father has been the absolute owner of the property and therefore his son Narayanan Chettiar has no right to execute any Sale Deed in respect of the property in favour of the Plaintiff's father and even if the Sale Deed has been executed by Narayanan Chettiar, the same has not been acted upon and that the seller has got no right over the same. 16.The stand of the Appellant/First Defendant is that since the house purchased by the Defendant's father collapsed, the Appellant/First Defendant has put up a building of the single top with an extent of 16' x 17' feet and apart from the portion and occupation of the portion, there is mutton stall, village key centre to purchase the milk etc. 17.The main contention of the Appellant/First Defendant is that he is the absolute owner of the property and he has let out the property to the Defendants 1 and 3/Tenants. 18.It is to be pointed out that a document of 30 years old prove itself. In fact, Section 90 of the Indian Evidence Act deals with the amount of credit which is to be attached to the certain documents whose age and custody raise a presumption of genuiness. https://hcservices.ecourts.gov.in/hcservices/ 19.The term "Proper Custody" is a condition precedent to the application of Section 90 of the Indian Evidence Act. Proper Custody means custody of any individual connected with the deed that his possession of it does not excite any fraud of suspicion, as opined by this Court, only in exercise of judicial discretion, it will be decided whether the Court will make the presumption or call upon the party to offer proof. 20.An ancient document ought to be corroborated by some evidence. When genuiness of document is disputed, then a Competent Court of law will consider the external and internal evidences of the document in regard to the acceptance of this signature, execution or attestation. 21.As per Section 110 of the Indian Evidence Act, when a person is in possession of property, the burden of proving that he is not the Owner lies on the person so asserting. An individual in possession starts with a presumption of title in his favour and it is for the other side to show that former's possession is not the evidence of title and he has a superior title in himself. In the instant case, the Plaintiffs have established their title to the suit property. 22.It transpires from the contents of Ex.A.3 Sale Deed dated 31.05.1961 in favour of Venkita Chettiar executed by Narayanan Chettiar that the partition in the family of Narayanan Chettiar has taken place and that the allotment of the suit property has fallen to the share of the said Narayanan Chettiar. Also in the said document there is a recital that Rangammal has got a Decree in O.S.No.1163 of 1959 against Narayanan Chettiar on the basis of Mortgage Deed executed by him for the loan of Rs.300/- taken from her. It is to be borne in mind that Ex.A.3 Sale Deed dated 31.05.1961 is a 30 years document and as per the ingredients of Section 90 of the Indian Evidence Act, the said document assumes significance and it can be acted upon and it requires no formal proof in the eye of law, as opined by this Court. From Ex.B.4 house Tax receipt it can be seen that the same are after filing of the suit and one cannot attach much importance to the same. At this stage, this Court pertinently points out the evidence of the Appellant/First Defendant wherein he has deposed that during his father's life time there is no partition in respect of the suit property and the suit property has been purchased by his father Karian Chettiar from one Krishna Iyer as per Ex.B.1 and his father name is Karian Chettiar. It is the further evidence of DW1 that the suit property is in his possession for the last 50 years. 23.It is the evidence of PW1 that the Appellant/First Defendant is in the suit property and therefore, he has been asked to look https://hcservices.ecourts.gov.in/hcservices/ after the suit property and at that point of time in the suit property there has been a house and later on that the house got collapsed and thereafter the suit property is remaining as a vacant one and he has asked the third Defendant and others to vacate from the suit property before the filing of the suit. 24.The evidence of PW2 is to the effect that she is the wife of the First Plaintiff and that she has been added as a fourth Plaintiff in the suit because of the death of her husband namely the First Plaintiff and in the suit property her husband is entitled to get 1/3 share and in respect of his share in the suit property. Her husband has executed a Will and as per the said Will in the suit property she is entitled to claim 1/3 share. 25.PW3 in his evidence has stated that the First Plaintiff is not alive now and the first Plaintiff during 1990 in the month of July has executed a Ex.A.5 Will dated and the recitals to the Will has been mentioned by the first Plaintiff, which has been returned by the document writer and at that point of time, the First Plaintiff has been in a sound state of mind and he has executed the said Will out of his own free volition, without any compulsion or inducement from any one and the First Plaintiff has singed in the Will and he has seen the first Plaintiff putting his signature along with one Venkataramanan. Ex.A.3, Sale Deed is the thirstiest document and the same cannot be attacked by the Appellant/First Defendant though on the side of the Appellant/First Defendant, it is stated that apart from the suit properties and other properties have been changed in his name in the Revenue records and if really the Appellant is entitled to claim right over the suit property, then he has not satisfactorily explained as to why he has not changed the Revenue records in his name pertinent to the suit property and this circumstance is certainly unfavourable to the Appellant/First Defendant, in the considered opinion of this Court. Added further, when Ex.A.3 Sale Deed dated 31.05.1961 has been executed in favour of Venkita Chettiar, then it is quite evident that no objections have been raised at the point of time one cannot ignore an important fact that when the suit property has come up in auction, the balance money has been paid to Narayanan Chettiar and at the time also the second Defendant or his brother have not raised any objections. Therefore, it is quite evident that Ex.A.3 Sale Deed dated 31.05.1961 clothed the right to the holder of the said document. 26.Coming to the aspect of the Appellant/First Defendant claiming right by means of Ex.B.1 Sale Deed dated 05.10.1944, it is to be pointed out that the Appellant/First Defendant in his evidence as DW1 has stated that if it is mentioned in the written statement that if his brother has half right then the same is incorrect one and https://hcservices.ecourts.gov.in/hcservices/ even in the written statement he has not stated that he has got the property by means of enjoyment but he has mentioned that he has got enjoyment of the right on the basis of his own property. When a person claims title in respect of the suit property by his owner by means of a Sale Deed, then he cannot later on turn round and plead adverse possession. Claiming ownership in respect of the property by means of the document is one thing and pleading Adverse possession on the basis of the enjoyment is altogether a different preposition of law. Suffice it for this Court to point out that since Ex.A.3 Sale Deed dated 31.05.1961 is an ancient document of well-over 30 years and upon appreciation of oral and documentary evidence available on record, this Court comes to an inevitable conclusion that both the Courts below have arrived at a fair and just conclusion that the Plaintiffs are entitled to claim declaratory relief as well as the recovery of the possession based on the fact that the suit property belonged to them and also because of the admission of DW1 that he has been permitted to occupy the suit property the finding of both the Courts relieving the Respondents/Plaintiffs from the purview of Section 110 of the Indian Evidence Act do not suffer from any material irregularity or patent illegality and accordingly, the substantial questions of law Nos.1 and 2 are answered and resultantly, the Second Appeal fails. 27.In the result, the Second Appeal is dismissed. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs. Consequently, the Judgment and Decree dated 12.07.1996 in A.S.No.29 of 1995 passed by the Learned II Additional District Judge, Coimbatore and the Judgment and Decree dated 12.07.1994 in O.S.No.92 of 1990 passed by the Learned III Additional District Munsif Court, Coimbatore are confirmed by this Court for the reason assigned in the Second Appeal. Sd/ Asst.Registrar 14.9.2010 Subsequently Corrected and re-transferred on 21.10.2010 Sd/- Asst.Registrar 3.11.2010 /true copy/ Sub Asst.Registrar mps https://hcservices.ecourts.gov.in/hcservices/ To 1.The II Additional District Judge, )corrected order to Coimbatore. ) be substituted for )the order already 2.The III Additional District Munsif Court, )despatched on 6.10.2010 Coimbatore. ) ) 3.The Section Officer, ) V.R.Section, High Court, Madras. ) ) 1 cc to Mr.B.Soundarapandian, Advocate, ) Sr.No.60741 ) S.A.No.764 of 1997 GR {CO} TP/16.9.2010. GR(CO) km/8.11. https://hcservices.ecourts.gov.in/hcservices/