IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 05.02.2010 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.722 of 2003 Shanmugam ..Appellant/1st Defendant Vs 1.Elumalai Gounder 2.Venni Gounder 3.Saroja 4.Munuswamy ..Respondents/Plaintiff & Defendants 2 to 4 SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 31.12.2002 made in A.S.No.73 of 1994 on the file of the Additional Sub Judge at Tindivanam confirming the Judgment and Decree dated 31.8.1994 passed in O.S.No.140 of 1988 on the file of the District Munsif Court, Tindivanam. For Appellants : Mrs. N.Mala For Respondent : Mr.V.Raghavachari – for R1 to R3 No appearance – for R4 J U D G M E N T The above Second Appeal arises against the judgment and decree in A.S.No.73 of 1994 on the file of Additional Sub Court, Tindivanam confirming the Judgment and Decree in O.S.No.140 of 1988 on the file of District Munsif Court, Tindivanam 2. The first defendant in the suit is the appellant in the above second appeal. The plaintiff is the first respondent and defendants 2 to 4 are the respondents 2 to 4 in the above second appeal. 3. The plaintiff filed the suit in O.S.No.140 of 1988 on the file of District Munsif Court, Tindivanam for declaration and injunction. https://hcservices.ecourts.gov.in/hcservices/ 4. The brief case of the plaintiff in the suit is as follows:- (i) According to the plaintiff, the suit property measuring an extent of 80 cents in S.NO.278/8 originally belonged to Kuppa Gounder and Arumuga Gounder sons of Ayyadurai Gounder and they were enjoying the property in common and about 40 years ago, they partitioned the property. The said Kuppa Gounder did not have male issue. He had three daughters namely, Lakhmigantham, Saroja and Sarasu. The said Kuppa Gounder was allotted 44 cents in S.No.278/8 out of the total extent of 80 cents. The said Kuppa Gounder,sold an extent 0.30 cents, out of 44 cents, to his son-in-law, Venni Gounder (husband of Saroja) on 21.9.1968. On the same day, he also settled the remaining extent of 0.14 cents in S.No.278/8 to his daughter Saroja. Further, in the said two documents, the survey numbers were mentioned wrongly as 278/7. However, the boundaries were mentioned correctly in the said two documents. Venni Gounder and Saroja were enjoying the lands as per the boundaries mentioned in the two documents. Venni Gounder and Saroja are the defendants 2 and 3 in the suit. On 17.8.1970, defendants 2 and 3 sold their lands measuring an extent of 44 cents to the plaintiff. The plaintiff obtained patta in respect of the property purchased on 17.8.1970. The plaintiff purchased the property as a bonafide purchaser from the defendants 2 and 3 with the survey number mentioned wrongly as survey No.278/7. (ii) According to the plaintiff, subsequent to the sale of the land to the plaintiffs, the defendants 2 and 3 joined hands with the first defendant and tried to interfere with the possession and enjoyment of the plaintiff's property. The fourth defendant is the owner of Survey No.278/7. The first defendant's father Arumuga Gounder died 20 years ago, Kuppa Gounder died 15 years ago and his wife died about 10 years ago. Since the defendants tried to interfere with the possession and enjoyment of the plaintiff's property, the plaintiff filed the suit. 5. The brief case of the first defendant is as follows: (i) According to the first defendant, though the land measuring an extent of 80 cents in Survey No.278/8 originally belonged to Ayyadurai Gounder, it was not enjoyed in common by Kuppa Gounder and Arumuga Gounder. The first defendant denied the partition between the said Kuppa Gounder and Arumuga Gounder 40 years ago. On 28.2.1931, Kuppa Gounder son of Ayyadurai Gounder and his wife Rajambal, sold an extent of 50 cents in the said 80 cents to one Ratnasabapathy Udayar and the remaining 0.30 cents belonged to Arumuga Gounder. After the sale of 50 cents on the northern side, Kuppsamy Gounder and Rajambal did not have any right over the said land in Survey NO.278/8. https://hcservices.ecourts.gov.in/hcservices/ (ii) According to the first defendant, the predecessor Ratnasabapathy sold the land to another Kuppusamy son of Narayanasamy. The said Kuppusamy's wife is the Ayyadurai Gounder's daughter. Though the said Kuppusamy belongs to Vanniar Community, he used to write his name as Kuppusamy Naidu. The said Kuppusamy Naidu is the son-in-law of Ayyadurai Gounder. The said Kuppusamy Naidu is staying in Malaysia along with his son and grand-childen. Therefore, after the sale of 50 cents by Kuppusamy Goudner to Ratnasabapathy Udayar, the above referred Kuppusamy Naidu did not possess any land. (iii) According to the first defendant, the sale deed dated 21.9.1968 is not true and genuine. Therefore, the plaintiff has no right over the suit property. Arumuga Gounder was enjoying 0.30 cents out of the total extent of 80 cents on the southern side. After the death of Arumuga Gounder, the first defendant was enjoying the said property on behalf of Kuppusamy Naidu and the plaintiff has no right over the said 0.30 cents of land on the southern side. Therefore, the first defendant prayed for dismissal of the suit. 6. Before the trial court, on the side the plaintiff, three witnesses were examined and 16 documents, Ex.A-1 to Ex.A-16 were marked and on the side of the defendants also, three witnesses were examined and 17 documents, Ex.B-1 to Ex.B-17 were marked. 7. The trial court after taking into consideration, the oral and documentary evidences of both the parties, decreed the suit as prayed for. 8. Aggrieved over the judgment and decree of the trial court, the first defendant preferred appeal in A.S.No.73 of 1984 on the file of Additional Sub Court, Tindivanam and the lower appellate court also after taking into consideration the materials available on record, 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 first defendant has filed the above second appeal. 10. Heard Mrs. N.Mala, learned counsel appearing for the appellant and Mr.V.Raghavachari, learned counsel for the first respondent. 11. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- "1.Whether the Courts below were right in law in over looking the contentions of the appellant herein that the vendors of the 1st respondent had no title to https://hcservices.ecourts.gov.in/hcservices/ pass under Ex.A.3 by virtue of the ancient sales under Exs.B.1 and B.2? 2. Whether the Courts below are right in law in not adverting to and relying upon Exs.B.1 an B.2, the ancient sale deeds of more than 30 years old filed by the appellant contrary to the presumption contemplated under section 90 of the Evidence Act? 3. Whether the courts below are right in law in not accepting secondary evidence to prove the execution and registration of Exs.B.1 and B.2 – ancient documents? " 12. The main contentions raised by Mrs. N.Mala, learned counsel appearing for the appellant are that: (i) the burden of proof was wrongly casted on the defendants; (ii) the respondents cannot question the evidentiary value of Exs. B1 and B2, which are ancient documents; and (iii) since Exs. B2 sale deed was acted upon, the respondents have no right over the suit property. In support of the said contentions, learned counsel for the appellant relied upon a judgment reported in 1993 (1) MLJ 472 (A.Sankaralingam v. Arunachala Reddiar and others. In the said judgment, this court held that where a piece of evidence even assuming not proved in the proper manner, has been admitted without objection, it is not open to the opposite party to challenge it at a later stage of litigation. Relying on the above judgment, the learned counsel for the appellant submitted that since Exs. B1 and B2 sale deeds are the documents of the year 1933 and 31 respectively, were marked without objections by the respondents, the evidentiary value of the said document cannot be questioned at a later stage. 13. Countering the submission made by the learned counsel appearing for the appellant, Mr.V.Raghavachari, learned counsel for the respondents 1 to 3 submitted that the appellant is under the obligation to prove the contents of Exs. B1 and B2, though the said documents were marked in the suit and that the consent given by a party for marking the documents, does not dispense with either proof of contents of the documents or truth of contents of the document. The learned counsel for the respondent/plaintiff has clearly proved his case by oral and documentary evidence. On the contrary, appellant/1st defendant failed to prove his case by any acceptable evidence. Learned counsel also submitted that Ex.B2 sale https://hcservices.ecourts.gov.in/hcservices/ deed was not acted upon till date. Learned counsel for the respondents 1 to 3 in support of his contentions relied upon a judgment reported in AIR 1975 MAD 257 (Karuppanna Thevar (died) and ors. v. Rajagopala Thevar and Ors.), wherein the Division Bench of this court held that the consent given by a party for marking a document does not dispense with either the proof of contents of the document or the truth or otherwise of the contents. On the same lines, the Apex Court also held in 1972(4) SCC 562 Sait Tarajee Khimchand and others v. Yelamarti Satyam @ Satteyya and others) that the mere marking of an exhibit does not dispense with the proof of documents. 14. In 2008(4) SCC 530 (Thirve gadam Pillai v. Navaneethammal and another), the Apex Court held that the admissibility of a document into evidence and proof of genuineness of such document are different issues. 15. In 2008(3) SCC 745 (Narbada Devi Gupta v. Birendra Kumar Jaiswal and another), the Apex Court held that the mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. 16. With regard to marking the certified copies of the sale deeds as Exs. B-1 and B-2, learned counsel for the respondent relied upon the following judgments: (i) 2007(2) KLT 804(SC) ( Yashoda v. Shobha Rani), wherein the Apex Court held as follows: "8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in S.63 is exhaustive as the section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence. 9. The rule which is the most universal, namely hat the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. S.65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under S.64, documents are to be proved by primary evidence. S.65 however permits secondary evidence to be given of the existence, condition or contents of documents under the https://hcservices.ecourts.gov.in/hcservices/ circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. (ii) 1996 (8) SCC 357 (Lakhi Baruah and others v. Padma Kanta Kalita and others), wherein the Apex Court held as follows: 16. ... If the document produced was a copy admitted under section 65 as secondary evidence and it was produced from proper custody and was over thirty years old, then the signature authenticating the copy might be presumed to be genuine; but production of the copy was not sufficient to justify the presumption of de execution of the original under section 90. 17. On a careful consideration of the materials available on record and the submissions made by both the learned counsels, it could be seen that the suit property is an extent of 44 cents out of the larger extent of 80 cents in Survey No.278/8. The land measuring an extent of 80 cents in S.No.278/8 originally belonged to Kuppa Goudner and Arumuga Gounder sons of Ayyadurai Goudner. According to the first respondent/plaintiff, they were enjoying the property in common and that they partitioned the property about 40 years ago. Kuppa Gounder did not have male issues and had three daughters namely, Lakhmigantham, Saroja and Sarasu. According to the first respondent/plaintiff, 44 cents were allotted to the Kuppa Gounder and out of the said 44 cents, he sold 30 cents to his son-in-law Venni Gounder, the second respondent, under Ex.A-1 dated 21.9.1968. On the same day, under Ex.A-2 settlement deed, the said Kuppa Gounder also settled the remaining extent of 14 cents to his daughter Saroja, the third defendant. 18. According to the first respondent/plaintiff, the property measuring an extent of 80 cents in Survey No.278/8 was not the common property of Kuppa Goudner and Arumuga Goudner and there was no partition 40 years ago. According to the appellant, out of 80 cents of land, Ayyadurai Gounder's son Kuppa Gounder and his wife Rajambal sold an extent of 50 cents on 28.2.1931 under Ex.B2 sale deed to one Ratnasabapathy Udayar and the remaining 30 cents on the southern side was enjoyed by Ayyadurai Gounder's second son Arumuga Gounder; that after the sale of 50 cents to Ratnasabapathy on 28.2.1931, Kuppa Gounder and his wife Rajambal did not have any land left with them in Survey No.278/8. Though the appellant contended that when Kuppusamy Naidu left to Malaysia, handed over the possession of 50 cents to Arumuga Gounder and after the death of Arumuga Gounder, the appellant was in enjoyment of the entire extent https://hcservices.ecourts.gov.in/hcservices/ of 80 cents, from the above contention it could be seen that even according to the appellant his father, Arumuga Goudner was only a care taker of the land belonged to Kuppusamy Naidu and he did not have any title or right over the land measuring an extent of 50 cents. The appellant did not produce any document to prove his title or enjoyment over the suit property. The appellant marked Ex. B1 sale deed dated 11.2.1933 executed by one Muthu Ratnasabapathy Udayar in favour of Kuppusamy Naidu. Ex.B-2 is the certified copy of sale deed dated 28.2.1931 executed by Kuppa Gounder and others in favour of Ratnasabapathy Udayar. Learned counsel for the appellant contended that since these two documents are ancient documents, it need not be proved; since these two documents were marked in the suit without objections by the respondents, the evidentiary value of the said document cannot be questioned at a later point of time. However, from the judgments relied on by the learned counsel for the respondents, it is clear that the consent given by a party for marking a document does not dispense with either the proof of contents of the document or the truth or otherwise of the contents. The mere marking of a document does not dispense with the proof of the said documents. The admissibility of a document into evidence and proof of genuineness of such document are different issues. 19. In the present case, the appellant/defendant though marked the documents as Exs.B-1 and B-2, did not examine any witness to prove the contents of the documents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Therefore, I am of the view that the two sale deeds namely, Exs. B-1 and B-2 marked on the side of the appellant cannot be construed as proved documents. 20. With regard to the contention of ancient documents, the language of section 90 of Indian Evidence Act clearly indicates that the production of the particular document may be necessary for applying statutory presumption. If the document produced was a copy admitted under section 65 as secondary evidence and it was produced from proper custody and was over 30 years old, then the signature authenticating the copy might be presumed to be genuine but the production of the copy was not sufficient to justify the presumption of due execution of the original under section 90. Though the documents Exs. B-1 and B-2 sale deeds are of the year 1933 and 1931 respectively, the said documents are only the certified copies of the original sale deeds. 21. Applying the principles laid down in the above judgments, it is not sufficient to justify the presumption of due execution of the original under section 90 of the Indian Evidence Act. In these circumstances, the judgments relied pon by the learned counsel for the appellant is not applicable to the case on hand. The appellant https://hcservices.ecourts.gov.in/hcservices/ also failed to produce any evidence to prove that Kuppusamy Naidu purchased the property in the year 1931 under Ex.B2 and that he is in possession and enjoyment of the suit property. That apart, the appellant also failed to prove by any acceptable evidence that the said Kuppsamy Naidu handed over the possession of the suit property to appellant's father Arumuga Goudner and after the death of Arumuga Goudner, the appellant is in possession and enjoyment of the property. The respondent produced Ex.A3 sale deed executed by respondents 2 and 3/defendants 2 and 3 to prove that the property belongs to him. He also produced Ex.A-4 patta to prove his possession over the property. The respondent also produced Adangal, Chitta and tax receipts to prove his possession over the suit property. Therefore, the courts below have rightly decreed the suit as prayed for. 22. In these circumstances, I find no ground much less substantial question of law to interfere with the findings of the courts below. The above second appeal is liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rj To 1.The Additional Subordinate Judge, Tindivanam. 2.The District Munsif Court, Tindivanam. Copy to: The Section Officer, V.R. Section, High Court, Madras. + 1 c.c. to Mr. V. Raghavachari, Advocate. S.R.No.7121. S.A.No.722 of 2003 RSM (CO) GSK 01.03.2010. https://hcservices.ecourts.gov.in/hcservices/