IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.07.2011 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Second Appeal No.730 of 2002 SAMINTHAN ... Appellant/4th Defendant Vs 1.PONNAMMAL 2.NARAYANASAMY ... Respondents/Plaintiffs 3.THE TIRUVANNAMALAI ELECTRICITY SYSTEM REP. BY ITS SUPERINTENDING ENGINEER, TIRUVANNAMALAI. 4.THE EXECUTIVE ENGINNER(O&M) TAMIL NADU ELECTRICITY BOARD, TIRUVANNAMALAI ELECTRICITY SYSTEM TIRUVANNAMALAI. 5.THE JUNIOR ENGINEER TIRUVANNAMALAI RURAL-EAST, TAMIL NADU ELECTRICITY BOARD, VENGIKKAL, TIRUVANNAMALAI. ... Respondents/Defendants 1 to 3 Appeal filed under Section 100 C.P.C., against the judgment and decree dated 22.02.2002 made in A.S.No.92 of 2004 on the file of Addl. District Judge, Tiruvannamalai confirming the judgment and decree dated 25.07.2001 made in O.S.No.349 of 1999 on the file of Principal District Munsif, Tiruvannamalai. For Appellant : Ms.P.Veena for Mr.T.R.Rajaraman For Respondents: Mr.K.A.Vimal Kumar for M/s.Sarvabhauman Associates for R1 & R2 Mr.G.Vasudevan for R3 to R5(TNEB) JUDGMENT As against the concurrent findings of the trial Court as well as the First Appellate Court, the fourth defendant in O.S.No.349 of 1999 on the file of the learned Principal District Munsif, Thiruvannamalai https://hcservices.ecourts.gov.in/hcservices/ is before this Court with this second appeal. The respondents 1 and 2 are the plaintiffs and the respondents 3 to 5 are the defendants 1 to 3 in the suit. The said suit was filed for declaration of title and for consequential relief of injunction to restrain the defendants from interfering with the second plaintiff’s exclusive possession of the suit property and also for mandatory injunction to the defendants 1 to 3 to transfer the electricity Service Connection No.77 from the name of the fourth defendant to the name of the second plaintiff. The suit was decreed as prayed for and the same was confirmed by the First Appellate Court. 2.The facts of the case as could be culled out from the plaint are as follows:- The suit property is comprised in S.No.8/4C at Kilanathur Village in Thiruvannamalai District. Admittedly, there is a Well in the said property. To lift water for agricultural purposes from the said Well, electricity service connection has been given by the defendants 1 to 3 under Service Connection No.77. The said service connection was all along in the name of the first plaintiff, the mother of the second plaintiff. The first plaintiff executed a settlement deed in favour of the second plaintiff on 13.04.1999. The same was acted upon. As per the settlement deed, the second plaintiff has become the absolute owner of the suit property including the Well. Thereafter, the second plaintiff approached the respondents 1 to 3 for transfer of electricity service connection in his name. But he was informed that the electricity service connection had already been transferred in favour of the fourth defendant. On enquiries, he came to know that the first plaintiff gave a consent letter in favour of the fourth defendant transferring the electricity service connection in his name and only on that basis, such transfer was effected. According to the plaintiffs, no such consent letter was given freely by the first plaintiff to the fourth defendant and the socalled consent letter which was acted upon by the defendants 1 to 3 was obtained by fraud and forgery. With these allegations, the plaintiffs filed the suit for the reliefs as stated above. 3.In the written statement filed by the defendants 1 to 3, it is stated that electricity service connection was originally in the name of the first plaintiff. But a settlement deed was executed by the first plaintiff in the name of the fourth defendant on 14.12.1998, in which, the first plaintiff had given consent for transfer of electricity service connection in favour of the fourth defendant. It is only on that basis, the service connection was transferred in the name of the fourth defendant. 4.The fourth defendant in his written statement has stated that the suit property was not exclusively owned by the first plaintiff as it is claimed by the plaintiffs. Instead, the suit property was jointly purchased by the mother of the fourth defendant https://hcservices.ecourts.gov.in/hcservices/ Mrs.Dhanabagiyammal and the first plaintiff. Mrs.Dhanabagiyammal is the younger sister of the first plaintiff. There was oral partition during the month of June 1993 between Mrs.Dhanabagiyammal and the first plaintiff. In the said partition, half of the suit property was allotted to the share of Mrs.Dhanabagiyammal. The half share in the Well was also allotted in her favour. Thereafter, when the electricity service connection was originally sought jointly in the name of the first plaintiff and Mrs.Dhanabagiyammal, the Tamil Nadu Electricity Board said that such joint application could not be entertained. It was because of that technical reason, service connection was obtained only in the name of the first plaintiff. However, the motor was purchased by the fourth defendant and subsequently, the Well as well as the electricity service connection were jointly enjoyed by both. Subsequently, the first plaintiff gave a consent letter for transfer of the service connection in the name of the fourth defendant. It was on this basis, the service connection was transferred. The said consent letter was executed on 14.12.1998. Therefore, according to the fourth defendant, the plaintiffs are not entitled for the decree as prayed for. 5.Based on the above pleadings, the trial Court framed appropriate issues and proceeded with the trial. On the side of the plaintiffs, they were examined as P.Ws.1 and 2 respectively and as many as seven documents were exhibited. On the side of the defendants, the fourth defendant alone was examined as D.W.1 and four documents were exhibited. 6.Having considered the above materials, the trial Court decreed the suit as prayed for and the same was confirmed by the First Appellate Court. That is how the appellant/fourth defendant is before this Court with this second appeal. 7.While admitting the second appeal, this Court has framed the following substantial questions of law:- “1.Have not the Courts below committed an error in not coming to the conclusion, when it is alleged that the consent letter was obtained from the plaintiff by fraud and coercion, the burden is on the plaintiff to prove the same? 2.Is the learned Additional District Judge correct in decreeing the suit on the loopholes found in the defendants’ case, when the plaintiff has to fail or succeed on his own case?” 8.There is no controversy before this Court between the learned counsel on either side that the suit property does not relate to only the electricity service connection No.77 but also it includes the land and Well comprised in S.No.8/4C. Admittedly, there is a prayer for declaration of title in respect of the land and the Well. It is the positive case of the plaintiffs that the land and Well were https://hcservices.ecourts.gov.in/hcservices/ exclusively owned by the first plaintiff. But, I do not find any pleading as to how the first plaintiff acquired the said property, whether by means of any purchase, or by means of any other mode like inheritance etc. Equally bad is the case of the fourth defendant. The fourth defendant claims that the suit property had been jointly purchased by the first plaintiff and his mother. The written statement filed by the fourth defendant also does not disclose as to when and from whom and for what consideration, the suit property was purchased by the first plaintiff and the mother of the fourth defendant. No document whatsoever has been filed by the fourth defendant to prove the said joint purchase. Both the parties have pressed into service only the oral evidence. The plaintiffs 1 and 2 have examined themselves alone to establish the title for the suit property. Similarly, the fourth defendant examined himself as D.W.1 to prove his case. I am at a loss to find as to how the Civil Court could decide a disputed question of title solely on the basis of these oral evidences. When both parties claim title over the suit property, under different transactions, which are evidenced by documents, I am unable to understand as to how the parties were satisfied by merely letting oral evidences alone without producing the documents. I am at a loss to understand as to how it does not even strike the mind of the parties that atleast the revenue records such as patta, chitta, adangal etc., should be produced during trial. It is needless to point out that the oral evidence in respect of title is only a secondary evidence and the primary evidence is the documents relating to the transactions. Without producing the primary evidence, I do not understand as to how the Courts below could admit the oral evidence and rely on the same. This is a classic case where both the parties have not been very serious about the case to establish their rival claims. 9.In the written statement of the fourth defendant, though it is stated that a consent letter dated 14.12.1998 was executed by the first plaintiff in his favour, I do not understand as to why the said document has not been produced during evidence. Further, in relation to the transfer of electricity service connection including the document submitted by the fourth defendant has also not been sent for and proved in evidence. Curiously, the defendants 1 to 3 have stated in the written statement that a settlement deed was executed by the first plaintiff on 14.12.1998 in favour of the fourth defendant. But that is not the case of the fourth defendant at all. I do not understand as to where from the defendants 1 to 3 came to know that there was such a settlement deed executed by the first plaintiff in favour of fourth defendant. Even the said document was not produced before the trial Court. The Courts below have not at all considered these aspects, while decreeing the suit in favour of the plaintiffs. 10.The question of title is a very serious matter which is to be adjudicated upon based on acceptable legal evidence. For mere asking by a party, the Court cannot grant a decree. This is a classic https://hcservices.ecourts.gov.in/hcservices/ example of a decree being passed for mere asking not on any legally acceptable evidence but on materials which are highly irrelevant. Therefore, I have no hesitation to interfere with the judgments of the Courts below. At the same time, for the lapse on the part of somebody who was incharge of the case on either side, I am of the view that by simply dismissing the appeal, justice should not be allowed to fail. Therefore, I feel that the matter needs to be remitted back to the trial Court to afford opportunity to both parties and to conduct trial properly and for disposal in accordance with law. 11.In the result, the second appeal is allowed; the decree and judgments passed by the trial Court and confirmed by the First Appellate Court is set aside and the matter is remitted back to the trial Court for fresh disposal in accordance with law. Before the trial Court, the parties shall be at liberty to adduce further evidence both oral as well as documentary on either side. The trial Court shall however, dispose of the suit within a period of six months from the date of receipt of a copy of this judgment. If the parties fail to co-operate for the disposal of the suit in time, the trial Court shall proceed to dispose of the same on the basis of the available materials. However, considering the nature of the case, there shall be no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar jbm To 1.The Addl. District Judge, Tiruvannamalai. 2.The Principal District Munsif, Tiruvannamalai. 1 cc To M/s.Sarvabhuaman Associates, Advocate, SR.45902. S.A No.730 of 2002 SGL(CO) RVL 30.08.2011 https://hcservices.ecourts.gov.in/hcservices/