IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2011 CORAM THE HONOURABLE MS. JUSTICE R. MALA A.S.No.411 of 2007 & M.P.Nos.1 and 2 of 2011 and A.S.No. 465 of 2008 In A.S.No.411 of 2007 1.Chinnathayammal 2.Indira Gandhi 3.Shanthi 4.Kamala 5.Sakthivel Murugan .. Appellants vs. 1.K.Padmavathy Rep. by her power of attorney Agent S.Chandrasekaran 2.V.Shankar .. Respondents In A.S.No.465 of 2008 K.Padmavathy Rep. by her power of attorney Agent S.Chandrasekaran .. Appellant vs. 1.Chinnathayammal 2.Indira Gandhi 3.Shanthi 4.Kamala 5.Sakthivel Murugan 6.V.Shankar .. Respondents Prayer: The Appeal Suits (First Appeals) preferred under Section 96 of C.P.C., against the judgment and decree dated 19.12.2006 made in O.S.No.52 of 2005 on the file of the Additional District Court(Fast Track Court No.II), Salem. For Appellant in A.S.No.411 of 2007 : Mr.D.Shivakumaran For Appellant in A.S.No.465 of 2008 : Mr.T.R.Rajaraman For Respondents in A.S.No.411 of 2007 : Mr.V.Pauldas for R1 Mr.R.Neelakandan for R2 For Respondents in A.S.No.465 of 2008 : Mr.D.Shivakumaran for RR1 to 5 R6-served. https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT The Appeal Suits (First Appeals) arise out of the judgment and decree dated 19.12.2006 made in O.S.No.52 of 2005 on the file of the Additional District Court (Fast Track Court No.II), Salem. 2.The averments made in the plaint are as follows: (i)The suit property and other items of the properties were the joint family properties of one Sengoda Gounder and his son Vaiyapuri Gounder. Vaiyapuri Gounder's first wife is Chinnammal, 2nd wife is Vellayammal. Two sons begotten through Chinnammal (first wife) namely (1) Palanisamy Gounder and (2) Kandasamy Gounder. The second wife Vellayammal begotten five sons namely, (1) Lakshmanan (2) Periya Sengodan (3)Adappan @ Pera Pandara Gounder (4) Periyathambi @ Vaiyapuri Gounder and (5) Chinna Thambi @ Sengoda Gounder. (ii) The joint family properties have been divided between them on 20.02.1956. The suit property and some other properties were allotted to the share of Vellayammal and her sons. They divided their properties into house sites and they sold the same as house sites to several persons and the lands in T.S.No.79 were subdivided according to the layout plan. (iii) Item No.1 of the suit property in T.S.No.79/42 was one such house site and it was sold by Vellayammal and her sons Lakshmanan and Adappan @ Pera Pandaram in favour of one Manickavasagam on 05.03.1974 for Rs.5,500/- and he was in possession and enjoyment of the property. Subsequently, Manickavasagam sold the same to the plaintiff/Padmavathy on 28.08.1980 for Rs.14,000/-. (iv) Item No.2 of the suit properties were formed part of the house site in T.S.No.79/43, which was measuring 40 feet East-West and 70 feet North-South. It was sold to one Nagarathinam Ammal by Vellayammal and her two sons Lakshmanan and Adappan @ Pera Pandaram on 05.03.1974 for Rs.5,500/-. Nagarathinam Ammal, in turn, sold the same in favour of one Mohan Kumar on 28.08.1980. The properties in Item Nos. 1 and 2 are contiguous properties. Mohan Kumar sold his portion to the plaintiff/Padmavathy on 31.08.1981. So the plaintiff is the absolute owner of the properties in Item Nos. 1 and 2. (v) The first defendant is the mother of the defendants 2 to 5. The first defendant's husband Adappan @ Pera Pandaram representing the fifth defendant, who was then a minor sold the suit properties under a sale deed dated 05.03.1974. The sale is binding on the defendants 1 to 5. The plaintiff was in peaceful possession and enjoyment of the same without any disturbance for more than statutory period. (vi) The suit property in item No.3 was a vacant house site and on 21.06.2000, the defendants 1 to 5 attempted to interfere the https://hcservices.ecourts.gov.in/hcservices/ plaintiff's possession. Therefore, the plaintiff was constrained to file a suit in O.S.No.430 of 2000, on the file of the District Munsif Court, Salem, for a relief of permanent injunction against the defendants 1 to 5. Since the sixth defendant claims to be a tenant on item No.3 of the suit property, he was impleaded in the suit. Since no injunction was granted in the suit, the defendants 1 to 5 along with the sixth defendant trespassed into the suit property and put up a temporary construction. Subsequent to the trespass of the defendants into the suit property, the plaintiff amended the plaint for mandatory injunction directing the defendants to demolish the structures and remove them from the suit property. Since no appropriate relief has been sought for, the plaintiff is constrained to file a suit for declaration of title and recovery of possession, after removing superstructure and prayed for a decree. 3. The gist and essence of the written statement filed by the third defendant, adopted by the defendants 1,2,4 and 5 are as follows:- (i)The relationship mentioned in para-3 of the plaint and the partition on 20.02.1956 are admitted. The suit property and the other properties allotted to the share of Vellayammal and her five sons are also admitted. But it is not true that the Item No.1 of the suit properties, allotted to the share of Vellyammal and her sons Lakshmanan and Adapan @ Perapandaram in T.S.No.79/42 were sold by them to one Manickavasagam. It is also not true that the said Manickavasagam sold the same to the plaintiff and the plaintiff was in possession and enjoyment. The defendants' grand mother, paternal uncle and their father have not executed any sale deed to anybody at any point of time. (ii) The plaintiff is not the absolute owner of the item Nos. 1 and 2 of the properties as item No.3 of the suit property. If really the plaintiff purchased the suit properties, she might have taken possession and might been in possession for all those years. Now only the plaintiff is trying to take forcible possession with an intention to dispose the property as it is her own property. Since the plaintiff was not able to prove her case and has "not pressed" the suit in O.S.No.430 of 2000, the suit was dismissed as withdrawn. The defendants never trespassed into the suit property and there is no cause of action for the suit. Hence, the defendants prayed for the dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, framed four issues and considering the oral evidence of P.W.1, P.W.2 and D.W.1 and documentary evidence of Exs.A1 to A35 and B1 to B11 and X1, decreed the suit without costs, against which, the defendants 1 to 5 have come forward with the Appeal Suit in A.S.No.411 of 2007. Since the suit was decreed without costs, the https://hcservices.ecourts.gov.in/hcservices/ plaintiff has come forward with the Appeal Suit in A.S.No.465 of 2008. 5.During the pendency of the appeal suits, the plaintiff has come forward with M.P.No.1 of 2011 for reception of additional evidence. 6.The averments in the affidavit filed in M.P.No.1 of 2011 are as follows: (i) Item Nos.1 and 2 of the suit properties were belonged to Lakshmanan, Adappan @ Pera Pandaram and their mother Vellayammal. They sold the same to Manickavasagam and Nagarathinam Ammal under two registered sale deeds dated 05.03.1974, which were marked as Exs.A3 and A5. (ii) This petitioner wanted to file the certified copy of the Re-settlement Register showing the transfer of patta in favour of the said purchasers namely, Manickavasagam and Nagarathinam Ammal. Due to mistake and mix-up of papers, instead of producing the certified copy of the Re-settlement Register dated 04.11.1974, they produced only the Re-settlement Register in respect of the transfer of patta in favour of the petitioner. (iii)During the course of arguments in the appeal suits, when the original documents were verified, it was realised that instead of the Re-settlement Register dated 04.11.1974, the Re-settlement Register in the name of Padmavathy was produced under Ex.A12. After verifying the records, the lower Court Advocate, who conducted the trial, came to know that the certified copy of the Re-settlement Register issued by the Estate Manager, Salem was found. The petitioner, exercising due diligence in conducting the case before the lower Court for the reasons stated above, was unable to obtain during the trial and now able to file the additional document before this Court. The Re-settlement Register will go to show that the names of the purchasers were entered in the Re-settlement Register maintained by the Revenue Department of the Government of Tamil Nadu. Since this document is necessary for the disposal of the appeal suits, the petitioner has come forward with M.P.No.1 of 2011 for reception of additional document (i.e.) certified copy of the Re- settlement Register for T.S.No.79, Periyeri Village, Salem Taluk and prayed for allowing this petition. 7.During the pendency of the appeal suits, the defendants 1 to 5 have come forward with M.P.No.2 of 2011 for reception of additional evidence under Order 41 Rule 27 C.P.C. 8.The averments in the affidavit filed in M.P.No.2 of 2011 are as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) The suit properties are house sites with total extent of 3,500 sq.ft., item No.1 of the suit property is a house plot with an extent of 2,800 sq.ft. and item No.2 of the suit property is a house site with an extent of 700 sq.ft. Item No.3 is a composite description of item Nos.1 and 2. (ii) Originally, the suit property and other properties were belonged to the joint family of Sengoda Gounder. There was a partition between them on 20.02.1956. The suit property among other properties were allotted to the share of Vellayammal and her five sons. They divided themselves and sold them to several persons. The lands in T.S.No.79 were subdivided according to the lay out plan. (iii)The first item of the suit property in T.S.No.79/42 is a house site, which was sold by Vellayammal and her sons to one Manickavasagam on 05.03.1974. The said Manickavasagam sold the same to the plaintiff/Padmavathy on 28.08.1980. (iv) The second item of the suit properties formed part of the house site in T.S.No.79/43 and the same was sold to Nagarathinam Ammal, in turn she sold the same to one Mohan Kumar on 28.08.1980. The said Mohankumar sold the same to the plaintiff/Padmavathy on 31.08.1981. So she is the absolute owner of the said items 1 and 2 of the suit property and she is in possession and enjoyment of the same. Since the defendants 1 to 5 herein have attempted to interfere her possession, she filed a suit in O.S.No.430 of 2000 for permanent injunction. Subsequently, the properties have been trespassed by the defendants. Hence she amended the plaint in O.S.No.430 of 2000 for the relief of mandatory injunction. The said suit was dismissed as withdrawn. Even during the pendency of the suit in O.S.No.430 of 2000, the plaintiff herein sought for declaration of title and recovery of possession. The petitioners herein are the defendants pleaded that the sale deeds produced by the plaintiff are fabricated and prayed for dismissal of the suit. After full trial, the suit was decreed without costs. Hence the petitioners herein have come forward with the appeal suit. (v) Now the documents namely, (1) the deposition of first respondent in an earlier suit between the same parties namely O.S.No.732 of 1998, (2) the deposition of respondent in earlier suit in O.S.No.430 of 2000 (3) the deposition of the third petitioner/Shanthi herein in O.S.No.430 of 2000 (4) An extract from the Property Tax Register (5) the plaint in O.S.No.430 of 2000 and (6) petition and orders in I.A.No.599 of 2005, which are enclosed herewith the petition, are necessary for the disposal of the appeal suits. The petitioners herein have exercised due diligence in conducting the case before the trial Court and they are unable to mark the above documents. These documents are necessary for the interests of justice. Hence they prayed for the reception of the additional documents . https://hcservices.ecourts.gov.in/hcservices/ 9.The gist and essence of the counter affidavit filed by the first respondent/plaintiff is as follows: The suit in O.S.No.52 of 2005 was filed by the first respondent herein, which was decreed as prayed for without costs, against which, the defendants 1 to 5 have come forward with the appeal suit in A.S.No.411 of 2007. Except the Property Tax Register Extract dated 30.01.1998, other documents, which are sought to be produced are the certified copies of the depositions in O.S.Nos.430 of 2000 and 732 of 1998 on the file of the District Munsif Court, Salem, in which, the petitioners were the defendants. Therefore, the petitioners had knowledge of these documents and they have not produced them during trial and the petitioners have not given any reason for not producing the documents. Hence, the first respondent/plaintiff prayed for the dismissal of the petition. 10.After hearing the arguments of both sides counsel, the following points for consideration are framed: 1.Whether there is any sufficient cause for reception of document filed along with M.P.No. 1 of 2011? 2.Whether there is any sufficient cause for reception of documents filed along with M.P.No.2 of 2011? 3.Whether the trial Court is correct in held that the plaintiff is entitled to a decree as prayed for in the plaint? 4.Whether the plaintiff is entitled to the costs of the suit? 5.Whether it is a fit case for remanding the matter to the trial Court? 6.To what relief, the appellants/defendants 1 to 5 are entitled to? 11. For the sake of convenience, the parties are referred to as they are ranked in the trial Court. 12.The plaintiff filed a suit for declaration of title and recovery of possession stating that she is in possession and enjoyment of the properties purchased under Exs.A4 and A7. Since the defendants attempted to trespass into the properties, she filed a suit in O.S.No.430 of 2000 for relief of permanent injunction. During the pendency of the suit, she filed the present suit in O.S.No.52 of 2005 for declaration of title and recovery of possession. The suit in O.S.No.430 of 2000 was dismissed as withdrawn stating that she has "not pressed" the suit. After the suit in O.S.No.52 of 2005 has been decreed in favour of the plaintiff without costs, against which, the defendants 1 to 5 have come forward with the Appeal Suit in A.S.No.411 of 2007. Since the suit was decreed without costs, the plaintiff has come forward with the Appeal Suit in A.S.No.465 of 2008 for costs. https://hcservices.ecourts.gov.in/hcservices/ 13. The learned counsel for the defendants 1 to 5 submitted that item Nos.1 and 2 of the suit properties are formed part of the item No.3 of the suit property. Originally, the properties were owned by one Sengoda Gounder and his family. They were entered into a partition deed under Ex.A1 on 20.02.1956. The case of the defendants 1 to 5 is that even though the plaintiff has putforth her claim on the basis of Exs.A4 and A7, but the defendants alone in possession and enjoyment of the same. So they prescribed their title by adverse possession. In their written statement, they disputed the sale deeds in favour of the plaintiff and the predecessors, which are not binding them. In such circumstances, it is the duty of the plaintiff to prove her title to the property. He further submitted that even though the plaintiff purchased the suit properties, neither the plaintiff nor her predecessors in title were in possession and enjoyment more than the statutory period. So they lose their title to the property. Hence he prayed for setting aside the judgment and decree passed by the trial Court. During the pendency of the appeal suits, the defendants 1 to 5 have come forward with M.P.No.2 of 2011 for reception of additional evidence. 14.Refuting the same, the learned counsel for the plaintiff submitted that originally the properties were allotted to the share of Sengoda Gounder and there was a partition between them under Ex.A1, in the said partition, the suit properties were allotted to the share of Vellayammal, who is the second wife of Vaiyapuri (who is the son of Sengoda Gounder) and her five sons, who sold the same under Exs.A3 and A5. Subsequently, the plaintiff purchased the same under Exs. A4 and A7. From the date onwards, she was in possession and mutation of revenue records were made. She also filed the document to show that she was in possession. Since the defendants trespassed into her property, she filed the suit in O.S.No.430 of 2000, but the said suit was dismissed as withdrawn, she forced to file the suit in O.S.No.52 of 2005 for declaration of title and recovery of possession. So the trial Court considered this aspect in proper perspective, decreed the suit without costs. There is no need to remand the matter to the trial Court. He further submitted that at the time of trial, he filed Ex.A12, which is a certified copy of the Re-settlement Register related to Padmavathy, the plaintiff. But he wants to produce the certified copy of the Re-settlement Register, which shows the transfer of patta in the name of the plaintiff's predecessors in title (i.e.) Manickavasagam and Nagarathinam Ammal and this document is necessary for the disposal of the appeal suits. Since the document has been mingled with the papers of the lower Court counsel, due diligence in conducting the case before the trial Court and was unable to trace out the same and filed before the trial Court. If the said document would be marked at the time of trial, it would really falsify the case of the defendants. Now he is ready to produce the said document. Hence he prayed for allowing M.P.No.1 of 2011 for reception of the additional evidence and prayed for the dismissal of the appeal suit in A.S.No.411 of 2007. https://hcservices.ecourts.gov.in/hcservices/ 15.The learned counsel for the plaintiff further submitted that the documents filed by the defendants 1 to 5 as an additional evidence are available at the time of trial, but no reason has been assigned by them that why they have not filed the same before the trial Court. So the documents filed are not an admissible evidence and those documents are also not relevant for the disposal of the appeal suits. Hence he prayed for the dismissal of M.P.No.2 of 2011. 16.Point No.1: (i) The plaintiff filed the suit for declaration of title and recovery of possession stating that the properties were originally owned by the family of Sengoda Gounder. The genealogy of the parties is shown below: Sengoda Gounder | Vaiyapuri Gounder (son) | ---------------------------------------------------- | | Chinnammal Vellayammal (first wife) (second wife) | | ------------------------------------------------------------- | | | | | | | Palanisamy Kandasamy Lakshmanan Periya Adappan Periya Chinnathambi Gounder Gounder Sengodan thambi @ @ @ Pera Vaiyapuri Sengoda Pandaram Gounder | Chinnathayammal (wife) | (D1) ----------------------------------------------- | | | | Indira Gandhi Shanthi Kamala Sakthivel Murugan (Daughter) (Daughter) (Daughter) (son) D2 D3 D4 D5 (ii) The properties are allotted to the share of Vellayammal and her five sons under the registered partition deed dated 20.02.1956, which was marked as Ex.A1. Periya Thambi @ Vaiyapuri executed the Release deed dated 01.07.1970 under Ex.A2, in favour of Vellayammal, the second wife of Vaiyapuri and her sons Lakshmanan and Adappan @ Perapandaram. Admittedly, the first defendant is the wife of Adappan @ Perapandaram and the defendants 2 to 4 are their daughters and the https://hcservices.ecourts.gov.in/hcservices/ fifth defendant is their son. Vellayammal and her sons Lakshmanan and Adappan @ Pera Pandaram executed the sale deed in favour of one Manickavasagam under Ex.A3 and the original was marked as Ex.A35. In turn, he sold the same in favour of the plaintiff under Ex.A4 and the original was marked as Ex.A20. Another portion was sold by Vellayammal and her sons Lakshmanan and Adappan @ Pera Pandaram to Nagarathinam Ammal on 05.03.1974, which was marked as Ex.A5. In turn, she sold the same to one Mohan Kumar under Ex.A6 and the said Mohan Kumar sold the same to the plaintiff under Ex.A7 dated 31.08.1981. On the basis of the sale deeds under Exs.A4 and A7, the plaintiff filed the suit for declaration of title and recovery of possession. The defendants raised the plea that they are in possession and enjoyment of the suit properties and the plaintiff was never in possession and enjoyment of the same. (iii)The trial Court after considering the evidence of P.W.1 and P.W.2 and D.W.1 and considering the documentary evidence, decreed the suit without costs, against which, the present appeal suits have been preferred by both the plaintiff and the defendants 1 to 5. (iv)The learned counsel for the plaintiff submitted that the plaintiff has come forward with M.P.No.1 of 2011 for reception of additional evidence stating that as soon as the plaintiff's predecessors in title purchased the properties and mutation of revenue records were made, to prove the same, Exs.A8 and A12-the Re- settlement Register were marked, but it stands in the name of the plaintiff. At the time of filing, the plaintiff was under impression that she filed the Re-settlement Register stands in the name of her predecessors in title, which was mixed with lower Court counsel's papers. So she was unable to produce the same. Now this document is necessary to pronounce judgment. Since the defendants 1 to 5 have raised the defence that even though the sale deeds have been executed in the year 1974, no mutation of revenue records and patta stands in the name of the predecessors in title. Hence she prayed for reception of that document to be received as an additional evidence. (v) As per Order 41 Rule 27 C.P.C., the person, who wants to adduce additional evidence must prove three ingredients: (1) The document is produced before the trial Court, but the trial Court refused to receive and rejected the same. But here, no such pleading and no such argument was advanced by the learned counsel for the plaintiff. (2) In due diligence, he was unable to obtain the document. (3)Whether this document is necessary for pronouncing judgment or any other substantial cause? https://hcservices.ecourts.gov.in/hcservices/ At this juncture, the learned counsel for the plaintiff submitted that Exs.A8 and A12 are the certified copies of the Re- settlement Register, to show that the properties stand in the name of the plaintiff. But he prayed for the reception of additional evidence (i.e.) certified copy of the Re-settlement Register dated 04.11.1974 stands in the name of the predecessors in title of the plaintiff, which was mingled with the case bundles of the lower Court counsel. He further submitted that this document is necessary to prove that the plaintiff's predecessors in title purchased the properties and taken steps for mutation of revenue records and also taken steps to transfer the name of the patta. So this document is necessary to pronounce judgment. (vi)At this juncture, it is appropriate to consider the decisions relied upon by the learned counsel for the plaintiff, reported in (a) AIR 2004 Supreme Court 3685 (Jayaramdas and Sons v. Mirza Rafatullah Balg and others) in paragraphs-8 and 9, it read as follows: "8.It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties. 9.As already pointed out both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the certified copies were at variance with