Velusamy Servaikarar, v. Poo Murugan,

JUDGMENT This Second Appeal has been filed challenging the concurrent findings of the courts below. The defendants 1 and 2 in the suit in O.S.No.58 of 2008 on the file of the District Munsif Court, Mudukulathur are the appellants herein. The respondents are the plaintiffs and the third defendant in the suit. The suit was filed for declaration that the mortgage deed executed between the first and the second defendants is invalid and hence, it has to be cancelled. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit.

¶2It is the case of the plaintiffs that the mortgage deed (Ex.A14) executed between the first and the second defendants is a fabricated document and hence, it has to be cancelled. According to the plaintiffs Ex.A14, mortgage deed is a self serving document and it does not create any title in favour of the first defendant, who had executed the mortgage deed in favour of the second defendant. According to the plaintiffs, the first defendant does not have any title over the suit schedule properties. The plaintiffs categorically pleaded that the mortgage deed (Ex.A14) is a fabricated document. The plaintiffs pleaded that they are the absolute owners of the suit schedule properties and the patta also stands in their names.

¶3However, as seen from the written statement filed by the defendants, they claim that the mortgage deed (Ex.A14) is a valid mortgage. Based on the documents of the years 1905 and 1909, the defendants traced their title over the suit schedule properties. They also claimed that the patta is also standing in the joint names of the plaintiffs predecessors as well as the defendants predecessors in title.

¶4Based on the pleadings of the respective parties, the trial Court framed issues. Before the trial Court, the plaintiffs filed 14 documents, which were marked as Exs.A1 to A14 and two witnesses were also examined on their side, namely, the second plaintiff, Poomurugan as P.W. 1 and another person by name Pandiyan as P.W.2. On the side of the defendants, 20 documents were filed, which were marked as Exs.B1 to B20 and three witnesses were examined, namely, the second defendant, V.Ramanathan as D.W.1 and two other persons by name, S.Kadhar Mydeen and Narayanan as D.W.2 and D.W.3 respectively.

¶5The trial Court, namely, the District Munsif Court, Mudukulathur, by its judgment and decree dated 01.08.2014 passed in O.S.No.58 of 2008 decreed the suit in favour of the plaintiffs by declaring that the mortgage deed dated 03.01.2006 (Ex.A14) executed by the first defendant in favour of the second defendant is a invalid document and consequently, granted the relief of declaration as sought for by the plaintiffs in the suit by cancelling the said document. The trial Court, while dismissing the suit, has categorically given a finding based on the documents produced by the defendants, which have been marked as Exs.B1 to B20 that the said document did not refer to survey numbers, extents, Pimash numbers and patta numbers pertaining to the suit scheduleoproperties.ooTheofindingoofotheotrialoCourtofoundoinoparagrapho No.11oofotheojudgmentoreadsoasofollows: "11.gpujpthjpfs; jug;gpy; jhth brhjJ; f;fspy; 1k; ,yff; brhj;ij bghWj;J vt;tpj MtzKk; jhf;fy; bra;ag;gltpy;iy. nkYk; gpujpthjpfs; jug;gpy; bra;ag;gl;Ls;s gp.th.rh.M.2>4>9>11>12>13>14 Mfpa Mtzq;fs; tHf;F brhj;jpw;F vtt; pjj;jpy; bjhlh;g[ cs;s Mtzq;fs; vdW; gpujpthjp jug;gpy; epU:gpff; g;gltpyi; y. nkw;go Mtzqf; spy; jhth brhj;Jff; s; rh;nt vz;fs; fhzg;gltpy;iy. nkYk; gp.th.rh.M.5> gp.th.rh.M.2> gp.th.rh.M.7> Mfpait tHfF; brhj;Jf;fs; gpujpthjpfSf;F ghjj; pak; vdg; ij epU:gpf;f jFe;j Mtzqf; s; ,y;iy. nkYk; gp.th.rh.M.3 MdJ tHff; pd; 2k; ,yf;f brhj;J 6 egh;fSf;F ghjj; pag;gl;lJ vd;W fz;Ls;sJ. nkYk; gpujpthjpfs; jug;gpy; gp.th.rh.M.8 uhKjn; jth; bgahpy;

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¶6As seen from the above findings, it is clear that the defendants did not have any title over the suit schedule properties. On the other hand, the plaintiffs had produced pattas, Exs.A1 and A2 dated

24.10.2008 and 05.08.2008 respectively to prove that they are in possession of the suit schedule properties. The plaintiffs have not sought for declaration of their title over the suit schedule properties. The plaintiffs have sought for cancellation of the mortgage, which according to the plaintiffs, is a fabricated document created by the defendants to create title over the suit schedule properties. If the plaintiffs had sought for declaration of their title over the suit schedule properties, necessarily he has to produce all parent documents, by which they trace their title over the same.

¶7However, the instant case is one where the plaintiffs sought only to declare the mortgage deed as null and void on the ground that the said document is a fabricated document. Therefore, the necessity for producing parent documents, by which the plaintiffs derived title over the suit schedule properties will not arise. It would suffice if the plaintiffs produce the proof for being in possession of the suit schedule properties. In the instant case, the plaintiffs have produced pattas, Exs.A1 and A2 standing in their names to prove that they are in possession of the suit schedule properties.

¶8Having categorically pleaded that the defendants did not have any right to mortgage the suit schedule properties, as they did not have any title over the same, it is for the defendants to produce documentary evidence to prove that they have title over the suit schedule properties to enable the first defendant to execute a mortgage deed in favour of the second defendant.

¶9As seen from the oral and documentary evidence available on record, the defendants have miserably failed to produce any iota of evidence to prove that the first defendant is having title over the suit schedule properties to enable the first defendant to execute a mortgage deed (Ex.A14) in favour of the second defendant. The documents produced by the defendants, which have been marked as exhibits do not reflect the survey number, pimash number and patta numbers, which is disclosed in the suit schedule properties.

¶10Only after giving due consideration to the same, the trial Court, in its judgment and decree dated 01.08.2014 in O.S.No.58 of 2008 and the lower appellate Court, in its judgment and decree dated

17.11.2016 in A.S.No.60 of 2014 have concurrently held that the first defendant does not have any title over the suit schedule properties and therefore, the mortgage deed executed by the first defendant in favour of the second defendant (Ex.A14) is null and void.

¶11The mortgage deed (Ex.A14) is of the year 2006. Till date, it is also not known about the status of the mortgage deed (Ex.A14), as to whether the mortgagee has paid the dues to the mortgager or whether the mortgage has been duly discharged. 17 years have been lapsed. Having pleaded that the mortgage deed (Ex.A14) is a valid mortgage, the defendants ought to have produced necessary evidence before the trial Court in respect of their contention that the mortgage deed (Ex.A14) is not a fabricated document, but is a valid document executed for valuable consideration. They have miserably failed to produce any iota of evidence for the same before the trial Court. Both the Courts below have rightly considered all the contentions raised by the appellants / defendants and they have rightly rejected the same by holding that the mortgage deed (Ex.A14) is invalid document and it has to be cancelled. This Court, on 12.02.2021, admitted this second appeal by formulating the following substantial question of law: "Whether the Courts below were right in granting a decree for cancellation of the mortgage deed, dated

03.01.2006 in the absence of a prayer for declaration of title of the plaintiffs?"

¶12For the foregoing reasons, this Court is of the considered view that the substantial question of law formulated by this Court at the time of admission of this second appeal on 12.02.2021 has to be answered against the appellants / defendants by holding that the mortgage deed dated 03.01.2006 (Ex.A1) is an invalid mortgage deed and the declaration sought for by the plaintiffs in the suit was rightly granted in favour of the plaintiffs by the Courts below.

¶13The learned counsel appearing for the appellants placed before this Court a judgment of the Hon'ble Supreme Court of India in the case of Union of India and Others vs. Vasavi Cooperative Housing Society Limited and Others (2014 (2) SCC 269), which held that in a suit for declaration of title and possession, the burden of proof is on the plaintiff to establish his case irrespective of whether the defendant's case was proved or not. The decision has no applicability to the present case.

¶14In the case on hand, the plaintiffs have not filed the suit for declaration to declare that they are the absolute owners of the suit schedule property, but they have filed the suit only to cancel the mortgage deed, which according to them, is a fabricated document and an invalid document. The plaintiffs have also filed pattas, Exs.A1 and A2 to prove that they are in possession of the suit schedule properties. Therefore, necessarily they have an interest in the suit schedule properties.

¶15When the plaintiffs have not sought to declare their title over the suit schedule properties, but they have sought a limited relief of cancellation of a mortgage deed and that too when they are having interest over the suit schedule properties, the judgment referred to supra relied upon by the learned counsel appearing for the appellants will not apply to the facts of the instant case as in the said decision, it was a case, where the plaintiffs had sought for declaration of his title over the suit schedule properties when necessarily the initial burden of proof is on the plaintiffs therein.

¶16For the foregoing reasons, there is no merit in this second appeal and accordingly, this second appeal is dismissed.

¶17It is to be noted that the mortgage deed comprises of several properties, which includes the suit schedule properties also. Insofar as the judgments rendered by the Courts below are concerned, it is restricted only to the suit schedule properties alone and not for other properties. The same is made clear by this Court in this judgment also. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.

20.06.2023 Index : Yes / No NCC : Yes / No Sm

ABDUL QUDDHOSE, J.

Sm TO:

1.The Sub Court, Paramakudi.

2.The District Munsif Court, Muthukulathur.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai. Dated:

20.06.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.06.2023 CORAM: THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE 1.Velusamy Servaikarar 2.Ramanathan ... Appellants /Vs./ 1.Poo Murugan 2.Vilvalingam 3.Lakshmi 4.Shanmugalakshmi 5.Sub Registrar, Sayalkudi, Ramanathapuram District. ... Respondents P RAYER : Second Appeal filed under Section 100 of the Civil Procedure Code to set aside the judgment and decree passed in A.S.No.60 of 2014, on the file of the Sub Court, Paramakudi, dated 17.11.2016 confirming the judgment and decree passed in O.S.No.58 of 2008 on the file of the District Munsif Court, Muthukulathur, dated 01.08.2014. For Appellants : Mr.H.Thayumanaswamy For Respondents : Mr.A.Arumugam (R1) No appearance (R2 to R4) Mrs.S.Jeya Priya Government Advocate