KARUPPIAH MOOPPANAR Vs. MUTHUKARUPPAN SERVAI

JUDGEMENT

(1.) THIS is an appeal against the judgment of the District Judge of Tirunelveli setting aside the judgment and decree of the District Munsif, Tenkasi, in O.S. No. 65 of 1968, and remanding the suit for fresh disposal in accordance with law. The respondent, Muthukaruppan Servai, who was the plaintiff in the trial Court, instituted the suit against appellant - defendant, Karuppiah Mooppanar, for partition and separate possession of his one -fourth share in the suit property and for recovery of future mesne profits. The plaintiff's case was that the property originally belonged to Madasami Mooppanar, his father, and that upon the death of Madasami Mooppanar, his four sons Pechimuthu Mooppanar, Rukka Mooppanar, Velliappa Mooppanar and himself became entitled to the suit property and that during the plaintiff's absence away at Bickramasin gapuram, the defendant had unauthorisedly put up a thatched bouse on the suit property. It was in these circumstances, says the plaintiff, that he instituted the suit for partition of his one -fourth share.

(2.) IN the written statement the defendant contended that he had purchased the whole of the suit property from the plaintiff and his three brothers for Rs. 50/ - under a registered sale deed Ex. B -4 dated 14 -2 -1957. The plaintiff denied execution of Ex. B -4. The trial court framed 6 issues, examined the plaintiff as P. W. 1, and the defendant as D. W. 1 and marked nine exhibits in the course of the trial. Upon a discussion of the oral and documentary evidence, the trial Court answered all the issue against the plaintiff after holding affirmatively that the plaintiff and his three brothers had conveyed title to the suit property in favour of the defendant validly under Ex. B -4., a registered deed of sale dated 14 -2 -1957. In support of this finding the learned District Munsif relied on the following circumstances.

(3.) THE plaintiff preferred an appeal against this judgment of dismissal to the District Court, Tirunelveli, and the first appellate Court, upon a very narrow and hypertechnical view of the legal position, came to the conclusion that there was a legal obligation upon the defendant to prove Ex. B -4 by calling at least one of the attestors thereto and that inasmuch as he had failed to do so, Ex. B -4 could not be used as evidence in view of the mandatory provision of Section 68 of the Evidence Act. Section 68 of the Evidence Act runs as follows: