JUDGMENT

(Prayer in S.A.No.1671/2002: Second Appeal filed under Section 100 of the Civil Procedure Code, preferred against the judgment and decree dated 15.12.2000 made in A.S.No.35 of 1991 on the file of Sub Court, Kancheepuram, confirming a portion of the judgment and decree dated 05.4.1991 made in O.S.No.773 of 1985 on the file of the District Munsif Court, Kancheepuram.

S.A.No.1672/2002: Second Appeal filed under Section 100 of the Civil Procedure Code, preferred against the judgment and decree dated 15.12.2000 made in A.S.No.50 of 1991 on the file of Sub Court, Kancheepuram, reversing the well considered judgment and decree dated 05.4.1991 made in O.S.No.773 of 1985 on the file of the District Munsif Court, Kancheepuram.)

Common Judgment

1.1 The plaintiff is a temple and it has instituted the suit through its trustees for evicting its tenant, who is arrayed in the suit as 1st defendant, from the suit property, along with a prayer for recovery of arrears of rent. In the suit, the 1st defendant had pleaded that his brother was the title holder of the suit property. Hence, he came to be impleaded as the 2nd defendant. The prayer in the suit however, was not amended to include any relief of declaration of plaintiffs' title.

1.2. Both the defendants have filed separate written statements. As stated earlier, the 1st defendant in his written statement inter alia alleged that the plaintiffs does not have any title to the suit property. The second defendant adopted the written statement of his brother, the first defendant and added that he had purchased the property from one Ramachandran, Vide Sale Deed dated 14.08.1985.

2.1 The suit went to trial, and before the trial Court, the plaintiff has produced the certified copy of a Trust Deed dated 24.09.1907, executed by one Andalammal, who was admittedly the owner of the suit property, and this came to be marked as Ex.A5. The rent note 04.12.1957 executed as between the plaintiff and the 1st defendant was marked as Ex.A6. It was subsequently renewed Vide Ext.A-7 dated 17-09-1963. The document on the basis of which the 2nd defendant claims title came to be marked as Ex.A15 = Ex.B1, dated 27-09-1984.

2.2 Turning to the oral evidence, the trustee of the temple was examined as PW1. The first defendant did not adduce any oral evidence, whereas the 2nd defendant examined himself as DW1. He also examined his vendor Ramachandran as DW2.

2.3 On appreciating the evidence before it, the trial Court decreed the suit as against the 1st defendant, but dismissed the suit as against the 2nd defendant since there was no prayer for declaration of plaintiff's title. The trial court was of the view that in the face of the second defendant setting up an independent title to the suit property in himself, the plaintiff ought to have amended the prayer.

3.1 Aggrieved by the decree of the trial Court, both the plaintiffs and the 1st defendant had respectively preferred separate first appeals in A.S.35 of 1991, and A.S.50 of 1991, to the extent that the said decree went against them. Both the appeals came to be heard jointly and were disposed of by a common judgment.

3.2 The first Appellate Court held that Ex.A5, which is a certified copy of the Trust Deed based on which the plaintiff claims title to the suit property, was not proved, since Sec. 90 of the Evidence Act, (which enables the Court to presume that the handwriting and the signature in any ancient document are the handwriting and signatures of the persons by who they were purported to have been written or signed), would not apply to a certified copy of the document. Hence, it dismissed the plaintiff's appeal in A.S.35/1991 and as a consequential measure, it dismissed A.S.50 of 1991 as well. This has now led the plaintiff to prefer these two second appeals.

4. The appeals are admitted on the following substantial questions of law:

''Whether the judgment and decree of the courts below is right in holding that the plaintiff ought to have filed a suit for declaratio