Can an objection to the mode and manner in which a document was admitted be raised for the first time in second appeal?

The above second appeals arises out of a common judgment dated 31.03.2010, passed in AS.Nos.9/2009 and 10/2009, by the learned Subordinate Judge, Perundurai. Since the Second Appeals arise out of a common judgment of the Lower Appellate Court, the same are disposed of by this common judgment.

The parties, for the sake of convenience, will be referred to, as per their ranking in the suit in OS.No.54/2004. The pleadings of both the parties, for the sake of convenience and to avoid repetition, are consolidated. Pleadings:-

The suit property is land with an old house, measuring 3600 sq.ft., at koonampatti Village, Perundurai Taluk, Erode District. The case of the plaintiff was that the suit property originally belonged to one P.K.Palaniappa Gounder of Gobi-Pudupalayam. While so, the defendant, https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) as the Poosari of Arulmighu Kasiviswanathar Temple, approached P.K.Palaniappa Gounder, to permit him to reside in the suit property. The said P.K.Palaniappa Gounder, acceded to the defendant’s request on condition that the defendant should vacate and deliver possession as and when he directed the defendant to do so. The defendant, on such permission of P.K.Palaniappal Gounder, took possession of the suit property. The plaintiff, therefore pleaded that the occupation of the suit property by the defendant was permissive. Meanwhile, P.K.Palaniappa Gounder died intestate leaving his daughter K.E.Saraswathi, as his only legal heir. The plaintiff purchased the suit property from her, for a sale consideration of Rs.30,000/- under a registered Sale Deed dated 24.12.2001. Soon thereafter, the plaintiff caused a Lawyer’s notice to the defendant informing him of their purchase. The defendant, on receipt of the notice, filed a suit in OS.No.18/2002, against the plaintiff, withdrew the same and thereafter filed the suit in OS.No.161/2003. The plaintiff demanded the defendant to vacate and handover possession to him, but despite repeated demands, the defendant refused to vacate and hence, the plaintiff issued a second legal notice on 06.10.2003, calling upon the defendant to hand over vacant possession of the suit property. The defendant, even though received the notice, refused to surrender possession and hence, the plaintiff filed the above suit in OS.No.54/2004, for eviction, recovery of possession and other reliefs. https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm )

The defendant, in his pleadings, denied all the averments made by the plaintiff. The defendant contended inter alia that he was orally donated the suit property by Palanisamy Gounder @ P.K.Ponnusamy Gounder and that, he was in possession and enjoyment of the suit property as an absolute owner. The defendant contended that the plaintiff is the Aadheenam of Koonampatti Mutt, possessed the property adjoining the suit property and that the plaintiff taking advantage of the demise of P.K.Palanisamy Gounder, created the Sale Deed in his favour, by obtaining the signature of K.E.Saraswathi by suppressing the real intention of P.K.Palanisamy Gounder, not to dispossess the defendant since he was rendering poojas to the temple of Arulmighu Visalakshi Samedha Vishwanatha Thirukoil. The defendant while denying the right, title and interest of the plaintiff to the suit property, nevertheless, contended that he was not liable to be evicted, except by due process of law. The defendant, on similar contentions, filed the suit in OS.No.161/2003, for permanent injunction restraining the plaintiff from interfering with his possession and enjoyment of the suit property in any manner except by due process of law and for other reliefs, by impleading the Superintending Engineer and the Assistant Engineer of the Tamil Nadu Electricity Board.

The Trial Court tried both the suits together. Before the Trial Court, the plaintiff examined one Murthy as PW1 and marked Exs.A1 to A6 on his https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) side. The defendant examined himself as DW1 and another witness as DW2 and marked Exs.B1 to B16. The Trial Court, after framing the necessary issues, allowed the suit filed by the defendant in OS.No.161/2003 and dismissed the plaintiff’s suit in OS.No.54/2004. Aggrieved by the common judgment and decree dated 17.09.2008, the plaintiff filed two appeals in AS.Nos.9/2009 and 10/2009, on the file of the learned Subordinate Judge, Perundurai. The Lower Appellate Court, by a common judgment and decree dated 31.03.2010, allowed both the appeals. Challenging the said common judgment and decree dated 31.03.2010, the defendant has filed the above Second Appeals.

This Court, at the time of hearing the Second Appeals, reframed the substantial questions of law as follows:-

Since both the substantial questions of law are inter-related, they are taken up together. https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) Discussions:-

The facts are not disputed and suffice it to state that the plaintiff claims title to the suit property under Ex.A1 [Sale Deed], and on the strength of the tile document, seeks eviction and recovery of possession from the defendant. The defendant on the other hand, claims to be in possession and enjoyment of the suit property on the basis of an oral donation by P.K.Palanisamy Gounder, the admitted original owner of the suit property. Before proceeding further, it is necessary to advert to the findings of fact recorded by the Lower Appellate Court which is the final Court of facts.

The Lower Appellate Court, on appreciation of the evidence on record, both oral and documentary, and after framing the points for consideration, returned the following findings on the title of the plaintiff to the suit property and the nature of possession of the defendant, (i.e) whether it was permissive or as an absolute owner. A) The Lower Appellate Court found that the relief claimed by the defendant in his suit, OS.No.161/2003, to the effect that he should not be evicted except by due process of law, itself showed that the defendant was doubtful about his title and hence, tacitly admitted that he had no absolute right over the suit property. B) The Lower Appellate Court considered the defendant’s documents, Exs.B1 to B12 and found that they were not helpful to prove the https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) oral gift [Donation] pleaded by the defendant and hence, rejected the plea. C) The Lower Appellate Court rejected the contention of the defendant that, in the absence of Deed of Power of Attorney, PW1 should be considered as an incompetent witness, on the reasoning that to prove title, oral evidence of parties need not be considered and only the documentary evidence required to be considered. D) The Lower Appellate Court, on the basis of Ex.A1 [Sale Deed] of the plaintiff and Ex.A7 [parent document] found that the plaintiff had established title to the suit property, since Ex.A1 was executed by the only legal heir of the original owner. E) The Lower Appellate Court held, when the owner herself did not dispute the title of the plaintiff, the defendant had no locus to question the same, since he failed to prove the oral gift pleaded by him. F) The Lower Appellate Court found fault with the Trial Court for venturing into the question of notice under Section 106 of the Transfer of Property Act, since it found that it was nobody’s case that there existed a landlord/lessee relationship between the parties. G) The Lower Appellate Court, on an appreciation of the recitals in Ex.A7 [parent document] found that the case of the defendant that he was put into possession of only vacant land and that the house https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) was constructed by him was patently false and hence, held that the defendant had approached the Court with unclean hands. H) The Lower Appellate Court found that the Trial Court completely erred in appreciating the evidence both oral and documentary, in both the suits. I) The Lower Appellate Court found that the Trial Court erred in granting a blanket injunction since it was against the limited relief claimed by the defendant.

On such findings, the Lower Appellate Court reversed the judgment and decree of the Trial Court.

In the backdrop of the above factual findings of the Lower Appellate Court, let me revert back to the substantial questions of law raised in the Second Appeal. The learned counsel for the appellant submitted that the Lower Appellate Court failed to note that in the absence of the Deed of Power of Attorney, the evidence of PW1 deserved to be eschewed. The learned counsel further submitted that an adverse inference ought to have been drawn against the plaintiff for not gracing the witness box. The learned counsel for the appellant relied on the judgments of this Court CDJ 2026 SC 822 [Mallika Vs R.Nallathambi and Others] and CDJ 2005 SC 055 [Janki Vashdeo Bhojwani and Another Vs. IndusInd Bank Limited and Others], in support of his case.

The learned counsel for the respondents 1 and 2, on the other hand, https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) submitted that the aforesaid objections were considered by the Lower Appellate Court and rightly rejected. The learned counsel submitted that even if the oral evidence of PW1 is rejected, the documentary evidence cannot be rejected as no objection was taken to the admission of the documents at the appropriate time. The learned counsel relied on the judgments of the Hon’ble Supreme Court reported in 2026 SCC Online SC 106 [Hemalatha [Died] by LRs V. Tukaram [Died] by LRs] ; 2008 [4] SCC 594 [Anathula Sudhakar Vs. P.Buchi Reddy [Died] By LRs and others] ; 2003 [8] SCC 752 [R.V.E.Venkatachala Gounder Vs. ArulmighuVisveswaraswami and V.P.Temple and Another] and 2004 [7] SCC 107 [Smt. Dayamathi Bai Vs. K.M.Shaffi], in support of his case.

The learned counsel for the appellant/defendant vehemently argued that Ex.A1, the title document of the plaintiff, cannot be looked into since it was marked through PW1, who is neither a Power of Attorney holder nor a person authorised by the plaintiff to depose on his behalf.

I digress from the issue for a moment to examine the factual aspects regarding the rival claims to the property.

It is an admitted case that Palanisamy Gounder and Palaniappa Gounder are one and the same person. The title of P.K.Palanaisamy is not disputed by the defendant. Ex.A7 is the document under which P.K.Palanisamy Gounder acquired the suit property. Further, it is not disputed that K.E.Saraswathi, is the only legal heir of P.K.Palanisamy and that the https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) plaintiff had purchased the property under a registered Sale Deed from her under Ex.A1. The title of P.K.Palanisamy is admitted by the defendant which is evident from his plea that P.K.Palanisamy orally donated the suit property to him. The Lower Appellate Court, while considering the rival claim to title, found that the documentary evidence filed by the plaintiff prevails and that the oral donation pleaded, could not be sustained in the light of the provisions of Section 123 of the Transfer of Property Act.

Coming back to the arguments of the learned counsel for the appellant/defendant, it is seen that the defendant did not object to the admission in evidence of Ex.A1. In other words, it is not the defendant’s case that Ex.A1 is an inadmissible document. The only objection of the defendant is that the document ought to have been marked by the plaintiff himself or through his authorised representative. According, to the learned counsel, since the document was marked through PW1, who was not an authorised person, the document should be eschewed. The learned counsel further submitted that if Ex.A1 is eschewed, then the plaintiff’s case would have no legs to stand and will have to necessarily fail.

At this juncture, this Court would like to point out the distinction between the ‘’admissibility of a document in evidence’’ and ‘’the mode and manner in which it was admitted’’.

It is fairly well settled by a catena of judgments that the issue of https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) admissibility of a document can be raised at any stage of the proceedings, but the mode and manner in which it was admitted, has to be taken before the Trial Court at the time of its tender and before it is marked as an exhibit, otherwise it would amount to a waiver of the objection. From the records, it appears that the document, Ex.A1, was marked and exhibited without any objection by the defendant. Once the document is marked and exhibited without any objection at the time of its tender before the Trial Court, any objection as to the mode and manner of its admissibility / proof, either as irregular or insufficient, cannot be permitted to be raised at the Appellate or at the Second Appellate stage.

It is also relevant to note that Ex.A1-Sale Deed, is a Registered document and hence, carries with it, a formidable presumption of validity. At the risk of repetition, it is noted that the defendant has not challenged the admissibility of Ex.A1, but has only challenged the mode and manner in which it was admitted. In my view, since Ex.A1 is a Registered document, the presumption as to its genuineness arises and in the absence of a challenge to its validity on any permissible grounds like fraud, collusion etc., further proof of it is also not necessary. Worthy reference in this regard is made to the latest judgment of the Hon’ble Supreme Court in the case of Hemalatha [Died] by LRs Vs. Tukaram [Died] by LRs and Others, reported in 2026 SCC Online SC 106, wherein the Apex Court, held that registered documents carry a presumption of https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) genuineness. Undoubtedly Ex.A1 is an admissible document and the challenge is only to manner or mode of its proof/admission. The defendant having failed to raise the objection at the earliest point of time, cannot be allowed to question the same at the Second Appellate stage.

The Hon’ble Supreme Court, in Roman Catholic Mission Vs. State of Madras [AIR 1966 SC 1457], lucidly brought out the distinction between the objection as to the admissibility of a document and as to the manner of its admission / proof. The said judgment of the Apex Court was followed and reiterated by the Hon’ble Supreme Court in the subsequent judgments in R.V.Venkatachala Gounder Vs. ArulmighuVisveswaraswami and V.P.Temple and Another, reported in 2003 [8] SCC 752 and in the case of Smt. Dayamathi Bai [Smt] Vs. K.M.Shaffi, reported in 2004 [7] SCC 107.

The Hon’ble Supreme Court, in Dayamathi Bai [Smt] case [referred to above], held as follows:- ‘’13. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ext. P-1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (see Order 13 Rule 3 of the Code of Civil Procedure). This https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party vide para 20 : (SCC p. 764) “20. The learned counsel for the defendant- respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.” (emphasis in original)

In the backdrop of the aforesaid judgments and the clear pronouncements of law on the subject, I find that the contention of the learned counsel for the appellant that Ex.A1 has to be eschewed since it was marked through PW1, a person not authorised to depose on behalf of the plaintiff, is liable to be rejected.

The learned counsel for the appellant, next contended that the plaintiff, not having graced the witness box, an adverse inference ought to be https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm ) drawn against him. I am unable to countenance the said contention of the learned counsel since I completely agree with the Lower Appellate Court that the primary issue in the suit is with regard to the plaintiff’s title to the suit property and that when necessary documentary evidence is available to prove the same, the oral evidence of the parties is absolutely not required. As rightly pointed out by the Lower Appellate Court, in the light of the documentary evidence, it is not necessary for the plaintiff to enter the witness box since the best evidence, the document itself is placed before the Court for proving title. I therefore reject the contention of the learned counsel for the appellant that an adverse inference should be drawn against the plaintiff for not gracing the witness box. For the same reason, I find that the judgments relied on by the learned counsel, are inapplicable to the facts of the case.

To sum up, I find no infirmity in the findings of the Lower Appellate Court that notwithstanding the plaintiff’s failure to enter the witness box, the plaintiff had adduced cogent documentary evidence in support of his title, whereas the defendant failed to produce any evidence to establish his own title. In the circumstances, I find that the plaintiff’s non examination does not detract from the merits of the plaintiff’s case. https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/08/2026 03:52:18 pm )

I find that no non-reading or misreading of the evidence by the Lower Appellate Court, the final Court of fact. I am of the view that the plaintiff by producing Ex.A1, Sale Deed, his title document has successfully established his title to the suit property. The defendant’s plea of oral gift is not only proved but also against the provisions of Section 123 of the Transfer of Property Act.

In view of the above discussions, this Court finds no merit in the questions of law raised by the appellant/defendant. Further, since this Court finds no perversity in the appreciation of evidence by the Lower Appellate Court, this Court finds no compelling reasons to interfere with the judgment and decree of the Lower Appellate Court in exercise of its jurisdiction under Section 100 of CPC.

In fine, the Second Appeal is dismissed and the common judgment and decree 31.03.2010, passed in AS.Nos.9/2009 and 10/2009, by the learned Subordinate Judge, Perundurai, is confirmed. No costs. Consequently, the connected MP’s are closed. 17-08-2026