Madras High Court
Kasilingam vs Rajavannian on 10 October, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.10.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.169 of 2006 and M.P.No.2 of 2012 Kasilingam .. Appellant vs. 1. Rajavannian 2. Chinnammal 3. Valliammal .. Respondents This second appeal is focussed as against the judgment and decree dated 22.03.2005 of learned Principal Subordinate Judge of Vridhachalam passed in A.S.No.98 of 2004 dismissing the appeal and confirming the judgment and decree dated 29.01.2004 of the II Additional District Munsif of Vridhachalam in O.S.No.71 of 1999. For Appellant : Mr.R.Gururaj For R1 : Mrs.A.Sumathy For R3 : Mr.A.Venkatesan J U D G M E N T
This second appeal is focussed animadverting upon the judgement and decree dated 22.03.2005 passed in A.S.No.98 of 2004 by the learned Principal Subordinate Judge, Vridhachalam, confirming the judgment and decree of the learned Additional District Munsif, Vridhachalam in O.S.No.71 of 1999.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Niggard and bereft of details the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:
(a) The plaintiff, who is the second appellant herein, filed the suit for declaration and for permanent injunction in respect of the suit property measuring an extent of 50 cents of land in S.No.507/4 on the western portion of it, on the main ground that he became the owner of the suit property by virtue of Ex.A3, the sale deed dated 15.06.1983, and according to him, the antecedent title deeds to Ex.A3 are:
(1) 08.01.1935 (2) 05.03.1948 (Ex.A1) (3) 17.08.1959 (Ex.A2) (4) 13.06.1979 (5) 15.06.1983
(b) The plaintiff would plead that ever since he purchased the suit property, he has been in possession and enjoyment of the same, that D1 attempted to trespass into it, whereupon the suit was filed.
(c) Per contra, D1 filed the written statement denying and refuting, challenging and impugning the averments/allegations in the plaint, on the main ground that D1's father purchased the suit property vide Ex.B1-the sale deed dated 18.08.1954 Ever since the date of purchase, he had been in possession and enjoyment of the suit property. Subsequently D1 being the son of Govinda Padayachi, purchased additionally an extent of 8-1/2 cents on 26.02.1987 vide the sale deed Ex.B2 from one Valliammal/D3 on the northern portion of S.No.507/4. D1 also raised his house in the centre of the property which was purchased and his father, and himself and his family have been in possession and enjoyment of the same. His commencement of possession could be traced long prior to the suit itself. As such the very filing of the suit as though D1 was attempting to trespass into the suit property was nothing but a load of baloney fraught with falsity and mendacity.
(d) It appears D2 and D3 did not file the written statement and contest the matter.
Accordingly, he would pray for the dismissal of the suit.
(e) The trial Court framed the relevant issues.
(f) Up went the trial, wherein, the plaintiff-Kasilingam examined himself as P.W.1 along with P.W.2-Subramanian and Exs.A1 to A9 were marked; the first defendant-Rajavannian examined himself as D.W.1 along with D.W.2 Kalia perumal and Exs.B1 to B10 were marked. The witness's document was marked as Ex.X1. Twice the Commissioner was appointed and he submitted his report with sketch; however, only Exs.C1 and C2 were marked.
(g) The trial Court ultimately dismissed the suit as against which the appeal was filed for nothing but to be dismissed confirming the judgment and decree of the trial Court.
4. Being aggrieved by and dissatisfied with the judgment and decree of both the Courts below, this Second Appeal has been focussed on various grounds.
5. My learned Predecessor formulated the following substantial questions of law:
"1. Whether ancient documents do not have evidentiary value?
2. Whether anterior documents filed by plaintiff do not take precedence over the documents of defendants?
3. Whether the lower courts were right in not marking the sale deeds dated 8.1.1935 and 13.6.1979 which were filed along with the plaintiff?
4. Whether the lower courts were not entitled to look into documents not marked?
5. Whether patta and kist receipts are not evidence of title and possession?
6.Whether the Commissioner's report can be relied on without he being examined when there is dispute regarding identity?
7. Whether the lower courts were right in not giving the precedents to plaintiff's documents which are anterior in point of time?
8. Whether inspite of finding that the first defendant has no title,lower courts were right in dismissing the suit when so many documents have been filed?
9. Whether the boundary shown in documents will not have evidentiary value?"
(extracted as such)
6. After hearing both sides and also on perusal of the records, I thought fit to re-formulate the substantial questions of law to the knowledge of both sides as under:
(1) Whether the plaintiff was justified in framing the suit without incorporating the necessary pleadings relating to the facts that he purchased the property as per Ex.A3 based on the antecedent title deed Ex.A1, the sale deed executed by Chinnammal/ D2 in favour of Sriranga Padayachi, despite D2's daughter D3 having sold a portion of the suit property on the northern side vide the sale deed Ex.B2 in fvour of D1, which the plaintiff was expected to take note of before filing the suit?
(2) Whether both the Courts below were justified in not taking into consideration the fact that D3 being the daughter of D2 having already sold a portion of the suit property in favour of D1 on the northern side and that D2 having sold subsequently vide the sale deed dated 16.06.1979 the entire property in favour of the plaintiff's vendor Sriranga padayachi?
(3) Whether Ex.A4 could be dignified with the nomenclature of patta even though ex facie and prima facie it is only a proposed patta notice?
(4) Whether there is any perversity or illegality in the judgment and decree of both the Courts below?
7. All these points are taken together for discussion as they are inter linked and inter woven with one another.
8. During the pendency of the appeal, M.P.No.2 of 2012 has been filed by the appellant/plaintiff seeking permission of this Court to file the following documents:
"1. Registration copy of sale deed dated 08.01.1935
2. Registration copy of sale deed dated 13.06.1979".
9. Succinctly and precisely, the argument of the learned counsel for the plaintiff based on the documents relied on by him, could be set out thus:
(a) The property measuring 34 cents of land in S.No.507/4, originally belonged to one Kesavapadayachi, who executed the sale deed in favour of his wife Papu Ammal vide the sale deed dated 08.01.1935. Papu Ammal died; whereupon the same Kesava Padayachi executed the sale deed Ex.A1 dated 05.03.1948 in favour of Ramasamy the said property, who in turn, sold the same in favour of another Kesava Padayachi under Ex.A2 the sale deed dated 17.08.1959. The said Kesava Padayachi died leaving behind his wife and four daughters. However, his widow Chinnammal sold the entire extent of 34 cents in S.No.504/7 in favour of Sriranga Padayachi, who in turn, sold the entire property in favour of the plaintiff, who sold an extent of 19 cents on the eastern portion of the total extent of 34 cents and the present suit is relating to the remaining 15 cents on the western side.
(b) The revenue records filed on the side of the plaintiff, would highlight and spotlight the fact that the plaintiff and his predecessors in title have been in possession and enjoyment of the suit property till the filing of the suit and hence, both the Courts below committed serious error in not taking note of the same, but they simply placed reliance on the Commissioner's report relating to the defendants' possession and dismissed the suit. The Commissioner is not expected to give any finding as to who is in possession of the suit property. The Court also cannot give any direction to the Commissioner to perform such act. The Commissioner exceeded his authority and furnished a report stating as though the defendants' house was situated in the suit property. Both the Courts below should have taken note of that defect and discarded the Commissioner's report, which they failed to do so.
Accordingly, he would pray for setting aside the judgment and decree of the trial Court and for decreeing the suit in toto.
11. Per contra, in a bid to extirpate and torpedo the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the first defendant would pyramid her arguments, which could pithily and precisely be set out thus:
(A) D1's father Govindasamy Padayachi purchased an extent of 17 cents, so to say the western half of the entire extent of the said 34 cents in S.No.507/4 and ever since that time, he had been in possession and enjoyment of the same. However, D1 being the son of Govindasamy Padayachi, purchased an extent of 8-1/2 cents on the northern portion of the said entire extent of 34 cents from D3. D1's father himself during his lifetime raised construction in the suit property described in the schedule of the plaint, so to say, in the middle of the suit property and he has been in enjoyment of it and after his death, his son is continuing in possession of the suit property in entirety. While so, the plaintiff having sold an extent of 19 cents on the eastern portion of the entire extent of 34 cents in S.No.507/4, cannot lay claim over the suit property which is situated on the western half of the entire extent of 34 cents by allegedly deriving title from Chinnammal, who herself could not have sold the entire 34 cents legally. Under the said sale deed dated 13.06.1979, Chinnammal purported to have sold the entire extent of 34 cents in favour of Sriranga padayachi, which cannot be countenanced and upheld as correct, because it is quite obvious and axiomatic from the narration of facts, that for the deceased Kesava Padayachi there were five L.Rs., so to say, his wife and four daughters and in such a case, even by phantasmagorical thoughts, it cannot be visualised that Chinnammal, being the widow alone was entitled to the entire extent of 34 cents of land in S.No.507/4. The onus of proof was on the plaintiff to prove the case. But in this case, such a course was not adopted. As such, both the Courts below gave a categorical finding to the effect that the plaintiff failed to prove his case, whereupon his case was rejected.
(b) In Second Appeal, only substantial questions of law could be considered. He cannot try to mark additional documents, which he is venturing to do so presently. Unless there is any perversity or illegality is involved in the decisions rendered by the Courts below, the question of entertaining the Second Appeal would be a well neigh impossibility.
Accordingly, she would pray for the dismissal of the Second Appeal.
12. I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL.
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL
(iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI] A mere poring over and perusal of those judgments would convey and portray, that the High Court while exercising power under Section 100 of CPC should see as to whether there is any substantial question of law is involved in the matter. However, after framing such substantial question of law, interference would be possible. Hence, it is the paramount duty of the Court to find out as to whether there is any perversity or illegality on the part of the Courts below in deciding the issues involved in the matter.
13. It is a common or garden principle of law that the onus probandi is on the plaintiff to prove his case.
14. My mind is redolent and reminiscent of the following maxim:
"Judicis est judicare secundum allegata et probata It is the duty of a Judge to decide according to the facts alleged and proved"
15. I would also like to recollect the following maxims:
(1) Affirmantis est probare : The person who affirms must prove.
(2) Affirmanti, non neganti, incumbit probatio: The proof is incumbent on the one who affirms, not on the one who denies.
16. It is the plaintiff who comes to Court should prove his case and he cannot try to pick holes in the case of the defendant and try to achieve success in the litigative process. It has to be seen as to whether the plaintiff has discharged his burden. The learned counsel for the plaintiff would submit that even though the details and the recitals in the documents were not set out in the plaint, some documents were referred to and in fact the sale deed dated 13.06.1969 was filed along with the plaint and somehow or other it got missed. During trial also, those documents were not exhibited; however in order to keep the records straight and to discharge his burden, he filed the I.A. under Order 41 Rule 27 of the CPC before this Court and the same may be taken up.
17. This Court not very particular about the fact that the details of those documents left out were not in detail set out in the plaint, but the tenor of the averments in the plaint should have been such so as to point up or show up, accentuate and highlight the fact as to how Chinnammal became the absolute owner of the entire extent of 34 cents when she had 4 other daughters as legal heirs of deceased Kesava Padayachi and that too, when obviously and axiomatically the said Kesava Padayachi died after 1956. This is a very important fact which ought to have been spelt out in the plaint so as to justify the sale deed executed by Chinnammal in favour of Sriranga Padayachi.
18. No doubt the learned counsel for the plaintiff would try to explain and expound by pointing out that except D3-Valliammal, the other daughters have not raised their little finger all along for over the statutory period and in such a case, it is not for D1 to question the absolute proprietary right of Chinnammal to alienate the entire extent of 34 cents. At the most, D1 having purchased the alleged 1/5th share from D3, could only try to assert her right and not try to place reliance on the alleged rights of the said three other daughters.
19. Whereas the learned counsel for D1 would put the issue into relief by accentuating and pointing up that the plaintiff who could only be considered the purchaser of 1/5th share of Chinnammal and that too after having sold 19, cents out of 34 cents, cannot now focus his attention relating to the 15 cents of land which is situated on the western portion of the entire extent of 34 cents. Certainly the aforesaid argument as put forth by the learned counsel for D1 deserves consideration. But all these factual points coupled with legal implications, were not at all considered by the Courts below, for the simple reason that these points were not placed before them and they were not argued also.
20. The learned counsel for the plaintiff would make an extempore submission that in this situation it is better to remand the matter to the lower Court; however, the learned counsel for D1 would submit that after more than a decade if the matter is remitted back to the trial Court, it would get prolonged and people would be put to discomfiture and possession of D1 over the suit property also would be jeopardised.
21. The learned counsel for the plaintiff by placing reliance on Ex.A4, would try to project and put forth the case of his client that Ex.A4 - patta was issued in recognition of his clients' possession over the suit property. Whereas, the learned counsel for the D1 would appropriately and appositely contradict and torpedo such an argument by pointing out that, Ex.A4 cannot be equated with that of a patta and it is only a proposed patta notice. The plaintiff was not as keen as mustard in understanding the legal implications and getting the plaint drafted and reliefs sought.
22. As of now, one fact is clear, that from the records it could be seen that there is a house standing in the suit property. It is not the case of the plaintiff that he raised the superstructure or his predecessor in title raised the superstructure. In such a case, the Court could very well visualise that it is D1 who is in possession of such a building in the suit property. The learned counsel for the plaintiff would submit that as of now, if the matter is remanded, there need not be any categorical finding that as on the date of the filing of the suit such superstructure was in existence and that superstructure might have been erected during the pendency of the proceedings. However, the learned counsel for D1 would submit that the documents Exs.B3 to B10 would demonstrate and display that ever since 1980, such a superstructure has been in existence and it cannot be stated that pendente lite such superstructure was erected. There is considerable force in the submission made by the learned counsel for D1. However, the learned counsel for the plaintiff would submit that, that will not lead to the presumption that the rest of the area not covered by the building also is under the possession and enjoyment of D1 from 1980 onwards. What I could, as of now, decide is that, D1's possession should be safeguarded pending conclusion of the proceedings before the lower Court and under one pretext or other, the plaintiff cannot try to barge into the suit property. However, the learned counsel for D1 would vehemently argue that absolutely there is no necessity for remanding the matter back to the trial Court and give opportunity to the plaintiff, because the plaintiff had not approached the Court with clean hands and with full facts and in such a case, he cannot be allowed to fill up the lacuna or change the nature of the suit. Whereas, the learned counsel for the plaintiff would submit that proper adjudication is warranted, as both sides have not apprised the Court with full facts which are already found embedded in the documents.
23. At this juncture I would like to call up the trite proposition of law that "Every trial is a voyage of discovery, wherein the truth is the quest", as found spot lighted in the decision of the Hon'ble Apex Court reported in (2010) 10 SCC 677 [Ritesh Tewari and another v. State of Uttar Pradesh and others]
24. Not to put too fine a point on it, it is one thing to simply throw the baby along with the bath water, but it is yet another to give opportunity to the plaintiff to do the needful to apprise the Court of all the facts and seek for adjudication. If such an opportunity is not given, I am of the view that it may not be proper in the facts and circumstances of this case. D1 having purchased the property from D3 impliedly recognising the right of D3, being the L.R. of Kesava padayachi, cannot give a go bye to his own commitment in the form of Ex.B2.
25. On balance, (1) The first substantial question of law is answered to the effect that the plaintiff was not justified in framing the suit without incorporating the necessary pleadings relating to the facts that he purchased the property as per Ex.A3 based on the antecedent title deed Ex.A1, the sale deed executed by Chinnammal/ D2 in favour of Sriranga Padayachi, despite D2's daughter D3 having sold a portion of the suit property on the northern side vide the sale deed Ex.B2 in fvour of D1, which the plaintiff was expected to take note of before filing the suit.
(2) The second substantial question of law is answered to the effect that both the Courts below were not justified in not taking into consideration the fact that D3 being the daughter of D2 having already sold a portion of the suit property in favour of D1 on the northern side and that D2 having sold subsequently vide the sale deed dated 16.06.1979 the entire property in favour of the plaintiff's vendor Sriranga padayachi.
(3) The third substantial question of law is answered to the effect that Ex.A4 could not be treated as patta, but it is only a proposed patta notice.
(4) The fourth substantial question of law is answered to the effect that there is perversity and illegality in the judgment and decree of both the Courts below?
26. In the result, the judgment and decree of both the Courts below are set aside and the matter is remanded to the trial Court with the following mandate:
The plaintiff is at liberty to adduce further evidence after getting the plaint amended suitably as per law, whereupon, D1 shall have the right to file additional pleadings and also adduce rebuttal evidence. The trial Court shall do well to see that the matter is disposed of within a period of four months from the date of receipt of a copy of this order. The additional documents could be exhibited before the trial Court for which the same shall be returned to the plaintiff by the Registry. Accordingly, M.P.No.2 of 2012 is ordered. In order to disambiguate the ambiguity, if any, no carte blanche is hereby given to plaintiff to get the plaint amended as he likes, but subject to the extent as permitted under Order VI Rule 17 of CPC and the precedents governing the same only.
Both the parties shall appear before the trial Court on 21.11.2012 Accordingly, this Second appeal is disposed of. No costs.
Gms 10.10.2012
Index : Yes
Internet: Yes
To
1. The Principal Subordinate Judge of Vridhachalam.
2. The II Additional District Munsif of Vridhachalam.
G.RAJASURIA, J.
Gms
S.A.No.169 of 2006
10.10.2012